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III. International Law: Workers’ Human Rights, Government Obligations, and Corporate Responsibility

Over the past fifty years, a comprehensive body of international law has developed affirming a range of rights to which all workers are entitled. As discussed in subsequent chapters, however, many meat and poultry workers in the United States are not afforded those rights.

In some instances, employers’ treatment of workers violates international human rights standards as well as U.S. law reflecting those standards. Ineffective enforcement by U.S. labor law authorities compounds the violations by failing to remedy the abuses. In other cases, U.S. law itself fails to meet international norms. The U.S. Congress should reform federal law to bring it into compliance with international norms.  Even in the absence of appropriate federal law, however, employers and government agencies are still obligated under international human rights law to comply with international standards.

Human Rights Instruments and U.S. Obligations

The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families recognize that economic and social rights must accompany civil and political liberties for full protection of human rights.³⁰  Regarding the subject matter of this report, these United Nations international instruments establish the following worker rights, which apply to all workers in a country, including non-citizens with or without governmental permission to work:

• a safe and healthful workplace,
• compensation for workplace injuries and illnesses,
• freedom of association and the right to form trade unions and bargain collectively,
• equality of conditions and rights for immigrant workers.³¹

The United States government has committed itself to protecting these rights. It was a principal author, sponsor, and signer of the Universal Declaration; it has signed and ratified the ICCPR; and it has signed the ICESCR.³²

In addition to these United Nations human rights instruments, the International Labor Organization (ILO) has defined workers’ human rights through a series of specific conventions. Founded in 1919 in the belief that creating international fair labor standards would contribute to world peace, the ILO is a uniquely tripartite entity among international organizations. Under this tripartite arrangement, representatives of governments, business, and labor set consensus international standards. Tripartite agreement gives ILO norms authoritativeness in the international labor rights field. The United States is a member of the ILO and its Governing Body, and U.S. government, business, and labor delegations play key roles in ILO affairs.³³

Among its 185 international labor standards called “conventions,”  the ILO  has adopted specific conventions on workplace health and safety, workers’ compensation, workers’ organizing rights, and migrant workers’ rights.³⁴  ILO health and safety standards call for government laws and regulations to identify and minimize or prevent workplace hazards, which create risks of occupational injury or illness, with strong enforcement systems to back up the law.³⁵

Recognizing that workplace injuries and illnesses will occur despite best efforts at prevention, ILO standards on workers’ compensation call for law and regulations providing fully-paid medical care and rehabilitation treatment for workers disabled by on-the-job injury or illness, wage replacement during periods of disability at levels that will prevent undue economic harm to the worker and the worker’s family, and, in the case of occupational fatalities, substantial death benefits payable to workers’ dependents.³⁶

The ILO treats workers’ freedom of association as the bedrock right on which all others rest. This right includes workers’ efforts at organization and association in the workplace and in the larger society through democratic participation in civic affairs. It includes the right to bargain collectively with employers and the right to strike.³⁷

ILO conventions on workplace health and safety, workers’ compensation, and workers’ organizing rights protect both authorized and unauthorized non-citizen workers.³⁸ However, because some of these conventions allow countries to exempt narrowly defined categories of workers from their protections, and because governments have increasingly recognized the particular vulnerability of non-citizen workers, the ILO has adopted a series of conventions that protect migrant workers’ rights. The ILO’s migrant worker conventions emphasize a general principle of non-discrimination against immigrants and their families, with specific reference to equality of treatment in all aspects of employment—pay, benefits, working conditions, labor standards enforcement, and other workplace rights and benefits.³⁹

ILO Norms, the 1998 Core Labor Standards Declaration, and U.S. Obligations

In 1975, the ILO’s Committee on Freedom of Association determined that member countries are “bound to respect a certain number of general rules which have been established for the common good . . . among these principles, freedom of association has become a customary rule above the Conventions.”⁴⁰ Though it has so far not ratified Conventions 87 and 98 addressing freedom of association and the right to organize, the United States has accepted jurisdiction and review by the ILO Committee on Freedom of Association (CFA) of complaints filed against it under these conventions.

