(Pix © Larry Catá Backer; detail of Pieter Brueghel, Le Combat de Carnavale et Carême; Royal Museum of Fine Arts Brussels)
I take this opportunity to announce the posting of a new draft, "From the Social to the Human Rights of Labor: Reflections on the Universal Declaration of Human Rights Article 23, the ILO, and Working Rights Principles" (CPE Working Paper No. 2/1 (Jan. 2019)).
The essay reflects a little about the well known great transformation of conceptions from which society could think about and respond to the "problem" of labor to the contemporary conceptual baselines that shifted the normative gaze from the "problem" of labor to that of laborers within a conceptual framework now focused on the "problem" of the rights of individuals and the obligations of states, enterprises (and eventually) other actors). The expectation is that a final version of this essay may appear in (Humberto Cantú Rivera (ed.) ) The Universal Declaration of Human Rights: A Commentary (Brill/Nijhoff, 2019).
The abstract and introduction follow below. The essay may be accessed here.
Working Papers
Coalition for Peace & Ethics
No. 2/1 (February 2019)
From the Social to the Human Rights of Labor: Reflections on the Universal Declaration of Human Rights Art. 23, the ILO, and Working Rights Principles
Larry Catá Backer
From the Social to the Human Rights of Labor: Reflections on the Universal Declaration of Human Rights Art. 23, the ILO, and Working Rights Principles
Larry Catá Backer
Abstract: Article 23 of the Universal Declaration of Human Rights represents the culmination of a substantial transformation in the conceptual baselines for developing legal and normative frameworks respecting work and workers. This chapter considers this movement from a focus on conditions of labor to the modern principles that frame the human rights of labor. Section 1 of the chapter provides the context, situating labor rights from conceptions of social rights to rights embedded within the broad spectrum of human rights. Section 2 examines the movement of labor rights principles from its initial international conceptualization in the newly formed International Labor Organization in 1919 to its eventual expression as the principles of article 23. Section 3 then considers the impact of article 23’s right to work principles. The section first considers the development of labor rights principles through different international instruments. It then considers UDHR labor rights principles as specifically addressed in regional or domestic contexts. It ends with reflections on challenges and obstacles now and going forward. A later version may appear in The Universal Declaration of Human Rights: A Commentary (Humberto Cantú Rivera (ed.), Brill/Nijhoff, 2019 (forthcoming))
Key words: labor rights, human rights, ILO, trafficking child labor, slavery, forced labor, Guiding Principles for Business and Human Rights, right to work.
1. Introduction
In retrospect, now 70 years after its declaration by the General Assembly as the first part of what would emerge as the Universal Declaration of Human Rights,[1] the international community quite clearly sees in the Universal Declaration of Human Rights the great foundational document of the contemporary world,[2] one confirmed in the 1993 UN Vienna Declaration on human rights.[3] The UDHR has been the impetus for the numerous international instruments, and the underlying normative basis of the work of regional human rights organizations, as well as those embedded within the domestic legal orders of many states. That impetus might well have been made possible, ironically enough, because initial resistance required abandonment of any idea of producing a legally binding document rather than a set of principles.[4] Yet any concerted approach to the legalization of human rights at the international level remained both contentious and latent until after the collapse of the Soviet Union and the emergence of globalization as the operative mode of internationalization.[5] In the contemporary world, the UDHR has found its way into the discourse of social norms overseen by international public organization, and most importantly perhaps into the language, discourse and emerging structures of business and human rights.[6] The UDHR serves as the baseline for policy, legal or judicial consideration of human rights ‘elements’ in economic, political, and social institutional action.[7]
The unity of that foundational role, however, also tends to veil the substantial divisions that have mired efforts to transpose the principles of the UDHR into international law, and the further difficulty of transposing the international legal obligations of states into their respective domestic legal orders. The core differences among states with respect to the value and precedence of the principles of the UDHR has fractured the project of legalization into multiple components. These pit those states and their intellectual allies who saw in the UDHR principles of social, economic and cultural rights the necessary basis for the development (later) of civil and political rights, against those who saw the development of robust regimes of civil and political rights as the necessary predicate for the legitimate development of economic, social and cultural rights.[8] That fracture intensifies in application within international and domestic orders in the face of the influence of those who have seen in the UDHR a troubling architecture for the normalization of Western liberal values and approaches at the expense of those who were on the wrong end of European colonization and imperial projects.[9] Civil society participation reflected this division.[10]
