The following is a review of the book:
Claire La Hovary
The Graduate Institute – Geneva – Publications
The fundamental rights at work, origins, status and impact on international law
Les
droits fondamentaux au travail
Origines, statut et impact en droit international
Origines, statut et impact en droit international
Claire La Hovary
The Graduate Institute – Geneva – Publications
Presses
Universitaires de France 2009
ISBN
978-2-13057-946-5
The fundamental rights at work, origins, status and impact on international law
The
1998 International Labour Organisation Declaration on Fundamental
Principles and Rights at Work identified the four labour areas that
became known as Core Labour Standards (CLS) or as referred to here:
the fundamental rights at work. Those are freedom of association
including collective bargaining, the abolition of forced labour, the
elimination of child labour and the elimination of discrimination in
employment and occupation. The book of Claire La Hovary explores the
impact of the declaration and the concept of fundamental rights at
work on the ILO and on international labour law as a whole with the
aim of better understanding their coverage and importancei.
The
author tracks the origins of the “rights at work” to the 1944
Philadelphia Declaration which reinstated the ILO objectives and was
later incorporated in its constitution of 1947. She puts the 1998
declaration in its historical context; challenges and opportunities
of globalization and international trade, a need to clarify
acceptable and non-acceptable labour standards, a weakened ILO
searching to reinstate itself and a need to keep labour and social
rights out of the free trade agenda. The book is divided into two
parts. The first addresses the content and legal history of the
fundamental rights by investigating why the fours rights, and why
fundamental and then tracing the conventions behind each of the four
as well as their roots in customary law. The second part dives into
an analysis of the document of the declaration and investigates the
impact on ILO, its functions and instruments. It then explores the
effects of the declaration on international labour law; creating a
hierarchy of rights, affecting national law, referenced in
multilateral agreements and fragmenting workers protection frameworks
among other things.
On
the choice of the rights, La Hovary establishes a link with the
rights of the individual recognized by international law, namely
economic, social and cultural rights and civil and political rights.
She further argues that the rights at work shall be considered as an
integral part of the rights of the individual and while acknowledging
the different sources and ambit of each; the ILO constitution of
social justice versus the Universal Declaration of Human Rights, she
argues that the labour rights “movement” is a precursor of the
human right's. She links each of the rights to a corresponding right
in the Universal Declaration, the International Covenant on Civil and
Political Rights (ICCPR) or the International Covenant on Economic,
Social and Cultural Rights (ICESCR)ii
and concludes with quoting the language of the declarationiii
that the fundamental rights at work already existed via other
internationally recognized tools. The author highlights the link of
the rights to the ILO constitution before and after 1946, traces a
tendency and coherence around those four rights within the ILO
historically, lists the arguments that those are process rights, the
most important and indispensable and that they would lead to the
other rights and pave the way for the rights at work movement.
However, the choice of the four rights is not without criticism;
political and neo-liberal influence, restrictive, incoherent among
others. Fundamental rights can be seen as a base for rights at work,
but they also impose the hierarchy of superior and inferior rights.
Yet, the declaration was important for the ILO to create rights
translating its values.
Looking
at the convention body of law behind the fundamental rights and
closely examining each conventioniv
and the instruments related to them, the book finds that the four
rights are not defined in clear terms, but rather in complex yet
general and sometimes ambiguous manner reflecting the complexity of
the realities they represent and inviting for a need to explain and
interpret them. The members of the ILO are not always agreeing on the
details of the rights, i.e. the coverage and reach of the right to
strike, or understanding the rights, i.e. forced labour. Work is
needed to better define the fundamental rights and close the gaps for
misinterpretation and limits of coverage. The book then looks at
customary law being a major source of generally accepted
international norms because of its moral values. It departs from the
basic rights of the individual to find basis of rights at work in
customary law. It observes a unanimity among scholars, regardless of
their methodology, in regards to forced labour and worst form of
child labour being part of customary international law. However,
examining the customary status of the fundamental rights as a group,
the book concludes that it is difficult to attribute a customary law
status to the declaration as a whole, and that in turn gives the
declaration a greater importance to promote and realize the
fundamental rights.
Similar
conclusions are made after examining the Declaration itself and the
terminology used; the declaration is heavily dependent on the
fundamental conventions, hence, the same criticism of ambiguity and
interpretation. The use of the word principles raises different
questions and opposed points of view. The focus on the “obligation
to respect, promote and realize” the principles without specifying
an obligation to ratification or the obligations of the states that
had ratified the conventions.The declaration was not included in a
convention itself leaving it a soft law instrument with the different
views whether the effect on labour will be negative or positive.
The
impact of the declaration on the ILO and on international labour law
are in turn debatable too. The declaration has resulted in an
increased number of ratification of the fundamental conventions, the
ILO control mechanism and its instruments could address the issue of
misinterpretation by keeping in line with the essence of the rights,
the control system is considered by some to be one of the best at an
international level. For the ILO, the declaration was a big (long
needed) success. The further one moves away from ILO, more
deficiencies arise; the risk of distorted interpretation by
non-ratifying states or multinationals adopting the principles
increases the risk of ILO losing their control and interpretative
role. More general and broad references to the rights at work without
effective enforcement mechanism is a problem whose concern preceded
the declaration, and the focus in the declaration on the principles
and not the conventions increases the fear of evading the law to such
soft law regulation and undermining the weight of rights. A fear of
referencing and adopting the text of the declaration by states and
organizations in a way that will shrink the body of rights at work to
the letter of the declaration is a considerable one. Simply, the
major criticism of the declaration relates to the fragmentation of
international labour rights and detaching labour law from conventions
and that the existing standards are used in a non-consistent and
non-coherent manner. The book concludes with questioning whether the
ILO was in a position to stand up against the soft regulation trend
in the first place and leaves a question open on how the ILO would
move forward in promoting social justice.
The
work of La Hovary delivers what its title promises; an investigation
in the origins, status and impact of the fundamental rights at work
on international law. The book methodology of investigation can be
described as academic and mostly focused in the legal field. The
author avoids providing qualitative judgment in regards to the topic,
rather, she presents the analysis with factual statements, and quotes
the various and different views on the subject. She does a great work
in investigating the text firsthand and she delivers stimulating
debates by bringing the opinions of vast number of scholars in the
field, making the book a great resource to understand the impact of
the 1998 Declaration. Fascinating in the book is the contrast of
opinions about one topic that La Hovary brings very well side by side
which demonstrates the active factors and actors of the topic of
labour rights and labour law. The opposed opinions of Alston and
Maupain are one example of this but not the only one.
i As
indicated by the author in the preface, La Havary, 2009 p3 “Cette
étude, [...]a conséquemment
pour ambition d'essayer de cerner
l'impact et l'influence
de la Déclaration
de 1998 et du
concept de droits fondamentaux au travail
qu'elle véhicule, tant sur l'OIT que sur
le droit international du travail plus largement, afin de mieux
comprendre leur portée et leur
importance”
ii With
the exception of right to strike
iii Naming
them the rights at work and not the work rights is according to the
author an indication that the rights are part of the rights of
individuals and not a new category of rights
iv C87
and C98 for Freedom of Association and Collective Bargaining, C29
and C105 Forced Labour, C138 and C182 for Child Labour, and C100 and
C111 for Discrimination at Work. For details about each of refer to
article under link:
http://www.internationallabourrights.com/2012/04/ilo-international-labour-organization.html
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