Social Justice and the World of Work: Possible Global Futures Essays in Honour of Francis Maupain 9781509961252, 9781509961283, 9781509961276

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SOCIAL JUSTICE AND THE WORLD OF WORK Possible Global Futures Essays in Honour of Francis Maupain In this book, leading international thinkers take up the demanding challenge to rethink our understanding of social justice at work and our means for achieving it – at a time when global forces are tearing the familiar fabric of our working lives and the laws regulating them. The authoritative commentators examine the lessons revealed by the pandemic and other global shocks for our ideas about justice at work, and how to advance that cause in the world as we now find it. The chapters deliver critical re-assessments of our goals, explore our new challenges, and creatively re-imagine trajectories for progress on two global fronts – via international institutions and by a myriad of other transnational techniques. These forward-looking essays are in honour of Francis Maupain, whose international career and scholarly writing are inspiring models for those who, in a changing world, seize opportunities for creativity in the pursuit of global justice at work.

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Social Justice and the World of Work Possible Global Futures Essays in Honour of Francis Maupain

Edited by

Brian Langille and

Anne Trebilcock

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2023 Copyright © The editors and contributors severally 2023 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2023. A catalogue record for this book is available from the British Library. A catalogue record for this book is available from the Library of Congress. Library of Congress Control Number: 2022947583 ISBN: HB: 978-1-50996-125-2 ePDF: 978-1-50996-127-6 ePub: 978-1-50996-126-9 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

PREFACE A Book Dedicated to Francis Maupain Francis Maupain is one of the most influential and respected figures in international labour law. One of his many strengths is his ability to engage at the leading edge of academic discourse while at the same time playing a key institutional role and deploying extraordinary administrative, diplomatic, and political skills in the name of real reforms. This book of essays celebrates this remarkable combination of talents and the resulting career which describes a magnificent arc in the heavens of the discipline of the international law of work. This volume also celebrates the man whose humanity and dedication to the advancement of basic values made him a personal mentor to many, and an inspiration to countless others. Maupain was born in Montpon, Dordogne in occupied Southwestern France on 1 October 1941. His grandfather and father were notaries there.1 He graduated from the Lycée St Genès La Salle in Bordeaux before studying at the University of Bordeaux from 1960 to 1964. He earned a law degree (licence en droit) and a diploma in political science in 1964. This habit of combining law and politics remained a constant – both as a student and in his career at the International Labour Organization (ILO). He spent the following year at the Collège d’Europe in Bruges, Belgium. From 1965 onwards, he studied at the Sorbonne in Paris, first earning a diploma and then being awarded a Doctor of Law degree by the Faculty of Law at Paris-Panthéon in 1976. Maupain’s academic record was outstanding throughout, and after Bruges he was awarded a Harkness Fellowship for two years study at Harvard.2 Maupain continued his ‘law and politics’ agenda at Harvard in 1966–1968, earning a Master of Laws from Harvard University Law School in 1967, and a Master of Public Administration from the Kennedy School of Government in 1968. While both faculties glistened with many famous professors, Maupain particularly enjoyed his time at the Kennedy School – taking classes with JK Galbraith and Henry Kissinger, among others. At the law school, Professors Abram Chayes and Paul Freund stood out for him. After Harvard, Maupain returned to Bruges and began work as a legal assistant in the Collège d’Europe, where he learned of a vacancy at the International Labour Office. He was doing his French compulsory military service when he was invited to sit an examination at the ILO office in Paris that required written legal analysis and a translation exercise. Some time later, the head of the Director-General’s office invited him for an interview, conducted by Davis Morse (the Director-General), Nicolas Valticos (then Director of the International Labour Standards Department), and the head of personnel. In 1969, the ILO

1 Now the line extends to four generations. 2 The Harkness is often described as the ‘American Rhodes scholarship’. It also came with some rather extraordinary perks – such as a car and an instruction to travel across the country in the summer between the two years. This Maupain did – including ventures into Mexico and Canada.

vi  Preface appointed Maupain to a post in the Director-General’s Office (‘CABINET’). This entailed a three-month, very informative, internship in the Standards Department, where he worked on a General Survey for the ILO Committee of Experts on selected conventions, including the Equal Remuneration Convention, 1951 (No. 100), among those then designated as involving ‘workers’ fundamental rights and freedoms’.3 Then suddenly, in early 1970, Director-General Morse announced his decision to leave the ILO. In May 1970, C Wilfrid Jenks became Morse’s successor and Maupain continued working in CABINET. This work came to an abrupt end following Jenks’ death in October 1973. Jenks had fallen gravely ill a few weeks before, while attending a United Nations coordinating meeting in Rome, and Maupain was sent to accompany him back to Geneva. Jenks died while Maupain was en route. It thus fell to this young official to inform Jane Jenks of her husband’s death and to take charge of the arrangements for the return of Jenk’s body. The ILO Governing Body elected Francis Blanchard to succeed Jenks. As a francophone, Blanchard needed fewer native speakers in CABINET, and Maupain transferred to the Office of the Legal Adviser (‘JUR’). There he worked directly with Francis Wolf, who had been Legal Adviser since 1956, on a long-term undertaking involving reform of the ILO structure. This eventually led to the International Labour Conference adopting the 1986 Amendment to the ILO Constitution, a politically tricky undertaking to alter the composition of the ILO Governing Body, among other changes (at this writing, this instrument is nearing but not yet in force).4 After the Deputy Legal Adviser, Felice Morgenstern, decided to take early retirement in 1983, Maupain succeeded her in that post. Upon Wolf ’s retirement a few years later, Blanchard appointed Maupain as Legal Adviser in early 1987. A decade later, Maupain successfully shepherded adoption of the 1997 Amendment to the ILO Constitution; it empowers the Conference to abrogate an ILO Convention that has lost is purpose or no longer makes a useful contribution to attaining the objectives of the Organization.5 Results such as these draw on long-term reflection. Maupain later publicly acknowledged the debt that he felt to mentors and friends6 mentioning, in particular, Nicolas Valticos, Francis Wolf, Felice Morgenstern and Jacques Lemoine in the years leading up to and during his tenure as Legal Adviser (from 1 February 1987 to 31 May 1998). At the June 1998 session of the International Labour Conference, Maupain was designated as Legal Adviser of the Conference Committee on the Declaration of Principles.7 The Declaration on Fundamental Principles and Rights at Work8 adopted at that session

3 Report of the Committee of Experts on the Application of Conventions and Recommendations, Part III (ILO, 1969), www.ilo.org/public/libdoc/ilo/P/09661/09661(1969-53-III-4)181-260.pdf, 185, 205–08. 4 See ILO, ‘A Step Closer to the Entry into Force of the 1986 Constitutional Amendment’, 21 June 2021, www.ilo. org/global/about-the-ilo/how-the-ilo-works/departments-and-offices/jur/news/WCMS_806073/lang--en/index. htm. 5 See new para 9 of Article 19B of the Constitution, which entered into force on 8 October 2015. A number of instruments have been abrogated under this provision. See the chapter by La Hovary in this volume. 6 F Maupain, The Future of the International Labour Organization in the Global Economy (Oxford, Hart, 2013), vii. 7 The newly designated Legal Adviser, Dominick Devlin, served as the Legal Adviser for the Conference as a whole. Along with Maupain, the ILO Secretariat was represented on the Committee by Kari Tapiola and Lee Swepston (ILO Human Rights Coordinator). 8 For the draft report of the Conference Committee, discussion in plenary, final text and vote adopting the Declaration, see International Labour Conference, 86th Session, 1998, Record of Proceedings, Vol. II.

Preface  vii has proved of primordial and perhaps existential importance for the ILO.9 The result wove together several threads to which Maupain made key contributions: tripartite consultations on workers’ fundamental rights beginning in 1989,10 the Director-General’s report to the Conference on the 75th anniversary of the ILO in 1994,11 the subsequent report on ILO standard-setting and globalisation in 1996,12 and the establishment and work of the openended ILO Governing Body Working Party on the Social Dimensions of the Liberalisation of International Trade (later renamed the Working Party on the Social Dimensions of Globalization) as from this period.13 Maupain, as Director-General Michel Hansenne’s envoy first to the Marrakesh Ministerial Meeting in 1994, which transformed the General Agreement on Tariffs and Trade into the World Trade Organization (WTO), and then to the WTO’s Singapore ministerial in 1996, influenced the reaffirmation of the ILO’s competence to ‘set and deal with’ ‘internationally recognised core labour standards’.14 This is enshrined in the Singapore Declaration along with a renewal of states’ commitment to observe them. Into the mix came the outcome document of the United Nations World Summit for Social Development of 1995 (chaired by Juan Somavia, who succeeded Hansenne and served as ILO Director-General from 1999–2010), which picked up the theme of ‘basic workers’ rights’.15 The influential research of the Organisation for Economic Co-operation and Development (OECD) on trade and labour standards16 buttressed an emerging consensus in the ILO as to what constituted ‘fundamental labour principles and rights’ and their utility for economic development.17 With the ILO Legal Department technically backstopping the ILO Governing Body Working Party, this brought Maupain into contact with Raymond Torres, then of the OECD. Later, after Torres became Director of the International Institute for Labour Studies (since abolished) at the ILO and Maupain had officially retired, the Institute offered him a place as a Fellow. Among the results was Maupain’s important book, The Future of the International Labour Organization in the Global Economy.18 As Hansenne wrote in his introduction to the text of the 1998 Declaration, it ‘established a social minimum at the global level to respond to the realities of globalization’.19 9 See, in addition to Maupain’s writings, eg K Tapiola, The Teeth of the ILO: The Impact of the 1998 ILO Declaration on Fundamental Principles and Rights at Work (Geneva, ILO, 2018); and A Trebilcock, ‘The ILO Declaration on Fundamental Principles and Rights at Work: A New Tool’ in R Blanpain and C Engels, The ILO and the Social Challenges of the 21st Century: The Geneva Lectures (The Hague, Kluwer, 2001) 105–16. 10 See F Blanchard, L’Organisation internationale du travail: De la guerre froide à un nouvel ordre mondial (Paris, Seuil, 2004) 231. 11 ILO, Defending Values, Promoting Change: Social Justice in a Global Economy: An ILO Agenda, Report of the Director-General, International Labour Conference, 81st Session (Geneva, ILO, 1994). 12 ILO, The ILO, Standard Setting and Globalization, Report of the Director-General, 85th Session (Geneva, ILO, 1997). 13 See M Hansenne, Un garde-fou pour la mondialisation: Le BIT dans l’après-guerre froide (Geneva, Editions Zoé, 1999). 14 World Trade Organization, Singapore Ministerial Declaration (Doc WT/MIN(96)/Dec, 18 December 1996) para 4. 15 United Nations, Final Report of the World Summit for Social Development (March 1995), A/CONF.166/9. 16 Organisation for Economic Development and Co-operation, Trade, Employment and Labour Standards (Paris, OECD, 1996). 17 For an analysis of Maupain’s legal crafting behind this concept, see the chapter by Agustí-Panareda in this volume. 18 F Maupain, The Future of the International Organization in the Global Economy (Oxford, Hart, 2013). 19 M Hansenne, ‘Introduction’, ILO Declaration on Fundamental Principles and Rights at Work (Geneva, ILO, 1998), 2.

viii  Preface To paraphrase, all ILO Member States have an obligation ‘to respect, to promote and to realise, in good faith’ ‘the principles concerning the fundamental rights’ on ‘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’.20 At the same time, the Declaration sets out the ILO’s obligation to assist its members, ‘in response to their established and expressed needs’, to attain these objectives through full use of its resources.21 This mutuality of obligations was key to the Declaration’s adoption and its successful implementation. In support of both duties, the Declaration established a promotional follow-up. When Kari Tapiola, the ILO Executive Director leading the follow-up, reflected on the twentieth anniversary of the Declaration, he accurately described Maupain’s role: ‘As Legal Adviser, he was both the brain and the pen behind many responses and innovations when globalization hit the ILO. Francis provided the strategic guidance for the 1998 Declaration exercise while I was concentrating more on tactical maneouvres. Throughout the process, we coped the best we could with the inevitable unforeseen hazards.’22 And cope they certainly did. The 1998 Declaration stands among the best illustrations of Maupain’s combination of legal and diplomatic skills. Perhaps the latter benefited from an assignment he was given by the teetotaller Director-General: to become the ILO’s wine taster for its special events. Following Maupain’s official retirement a few years later, Director-Generals of the ILO continued to reach out to him for various ad hoc assignments, performed on shortterm contracts subject to UN rules, often part-time in name if not reality. From 1969 to today, from David Morse to the newly elected Gilbert Houngbo, six ILO Director-Generals have lent an open ear to Maupain on a range of issues. This has meant handling delicate negotiations with and about Myanmar,23 informally advising on possible requests for an advisory opinion from the International Court of Justice, and serving as the shadow architect of the 2008 Declaration on Social Justice for a Fair Globalisation.24 This Declaration ‘institutionaliz[ed] the Decent Work concept developed by the ILO since 1999, placing it at the core of the Organization’s policies to reach its constitutional objectives’,25 marking what Director-General Somavia termed ‘the most important renewal of the Organization since the Declaration of Philadelphia’.26 The 2008 Declaration also changed the format of the follow-up foreseen in the 1998 Declaration, in light of experience. It would be very difficult to overestimate the central role, again both legal and political/diplomatic, played by Maupain in the creation of the 2008 Declaration. For both the 1998 and 2008 Declarations,

20 ILO Declaration on Fundamental Principles and Rights at Work (adopted by the International Labour Conference at its 86th Session, 18 June 1998), para 2. 21 ibid, para 3. 22 K Tapiola, above n 9, v. 23 See Horsey’s account in this collection and his documentation of Maupain’s role in R Horsey, Ending Forced Labour in Myanmar: Engaging a Pariah Regime (Abingdon, Routledge, 2011), viii and references in index, 240. 24 For an account of developments from the adoption of the 1998 to the 2008 Declarations, see E Reynaud, The International Labour Organization and Globalization: Fundamental Rights, Decent Work and Social Justice, ILO Research Paper No. 21 (Geneva, ILO, 2018). 25 Juan Somavia, ‘Preface’, ILO Declaration on Social Justice for a Fair Globalization (Geneva, ILO, 2008), 1. 26 Ibid, 2. See also A Trebilcock, ‘From Social Justice to Decent Work: Is the Shift in the ILO Significant for International Law?’ (2010) in H Ruiz Fabri, R Wolfrum and J Goglin (eds) Select Proceedings of the European Society of International Law, 2008, vol 2, 697–716.

Preface  ix smooth interaction with the skilful Government chairs of the Conference Committees – Mark Moher of Canada and Jean-Jacques Elmiger of Switzerland, respectively – paved the way for the successful outcomes acceptable to both the Employers and the Workers. Effective leaders have teams behind them, and Maupain. as Legal Adviser, was no exception. A workaholic, he set high standards for the staff. He also led by example in terms of academic engagement.27 A very generous boss, he would invite staff and ‘friends of the Legal Department’ such as Christine Cornwell (Director of Personnel) and Antonio Busca (who headed the internal services unit) to a summer outing on the shores of Lake Annecy. Maupain nurtured and/or attracted talented individuals to the Office of the Legal Adviser who went on to make significant contributions to other institutions as well as to the ILO. With apologies to anyone inadvertently overlooked, we can name a number, some with contributions in this volume: Jordi Agustí-Panareda (now ILO Ethics Officer); Froujke Boele (now Head of Public Policy at the Organisation for Economic Co-operation and Development Centre for Responsible Business Conduct); Dominick Devlin (who succeeded Maupain as ILO Legal Adviser); Janelle Diller (who became Deputy Legal Adviser and served as Legal Adviser for a Conference session); Cleopatra Doumbia-Henry (former Director of the International Labour Standards Department and now President of the World Maritime University); Sophie Dufour (long-term legal researcher); Hillary Kellerson (who succeeded Maupain as Deputy Legal Adviser); Tomi Kohiyama (now Deputy Legal Adviser); Juan Llobera Serra (recently retired Director of Conference Services at the ILO); Makane Moïse Mbengue (Professor of International Law at the University of Geneva and affiliate Professor at Sciences Politiques Paris); Loïc Picard (who succeeded Devlin as the Legal Adviser after 2001 and went on to lecture at the René Cassin International Institute of Human Rights); Georges Politakis (ILO Legal Adviser since 2015); Guido Raimondi (who succeeded Anne Trebilcock as ILO Legal Adviser in early 2008 and was then appointed to the European Court of Human Rights, soon becoming its President); and Monique Zarka (later of the ILO Standards Department and Ethics Officer). Over the years, Maupain also mentored many interns and research assistants. As an example, in his 2013 book, he thanked Xavier Beaudonnet, Mathieu Charpe, Franz Ebert, Marieke Louis, Konstantinos Papadakis, Roberto Recalde, Liam McHugh Russell, Dieudonné Somda, and Marie Walter (in addition to Agustí-Panareda and Kohiyama). Maupain has influenced the careers of many others through his periodic engagement with the Graduate Institute attached to the University of Geneva28 and other academic institutions, including at the University of Toronto and in his Hague Academy lectures.29 And of course through his thought-provoking writing. A list at the end of this collection shows the breadth and depth of his published legal inquiry in English and French. In his work, Maupain has counted on the loyal and highly competent support of ILO general service staff, among whom Marie-Anne Plantard deserves special mention along 27 The chapter by Klabbers in this volume explores the encouragement of outside writing in JUR. See also J Diller, ‘Taking Account of Human Values in the International Economic Legal Order: Law and the Legal Counsel of the International Labour Organization’ in A Qureshi and X Gao (eds), The Role and Contribution of Legal Counsel to the Development of International Law (An daan Rjin, Wolters Kluwer, 2012), Ch 5. 28 For instance, by serving as the external examiner for Claire La Hovary’s PhD thesis, which led to the publication, C La Hovary, Les droits fondamentaux au travail: Origines, statut et impact en droit international (Paris, Presses Universitaires de France, 2009). 29 See the list of publications and Mbengue, chapter 19 in this volume.

x  Preface with Maree Moore and Marie-Pierre Ducret. The editors of this volume are grateful to Plantard as well as to Legal Adviser Politakis and Deputy Legal Adviser Kohiyama for the suggestions they made in the initial stages of the project. Thanks go as well as to Angie Agulto and Vanessa Zhang of the University of Toronto for their assistance in preparing this manuscript. And, of course, to each and every one of the distinguished contributors to this volume. While some have been full of praise for the ILO, others have been rather critical of it and other institutions. We have a hunch that Maupain would welcome such debate,30 and look forward to his reaction. This short note cannot and does not do justice to the life and career of Francis Maupain – a full biography would be required to get closer to that goal. Maupain is widely admired because of his genuine and deep humanity, his good will, a first-class mind, sense of humour, and his indefatigable pursuit of justice at work. And in looking back over his career (thus far!) there is that persistent and singular talent – of not only creating legal solutions to complex problems, but also knowing how to foster the political consensus required make those legal ideas real. One European diplomat put it this way, admiringly, in connection with Maupain’s role in the creation of the 2008 Declaration: Maupain deployed what he called ‘a reverse Cheshire Cat strategy – you start off with a smile … but end up with the whole cat’. That is a lovely and clever compliment which points to a fundamental truth about Francis Maupain – that he not only generates novel and important legal ideas, he also brings them to life. Brian Langille and Anne Trebilcock July 2022

30 As in, earlier, the interchange involving P Alston, ‘Core Labour Standards and the Transformation of the International Labour Rights Regime’ (2004) 15 European Journal of International Law 457, F Maupain, ‘Revitalization not Retreat: The Real Potential of the 1998 ILO Declaratoin for the Universal Protection of Workers’ Rights (2005) 16 European Journal of International Law 439, and B Langille, ‘Core Labour Rights – The True Story (Reply to Alston) (2005) 16 European Journal of International Law 409.

CONTENTS Preface: A Book Dedicated to Francis Maupain������������������������������������������������������������������������� v List of Contributors�������������������������������������������������������������������������������������������������������������������� xv Introduction: A Framework for Thinking about the Future of Social Justice����������������������������� 1 Brian Langille and Anne Trebilcock PART I GOALS AND CHALLENGES A.  Clarifying the Idea of Social Justice in Work 1. Globalisation or ‘Mondialisation’? Taking Social Models Seriously��������������������������������� 13 Alain Supiot 2. Social Justice and Reform of Capitalism���������������������������������������������������������������������������� 23 Adalberto Perulli 3. Learning from the Past for the Future of International Labour Law�������������������������������� 35 Adelle Blackett 4. Two Institutional Paths Toward the Future of Work – A View from the Edge of the Field������������������������������������������������������������������������������������������������������������������ 43 Kerry Rittich 5. International Axiologies for Social Justice at the International Labour Organization: Value-based Perspectives and Ways Forward�������������������������������������������� 55 Jordi Agustí-Panareda 6. ‘A Just Share of the Fruits of Progress’: What Does It Mean?�������������������������������������������� 65 K D Ewing and Lord Hendy KC B.  Critical Dimensions of the Global Future of Social Justice in Work 7. International Environmental Law and Social Justice: On Encounters����������������������������� 77 Laurence Boisson de Chazournes 8. Sustainability as a Guide for the Future Development of International Labour Law?������������������������������������������������������������������������������������������������������������������������ 89 Tonia Novitz 9. On the Irrelevance of Citizenship in the House of Labour������������������������������������������������ 99 Alan Hyde

xii  Contents 10. Restrictive Visa Schemes and Global Labour Justice������������������������������������������������������� 107 Virginia Mantouvalou 11. Persistent Gender Gaps: Past Priorities, Future Prospects for the Pursuit of Equality in the World of Work������������������������������������������������������������������������������������� 117 Shauna Olney PART II MEANS A.  International Institutions and the Future of Global Labour Justice I.  The International Labour Organization 12. The Past and Future of Governance: Epistemic Authority and the ILO������������������������� 133 Jan Klabbers 13. The Resilience of Multilateralism: An ILO Introspection for a System-wide Vision������ 143 Tomi Kohiyama and Thomas Lieby 14. The Contemporary Quest for Social Justice: Some Further Thoughts on the ILO Contribution��������������������������������������������������������������������������������������������������� 157 Jean-Michel Servais 15. The Impact of the Standards Review Mechanism on the Future of ILS: Not Even Diamonds are Forever�������������������������������������������������������������������������������������� 167 Claire La Hovary 16. Is the ILO a Legitimate Global Institution?��������������������������������������������������������������������� 177 Supriya Routh II.  The World Trade Organization and the Trade and Labour Nexus 17. Reforming the WTO to Better Promote Social Justice����������������������������������������������������� 191 Steve Charnovitz 18. A Tale of Tripartism, a Tribunal, and Trade������������������������������������������������������������������� 203 Desirée LeClercq III.  The Potential of Regional Systems 19. Achieving Social Justice Through Investor-related Labour Obligations? Brief Insights from the African Investment Treaty Practice�������������������������������������������� 217 Makane Moïse Mbengue 20. A Regional Revitalisation of Labour Rights? The Emerging Approach of the Inter-American Court of Human Rights�������������������������������������������������������������������������� 227 Franz Christian Ebert 21. Social Sustainability and Labour Rights in a Resilient EU��������������������������������������������� 237 Bruno Caruso and Veronica Papa

Contents  xiii B.  Possible Futures of Global Labour Justice by Other Means: Public and Private Actors 22. Peeling the Onion: On Choices Judges Make in Transnational Labour Litigation��������� 249 Judy Fudge and Guy Mundlak 23. The Use of Arbitration to Resolve Transnational Labour Disputes��������������������������������� 261 Katerina Yiannibas 24. Buying Beyond Our Borders: Public Procurement and Labour Rights in Global Supply Chains��������������������������������������������������������������������������������������������������� 273 Olga Martin-Ortega and Martina Trusgnach 25. EU Trade Preferences and Human Rights in Myanmar�������������������������������������������������� 283 Richard Horsey 26. The Future of Health and Safety at Work as a Fundamental Principle and Right – Will it Meet ISO and UN Challenges?��������������������������������������������������������� 293 Isabelle Daugareilh C.  ‘Labour Law Itself ’ and the Future of Global Social Justice 27. On Social Justice and Artificial Intelligence: Trade Unions as Instruments for the Dissemination of Transnational Norms��������������������������������������������������������������� 305 Julia López López and Eusebi Colàs-Neila 28. It’s about Time – Gender, Justice and Working Time Regulation in Employment and Care Work������������������������������������������������������������������������������������������������������������������ 315 Kirsten Scheiwe 29. Epistemic Secrets of Labour Law: Towards a Decolonial Turn��������������������������������������� 327 Flávia Souza Máximo Pereira and Pedro Augusto Gravatá Nicoli 30. After ‘Subsistence Work:’ Labour Commodification and Social Justice in the Household Workplace��������������������������������������������������������������������������������������������� 337 Liam McHugh-Russell 31. Social Justice for an Ongoing Theoretical Reconfiguration of Labour Law�������������������� 349 Adrián Goldin Publications of Francis Maupain��������������������������������������������������������������������������������������������� 359 Index����������������������������������������������������������������������������������������������������������������������������������������� 365

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LIST OF CONTRIBUTORS Jordi Agustí-Panareda is the Ethics Officer of the International Labour Organization (ILO) and former Head of Unit in its Freedom of Association Branch. Adelle Blackett is Professor of Law and Canada Research Chair in Transnational Labour Law and Development, McGill Law School, Montreal and Director, Labour Law and Development Research Laboratory. Laurence Boisson de Chazournes is Professor of Law, University of Geneva, and member of the Research Council, European University, Florence. Bruno Caruso is Professor of Law, University of Catania and Centre for the Study of European Labour Law. Steve Charnovitz is Associate Professor of Law, George Washington University School of Law, Washington DC. Eusebi Colàs-Neila is Associate Professor of Labour Law, Pompeu Fabra University, Barcelona. Isabelle Daugareilh is Professor, University of Bordeaux, Research Director, Centre nationale de la recherche scientifique (CNRS), and Director, COMPTRASEC (Centre de droit comparé du travail et de la sécurité sociale). Franz Christian Ebert is Research Fellow, Max Planck Institute of Comparative Public and International Law, Heidelberg. Keith Ewing is Professor of Public Law, King’s College, London. Judy Fudge is Professor in Global Labour Issues, McMaster University, Hamilton, Ontario. Adrián Goldin is Professor emeritus, University of Buenos Aires. Hendy, John (Lord) is Barrister, United Kingdom, specializing in labour law. Richard Horsey is an independent expert specialising in the political economy of Myanmar and former ILO Representative to the country. Alan Hyde is Professor of Law and Reitman Scholar, Rutgers University Law School. Jan Klabbers is Professor, Faculty of Law, University of Helsinki. Tomi Kohiyama is Deputy Legal Adviser, International Labour Organization and former senior manager, International Labour Standards Department. Claire La Hovary is Senior Specialist, Bureau for Workers’ Activities, International Labour Office and former visiting fellow, University of Glasgow and University of Amsterdam.

xvi  List of Contributors Brian Langille is Professor of Law, University of Toronto. Desirée LeClercq is Assistant Professor, School of Industrial and Labour Relations, and Associate Member of the Law Faculty, Cornell University, and former Director for Labor Affairs, Office of the United States Trade Representative. Thomas Lieby is Legal Officer, Office of the Legal Adviser, International Labour Organization. Julia López López is Professor of Labour Law, Pompeu Fabra University, Barcelona. Virginia Mantouvalou is Professor of Human Rights and Labour Law, Faculty of Laws, University College London. Olga Martin-Ortega is Professor of International Law, School of Law, University of Greenwich. Makane Moïse Mbengue is Professor of International Law, Faculty of Law, University of Geneva and Affiliated Professor, Sciences Po Paris (School of Law); Member of the Curatorium of The Hague Academy of International Law; Associate Member, Institut de droit international. Ian McHugh-Russell is Assistant Professor, Dalhousie Schulich School of Law, Halifax, Nova Scotia. Guy Mundlak is Professor of Law, Tel Aviv University. Pedro Augusto Gravatá Nicoli is Associate Professor, Labour Law Department, Federal University of Minas Gerais. Tonia Novitz is Professor of Labour Law, University of Bristol Law School and Centre for Law at Work. Shauna Olney is a member of the International Civil Service Commission and former head of the Gender, Equality and Diversity Branch, International Labour Organization. Veronica Papa is Associate Professor of Labour Law, University of Catania. Flávia Souza Máximo Pereira is Associate Professor of Labour and Social Protection Law, Federal University of Ouro Preto. Adalberto Perulli is Professor of Labour Law, Ca’ Foscari University, Venice, and Paris Nanterre University. Kerry Rittich is Professor of Law, Women and Gender Studies, University of Toronto. Supriya Routh is Associate Professor of Law, Peter A Allard School of Law, University of British Columbia. Kirsten Scheiwe is Professor, Institute for Social and Organizational Studies, University of Hildesheim. Jean-Michel Servais is Visiting Professor, University of Gerona, and a former Director at the International Labour Organization.

