Edited by Adelle Blackett and Anne Trebilcock
Chapter 12: Pushback on the right to strike: Resisting the thickening of soft law
At the 2012 International Labour Conference (ILC), a controversy arose when the Employers’ group in the Committee on the Application of Standards (CAS) challenged the annual survey presented by ILO Committee of Experts (CEACR). The employers denounced the CEACR opinion not only for stating that ILO Convention No. 87 protects workers’ right to strike, but also arguing that the CEACR had exceeded its mandate by interpreting a Convention. This disagreement led to the first failure of the CAS to examine cases since 1927. Although the implications for the right to strike have been much discussed, the controversy also has troubling implications for the ILO itself; and potentially for the global governance of human rights at work. Because those outside the ILO have sometimes looked to it for guidance in interpreting certain human rights, the Employers’ stance appears to be aimed at preventing the ILO from speaking with one voice. But the implications of the 2012 ILC incident are broader. The Employers’ stance at the 2012 ILC effectively produces a fragmented view of fundamental rights. The Employers’ position — that each nation state can decide what the human right means — does not accord with the prevailing legal view that internationally recognized human rights have a meaning and that member States must cede sovereignty and act in accordance with the international understanding of the right expressed in the Convention or treaty. Rather than a minor skirmish between Employers and Workers, the Employers’ position at the 2012 ILC, if accepted, would undermine the entire post-World War II notion of universal human rights.
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