Sources of labour law: Constitutions, Statutory regulations, Collective agreements, International law, and Case law[i] could be cited as the basic/traditional sources of labour law in a given country (of course with differences according the legal system in each state). However, there are factors that affect these sources and their strength in different contexts. The question is from where each of these sources receives its legitimacy and what dictates its content. The answer would lead us to the domain of legal theory and jurisprudence and to the different literature about the origins of law. While this might sound a theoretical/philosophical debate, we cannot ignore the impact of the source of law on the actual state of the legal systems. For example, if law- in our case labour law- is derived from natural law the result regulations would be different than if the source is mere positivism, or religion (Sharia’ or Islamic law for instance). There is no doubt that political philosophy adopted (explicitly or implicitly) by states had a direct influence on the shape and force of law. We can think of communism, versus capitalism as two extremes and the different workers’ relations in each. The issue remain that behind the sources of labour law there are powers that give these sources legitimacy. However, those powers are not equal nor do they push the law towards a unified destination. So the possible conflict among those powers might be reflected in labour laws on national and more visibly on international level. Hence, we distinguish between labour laws and labour rights.
Sources of workers rights: Morality, customs, and ethics, in addition to laws in other countries (usually more developed industrialized states have higher worker standards and laws that workers in less developed countries look at as rights and fight to gain them in turn), the human rights, social rights and industry standards are some of the sources of labour rights. We shall note here that the history of each country has a paramount impact on that country’s social and political rights, industrial relations and workers regulations. The history of evolution of labour rights at an international level is influenced by the industrialized western countries’ history.
However, the emergence of Multinational Enterprises and free movement of capital and technology, as well as the new forms of labour arrangements are changing the shape of international labour rights and brining new challenges on the table of the international stakeholders of labour rights and brining new players on board. It is worth mentioning here that what is known as international labour rights in turn is not away from the power conflict and pressures, especially if we know that the bodies traditionally assuming responsibility and leadership in shaping those rights derive their powers from different sources and tend to compromise in order to reach common grounds.
However, the emergence of Multinational Enterprises and free movement of capital and technology, as well as the new forms of labour arrangements are changing the shape of international labour rights and brining new challenges on the table of the international stakeholders of labour rights and brining new players on board. It is worth mentioning here that what is known as international labour rights in turn is not away from the power conflict and pressures, especially if we know that the bodies traditionally assuming responsibility and leadership in shaping those rights derive their powers from different sources and tend to compromise in order to reach common grounds.
While the International Labour Organization (ILO) is the major international body on issues related to Labour Rights, it is not the only one that influences those rights. The WTO, although tend to drop labour and employment issues from its agenda, no one ignores the role WTO play on labour relations through trade liberation and globalization. Bodies addressing migration issues play their role too as well as economic, social and political organizations, regional treaties and sub regional organs. Today, no one doubts that international systems are biased towards the economically and politically stronger players and that those systems were created by those players themselves to protect their interests. The calls even from within the UN, for example, for reform are just a clear evidence of such. And although there is no Veto right in the ILO, but its tripartite structure cannot produce but a compromised versions of the cries of labour for their rights. Having this in mind we cannot be surprised of the limited effect of the ILO, but it remains the strongest body in that area nevertheless.
Core labour rights: is what the four ILO conventions came to be known as. Those are: Elimination of forced and compulsory labour (Conventions 29 and 105), Abolition of child labour (Conventions 138 and 182), Elimination of discrimination in respect of employment and occupation (Conventions 100 and 111), Freedom of association and collective bargaining (Conventions 87 and 98)[ii]. Those are the conventions ratified by most countries (but not all).
Core labour rights: is what the four ILO conventions came to be known as. Those are: Elimination of forced and compulsory labour (Conventions 29 and 105), Abolition of child labour (Conventions 138 and 182), Elimination of discrimination in respect of employment and occupation (Conventions 100 and 111), Freedom of association and collective bargaining (Conventions 87 and 98)[ii]. Those are the conventions ratified by most countries (but not all).