List of Contributors   xvii Alain Supiot is Professor emeritus, College de France, and Fellow of the British Academy. Anne Trebilcock, associated with the Institute of Labour Law, University of Göttingen, is a former Legal Adviser and Director of Legal Services, International Labour Organization. Martina Trusgnach is a PhD candidate at the University of Greenwich and the London Universities Purchasing Consortium, focusing on procurement and human rights. Katerina Yiannibas is Lecturer in Law at Columbia Law School in New York and Assistant Professor at Deusto Business School, San Sebastian, Spain.

xviii

Introduction: A Framework for Thinking about the Future of Social Justice BRIAN LANGILLE AND ANNE TREBILCOCK

I.  The World as We Now Find It As Amartya Sen keenly observed, ‘Human beings are the agents, beneficiaries, and adjudicators of progress, but they also happen to be – directly or indirectly – the primary means of all production. This dual role of human beings provides a rich ground for confusion of ends and means in planning and policymaking.’1 The world of work is an enduring and vital dimension for sustaining human life.2 It is also the anvil upon which our best ideas about, and ambitions for, social justice are hammered out, in detail, in our daily realities. As Sen notes, this ‘dual role of human beings’, as both means and end, provides ‘rich ground’ for confusion. One result: work can be either a fertile location for advancing human flourishing and social justice – both intrinsically and instrumentally – or work can be corrosive for decent lives and for our ambitions for a just world.3 For a long time this has been clear: social justice, and the world of work, are crucially intertwined. It is also true that, for at least some time, we have known that this intertwining was being stretched, perhaps to the breaking point, by what we have come to know as ‘­globalisation’.4 For those concerned about the world of work the globalisation story is a familiar one – there are powerful external forces in play, which in some quarters and from time to time have been viewed as inevitable.5 Among them: financialisation, mobile capital, the dominance of shareholder value theory in corporate law, new and ever more concentrated m ­ onitoring/ communications technologies, artificial intelligence, robotics, trade in goods and ideas, demographic change, and migration. And effects on the citadel of work law are also very familiar – fissuring,6 vertical disintegration of firms, gig and platform work, offshoring, 1 A Sen, ‘Development as Capability Expansion’, in S Fukuda-Parr and AK Shiva Kumar (eds), Readings in Human Development: Concepts, Measures, and Policies for a Development Paradigm (New Delhi, Oxford University Press, 2003) 3. 2 For a recent, but long, view of this idea, see J Lucassen, The Story of Work (New Haven, Yale, 2021). 3 We borrow the terms ‘fertile’ and ‘corrosive’ from J Wolf and A De-Shalit, Disadvantage (Oxford, Oxford University Press, 2007). 4 D Rodrik, The Globalization Paradox (Oxford, Oxford University Press, 2012). 5 Former United States President Bill Clinton, cited by Richard Baldwin in The Great Convergence (Cambridge, MA, Harvard, 2016),17, called globalisation ‘the economic equivalent of a force of nature, like wind or water’. 6 D Weil, The Fissured Workplace (Cambridge, MA, Harvard, 2014) (Harry Arthurs has noted, accurately, that the correct geological phenomenon to be invoked is not the natural process of fissuring, but the intentional human activity of fracking.)

2  Brian Langille and Anne Trebilcock production/supply/commodity chains, deregulatory competition, more power to firms and less to states, dilution of individual and collective worker power, enfeebling of both domestic work law and of global labour governance, more inequality, ‘losers’ as well as winners in the new economic dispensation, the rise of right-wing anti state/anti science/anti education ideologies, and so on, and on. Many can see in all of this Sen’s insight at work – a confusion of ends and means with corrosive effects.7 All of that is very familiar and, indeed, it has been for some time the dominant structure of discourse about the world of work. Imperials of ink have been spilled about this state of affairs.8 It also, in the world as we find it in 2022, seems rather quaint and, perhaps, overly simplistic as a description of our challenges. In these times this familiar understanding seems too small and too fragile to bear the weight of the events and issues which dominate our lives now – the COVID-19 pandemic, accelerating climate change, war, increasing inequality, attacks upon and erosion of the rule of law and democracy, concentration of media power, and the weakening of the international legal order. The world as we now find it thus puts renewed and further strain upon the familiar fabric of our thinking about the interdependence of work and social justice and also upon our set of common and received ideas about cause and effects upon the relationship of ‘globalisation’, the world of work, and the law which is the bridge between them. Labour law, whether transnational, international or national, cannot do it alone.9 That is where the idea for, and ideas in, this volume come onto the stage in the enduring drama of work and social justice. In this volume leading thinkers outline the necessary adjustments in our reflection, both about the relationship between work and justice, including historical and structural exclusions, and of our received ‘globalisation’ account, all in light of our new realities. They do so with a view to describing the trajectories of possible futures. The animating instinct is to seek and to describe future and possible arcs of justice. That this rethinking is a critical and current need has been made abundantly clear by, to take one example, the COVID-19 pandemic. The pandemic has been, for several years now, a cloud which darkens but, at the same time, illuminates. Obviously the pandemic is a comprehensive storm darkening many dimensions of the lives of people in all parts of the world. Like many large storms it seems to come and go, and then come again. It has become much more than a health crisis and is best seen as a vector for other sorts of social challenges. The world of work is one dimension of our lives which has been rocked by the pandemic. There is, most obviously, the direct impact on work itself – that is, in the labour market in terms of loss of jobs, and thus income (as well as government revenues.) ‘COVID-19 has resulted in the most severe crisis in the world of work since the Great Depression of

7 See, eg, D Rodrik, Has Globalization Gone Too Far? (New York, Columbia University Press, 1997); J Stiglitz, Globalization and Its Discontents (New York, WW Norton, 2002). 8 Many discussions along these lines can be found in collections such as G Davidov and B Langille (eds), Boundaries and Frontiers of Labour Law: Goals and Means in the Regulation of Work (Hart, 2006); G Davidov and B Langille (eds), The Idea of Labour Law (Oxford, Oxford University Press, 2011); A Blackett and A Trebilcock (eds), Research Handbook on Transnational Labour Law (Cheltenham, Edward Elgar, 2015); A Bogg, C Costello, ACL Davies and J Prassl (eds), The Autonomy of Labour Law (Oxford, Hart, 2015); and H Collins, V Mantouvalou and G Lester (eds), Philosophical Foundations of Labour Law (Oxford, Oxford University Press, 2018). 9 See eg S Paul, S McCrystal and E McGaughey (eds), The Cambridge Handbook of Labor in Competition Law (Cambridge, Cambridge University Press, 2022); I Ferreras, J Battilana and D Méda, Democratize Work: The Case for Reorganizing the Economy (Chicago, University of Chicago Press, 2022).

Introduction  3 the 1930s … with those already disadvantaged being hit hardest.’10 Much has also come to light about disruptions in global supply chains. All of this has had a knock-on effect for economic and gender equity and much else. But there has also been the indirect impact on our thinking about the value of work – perhaps especially ‘care’ work but also provision of other basics of life, and about work/life balance, and what is ‘important in life’, all as new technologies allowed, for some jobs but not others, ‘working from home’. Much more has happened, but we need to see that beyond the direct impact on work there is the indirect impact upon the world of work law – on our labour laws and policies. Here there have been, in many places, direct assaults upon the familiar understanding and conceptual framework of labour law itself. The traditional organisational categories of the law of work, such as ‘employee’ or ‘independent contractor’ were seen as irrelevant to the solution of our problems in the modern world of work, with some countries making financial relief during the acute phase of the pandemic available ‘across the board’, regardless of technical legal rubrics. There are other remarkable impacts upon the world of work – such as a sharpening of our focus upon international supply chains and other modern complex structures of production whose frailties were suddenly laid bare, not only in connection with vaccine production, but with our reliance upon many basic commodities. ‘Supply chain disruption’ has become, along with ‘you’re on mute’, a signature phrase for our times. In this regard the pandemic looks like a dry run for a much more fundamental challenge: climate change and its impact on the world of work.11 And then, war in Europe and its global effects, shedding an even harsher light on the current global economic and political dispensation, its interdependencies and its fragile structure. These realities and challenges in the world of work and production are altering, or at least giving us the opportunity to change, the world, which Dani Rodrik has described one of ‘hyper-globalization’.12 That world and its problems were not created by the pandemic, climate change, or war; rather these existing problems were starkly highlighted, put much more sharply into focus, and moved to centre stage for policy makers. Thus, a key impact of the pandemic has been to reveal deep flaws in dominant modes of thought and legal arrangements. Along with rapidly accelerating climate change, and war, the pandemic acts as a set of sharp prods to regroup, to reconsider, to reimagine, to take even more seriously fundamental problems which have worried us for some time but now dominate our thinking. We have some new questions and need new answers. We see more clearly than ever the value of work and the role it plays in the ‘justness’ of our social protection arrangements. We also see our ‘globalisation story’ in a harsh new light that illuminates persistent inequalities. We need to search now for pragmatic ideas for new and renewed arrangements, aimed at securing and making more sustainable our commitments to social justice. In the world as we now find it these large questions, and opportunities, open before us. The fabric of many aspects of our lives have been ripped apart by the pandemic (and all the rest), including the fabric of our law of work. But it is precisely when that fabric is torn that we are offered the opportunity to peer into it – to see the warp of our values, and the woof of 10 ILO, ILO Monitor: COVID-19 and the World of Work, 7th edn, 25 January 2021, 20. Available at: www.ilo.org/ wcmsp5/groups/public/–dgreports/–dcomm/documents/briefingnote/wcms_767028.pdf. 11 A Trebilcock, ‘Governance Challenges and Opportunities for the International Labour Organization in the Wake of the COVID-19 Pandemic’ (2021) 18 International Organizations Law Review 370–96, 395. 12 Rodrik (2012), above n 4.

4  Brian Langille and Anne Trebilcock the legal institutions we deploy to advance them. This volume seeks to do what needs to be done – to look deeply into the fabric of justice and work in our globalised world and to seize our current opportunity to make a vital contribution to answering our deep and complex questions about the future of social justice and work. But there is another point which must be made in order to appreciate the reason for this volume. Just as the fabric of our work law and our ambitions for social justice are put under great stress and also simultaneously put into prominent play, our faith in our ability to do anything about it is also threatened and under equal strain. Put simply, these are hard days in which to remain optimistic about rethinking possible futures. We can start with the invasion of Ukraine and the ongoing war in Europe, which has shattered what we had taken as the basis of the world legal order and provoked a hunger crisis of global reach. But this is part of, or perhaps a product of, a larger story of intellectual and political disillusionment. Many have lost faith in the power of human reasoning to understand the world, to think rationally and helpfully about its current state, and to imagine possible futures. All of this is contestable and contested in our world of ‘fake news’, received wisdom, echo chambers, consumer ratings, slanted advertising, hidden agendas, influencers, ‘reality’ TV, ‘social’ media, big data, opinion polls, political correctness, corruption, algorithms – and all of the unfortunate, if familiar, rest.13 Some are now joining with Alan Hyde who, a while ago, claimed that ‘it is really over’ for the very idea of the law of work.14 Yet this project is evidence that many still hold to the academic project and believe, with Stephen Pinker, that reason is not negotiable.15 There is space for hope. As Philip Allott has written: Law is the possible made actual. Law is a bridge between the ideal and the real. … [It] is a vehicle that a society uses to carry it into the better future that it chooses and its citizens desire.16

It is, as already noted, precisely when the fabric of our lives is torn apart that we can see clearly into it. That is a very real ‘silver lining’ upon which this volume focuses. Thus, this book proceeds on the following understandings: That the relationship between social justice and work is a profound one, long understood and debated. That our current and familiar story about the strains visited upon that relationship by globalisation, although also well rehearsed, stands in need of reconsideration. That the pandemic, climate threat, and war have conspired to provide the harsh light which makes such reflection not only urgently required but also possible. That human minds can, though reflection and study, understand our world, articulate ambitions of social justice, and construct legal institutions to bridge reality and our ideals. ‘The law is a bridge between the ideal and the real.’17 While this is a forward-looking volume, and not a classic Festschrift, the volume is dedicated to Francis Maupain, one of the most respected and treasured figures in the field of international labour law. He has that stature because he has embodied in his life’s work – diplomatic and academic – this approach of continued reflection upon enduring values and

13 See on this point B Langille, ‘The Political Economy of Decency’ in G Politakis, T Kohiyama and T Lieby (eds) ILO100: Law for Social Justice (Geneva, ILO, 2019), 503–529. 14 A Hyde, ‘The Idea of the Idea of Labour Law’ in G Davidov and B Langille (eds), above n 8 at 97. 15 S Pinker, Enlightenment Now (New York, Viking, 2018). 16 P Allott, ‘An Ideal World Like Our World, But Completely Different’ in Politakis et al, above n 13, 25–29, 28. 17 ibid, 27.

Introduction  5 the need to build new legal machinery to bridge them to changing realities. Moreover, as explored in the Preface to this volume, he provides the concrete example that such progress is possible in the world as we know and find it.

II.  Carving Out Social Justice and the World of Work: Possible Global Futures as a Vital and Difficult Part of Re-Imagining Our Global Future Many subject matters need to be re-evaluated at a global level and in light of our current realities – health, climate, work, development, equity, gender, demographics and geographical mobility, the relationship of the economic and the social, and the role of artificial intelligence, among them – and from a multitude of disciplinary perspectives. A range of responses will emerge, from various disciplinary angles of attack, with different appreciations of both theory and practice, and levels of concern with institutional detail (or not). All who take up the challenge of attempting serious rethinking about possible global futures of social justice will have to carve the large set of issues which the world faces – all that has been darkened but also illuminated by the pandemic – at some set of meaningful joints. This is a necessary prolegomenon to any possible critical thinking. Indeed, finding the joints is the first part of a critical understanding – knowing how to frame our issues in the first place. The joints at which this project carves, and which provide its resulting shape as well as its weight, are first, law and legal institutions (very broadly conceived); second, the problem of justice at work; and third, a multilateral and transnational, as well as a local, perspective. Because this is a legal project it must be pragmatically grounded while also philosophically and empirically sophisticated. This is the burden which lawyers carry – not only to grasp and bring to bear the lessons of political, economic, and social theory (to be interdisciplinary in a sophisticated way) – but also to worry about how to operationalise those lessons in a way which satisfies the demands of the rule of law – of legality. But this means that this project cannot be, at its core, simply an intervention in, for example, debates in pure political theory about ‘global justice’, debates in pure development theory, the international economic order, sustainability, gender equity, or the impact of artificial intelligence, and so on. It is a contribution to serious thinking about all of that – but with a sharp institutional and pragmatic focus. That is, this project is certainly about ends, but importantly about concrete means as well. That is where its centre of gravity, and its value added, will be found.

III.  ‘The Past is a Foreign Country – They Do Things Differently There’18 Part of our reality is that legal and institutional concerns about local, or global, or international or (our preferred word) transnational labour justice have a long history spanning the

18 LP

Hartley, The Go Between (London, Hamish Hamilton/Penguin, 1953), 1.

6  Brian Langille and Anne Trebilcock modern era. The International Labour Organization (ILO), created in the aftermath of the First World War as part of the Treaty of Versailles, held its 100th birthday party in 2019.19 This is, in part, a benefit, but also a challenge in exploiting the opportunity and need to re-imagine the future of justice at work in a transnational perspective. We have to come to grips with the idea that much of what is available involves reshaping approaches which have been with us for some time, while not being captured or confined by them. To put this another way – while being open to, and seeking new horizons and techniques, being prepared to salvage what is of value in our past and present is also part of the job at hand. To accomplish this difficult task, this project draws upon many of those intellectual leaders with both the experience and knowledge of our efforts thus far, and also the courage and imagination to think afresh in light of our current circumstances.

IV.  The Necessary Structure of the Volume These basic internal commitments, and external demands, lead to the following structure and approach to thinking about possible futures for social justice and the world of work. Our fundamental divide is, of course, between ends and means. Part I is centred upon discussions of our goals, and challenges, as we can now best understand them. The chapters here seek to clarify the idea of social justice in work and then explore some of its most critical dimensions. Part II centres upon illustrations of means and methods for removing obstacles to achieving social justice. In turn, it is divided into sections – the first about reimagining key international institutions, the second about imagining and re-imagining alternative means to our ends, and the third refocusing our gaze on labour law itself. As our table of contents and list of global experts both attest, this structure exposes a lot of terrain. This is ground which no single volume of essays will ever completely, let alone finally, cover. While the views and topics are not a complete map of possible futures, we believe that the volume does provide a fixed star for future navigation of this vital, if changing, terrain. It will do so not because of its comprehensiveness but rather the suggestiveness of its structure – which describes a project both about the scope of our ideals, and an architecture for the varied means of pursuing them. The book casts a clear light on both current crises and the opportunities for reassessment provided by a world in difficulty and in flux. The volume begins, then, with chapters about our best understanding of possible meanings of social justice in the context of work. They dig deeply, probing the future of global justice at work through multiple lenses – environmental sustainability,20 post colonialism,21 immigration,22 and gender equality,23 along with re-examination of the relationship of markets and social justice.24 This part probes the meaning of social justice conceptions today and in historical perspective.25



19 Significantly,

part of the ILO celebration focused on law; see Politakis et al (eds), above n 13. Boisson de Chazournes and Novitz, Chapters 7 and 8 in this volume. 21 See Blackett, and in Part II, Pereira and Nicoli, Chapters 3 and 29 in this volume. 22 See Hyde; Mantouvalou, Chapters 9 and 10 in this volume. 23 See Rittich; Olney; and, in Part II, Scheiwe, Chapters 4, 11 and 28 in this volume. 24 See Supiot; Perulli; Rittich; and in Part II, McHugh-Russell, Chapters 1, 2, 4 and 30 in this volume. 25 See Agustí-Panareda; Ewing and Hendy, Chapters 5 and 6 in this volume. 20 See

Introduction  7 The chapters in Part II on means divide, as mentioned, into three main channels of ideas. The first is a series of chapters in ‘retrieval’ or ‘re-imagination,’ of existing international processes and institutions such as the ILO26 (including, wonderfully, consideration of the role which Maupain himself played as Legal Adviser27) and the World Trade Organization,28 and a sampling of regional institutions.29 The second channel, and series of chapters, pursues possible global futures of social justice at work ‘by other means’ and by other transnational actors,30 both public and private, focusing on litigation,31 investment and other arbitration regimes,32 supply chain regulation and procurement policies,33 and trade and development law.34 The third channel leads us to dissect labour law ‘itself ’.35 In paying attention to labour law itself, the chapters recall that, in a truly interdisciplinary approach, it is not simply other institutions and processes which must be subject to critical scrutiny in order to advance the legal cause of social justice at work – but ‘work law’ itself which needs a rethink. This two-way street is the key to true interdisciplinary thinking which, in turn, is at the heart of any worthy inquiry into the possible global futures of social justice and the world of work. We hope that this collection will provoke others engaged in the pursuit of social justice to come up with still more creative and workable responses.

26 See Kohiyama and Lieby; Servais; La Hovary; Routh, Chapters 13–16 in this volume; see also Agustí-Panareda; LeClercq, chapters 5 and 18. 27 See Klabbers as well as Agustí-Panareda, Chapters 12 and 5 in this volume. 28 See Charnovitz; LeClercq, Chapters 17 and 18 in this volume. 29 See Caruso and Papa; Ebert; Mbengue, Chapters 19–21 in this volume. 30 Such as the International Organization for Standardization; see Daugereilh, Chapter 26 in this volume. 31 See Fudge and Mundlak, Chapter 22 in this volume. 32 See Mbengue; Yiannibas, Chapters 19 and 23 in this volume. 33 See Martin-Ortega and Trusgnach, Chapter 24 in this volume. 34 See Charnovitz; LeClercq; Horsey, Chapters 17, 18 and 25 in this volume. 35 See López López and Colàs Neila; Scheiwe; Peirera and Nicoli; McHugh-Russell; Goldin; Chapters 27–31 in this volume.

8

part i Goals and Challenges

10

A.  Clarifying the Idea of Social Justice in Work

12

1 Globalisation or ‘Mondialisation’? Taking Social Models Seriously1 ALAIN SUPIOT

I. Introduction Our debt to Francis Maupain is considerable. Since the creation of the International Labour Organization (ILO) in 1919, very few experts in international law have placed, as he has, social justice at the heart of their reflection. And even fewer have enriched this with an intimate knowledge of the rather arcane aspects of this international organisation. The ILO is unique among international organisations due to its long existence and to the governance role it reserves for representatives of the world of work alongside those of States. The ILO seems thus better equipped than others to meet the legal challenge that every multilateral organisation faces: how to articulate the universality of the fundamental rights and principles of which it is the guardian, given the cultural, social and economic diversity of its members. At the beginning of this century, this challenge was given new life by two narratives of the future of the world, both coming from the United States: ‘the end of history’ and ‘the clash of civilisations’. According to the first, the collapse of the Soviet Union marked the definitive and universal triumph of liberal democracy and the market order, toppling the world into an eternal present.2 According to the second, the end of the Cold War instead opened the path to a dangerous and uncertain world, dominated by competition between several great civilisations defined by their religion.3 The history of the past 20 years has been one of extreme Hegelian dialectal ‘sublation’ (Aufhebung) of these two visions. In many countries, the undivided reign of the market order has been matched by the arousal of identitarian passions, following a political path identified by Karl Polanyi already in the 1930s.4 This sublation should not surprise us, since the true historic moment of the end of the twentieth century was not the fall of the Berlin Wall

1 Translated from French by Anne Trebilcock, with thanks to the author and Saskia Brown for their advice. 2 F Fukuyama, The End of History and the Last Man (New York, Free Press, 1992). 3 S Huntington, The Clash of Civilizations and the Remaking of a World Order (New York, Simon and Schuster, 1996). 4 K Polanyi, ‘The essence of Fascism,’, in J Lewis, K Polanyi and DK Kitchin (eds), Christianity and the Social Revolution (London, Gollancz, 1935) 359–394.

14  Alain Supiot in 1989, but rather ten years earlier with the progressive adoption of the market economy in China under Deng Xiaoping. This embrace of the market economy in a political system that remains communist marked, from this moment on, the true nature of the change that had taken place: not a victory of West over East, but rather ‘the Holy Union of Communism and Capitalism’,5 that is to say their hybridisation through means and processes as varied as the world’s history, traditions, cultures, religions and languages. As Marcel Mauss observed just after the First World War,6 ‘the growing interdependance of nations’ has increased all the more in the past 40 years. But the objective factors of this interdependence of technology, the environment and health do not automatically lead to the unification of nations under the aegis of market globalisation. On the contrary, globalisation awakens and exacerbates differences and inequalities both between nations and within each of them. In this context, it is more than ever the task of the ILO to build peace based upon social justice, converting these objective interdependencies into solidarity. However, it is not possible to advance on this path without relying on the diversity of social models. Today it is evident that the development model embodied by the West since the first industrial revolution has led the world into an ecological impasse. It is time to move away from the philosophy of history that considers it already written,7 with so-called ‘less developed’ (or ‘developing’) countries following the path already taken by ‘advanced’ or ‘developed’ countries.

II.  The Diversity of Social Models Inspired by the work of Fernand Braudel, the notion of ‘model’ as used here indicates a collection of cultural traits that characterise a society and that can have an influence on others.8 It may be illustrated by art history, which owes much to the contribution of each nation and to their reciprocal influences, as shown by Élie Faure.9 This interplay of influences is not limited to Europe. Japan was greatly influenced by the ‘Chinese model’ before it was by the West, and in turn Japan influenced the way in which China received this western model. Globalisation tends to erase this diversity of peoples and cultures and tends to deny, as did Prime Minister Margaret Thatcher, the very existence of society. The globalists preached nomadism of the ‘Anywhere’ while ignoring the attachment that true nomads have to their lands, and her followers challenged the very idea of a social model. What such doubters have in common may be summed up by this formula attributed to the former chief economist of the World Bank, Larry Summers: ‘One of the things I have learned in my short time at the bank is that whenever anybody says, “But things work differently here”,

5 A Supiot, The Spirit of Philadelphia. Social Justice vs the Total Market (London, Verso, 2012) 17–30. 6 M Mauss, ‘La nation et l’internationalisme’, statement in French in the colloquium ‘The Problem of Nationality’ (1920) Proceedings of the Aristotelien Society, in Œuvres, vol 3, Cohésion sociale et divisions de la sociologie (Paris, Éditions de Minuit, 1969) 629. 7 K Löwith, Weltgeschichte und Heilsgeschehen. Die theologischen Voraussetzungen der Geschichtphilosophie, (Stuttgart, Kohlhammer, 1953). 8 F Braudel, Le modèle italien (Paris, Arthaud, 1989). 9 É Faure, ‘Découverte de l’archipel, and D’autres terres en vue’ [1st edn, 1932] (Paris, Seuil, 1997), in 2 vols.

