GLOBALIZING WORKER RIGHTS

This post is based on a contribution by Jeremy Brecher, Tim Costello, and Brendan Smith to the symposium "'Neither Slavery Nor Involuntary Servitude': The Thirteenth Amendment and the Contemporary Struggle for Labor's rights" that appeared in the March, 2007  New Labor Forum.

For generations, workers in the United States and other countries around the world have fought for the right to organize, bargain collectively, and strike. These rights have been increasingly contested in the era of neoliberalism. In response, some in the labor movement have been seeking new ways to ground these rights. One proposal has been to ground labor rights in the U.S. Constitution's Thirteenth Amendment barring involuntary servitude. In the era of globalization, a closely related possibility may be to also ground them in fundamental rights defined in international law.

In November 2006, the American Civil Liberties Union and other law and labor organizations brought charges before the Inter-American Commission on Human Rights on behalf of six illegal immigrant workers. The petitioners asked that the commission find the United States and the states of New York, New Jersey, Kansas, Pennsylvania, and Michigan in violation of the Universal Declaration of the Rights and Duties of Man, adopted by the United States and other members of the United Nations in 1948. The petition challenged a 2002 Supreme Court decision denying immigrants important labor law protections, such as protection against sexual harassment and firing for trying to organize a union. Attorney Claudia Flores of the ACLU Women's Rights Project observed that "The United States government has an obligation under universal human rights norms to protect vulnerable populations."

Can international law really be used to defend the rights of workers? Or are international labor rights simply meaningless chimeras? The answer may be critical for the future of the labor movement.

CONSTITUTIONAL INSURGENCY


Democratic constitutions provide basic rights that appear to apply to all people. But when it comes to workers, these rights are often curtailed. In the U.S. Constitution, the First Amendment is often said to guarantee freedom of speech and assembly - but workers can be instantly fired if they try to exercise these rights at work. The Thirteenth Amendment outlaws "involuntary servitude" - but striking workers are regularly met by injunctions ordering them to return to work against their will.

It's easy to conclude that such rights are simply a fraud designed to bamboozle workers into accepting as legitimate a legal system whose only real purpose is to oppress them. When the National Labor Relations Board issues a ruling like the Kentucky River decision simply declaring that millions of workers have no right to a union, workers will be tempted to conclude that the law is little more than a cloak for the interests of employers.

But workers have sometimes taken a different approach to the denial of their rights. They have rejected the interpretations of law used to justify the denial; proposed their own alternative interpretations; and utilized their social and economic power to fight for those rights, whatever the courts may say. They have maintained that their interpretations are right; that the opposition to them is biased and corrupt; and that the law must recognize their rights eventually.

In the current issue of New Labor Forum, James Pope and his colleagues argue that the Thirteenth Amendment to the U.S. Constitution, which requires labor freedom by forbidding "involuntary servitude," can provide the basis for such a struggle for labor rights today. Such a modern day constitutional insurgency can find a powerful reinforcement in the fundamental rights workers possess under international law.

THE RIGHT TO STRIKE IS GLOBAL


In 1788, just about the time the antislavery movement was getting started, Sunday work and other extensions of working time were emerging in the burgeoning factory economy of Europe. In response, the French statesman Jacques Necker warned that unless all nations observed it, the Sunday day of rest could not be maintained. Through much of the nineteenth century, the labor movement advocated a universal limitation on the hours of work in all countries to prevent a "race to the bottom" in which competition would force all workers to work to exhaustion. The 1919 Treaty of Versailles proclaimed a list of worker rights including the right of association, a wage "adequate to maintain a reasonable standard of life," an eight-hour day, and equal pay for work of equal value. It established the International Labor Organization (ILO) with a tripartite structure of employee, employer, and government delegates from each country. After World War II, the ILO became part of the United Nations system.

The agreement that established the ILO and its subsequent treaties does not mention the right to strike. This was a consequence of a complex mix of procedural difficulties, political differences among Cold War adversaries, and unions' fears that specifying the right to strike would result in its future restriction. But the underlying cause of the right to strike's exclusion, according to labor law historian Ruth Ben Israel, was that the ILO committee experts "took the stand that since the whole concept of freedom of association was guaranteed [by various conventions] there was no specific need to secure the right to strike." Numerous reports and rulings issued by ILO committees over the years support this assertion; including a 1983 report issued by the Committee of Experts on the Application of Conventions and Recommendations: "The Committee considers that the right to strike is one of the essential means available to workers and their organizations for the promotion and protection of their economic and social interests."

The Committee has the power to investigate and make recommendations, but the ILO has no means of enforcement. The International Covenant on Economic, Social and Cultural Rights - adopted by the UN General Assembly in 1966 and signed by 149 countries - ensures "the right to strike, provided that it is ex-ercised in conformity with the laws of the particular country." It, too lacks means of enforcement.

