International human rights analysts and advocates have been slow coming to grips with issues of workers' rights. Attention has focused on pressing problems of arbitrary detention and torture, massacres of indigenous peoples and ethnic minorities, atrocities of war and civil war, and other gross human rights violations, not on workers' rights to form and join trade unions and bargain collectively. For their part, worker representatives have been slow to see human rights aspects in their work. The day-to-day challenge of organizing and bargaining in complex frameworks of national labor laws leaves little time to learn from international human rights discourse. In the United States and in many other countries, union and management officials and attorneys, as well as administrators and judges, seldom turn to international law to inform their work.
All that is changing under the pressures of a globalizing economy and new sensitivity to the human rights implications of workers' rights advocacy. For example, employers' organizations, trade unions and governments joined together at the International Labor Organization in 1998 to issue a landmark Declaration on Fundamental Principles and Rights at Work. Their common declaration set out freedom of association and the right to organize and bargain collectively as the first such principles.
At the same time, the 1998 action at the ILO was not a novelty. Freedom of association for workers has long been universally acknowledged as a fundamental right. A widely accepted body of international norms has established standards for workers' freedom of association covering the right to organize, the right to bargain collectively, and the right to strike.46
Sources of international labor law on workers' freedom of association include human rights instruments developed by the United Nations and by regional human rights bodies, principles elaborated through worker, employer and government representatives at the ILO, and labor rights clauses in international trade agreements. The United States has acknowledged its international responsibility
to honor workers' freedom of association by ratifying human rights instruments, inparticular the International Covenant on Civil and Political Rights. It has also accepted obligations under ILO conventions on freedom of association and under the 1998 declaration.
The United States has committed itself, through international agreement, to effectively enforce U.S. laws protecting workers' rights to organize, to bargain collectively and to strike. It has affirmed obligations to honor workers' freedom of association in its own trade laws and in laws governing U.S. involvement in the World Bank, the International Monetary Fund, and other multilateral bodies. In all these laws, freedom of association is held out as the foremost internationally recognized workers' right.
International Human Rights Instruments
* The Universal Declaration of Human Rights (1948) states that "[E]veryone has the right to freedom of peaceful assembly and association," and "[E]veryone has the right to form and to join trade unions for the protection of his interests."47
* The International Covenant on Civil and Political Rights (ICCPR, 1966) declares: "[E]veryone 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."48
* The International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966) obliges governments to "ensure the right of everyone to form trade unions and join the trade union of his choice . . .; the right of trade unions to function freely . . .; the right to strike . . ."49
The United States ratified the International Covenant on Civil and Political Rights in 1992. The ICCPR requires ratifying states "to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant" and "to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant." The
ICCPR also constrains ratifying states "to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy."50
When the U.S. Senate ratified the International Covenant on Civil and Political Rights in 1992, it entered several reservations, understandings, and declarations sidestepping certain obligations in the covenant, perhaps most notably reserving the right to impose capital punishment on minors.51 But it took no reservations, understandings or declarations with respect to Article 22 on the right to form and join trade unions, or to Article 2 requiring an "effective remedy" for rights violations.52
Acknowledging the obligation, the U.S. State Department's first report on compliance with the ICCPR stated that "provisions of the First, Fifth and Fourteenth Amendments guarantee freedom of assembly in all contexts, including the right of workers to establish and join organizations of their own choosing.
. . . The rights of association and organization are supplemented by legislation."53 Distressingly, however, the United States devalued the importance of protecting the right to freedom of association by claiming that the widespread exclusion of workers from coverage under U.S. labor laws-primarily agricultural workers, domestic workers, and supervisory employees-"means only that they do not have access to the specific provisions of the NLRA . . . for enforcing their rightsto organize and bargain collectively."54 "Only" lacking access to enforcement mechanisms means these workers' rights can be violated with impunity. There is no labor board or other authority to remedy violations.