Globalisation or ‘Mondialisation’?  15 they are about to say something dumb.’10 Nations are themselves seen as buildings that must follow a single blueprint. This conception of ‘nation building’ is condemned to encounter its catastrophic limits, as seen, for example, in Afghanistan over the past half century. Not only does globalisation not erase national, cultural or religious identities; it stirs them up and engenders histrionics. More precisely, the idea of ‘social model’ indicates the manner in which each nation in the nineteenth century faced the mortifying consequences of masses of uprooted peasants being subjected to the ‘despotism of the industrial factory’. Such was the function of the first ‘Factory Acts’, out of which labour law and social security law emerged (referred to, together, as social law). In contrast to civil law, enriched by a common Roman-canonical heritage, social law developed within a purely national framework. Along with public law, social law expresses most clearly the diversity of legal cultures. The fact of this diversity should, however, not lead one to think that national models are unaware of one another. Operating within the same dynamic of capitalism, they are subject to common influences while, at the same time, influencing each other. The legal philosopher Alfred Fouillée (1838–1912) was one of the first to draw up a typology of European social models, in a pioneering article on ‘the idea of social justice’.11 Two of the types belonged to what he called ‘economist naturalism’, because they all subjected society to ‘natural laws’ of the economy. But while ‘individualist naturalism’ (the English type) stressed the omnipotence of the individual, ‘collectivist naturalism’ (the German type) instead stressed the ominipotence of society. Fouillée placed these two models back to back to sketch a third way, that of ‘moral and social idealism, which is particularly French and which, by extension of the idea of justice, pursues the simultaneous development of the individual and the State’.12 Shortly after the First World War, a similar typology appeared in the writing of Georges Scelle, an eminent figure in international law who was one of the first French jurists to develop the then emergent labour law. According to Scelle, each great European nation is doomed, in virtue of the crisis it confronts, to again take up its ‘traditional approach’: for Germany, this was ‘state paternalism’, for England it was ‘autonomous organicism’ and for France it was ‘political interventionism’.13 Looking at these three countries, one can indeed say that the English model tackles the social question in terms of the labour market, which must be permitted to self-regulate by means of collective bargaining; the German model, which focuses on occupational communities (at the enterprise, branch, Länder and federal levels) whose rank in importance and coordination must be ensured; and the French model, which approaches the social question in terms of political equality that the State is obligated to promote in labour relations. In France, such relations were perceived neither as natural communities nor as a market, but rather as loci of power. With the promise of liberty and equality that arose out of the 1789 French Revolution having been belied by subordination at work, the State intervened to establish a social citizenship that is

10 L Summers, cited by CA Michalet, in M Berthod-Wurmser, A Gauron and Y Moreau (eds), La régulation sociale: le rôle des organisations européennes et internationales (Paris, IEP, 1997) 66. 11 A Fouillée, ‘L’idée de justice sociale d’après les écoles contemporaines,’ LIX Revue des Deux Mondes (1899, T. 152, 47–75); reproduced in A Supiot, La force d’une idée (Paris, Éd. Les Liens qui Libèrent, 2019). 12 A Fouillée in Supiot, La Force, 65. 13 G Scelle, Le Droit ouvrier, 2nd edn (Paris, A Colin, 1929).

16  Alain Supiot an extension of political citizenship; it did so by inserting rules of public order (ordre public) into every contract of employment. Acknowledgement and recognition of this diversity of social models offered a solid foundation for the elevation of social justice to the international plane. Scelle himself worked towards this while occupying high-level posts in the ILO; his friend Albert Thomas, the organisation’s first Director-General, had chosen the motto ‘si vis pacem, cole justitium’ (if you desire peace, cultivate justice). This internationalism, enriched by the diversity of social models, enjoyed a new expansion near the end of the Second World War with the adoption of the Declaration of Philadelphia in 1944. Largely inspired by the American model of the New Deal, this Declaration laid the foundation for a new international order based on social justice.14 It thus responded to the need expressed by United States President Franklin Roosevelt for a ‘Second Bill of Rights’ which would draw lessons from the fact that ‘true individual freedom cannot exist without economic security and independence’ and that ‘People who are hungry and out of a job are the stuff of which dictatorships are made’.15 The implementation of the economic provisions of the Declaration of Philadelphia was to have been assigned to an International Trade Organization, foreseen in the Havana Charter (1948), but the Charter was rejected by the United States Senate, and did not enter into force.16 The principles of the Declaration of Philadelphia have nonetheless inspired major post-war social reforms adopted by many democracies, including newly independent India. The principles owe their success in part to the fact that they were not implemented in a uniform fashion, but rather in line with the social model of each country. Thus, in France, the nationalisation measures taken by President de Gaulle put strategic economic sectors back into the hands of the State and laid the basis for the country’s industrial and economic renewal. Germany, on the other hand, escaped the nationalisations envisaged by the Allies, reviving plans for co-determination found in the Weimar Constitution of the early 1920s – a plan that Nazism had nipped in the bud.17 Each one of these models is the fruit of complex historical and cultural balancing acts that cannot be reduced to a few clichés. For example, the French social model is certainly ‘state-centred’. As we know, the Revolution ‘wiped out’ the corporations of the Ancien Régime in favour of a new individual – the citizen – and of a radical conception of the unity of the State. But this social model owes much to another intellectual tradition, ie trusting in individuals’ capacities for self-organisation and mutual assistance. Proudhon was one 14 For an overview, see J-M Thouvenin and A Trebilcock (eds), Droit international social, 2 vols (Brussels, Bruylant, 2013). 15 FD Roosevelt, Second Bill of Rights Speech, 11 January1944. The recording of this speech, long thought to be lost, was found by Michael Moore, who included an excerpt from it in his film Capitalism: A Love Story (2009). 16 C Wilcox, A Charter for World Trade (New York, Macmillan, 1949); WA Brown Jr, The United States and the Restoration of World Trade: An Analysis and Appraisal of the ITO Charter and the General Agreement on Tariffs and Trade (Washington, The Brookings Institution, 1950); M Lofti M’rini, De La Havane à Doha. Bilan juridique et commercial de l’intégration des pays en voie de développement dans le système commercial multilatéral (Quebec, Presses universitaires Laval, 2005). 17 Article 165 of the Weimar Constitution provided for the introduction of ‘economic democracy’, largely inspired by the work of Hugo Sinzheimer; cf F Naphtali (ed), Wirtschaftsdemokratie: Ihr Wesen, Weg und Ziel. (Berlin, Verlagsgesellschaft des Allgemeinen Deutschen Gewerkschaftsbundes, 1928); O Kahn-Freund, Hugo Sinzheimer 1875–1945. Labour Law and Politics in the Weimar Republic (Oxford, Blackwell, 1981); R Dukes, The Labour Constitution: The Enduring Idea of Labour Law (Oxford, Oxford University Press, 2014); U Zachert, ‘Hugo Sinzheimer: juriste praticien et pionnier du droit moderne,’ in C Herrera, Les juristes de gauche sous la République de Weimar (Paris, Éditions Kimé, 2002) 49–67.

Globalisation or ‘Mondialisation’?  17 of the principal inspirations of this tradition of mutual aid societies, which promote social and economic democracy.18 This tradition is just as wary of the power of the State as it is of power wielded by the wealthy. Trade unionism in France was born under the banner of this school of thought, encapsulated in the 1906 ‘Charter of Amiens’.19 The tradition of mutual aid societies also heavily influenced French plans for social security, introduced after the end of the Second World War. Although influenced by the Beveridge report,20 this plan rejected the state-based system introduced in the United Kingdom in favour of social democracy as the basis for its funding and its management. In France, social security was not conceived of as a service of the State in support of the market economy, but rather as an extension of the principles of mutual assistance to the entire nation. The State should be the guarantor – not the manager – of solidarity mechanisms financed not by taxes but by contributions of the persons insured, in institutions administered by their representatives. Enterprises that were nationalised after the Liberation, and particularly public industrial and commercial enterprises, followed the same model. These enterprises were not absorbed into the state apparatus but retained managerial autonomy in order to meet the goals of general interest set by the State. These hybrid models of public law and private law turned out to be remarkably effective, and some of the ‘economic champions’ of France today were their direct descendants. It is also within this perspective that ‘social Gaullism’, particularly the establishment of works councils (comités d’entreprise) after the Liberation, need to be situated. They foreshadowed a type of participation that, in de Gaulle’s thinking, was the heir to ‘French socialism’ of the 1840s. This was to have led to a ‘factual and contractual association of workers with corporate management, and not substitutes for this in the form of performance bonuses, worker shareholding, and profit sharing, by which some – thinking themselves clever – attempt to divert it’.21 Misunderstood at the time on both the right and the left of the political spectrum, the steps he took were fully within the spirit of the French social model. Aimed at extending citizenship to the realm of the economy, this model presupposes complementing democratic representation of the quantitative type – one person, one vote – by a qualitative representation reflecting the diversity of social conditions and economic interests. This articulation between political democracy and social democracy forms the foundation of the French democratic pact. It is all the more necessary today since representatives of the ‘popular classes’ are almost entirely absent in parliament. In spite of all their faults, trade unions remain anchored in the reality of conditions of life and of work, a feature all political parties have lost. The weakening of trade unions inevitably leads to the emergence of revolts such as the ‘yellow vest’ protests, as well as of resort to the courts, as substitutes for a faltering democracy.

18 P-J Proudhon, Idée générale de la Révolution au XIXème siècle (Choix d’études sur la pratique révolutionnaire et industrielle) (Paris, Garnier, 1851); Manuel du spéculateur à la bourse, 4th edn (Paris, Garnier, 1857); Du Principe Fédératif et de la Nécessité de Reconstituer le Parti de la Révolution (Paris, Dentu, 1863); Qu’est-ce que la propriété? Premier Mémoire. Recherche sur le principe du Droit et du Gouvernement (Paris, Lacroix, 1873). See S Chambon, Proudhon et la norme. Pensée juridique d’un anarchiste (Rennes, Presse Universitaire, 2004). 19 N Decoopman (ed), L’actualité de la Charte d’Amiens (Paris, Presses Universitaires de France, 1987). 20 WH Beveridge, Full employment in a free society (London, Allen and Unwin, 1944); see also 2nd edn 1960. 21 C de Gaulle, Discours du 25 juin 1950, ‘La participation,’ (1974) Espoir. Revue de l’Institut Charles de Gaulle (No. 5) 33.

18  Alain Supiot

III.  The Mirage of Globalisation Globalisation tends to ignore or suppress the diversity of these social models. Globalisation is the final step in a process which the great historian and economist Karl Polanyi stressed as having a religious dimension: ‘The mechanism which the motive of gain set in motion was comparable in effectiveness only to the most violent outbursts of religious fervor in history.’22 In fact, globalisation relies on faith in immanent economic laws (principle of maximisation, market self-regulation, constancy of human nature …) whose influence persists independently of human consciousness or the rationality or irrationality of human behaviour.23 It follows from this that governments should not frustrate these laws but, on the contrary, should facilitate their dynamics, like a watchmaker who, in Friedrich Hayek’s words, ‘oiled a clockwork, or in any other way secured the conditions that a going mechanism required for its proper functioning’.24 In such a notion, the sole function of democracy is to persuade ignorant peoples to let themselves be directed by these immanent laws which govern societies. This universalism hanging over our heads, which aspires to submit all of humanity to laws which science supposedly discovered, has been in the works since the period of the Enlightenment. Condorcet, a mathematician and father of ‘political arithmetic’ (ie the economic and demographic statistics of a political unit25), was a figure revered by the ‘Society of Ideologues’ (which supported the enlightened dictatorship of Napoleon Bonaparte). Condorcet sharply critiqued the attention given by Montesquieu to the diversity of cultures in the latter’s Spirit of the Laws (Esprit des Lois). According to Condorcet: ‘Since truth, reason, justice, and human rights (…) are the same everywhere, one cannot see why all States should not have the same laws (…) One good law should be good for all men, like one proposition is true for all.’26 This scientism prospered in the nineteenth century with ‘the audacious but legitimate pretension to organise society scientifically’ as Renan admitted.27 He even found, in the first half of the twentieth century, terrible off-shoots such as the Nazis shaping the life of peoples according to genetic judgements. At the end of the Second World War, the experience of these monstrous deviations led to a legal and an institutional leap, that of the ‘Spirit of Philadelphia,’ as mentioned above. This was expressed in France in the programme of the National Council of the Resistance, and in the Preamble to the Constitution of 1946, which was then picked up in the 1958 Constitution.28

22 K Polanyi, The Great Transformation: The Political and Economic Origins of Our Time [1944] (Boston, Beacon Press, 2001) 31. 23 GS Becker, The Economic Approach to Human Behavior (Chicago, University of Chicago Press, 1976). 24 F Hayek, Law, Legislation and Liberty: A New Statement of the Liberal Principles of Justice and Political Economy, vol 2: The Mirage of Social Justice (Milton Park, Routledge, 1982) 128. On this scientist’s normativity, see A Supiot, ‘Foucault’s Mistake. Biopolitics, Scientism and Rule of Law’ (November–December 2021) New Left Review 132. 25 See L Daston, Classical Probability in the Enlightment (Princeton, Princeton University Press, 1988) 302 et seq. 26 See N de Condorcet, ‘Observations sur le XXIXe livre de L’Esprit des lois’ in Œuvres (Paris, Firmin Didot, 1847–1849) reprint (Stuttgart, Friedrich Frommann,1968), vol 1, 378. The opposing views of Condorcet and Montesquieu can be reconciled in what Michael Walzer has detected in the Jewish tradition of distinguishing between ‘covering-law universalism’ and ‘reiterative universalism’ (in the nation and the universe). M. Walzer, The Tanner Lectures on Human Values, vol XI (Provo, University of Utah Press, 1990) 509–531. 27 E Renan, L’Avenir de la science. Pensées de 1848 (Paris, GF Flammarion, 1995) 104. 28 A Supiot, La ‘Constitution sociale’ de la Ve République, Revue Politique et Parlementaire (January–March 2021) No. 1098, 215–233.

Globalisation or ‘Mondialisation’?  19 The neoliberal shift of the 1980s marked a return to faith in the immanent laws of a market that had become total now that it was freed from national legal frameworks. Once again, work, the Earth, and money were treated as commodities, even though they are not commodities but rather preconditions for the production of all commercial goods. As Polanyi stated, these are ‘fictional commodities’,29 sustainable in the long term only by means of legal constructs (labour law, environmental law, monetary law) which require taking account of the length of human life, the fragility of our living spaces, and the fiduciary nature of money. But in the Total Market regime created by globalisation, the law itself is considered to be a commodity in competition in a ‘world market in standards’ governed by a quest for the lowest social and environmental bidder.30 Globalisation tends to de-territorialise laws31 and to eliminate the cultural and geographic diversity of societies in order to submit them uniformly to the regime of the self-regulating market.32 As we saw in 2008 with the financial sector, this movement is condemned to run into its catastrophic limits. And above all, it is not irresistible, as demonstrated by the economic success of a country, such as Germany, that has not proceeded to ‘methodically dismantle’ its social model, but instead has relied upon it to defend its interests and its influence in Europe and beyond. One could hope – without being certain – that the reality check inflicted by the COVID-19 pandemic, on top of disasters in ‘nation building’, will wrench the leaders of countries in the West out of their dogmatic slumber of the past decades. Among other lessons, this unprecedented experience testifies to the growing interdependence of nations, the economically and ecologically unsustainable nature of globalisation and, last but not least, the crucial role of States in the preservation of human life, whether seen from the economic, health or ecological point of view. Today as earlier, it is States that take on all the incalculable risks that their populations face, that is to say ecological, social and health risks, that no insurer would be able to cover. They do it under conditions particular to each country, without prejudice to international solidarity, whose need is especially clear in relation to health. One must hope that lasting lessons will be drawn from this crisis. The ILO, which has been a favourite target for those denouncing the ‘mirage of social justice’, should play a leading role in the necessary redefinition of a social and ecological pact responding to the challenges of the twenty-first century.33 But one cannot hide the risk of repeating the scenario of the financial implosion of 2008. Once States had paid the debts owed by bankers intoxicated by the fiction of money as a commodity, it was argued that States needed to ‘shift gears’ (in the words of the Organisation for Economic Co-operation and Development34) to address these public debts by adopting ‘structural reforms’ required by the financial markets.

29 Polanyi, The Great Transformation, above n 22, 71–81. 30 A Supiot, Governance by Numbers. The Making of a Legal Model of Allegiance (Oxford, Hart Publishing, 2017). 31 A Supiot, ‘The Territorial Inscription of Laws,’ in Soziologische Jurisprudenz, Festschrift für Gunther Teubner (Berlin, De Gruyter, 2009) 375–393. 32 On this ‘liquidation’ see the ground-breaking work of Zygmunt Bauman, Z Bauman, Liquid Life (New York, Polity Press, 2005). 33 F Maupain, The Future of the International Labour Organization in the Global Economy (Oxford, Hart, 2013); A Supiot, ‘The tasks ahead of the ILO at its centenary’ (2020) 159 International Labour Review 117–36. 34 Shifting gears was the headline of an editorial by the chief economist of the OECD, Pier Carlo Padoan, when he presented the report, Economic Policy Reforms: Going for Growth 2010. Available at: www.oecd.org/economy/44661994.pdf.

20  Alain Supiot The management of the COVID-19 pandemic has given rise to useful lessons: it has taught us much about both the limits and the potential of telework; it has made us appreciate the critical importance – and the very poor living conditions – of ‘essential’ workers;35 and it has revealed the most glaring impasses wrought by governance by numbers, as well as the dangers of blind budget cuts. The European Union now has a decisive card to play by showing that its sole function is not to ‘grease the wheels’ of the market but, on the contrary, to promote new instruments of sovereignty by organising genuine cooperation between States around the strategic challenges of common interest, such as digitisation. Reinvention of action by trade unions and mutual aid societies will also be needed to find a way out of the current impasse, evident in France for instance, where the State is far too present in social issues, ignoring its traditions of mutual assistance and cooperatives.

IV.  Homage to ‘Mondialisation’ The paths of social justice are not those of an abstract universalism, nor of societies retracting into themselves. The diversity of social models emerges from an anthropological fact already remarked upon by Montesquieu: ‘in every nation there is a general character, which affects every member more or less’.36 It was this anthropological fact – the diversity of languages, cultures and societies – that led Mauss, as the First World War was ending, to distinguish cosmopolitism from internationalism.37 Cosmopolitism – which we might today instead call ‘globalism’38 – is, he said, ‘the end result of pure individualism, whether religious and Christian, or metaphysical’.39 What is involved is ‘an ethereal theory of a monad human being who is identical everywhere, an agent of a moral doctrine incapable of conceiving of any homeland other than humanity, or laws other than those of nature’.40 The propensity of this utopia to ‘destroy nations’ is doomed to failure, because it does not reflect any social reality. Internationalism, on the contrary, is defined by Mauss as ‘the entirety of ideas, feelings and rules, as well as collective groupings, which have as their goal originating and guiding the relations between nations and between societies’.41 He also fought against nationalist furore but, starting from reality – that of nations and their ‘growing interdependence’. The narrow path traced by Mauss remains one that would permit avoidance of the pitfalls of globalism and of identitarian self-withdrawal, which are the two faces of capitalism today. The first of these is anarcho-capitalism, which consists of ‘greasing the wheels’ of an historic process of globalisation. The notion of globalisation comes to us from cognitive

35 cf The proposal for an ‘Essential Workers Bill of Rights’ sponsored by United States Senator Elizabeth Warren and US Congressional Representative Ro Khanna. Available at: www.warren.senate.gov/newsroom/press-releases/ elizabeth-warren-and-ro-khanna-unveil-essential-workers-bill-of-rights. 36 Montesquieu, ‘Essai sur les causes qui peuvent affecter les esprits et les caractères’, in Œuvres complètes (Paris, Gallimard/La Pléiade, t. 2, 1966) 58. (English translation: ‘An Essay on the Causes that may Affect Men’s Minds and Characters’ (1976) 4:2 Political Theory 152). 37 Mauss, above n 6. 38 Q Slobodian, Globalists: The End of Empire and the Birth of Neoliberalism (Cambridge, MA, Harvard University Press, 2018). 39 Mauss, above n 6, 629–630. 40 ibid. 41 Mauss, above n 6, 630.

Globalisation or ‘Mondialisation’?  21 science. It appeared at the beginning of the twentieth century in writings of the Belgian biologist Ovide Decroly (1871–1932) to indicate the ‘globalisation function’ which consists in taking on board reality as a whole, thus gaining a first overall impression that precedes and guides an understanding of the elements of which it is composed.42 After the Second World War, Marshall McLuhan, theorist of information and communication technologies, was the first to describe our planet as ‘a global village’ to mean a process of economic, social and cultural integration of all the peoples of the Earth.43 McLuhan was said to have himself been inspired by the concept of the ‘noosphere’ developed a few years earlier by the Jesuit savant Pierre Teilhard de Chardin, according to whom, ‘thanks to the phenomenal biological event of the discovery of electromagnetic waves, every individual is henceforth (actively or passively) simultaneously present throughout the entire ocean and continental space – coextensive with the Earth’.44 Globalisation is thus a techno-theological concept that brings together the real leaps in information and communication technologies and religious faith in a sense of history, whose term itself (globalisation) would entail a return of humankind to the unity of the divine – at the ‘Omega Point’, to use Teilhard’s words. It was from a similar eschatological perspective that, as from the eighteenth century, Divine Providence took the secularised form of the invisible hand of the market, leading ‘human beings on the paths established by God, even when they were not aware of it’.45 In this way, globalisation today designates an historic process which, combining on a global scale the extension of ‘the spontaneous order of the market’ and the development of information technologies, must lead to uniformity of peoples and of cultures.46 This process of ‘homogenisation’ and overexploitation of people and of nature is linked to the dynamic of capitalism.47 It can, as admonished in the Preamble to the ILO Constitution, only ‘produce unrest so great that the peace and harmony of the world are imperilled’. The second contemporary form of capitalism is itself produced by this feeling of discontent: this involves ethno-capitalism which, without grappling with the economic causes of this social anger, diverts it to scapegoats identified by their religion, sex or origins, and thus offers a mixture of neoliberalism and identitarianism. Ethno-capitalism is at work in the United States and in the United Kingdom, both of which were champions of neoliberalism. However, it is present around the world, in countries as different as Brazil, India, Japan, Hungary and Turkey. Everywhere, the dismantling of systems of solidarity, whether organised by tradition or the welfare State, has led to an increase in solidarity based on belonging

42 O Decroly, La Fonction de globalisation et l’enseignement (Brussels, Lamertin, 1929). 43 M MacLuhan and BR Powers, The Global Village: Transformations in World Life and Media in the 21st Century (Oxford, Oxford University Press, 1989). 44 Pierre Teilhard de Chardin, Le Phénomène humain, Paris, Seuil, 1955, pp. 266–267. 45 T Todorov, Le siècle des totalitarismes (Paris, R. Laffont, 2010) 31. 46 See the definition given by the International Monetary Fund at the beginning of the century: ‘Economic “globalization” is an historical process, the result of human innovation and technological progress. It refers to the increasing integration of economies around the world, particularly through trade and financial flows. The term sometimes also refers to the movement of people (labor) and knowledge (technology) across international borders. There are also broader cultural, political and environmental dimensions of globalization that are not covered here’ (IMF, Globalization: Threat or Opportunity? 12 April 2000. Available at: www.imf.org/external/np/ exr/ ib/2000/041200to.htm. 47 S Zweig, Die Monotonisierung der Welt [1925] in L’uniformisation du monde (Paris, Allia, 2021); O Nishitani, L’Empire de la liberté: un autre regard sur l’Amérique (Paris, Seuil, 2022).

22  Alain Supiot to a particular identity, and thus to the allocation of human beings by the colour of their skin, their sex or sexuality, their religion, their ethnicity … In this way we see a reprise of the phenomenon revealed by Karl Polanyi at the time of the rise of fascism in the 1930s,48 which Roosevelt had summed up perfectly when warning about the danger of hunger and joblessness for the rise of dictatorships. We will not escape from these two pincers of capitalism without embarking on the path of a true mondialisation, which must not be confused with globalisation.49 A word unknown in English, the idea of mondialisation in French comes from the Latin word mundus, which designated the inhabited world, as well as the form of a globe in an ornament or a jewel. Just as the Greek word cosmos had chaos as its opposite, the Latin word mundus has as its antonym immundus, connoting whatever has not been fashioned by the work of human beings. In the same vein, but in a more precise sense, mundus in Roman law meant a temple erected when a city was founded which served as its centre for the purposes of boundary delimitations, both physical and legal. This underground monument, located under an altar on open ground, contained a pit into which representatives of the communities that made up the city dropped a handful of earth from their places of origin.50 In light of its etymological roots, mondialisation consists of making a physical universe humanly habitable, ie making our planet a liveable place.51 This requires humans to recognise the limits of their influence on the Earth, whether these limits are geographic or ecological, and to rely on the cultural and geographic diversity of societies to respond to ecological, technological, social and health risks, and to invent new forms of solidarity between nations, rendered more interdependent than ever by the digital revolution and the increase in ecological hazards.52 Mondialisation aims to establish a crucible of universalism, based on respect and mutual learning, not on a universalism imposed from above, convinced that it is the embodiment of reason. Avoiding the pitfalls of globalisation and identitarian self-withdrawal, mondialisation turns the diversity of languages and cultures into a force, and not an obstacle, on the way to a new conception of justice at work, which links the equal dignity of human beings and the preservation and embellishment of the environment in which we live.

48 K Polanyi, The Essence of Fascism, n 4, and K Polanyi, The Great Transformation, n 23, 305 et seq. This analysis may be compared to that found in G Bataille, La structure psychologique du fascisme [1933] (Paris, Lignes, 2009). 49 A Supiot, Mondialisation ou globalisation? Les leçons de Simone Weil (Paris, Éditions du Collège de France, 2019). 50 A Magdelain, ‘Le pomerium archaïque et le mundus,’ in Jus imperium auctoritas. Études de droit romain. (Rome, École Française de Rome, 1990) 155–91; M Humm, ‘Le mundus et le Comitium: représentations symboliques de l’espaces de la cité’ (2004) 2:10 Histoire urbaine 43–61. 51 On this primary meaning of ‘mondialisation’, see A Berque, ‘La mondialisation a-t-elle une base?’ in G Mercier (ed), Les Territoires de la mondialisation (Quebec, Presses de l’université Laval, 2004) 73–92. 52 S Besson et S Jubé (eds), Concerter les civilisation (Paris, Seuil, 2020).

2 Social Justice and Reform of Capitalism ADALBERTO PERULLI

I. Introduction Envisioning the future of social justice means wondering about the evolution of the ­paradigmatic categories of the contemporary world: the State, representative democracy and capitalism (ie, the economic sphere in its historically determined form). The idea of​​ social justice, as it was conceived during the twentieth century, is based on a subtle balance between these three elements, which has permitted regulation of the balance between capital and labour, thanks to the foundation of labour law and of social protection institutions. Let’s consider the nation State, first. Max Weber, in his lectures dedicated to universal economic history, claimed that as long as there is a closed nation State, there will be capitalism, because the two elements support each other, and the nation State is in competition with the other States to attract capital and to keep it within itself.1 During the twentieth century, the nation State, the capitalist institution par excellence, guaranteed a certain stability to the idea of ​​social justice, not only because it evolved from a State of law to a social State, but also because it essentially functioned as a controller of capitalism and its longa manus: the market. Thanks to a large social consensus, the State has had labour removed from the ‘pure’ market through the establishment of the employment contract and the recognition of trade unions and other collective actors, which have transformed the nature of the ­competitive labour market (and of the contract itself), affirming the values ​​of labour protection. The nation State has also removed the land from the ‘pervasive’ market thanks to public and social institutions which have made a different and ‘common’ use of the land and raw materials compared to merely private property. Finally, the State removed monetary control from the market, entrusting it to public regulatory institutions in the field of investments and savings. In this way, the three fictitious commodities that Karl Polanyi placed at the basis of the ‘great transformation’2 (labour, land and money) were removed, to some extent at least, from the self-regulated market and from the anarchic (and irresponsible) sovereignty of capital. These three fundamental changes, which took hold in the twentieth century before 1 M Weber, General Economic History (New York, Routledge, 1981). 2 K Polanyi, The Great Transformation: The Political and Economic Origins of Our Time (Boston, Beacon Press, 1944).