Human rights and labour rights: without going into details of human rights (civil and political rights and economic, social and cultural rights), nor the negative and positive rights debate, we have to mention here the concern about classifying rights in general which also applies to labour rights. The concern is that classifying rights and listing them carries the potential of giving weights to some rights over others and in turn the perception that some rights are secondary and not of the same importance. This can be said about the core labour rights at the one hand and about the argument behind not explicitly mention labour rights within Human Rights structure.
Whether as ILO convention or as human social and economic rights document the fact is the force of enforcing international law at an individual level is not a simple task. With international law the concept of soft law was expanded. Mechanisms of monitoring and evaluation are a big challenge of international law and with the concept of state sovereignty, bilateral and multilateral agreements the application of international law becomes more complex.
If we stop here, we can conclude from what we saw thus far that there should not be a big conflict on the long term between labour law and labour rights. As a matter of fact we can conclude that eventually labour rights acquire a legal status and become identical to labour laws when they gain enough support from governments, employers, multinationals backed up by their moral and ethical value as well as their practicality. And that those rights that don’t gain the support of the stronger players in the international arena will fade away and lose momentum which again will lead to convergence between rights and laws. However, the story does not end here, mainly because new actors come into the game and in the recent years those actors gained more power so that they can face the classical international law making body. The below are some of the ways the power of rights are becoming evident.
Corporate Social Responsibility and Code of Conducts: whether from a true belief and vision that well-being of workers translates in well-being of the company, or to protect their image for market appeal, big corporate adopt socially responsible code of conducts which usually focuses on their workers rights and on that of their supply chains.
Industry Standards: which represent an evolution from Corporate Social Responsibility where professional bodies gather to create industry standards that now includes social and labour rights in their core, along with environmental concerns, health and safety, privacy protection and ethical issues. The Electronic Industry Code of Conduct[iii] is an example.
International Standards: Civil and international organizations whose role is becoming more evident today and the support they receive from governments, business and not only activists and individuals is a proof of the acknowledgment of the role they play and can play in various fields where local laws or international law cannot reach effectively. The role those organizations played in the fight against pharmaceutical rights of patent protection is just an example of their increasing role and the unlimited areas where they can reach especially with the new revolution in communication technology and media.
New Media: and here we have to remember that the new media itself is not the power but the medium of the source of pressure and that is the people of the world. While consumers traditionally care about quality and prices, they still -usually- have a moral obligation, hence a sense of responsibility to choose the products produced within “fair trade” or “ethical” means of production. With the help of new media activists are reaching directly to consumers and raising their awareness about labour rights violations and moral issues related to production. Even if the production is taking place at the other end of the world the new media overcomes the long distance and unifies the world –usually and hopefully- towards better standards.
To conclude we go back to the main question: where the conflict between rights and laws come from and whether there is one in the first place. At a national level, yes there is conflict, but we think it is a healthy one. Assuming a democratic state, the economical situation is not static nor is the technology field or the labour markets. Of course in an ever evolving world new challenges occur and laws shall evolve in turn to regulate them. The question of rights in such a state is a healthy indicator, especially taking into consideration that law is not static and shall never be. Besides, on a national level, application of law is easier and monitoring and enforcement is possible within the ambit of the state. At an international level, more factors intervene and complicate the situation. Even democratic states that advance laws to protect their labour are faced with difficult challenges at the global level such as a race to the bottom on standards to compete in the international market. But more importantly we have to acknowledge that international law system is far from well established and its foundations are not as solid as national systems. We cannot ignore that the emergence of the rights dialogue is a healthy sign, but at an international level many rights are not acknowledged. There is a conflict of sources at a global level because what is seen as a right is not evident as law (not even soft law); the example of the four core labour rights is a clear example. There is also a conflict of application; more precisely an incompetence of application through traditional international law mechanisms as far as labour law. But again, international law is far from being mature today, so we can expect to witness emergence of more actors on the international arena not only to raise the voices claiming rights but also to translate rights to laws and laws to practices.
[i] Arturo Bronstein: International And Comparative Labour Law Current Challenges, International Labour Organization 2009, Palgrave Macmillan
[ii] From OECD website http://www.oecd.org
[iii] EICC can be found at http://www.eicc.info/eicc_code.shtml
No comments:
Post a Comment