Regional human rights instruments reaffirm the consensus on workers' freedom of association as a basic right:
* The American Declaration of the Rights and Duties of Man (1948) states: "Every person has the right to assemble peaceably with others in a formal public meeting or an informal gathering, in connection with matters of common interest of any nature. Every person has the right to associate with others to promote, exercise and protect his legitimate interests of a political, economic, religious, social, cultural, professional, labor union or other nature."55
* The later American Convention on Human Rights (1969) declares: "[E]veryone has the right to associate freely for ideological, religious, political, economic, labor, social, cultural, sports, or other purposes."56
* Reflecting the international consensus on workers' freedom of association, though it does not involve the United States, the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) says: "Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests."57
* The European Union's Community Charter of Fundamental Social Rights of Workers (1989) holds: "[E]mployers and workers of the European Community shall have the right of association in order to constitute professional organisations or trade unions of their choice for the defence of their economic and social interests . . . the right to negotiate and conclude collective agreements under the conditions laid down by national legislation and practice . . . the right to strike, subject to the obligations arising under national regulations and collective agreements.58
ILO Conventions and OECD Guidelines
Building on this international consensus, the ILO, a U.N.-related body with nearly universal membership and tripartite representation by governments, workers, and employers, recognizes freedom of association and protection of the right to organize as core workers' rights. Over decades of painstaking treatment of allegations of violations of workers' rights, the ILO's Committee on Freedom of Association has elaborated authoritative guidelines for implementation of the right to organize, the right to bargain collectively, and the right to strike.
* ILO Convention No. 87 on freedom of association and protection of the right to organize says that "Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization."59
* ILO Convention No. 98 declares that "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-a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish union membership; b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities."
In greater detail, Convention 98 goes on to say: "Workers' and employers' organizations shall enjoy adequate protection against any acts of interference by each other. . . Machinery appropriate to national conditions shall beestablished, where necessary, for the purpose of ensuring respect for the right to organize . . . Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers' and workers' organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements."60
* The ILO's Declaration of Fundamental Principles and Rights at Work 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; . . ."
ILO core conventions were officially recognized at the 1995 World Social Summit conference in Copenhagen. In addition to those covering freedom of association and the right to organize and bargain collectively, ILO norms on forced labor, child labor, and employment discrimination were defined as essential to ensuring human rights in the workplace. Signed by the United States, the Copenhagen summit's final declaration called on governments to ratify these ILO conventions, to respect them even if they have not ratified them, and to use international labor standards as a benchmark for their national legislation.61 The U.N. High Commissioner for Human Rights includes these ILO conventions in an authoritative list of "international human rights instruments."62
At the Organization for Economic Cooperation and Development (OECD), the United States subscribes to a statement that "[e]nterprises should, within the framework of law, regulations and prevailing labor relations and employment practices, in each of the countries in which they operate: respect the right of their employees to be represented by trade unions . . . and engage in constructivenegotiations . . . with such employee organizations with a view to reaching agreements on employment conditions."63 The OECD has characterized freedom of association and the right to organize and bargain collectively as labor standards that "reflect basic human rights which should be observed in all countries, independently of their levels of economic development and socio-cultural traditions."64
U.S. Commitments in the Multilateral Setting
The United States championed the 1998 adoption of the ILO's Declaration on Fundamental Principles and Rights at Work that set out freedom of association as the first such principle and right. Upon adoption, U.S. Labor Secretary Alexis Herman declared, "The ILO has underlined and clarified the importance of the fundamental rights of workers in an era of economic globalization . . . ILO members have accepted the need to be accountable, and with this action there will now be a process within the ILO to demonstrate that accountability."65
Whether or not a country has ratified Conventions 87 and 98, the ILO has determined that ILO 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."66 Though it has so far not ratified Conventions 87 and 98, 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.
Several ILO cases involving the United States in the past fifteen years have raised issues cited in this Human Rights Watch report. The United States has defended itself in these cases by describing its elaborate system of labor laws and procedures and asserting that the system generally conforms to ILO standards.67 In many cases, the CFA "noted with concern" and "drew the attention of the U.S. government" to problems the Committee perceived. In some cases, the committee recommended changes in policy and practice. However, the ILO has no enforcement powers, and the United States took no action to implement the recommendations.