24  Adalberto Perulli the advent of neo-liberalism, made it possible to carry out a project of social justice both within the nation States and in the international arena. In this perspective, the idea of ​​a state sovereignty controlling capitalism and guiding its developments in a social sense has taken on very defined and advanced legal forms, which in Europe are represented by the great post-war social constitutions. This ambition on the part of the State to control the formal rationality of economic calculation, defined in terms of a social or ‘social market’ economy, has had a decisive international diffusion. While Polanyi’s The Great Transformation was being published (in 1944), the ILO Member States adopted the Declaration of Philadelphia,3 renewing the commitment to recognise the value of labour. At the same time, the Bretton-Woods agreements were being written, thus guaranteeing three decades of balanced expansion of a ‘social’ capitalism. These agreements represented forms of Keynesian control by States over national economies and capital flows. Capitalism found in Bretton-Woods the special compromise between politics and economics, between State and market, which had ruled the world in the previous international era. At the same time, the primacy of the national State went hand-in-hand with representative democracy. The value of representation, as being the secularisation of powerful theological traditions, arises from the repulsion of every pre-established hierarchy, and culminates with the democratic awareness of the irrepressibility of polytheism of values. Among these democratic values ​​there is, first of all, the social value of labour and of the human person, the value of social citizenship as an expression of freedom and ‘recognition’ (Annerkennung), expressed in the system of capabilities allowing freedom to be called – following Hegel – ‘objective’, that is, real.4 Coupled with State capitalism, democracy served as the engine of economic and social progress. By redistributing parts of the revenues of the capitalist market economy, both through industrial relations and through the welfare State, democracy decisively contributed to raising people’s living standards and thus providing legitimacy to the market economy; at the same time, it stimulated economic growth by ensuring a sufficient level of aggregate demand. The State and representative democracy have therefore implemented a model of capitalism capable of integrating the idea of social ​​ justice into its own dynamics. In Sweden, the Rehn-Meidner plan has carried out the forced withdrawal of the profits of companies to build a fund for workers and to impose a cap on share ownership, thus realising industrial democracy. More generally, State and representative democracy have functioned as rebalancing factors in the capital/labour ratio, as confirmed by the income inequality and capital/income ratio curves in the twentieth and twenty-first centuries.5

3 A Perulli, The Declaration of Philadelphia, in E Ales, M Bell, O Deinert and S. Robin-Olivier (eds), International and European Labour Law (Baden-Baden, Nomos, 2018), 361–74; on the declarations of the ILO and the law of international treaties see A Trebilcock, International Labour Organization, in M Bowman and D Kritsiotis (eds), Conceptual and Contextual Perspectives on the Law of Treaties (Cambridge, Cambridge University Press, 2018). 4 The attribution to the core labour standards of a special constitutional status within the ILO is justified, on the one hand, by the nature of those rights as human rights, and, on the other, by their specifically ‘enabling’ function in the conquest of other rights and social prerogatives: see F Maupain, ‘Revitalization not Retreat: The Real Potential of the 1998 ILO Declaration for the Universal Protection of Workers’ Rights’ (2005) 16 European Journal of International Law 440; B Langille, ‘Core Labour Rights. The True Story (Reply to Alston)’ (2005) European Journal of International Law 425. 5 T Piketty, Capital in the Twenty-First Century (Harvard University Press, 2014).

Social Justice and Reform of Capitalism  25

II. Disenchantment Such relationships between State, capitalism and democracy are part of a scenario that is now out of date. Capitalism has evolved unexpectedly in the face of recent phenomena such as globalisation, financialisation and the ‘technicisation’ of the world, producing – in Weberian terms – a new disenchantment of the world. These phenomena have upset the previous balance, imposing a new Nomos of the earth. The State and representative democracies have been massively hit by the uprooting cosmopolitanism of the global economy, willing to dismantle any mediating power and to neglect all condemnations about the loss of State sovereignty. Consequently, the national State changes its functions, with a double movement: on the one hand, with a new illiberal authoritarianism, as the expression of a profound crisis in the democratic-parliamentary system; on the other hand, the State renounces its role in carrying out the control of private economic power, to become itself part of the economic process, thus becoming a ‘competitive State’.6 Social dumping phenomena are the consequence of this unprecedented competition between political, economic and social systems; they have produced dangerous fractures in the labour markets, as well as indirectly favouring the emergence of populism and illiberal regimes. The social market economy has been overwhelmed by neo-liberalism, leading to a crisis of the welfare state. National States have implemented austerity policies because of the sovereign debt, giving way to the privatisation of the social security measures, favouring privileged social groups. Representative democracy has fallen into a crisis, resulting in the tendency to pair government and public opinion, giving rise to new political systems based on nationalism, sovereignty and economic protectionism. The disappearance of what Wolfgang Streeck defines as ‘standard post-war democracy’ is a factor of the utmost importance in the perspectives of social justice both internally and internationally.7 On the one hand, the separation of the economic sphere from democracy has paved the way for a ‘Hayekian’ growth model for capitalism of member states of the Organisation for Economic Co-operation and Development (OECD), where this uncontrolled globalisation has resulted as being unstoppable using the tools of politics. On the other hand, the recognition of social complexity – as an expression of democratic polytheism – disappears in the populist myth, leading to a crisis of all the actors and of all the functions that mediate between civil society, the world of labour and the government, trade unions and non-governmental organisations (NGOs). With the advent of neo-liberalism, the Bretton-Woods system has been virtually dismantled, and a process of hyper-globalisation has put social systems into competition and progressively reduced social rights in advanced countries. The relationship between State, capitalism and democracy has broken apart in Western countries, while Eastern capitalism (not only in China, but also in Eastern European countries) has thrived in the absence of a rule of law and a pluralist democracy.8

6 A Lyon-Caen, The Faces of the State, in A Perulli and T Treu (eds), The Role of the State and Industrial Relations, (The Netherlands, Wolters Kluwer, 2019) 167. 7 W Streeck, How Will Capitalism End? (London, New York, Verso, 2016). 8 F Baifol, Emerging Capitalism in Central Europe and Southeast Asia. A Comparison of Political Economies (Basingstoke, Palgrave Macmillan, 2014).

26  Adalberto Perulli

III. Trilemma Today we live in a global techno-economic world, but we have neither a global urbs nor a global civitas. The constitutive factors of social justice pertaining to the last century (State, capitalism and democracy) no longer seem by now to be included in a single large social contract on a global scale. The new conformation of capitalism has put forward a ‘regulatory Trilemma’ which no longer allows the simultaneous pursuit of democracy, national sovereignty and economic globalisation.9 If we want to push globalisation further, we must renounce the nation State, or democratic politics. If we want to maintain democracy to a deeper extent, we must choose between the nation State and international economic integration. And if we want to preserve the nation State and self-determination, we have to choose between greater democracy or greater globalisation. In order to understand the reason for these three rigid alternatives, it is necessary to analyse in greater depth the fundamental political Trilemma of the world economy. The three spheres – nation States, democratic politics and economic integration through globalisation – are linked in groups of two, and for each couple we have an example that helps us understand what the consequences of each of the three outputs would be.

A.  Golden Straitjacket If we set our goal as protecting the nation State and at the same time providing it with great economic integration, we would be facing the scenario Thomas Friedman called the ‘golden straitjacket’.10 This is a metaphor describing the scenario of a highly globalised economy without transaction costs, with States not imposing any type of limitation on the exchange of goods, services or capital. In such circumstances, totally governed by liberal economic forces, the competition among nation States to obtain ever-greater shares of the market is massive: because of this, States will do anything to attract markets and international investors, trying in any way to place as few barriers as possible to the economy. Under these conditions, States will implement policies aimed only at attracting investments and a greater capital inflow, thus focusing on a high-value currency, a government not intervening much in economic issues, low taxes, deregulation, privatisation and openness to investment in all domestic sectors. To describe this condition, Friedman has written: ‘As soon as your State opts for the golden straitjacket, two things tend to happen: your economy grows and your political strength shrinks.’ The reason for the loss in the possibility of affecting p ­ olitical choices – and therefore limiting democracy – is soon clear: once the rules of the game depend on global economy, the possibility for internal political groups to carry out their own ideas can only shrink, thus having a gradual elimination of the objectives of internal development, replaced with the need to maintain the confidence of global markets. It is now clear how the straitjacket is golden: if, on the one hand, it brings great economic growth, on

9 D Rodrik, The Globalization Paradox (Oxford, Oxford University Press, 2011). 10 T L Friedman, The Lexus and the Olive Tree: Understanding Globalization (New York, Farrar, Straus and Giroux, 1999).

Social Justice and Reform of Capitalism  27 the other, it does not allow us to free ourselves if we try to broaden or change our political horizons in the direction of greater social justice.

B.  The Bretton-Woods Regime If we decided, as an alternative, to move to the lower part of the Trilemma, we would find a situation where we would have a strong national State and the possibility of pursuing democratic policies, while missing the great international economic integration of the previous model. The Bretton-Woods regime, by regulating trade and financial relations among major Western countries after the war, had created a stable economic situation to allow the world to restart after the Second World War. While it is true that Bretton-Woods laid the foundations for a new model of economic integration, such new integration was highly controlled and, in some ways, even limited. In addition to observing the exchange rate, individual countries were required to apply restrictions on the movement of capital flows abroad, since the aim was to avoid a scenario that could then lead to a new economic crisis on the model of that of 1929. Free flows of capital were therefore not considered compatible with the internal economic stability of individual countries. However, the Bretton-Woods rules left ample freedom regarding the choices to be made in the field of domestic politics: the European States, for example, decided to start a path based on economic and social integration; Japan, on the other hand, followed the Western model by adapting capitalism to its society. The lower economic integration in this combination of the Trilemma is more understandable if we analyse the causes that led to the dissolution of the Bretton-Woods system: the agreement was officially abandoned in the 1970s, largely due to the global trend towards liberalisation of the flows of an increasingly ‘impatient’ capital and the will of States to support it, freely extending their trade agreements beyond national borders.

C.  Global Governance The last option offered by the Trilemma combines the possibility of pursuing democratic policies with economic globalisation, consequently decreasing the weight of State sovereignty within the scheme. This is the ‘global governance’ model: a scenario where States limit their sovereignty by delegating their powers to supranational institutions. In this perspective, if an important degree of economic integration is to be achieved, it is necessary to act to remove the transaction costs associated with the existence of different States, with different territories and different laws. Starting from this assumption, institutions of global governance would align the jurisdictions of States, thus constituting unitary rules aimed at facilitating the liberalisation process. The basic concept is linked to the interference that State sovereignty provides in the process of economic integration: its elimination and the creation of common rules would facilitate the success of integration. National governments would not disappear for this, but would have their powers limited by supranational bodies on a democratic basis. Rodrik himself admits that such model in its ideal-typical form is to be ‘ascribed to the world of dreams’ as there is no concrete example that can fit this scenario. If the European Union paradigm – characterised by the transfer of part of the members’ State sovereignty

28  Adalberto Perulli to the supranational body – might seem fitting, the democratic deficit that undermines the consistency of the model raises some doubts about whether it really corresponds to what is described in the Trilemma. Europe is a hybrid model, still in search of its true identity: there is a high degree of integration at the economic level, but its governance structure still strongly depends on the will of Member States. Taking the traits of an empirical example of the combination of high supranational economic integration and respect for democratic will, Europe actually can be considered as a ‘victim’ of the Trilemma, having to overcome the impasse created by State decisions, supranational governance and democracy. Nonetheless, scientific data prove that Europe has been more socially inclusive than the United States because it has been able to provide much higher incomes for the poorer classes than the US economy has done. Europe is less unequal, because it distributes pre-tax income to the lower-income classes far more than the US. The challenge is to make social Europe a permanent reality, capable of leading the world towards environmental sustainability, an issue where Europe is putting in much more effort than America and Asia.

IV.  Reforming Capitalism How is it possible, in such a complicated situation, to imagine the development of social justice? I think that envisioning the future of social justice on a global scale can only mean thinking about a reform of capitalism: not so much in terms of abstract social engineering, but of new conditions for the regulation of the economic life of humanity with respect to the self-destructive power of financial capitalism. But what should these new conditions consist of? In the ancient world, and until the early modern times, the economy played a marginal and instrumental role: the oikos was used for social reproduction and wealth was a symbol of a family and collective social status. It is only with modernity that the economy has become a force that is by now freed from any social or moral basis. Hence, the double movement hypothesised by Polanyi – self-regulated market vs social protection requiring laws and instruments in favour of those affected by the action of the market – is at stake: the counter-movement of society in response to the upheavals produced by global capitalism has not occurred this time.11 The logic of money and profit have become a priority and law (institutions in general) has played an increasingly marginal role, concealing a political-economic ideology transformed into religion (the religion of the market), as Walter Benjamin had already prophesied in a famous fragment.12 The new conditions consist in a true reform of the economic system of production. In order to achieve it, we need to understand which scenario of the Trilemma it is preferable to head towards: the one characterised by democratic global governance, or the one where 11 T Novitz, ‘Past and Future Work at the International Labour Organization’ (2020) 17:1 International Organizations Law Review, 10), argues that the constitutional statements made through ILO Declarations reflect countermovements to market dominance; she claims that despite current criticism of the weakness of tripartite public governance at the ILO, the Organization’s current emphasis on social justice and sustainability in the 2019 Centenary Declaration, and the nascent emergence of a Universal Labour Guarantee, could provide significant resistance to the economic orthodoxy regarding the future of work promoted by the World Bank Group and the OECD. 12 W Benjamin, ‘Capitalism as Religion. Fragment 74,’ in Religion as Critique: The Frankfurt School’s Critique of Religion (New York, Routledge, 2005) 259.

Social Justice and Reform of Capitalism  29 States and democracy again lead a process of bottom-up humanistic rebirth, facilitating individual and collective mobilisation by mixing market forces and communities to generate less unfair and more sustainable exchanges for the world balance.

A.  Post-national Constellation? The capitalist colonisation of the social sphere, with its contradictions and inequalities, has revived the cosmopolitan and cooperative utopia of men and women living on the planet as citizens of the world. However, such a utopia seems to vanish today in the face of ethnic, national, religious and linguistic identities placed in a conflicting relation, with the inevitable ‘friend-enemy’ relationship as a principle of order aimed at determining the relationship among sovereign spaces. This nationalistic approach creates unsustainable planetary phenomena of famines, hunger and unjustifiable inequalities in terms of rights and fair distribution of resources, on an increasingly polluted and plundered Earth. As Thomas Nagel has written,13 a minority of nations constitute an archipelago of islands of relative prosperity in a sea of ​​tyranny and inhuman misery, where the preservation of a high standard of living seems to absolutely depend on strict immigration control. The return to the sovereignty of national States seems not to have favoured democracy but demagoguery and protectionism, once again pushing critical thinking towards the cosmopolitan ideal, delineated in different guises. Habermas strongly criticised supporters of a State-national response to the legitimacy crisis, re-proposing the need for a vision of post-national constitutionalism.14 Others speak in terms of a gradual and peaceful amalgamation of economic nations into a single world entity capable of progressively resolving social disagreements. Some others, more simply, claim that the process of democratisation of the international system – the mandatory way to pursue the ideal of ‘perpetual peace’ in the Kantian sense15 – cannot progress without an extension of the recognition and protection of human rights above individual States. As a matter of fact, human rights, democracy and peace are the three necessary moments of the same historical movement that finds its synthesis in the ius cosmopoliticum, which is neither the law of States, nor the law among States. However, it concerns individuals as moral persons, regardless of affiliations and borders, and it establishes their status as citizens of the world. In a different perspective, I feel we should put forward some reservations on the Kantian idea of ​​the World-State, to announce an alliance or a universal solidarity going beyond the internationality of National-States and therefore of ‘local’ citizenship (to tell the truth, Kant spoke of a State of peoples, civitas gentium that will always have to grow in order to finally include all the peoples of the Earth). The challenge is to make democratic citizenship ­coexist as a protection against ‘international violence’ (the market and the world concentration of capital, but also terrorism and the dissemination of weapons) with the negative effects of States whose sovereignty remains a theological inheritance, controlling its borders, closing them to foreigners and monopolising violence.16

13 T

Nagel, ‘The Problem of Global Justice’ (2005) 33:2 Philosophy & Public Affairs, 113. Habermas, The Postnational Constellation: Political Essays (Cambridge, MA, MIT Press, 2001). 15 I Kant, Perpetual Peace: A Philosophical Essay (London, S Sonnenschein, 1903). 16 J Derrida, Force de Loi (Paris, Galilée, 1994). 14 J

30  Adalberto Perulli However, it is by no means certain that these utopian scenarios of global governance can be delineated in democratic terms, and axiologically oriented towards social justice. Currently, this side of the Trilemma is extremely poor in democratic terms and is characterised by the dominance of economic cosmopolitanism imposing its own tyranny of value. Global governance based on international organisations ‘by sectors’ and on ‘­epistemic communities’ is a regime leading to global financialisation. This regime has effectively created an international private government managing national political communities and their public governments, being by no means democratically accountable.17

B. De-globalising By re-launching the nation State, however weakened it may be, is it possible to influence the progression of a capitalism based on a politically unrestrained market system,18 without falling into illiberal souverainism, which risks becoming the new ideological expression of the capitalist world and its religious essence?19 As a matter of fact, the State may be the katekon (or according to another view, the pharmacon)20 whose national restraining power derives from its democratic legitimacy, unlike global neo-liberal policies, which are suffering from a crisis of democratic legitimacy. Capitalism today would need a new Bretton-Woods to respond to the paradoxes of globalisation, but a new Keynes is missing. A century ago, Keynes claimed that new policies had to be devised in the economic field and new tools forged to adapt and control the functioning of economic forces and prevent them from intolerably interfering with stability and social justice. Many years later, the link between social justice, social needs and freedom, with reference to developing countries, was supported by Amartya Sen, who identifies in capabilities the necessary conditions to aspire to well-being. Such capabilities are not developed by the market, but by social reforms that make life better and more worth living (expansion of literacy, basic health care, agricultural reforms). Matter-of-factly, the organisation of the global economy does not allow nation States to adopt these strategies: the (regimes of) developing countries affirm the priority of economic growth over any other aspect, in particular over civil rights (Singapore, the Republic of Korea and China are the clearest examples). In such a way, growth has taken place without granting any rights. At the same time, economically developed countries, with their big multinational companies assembling their products in the special economic zones using semi-slave labour, do not control the very long global value chains, whose negative externalities are managed by private governance that produces standards in environmental and labour matters and in product safety. The consequence is that decisions on public assets and criticalities

17 Streeck, above n 7, 6. 18 W Streeck, ‘A New Regime. The Consolidation State’ in D King, P Le Galès (eds), Reconfiguring European States in Crisis (Oxford, Oxford University Press, 2017). 19 M Cacciari, Il lavoro dello spirito (Milan, Adelphi, 2020) 91. 20 Katékon is an ancient Greek term, used in the theology of history and in political philosophy as an expression of an ‘obstacle, impediment’ towards the Antichrist; Pharmakon is also an ancient Greek term, used in philosophy and critical theory: see B Stiegler, What makes life worth living: On pharmacology (Cambridge, Polity, 2013).

Social Justice and Reform of Capitalism  31 (pollution, unfair treatment of workers, violation of safety rules, etc.) are taken by private groups representing large companies in the Northern part of the world, while developing countries remain on the sidelines. If the need to ensure greater social justice is the task of political action, it seems clear to me that the only way to look to the future is to change such an economic paradigm which no longer meets the expectations of civil society, which demands that the economy and politics de-globalise capitalism and leads nation States to enter into conflict with any economic organisation ignoring these needs, expressed by society and elaborated by politics. However, what does de-globalising capitalism mean? It means, going back to Rodrik’s Trilemma, envisioning a scenario where ‘decentralised globalisation’ takes the place of hyper-globalisation, following an inverse path to that followed by companies in the first phase of globalisation (ie, relocation and offshoring). In this scenario, the nation State regains its capacity to regulate the market and economic actors and, through techniques of reflexive law, it supports social actors at all levels (national, transnational, international and supranational). At the same time, the withered democratic process (Streeck’s postdemocracy) that had left capitalism free to shift to the new model of growth driven by the global market, should regain its ubi consistam and react to the oligarchic neo-feudalism that has disrupted social ties and solidarity by imposing the commodification of labour. Why should democracy rediscover its deep roots and be reborn from its ashes? Because, in hindsight, whether capitalism is at its end or whether it is experiencing its ‘extreme’ phase (that of sovereign debt), the only viable social neo-order in a progressive sense is actually democracy, with its essential values. Transparency is the first, then the correct circulation of information, all the more crucial in the face of phenomena such as macroeconomic and microeconomic stability or instability at the international level, up to the principles of justice. As Stiglitz21 wrote, a democratic government structure must incorporate the principles of justice, but the principles of justice required by modern conditions can only be implemented by democratic structures capable of giving voice and representation to all interests and values ​​in the field. The COVID-19 pandemic, still ongoing as I write this chapter, can be a factor in rethinking capital’s organisational strategies, having exacerbated the problems linked to the distance between company headquarters and supplier locations, and having questioned the model of global supply chains, especially very long ones. There is no doubt that ‘re-shoring’ and ‘near shoring’ (ie, taking production plants closer to their countries of origin, rather than a complete return to them) can represent a tool for re-launching social justice on a macro-regional scale. This would lead to the creation of conditions of proximity in the development of production strategies that combine innovation, cost reduction, creation of new jobs, respect for social and labour rights and participation of workers in the management of companies. Short supply chains should be promoted with incentives and tax breaks in exchange for business investments in the direction of social and environmental sustainability. A ‘glocal’ intelligent and cooperative society must be based on regional value chains and capable of internalising and localising. Dani Rodrik observes that development



21 J

Stiglitz, The Economic Role of the State (Oxford, Basil Blackwell, 1989).

32  Adalberto Perulli strategies should focus less on international economic integration and much more on domestic integration.22 The challenge is to disseminate the skills already acquired by the most advanced part of the production sector to the rest of a country’s economy. Conversely, global value chains have increased the share of capital in the world and reduced the share of low-skilled and medium-skilled labour, with an increase only in the share of highly skilled workers in advanced countries: in this way, economic imbalances and world social polarisation have increased. On the contrary, regional value chains favour trade between developing countries, as the AfCFTA (African Continental Free Trade Area) agreement did.23 Such agreement was signed by 54 African States to introduce reciprocal cooperation in exchanges by providing for a reduction in tariffs and other barriers that help economies of such countries shift from the exploitation of fossil fuels to a more sustainable approach, consisting in manufacturing and agriculture. This organisational redesign of global production could be part of a new and ambitious revolution which, according to anthropologist Michael Mann, should be a backward revolution, reversing the growth patterns of history.24 However, these organisational vectors of de-globalisation on a macro-regional basis are not enough, as well as the technological variables, even if, according to some interpretations, they were decisive in ending the ‘golden age’. Moreover, it is hard to rely on the institutions themselves, because they have proved not to be able to provide an exhaustive key to interpreting the past and planning the future. The golden age governed by the Bretton-Woods institutions is divided into two major economic cycles: the first, ending in the late 1970s, was under the influence of Keynesian economic theory, while the 1980s and 1990s were dominated by monetarism, which led to the development of the extreme phase of neoliberal capitalism, characterised by growing social inequality, wage cuts, the weakening of trade unions and the expansion of the sphere of profit making.25

V. Conclusion The conclusion to be drawn is that, beyond the technological variables or cyclical explanations (the ‘long waves’ that, from an historical perspective, had begun to take shape at the beginning of the nineteenth century), the causes of internal change in the economic system belong to the attitude of the economic policies of governments and other political subjects capable of influencing the environment in a very concrete way, through p ­ olitical decisions at both national and international levels. However, in order for economic policies to change, and to set them up towards a path of social justice, it is necessary to adopt a Kantian approach which may remove the ghost of States founded on the market and devoid of democracy, leading to hyper-globalisation.

22 D Rodrik, New Technologies, Global Value Chains, and the Developing Economy, (University of Oxford, Background Paper 1, September 2018). 23 Ed note: the labour-related aspects of this agreement are examined in Makane, Chapter 19 in this volume. 24 M Mann, The Sources of Social Power: Globalizations, 1945–2011 (Cambridge, Cambridge University Press, 2012). 25 S Pollard, The International Economy Since 1945 (London-New York Routledge,1997).

Social Justice and Reform of Capitalism  33 From this perspective, looking at the future of social justice means planning a paradigm change with a strong project, an idea of ​​the future – and, as Brian Langille writes, of the world where we want to raise our children26 – based on the relocation of the economic sphere within social action, putting into question the uncontrolled expansion of the economicrational sphere with respect to the vital spheres (culture, politics, religion, etc.). The United Nations sustainable development goals for 2030 may be the basis for implementing this paradigm shift: fighting inequality and poverty, promoting gender equality, the growth of sustainable cities, a circular economy.27 However, some balance of power is needed in world economic relations:28 the first rebalancing issue concerns the relationship between capital and labour. There is a huge disadvantage between capital (and the narrow class of mobile professionals) and the rest of society. This asymmetry must be corrected in favour of work: How? It must acquire greater importance, and become an element of conditionality in strategic choices within the international institutional arenas (from the International Monetary Fund to the World Trade Organization, up to the G7) that negotiate financial risks, taxes, subsidies and the issues related to make work ever more decent. The second rebalancing issue concerns the relationship between global governance and national governance. Unlike the side of the Trilemma providing for the State to be weakened in favour of supranational or transnational structures that express the democraticcosmopolitan ideal of intelligent globalisation, our solution requires a boost of regulatory vigour in State sovereignty, leading to the production of new social pacts and redistributive policies which would cause the global economy to thrive more. For example, the ability of nation States to support collective bargaining by giving rise to hybrid forms of transnational self-regulation seems to be confirmed by empirical research carried out in Europe,29 but it could also represent a model to be imitated also in other macro-regional contexts.30 A third rebalancing issue concerns the content of international agreements, especially those on trade and finance. What does rebalancing mean in this case? First of all, it means acknowledging that international trade can be a lever for the promotion of fundamental social rights.31 However, the chapters of the treaties dedicated to work (or sustainable development, the new container of social clauses) should become central (not ‘lateral’ or ancillary) with respect to trade liberalisation policies, so that they might change the terms of such policies, transforming free trade into fair trade based on social values. An encouraging example of new generation trade agreements is represented by the United States–Mexica– Canada Agreement which, unlike the past, has not dealt with labour issues in a parallel agreement, but has integrated social issues within the treaty, giving new prominence to the

26 B Langille, The Political Economy of Decency, in ILO100 Law for Social Justice, Eds G P Politakis, T Kohiyama T Lieby (ILO, Geneva, 2019) 503. 27 Ed. Note: See Novitz, Chapter 8 in this volume. 28 Rodrik, above n 9, 7. 29 See S Mangold, ‘Hybrid Transnational Self-Regulation’ (2019) 40:3 Comparative Labor Law and Policy Journal 445. 30 For a recent study, see ILO, Collective Bargaining for an Inclusive, Sustainable and Resilient Recovery, Social Dialogue Report 2022 (Geneva, ILO, 2022). 31 A Perulli, ‘The perspective of Social Clauses in International Trade’ in Transformation of Work: Challenges for the Institutions and Social Actors (The Hague, Kluwer Law International, 2019) 105.