The fractures that emerged even as the UDHR was being drafted might well have been understood as latent within the UDHR themselves, embedded, for example, within the discursive dissonance between two principle UDHR narratives.[11] Hoover describes an oscillation “between two poles: on one side it can be seen as a moment of founding for the human rights regime, based on the documents’ unique status as a symbol of moral consensus . . . while on the other hand it can be seen as a political imposition by the post-war liberal powers intent upon remaking the international order in their image.”[12] But even that binary fracture ignores colonized people not at the table, along with key global actors representing non liberal Western perspectives—the Communist bloc, Saudi Arabia and South Africa. Of these, the Communist bloc, though absent at the start of the construction of global human rights regimes would assert an ever stronger influence thereafter in efforts to legalize the UDHR within the UN system and in regional and domestic efforts. Hoover seeks to avoid the “narrative trap” by extracting from it the principle that the UDHR was itself the embodiment of politics and the start of a conversation which is ongoing, but as agonistic politics in which stability was characterized by a constant state of disagreement that produced both forward movement and constraints[13] At the same time, there was another tension evident from the beginning, one that saw Latin American states seeking to strengthen the charter and to make some or all of its provisions binding, against those who viewed such an effort as counterproductive.[14] This division continues to bedevil international discourse, for example around the issue of the development of a comprehensive treaty for business and human rights, a project led by Ecuador and South Africa, but opposed by the United States and the European Union.[15]
This context and those insights provide a useful framework for the task of this Chapter, to consider the UDHR’s 23rd Article on the right to work. The provision is fairly straightforward:
The simplicity of Article 23 elaborates four of the most central elements of what in the contemporary world is understood as the core of the human rights of labor. The first is a noncoercion principle. Rights to labor is embedded in those who proffer work rather than in those who would employ them—or the state. Though the state may not constrain the personal right of individuals to work, it must assume a positive obligation to protect the rights bearing individual where the individual is not working. Central to the right are free choice in employment (the worker and not those who control work have the right to determine choice of employment), and work conditions that are favorable. These are the great principles of protection against slavery: those who control work cannot control labor; those who can offer employment cannot compel work, for there is no right in capital to demand labor; and like capital, labor must be fairly treated, working conditions (other than remuneration) must be judged against principles of dignity and fairness as markets or the state might determine.[19] (Rosado Marzán 2017; Yamada 2009).
The second is a limited non-discrimination principle. Once employed, all individuals ought to be paid without regard to extraneous condition or circumstances. These can include whatever circumstances in ordinary course give rise to discrimination—ethnicity, race, religion, gender, political beliefs, and the like. Yet curiously, the anti-discrimination principle did not reach to the initial decision to hire or to shunt individuals into particular forms of labor based on those characteristics with respect to which discrimination in pay was condemned. The third is a principle of a living wage. Fairness is understood with reference to the condition of the rights holder rather than of the employer. It creates a double burden, the first on employers to pay fair wages, the second on the state to make up any difference between fair wages (determined by markets or otherwise) and living wages determined by reference to the condition of rights holders and their dependents (determined by reference to family, however that may be defined). The last is the principle of collective action. Individuals have parallel rights to aggregate their capital and to aggregate their labor. States ought not privilege the rights to collective action by capital over the right of labor to do the same.
These principles—of noncoercion, of nondiscrimination, of living wages, and of collective action—now constitute the bench mark against which both the legal systems of states and the governance systems of institutions operating in the societal sphere are measured. This chapter briefly considers the provisions of UNHR Article 23’s right to work provisions. The next section considers the origins of the right to work within the UDHR. It is followed by section 3 which examines the effect of the right to work principle. The work concludes by suggesting the growing authority of the right to work principles in the modern context of managing the behaviors of economic actors in production chains—from the construction of normative views of trafficking and modern slavery, to the debates about living wages, to the aggregation of political and labor power in labor aggregation principles.