Responding to requests from the World Trade Organization (WTO), the Organization for Economic Cooperation and Development (OECD) and other international bodies to identify “core” labor standards among its more than 180 conventions, the ILO in 1998 adopted the landmark Declaration of Fundamental Principles and Rights at Work. The declaration covers freedom of association, forced labor, child labor, and discrimination. The declaration says expressly:

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 [ILO] Constitution, the principles concerning the fundamental rights which are the subject of those Conventions, namely: (a) freedom of association and the effective recognition of the right to collective bargaining; . . .(d) “the elimination of discrimination in respect of employment and occupation.⁴¹

The United States championed adoption of the 1998 declaration. It has not ratified some of the conventions related to the declaration’s principles and rights, but as a member of the ILO the United States is obligated to ensure that its laws and policies protect these fundamental rights.

U.S. Commitments on Labor Rights and Trade

U.S. trade laws and labor rights clauses in international trade agreements promoted and signed by the United States and its trade partners articulate workers’ rights. These statutes and trade agreements define “internationally recognized worker rights” to include, in the language of the statutes:

• the Right of Association,
• the Right to Organize and Bargain Collectively,
• Acceptable Conditions of Work with Respect to Minimum Wages, Hours of Work, and Occupational Safety and Health.⁴²

For example, U.S. trade agreements with Jordan, Chile, Singapore and Australia, among other countries, contain the following obligation:

The Parties reaffirm their obligations as members of the International Labor Organization (“ILO”) and their commitments under the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up. The Parties shall strive to ensure that such labor principles and the internationally recognized labor rights . . . are recognized and protected by domestic law.⁴³

The most extensive subject matter treatment of workers’ rights in trade agreements is contained in the North American Agreement on Labor Cooperation (NAALC), the supplemental labor accord to the North American Free Trade Agreement (NAFTA). Going beyond the ILO’s core standards formulation, the NAALC sets forth eleven “Labor Principles” that the three signatory countries (Canada, Mexico, and the United States) commit themselves to promote. Each of these principles applies to “workers” (including non-citizens), and among the principles is a commitment to ensure that migrant workers receive the same legal protection as nationals in respect to working conditions. The NAALC Labor Principles include:

• freedom of association and protection of the right to organize,
• the right to bargain collectively,
• the right to strike,
• non-discrimination,
• occupational safety and health,
• workers' compensation,
• migrant worker protection.⁴⁴

The NAALC signers pledged to effectively enforce their national labor laws in these subject areas, and adopted six “Obligations” for effective labor law enforcement to fulfill the principles. These obligations include:

• a general duty to provide high labor standards;
• effective enforcement of labor laws;
• access to administrative and judicial forums for workers whose rights are violated;
• due process, transparency, speed, and effective remedies in labor law proceedings;
• public availability of labor laws and regulations, and opportunity for “interested persons” to comment on proposed changes;
• promoting public awareness of labor law and workers’ rights.

In sum, the United States has acknowledged its international responsibility to honor workers’ rights by signing and ratifying human rights instruments, by accepting obligations under ILO standards in connection with instruments it has not ratified, and by committing itself in trade agreements with labor protections to effectively enforce U.S. laws protecting workers’ rights. Nevertheless, as this report details, the United States is failing to meet its human rights and labor rights responsibilities to workers in the meat and poultry industry.

Corporations and Human Rights

Human rights obligations under international law extend beyond governments to private corporations in positions of power over workers and communities.⁴⁵ Corporations have a duty to avoid complicity in human rights violations or to take advantage from human rights violations. Moreover, where governments fail to adopt and enforce laws to halt violations, corporations that benefit from the failure of governmental action are complicit in human rights violations. A company’s obligation, then, is two-fold: not to itself violate workers’ rights, and not to exploit the failure of government to protect workers’ rights.

As the United Nations Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (Norms) notes, governments have primary responsibility for “ensuring that transnational corporations and other business enterprises respect human rights.”⁴⁶ Nevertheless, corporations are not free to violate rights until a government stops them. The United Nations Norms affirm that:

• Corporations have the obligation to promote, secure the fulfillment of, respect, ensure respect of, and protect human rights recognized in international as well as national law.
• Corporations shall provide a safe and healthy working environment as set forth in relevant international instruments and national legislation as well as in international human rights and humanitarian law.
• Corporations shall ensure freedom of association and effective recognition of the right to collective bargaining.

The OECD’s Guidelines for Multinational Enterprises constrains corporations to respect workers’ fundamental rights, among them:

• respect the human rights of those affected by their activities;
• respect the right of their employees to be represented by trade unions;
• take adequate steps to ensure occupational health and safety in their operations.⁴⁷