In sum, the right to strike is limited, ambiguous, and little enforced in international as in national law. But there are positives in current international labor rights law as well.

First, international labor rights are rooted in fundamental human rights, including the Universal Declaration of Human Rights, the ILO, and the UN Charter. They are grounded in the international equivalent of the Constitution; they are not subsidiary to purposes of commerce, in contrast to the rules of the WTO, for example.

Second, they are not simply negative limits on state action, but rather positive responsibilities of governments. Governments are responsible for the application of these rights within the areas in which they exercise sovereignty, including the operations of corporations and other employers. In this they are like the Thirteenth Amendment of the U.S. Constitution, and unlike the first ten Amendments that form the Bill of Rights, which generally take the form "Congress shall make no law" In 1968, the U.S. Supreme Court affirmed the positive duties of government under the Constitution by ruling that it was within Congress' power under the Thirteenth Amendment to bar racial discrimination in real estate transactions between private citizens. According to the court, "when racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery" and therefore barred under the Thirteenth Amendment.

No one expects the ILO to send an army to protect workers from abuse of their labor rights any time soon. Nor do they expect the heads of global corporations to be declared criminals for their contribution to depriving billions of workers of internationally guaranteed rights. But the basic principles of labor freedom - enshrined in international law as well as the Thirteenth Amendment - can serve as a basic legitimation for labor struggles both in the United States and around the world.

A pioneering example of such use was the movement that transformed the Communist regimes in Eastern Europe in the late 1980s. The governments of Czechoslovakia, Poland, and other Eastern European countries had signed the Civil and Political Rights Covenant, the Convention No. 87 of the International Labor Organization on the freedom of association, the Convention No. 98 on the rights of workers to organize and to negotiate, and the Helsinki Act guaranteeing human rights in Europe. Eastern European human rights, peace, and labor activists utilized this to argue for the constitutional legitimacy of their actions, notwithstanding the denial of their rights by the established authorities. As Jonathan Schell put it in the Forward to Adam Michnik's Letters from Prison, these agreements meant that the actions of Michnik and his associates were perfectly legal, "while the means used by the police and judiciary apparatus in Poland [were] in flagrant violation of international agreements." The Solidarity union in Poland explicitly defended its right to exist on the basis of ILO and Helsinki Act provisions.

The rights defined by the ILO - making explicit those in the Universal Declaration of Human Rights - form the basis for many campaigns for labor rights around the world. When workers are prevented from organizing, bargaining, and striking, from Bogotá to Beijing and from Phnom Pen to Nairobi, the violation of their internationally recognized labor rights is almost always an issue.

In Pakistan, when members of the Awami Labor Union who worked for the Daewoo Corporation began organizing, Daewoo officials sent a letter to police listing all union members. The next day thirty-two unionists were arrested, held without charge, and some sent to a lunatic asylum. In response, the International Federation of Building and Woodworkers along with the Pakistani unions filed an ILO complaint against the company. According to the Wall Street Journal:

A senior committee of the International Labor Organization upheld union complaints that fundamental rights to free association, to form a union and to strike - agreed to by Pakistan and other ILO members - had been violated. The ILO, which is a branch of the United Nations, also asked the Pakistani government to investigate all "serious allegations" of torture and false imprisonment of workers on the projectThe Awami Labor Union finally received government recognition in April, after the arrest of 205 union members and the firing of almost 400 highway workers since 1992.

Other examples are legion. In 1998, the Liverpool dockers unsuccessfully appealed their firing to British courts on the grounds that the ILO had found UK restrictions on the right to strike a breach of Convention 87, and that the UN Committee on Economic, Social and Cultural Rights had found that the UK's "failure to incorporate the right to strike into domestic law constitutes a breach of Article 8 of the Covenant." In India, labor advocates recently used international treaties as one basis for challenging court decisions limiting the right to strike. In Australia, Sharan Burrow, president of the Australian Council of Trade Unions, denounced the Howard government's Work Place Relations bill as "at odds with international law."

Even the U.S. labor movement has begun to draw on international labor rights in its struggles for the right to organize. For example, on International Human Rights Day 2005, the United Electrical Workers filed a complaint with the ILO charging the U.S. government and the state of North Carolina with violations of international law protecting workers' rights to association and collective bargaining. The complaint held that North Carolina General Statute 95-98, which makes it illegal for state, county, and other subdivisions of the state to sign contracts with unions, violates international labor rights.

Even if UE wins its case, the ILO will have no power to enforce its decision. Its effect will be to shame the employers and the governments that back them, and to reaffirm workers in their conviction of the rightness of their cause.

The solution to the lack of enforcement of basic rights is worker and citizen enforcement of the law. For, without the right to collectively withhold their labor to protect their interests and bargain for conditions of employment, workers are subject to involuntary servitude, an employment relationship banned by the Thirteenth Amendment and various international treaties. When workers refuse to accept illegitimate limits on the right to strike they are defending not only the U.S. Constitution, but the most fundamental internationally recognized human rights.