34  Adalberto Perulli ILO standards and providing for the possibility of imposing economic sanctions directly against companies for the first time in the history of social clauses.32 However, it is not enough. The contents of international agreements must also change and provide for the inclusion of clauses in favour of international labour mobility. Instead of favouring offshoring, trade agreements should allow workers from poorer countries to temporarily relocate to rich countries (realising what Kant called ‘the cosmopolitan right to hospitality’33). This mobility would produce an increase in global wealth because it would reduce the debt of poor countries, thanks to economic remittances and returns in terms of know-how and education. Social clauses should also address new forms of work via digital platforms, which currently tend to escape international regulation by allowing companies in advanced countries to outsource low-cost, non-socially protected work from developing countries. Free-trade agreements should avoid including in the chapters on investment, electronic commerce and cross-border service trade provisions limiting the capability of States to regulate conditions for platform workers.34 Multa renascentur quae iam cecidere, wrote Horace.35 Will the reform of capitalism that can impose a new milestone on history in the name of social justice come about thanks to the return of what we thought was inexorably neglected?

32 A Perulli, Le Traité ACEUM: un nouveau chapitre dans l’histoire de la Clause Sociale, forthcoming in Revue de Droit du Travail. This Agreement is examined in LeClercq, Chapter 18 in this volume. 33 See Kant, above n 15, 14, third article. 34 ILO, World Employment and Social Outlook. The role of digital labour platforms in transforming the world of work, (Geneva, ILO, 2021). 35 Many words that had fallen into disuse will come back to life (Ars poetica, 70–71).

3 Learning from the Past for the Future of International Labour Law ADELLE BLACKETT*

I. Introduction When we imagine our disciplinary futures, how do we remember the past? How do we talk about it in ways that neither reduces it nor overdetermines it? A key entry point is the conceptualisation of slavery as a global institution, which dominated the economy for centuries and enabled capitalism’s emergence. To centre slavery is also to acknowledge its legacies on peoples of African descent, their legal subordination based on race, their enforced and embodied servitude, and the all-too-often overlooked, but pivotal, link between their relationship to settler colonialism through labour, land and dispossession.1 Labour law becomes an important lens through which to talk about this link. But that discussion requires labour law’s historical exclusions to be critically engaged.

II.  Labour Law: Between Social Justice and Historical Exclusion Labour law holds a particular, if often aspirational, vision of the world of work. It is incarnated in the International Labour Organization’s (ILO) conception via its 1919 Constitution which is Article XIII of the Versailles Peace Treaty and in the 1944 constitutional annex, the Declaration of Philadelphia: that labour is not a commodity, that freedom of expression and of association are essential to sustained progress, that poverty anywhere constitutes a danger to prosperity everywhere, that all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity – all reflecting one * This chapter is derived from Adelle Blackett, ‘On the Presence of the Past in the Future of International Labour Law’ delivered at the Schulich School of law Horace E. Read Memorial Lecture on 9 October 2019, published in 43:2 Dalhousie Law Journal (2020) 947–62, which was licensed under a Creative Commons Attribution 4.0 License, available at digitalcommons.schulichlaw.dal.ca/dlj. I am grateful to Anne Trebilcock (JD, Dr, hc) for revising the speech for publication as a book chapter and to LLDRL research assistants Mohammed Odusanya and Audrey Parent, McGill Law JD & BCL candidates, for final editorial support. 1 A Blackett, ‘Decolonizing Labour Law: A Few Comments’ (2016) 92 Bulletin for Comparative Labour Relations 89.

36  Adelle Blackett guiding principle: that social justice is essential to universal and lasting peace.2 But how is it possible that, over time, this vision has become deeply exclusionary? Labour law scholars spend considerable time working through key writings from Labour Law’s heyday, with Otto Kahn Freund,3 Hugo Sinzheimer4 and increasingly Karl Polanyi5 at the centre, alongside leading theorists of transnational law, Philip Jessup6 and C Wilfried Jenks,7 the ILO’s sixth Director-General and a leading public international law scholar. The pivotal work from 1944 by Eric Williams, who later in life became the Prime Minister of the newly independent Trinidad and Tobago, on Capitalism and Slavery8 has, however, largely been marginalised in labour law scholarship. Williams’ watershed work established that the institution of transatlantic slavery was at the heart of economic development and prosperity – that is, the Industrial Revolution,9 an insight that flows through some of the leading contemporary writing about slavery as a global institution. Moreover, there is no question that the plantation itself was industrial.10 For labour law, these insights are hardly inconsequential. What they offer is first the prospect of telling the story of labour law with a longer, and more interconnected, trajectory. Second, they foreground the aspects of labour law’s narrative that have consistently been rooted in resistance, or emancipation.11 The objective has been transparent: to reimagine and contribute to the reconstruction of an inclusive labour law, built from labour law’s margins.

III.  Emancipation in the Idea of Labour Law How, then, might one tie an emancipatory approach to labour law specifically into understandings of international labour law? The International Labour Organization needs to 2 Available on the ILO website at: www.ilo.org/dyn/normlex/en/f?p=1000:62:0::NO:62:P62_LIST_ENTRIE_ ID:2453907:NO. 3 O Kahn-Freund, ‘Legal Framework’ in A Flanders and HA Clegg (eds) The System of Industrial Relations in Great Britain (Oxford, Basil Blackwell, 1954); Selected Writings (London, Stevens & Sons, 1978); P Davis and M Freedland, Kahn-Freund’s Labour and the Law (London: Stevens & Sons, 1983). 4 H Sinzheimer, Grundzüge des Arbeitsrechts (Jena, Gustav Fischer Verlag, 1927); see also R Dukes, ‘Hugo Sinzheimer and the Constitutional Function of Labour Law’ in G Davidov and B Langille (eds), The Idea of Labour Law (Oxford, Oxford University Press, 2011) 57; R Dukes, The Labour Constitution: The Enduring Idea of Labour Law (Oxford, Oxford University Press, 2014); M Coutu, ‘Autonomie collective et pluralisme juridique: Georges Gurvitch, Hugo Sinzheimer et le droit du travail’ (2015) 90:2 Droit et société 351–72. 5 K Polanyi, The Great Transformation: The Political and Economic Origins of Our Time (New York, Farrar & Rinehart, 1944). 6 PC Jessup, Transnational Law (London, Yale University Press, 1956). 7 CW Jenks, The Common Law of Mankind (New York, Praeger, 1958); and Human Rights and International Labour Standards (London, Stevens & Sons; New York, Praeger, 1960). 8 E Williams, Capitalism and Slavery (New York, Capricorn Books, 1944). 9 C Palmer, ‘Capitalism and Slavery, and Politics of History’ (2012) 35:2 Review 95, 104. 10 C Rosenthal, Accounting for Slavery: Masters and Management (Cambridge, MA, Harvard University Press, 2018). As Emeritus Professor of Economics, Karl Polanyi affirms the technical advantages of the division of labour were pioneered on the plantations of the West Indies. Plantation slavery was a forerunner of capitalist industry. Karl Polanyi’s Ideas and the Contemporary World System Transformation (Inaugural lecture delivered at the International Conference on Development and Regionalism, 5–6 November 2004). Available at: www.concordia. ca/content/dam/artsci/research/polanyi/docs/Kari- Budapest-2004.pdf; perma.cc/68JK-EVFR. 11 See, eg, A Blackett (2019) ‘Beyond a Boundary: On Transnational Labour Law, Discontent, and Emancipatory Social Justice’ in GP Politakis, T Kohiyama and T Lieby (eds), ILO100: Law for Social Justice (Geneva, ILO, 2019) 463–83; and A Blackett, ‘Global Justice in Transnational Labour Law’ (2018) 33:2 Canadian Journal of Law & Society 281.

Learning from the Past for the Future of International Labour Law  37 go back and deliberately unsettle some of the margins that it tacitly reproduced in its first century, if its future, its second century, is to live up to its constitutional commitments. It is well known that the ILO has adopted hundreds of international labour standards with a view to teaching the world, in the words of its first Director-General, Albert Thomas, to speak something of the same language on social policy.12 As David Morse, the ILO’s Director General from 1948–1970, recalled in his speech accepting the Nobel Peace Prize for the ILO in 1969, the ILO’s tripartism was an early form of transnational cooperation, beyond states, working to build an ‘infrastructure of peace’.13 He called attention to ‘the fact that the economic progress which has been achieved has benefited only a small sector of the population’ adding that: To some extent, the ILO itself may have contributed to this situation. By assisting in the development of institutions similar to those existing in the industrialised societies of Europe and North America … it may have helped to strengthen the position of the privileged sectors of society … I am not suggesting that the ILO should now abandon its fundamental principles, but I am suggesting that it should make every effort to redress the alarming imbalances that have arisen in the societies of developing countries.14

Morse’s speech, written precisely when the ILO was stepping up its role in providing development cooperation, is disarmingly prescient and, in this moment of rethinking the boundaries of the field for the future of international labour law, merits a second look. What Morse did not do was revisit the familiar founding narrative that is, in fact, challenged by Williams’ thesis alongside the work on racial capitalism that has subsequently grown in relation to it. It posits that the transatlantic slave trade was not an historical aberration. From the latter literature, we learn that with the ‘formal’ end of slavery, various forms of forced labour persisted or were organised, including the displacement of Black people from the most productive lands. The literature on racial capitalism forces us to move beyond the familiar, exploitation-centred conceptions of capitalism that fail to explain, in Nancy Fraser’s terms, the ‘persistent entanglement with racial oppression’.15 As cultural theorist Stuart Hall has insisted, ‘racial discourses constitute one of the great, persistent classificatory systems … for the representation of, and the organisation of practices around … the fact of difference’.16 Globalisation is fostered precisely because it can advance on such contradictory terrain. Moreover, historians of capital and labour increasingly ­underscore one of Polanyi’s central points: economic liberalism and unfree labour emerged not as polar opposites. Rather, economic liberalism has historically and systematically depended on multiple, overlapping forms of free and forced labour.

12 A Thomas, International Social Policy (Geneva, ILO, 1948). 13 DA Morse, ‘ILO and the Social Infrastructure of Peace’ in FW Haberman (ed), Nobel Lectures in Peace 1951–1970 (Singapore, World Scientific Publishing Co, 1999), 424, 427 (emphasis in original). 14 ibid, 432–33. Morse further acknowledged the need for the ILO to pay attention to those within industrialized societies who live at the margins – those who are forgotten or dispossessed. He mentioned specifically those who are low paid, racialised and religious minorities and migrant workers. He argued that it was necessary and feasible to redress racial discrimination and eliminate poverty in the global North, and that such action would become a basis for a deepened ‘international solidarity’ with the global South. ibid. 15 N Fraser, ‘Expropriation and Exploitation in Racialized Capitalism: A Reply to Michael Dawson’ (2016) 3:1 Critical Historical Studies 163. 16 S Hall, The Fateful Triangle: Race, Ethnicity, Nation (Cambridge, MA, Harvard University Press, 2017) 46.

38  Adelle Blackett So, what did the ILO understand of the foundations of international labour law? Did it merely consider slavery to be irrelevant to its mandate, which takes its origins in the industrial revolution? The push in the League of Nations to construct what became the 1926 Slavery Convention, taking largely at their word member states from former ­slaveholding countries who insisted that slavery no longer existed, appears to have caught the ILO by surprise. The ILO asserted its competence – both jurisdictional and technical – over ‘slavery’ within its constitutional scope over ‘conditions of work’, but to no avail.17 The ILO’s jurisdictional space would come later, in the relay between the framework left for forced labour, and ultimately in the division of powers that saw the ILO take responsibility for the topic referred to as ‘native labour’.18 But would situating the work on slavery within the ILO have been more attentive to the insights of racial capitalism? The genesis and ultimate conduct of the investigations and standard setting on native labour suggest, maybe not. Prominent African American sociologist, WEB Du Bois, interacted early on with both the League of Nations and the ILO, urging the institutions to address the issue of Indigenous labour and, in particular, Black labour. But the work that followed in the ILO remained resolutely in the hands of colonial administrators. Even in the era following the Second World War, colonial powers enjoyed kid-glove treatment at the ILO for far longer than they did within the UN.19 In the League, Dantès Bellegarde, a high-ranking diplomat from independent Haiti, participated in the initial consultative committee on slavery, and put forward a distinct vision of slavery in the meetings that questioned what is meant by free labour conditions.20 While some of the key colonial administrators on the consultative committee were subsequently appointed to the committee that drafted the Slavery Convention, and the ILO’s forced labour committee, Bellegarde was not. The label of slavery, through the redefinition, tended no longer to attach to those who had spent centuries engaged in the slave trade and that were mandate holders in the League, but rather in Ethiopia (conveniently paving the way for Italian invasion justified in part as a response to seek to eliminate slavery). Both the 1926 Slavery Convention, and the subsequent ILO Forced Labour Convention, 1930 (No 29), were seen to provide the latitude that colonial powers needed to compel natives to work. Definitions of slavery have tended to turn on possessing the powers of ownership over a person, as required in Article 1 of the Slavery Convention, or the public vs private dichotomy in the framework adopted to review prison labour under Convention No 29, largely leaving alone states that have formally legislated against slavery. When the United States ratified the League of Nations Slavery Convention, it included a reservation designed to enable it to extract convict labour – a system linked to the interpretation of the Thirteenth Amendment to the US Constitution that authors have referred to

17 Archives of the ILO, ILO Doc. L 27/1/1. See also A Blackett with A Duquesnoy, ‘Slavery is Not a Metaphor: U.S. Prison Labor and Racial Subordination Through the Lens of the ILO’s Abolition of Forced Labor Convention’ (2021) 67 UCLA Law Review 1510–511. 18 ibid., 1511. For a discussion of the notion of native labour in the ILO context, see D Maul, ‘Separate Worlds: The ILO and ‘Native Labour’ 1919–1939’ in D Maul, Human Rights, Development and Decolonization: The International Labour Organization, 1940–1970 (Hampshire, Palgrave MacMillan and Geneva, ILO, 2012) 17. 19 D Maul, ‘At Arm’s Length: The ILO and Late Colonial Social Policy’ in Maul, Human Rights, above n 18, 152, 155–56. 20 League of Nations, Temporary Slavery Commission: Report to the Council, Imp. Tribune de Genève, 1924. See also A Blackett, Reckoning with the Past in the International Law on Contemporary Slavery, Keynote Address, Canadian Council on International Law, 20 October 2021.

Learning from the Past for the Future of International Labour Law  39 as slavery by another name.21 Although the United States became an ILO Member in 1934, it never ratified the ILO’s Forced Labour Convention, 1930 (No 29). It did, however, ratify the Abolition of Forced Labour Convention, 1957 (No 105), and the ILO–United States dialogue on racial disparities in forced labour in prisons offers a rare instance in which the distinctly intertwined histories of slavery and the persistence of racial capitalism through prison labour are engaged.22 This dialogue supports the act of historical memory that surrounded the ILO’s first decades. This deep dive into an underexplored past is part and parcel of a reflection on why the proliferation of contemporary forms of human exploitation and suffering so violent and intense that they evoke the ready characterisation of ‘modern slavery’ are expanding. The state-focused 70-year-old human rights arsenal, and a century’s carefully developed international labour standards, seem ill equipped – or at least insufficient – to curtail them. There has been a decided recent turn, through international action on trafficking, to evoke a different, Wilberforcian vision of curtailing the slave trade at high seas. A potential transnational labour law vision built around robust labour inspection, proactive enforcement of labour rights rather than leaving everything to complaints-based mechanisms, empowering of unions and workers’ centres to support migrant or other workers susceptible to labour exploitation, and cooperation between labour administration actors across borders to ensure that cases can be completed even when migrants move, has been decentred. Yet this, if anything, is meant to be the ILO’s standard-setting legacy. The tensions of both approaches can be seen in the 2014 Protocol to ILO Convention No 29, which includes specific reference to trafficking, recalls the importance of penal measures, but also, importantly affirms the need to pay attention to the root causes of forced labour. Read through the literature on racial capitalism, the contemporary penchant to treat ‘modern slavery’ as a criminal activity undertaken by illiberal subjects sometimes in, but definitely not of, Western civilisation, who must be stopped by the virtuous state, not only operates an act of historical amnesia. As migration scholar Bridget Anderson astutely observes, modern slavery and trafficking discourse depoliticises; that is, it focuses on the individualised victim, placing her beyond politics.23 The modern slavery frame can come to mean something so dichotomised from freedom that it is unmoored from any understanding of their ‘perpetual, unfinished’ character.24 In contrast, an emancipatory approach to labour law calls less for focusing on the exceptionality of illegality, and more on the structural challenge that is attentive both to exploitation, and to historical forms of dispossession. In other words, the anxiety over contemporary slavery in Europe specifically, and the global North more generally, is inseparable from a globalisation that fails to face the conditions under which people continue to move, across territory, and how asymmetrical migration law and global governance make people ‘illegal’.25 21 See, eg, D Blackmon, Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II (New York, Anchor Books, 2008); M Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York, The New Press, 2020). 22 Blackett with Duquesnoy, above n 17, 1504. 23 B Anderson, Us and Them: The Dangerous Politics of Immigration Controls (Oxford, Oxford University Press, 2012) 137–58. 24 N Roberts, Freedom as Marronage (Chicago, University of Chicago Press, 2015) 181. 25 On the relationship between the anxiety over contemporary forms of slavery and migration, see A Blackett and L Dehaibi, Contemporary Forms of Slavery including Causes and Consequences, General Report of the International Academy of Comparative Law (Asunción General Congress, 2022). In this volume, see Hyde and Mantouvalou, Chapters 9 and 10.

40  Adelle Blackett

IV.  The Example of Domestic Work: From Historical Marginalisation to Labour Law’s Core Domestic work is a good example of this, and it operates along another of the perennial margins that for some time remained in labour law, nationally and internationally: the intersectional care economy. There is a dimension of servitude,26 historical forms of invisibility that, of course, are gendered, but are also deeply racialised, and emerge out of the relationship of master and servant and master and slave. The work of social reproduction is at once subsumed in a lived history of servitude, but also fundamentally market enabling. And from the perspective of the ILO, the need for standard setting for the currently 67 million domestic workers worldwide had come up repeatedly. As early as 1936, the International Labour Conference set about establishing a standard on holidays with pay and wondered whether domestic workers could be covered. Rather than include them, the International Labour Conference resolved to ask the Governing Body to consider putting the protection of domestic workers on the agenda for future sessions. There were several similar episodes. In 1965, the ILO even adopted the Resolution concerning the Conditions of Employment of Domestic Workers. It observed that there was an ‘urgent need’ for standards ‘compatible with the self-respect and human dignity which are essential to social justice’ for domestic workers.27 Ultimately, it was domestic workers themselves who, although missing from the ILO’s 2008 Governing Body members who represented labour ministries, national employers’ federations, and traditional trade unions, had literally done their homework. They constituted a global, well-organised and dynamic social movement that had planned long and hard to enable the ILO to set standards that would unsettle the common-sense way in which the domestic work relationship is understood and regulated, from a legal pluralist perspective, as part of a global legacy of subordination and servitude that operates in particular places and in particular ways on particular women’s bodies. I refer to it as the asymmetrical, unequal, and largely invisible law of the household workplace. The standard setting concluded in 2011 with detailed new standards on decent work for domestic workers. By 15 June 2022, Convention No 189 had been ratified by 35 ILO Member States, including countries with significant domestic work populations, in the global South and global North, as well as countries that receive and send domestic workers and, in some cases, both. Ratifying Convention No 189 helps to put in place a transnational learning community for governments and other tripartite actors surrounding the ILO, with a view to looking closely at norms that entrench servitude as subordination, by challenging structural inequality. The adoption of Convention No 189 could have signalled closer ILO attention to the importance of not assuming that there is an absence of subordination as servitude in modern workplaces, and to make such a sharp distinction between it and subordination as control.

26 A Blackett, Everyday Transgressions: Domestic Workers’ Transactional Challenge to International Labour Law (Ithaca, Cornell University Press, 2019). 27 ILO, Resolution concerning the Conditions of Employment of Domestic Workers, XLVIII:3 Official Bulletin (Geneva, 23 June 1965), Suppl. 1, 20–21. Available at: www.ilo.org/public/english/support/lib/resource/subject/ resolution_dw.pdf.

Learning from the Past for the Future of International Labour Law  41 As it is a complex, multifaceted international institution, it still might. However, the ILO spent a significant part of its 100-year celebratory International Labour Conference adopting a Centenary Declaration for the Future of Work.28 It is not a constitutional text, and you will not turn to it for the kind of beautifully articulated, noble aspirations found in the 1944 Declaration of Philadelphia. But while the text of the Centenary Declaration is lengthy and rather watered down, it references a number of important issues around a ‘human-centred approach to the future of work’, including just transitions, gender equality, strengthening social protection and social dialogue. The ILO is to take an increased role in multilateralism and the promotion of international cooperation. The Centenary Declaration calls for the ILO to scale up its work on labour migration in response to constituents’ needs, and to take a leadership role in ‘decent work in labour migration’ as well as to eliminate forced labour. Yet, remarkably, in this moment of rising populism and explicit politicking that deploys racial difference as a way to, in the words of philosopher Judith Butler, ‘emancipate hatred’,29 the ILO’s newest declaration makes no mention of racial discrimination.

V.  Looking Ahead Perhaps in a focus on the future of work that tends to centre technology, there might be an assumption that artificial intelligence is ‘colour-blind.’ But even there, a growing body of research reminds us that machines are programmed to inherit the biases that follow their creators and that emerge from inequality and asymmetrical access.30 To make the future of work resonate for those who live the stark inequality that exists within and between states, and that is re-racialised in a global context, thinking transnationally offers important possibilities. There is potential in a transnational approach to international labour law to unbundle the field from the narrow narrative that has rooted its emergence exclusively in the Industrial Revolution, has excluded care work, and has deracinated it from attention to that other fictive commodity, land. There is a thicker history, based on an archive that points to the need for engagement with slavery and forced labour alongside free labour conditions – and engagement with servitude alongside the subordinated control that is at the centre of the employment relationship – and engagement with the persistence of racialisation in a field that aspires to equality. Each is a reminder of the persisting presence of the past in international labour law. The ILO needs to take a closer, more careful look at the historical forms of invisibility in its own past boundary-making decisions. As to the future, we saw, through Director 28 The same session of the Conference also adopted the Violence and Harassment at Work Convention (No 190) and Recommendation (No 206). 29 J Butler, ‘Trump is Emancipating Unbridled Hatred’ (Zeit Online, 2016). Available at: www.zeit.de/ kultur/2016-10/judith-butler-donald-trump-populism-interview. 30 See, eg, SU Noble, Algorithms of Oppression: How Search Engines Reinforce Racism (NY: NYU Press, 2018); R  Benjamin, Race After Technology: Abolitionist Tools for the New Jim Code (Cambridge, Polity, 2019); CD McIlwain, Black Software: The Internet and Racial Justice, from the AfroNet to Black Lives Matter (Oxford, Oxford University Press, 2019); C Castets-Renard, ‘Human Rights and Algorithmic Impact Assessment for Predictive Policing: Constitutional Challenges in the Algorithmic Society’ in H-W Micklitz, et al., Constitutional Challenges in the Algorithmic Society (Cambridge, Cambridge University Press, 2021). For a critique of the notion of colour-blind racism, see PJ Williams, Seeing a Color-Blind Future: The Paradox of Race (London: Macmillan, 1998).

42  Adelle Blackett General Morse’s 1969 Nobel lecture, that the transnational at the ILO has been observed for some time. But to acknowledge the impact of histories of transatlantic trade in labour (and not just products) through slavery between and beyond European territories and across the Black Atlantic31 can be an antidote to methodological nationalism. The contemporary spatialisation of labour – particularly through migration and including to provide care – similarly evokes the transnational. Close attention needs to be paid to these issues that have tended to be relegated to labour law’s margins, to avoid misframing justice concerns as national, when they can only really be understood transnationally. To rethink labour transnationally is also to call attention to a distinctly important part of any narrative in the history of enslavement: the enslaved’s insistence on their humanity is to be understood as resisting commodification, often by moving, or migrating. This is, fundamentally, the story of international labour law, and the portal to its transnational futures. We are in a moment in time where we must profoundly unsettle some of the starting understandings of the field of international labour law, and challenge some of the starting asymmetries that may have given us a sense of solidarity in the past but so deeply exclude working people, worldwide. We need to unsettle, some would say decolonise, before we can begin to imagine how a second centenary for social justice toward peace can become a reality. The glaring inequalities of the COVID-19 pandemic have brought this into stark relief.

31 See P Gilroy, The Black Atlantic: Modernity and Double Consciousness (Cambridge MA, Harvard University Press, 1993).

4 Two Institutional Paths Toward the Future of Work – A View from the Edge of the Field KERRY RITTICH

I. Introduction Shortly before the arrival of the COVID-19 pandemic, the International Labour Organization (ILO) and the World Bank (the Bank) each issued flagship statements on the state of work, the Centenary Declaration1 and the World Development Report 2019: The Changing Nature of Work (WDR 2019).2 Along with policy statements such as the ILO report of the Global Commission on the Future of Work, Work for a Brighter Future (the Commission Report)3 these documents provide a baseline or vantage point from which to assess current institutional thinking, policy and practice on the future of work at the international level. These statements provide both contrasting and overlapping narratives about the world of work, its dilemmas and challenges as well as its prospects for workers. They also confirm the presence of competing labour market governance agendas when it comes to the policy and regulatory infrastructure needed to secure the future of work. The broad outlines of these visions can be stated as follows. For the Bank, the road to a better future at work is one in which law and policy support the processes of technological innovation which now drive growth in a globalised economy, while incentivising workers to acquire the critical thinking, cognitive and behavioural skills needed to adapt to the rapidly changing demands of work. While it, too, places technology and the digital revolution at the centre of its analysis, the ILO proposes a ‘human-centred’ approach to work, one in which technology’s evident dystopian possibilities are restrained, and workers enjoy both more control over their work and a greater share of the revenue their labour produces. This path the ILO pursues through a plea for greater policy coherence4 in a multilateral system pervaded by resistance to labour market institutions.

1 International Labour Organization, ILO Centenary Declaration for the Future of Work. Available at: www.ilo. org/global/about-the-ilo/mission-and-objectives/centenary-declaration/lang--en/index.htm. 2 World Bank, World Development Report 2019: The Changing Nature of Work (Washington, World Bank, 2019). 3 Global Commission on the Future of Work, Work for a Brighter Future (Geneva, ILO, 2019). 4 ILO Centenary Declaration, above n 1, para IV.F.

