VI. Workers Rights and Government Obligations under International Law
Over the past half century, a comprehensive body of international law to protect workers rights has been developed. States party to international agreements, treaties, and instruments to protect workers rights are obligated to implement and enforce these standards.
In 2001, China became a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR) and in doing so agreed to guarantee not only the right to work (article 6)191but the right to just and favorable conditions of work.192
Article 7 of the ICESCR calls for states to ensure:
Article 8 protects the rights related to freedom of association and trade union membership including:
When the Chinese government ratified the ICESCR it made a statement that article 8.1a, which refers to the right of free formation of trade unions, shall be consistent with the relevant provisions of the Constitution of the People's Republic of China, Trade Union Law of the People's Republic of China and Labor Law of the People's Republic of China.193 The governments attempt to, in effect, suspend the application of article 8.1a because Chinas Trade Union Law forbids any union activity outside the state-affiliated All-China Free Trade Union (ACFTU), is deemed a reservation under international law.194 Under international law reservations incompatible with the object and purpose of the treaty are invalid195and it is arguable that Chinas reservation to article 8 would fall into this category.
In 2005, the UN Committee on Economic, Social and Cultural Rights which reviews states compliance with their obligations under the ICESCR issued its concluding observations on China, and set out several serious concerns about the protection of workers rights including the particular plight of internal migrants and construction workers. It noted the de facto discrimination against migrant workers as a result of the hukou system, which it called to be dismantled; the insufficient implementation of labor protections, with resulting poor conditions of work, including excessive working hours, lack of sufficient rest breaks and hazardous working conditions and how this is especially acute for migrant workers.196It also noted with regret the prohibition on the right to organize and join independent trade unions.197
China has signed, but has yet to ratify the International Covenant on Civil and Political Rights (ICCPR).198 Among other things, the ICCPR echoes the ICESCRs stipulation that workers have the right to form and join trade unions.199
China is a member of the ILO and has ratified four of the eight ILO core conventions, namely Conventions No. 100200 and No. 111201 related to non-discrimination in employment and occupation and No. 138202 and No. 182203 relating to child labor.
The Chinese government has not ratified core ILO conventions No.87 on Freedom of Association and Protection of the Right to Organize nor No. 98 on the Right to Organize and Collective Bargaining.204 The Chinese government also has not ratified core ILO conventions No. 29 and No. 105 regarding forced labor.205
However, the ILO emphasized in its 1998 Declaration of Fundamental Principles and Rights at Work that all member states must implement and respect fundamental workers rights within the ILO framework206 the Declaration specifies that all members have an obligation to allow the right to collective bargaining and freedom of association.
The Declarations stipulation that freedom of association and effective recognition of the right to collective bargaining is interpreted by the ILO to mean all workers and all employers have the right to form and join groups for the promotion and defense of their occupational interests.208 The ILO also requires that workers organizations be permitted to formulate their own regulations, operate freely and elect their representatives in full freedom and that the organizations be truly independent and free of external interference: Workers and employers can set up, join and run their own organizations without interference from the State or one another.209 These rights are articulated in article 3 of ILO Convention No. 87. The ILO also requires that the right to freedom of association and collective bargaining be incorporated into the member states legal frameworks:
To realize the principle of freedom of association and the right to collective bargaining in practice requires, among other things, a legal basis which guarantees that these rights are enforced; an enabling institutional framework, which can be tripartite, between the employers and the employers and workers organizations, or combinations of both 210
In addition, the ILO Committee on Freedom of Association stated in 1975 that ILO members, due to their membership, 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.211
Workers fundamental right to strike has also been recognized by the ILO. In 1994, the ILOs Committee of Experts on the Application of Conventions and Recommendations stated that the right to strike is an intrinsic corollary of the right to organize protected by Convention No. 87.212 Article 53 of the Chinese Constitution is a de facto ban on labor strikes by obligating all Chinese citizens to observe labor discipline and public order.
191 See general Comment No. 18: The Right to Work, UN Committee on Economic, Social and Cultural Rights, E/C.12/GC/18
192 International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966; G.A. Res. 2200A (XXI), entered into force January 3, 1927, and ratified by China on March 27, 2001.
193 United Nations Treaty Collection, www.unhchr.ch/html/menu3/b/a_cescr.htm (accessed October 27, 2007).
194 See General comment No. 24 of the UN Human Rights Committee: Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.6 (1994) para. 3.
195 Article 19 (3) of the Vienna Convention on the Law of Treaties, 1969.
196 Ibid., para. 24.
197 Ibid., para. 26.
198 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, signed by China on October 5, 1998.
199 Ibid., art. 22.1.
200 C100 Equal Remuneration Convention, 1952, ratified November 2, 1990, http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?China (accessed October 28, 2007).
201 C11 Discrimination (Employment and Occupation) Convention, 1958, Ratified on January 12, 2006, http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?China (accessed October 28, 2007).
202 C138 Minimum Age Convention, 1973, ratified April 28, 1999, http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?China (accessed October 28, 2007).
203 C182 Worst Forms of Child Labour Convention, 1999, ratified August 8, 2002; http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?China (accessed October 28, 2007).
204 ILO Convention No. 87 concerning Freedom of Association and Protection of the Right to Organize, 68 U.N.T.S. 17, entered into force July 4, 1950. ILO Convention No. 98 concerning the Right To Organize and Collective Bargaining Convention, 96 U.N.T.S. 257, entered into force July 18, 1951.
205 ILO Convention No. 29 concerning Forced or Compulsory Labour, 39 U.N.T.S. 55, entered into force May 1, 1932; ILO Convention No. 105 concerning Abolition of Forced Labour Convention, 320 U.N.T.S. 291, entered into force January 17, 1959.
206 International Labor Organization, Declaration of Fundamental Principles and Rights at Work, http://www.ilo.org/dyn/declaris/DECLARATIONWEB.static_jump?var_language=EN&var_pagename=DECLARATIONTEXT (accessed October 28, 2007).
208 International Labor Organization, Freedom of Association and Effective Recognition of the Right to Collective Bargaining, www.ilo.org/dyn/declaris/DECLARATIONWEB.static_jump?var_language=EN&var_pagename=ISSUESFREEDOM (accessed October 28, 2007).
210 International Labour Organization, Freedom of Association and Effective Recognition of the Right to Collective Bargaining, www.ilo.org/dyn/declaris/DECLARATIONWEB.static_jump?var_language=EN&var_pagename=ISSUESFREEDOM (accessed October 28, 2007).
211 ILO Committee on Freedom of Association, Fact-Finding and Conciliation Commission Report: Chile, 1975, para. 10.
212 International Labour Conference, 1994, Freedom of association and collective bargaining: The right to strike, Report of the Committee of Experts on the Application of Conventions and Recommendations, 81st Session, Geneva, 1994, Report III (Part 4B), para. 151.