Such an approach was recognized when, on the same day that the UE brought its North Carolina case, Eastern Massachusetts Jobs with Justice and Amnesty International co-sponsored a conference called "Workers' Rights are Human Rights." Over 350 activists came together to learn about abuses of workers' rights at home and abroad. They participated in two demonstrations - one outside a Verizon Wireless store to protest Verizon Wireless antiunion tactics, and one outside the Colombian consulate, where every protestor wore a sign with the name of a Colombian union activist and the date they had been assassinated.

Whenever a group of workers are ordered back to work under injunction, or their secondary boycotts blocked, the labor movement needs to recast their struggle in terms of a violation of the fundamental human right to strike guaranteed by both the Constitution and international law.

A GLOBAL CONSTITUTIONAL INSURGENCY FOR LABOR?


The rules of globalization and the rights of nations, citizens, workers, and corporations are still hotly debated around the globe, and are far from set in stone. The corporations are already actively trying to establish global rules at the WTO, the United Nations, and elsewhere - recall, for example, the former president of the WTO, Mr. Renato Ruggiero, claiming to be engaged in "writing the constitution for a global economy."

While some in the labor movement reject the importance of international labor standards because of the lack of enforcement power, corporations are increasingly concentrating their efforts toward affecting enforceable standards at the international level. Surprisingly, one of the most active and effective gun industries on the global stage has been represented by the National Rifle Association. Concerned that momentum for international gun control was picking up steam and that national protections would be outflanked internationally, the NRA obtained official United Nations status in 1996, and established the World Forum on the Future of Sport Shooting Activities, composed of gun manufacturers and firearms groups from around the world, in an effort to become the principle source for global pro-gun policy. Then the NRA began fighting anti-gun efforts in countries around the world, including Australia, Britain, and Canada. Last year, they successfully blocked an extremely popular Brazilian gun control measure by, according to one UN representative, reframing the national debate: "They didn't talk about guns. They talked about rights." Labor may disdain the international arena because of its lack of enforcement powers, but other groups are busy promulgating international standards on other, nonlabor matters, and working to get them enforced.

Human rights activists have been effective at encouraging the incorporation of international legal standards into national law. Through legislation, protests, and court cases, human rights groups have transformed an amorphous and unenforceable set of international norms into laws enforceable in U.S. courts. While it took them more than fifty years and the fight is far from over, the extent of their success was recently demonstrated in the Supreme Court's Hamdan ruling which found the Bush administration's detainee polices to violate the Geneva Conventions. Labor needs to encourage similar developments in the workers' rights arena, arguing in particular that evolving labor standards bind corporations, not just governments. That doesn't mean action in the workplace and the street should wait for action in the legislature and the court; in the future, as in the past, legal acceptance of labor rights is likely to come after, not before, workers have started to assert those rights in practice.

Conventional wisdom says that Americans care little about international law and institutions. While the U.S. government under the Bush administration has indeed turned radically against international law and institutions, a fall 2006 University of Maryland poll shows that "a majority of Americans tend to view the United States as a constituent part of a larger whole." Seventy-nine percent agree that "the U.S. should coordinate its power together with other countries according to shared ideas of what is best for the world as a whole." Sixty-nine percent agree that "As the world becomes more interconnected, and problems such as terrorism and the environment are of a more international nature, it will be increasingly necessary for the U.S. to work through international institutions." And sixty-one percent agree with the statement: "When dealing with international problems, the U.S. should be more willing to make decisions within the United Nations."

This trend toward an internationalist perspective is even more pronounced among young people. A Harvard Institute of Politics survey in the fall of 2006 showed that 38 percent of young Americans between the ages of eighteen to twenty-four trust the UN, compared to less than a third who trust the president, Congress, or the federal government. The figures were virtually the same for college and non-college youth.

The American people understand that our national laws and institutions must be complemented by international ones. So do corporations. If the labor movement is to have a future, using - and expanding - international labor rights must surely be part of it.

Comments

[Mlachi Leopold]

Very thought-provoking! I’d like to invite you to republish this entry as a posting on the SRI Open Forum. My firm, Marc J. Lane Investment Management, Inc., hosts the online community bulletin board called The SRI Open Forum (just Google the name to find it) which was built as the central location for the free exchange of ideas and experiences around everything related to socially responsible investing, corporate governance, environmental issues, social enterprise, etc. I invite you to visit the site, and feel free to republish this article as a posting. Hope to see you there!

[Steve Russak]

Why not ue the Thirteenth Amendment as a stepping stone, a basic human rights bridge to develop a global "Workers Bill of Rights" ,similar to the US Bill of Rights. But I think the ultimate endorsement is a VOTE by the people, starting in the United States, State by State and finally to Congress for a ballot initiative.