Reporting on compliance and defending against complaints, the United States likewise has taken the position that its labor law and practice are generally in conformance with the conventions but that some elements of U.S. federal and state labor laws conflict with the conventions' detailed requirements. Ratification of ILO conventions, it is contended, would amount to "back door" amendment of U.S. labor laws without following the normal legislative process because the ratification of an international treaty would supersede pre-existing domestic law under the United States' constitutional system.68 The leading U.S. employer representative to the ILO cautioned against making U.S. law subject to ILO supervision because "this machinery is not in our control" and the United States could be embarrassed by holding its "domestic laws and practices up to greater international scrutiny and criticism than is presently the case."69
Before 1999, U.S. reports to the ILO on compliance with freedom of association standards offered boilerplate descriptions of American labor law and asserted that U.S. law and practice "appears to be in general conformance" with Conventions 87 and 98.70 Significantly, however, the United States in a 1999 report acknowledged for the first time that "there are aspects of this [U.S. labor law] system that fail to fully protect the rights to organize and bargain collectively of all employees in all circumstances."
The 1999 U.S. report stated that "the United States is concerned about these limitations and acknowledges that to ensure respect, promotion and realization of the right to organize and bargain collectively, it is important to reexamine any system of labor laws from time to time to assure that the system continues to protectthese fundamental rights."71 An ILO Committee of Expert-Advisors that reviewed country reports called the U.S. statements "striking for their open recognition of difficulties still to be overcome or situations they deemed relevant to achieving full respect for the principles and rights in the Declaration."72
U.S. Trade Laws
The United States has also affirmed the importance of international norms and obligations regarding workers' freedom of association in its own trade statutes. Although these laws create obligations for trading partners, they underscore the U.S. commitment to freedom of association under international standards. In these statutes governing trade relationships with other countries, Congress defined freedom of association and the right to organize and bargain collectively as "internationally recognized workers' rights."
Labor rights amendments have been added to statutes governing the Generalized System of Preferences (GSP) in 1984,73 the Overseas Private Investment Corporation in 1985,74 the Caribbean Basin Initiative in 1986,75 Section 301 of the Trade Act of 1988,76 Agency for International Development (AID) funding for economic development grants overseas,77 and U.S. participation in the World Bank, International Monetary Fund and other international lendingagencies.78 All these measures hold out the possibility of economic sanctions against trading partners that violate workers' rights. In every case, freedom of association and the right to organize and bargain collectively are the first rights listed.
In formulating the labor rights clauses in U.S. trade laws, Congress has relied on ILO guidance. In its report on legislation governing U.S. participation in international financial institutions, Congress pointed to "the relevant conventions of the International Labor Organization, which have set forth, among other things, the rights of association [and] the right to organize and bargain collectively."79 Analyzing the application of workers' rights provisions in U.S. trade laws, the General Accounting Office underscored the fact that "the international standards have been set by the International Labor Organization, which is part of the U.N. structure."80
Since passage of the 1984 GSP labor rights amendment, the U.S. State Department's annual Country Reports on Human Rights Practices refer to ILO Convention 87 as the basis of U.S. policy on workers' freedom of association. The reports say, "The `right of association' has been defined by the International Labor Organization to include the right of workers to establish and to join organizations of their own choosing" and "the right to organize and bargain collectively includes the right of workers to be represented in negotiating the prevention and settlement of disputes with employers; the right to protection against interference; and the right to protection against acts of antiunion discrimination."81
Regarding strikes, the State Department's human rights policy is that "the right of association includes the right of workers to strike. While strikes may be restricted in essential services (i.e., those services the interruption of which would endanger the life, personal safety or health of a significant portion of the population) and in the public sector, these restrictions must be offset by adequate guarantees to safeguard the interests of the workers concerned."82 The State Department's formulation of the right to strike reflects the determination by the ILO that the right to strike is an essential element of the right to freedom of association.
