JORGE RODRIGUES SIMÃO

ADVOCACI NASCUNT, UR JUDICES SIUNT

(19) Human Rights

Basic income: a human rights approach

China human rights work: it’s emotionally draining, but country is the story of our lifetime, says Amnesty researcher

 Human rights work still ‘relevant’

 HR

Work

Various national and local struggles for workers' rights have encompassed the fight against slavery and forced labour, claims for decent working conditions and fair wages, the right to form and join trade unions, and the right to strike. In some ways, these movements antedate the human rights movement. International standards and procedures were elaborated through the work of the International Labour Organization (ILO), established in 1919 at the end of the First World War, and against the background of the Russian Revolution. At that time, an international focus was regarded as crucial to counterbalance the increasing appeal of an advancing Communism promising to vindicate workers' rights. Social justice was seen in the context of both World Wars as essential to achieve lasting peace. The ILO developed detailed Conventions and elaborate mechanisms for monitoring compliance with the various standards.

A new era began in 1998, with a divisive discussion about protecting workers' rights through the WTO international trade law regime. As already mentioned before on foreign policy, there was considerable unease that introducing labour rights issues through a social clause into the trade regime would allow richer states to exclude imports from developing countries on the grounds that workers in those countries were neither properly paid nor afforded the sorts of labour rights they would enjoy in the West. Developing countries would thereby be precluded from enjoying the economic benefits of their comparative advantage in cheap labour. It was decided that the issue of workers' rights should be shunted out of the trade arena and left to the ILO. The ILO responded by taking a fresh look at international labour rights. The rights were then streamlined and repackaged in the ILO Declaration on Fundamental Principles and Rights at Work.

The principles are said to be: freedom of association and the effective recognition of the right to collective bargaining; the elimination of all forms of forced or compulsory labour; the effective abolition of child labour; and the elimination of discrimination in respect of employment and occupation.

This reductive approach: first from over a hundred Conventions down to a few standards; then from rights to 'principles', has been met with suspicion in some quarters. Defenders of the new approach reply that the other rights have in no way been diminished; highlighting core labour standards simply renders those rights more visible and effective.

What exactly is the right to work? The UN Committee on Economic, Social and Cultural Rights has warned: 'The right to work should not be understood as an absolute and unconditional right to obtain employment.' Like some of the other rights we have been considering in this chapter, the idea evoked by the right does not in fact give rise to an obvious immediate entitlement. The package of component rights is complicated. The first right is the right not to be subjected to forced labour. A second right demands that there should be access to the employment market. Third, there should be safe working conditions and just remuneration. Fourth, the right to form trade unions must be recognized; and fifth, workers have the right not to be discriminated against, and to be protected from unfair dismissal. Finally, everyone has the right to social security in the event of unemployment.

Of course, some of the limitations we encountered in previous chapters will apply. Trade union rights may arguably be limited where this is necessary to protect national security: and this reasoning was successfully relied upon by the British Government in the 1980s to uphold its ban on trade unions at its intelligence 'listening post' known as GCHQ. Similarly, states may be able to introduce certain restrictions on access to the labour market by foreigners (migrant workers); although once granted employment, there can usually be no excuse for discrimination against foreigners.

Human rights have not always been regarded as supportive of the aspirations of the trade union movement. Judges have considered the right to form trade unions to include a 'negative right of association' entitling workers to refuse to join a trade union. There have been attempts to present strike action or boycotts by trade union members as violations by the striking workers of a right of employers to refuse to enter into agreements with trade unions.

While the principles of freedom of association at work and protection from unfair dismissal may be universally recognized, the detail of how these rights are implemented is dependent on ideology, political power, and cultural context. Some countries have a long tradition of recognizing the importance of giving trade unions a central role in negotiating working conditions; others see unions as a hindrance to flexibility and competitiveness. Such approaches are not fixed and can change in response to social changes and the emergence of new majorities through the democratic process. The principle of freedom of association remains intact. The challenge comes in particular from arguments that globalization has rendered those entities (states and businesses) that respect labour rights uncompetitive. There is a fear that commitment to labour rights can act as a disincentive to foreign investment. In some countries the response has been to create special 'export processing zones'. In fact,  the Organization for Economic Cooperation and Development has concluded, based on studies published in 1996 and 2000, that 'countries with low core labour standards do not enjoy better export performance than high-standard countries'. We might point out here that consumers and ethical investors are becoming increasingly sensitive to the working conditions of those in the supply chain for certain goods in the garment and footwear sectors. This interest in working conditions can also be found with regard to workers' rights in the coffee, tea, cocoa, sugar, and mining sectors.

Regional integration, in contexts such as the European Union, has driven a degree of harmonization of labour rights in order to ensure fair competition in the internal market. The economic logic of ensuring a level playing field in Europe has led, not only to concrete rules ensuring equal pay for men and women at work, but also to protection concerning harassment in the workplace. Furthermore, EU law has developed to demand prohibitions on racial and religious discrimination, as well as on discrimination in the workplace on the grounds of disability, age, and sexual orientation. We now turn to deal with discrimination in a little more detail.

 

Naomi Klein, No Logo

 

The Philippine government... says that the zones are subject to the same labor standards as the rest of Philippine society: workers must be paid the minimum wage, receive social security benefits, have some measure of job security, be dismissed only with just cause and be paid extra for overtime, and they have the right to form independent trade unions. But in reality, the government views working conditions in the export factories as a matter of foreign trade policy, not a labor-rights issue. And since the government attracted foreign investors with promises of a cheap and docile workforce, it intends to deliver. For this reason, labor department officials turn a blind eye to violations in the zone or even facilitate them.

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