NOTES
The unity of that foundational role, however, also tends to veil the substantial divisions that have mired efforts to transpose the principles of the UDHR into international law, and the further difficulty of transposing the international legal obligations of states into their respective domestic legal orders. The core differences among states with respect to the value and precedence of the principles of the UDHR has fractured the project of legalization into multiple components. These pit those states and their intellectual allies who saw in the UDHR principles of social, economic and cultural rights the necessary basis for the development (later) of civil and political rights, against those who saw the development of robust regimes of civil and political rights as the necessary predicate for the legitimate development of economic, social and cultural rights.[8] That fracture intensifies in application within international and domestic orders in the face of the influence of those who have seen in the UDHR a troubling architecture for the normalization of Western liberal values and approaches at the expense of those who were on the wrong end of European colonization and imperial projects.[9] Civil society participation reflected this division.[10]
The fractures that emerged even as the UDHR was being drafted might well have been understood as latent within the UDHR themselves, embedded, for example, within the discursive dissonance between two principle UDHR narratives.[11] Hoover describes an oscillation “between two poles: on one side it can be seen as a moment of founding for the human rights regime, based on the documents’ unique status as a symbol of moral consensus . . . while on the other hand it can be seen as a political imposition by the post-war liberal powers intent upon remaking the international order in their image.”[12] But even that binary fracture ignores colonized people not at the table, along with key global actors representing non liberal Western perspectives—the Communist bloc, Saudi Arabia and South Africa. Of these, the Communist bloc, though absent at the start of the construction of global human rights regimes would assert an ever stronger influence thereafter in efforts to legalize the UDHR within the UN system and in regional and domestic efforts. Hoover seeks to avoid the “narrative trap” by extracting from it the principle that the UDHR was itself the embodiment of politics and the start of a conversation which is ongoing, but as agonistic politics in which stability was characterized by a constant state of disagreement that produced both forward movement and constraints[13] At the same time, there was another tension evident from the beginning, one that saw Latin American states seeking to strengthen the charter and to make some or all of its provisions binding, against those who viewed such an effort as counterproductive.[14] This division continues to bedevil international discourse, for example around the issue of the development of a comprehensive treaty for business and human rights, a project led by Ecuador and South Africa, but opposed by the United States and the European Union.[15]
This context and those insights provide a useful framework for the task of this Chapter, to consider the UDHR’s 23rd Article on the right to work. The provision is fairly straightforward:
(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.The UDHR cemented an understanding, long in the making, that labor rights were central to the scope and understanding of human rights emerging after 1945.[17] That centering involved the convergence of two otherwise distinct frameworks—the first touched on conditions of work, and the second on the rights embedded in individuals; that is one framed the issues external to actors and the other internalized those issues within individuals now reconstituted as rights bearers rather than as objects of obligation. A key element of that centering was the movement in consensus about labor from a project of constraining those who hire labor into a project embedding rights to labor in individuals. And yet, the characterization of labor rights as human rights had the potential to transform the conceptualization of labor from an issue of conditions of servitude to one centered on the dignity of laborers; and the issue of labor rights as human rights remains a subject of discussion.[18]
(2) Everyone, without any discrimination, has the right to equal pay for equal work.
(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
(4) Everyone has the right to form and to join trade unions for the protection of his interests.[16]
The simplicity of Article 23 elaborates four of the most central elements of what in the contemporary world is understood as the core of the human rights of labor. The first is a noncoercion principle. Rights to labor is embedded in those who proffer work rather than in those who would employ them—or the state. Though the state may not constrain the personal right of individuals to work, it must assume a positive obligation to protect the rights bearing individual where the individual is not working. Central to the right are free choice in employment (the worker and not those who control work have the right to determine choice of employment), and work conditions that are favorable. These are the great principles of protection against slavery: those who control work cannot control labor; those who can offer employment cannot compel work, for there is no right in capital to demand labor; and like capital, labor must be fairly treated, working conditions (other than remuneration) must be judged against principles of dignity and fairness as markets or the state might determine.[19] (Rosado Marzán 2017; Yamada 2009).
The second is a limited non-discrimination principle. Once employed, all individuals ought to be paid without regard to extraneous condition or circumstances. These can include whatever circumstances in ordinary course give rise to discrimination—ethnicity, race, religion, gender, political beliefs, and the like. Yet curiously, the anti-discrimination principle did not reach to the initial decision to hire or to shunt individuals into particular forms of labor based on those characteristics with respect to which discrimination in pay was condemned. The third is a principle of a living wage. Fairness is understood with reference to the condition of the rights holder rather than of the employer. It creates a double burden, the first on employers to pay fair wages, the second on the state to make up any difference between fair wages (determined by markets or otherwise) and living wages determined by reference to the condition of rights holders and their dependents (determined by reference to family, however that may be defined). The last is the principle of collective action. Individuals have parallel rights to aggregate their capital and to aggregate their labor. States ought not privilege the rights to collective action by capital over the right of labor to do the same.