The North American Free Trade Agreement
The North American Free Trade Agreement (NAFTA) among the United States, Canada and Mexico brought with it a labor side agreement, the North American Agreement on Labor Cooperation (NAALC). Freedom of association and protection of the right to organize, the right to bargain collectively, and the right to strike are the first three "labor principles" of the NAALC. This international agreement was negotiated at the insistence of the United States government following a commitment made during President Clinton's 1992 electoral campaign.83
The NAALC characterizes the first labor principle as "the right of workers exercised freely and without impediment to establish and join organizations of their own choosing to further and defend their interests." The agreement formulates the right to bargain collectively as "the protection of the right of organized workers to freely engage in collective bargaining on matters concerning the terms and conditions of employment." It describes the right to strike as "the protection of the right of workers to strike in order to defend their collective interests."84 With its North American trading partners, the United States committed itself to promote the NAALC labor principles and to "effectively enforce its labor law" to achieve their realization.85
* * * * *
To sum up, an argument that international human rights and labor rights law is not relevant to U.S. labor law and practice cannot be sustained. Basic U.N., ILO and regional human rights instruments have forged an international human rights consensus on workers' freedom of association that includes the United States. The consensus is strengthened by the accelerating international engagement of the United States at the ILO and in regional and multilateral trade fora, where it actively supports the cause of internationally recognized workers' rights. To fulfill both the obligations it has assumed and the objectives that it promotes in the international community, the United States must live up in its own labor law and practice to international labor rights norms on workers' freedom of association and rights to organize, to bargain, and to strike.
46 For additional treatment of human rights principles regarding freedom of association for workers, see James A. Gross, "A Human Rights Perspective on United States Labor Relations Law: A Violation of the Right of Freedom of Association," 3 Employee Rights and Employment Policy Journal 65 (Chicago-Kent College of Law 1999); see also papers and other information available at the web site of the Society for the Promotion of Human Rights in Employment (SPHRE) at http://www.mericleinc.com/Sphre/.
47 Universal Declaration of Human Rights, G.A. Res.217A(III), U.N. GAOR, 3d Sess., pt. 1, at 71, U.N. Doc. A/810 (1948) (art. 20(1); art. 23(4)).
48 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 (art.22).
49 International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3 (art. 8).
50 International Covenant on Civil and Political Rights, Article 2.
51 See U.S. Senate, Ratification of ICCPR, April 2, 1992. Reservations, understandings, and declarations are accepted under international law as a means of ratifying complex international instruments while taking exception to certain details, so that wider ratification of the instruments can be achieved.
52 In a written exchange between the Senate and the White House on questions posed by Senator Daniel Moynihan, first as to whether ICCPR Article 22 alters or amends U.S. labor law, the administration responded, "No," asserting that Article 22's "general right of freedom of association, including the right to form and join trade unions . . . are fully contemplated by the First Amendment to the U.S. Constitution." On the question whether ratification of Article 22 commits the U.S. to ratify ILO Convention 87, the administration again responded in the negative, saying "the two agreements are different in the scope of the rights and obligations they provide." This exchange, not reflected in the instrument of ratification, does not lessen the United States' obligation to fully comply with Article 22 of the ICCPR.
53 See Office of the Legal Advisor, U.S. Department of State, "Civil and Political Rights in the United States: Initial Report of the United States of America to the U.N. Human Rights Committee under the International Covenant on Civil and Political Rights," Department of State publication 10200 (July 1994; released September 1994).
54 See U.S. Department of State, "Civil and Political Rights in the United States: Initial Report of the United States of America to the U.N. Human Rights Committee under the International Covenant on Civil and Political Rights" (July 1994), p. 166.
55 American Declaration of the Rights and Duties of Man, 1948, in Final Act, Ninth International Conference of American States, Bogota, Colombia, Articles 21,22. "American" here refers to the Americas, including North, Central and South America and the Caribbean region.
56 American Convention on Human Rights, OAS Official Records, OEA/Ser.A/16 (English), T.S. No. 36 (Nov. 7-22, 1969), Article 16.
57 European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, E.T.S. No. 5 (entered into force, Sept. 3, 1953), Article 11.
58 European Union, Community Charter of Fundamental Social Rights of Workers, in Roger Blanpain and Chris Engels, eds., European Labour Law (The Hague, Kluwer Law International, 1998), Articles 11-13.
59 ILO Convention No. 87, Articles 2, 11.
60 ILO Convention No. 98, Articles 1, 3, 4.
61 Cited in OECD, Trade, Employment and Labour Standards: A Study of Core Workers' Rights and International Trade (1996) (hereafter Trade, Employment and Labour Standards); see also Hilary Barnes and Andrew Jack, "Nations agree on fighting poverty," Financial Times, March 13, 1995, p .6.