44  Kerry Rittich

II.  The View from the World Bank WDR 2019 begins with the question of technology, raising the spectre of automation’s adverse impact on work – only to immediately dispose of it. Acknowledging workers’ fears of job loss and the possible downward pressure of technology on working conditions, especially in the context of gig work and rising economic inequality, the Bank nonetheless finds ‘[t]his troubling scenario … on balance unfounded.’ Despite the loss of jobs in some advanced economies and middle-income countries, ‘technology provides opportunities to create new jobs, increase productivity, and deliver effective public services. Through innovation, technology generates new sectors and new tasks’.5 Indeed, technology holds extensive inclusionary promise, as the rise of ‘platform marketplaces’ allows anyone with an internet connection to trade goods and services, bringing ‘economic opportunity to millions of people who do not live in industrialised countries or even industrial areas’.6 In this scenario, human capital is the key to realising technology’s promise at work, especially given the central role of large ‘superstar’ firms in driving jobs and productivity gains. Although the disparate effects of technology render predictions of job losses, in the Bank’s words ‘basically useless’, thriving in a world of technologically driven and digitally mediated innovation raises the premium on ‘advanced cognitive skills such as problem-solving, socio-behavioural skills such as teamwork, and skills that are predictive of adaptability such as reasoning and ‘self-efficacy’.7 In this assessment, technology’s role in the future of work indicates not a threat to labour’s position but rather something of the opposite: labour’s own deficits when it comes to harnessing technology’s possibilities – what the Bank styles the ‘human capital gap’. Technology and innovation now installed at the centre of the demands and problems of work, the Bank proceeds to lay out the required policy agenda. First in the order of business is creating jobs in the formal sector, both for the many workers in developing countries who remain mired in informal, low-productivity work and for the talented graduates who cannot find work commensurate with their newly acquired skills. In addition to the basic infrastructure needed to support capital development, next come investments in broadband and internet connectivity.8 At the centre lies a new social contract based on investments in human capital that, while ideally extending to universal social protection, places primary emphasis on the investments in early childhood health and education foundational for the acquisition of cognitive and social skills. The report’s main ‘product’ is the Human Capital Index, a classic new governance tool9 melding data, analysis and advocacy that purports to measure the levels of human capital within national populations and, by extension, the productivity of the next generation of workers on the basis of three indicators: whether children survive from birth to school age, the expected years of quality-adjusted school, and stunting and

5 World Bank, WDR2019, above n 2, 2. 6 ibid, 3. 7 ibid. 8 Digital infrastructure plays a central role in World Bank, World Development Report 2021: Data for Better Lives (Washington, World Bank, 2021). 9 G de Burca and J Scott (eds), Law and New Governance in the EU and the US (London, Bloomsbury Publishing, 2006).

Two Institutional Paths Toward the Future of Work  45 adult survival rates. Through peer comparison enabled by country rankings, the Bank seeks to induce states to adopt the changes it deems necessary to fix the identified gap, on the theory that ‘measurement spurs demand for policy interventions to build human capital’.10 From there flow proposals to create the necessary ‘fiscal space’ to embark on the associated expenditures, through new property, excise and carbon taxes, the elimination of tax avoidance schemes, and improvements in tax administration. Despite the centrality of technology and the increased emphasis on investments in human capital, there is little that is new when it comes to workplace governance. Instead, WDR 2019 confirms the general approach to labour market regulation set out in the World Development Report 2012: Jobs, the basic elements of which, in turn, can be traced to policy analyses and regulatory interventions directed at industrialised and developing countries dating from the 1990s.11 Passing reference to worker protection and strengthening workers’ voices aside, and except for laws directly discriminating against women,12 WDR 2019 contains virtually no reference to rights at work. At the same time, it continues the longstanding campaign waged by the international economic and financial institutions against ‘rigid’ labour market regulations13 on the theory that, in addition to disadvantaging outsiders, such regulations reduce labour market dynamism and impede the processes of adjustment needed to ensure continuous innovation and productivity gains. Suffice it to say here that no simple connection between labour market institutions and ‘bad’ economic outcomes can be maintained, whether at the empirical, theoretical or normative levels.14 Indeed, the Bank itself has described their effects as modest and mostly redistributive, while observing that either excessive or insufficient ‘intervention’ might impair productivity.15 As labour market policy, moreover, flexibility is hardly self-defining. Flexibility may refer to quite disparate elements of the organisation of work16 and its institutional demands therefore point in different directions. Calls for flexibility emanating from workers, for example concerning time for care, may effectively require forms of labour market regulation.17 Yet if flexibility turns out to be ambiguous and even contradictory as a policy or regulatory directive, everyone also understands the ‘code’ of flexibility. ‘Rigidity’ turns out to be an ideological rather than analytic term, a mode of signalling deviation from some preferred state of affairs.18 And for the Bank, that preferred normative and institutional

10 World Bank, WDR 2019, above n 2, 55–56. 11 OECD, Jobs Report (Paris, OECD, 1994); World Bank, Workers in an Integrating World, World Development Report 1995 (Washington, World Bank, 1995); K Rittich, ‘Global Labour Policy as Social Policy’ (2008) 14 Canadian Labour and Employment Law Journal 227. 12 World Bank, WDR 2019, above n 2, 77–78. 13 The best artefact of this commitment is arguably the ‘Employing Workers’ indicator in the Bank’s recently disbanded flagship Doing Business project which (favourably) ranked states according to variables such as the ease of hiring and firing workers. 14 S Deakin and F Wilkinson, The Law of the Labour Market: Industrialisation, Employment and Legal Evolution, (Oxford, Oxford University Press, 2005). 15 World Bank, World Development Report 2012: Jobs, 258. 16 S Fredman, ‘Precarious Norms for Precarious Workers’ in J Fudge and R Owens (eds), Precarious Work, Women, and the New Economy (Oxford, Hart, 2006). 17 J Conaghan and K Rittich, Labour Law, Work and Family: Critical and Comparative Perspectives (Oxford, Oxford University Press, 2005). 18 The parallel argument in respect of market ‘intervention’ is found in F Olsen, ‘The Family and the Market: A Study of Ideology and Legal Reform’ (1983) 96 Harvard Law Review 1497.

46  Kerry Rittich state has long been clear: it is one which reposes substantial, if not unfettered, control over the disposition of labour in those who employ their services. What WDR 2019 does newly elaborate is a series of propositions about the interconnections between technology, informality and labour market regulation. On the Bank’s reading, these interconnections not only strengthen the case against the use of labour market regulation to address problems at work; they ‘raise questions about the relevance of current labour laws’ tout court.19 Due to the association of informal labour with low productivity, the Bank remains preoccupied with the formalisation of work, particularly as levels of informality in developing countries have not budged even in the face of technological progress.20 But formalisation does not imply any change of attitude towards labour market institutions. In the Bank’s view, it makes little sense to craft a reform agenda that rests on employment regulation, especially as technology and the associated rise of gig work increasingly blur the distinction between formal and informal work.21 Second, the Bank maintains that labour market regulation is itself an important cause of informality, as worker protections induce both workers and employers to remain informal to avoid regulatory costs.22 Finally, an automation/innovation trade-off militates against regulation: if ‘in response to automation, employment in old sectors declines [while] in response to innovation, new sectors or tasks emerge’23 ‘regulating’ innovation is likely to cost jobs, while informality could rise due to ‘distorting’ labour market regulations.24 Following de Soto, the worker-friendly answer is therefore to ease the path of start-ups by eliminating, or precluding, regulatory barriers to entry.25 The case for expanded employment protections decisively disposed of, the policy focus then shifts to the merits of social protection schemes, such as a universal basic income, that might provide workers security from economic risk.26 From the standpoint of labour law, perhaps what is most noteworthy is the clear call to delink protection from economic risk for workers from the labour contract and shift it either downward to the individual and/or upward to the state.27

III.  The View from the ILO The aspirations informing the Centenary Declaration and the Commission Report bear a family resemblance to those animating WDR 2019, at least at the first level. Sustainable enterprises are identified as ‘generators of employment and promotors of innovative and decent work’. In a nod to prevailing international governance norms, the private sector,

19 World Bank, World Development Report, 27. 20 World Bank, WDR 2019, above n 2, 26. 21 ibid, 26–27. 22 G Perry, W Maloney, O Arias, P Fajnzylber, A Mason and J Saavedra-Chanduvi, Informality: Exit and Exclusion (Washington, DC, World Bank, 2007). 23 World Bank, WDR 2019, above n 2, 28. 24 ibid, 31. 25 H de Soto, The Other Path: The Economic Answer to Terrorism (New York, Basic Books, 2002). 26 World Bank, WDR 2019, above n 2, chap. 6. 27 ibid, 117.

Two Institutional Paths Toward the Future of Work  47 as the ‘principal source of employment and job creation’, is said to require an ‘enabling environment for entrepreneurship’ – here, to generate ‘decent work, productive employment, and improved living standards for all’.28 Here, too, technology and innovation are the engines of transformative change – along with demographic shifts and environmental and climate change. For the ILO, however, the central task is positioning technology to advance decent work, both through high-quality physical, digital and social infrastructures, including public services,29 and by regulating the processes of algorithmic management, surveillance and control through a ‘human in command’ approach to technology.30 As with the Bank, skill acquisition is a central focus. But it is imagined as a joint enterprise of the social partners, requiring resources for training from employers as well as the state.31 And rather than merely a process of (human) capital accumulation in aid of (more) productive work, for the ILO skill acquisition is framed in terms of human capabilities: the key question is peoples’ capacity to benefit from the use of their skill at work.32 Thus, beyond convergences on key topics and developments, it is not difficult to detect significant institutional differences in focus and emphasis. Framing the ILO’s analysis as a whole are the longstanding goals of advancing decent work and social justice. The centrality of these objectives shifts the analysis undertaken by the Bank at a fundamental level, inverting the focus from the adequacy of workers’ contributions or ‘inputs’ to productive activity to the ‘outputs’ or consequences of production for workers themselves. As countless analysts and reports have now documented, lifetime employment has met its demise as the normative basis of decent work. What to do following the rise of flexible forms of work and in the face of the sheer dynamism and instability of the labour market is the point at which divergences in approach become most visible. The Bank has a strategy to address these challenges focused on the individual, one in which workers all ‘up their game’ at the level of skill and responsiveness to position themselves as winners in a demanding labour market. The ILO, by contrast, envisions active management of labour market processes, through strategies such as lifelong learning and reconfigured forms of social protection that extend to informal workers – as well, of course, as the promotion of rights and protections at work that have formed such a large part of the ILO’s historic contribution to better work. The ILO is also more attentive to the distinct challenges faced by groups of workers such as young people, aging workers, and women. For example, given the instability of work relations, a central preoccupation is the matter of transitions – into, out of and between jobs. While the Bank subsumes any such issues under the human capital project – ensuring that workers have the cognitive capacities as well as the willingness to adapt to new jobs and tasks – the ILO proposes strategies to assist in the acquisition of jobs, especially for young people, and to ameliorate the losses to workers that inevitably accrue through the destruction of jobs and industries. For the ILO, micro and mid-size firms as well as cooperatives warrant support in the quest for jobs, not merely globally linked firms. And in recognition that agricultural labour



28 ILO,

ILO Centenary Declaration, above n 1. Commission on the Future of Work, above n 3, 48. 30 ibid, 43, 50. 31 ibid. 32 ILO, ILO Centenary Declaration, above n 1, para IIIA. 29 Global

48  Kerry Rittich is here to stay, the Commission Report proposes that the subsistence work that still dominates some economies in the Global South, along with the lives of their workers, be directly targeted for support and upgrading, for example through access to credit and forward and backward linkages within sectors and industries.33 Contrast this vision, in which such workers combine subsistence with cash-based work, often within tiny firms, with one that seeks merely the displacement of such ‘unproductive’ forms of labour by new forms of technologically sophisticated work. Perhaps the most striking divergence of emphasis comes at the level of labour market institutions and protections for workers. Notwithstanding the considerable space allocated to topics such as economic growth, entrepreneurship, skills and job creation, the Centenary Declaration is replete with references to norms, principles and rights at work, all of which are missing in WDR 2019, and which are positioned as key elements of the attainment of inclusive and sustainable growth. The centerpiece of the Commission Report is the call for a Universal Labour Guarantee that builds on the core rights set out in the 1998 Declaration on Fundamental Principles and Rights at Work to include an adequate minimum wage, limits on working hours, and safe and healthy workplaces. Informal labour remains a target for the ILO, due to the association between informality and poor terms and conditions of work – but in contrast to the Bank, the goal is to extend labour rights and protections to informal workers rather than eliminate regulatory barriers to entrepreneurial activity. Finally, despite the endorsement of an ‘enabling environment’ for private sector activity, the Commission Report flags the current misalignment between business and financial incentives and the human-centred agenda it seeks to advance.34 Broadening the agenda for transformation, it proposes indicators in the areas of equality and environmental sustainability to supplement the Gross Domestic Product, which it describes as an ‘incomplete yardstick of value creation’ and a ‘deficient indicator of policy success’.35 How far to go through this now-open door beyond market measures of gain and loss turns out to be a critical issue for the future of work.

IV.  Labour Beyond the Market The Bank remains sanguine about the prospects for workers, as long as law and policy are organised to respond to the demands of dynamic, technologically innovative production in the way it imagines appropriate. The ILO insists on the need to directly shape workplace norms and institutions to ensure that, rather than merely intensifying the degree of control to which workers are already subject, technology operates in the service of broadly shared productivity gains. In light of the growing disconnect between productivity and income and other gains for workers,36 a major challenge is to chart pathways that are less tethered to the objective of economic growth alone and more responsive to worker concerns around economic security



33 Global

Commission on the Future of Work, above n 3, 47. 49. 35 ibid, 50. 36 B Milanovic, Capitalism Alone (Cambridge, MA, Harvard University Press, 2019). 34 ibid,

Two Institutional Paths Toward the Future of Work  49 and equality and distributive justice. Although the ILO is alive to this challenge, both institutional visions of work are largely defined by the possibilities – and the limits – of the market. For the Bank, this focus is axiomatic. Despite the aim to extend labour protections to ‘all workers, regardless of their contractual arrangement or employment status’,37 for the ILO the relevant work remains market work as well. Market work is only part of the world of work, however, and significant amounts of unpaid work are a normal part of the lives of many who work inside the market as well as those who work outside. A related challenge, then, is to devise frameworks and agendas that are (more) directly responsive to the circumstances of informal workers and those who perform unpaid, subsistence and incompletely commodified work. This is critical to visions of social justice in the Global South, where informal and subsistence labour occupy much of the world of work; it is also central to aspirations to gender equality, as work across and beyond the boundary of the market overlaps significantly, albeit not exclusively, with the labour performed by women. A convenient way into these challenges is with the conundrums around unpaid domestic work. The widespread participation of women within paid work has been normalised for more than a generation both within and beyond the industrialised world. Nonetheless, the feminisation of labour represents something of an unfinished revolution.38 A central reason, long and fully analysed, can be briefly stated: the allocation of unpaid work remains distinctly unbalanced; women continue to do (a lot) more of it.39 Whatever the benefits of increased access to markets and employment for women – something that cannot simply be presumed, given the terms of work often on offer – when calculated in terms of total labour, leisure and resources, the overall deal looks quite different – and distinctly less appealing – once unpaid domestic work is brought into the equation. The performance of this work, some of which is legally as well as morally nondiscretionary, entails a longer working day, parts of which are (by definition) uncompensated and often not recognised as work at all. Beyond its role in directly sustaining human life and community,40 and despite the subsidy it provides to economic activity through the production and maintenance of the workforce,41 unpaid work also produces distinct disadvantages for women when they perform labour that is compensated. In addition to a general tax on women’s labour market participation,42 among the most routine are fewer job opportunities and limited access to skills training, along with constrained mobility, lateral as well as vertical, and lower wages and benefits at work, all of which contribute to systemically lower economic returns and security for women or outright poverty.43

37 Global Commission on the Future of Work, above n 3, 38. 38 G Esping-Andersen, The Incomplete Revolution: Adapting to Women’s New Roles, 1st edn (New York, Polity Press, 2009). 39 International Labour Organization, ILOSTAT, Statistics on Unpaid Work. Available at: www.ilostat.ilo.org/ topics/unpaid-work/. 40 M Mies and V Bennholdt, The Subsistence Perspective: Beyond the Globalised Economy (London, Zed Books, 1999). 41 S James, ‘The Power of Women and the Subversion of Community’ in Sex, Race and Class – The Perspective of Winning: A Selection of Writings, 1952–2011 (PM Press, 2012); see also essays in S Federici, Revolution at Point Zero: Housework, Reproduction, and Feminist Struggle, 2nd edn (PM Press, 2020). 42 I Palmer, ‘Public Finance from a Gender Perspective’ (1995) 23 World Development 1981. 43 J Conaghan and K Rittich, Labour Law, Work and Family, 1st edn (Oxford, Oxford University Press, 2005).

50  Kerry Rittich Some unpaid work is effectively valued in the labour market, as when women and other workers have entitlements to paid leave from employment in conjunction with pregnancy and familial and care obligations. But that valuation does not extend to the work of those whose market labour does not take the form of employment, standard or otherwise. Nor does it touch the vast domain of ‘normal’ care, which, in general, remains beyond the concerns of labour law except where it intersects with paid work. Given the widespread commitment to gender equality at work, the preferred policies when it comes to this remainder are ‘flexibility’ and ‘sharing’, for example through parental leave entitlements only available to fathers.44 In addition, the ILO proposes investments in the care economy, which it sees as a potential source of millions of jobs.45 The Bank, too, endorses the commodification of care, while arguing that women’s participation in the market itself can be expected to reallocate responsibilities for unpaid work.46 Yet paid care work is notoriously poor work, its degraded status within the labour market inseparable from the long histories and patterns of feminised and racialised care provision.47 When care enters the market, it comes infused with a surfeit of affect as a ‘labour of love,48 impressed with expectations and obligations that exceed anything contained within the labour contract itself. Familial relations are, in any event, poorly captured through the lens of altruism alone. However present the elements of cooperation and sharing, the household is pervaded with conflict and bargaining among its members as well.49 Predictions and even inducements to the contrary, the gendered allocation of unpaid work remains notably sticky, as the recent pandemic experience confirms. The consequences can be dire when ‘normal’ work and care arrangements, including school, are disrupted. Despite unprecedented amounts of fiscal support to households and businesses, across multiple jurisdictions women were effectively compelled to reduce working time or, at the limit, leave the labour force entirely, while others, typically poor and often racialised, continued to work at great cost, to themselves and their families, their health, and sometimes their lives. Bargaining power inside the household is inextricably connected to access to resources and economic opportunities outside,50 while women’s labour market options remain marked, if not structured, by a range of social norms, including those concerning family care obligations. Thus, any diagnosis of gender equality at work immediately implicates questions of household labour, while the intrahousehold position of women, will, in turn,

44 Global Commission on the Future of Work, above n 3. 45 ibid, 46. 46 A Mason and E King, Engendering Development Through Gender Equality in Rights, Resources, and Voice (Washington DC, World Bank Group, 2002); Kerry Rittich, ‘Engendering Development/Marketing Equality’ (2003) 67 Albany Law Review 575. 47 A Blackett, Everyday Transgressions: Domestic Workers’ Transnational Challenge to International Labor Law (Cornell, ILR Press, 2019); E Nakano-Glenn, Forced to Care: Coercion and Caregiving in America (Cambridge, MA, Harvard University Press, 2010). 48 G Winant, The Next Shift: The Fall of Industry and the Rise of Health Care in Rust Belt America (Cambridge, MA, Harvard University Press, 2021). 49 A Sen, ‘Gender and Cooperative Conflicts’ in I Tinker (ed), Persistent Inequalities: Women and World Development (Oxford, Oxford University Press, 1990); P Tsoukala, ‘Gary Becker, Legal Feminism, and the Costs of Moralizing Care’ (2007) 16:2 Columbia Journal of Gender and Law, doi.org/10.7916/cjgl.v16i2.2542. 50 B Agarwal, ‘“Bargaining” and Gender Relations: Within and Beyond the Household’ (1997) 3 Feminist Economics 1.

Two Institutional Paths Toward the Future of Work  51 depend on the allocation of resources and opportunities in the (external) world of work. These deep interconnections suggest why no project that aspires to crack the enduring problem of gender inequality at work can hope to succeed as long as labour within the household is placed beyond its remit. The ubiquitous language of work/life ‘balance’ found in the WDR 201951 and the Commission Report, reflects the enduring differentiation of unpaid care from ‘real’ work. It also both reveals and obscures the objective that typically governs when unpaid work collides with market work: ensuring that the total workload doesn’t tip – or tip workers – over, whatever the cost to the workers involved. Why this should be the objective is a question that remains not only unanswered but unasked. Missing is the frank recognition that as work, care obligations necessarily limit the capacity to do other work. Here lies one of the fundamental problems with all market-centred visions of the future of work: even assuming that greater ‘time sovereignty’ for workers is achieved as the Commission proposes,52 labour markets designed to foster ever more responsive, ‘productive’ engagement with the demands of competitive markets – that is to say, the labour markets that international institutions now both recognise and accept as the future of work – will, absent substantial countervailing forces, systematically disadvantage those who face significant demands on their time and labour from elsewhere and systematically advantage those who are free of them. The only way such a future can be reconciled with the aims of social justice at work is by a commitment to unseeing unpaid labour as work. Calls for the recognition, measurement and valuation of unpaid work have long been a subject of feminist analysis and advocacy.53 Because unpaid work is not priced in the market, we have no settled means (yet) by which to assess its value.54 As a result, and as with other uncommodified resources, unpaid labour is treated as both ‘free’ and effectively limitless.55 The case for attending to unpaid work – its costs and risks, as well as its benefits and immunities – extends well beyond its connections to racial and gender justice. Subsistence workers, by definition, are mainly, if not exclusively, engaged in unpaid work, and many informal and low-wage workers have working lives that encompass significant amounts of non-market labour; thus, no labour law project can leave the question of unpaid work aside without excluding much of the work actually performed in the Global South. Even if such workers are candidates for waged labour as the ILO and the Bank both imagine, it would be difficult to assess the predicaments they might face or what they stand to lose or gain in their new work arrangements as long as unpaid labour remains out of the calculus.

51 World Bank, WDR 2019, above n 2, 126. 52 Global Commission on the Future of Work, above n 3, 40. 53 For a review of the literature, see L Beneria, ‘Paid and Unpaid Labor: Meanings and Debates’ in L Beneria, G Berik and M Floro (eds) Gender, Development and Economics: Economics as if All People Mattered, 2nd edn (Abingdon, Routledge, 2015). 54 M Waring, If Women Counted: A New Feminist Economics (New York, Harper Collins, 1990). 55 D Elson, ‘From Survival Strategies to Transformation Strategies: Women’s Needs and Structural Adjustment’ in L Beneria and S Feldman (eds), Unequal Burdens: Economic Crises, Persistent Poverty, and Women’s Work (Boulder, Colorado, Westview Press, 1992).

52  Kerry Rittich Simply determining when such workers are engaged in market activity may be a challenge; conceptual distinctions between ‘productive’ versus ‘unproductive’ or ‘reproductive’ work are already difficult – even unworkable – in rural areas where domestic and agricultural tasks are inevitably intermingled.56 Even if such distinctions could be made on a purely analytical rather than an arbitrary or ideological basis, the aspiration to include ‘all workers’, informal and rural workers among them, within labour law militates in the direction of a more capacious definition of work as well. Here, it is useful to notice the other side of the equation: unpaid work produces a raft of benefits or positive externalities well beyond the immediate recipients in the family, household and community; thus, its analysis is fundamental to understanding the flows of resources and the distribution of income within and across economies as a whole. Even if we know something about its sources and costs, we haven’t yet tracked where all of the benefits of this labour end up. Despite important historical analysis and studies in fields ranging from political and social theory to feminism, development economics and racial capitalism, we fully understand neither the contributions of non-market labour to profit and economic growth nor the mechanisms, legal and otherwise, involved in the (re)construction and (re)valuation of work relations as economies modernise and industrialise. Yet this reconstruction of work in the service of development and globalised markets, whether forced, induced, chosen or some combination of the above, is neither a marginal issue nor a question of merely historical interest; to the contrary, it is increasingly inseparable from the objectives of equality and distributive justice now flagged by the ILO and other international institutions. Recognising the need for a more holistic view of work, one that includes the provision of goods and services for consumption and own use,57 the Commission Report proposes the development of indicators on unpaid work as well as other measures to calculate the ‘equity and distributive dimensions of economic growth’.58 Yet time use surveys establishing deep gender disparities in the performance of unpaid work have long been available; so have statistics registering the imputed value of such labour to national economies as a whole.59 At this point, the challenge goes beyond measurement: the task is rather to make the valuation of non-tradeable goods and services part of the figures that ‘matter’, both in the private calculations of profit and loss and in the determinations of macroeconomic activity that form the basis of monetary, fiscal, trade, social and other public policies. If such data are isolated in satellite accounts where they now typically reside, not only will the picture of work remain incomplete: the risk is that unpaid work will remain substantially disconnected from labour market institutions and dynamics at the diagnostic as well as programmatic levels. Unless the possibilities of labour law are to be delimited, in advance and against its transformative ambition, unpaid work must find its way into the centre of debates on the future of work.

56 Beneria, above n 53. See also McHugh-Russell, Chapter 30 in this volume. 57 International Labour Organization, ILOSTAT, Statistics on Unpaid Work. Available at: www.ilostat.ilo.org/ topics/unpaid-work/. 58 Global Commission on the Future of Work, above n 3, 50. 59 Waring, above n 52; D Ironmonger, ‘Counting outputs, capital inputs, and caring labor: Estimating gross household product’ (1996) 2 Feminist Economics 37.

Two Institutional Paths Toward the Future of Work  53

V. Conclusion The general issue is this: enduring distinctions, conceptual, statistical, legal and programmatic, between market and non-market economies will continue to obscure the nature, value, and the exhaustibility of resources and labour that do not trade, as well as their connection and contribution to those that do. This is precisely the sort of incomplete accounting and analysis that we need to move beyond, not only to grapple with the complex and far-reaching questions of social and distributive justice that are recognizably part of the future of work, but also to gain better purchase on objectives that now intersect and overlap with that agenda, among them sustainable development and just transitions in a world of limited growth.

54

5 International Axiologies for Social Justice at the International Labour Organization Value-based Perspectives and Ways Forward JORDI AGUSTÍ-PANAREDA1

‘He then addressed a recurring question of terminology surrounding the distinction between values, principles and rights. He remarked that those terms were already used in various international texts with differing connotations, and that many of the terms in the draft Declaration brought with them the problems that their usage could involve. What was important was to use the terms in a coherent and consistent way within the framework of the Declaration text. Thus, as for “values”, the intention had been to refer to concepts of moral order which were widely shared, of which three examples were in the Constitution and Declaration of Philadelphia: freedom, equality of opportunity, and solidarity. “Principles” could be viewed as the translation or manifestation of those values into action in a concrete context: for example, the principle of freedom of association was a concrete manifestation of freedom. Finally, the concept of “rights” constituted an active acknowledgment in law, of the principles’.2

I.  Drawing from Maupain’s Axiological Commitment to the ILO Values – a less pompous way to refer to the normative heart of the axiological domain– can be simply understood as what inspires and motivates action. From its first quote this chapter renders homage to the values and actions reflected in the career of Francis Maupain, who continues to be, well beyond his retirement, committed to the ILO and its axiological mission to advance social justice globally. Among other facets, as a consensus facilitator, institutional architect and brilliant creative legal mind.3 The choice of approach for this 1 The author would like to thank the editors, Francis Maupain, Karen Curtis, Claire La Hovary and Xavier Beaudonnet for their thoughtful review and comments. The views expressed herein are the author’s and do not necessarily represent those of the ILO. 2 Intervention of Francis Maupain, Special Advisor, discussion of the FPRW Declaration. ILC, 86th Session, Report of the Committee on the Declaration of Principles, para 73. Copyright © International Labour Organization 1998. 3 See, eg, F Maupain, ‘Gardien du patrimoine ou inventeur juridique?’ in United Nations (ed), Collection of Essays by Legal Advisers (New York, UN, 1999) 259–84.