These principles—of noncoercion, of nondiscrimination, of living wages, and of collective action—now constitute the bench mark against which both the legal systems of states and the governance systems of institutions operating in the societal sphere are measured. This chapter briefly considers the provisions of UNHR Article 23’s right to work provisions. The next section considers the origins of the right to work within the UDHR. It is followed by section 3 which examines the effect of the right to work principle. The work concludes by suggesting the growing authority of the right to work principles in the modern context of managing the behaviors of economic actors in production chains—from the construction of normative views of trafficking and modern slavery, to the debates about living wages, to the aggregation of political and labor power in labor aggregation principles.
NOTES
[1] Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR)
[2] Samuel Moyn, The Last Utopia: Human Rights in History (Harvard University Press 2010) 81-83; Mary Ann, Glendon ‘Knowing the Universal Declaration of Human Rights’ (1997) 73 Notre Dame LR1153–1190.
[3] UNGA World Conference on Human Rights ‘Vienna Declaration and Programme of Action’ (1993) UN Doc A/CONF.157/23
[4] Glendon (n 2).
[5] Paul Gordon Lauren, The Evolution of International Human Rights: Visions Seen (University of Pennsylvania Press, Philadelphia 2003) 233-270 (Cold War rivalry marginalized human rights within the UN).
[6] UNHRC, The Guiding Principles for Business and Human Rights (UN, New York and Geneva, 2011) (UNGP).
[7] Amnesty International ‘Universal Declaration of Human Rights’ Amnesty International-What We Do <https://www.amnesty.org/en/what-we-do/universal-declaration-of-human-rights/> accessed 26 January 2019 (“The Universal Declaration of Human Rights (UDHR) is a document that acts like a global road map for freedom and equality – protecting the rights of every individual, everywhere. It was the first time countries agreed on the freedoms and rights that deserve universal protection in order for every individual to live their lives freely, equally and in dignity.”).
[8] Larry Catá Backer, ‘The Role of Companies in Privatizing Socio-Economic Rights in India and China Under Emerging Global Regulatory Frameworks’ in (Surya Deva, (ed) Socio-Economic Rights In Emerging Free Markets: Comparative Insights From India And China (Routledge, London, 2015) 44-70
[9] Makau Mutua, Human Rights: a Political and Cultural Critique (Philadelphia, PA: University of Pennsylvania Press, Philadelphia, 2002); Upendra Baxi, The Future of Human Rights (OUP, Oxford, 2007).
[10] M. Glen Johnson, ‘A Magna Carta for Mankind: Writing the Universal Declaration of Human Rights’ in (M. Glen Johnson and Janusz Symonides (eds.) The Universal Declaration of Human Rights: A History of Its Creation and Implementation 1948-1998 (UNESCO Publishing, Paris, 1998) 19, 25-26
[11] Joe Hoover, ‘Rereading the Universal Declaration of Human Rights: plurality and contestation, not consensus. (2013) 12 JHuman Rights 217-241.
[12] Ibid., citing Mutua (n 2, 552-555); and Christina M. Cerna, ‘Universality of Human Rights and Cultural Diversity: Implementation of Human Rights in Different Socio-cultural Contexts’ (1994) 16 HRQ 740–752. 2
[13] Hoover (n 11) citing Ernesto Laclau, and Chantal Mouffe. Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (Verso, 2001); Chantal Mouffe, ‘Democracy in a Multipolar World.” In (Joe Hoover, Meera Sabaratnam, and Laust Schouenborg, eds.) Interrogating Democracy in World Politics (Abingdon: Routledge, 2011) 118–129..
[14] Johnson (n10), 29-30, 34-38.
[15] John G. Ruggie, ‘Business and Human Rights: The Evolving International Agenda’ (2017) 101 AJIL 819-840; Larry Catá Backer, ‘Moving Forward the UN Guiding Principles for Business and Human Rights: Between Enterprise Social Norm, State Domestic Legal Orders, and the Treaty Law that Might Bind Them All’ (2015) 38 Fordham Int'l L.J. 457.
[16] UDHR (n 1).
[17] Lee Swepston, The Development in International Law of Articles 23 and 24 of the Universal Declaration of Human Rights: The Labor Rights Articles (Lam Edition, Dordrecht, Neth: Brill – Nijhoff, 2014).
[18] Cf., Kevin Kolben, ‘Labor Rights as Human Rights?’ (2009) Va. J. Int’l L 50:449-484 (arguing that there are significant differences between labor and human rights).
[19] David C. Yamada, ‘Human Dignity and American Employment Law’ (2009) 43 U. Rich. L. Rev. 52; César F. Rosado Marzán, ‘Dignity Takings and Wage Theft’ (2017) 92 Chicago Kent Law Review 1203.
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