62 See ILO Focus (Winter/Spring 1997); the Conventions cited are nos. 87 and 98 on freedom of association and the right to organize and bargain collectively, 29 and 105 on forced labor, 100 and 111 on non-discrimination, and 138 on child labor.
63 Organization for Economic Cooperation and Development, "Guidelines for Multinational Enterprises" (1976).
64 See OECD, Trade, Employment and Labour Standards (1996).
65 See U.S. Labor Department News Release, June 18, 1998, available at www.dol.gov.
66 See Fact Finding and Conciliation Commission on Chile, International Labor Organization, Geneva, Switzerland (1975), para. 466.
67 See ILO, CFA Cases nos. 1130 (1987), 1401 (1987), 1416 (1988), 1420 (1988), 1437 (1988), 1467 (1988), 1543 (1991), 1523 (1992), 1557 (1993), available at www.ilolex.ilo.ch.
68 To take one example, the exclusion of agricultural workers from protection of the right to organize clashes with ILO norms. The argument against ratification is developed in detail in Edward E. Potter, Freedom of Association, the Right to Organize and Collective Bargaining: The Impact on U.S. Law and Practice of Ratification of ILO Conventions No. 87 and No. 98, Labor Policy Association (1984). Ratification of ILO conventions is further complicated by the fact that, in the U.S. system, later-in-time statutes passed by Congress and signed by the president supersede earlier-ratified international treaties.
69 See statement of Abraham Katz, president, U.S. Council for International Business, "Examination of the Relationship Between the United States and the International Labor Organization," U.S.. Senate, Hearing before the Senate Committee on Labor and Human Resources, 99th Cong., 1st Sess. 1 (1985), pp. 74-101.
70 See, e.g., U.S. Report for the period ending 31 December 1997 under Article 19 of the ILO Constitution on the position of national law and practice in regard to matters dealt with in Conventions 87 and 98, available from the U.S. Department of Labor and on file with Human Rights Watch.
71 See Annual Report for 1999 to the ILO regarding aspects of Conventions 87 and 98, available from the U.S. Department of Labor and on file with Human Rights Watch.
72 See "Review of annual reports under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work," ILO Governing Body, March 2000, para. 44.
73 19 U.S.C.A. § 2461 et.seq. The GSP program permits a developing country to export goods to the United States on a preferential, duty-free basis as long as they meet the conditions for eligibility in the program.
74 22 U.S.C.A. § 2191 et.seq. OPIC insures the overseas investments of U.S. corporations against losses due to war, revolution, expropriation or other factors related to political turmoil, as long as the country receiving the investment meets conditions for eligibility under OPIC insurance.
75 19 U.S.C.A. § 2702 et seq. A 1990 labor rights amendment to what is now called the Caribbean Basin Economic Recovery Act (CBERA) expanded the worker rights clause to comport with GSP and OPIC formulations. CBERA grants duty-free status to exports into the United States from Caribbean basin countries on a more extensive basis than under GSP provisions.
76 19 U.S.C.A. § 2411 et.seq. Section 301 defines various unfair trade practices, now including worker rights violations, making a country that trades with the United States liable to retaliatory action.
77 Amendment to the Foreign Assistance Act, 22 U.S.C.A. §§ 2151 et seq.
78 22 U.S.C. § 1621 (1994).
79 See H.R. Conf. Rep. No. 4426, 103rd Cong., 2d Sess., §1621 (a) (1994), codified at 22 U.S.C. §1621 (a).
80 See General Accounting Office, "Assessment of the Generalized System of Preferences Program," GAO/GGD-95-9 (November 1994), pp. 99-100.
81 See U.S. Department of State, Country Reports on Human Rights Practices for 1999 (February 2000), Appendix B, "Reporting on Worker Rights."
82 Ibid.; see also Hodges-Aeberhard and Odero de Diós, "Principles of the Committee of Association concerning Strikes," 126 International Labour Review 544 (1987).
83 See Gov. Bill Clinton, "Expanding Trade and Creating American Jobs," Address at North Carolina State University, Raleigh, North Carolina (1992).
84 North American Agreement on Labor Cooperation, Annex 1, Labor Principles 1-3.
85 Ibid., Article 2.