56  Jordi Agustí-Panareda chapter thus seemed obvious: to highlight the axiological dimension of the ILO’s universal promotion of international labour standards (ILS); and, drawing from Maupain’s work, to reflect on value-based ways forward as the Organization moves into its second century.4 An axiological perspective also allows for a fresh qualitative take on the organization’s normative corpus. The aim is to focus on the salient elements of the ILO’s institutional and axiological architecture that can ensure the system’s continued relevance in a constantly changing world of work, highlight the potential offered by its structure and sketch directions to explore further. In this way, the Organization may provide a suitable and adaptable framework for the development of social justice axiologies through normative instruments fully adapted the realities and needs of their times. The essay thus approaches the ILO and its standards-setting and supervisory machinery through an axiological lens, noting how a value-based perspective may provide a useful standpoint to address current debates and to promote the Organization’s mandate into the future.

II.  Core Traits of ILO Axiologies and their Significance A.  An Abstract to Concrete Materialisation of Social Justice As quoted above, Maupain sketched out the core elements of the ILO axiological field, from abstract to concrete – as often is the case for normative systems: general values (eg, freedom); more specific yet still broad values embodied in principles (eg, freedom of association); and, giving effect to the latter, concrete rights and obligations (eg, as crystallised in Conventions, discussed and adopted in the International Labour Conference (ILC) on a tripartite basis. At the ILO these may, in turn, be accompanied by Recommendations and other ‘soft law’ instruments, providing more detailed guidance (eg, a code of practice adopted by an international meeting of experts).5 In this axiological system, as recalled by another fundamental ILO Declaration to which Maupain was also a key contributor – the 2008 Social Justice Declaration – and as enshrined in the first sentence of the Preamble to the ILO Constitution, the promotion of social justice, as a precondition to lasting peace, lies at the pinnacle – a primordial overarching value beyond the discursive shape it may adopt at a given historical moment.6 Another overarching constitutional principle concerning the mandate of the Organization lies in its call to channel a human voice or conscience into the international system, focusing on labour as the human dimension of the economy – as eloquently and ambitiously called for in the Declaration of Philadelphia – and recently recalled through the human-centred approach of the ILO’s Centenary Declaration.7

4 Axiology, which covers the study of values and value judgements, is used in this chapter to focus on the ILO as an organisation crystallising, codifying and promoting social justice values and their transposition into ILS. 5 This productive abstract to concrete axiological dynamic is brilliantly embodied in the structure of the Maritime Labour Convention, 2006 (MLC) through Articles, which set broad principles and obligations, c­ omplemented by Regulations and detailed through a Code. 6 The notion of ‘decent work’ provides a recent example of a discursive adaptation or repackaging of social justice. 7 See para C, section II of the Declaration of Philadelphia (1944), later incorporated as an Annex to the Constitution.

International Axiologies for Social Justice at the International Labour Organization  57

B.  A Content-Rich and Malleable Articulation A clear illustration of the interplay between broader principles and their articulation through ILS is provided by the field of freedom of association and collective bargaining. It took the ILO a few decades to garner the consensus to develop and codify these constitutional principles into ILS, in particular through the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No 98). Moreover, the values they embodied were deemed of such high importance that their implementation was not left dependent on the choice of ratification by member States. Therefore, the ILO, through its Governing Body (GB) and in coordination with the United Nations Economic and Social Council, adopted Special procedures for the examination in the ILO of complaints alleging violations of freedom of association.8 Thus was born, in 1951, the Committee on Freedom of Association (CFA), swiftly evolving from antechamber to examine the possibility of inviting the GB to consider fact finding and conciliation commissions to fully-fledged standing supervisory body.9 Grounding it on constitutional principles, creative legal minds skilfully leveraged the abstract to concrete axiological interplay to allow for the examination of concrete cases, independent of ratification of the freedom of association and collective bargaining Conventions.10 Throughout its over 70 years of history the CFA has therefore been able to provide insightful recommendations on freedom of association and collective bargaining matters to all ILO Member States. Furthermore, to ensure axiological coherence and the authority of the ILC as the supreme ILO tripartite body, the CFA can and has examined such cases in light of the provisions of the relevant ILS,11 while retaining the possibility of further developing them.12 The success of the CFA’s work also attests to another crucial aspect of ILO axiologies. The abstract nature of principles does not mean that they are vacuous notions.13 Principles are not empty of content but set out the axiological domains that cement consensus, while their concretisation through ILS and their application in practice provide more specific responses to the needs of the times. This axiological link, also emphasised in the text of the 1998 Declaration, is one of the central arguments invoked by Maupain to counter those who misjudged the fundamental principles and rights at work (FPRW) category as an obscure

8 On the origins, evolution, composition and procedure of the CFA, see, eg, A Odero and M M Travieso, ‘Le Comité de la liberté syndicale’, in Les normes internationales du travail (Geneva, ILO, 2004). 9 While the ILO has only had six reports of conciliation and fact-finding commissions, the CFA has considered over 3,400 cases through close to 400 reports, available online. See Compilation of decisions of the CFA. 10 See CW Jenks, The International Protection of Freedom of Association for Trade Union Purposes (Leiden, W. Sijthoff, 1955); and N Valticos, Les méthodes de la protection internationale de la liberté syndicale (Leiden, W. Sijthoff, 1975). 11 Similarly, this is the case whether or not the State has ratified the Convention concerned – see, eg, case nos 102 (South Africa, 1955, paras 88–89), 169 (Turkey, 1958, para 285) or 191 (Sudan, 1961, para 71). 12 Thus, in 1953, the Director General informed the Governing Body that the Office (the Secretariat) would not provide informal interpretations on Conventions Nos 87 and 98 ‘owing to the existence of a special procedure laid down by the GB for dealing with complaints concerning alleged infringements of freedom of association’ (see GB.122/14/6 and GB.122/PV p. 110). 13 On the obligation to respect the principles laid out in the Constitution, see N Valticos, Droit international du travail (Paris, Dalloz, 1983).

58  Jordi Agustí-Panareda formula lacking connection with the black letter of ILS and the comments of the supervisory bodies.14 Such connection is clearly stated in the mandate of the CFA, as approved by the GB, which links the principles to how the ILC codified them into ILS.15 The abstract to concrete content-rich articulation also entails that principles are broader and more malleable and that the black letter of ILS does not exhaust their scope or content. Furthermore, the work of the CFA also attests to another fundamental aspect of the axiological articulation: its aim is to be able to provide concrete guidance. Caution thus needs to be exercised to avoid the reverse trend of falling back into or stopping at abstract values and principles, giving up on the crucial effort of transposing them into specific norms, institutions and practices.

C. Adaptability To pursue the ambitious social justice mandate adequately, the implementing values and, in particular, the axiological content set out in instruments that gives them specificity to guide action (eg, Conventions, Recommendations, etc), need to be able to evolve – with new instruments or revised/abrogated ones. Such adaptability is key to the Organization’s ability to contribute to the ever-changing social, economic, cultural and political realities that ILS seek to address. The logic of abstract to concrete also means that the consolidation of and changes to broader values – the bedrock of consensus – naturally requires much longer and arduous processes – with the corresponding legal and procedural guarantees – to ensure that they reflect the amplest long-term agreement (eg, the evolution from the initial declaration of general principles in Article 427 of Part XIII of the Treaty of Versailles to the mandate statement in the Declaration of Philadelphia was codified through a constitutional amendment). Similarly, it is much simpler to revise a code of practice than a Convention. Aware that constitutional amendments may take a long and often uncertain time to come to life, Maupain provided solid and creative legal advice to navigate the structure of the axiological field when the ILO was confronted with the need to give a clear value-based message to the complex dynamics and challenges brought by globalisation. He rooted the Organization’s principled message in values and principles already embodied in the ILO Constitution, leading to a both novel yet firmly grounded malleable axiological category: fundamental principles and rights at work, as enshrined in the 1998 Declaration,16 and

14 See, eg, F Maupain, ‘Revitalization not Retreat’ (2005) 16 European Journal of International Law 439–65 in response to P Alston, ‘Core Labour Standards and the Transformation of the International Labour Rights Regime’ (2004) 15 European Journal of International Law, 457–521. In his reply Alston (who claimed that the use of the term ‘principles’ created an ‘extraordinarily opaque formula’ and raised concerns that ‘the principles are statements whose normative content has been liberated or unhinged from the anchor of the ILO’s painstakingly constructed jurisprudence in relation to these rights’ (494)), Maupain argued that ‘there is no danger that the principles and their content be liberated from the “anchor” of the relevant conventions and “painstakingly constructed jurisprudence” in relation to these rights for the simple reason that they are the anchors’ (449–51). 15 As approved by the GB (last when adopting its Compendium of Rules – GB.306/10/1(Rev.)), the mandate of the CFA ‘consists in determining whether any given legislation or practice complies with the principles of freedom of association and collective bargaining laid down in the relevant Conventions’ (para 14 of the Special procedures). 16 See K Tapiola, The Teeth of the ILO (Geneva, ILO, 2018).

International Axiologies for Social Justice at the International Labour Organization  59 which also reflects the Organization’s longstanding approach to its Constitution as a living instrument.17 The success of this axiological notion and the consensus it harnessed have been so remarkable that, almost a quarter of a century later, FPRW as core enabling values set out in this Declaration remain by far the prevailing reference to ILO values and standards in international trade and investment agreements.18

D.  Flexibility and Updatability Two elements of the ILO’s axiological adaptability worth singling out are the flexibility and updatability of ILS. The former includes flexibility as to substantive provisions (including substantive equivalence in the case of the MLC), choice of means and methods of application, or possible exclusions or modulations on the level of protection to facilitate ratification.19 Conventions are thus oftentimes endowed with varying degrees of flexibility, which does not need to compromise the provision of concrete guidance – often further detailed through Recommendations. In this regard, another most notable ILO official and key figure in the study and development of ILS, Nicolas Valticos, argued that ‘the flexibility of standards is the price of their universality’ noting that ‘if standards have to be universal, and therefore applicable to States whose level of development and legal approaches differ considerably from one another, the only realistic approach is to develop standards with sufficient flexibility so that they can be adapted to the most diverse of countries’.20 Flexibility in the ILO axiological system is coupled with the review and revision of standards, leading to their evolution.21 In recent years the ILO drafting practice has embraced more sophisticated and less cumbersome revision mechanisms, facilitating their regular updating by constituents – a paramount example being provided by the MLC and the review and revision mechanisms it affords, in particular through a Special Tripartite Committee.22 Also worth highlighting as a recent development in this regard, in addition to preceding exercises to review ILS such as the work of the Cartier Working Party, is the establishment in 2011 of a Standards Review Mechanism (SRM) with a mandate to review ILO standards through a tripartite working group meeting once a year since 2016. In this respect, another key contribution of Maupain to the robustness and health of the ILO treaty system as Legal Advisor is the 1997 amendment to the ILO Constitution which, navigating the rules of international law to allow the Organization to clean up its axiological arsenal,

17 Another remarkable ILO official and Director-General, C Wilfred Jenks, provided invaluable contributions to such living malleable approach – eg, as developed in his 1945 Memorandum (ILO Official Bulletin XXVII, pp 114–45). 18 As of late 2019, 69.8 per cent of trade agreements with labour provisions referred to the 1998 FPRW Declaration. See ILO, Labour Provisions in G7 Trade Agreements (Geneva, ILO, 2019). 19 See Manual for Drafting ILO Instruments (Geneva, ILO, 2006), section 2.3. 20 N Valticos, ‘Conventions de l’Organisation internationale du Travail à la croisée des anniversaires’ (1996) 100 Revue générale de droit international public, 36. See also GB.244/SC/3/3 and G Politakis, ‘Deconstructing flexibility in International Labour Conventions’ in Les normes internationales du travail (Geneva, ILO, 2004). 21 Even the content of fundamental rights, as codified in Conventions, may be subject to revision – the latest example being provided by the 2014 Protocol to the Forced Labour Convention. 22 See D LeClercq, ‘Sea Change: New Rulemaking Procedures at the ILO’ (2015) 22 ILSA Journal of International and Comparative Law 1.

60  Jordi Agustí-Panareda enables the SRM today to propose to the GB and the ILC the abrogation of out-of-date ILS.23 Furthermore, the updatability is not limited to Conventions and Recommendations but also to other axiological statements stemming from the ILC. The FPRW Declaration was thus intelligently drafted to leave open the door to the incorporation of other FPRW in the future. This permitted the ILC to expand this catalogue in 2022 by including ‘a safe and healthy working environment’ in such list of core values.24

E.  Constituent Engagement and Dialogical Methodology, Coupled with Independent Expert Elements A central aspect of the ILO axiological system is the engagement of its tripartite constituency. The ILO governance bodies are made up of representatives from governments, workers and employers. The representatives of constituents not only discuss and adopt ILS and other instruments at the ILC, but also consider their review, most recently through the SRM tripartite working group, and participate directly in several ILO supervisory mechanisms – alongside independent expert bodies.25 The general nature of ILS, as well as the flexibility mechanisms in numerous Conventions, oftentimes entails the involvement of constituents at the national level – chiefly through consultations taking place in the framework of national tripartite committees set up in line with the Tripartite Consultation Convention (International Labour Standards) Convention 1976 (No. 144). These tripartite consultations may determine not only how to exercise flexibility or the concrete nature of implementation measures, but also how to report thereon to the ILO supervisory bodies.26 Constituent engagement is linked to the ILO’s axiological methodology: social dialogue. Constituents are thus often called to participate in transforming the general formulations set out in ILS into more concrete regulations and frameworks through social dialogue at the national level. Such dialogical methodology enables the ILO to adapt and respond to the needs of different State contexts.27 This partisan involvement in standard setting and supervision is balanced in the ILO’s axiological system by the existence of expert independent

23 The Constitutional amendment of 1997, which entered into force on 8 October 2015, allows the ILC to abrogate a Convention in force if it appears that it has lost its purpose or that it no longer makes a useful contribution to attaining the objectives of the Organization. 24 See Resolution on the inclusion of a safe and healthy working environment in the ILO’s framework of fundamental principles and rights at work. ILC, 110th Session (10 June 2022). 25 In particular, constituents participate through a special ILC committee (the Committee on the Application of Standards – CAS) that selects every year, for discussion and the issuance of pertinent recommendations, a group of country cases concerning the application of ratified Conventions, as well as through their participation in mechanisms handling representations under the procedure set out in Arts 24 and 25 of the ILO Constitution, which also involves examination of the application of ratified Conventions. 26 Consultation clauses are those very common in ILS, typically requiring States to consult employers’ and workers’ organisations when implementing their provisions. See Manual for drafting ILO instruments, above n 19, section 2.2.2. 27 The relevance and pertinence of the ILO axiological system is thus linked to the capacity of constituent representatives to channel the voices of workers and employers of the world. On the complexity of such task see, eg, C La Hovary ‘A Challenging Ménage à Trois? Tripartism in the ILO’ (2015) 12 International Organizations Law Review 204–36.

International Axiologies for Social Justice at the International Labour Organization  61 elements and mechanisms, whose complementary relevance is epitomised by Maupain’s myriad contributions to the Organization.28

III.  Looking Ahead to Harness the Potential of ILO Axiologies The ILO has fortunately never held the illusion of perennial immutable standards and today’s ever-changing world only confirms with urgency the naïve inadequacy of static or rigid value systems.29 As highlighted above, the ILO system is already endowed with structural traits and idiosyncrasies (adaptability, flexibility, constituent participation, dialogical approach, etc.) that can respond to the needs of contemporary dynamic axiologies, and can allow it to address common criticisms levied against rigid universal norms – such as ethnocentric bias,30 having enabled the Organization to remain relevant over the past 100 years. Not resting on the laurels of a self-congratulatory approach, which Maupain has so often warned against,31 and which can mask the model’s deficiencies and struggles in practice, this final section, beyond stressing the need to ensure that the elements noted in the preceding section deliver on their promise, explores ways forward to harness the full potential of these ILO traits in order to promote social justice axiologies for the future. Not able to develop all the myriad aspects involved, it notes two ideas inspired by Maupain’s image-rich creativity and principled contributions: (i) framing current debates through value-based approaches; and (ii) rethinking the standards system as an intelligent, living axiological circle.

A.  From Well-Oiled Machinery to Intelligent Organism: Toward a Virtuous Axiological Circle Since the breakthrough developments of its first decades, the ILO supervisory system has not fundamentally altered its basic architecture. This began with creation of the Committee of Experts on the Application of Conventions and Recommendations (CEACR) and its acceptance of direct observations from social partners on the application of Conventions, and continued with instituting a supervisory body of global reach – the CFA, and their

28 In particular, the CEACR (whose observations are used by the CAS to discuss cases) and Commissions of Inquiry established under Art 26 of the Constitution (the pinnacle of the supervisory system), and the International Labour Office, providing nonpartisan independent expertise. Under Art 9 of the ILO Constitution, ‘the responsibilities of the Director-General and the staff shall be exclusively international in character’ and in the performance of their duties they ‘shall not seek or receive instructions from any government or from any other authority external to the Organization’. 29 On the inadequacy of immutable value systems and elements for the development of dynamic axiologies in creative democracies, see, eg, J Agustí-Cullell, From Programmed to Creative Intelligence (Barcelona, self published, 2021). 30 See, eg, SP Sinha, ‘The Axiology of the International Bill of Human Rights’ (1989) 1 Pace Yearbook of International Law 21. 31 See, eg, F Maupain, ‘The ILO Regular Supervisory System: A Model in Crisis?’ (2013) 10 International Organizations Law Review 117–65.

62  Jordi Agustí-Panareda subsequent evolution and adjustments.32 It has long consisted in the interplay of complaint mechanisms and regular reporting, through expert and tripartite bodies that basically rely on the same technology (today facilitated by electronic communication means): the examination of written (and in some cases oral) submissions by governments and workers’ and employers’ organsations through established procedures, and supplemented by secretariat research and in-country visits. Other complementary tools and resources – eg, novel information and knowledge gathering/processing technologies – could be considered to enrich these procedures and bring the axiological system closer to the constituents on the ground, enable it to process and examine more relevant data, and foster a circular dynamic to learn continuously from the application of ILS. While multiple ILO units and bodies conduct operations and research relevant to ILS, their link to and synergy with the supervisory and standard setting machinery could be optimised further.33 Moreover, the ILO could, for example, invite artificial intelligence researchers and other specialists with expertise in axiological and normative fields to study the supervisory and standards-setting system and suggest additional tools and means. For instance, to facilitate interactive communication with and learning from workers and employers worldwide, and automated continuous gathering of information and feedback on the application of ILS and the national rules transposing them – eg, instruments like general surveys, and other outputs, moving from static snapshots to a more live reflection of reality. Similarly, intelligent data processing and coding tools, among others, could provide a richer and more dynamic picture of the world of work, to strengthen the knowledge base of the system and the relevance of its recommendations, as well as its capacity to learn and adjust. These efforts would require resources, and perhaps additional refocusing of the Organization’s activities into this normative dimension that represents its core – the axiological function being the central role that the Constitution entrusts the Organization. A synergetic normative focusing and expansion of the methodological toolbox could lead to richer interdisciplinary empirical assessments, impact evaluation and guidance by the supervisory bodies. It could broaden access and better monitor the needs of constituents (exploring additional outreach mechanisms to channel their voices, dynamically gathering data directly from the ground on the issues that concern them – such as through well disseminated recurring surveys), as well as identify and gauge obstacles, gaps in instruments, and good practices (eg, systematically integrating the lessons learned from technical cooperation and other activities, and, more broadly, using empirical methodologies to gather data on the impact of the system and the guidance it provides). In turn, such refocusing and expansion could provide precious empirical inputs to the tripartite discussions concerning the setting and updating of ILS, eg, feeding into existing mechanisms such as the SRM, not only on substance but also as to the most suitable normative modalities.34 32 Through multiple and often creative recurring modifications to existing procedures and working methods (eg, changes to the duration of the reporting cycles, introduction of new procedural elements and modifications to composition, standing orders, etc). 33 See, eg, the lessons learned from the coding concerning SDG 8.8.2, whose methodology include as sources the comments of supervisory bodies, could provide valuable feedback to the supervisory bodies – eg, as to effectiveness of communication, coherence, etc – as could the work of the International Conference of Labour Statisticians. 34 This circular approach echoes another of Maupain’s contributions to and initial objectives of the 2008 Social Justice Declaration Follow-up through recurrent discussions. The legal basis for recurring surveys could be Art 19(5)(e) and (6)(d) of the Constitution, which lays the basis for CEACR ‘general surveys’ undertaken on an ad hoc basis as decided by the GB.

International Axiologies for Social Justice at the International Labour Organization  63 For instance, under the principle of subsidiarity, it could assist in determining the most adequate level at which to develop ILS or provide additional axiological content – whether through Conventions or other instruments, national tripartite plans, collective bargaining agreements, etc. The aim would be to shift progressively from the first industrial revolution image and ideal of a well-oiled headquarter-concentrated machinery to that of a more decentralised intelligent organism which, giving effect to universality in context, harnesses the full potential of research and social dialogue at all relevant levels, keeps on learning and intelligently updates its approaches, instruments and guidance. It would seek to bring law-in-books and law-in-action into a continuous dialogue to best promote social justice, retrieving the ILO’s original pioneering role in the international normative system. Perhaps the maritime field alluded to above, already endowed with the most advanced regulatory framework through the MLC (eg, flexibility mechanisms including substantive equivalence, dynamic revision and updating, constituents recurrently engaging in a fluid social dialogue, novel processing of reporting, etc) could provide a field to start testing additional ways forward in the shaping of such ambitious dynamic axiological circle.35

B.  Transforming Positional Debates into Axiological Tripartism Any chapter in honour of Maupain would be remiss if, while looking ahead, it did not acknowledge the importance of consensus-building processes and the role of values, as well as that of an independent secretariat, in facilitating the debates on international axiologies for social justice. An axiological approach calls for values-based and principled exchanges first, rather than reifying partisan positions. However, as the negotiation and mediation literature reminds us, disputes – in particular on divisive issues – risk falling into positional struggles which, when protracted, can derive into deadlocks and, in the case of repeat ­players, entail negative spill-over externalities beyond the matters originally concerned.36 The still-unresolved dispute on the right to strike provides an illustration of the ­complexity and hurdles faced by certain discussions, and the risks of entrenched positions and standstills.37 Beyond the differing positions lie numerous – and oftentimes entangled – values and p ­ rinciples38 and, before considering specific solutions, unpacking the former to seek common axiological ground in light of the mission of the Organization may assist in crafting a way forward. In this regard, tripartite agreement over common principles provided a first important step in the recent round of discussions on the supervisory system, under the Standards

35 Another area that could follow on the MLC’s innovative updatable axiological consolidation, as Maupain already identified when assisting the Director-General in his 1997 report to the ILC, would be that of occupational health and safety. 36 See, eg, M Palmer and S Roberts, Dispute Processes (Cambridge, CUP, 2020). 37 See, eg, Outcome of the Tripartite Meeting on Convention No 87 in relation to the right to strike and the modalities and practices of strike action at national level. See La Hovary and Leclercq, Chapters 15 and 18 in this volume, who explore this dispute further. 38 See, eg, the above-mentioned dispute; these include different approaches to the principles on the interpretation of treaties (such as literal vs teleological interpretation), legal certainty, tripartite ‘ownership’, the application of constitutional provisions, etc.

64  Jordi Agustí-Panareda Initiative, which led to important adjustments adopted subsequently by consensus.39 Under such framework, a recent example of value-based mediation was provided by the discussion on the appointment and renewal of CEACR members. The debate on the matter risked getting entrenched into a positional debate, with some participants fuelled by lack of knowledge or trust in the process, and others fearing that the call for tripartite involvement could potentially encroach on the independence of this supervisory body. A principled approach was facilitated and a consensus outcome reached, promoting at the same time the value of transparency through innovation in the process (eg, widely publicising calls for expression of interest on new vacancies), while protecting and reaffirming the fundamental CEACR values of independent expertise.40 At the ILO, the secretariat is thus called to facilitate an axiological debate and support tripartite decision-making. Claims of partisan engagement dispelled, ILO officials cannot be conceived as activists, but as axiological mediators who, without taking sides, are able to identify the principles underlying discussions and facilitate a value-orientated debate, delivering information on the complex and well-researched technical and axiological issues and providing creative options, so that constituents can reach consensus on the best way to advance the ILO’s social justice mandate. An example of this can be drawn from Maupain’s advisory contributions to facilitate the consensus that enabled preparation and adoption of the 1998 and 2008 ILC Declarations, which included the handling of delicate and divisive questions. With his careful preparation and skilled mediation, along that of other officials and actors supporting the principled contributions of constituent representatives, a valuebased consensus was achieved on the most sensitive subject of the interplay between trade liberalisation and the promotion of fundamental enabling rights at work.41 One can only hope that such skilled position-transcending axiological approach will accompany the ILO into the future.

39 On the common principles guiding the strengthening of the supervisory system adopted by the tripartite GB see GB.329/INS/5, paras 5–11, developed into concrete proposals under GB.331/INS/5, and the resulting decision in GB.334/INS/PV, para 288. 40 See GB.343/LILS/3/Decision. 41 Positing ‘that the violation of fundamental principles and rights at work cannot be invoked or otherwise used as a legitimate comparative advantage and that labour standards should not be used for protectionist trade purposes’ (2008 Social Justice Declaration, para IA(iv)).

6 ‘A Just Share of the Fruits of Progress’: What Does It Mean? K D EWING AND LORD HENDY KC*

I. Introduction In the early days of COVID-19, there was much talk about the need to address ‘the social fabric of our societies’, and ‘the expansion of social programs so we take care of the most vulnerable people’, to enable us in turn ‘to have a world that is better for everyone’.1 To this end, the IMF’s Kristalina Georgieva invoked the memory of Sir William Beveridge’s famous report in 1942 which is said to have been one of the foundations of the modern European welfare state.2 A few months later, in another major speech the EU’s Ursula von der Leyen paid tribute to the Marshall Plan as part of her vision for a post COVID-19 world,3 while in the United Kingdom the then Prime Minister Boris Johnson was quoted as saying that he was following the example of leaders when, in ‘the depths of the Second World War, in 1942, when just about everything had gone wrong, the government sketched out a vision of the postwar new Jerusalem that they wanted to build’.4 What was missing from these discussions – even within trade union circles – was any reference to the ILO Declaration of Philadelphia, despite it being one of the most inspirational twentieth-century legal texts. At the heart of the Declaration is an important obligation of ILO members to implement ‘policies in regard to wages and earnings, hours and other conditions of work calculated to ensure a just share of the fruits of progress to all, and a minimum living wage to all employed and in need of such protection’. Although the opportunity for a great reset appears to have passed, COVID-19 nevertheless compels us to revisit this obligation in light of the impact of the virus, with the greatest sacrifice made typically by the people with the lowest incomes: health and social-care workers, cleaners, food producers, transport workers, shop and hospitality workers.5 Their commitment invites us * Our thanks to the Editors, and to Alan Bogg, Kate Ewing, and Andrew Moretta. 1 K Georgieva, ‘The Great Reset’, Remarks to World Economic Forum, 3 June 2020 (available online). 2 Sir William Beveridge, Social Insurance and Allied Services, Cmd 6404, 1942. 3 U von der Leyen, ‘EU Co-ordinated Action to Combat the Coronavirus Pandemic and its Consequences’, Speech to European Parliament’, 16 September 2020. 4 The Guardian, 6 October 2020. 5 Amongst much literature, see M Marmot et al, Build Back Fairer: The COVID-19 Marmot Review (Institute of Health Equity, London, 2020); W Zwysen et al, ‘Labour Market and Social Developments: Crisis Further Entrenches Inequality’ in N Countouris and R Jagodzinski (eds), Benchmarking Working Europe 2020 (ETUI, Brussels, 2021); J Allen et al, COVID-19 and the Social Determinants of Health and Health Equity: Evidence Brief (WHO, Geneva, 2021).

