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III. FREEDOM OF ASSOCIATION UNDER INTERNATIONAL LAW

Workers’ right to organize is well established under international human rights law. The International Covenant on Civil and Political Rights (ICCPR) states that “everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.”1 The International Covenant on Economic, Social and Cultural Rights (ICESCR) similarly recognizes “[t]he right of everyone to form trade unions and join the trade union of his choice.”2 Likewise, the American Convention on Human Rights provides for the right to associate freely for “labor . . . or other purposes,” while the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, “Protocol of San Salvador” (Protocol of San Salvador), guarantees “[t]he right of workers to organize trade unions and to join the union of their choice for the purpose of protecting and promoting their interests.”3 These instruments, to which El Salvador is party, establish the right to freedom of association. ILO conventions, recommendations, and jurisprudence, discussed below, flesh it out.

The ILO Declaration on Fundamental Principles and Rights at Work (ILO Declaration) has recognized freedom of association as one of the “fundamental rights,” which all ILO members have an obligation to protect.4 ILO Convention 87 concerning Freedom of Association and Protection of the Right to Organise and ILO Convention 98 concerning the Right to Organise and Collective Bargaining elaborate on this right. El Salvador has ratified neither of these core conventions, yet as an ILO member, it has a duty derived from its obligation under the ILO Declaration to abide by their terms. The ILO Declaration states that “all Members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact of membership in the Organization to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions.”5

ILO Convention 87 states, “Workers . . . without distinction whatsoever, shall have the right to establish and . . . to join organizations of their own choosing without previous authorization.”6 Commenting on the legal requirements that labor laws may impose for the establishment of such workers’ organizations, the ILO Committee on Freedom of Association has cautioned, “Although the founders of a trade union should comply with the formalities prescribed by legislation, these formalities should not be of such a nature as to impair the free establishment of organizations,” nor should they be “applied in such a way as to delay or prevent the setting up of occupational organizations.”7

ILO Convention 98 further elaborates on the right to freedom of association, providing:

Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment. . . . Such protection shall apply more particularly in respect of acts calculated to . . . (b) [c]ause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities.8

According to the ILO Committee on Freedom of Association, effective protection against anti-union discrimination in employment should cover the periods of recruitment and hiring, as well as employment and dismissal, and is “particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions.”9

The committee has explained that anti-union hiring discrimination—“blacklisting”—constitutes “a serious threat to the free exercise of trade union rights and, in general, governments should take stringent measure to combat such practices.”10 Likewise, governments should provide adequate protection against and remedy for anti-union dismissal. According to the ILO Committee of Experts on the Application of Conventions and Recommendations (ILO Committee of Experts), the remedy should “compensate fully, both in financial and in occupational terms, the prejudice suffered by a worker as a result of an act of anti-union discrimination,” and, therefore, “[t]he best solution is generally the reinstatement of the worker in his post with payment of unpaid wages and maintenance of acquired rights.”11 Further:

The Committee [of Experts] considers that legislation which allows the employer in practice to terminate the employment of a worker on condition that he pay the compensation provided for by law in all cases of unjustified dismissal, when the real motive is his trade union membership or activity, is inadequate under the terms of Article 1 of the Convention [ILO Convention 98], the most appropriate measure being reinstatement. . . . Where reinstatement is impossible, compensation for anti-union dismissal should be higher than that prescribed for other kinds of dismissal.12

The ILO Committee on Freedom of Association adds that in cases of anti-union dismissals, governments should also “ensure the application against the enterprises concerned of the corresponding legal sanctions.”13



1 International Covenant on Civil and Political Rights (ICCPR), G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316, 999 U.N.T.S. 171, December 16, 1966, art. 22(1). El Salvador ratified the ICCPR on February 29, 1980.

2 International Covenant on Economic, Social and Cultural Rights (ICESCR), G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316, 993 U.N.T.S. 171, December 16, 1966, art. 8(1). El Salvador ratified the ICESCR on February 29, 1980.

3 American Convention on Human Rights, OAS Treaty Series No. 36, 1144 U.N.T.S. 123, November 22, 1969, art. 16(1); Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, “Protocol of San Salvador,” OAS Treaty Series No. 69, November 17, 1988, art. 8. El Salvador ratified the American Convention on Human Rights on June 23, 1978, and the Protocol of San Salvador on June 6, 1995.

4 International Labour Conference, ILO Declaration on Fundamental Principles and Rights at Work, 86th Session, Geneva, June 18, 1998.

5 Ibid.

6 ILO Convention 87 concerning Freedom of Association and Protection of the Right to Organise, 68 U.N.T.S. 17, July 4, 1950, art. 2.

7 ILO Committee on Freedom of Association, Legal formalities for the establishment of organizations (Right of workers and employers, without distinction whatsoever, to establish organizations without previous authorization), Digest of Decisions, Doc. 0306, 1996, paras. 248, 249. The ILO Committee on Freedom of Association examines complaints from workers’ and employers’ organizations against ILO member states alleging violation of the right to freedom of association, makes determinations based on the facts and applicable legal standards, and recommends measures to resolve the disputes.

8 ILO Convention 98 concerning the Right to Organise and Collective Bargaining, 96 U.N.T.S. 257, July 18, 1951, art. 1.

9 ILO Committee on Freedom of Association, Protection against anti-union discrimination (Article 1 of Convention No. 98), Digest of Decisions, Doc. 0701, 1985, para. 556.

10 ILO Committee on Freedom of Association, Acts of discrimination (Protection against anti-union discrimination), Digest of Decisions, Doc. 1202, 1996, para. 709.

11 International Labour Conference, 1994, Freedom of association and collective bargaining: Protection against acts of anti-union discrimination, Report of the Committee of Experts on the Application of Conventions and Recommendations, 81st Session, Geneva, 1994, Report III (Part 4B), para. 219. The ILO Committee of Experts is composed of a group of independent experts that reviews reports submitted by ILO member states on their ratification of and compliance with ILO conventions and recommendations. Once a year the committee produces one report on its general observations concerning certain countries and another on a particular theme covered by ILO conventions and recommendations.

12 Ibid., paras. 220, 221. See also ILO Committee on Freedom of Association, Acts of discrimination (Protection against anti-union discrimination), para. 707.

13 ILO Committee on Freedom of Association, Reinstatement of trade unionists in their jobs (Protection against anti-union discrimination), Digest of Decisions, Doc. 1205, 1996, para. 756.


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December 2003