66  K D Ewing and Lord Hendy KC to consider how work is valued, and to think again about just what is a ‘just share of the fruits of progress’. In considering these questions, we start from the basis that the obligation to ensure that everyone is entitled to wages and earnings such as will guarantee a just share of the fruits of progress is a constitutional obligation, not a slogan; and that since it is an ILO obligation, the ILO has the primary responsibility to define what it means. This is not to deny that it is a responsibility difficult to discharge, informed as it must be not only by contested principles of economic and/or social justice, but also by contested principles in a dynamic political and economic landscape. Nevertheless, so far as we are aware, there is no text prepared by the ILO that begins to address a ‘just share’ as a constitutional obligation or which considers the type of wage system that would be necessary to sustain it. Nor are we aware of any extended discussion of the principle in the ILO literature,6 a most notable omission being the Report of the Global Commission on the Future of Work where it is referred to only twice, without elaboration.7 Our aim in this chapter is thus a modest one of seeking to engage with an important but neglected obligation and to examine in the space available what it might mean, as well as how its development might contribute to the mooted (but now increasingly elusive) postpandemic reset. We do so by suggesting that the guarantee of a ‘just share’ begins with a ‘just process’, and that ‘just outcomes’ must be guided by ‘just principles’, before reflecting on the role of minimum wage obligations. In considering these questions we do so as sympathetic friends of the ILO, mindful of Francis Maupain’s warnings in an important article published in 2005.8 While welcoming the criticisms of the ILO and other international agencies from academics and others, Maupain correctly reminds us of the pitfalls of such criticism: despite the impatience of outsiders, the ILO can move only as quickly as its tripartite stake-holders permit, and only in directions that are likely to have some practical effect.

II.  Ensuring a Just Process A ‘just share of the fruits of progress’ depends first on a just process by which the fruits of progress are to be determined and distributed. In so far as a just share is addressed specifically to ‘policies in regard to wages and earnings, hours and other conditions of work’, a parallel ‘solemn obligation’ in the Declaration of Philadelphia is the duty to further a programme that will achieve: the effective recognition of the right of collective bargaining, the cooperation of management and labour in the continuous improvement of productive efficiency, and the collaboration of workers and employers in the preparation and application of social and economic measures.9

Collective bargaining is not here an ‘enabling right’ as it has subsequently been referred to (a point to which we return).10 It is both means and end. As is implied in the passage immediately

6 A Supiot, The Spirit of Philadelphia: Social Justice vs the Total Market (London, Verso, 2012). 7 ILO Global Commission on the Future of Work, Work for a Brighter Future (Geneva, ILO, 2019). 8 F Maupain, ‘Revitalisation not Retreat: The Real Potential of the 1998 ILO Declaration for the Universal Protection of Workers’ Rights’ (2005) 16 European Journal of International Law 439. 9 ILO Declaration of Philadelphia, Part III(d). 10 ILO Centenary Declaration for the Future of Work, Part II (vi).

‘A Just Share of the Fruits of Progress’: What Does It Mean?  67 above, it is a fundamental principle of economic democracy, part of a broader system of governance in which trade unions and employers should actively be involved, whether formally or informally, ‘in the preparation and application of social and economic measures’. Our understanding of collective bargaining owes much to the work of Allan Flanders who pointed out that: ‘the social value of the institution of collective bargaining, indeed of trade unionism itself, lies in its important contribution to representative self-government in the political and social framework’.11 Flanders saw collective bargaining as a political or legislative process, by which workers through democratic institutions and elected representatives participate in the determination of their wages and other terms and conditions of employment. Collective bargaining nevertheless also has an equally critical economic function, as was emphasised by Alan Fox in a well-known response to Flanders.12 Without entering the merits of that debate, by harnessing the power of workers acting together to improve working conditions, collective bargaining not only raises wages but also has a widely recognised tendency towards the overall equalisation of wages.13 Collective bargaining thus enables workers to secure just outcomes, if we see inequality as an injustice. Yet although the right to bargain collectively is recognized in strong terms by the Declaration of Philadelphia, it is nevertheless surprising that the obligations to guarantee the right should not be more fully developed in later ILO texts. The best we have is ILO Convention 98, which by article 4 not only manages to avoid using the term collective bargaining at all, but in article 4 simply provides in the most insipid manner that: Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.

That said, collective bargaining does not operate in isolation and does not bear the burden of promoting a just share of the fruits of progress on its own. At the time Convention 98 was being drafted, collective bargaining would be but one part of an active political, economic and social policy agenda in which fiscal, monetary and other measures would also be deployed, as indeed is implied by the text of article 4 above. In the post-war period, it may well have been sufficient as a matter of practice for international law simply to ‘encourage’ in such highly qualified terms. But times have changed, and the recent European Union initiative on collective bargaining reminds us of the severe limitations of current ILO standards.14 The EU initiative is contained paradoxically in the Minimum Wage Directive and makes clear the need for better guidance on the substance and content of the right to bargain collectively, the effectiveness of which is unlikely to be realised if there is equivocation about what collective bargaining means. It needs to be beyond doubt (i) that collective bargaining is mandatory not voluntary, and (ii) that it is to 11 A Flanders, ‘Collective Bargaining: A Theoretical Analysis’ (1968) 6 British Journal of Industrial Relations 1. 12 A Fox, ‘Collective Bargaining, Flanders and the Webbs’ (1975) 13 British Journal of Industrial Relations 151. 13 Recent evidence on OECD countries shows that there is greater wage inequality where there is low collective bargaining coverage or when collective bargaining takes place predominantly at the enterprise level, and lower wage inequality when workers are covered by sectoral agreements: ILO, Global Wage Report 2020–21, p 177 (referring to OECD evidence). See also H Botwinick, Persistent Inequalities: Wage Disparity under Capitalist Competition (Chicago, Haymarket Books, 2018). See also ILO, Collective Bargaining for an Inclusive, Sustainable and Resilient Economy, Social Dialogue Report 2022 (Geneva, ILO, 2022). 14 Proposal for a Directive of the European Parliament and of the Council on adequate minimum wages in the European Union, COM (2020) 682 final. See EU Directive 2022/2041 for adopted text.

68  K D Ewing and Lord Hendy KC be conducted at a level that will enhance its density and impact. As is now widely understood, sectoral wide collective bargaining is necessary to enhance the breadth of coverage, while enterprise based bargaining is desirable to maximise the benefits of coverage.15 Sitting on the fence is not an option. It is thus not enough to extol the virtues of a constitutional principle in a legal text without also creating a greater obligation to ensure that its obligations are fulfilled, that is to say that the ‘right’ is ‘effective’. In contrast to what we see as the relatively passive terms of ILO Convention 98, article 4, the more active requirements of the EU Minimum Wage Directive would require Member States not only (i) to work towards securing a collective bargaining density level of at least 70 per cent, but also (ii) to prepare an action plan for collective bargaining based on a ‘framework of enabling conditions’, established by law or by agreement with the social partners.16 If the ‘right’ to bargain collectively is to be ‘effective’, and the ‘full development’ of ‘the right’ to be realised, the EU proposal provides a good template for the ILO (and others), not least to the extent that it requires ‘the building and strengthening of the capacity of the social partners to engage in collective bargaining on wage setting at sector or cross-industry level’.17

III.  Ensuring Just Outcomes Turning from a just process to just outcomes, although there appears to be a strong correlation between collective bargaining and wage justice, collective bargaining on its own will does not guarantee a just wage. It may help to create a general sense of justice by promoting equality; but it may not necessarily guarantee justice between groups of workers, or between one worker and another. For this purpose, wage-setting institutions need to address two specific questions. These are respectively: • the principle of ‘equal pay for work of equal value’; and • the principle of ‘fair pay for work of different value’. Before addressing these principles, we acknowledge that it is generally accepted that a just wage should be based on the nature of the job, not the condition of the worker: the ‘right of the producers is proportional to the labour they supply’.18 In present circumstances, this means that a just wage is not based on equal pay for equal effort;19 nor is it based on the principle of unequal pay for equal work based on inequality of needs.20 It is based solely on the ‘quality and quantity’ of the ‘work’ provided, or labour supplied.21 15 F Jaumotte and C Osorio-Buitron, Inequality and Labor Market Institutions, IMF Staff Discussion Note 15/14, 2015; OECD Employment Outlook (2018), (2019); OECD, Negotiating Our Way Up (2019). 16 Proposal for a Directive of the European Parliament and of the Council on adequate minimum wages in the European Union, above, Art 4(2). See text as adopted on 19 October 2022, above n 14. 17 ibid, Art 4(1). 18 K Marx, ‘Critique of the Gotha Programme’ (1875), in K Marx and F Engels, Selected Works (Progress Publishers, Moscow, 1968), 324. 19 J S Mill, ‘Utilitarianism’ (1863), in J S Mill, Utilitarianism, On Liberty, and Considerations on Representative Government (London, J M Dent 1972), 54. Also Marx, ibid, 324. 20 Marx, ibid. 21 This is a practice that historically has crossed ideological frontiers. See R Livshitz and V Nikitinsky, An Outline of Soviet Labour Law (Progress Publishers, Moscow, 1977), 67.

‘A Just Share of the Fruits of Progress’: What Does It Mean?  69 Depending on perspective, a just wage will thus not necessarily guarantee a just share of the fruits of progress. Perhaps the best we can say is that although a just wage is not enough, it is nevertheless (a) necessary, and (b) possible to ensure that wages are proportionate to the value of the labour supplied. Beginning with the first of the two principles referred to above, this is a legal principle located in the preamble to the ILO Constitution, reflecting a simple idea that ‘jobs with equivalent content should receive equal pay, regardless of who does them or in which economic sector (public or private, for instance) they work’.22 It is not a claim that ‘the proceeds of labour belong undiminished with equal right to all members of society’.23 But it is a claim that needs to be given wider operational effect, having been contained in its application for more than 70 years by the ILO’s Equal Remuneration Convention, 1951 (No 100) to ‘equal remuneration for men and women workers for work of equal value’. Effective implementation of this principle suggests a duty to ensure that all jobs are evaluated so that effective comparisons can be made and comparable work equally rewarded, unless there is an objective justification for different treatment (which conceivably could include the objective personal circumstances of the worker). The factors to be taken into account in assessing value would themselves have to be determined and agreed, but, as David Miller proposed, might depend on a range of non-exhaustive objective criteria, reflecting not only the output of the work but also responsibilities of the worker, the level of skill and education required to perform the work, the impact of the work on health and safety of the worker, specific hardships related to the work and the impact on the worker’s personal and family life.24

Referring back to COVID-19, an important factor that might be added to considerations such as these is the ‘contribution to the common well-being’ or to the ‘value to society’, particularly where the work is not directly associated with production and the creation of wealth. The rewards for labour should not be made to depend on a market calculus, but on the nature of the job. In a more contentious passage, setting out what he refers to as a ‘normative consensus about wage justice’, Miller argues that ‘jobs should be paid at significantly different rates on the basis of a range of discrete criteria such as skill and responsibility, and also should provide compensation for factors such as physical hardship and danger’.25 We would prefer to say ‘may’ rather than ‘should’. More importantly, we would ask what would constitute a ‘significantly different’ rate, but more importantly still how should the justice of the difference be assessed? This leads us to suggest that differences in the value allocated to work ought not to be a justification for disproportionate differences between two groups of workers or two individuals, and that justice requires the difference in pay between jobs of different value to relate fairly to the nature and degree of the difference. A just wage thus requires not only equal pay for work assessed to be of equal value, but also the right to fair differentials for work which is assessed to have a different value.

22 D Miller, Principles of Social Justice (Cambridge, MA, Harvard University Press, 2001), 83. 23 The claim in the SPD’s Gotha Programme to which Marx responded. See Marx, above n 18, 321–25. 24 Miller, above n 22 on making the principle more operational, see the chapters by Rittich, Olney and Scheiwe, Chapters 4, 11 and 28 in this volume. 25 Miller, above n 22, 83.

70  K D Ewing and Lord Hendy KC Which brings us to a brilliant paper by Dr Ioannis Katsaroumpas who proposes a ‘right against extreme wage inequality’.26 Emphatically located in the Declaration of Philadelphia, Katsaroumpas’ proposal was for the introduction of compulsory pay ratios so that the highest wage or salary earner is not paid more than say eight times the lowest wage or salary earner. Although devised principally as a way of containing high executive pay, by compressing differentials such a scheme would greatly close the income gap depending, of course, on the level at which the ratio was set. Such a measure would strengthen the right to fair differentials by providing a framework within which work could be valued and differentials negotiated in collective bargaining, though legislation would be a more appropriate means for determining the pay ratio itself if it is to be applied universally within a particular jurisdiction, rather than sectorally or on an enterprise basis.27

IV.  Ensuring a Just Minimum A curious feature of the Declaration of Philadelphia is that the same paragraph which contains an obligation to commit to ensure ‘a just share of the fruits of progress by policies on wages and earnings, hours and other conditions of work’, also contains a commitment to a ‘minimum living wage to all employed and in need of such protection’. These latter commitments appear at best to be unnecessary, and at worst to be contradictory: if there are policies in place which guarantee a just share, there is no need for a ‘minimum living wage’, which is unlikely to satisfy any understanding of social justice based on a fair allocation of resources which we suggest above the ‘just share’ principle implies. The Declaration of Philadelphia nevertheless requires us to seek some kind of reconciliation between policies relating to earnings that would guarantee a just share on the one hand, and a minimum living wage on the other. We are unaware of any ILO literature on this distinction, though we would emphasise that the two obligations are disjunctive not conjunctive.28 In addressing what may be either an overlap or a contradiction, it is to be noted that the ILO Declaration of Philadelphia is the only treaty to require both a just share and a minimum wage. The ICESCR comes closest to the former with its reference to the ‘right of everyone to the enjoyment of just and favourable conditions of work’, including ‘remuneration which provides all workers, as a minimum’ with ‘fair wages and equal remuneration for work of equal value of any kind’ (Article 7). Notably the Covenant does not contain a right to a minimum wage, leading the ITUC to call for the UN Economic and Social Council’s Committee on Economic, Social and Cultural Rights to ‘review the concept of a fair wage’, and ‘more precisely explain the relationship between a fair wage and a minimum wage’.29 As was suggested in a report prepared for the latter committee, a ‘minimum wage might

26 I Katsaroumpas, ‘A Right Against Extreme Wage Inequality: A Social Justice Modernisation of International Labour Law?’ (2021) 32 King’s Law Journal 260. 27 On enterprise based pay ratios, see H Collins, ‘Fat Cats, Production Networks, and the Right to Fair Pay’ (2022) 85 Modern Law Review 1. 28 See Kate Ewing, ‘A Just Share’ – The Case for Minimum Wage Reform (Institute of Employment Rights, Liverpool, 2021). 29 ITUC, General Discussion on Just and Favourable Conditions of Work (Sharan Burrow to Office of UN High Commissioner for Human Rights, Committee on Economic, Social and Cultural Rights), 4 May 2015.

‘A Just Share of the Fruits of Progress’: What Does It Mean?  71 represent a fair wage for some workers’, but ‘for the clear majority of workers, fair wages are above the minimum wage’.30 The focus should be on a fair wage, not a minimum wage. The ICESCR is unusual in excluding any reference to a minimum wage. That said, the nature of the commitment to a minimum wage varies from treaty to treaty. Thus the European Social Charter refers to a minimum wage such as will guarantee a decent standard of living for a worker and his family.31 Although there is no reference to minimum wages in the EU Charter of Fundamental Rights,32 the European Social Pillar insists that ‘workers have the right to fair wages that provide for a decent standard of living’, though only ‘adequate minimum wages shall be ensured’.33 Most recently, the EU–UK Trade and Cooperation Agreement requires the parties to promote the ILO Decent Work Agenda, as set out in the ILO Declaration on Social Justice of 2008 and ‘in accordance with relevant ILO Conventions, and other international commitments’, ‘in particular with regard to decent working conditions for all, with regard to, inter alia, wages and earnings’.34 That latter commitment will be a source of confusion: the standards set by international commitments vary significantly, and indeed the ILO standards themselves vary as to their content. In its preamble, the ILO Constitution refers to ‘the provision of an adequate living wage’, the standard substantially repeated in the Declaration of Philadelphia. It is a matter of great regret that the reference to a minimum wage in the Centenary Declaration on the Future of Work should regress from the original constitutional position to the level of an ‘adequate minimum wage’, particularly when in doing so it purports to ‘underline’ the importance of the Declaration of Philadelphia and the ILO Declaration on Social Justice which, by its preface, ‘builds on the Declaration of Philadelphia’. The 2019 standard is an echo of the Webb’s proposal from the nineteenth century for a minimum wage designed to ‘prevent bodily deterioration’ which, set at a level that ‘would therefore be low’, would ‘not at all correspond with the conception of a “Living Wage”’.35 The danger of this inconsistency and confusion is that the standard settles at the lowest point: a ‘just share’ gives way to a ‘minimum wage’, and a ‘living wage’ gives way to an ‘adequate wage’.36 As a policy instrument, the minimum wage thus needs to be treated with 30 V Bras Gomes and R Ribeiro Leao, Right to Just and Favourable Conditions of Work (Art 7 of the ICESCR), 20 January 2015, UN Economic and Social Council, E/C12/54/R2, para 11. 31 European Social Charter (1961) and Revised European Social Charter (1996), Art 4. 32 The EUCFR, Art 31 deals with ‘fair and just working conditions’ but not pay, though it does refer to the right of ‘every worker’ to ‘working conditions which respect his or her health, safety and dignity’. 33 European Social Pillar, Principle 6. 34 EU–UK, Trade and Cooperation Agreement, Art 399. 35 S and B Webb, Industrial Democracy (London, Longmans, 1920 edn), 775. Compare Ex parte H V McKay (1907) 2 CAR 1 (the famous Harvester judgment) on the meaning of ‘fair and reasonable’ remuneration – the starting point for which should be ‘the normal needs of the average employee, regarded as a human being living in a civilised community’. For context about this quite extraordinary judgment, see P O’Higgins, ‘“Labour is not a Commodity” – An Irish Contribution to International Labour Law’ (1997) 26 Industrial Law Journal 225. 36 It is surprising to find this quite so conspicuously in an ILO text, with the ILO, Global Wage Report 2020–21, claiming that ‘… the level at which minimum wages are set also plays a crucial role. Adequate minimum wage levels are required to ensure “a just share of the fruits of progress to all, and a minimum living wage to all employed and in need of such protection”, as emphasised in the Declaration of Philadelphia (ILO 1944, Article III(d)), without jeopardising employment and the survival of sustainable enterprises’ (p 88). In the same report, however, the necessary corrective is made when it is acknowledged that a minimum wage alone cannot reduce inequality: ‘indeed, [the attack on inequality] calls for a comprehensive approach, including the use of collective bargaining, measures against discrimination and fiscal redistribution to ensure, in the words of the Declaration of Philadelphia, “a just share of the fruits of progress to all”’ (ibid, 177).

72  K D Ewing and Lord Hendy KC caution, and ought not to be a necessary part of a just wage policy. Consistently with the Declaration of Philadelphia, the minimum wage is a secondary tool, an exception for those ‘in need of such protection’. The need would arise only where there are gaps in collective bargaining coverage and would signal a failure of the duty to promote collective bargaining which would need to be remedied. But to the extent that there is a need for a minimum wage, it is necessary to prescribe the level at which it should be set, which at least in the Council of Europe traditionally has been based on a percentage of the national average wage.37 In a system of mandatory pay ratios, however, the minimum wage would have to be set also by reference to the highest pay levels, and there would have to be opportunities to assert the right to equal pay for work of equal value, and to fair pay differentials.

V. Conclusion To summarise where we are so far, we have tried to flush out some of the issues behind the principle in the Declaration of Philadelphia calling for ‘policies in regard to wages and earnings, hours and other conditions of work calculated to ensure a just share of the fruits of progress to all, and a minimum living wage to all employed and in need of such protection’. We have argued that this requires a number of measures: • First, establishing a just process in which employers are required to engage with trade unions in a process of collective bargaining for the determination of the terms and conditions of employment, an obligation which requires further elaboration if the process is to be effective; • Second, ensuring that those engaged in wage setting seek to guarantee just outcomes, which means recognising the principle of ‘equal remuneration for work of equal value’ (as a general principle), and the principle of ‘fair remuneration for work of different value’; and • Third, acknowledging that a minimum wage should be for exceptional cases where collective bargaining has failed, and should be set by reference not only to the national average wage, but also by reference to the highest rates of pay in the jurisdiction in question. Our vignette is in response to the regression of labour standards over recent years, the reasons for which make it impossible to give life to the just share principle in the Declaration of Philadelphia. Symptoms of that regression are to be seen more widely in the ILO Centenary Declaration, which, as we have suggested, manages to diminish the importance of both collective bargaining and minimum wages, each diluted below the standards set in the Declaration of Philadelphia. Collective bargaining is now an ‘enabling’ right, while we are back to an ‘adequate’ (subsistence) minimum wage rather than an ‘adequate living wage’ or a ‘minimum living wage’. These subtle but important changes reflect a deeper change captured by the Centenary Declaration, which might be described as its ‘labour market’

37 It is currently 60%: Council of Europe, European Social Charter: Collected Texts (7th edn, Strasbourg, Council of Europe, 2015), 226.

‘A Just Share of the Fruits of Progress’: What Does It Mean?  73 orientation, a term used twice in the ILO Centenary Declaration (and now in other ILO instruments).38 Yet it is difficult to see how a market for labour is consistent with the great principle expressed in the first sentence of the Declaration of Philadelphia. To be clear, this is not a criticism of the International Labour Office or ILO members and participants, but an attempt to understand what is happening in the context of globalisation, on which Maupain has written so eloquently.39 Whatever its merits or demerits, the Centenary Declaration on the Future of Work is important if only for highlighting the balance of power in the global economy and the reorientation of values by which the ILO is now governed. There is no reference to a ‘just share’, though the Declaration of Philadelphia is ‘recalled’ and ‘re-affirmed’ in the Preamble. It is a principle that will now have to dance to a different tune, if at all: a ‘just share of the fruits of progress’ is that which is to be determined by the ‘higgling of the market for labour’,40 so that as a matter of economic justice people are entitled to whatever the market determines they are worth. A State’s obligation will be met by enabling and empowering people to perform as effectively as possible, with programmes for training and education to improve their skills and enhance their market value. That may well be a plausible reconciliation of the principle of a just share of the fruits of progress with liberal economics, and we accept that constitutional values are likely to be fluid and need to adapt to changing circumstances. But it is nevertheless difficult to see how liberal economics and the underlying assumptions of the Centenary Declaration are consistent with the obligations in the Declaration of Philadelphia generally, by which we would argue the just share principle must be informed. We do not dispute that the principle is contestable; but it must take its core meaning from its context. The context is Part III of the Declaration of Philadelphia: the message is unmistakable. It is difficult to see how the ILO can break free from this deep historically informed constitutional contradiction; it cannot do so by failing to confront the conflict. While we strongly endorse Maupain’s commitment to persuasion as an instrument of progress, we believe that it is not incompatible with that commitment to have clearer standards and stronger obligations.

38 ILO Centenary Declaration for the Future of Work, Part II (iii) and Part IVC (ii), on ‘labour market needs’, and ‘labour market institutions’ respectively. See also ILO Convention 181 (Private Employment Agencies Convention, 1997) on the ‘functioning of labour markets’, ‘labour market services’, and ‘labour market policy’. Compare from a different era the language of the Employment Policy Convention, 1964 (No 122). 39 F Maupain, The Future of the International Labour Organisation in the Global Economy (Oxford, Hart Publishing, 2013). 40 For a repudiation of which, see Ex parte H V McKay, above n 35, 3.

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B.  Critical Dimensions of the Global Future of Social Justice in Work

76

7 International Environmental Law and Social Justice: On Encounters LAURENCE BOISSON DE CHAZOURNES

I. Introduction The pursuit of social justice1 has always been a guiding light for the International Labour Organization (ILO) as well as for Francis Maupain. His understanding of the duty to promote social justice is striving for ‘a better distribution of both the benefits and costs of globalisation’2 and the ‘sustainable implementation of social justice requirements … rooted in the collective choices and preferences of the parties concerned’.3 The Preamble of the ILO Constitution (1919) represented an early expression of the concept of social justice, stating that ‘[u]niversal and lasting peace can be established only if it is based upon social justice’.4 The Declaration of Philadelphia (1944) reaffirmed and strengthened the understanding of social justice. It emphasised the human right to pursue material well-being and spiritual development, the importance of conditions that allow for ‘freedom and dignity’ as well as ‘economic security and equal opportunity’.5 It goes on to highlight that all national and international policies should be guided by this objective, and that the ILO has a responsibility to shape its policies, decisions and recommendations in light of this objective.6 A further important conduit for social justice has been the notion of tripartism, which is at the heart of the ILO. This is a valuable approach to help ensure the concerns of different actors – governments, employers’ organisations, and workers’ unions – are all heard and to attempt to reconcile competing interests. It is in this context that labour law has steadily developed to reflect social justice.

1 ‘Social justice can be defined as ‘justice in terms of the distribution of wealth, opportunities, and privileges within a society’, Oxford English Dictionary. Available at: www.oxfordreference.com/view/10.1093/oi/ authority.20110803100515279. 2 F Maupain, ‘New Foundation or New Façade? The ILO and the 2008 Declaration on Social Justice for a Fair Globalization’ (2009) 20 European Journal of International Law 823, 825 and 832. 3 ibid, 837. 4 Preamble, Constitution of the International Labour Organization, Part XIII of the Treaty of Versailles (Versailles, 28 June 1919, 149 LNTS 35). 5 Article II, ILO Declaration of Philadelphia (Philadelphia, 10 May 1944). Available at: www.ilo.org/legacy/ english/inwork/cb-policy-guide/declarationofPhiladelphia1944.pdf. 6 ibid.

78  Laurence Boisson de Chazournes Being a core value of international labour law, one might wonder how international environmental law has approached social justice. As environmental governance affects greater swathes of human activity, social justice will most likely come into sharper focus in the future. It could have a role as a bridge between labour and environmental concerns. As we move away from a carbon-based economy, there will be a need for a just transition as a result of the job losses that will inevitably follow. This will require public participation, social dialogue and collective bargaining based on freedom of association. Indeed, the ILO Centenary Declaration for the Future of Work refers to ‘a just transition to a future of work that contributes to sustainable development in its economic, social and environmental dimensions’ and recognised ‘the strong, complex and crucial links between social, trade, financial, economic and environmental policies’.7 Throughout its emergence, international environmental law has, in fact, been linked with social justice. Various concepts and principles such as sustainable development, access to information, indigenous population’s rights or corporate social and environmental responsibility play a role in promoting social justice. The present contribution explores those synergies, as well as identifying emerging trends and offering insights as to the future development of international environmental governance in this context. In so doing, it will first consider the emergence of the core principles of international environmental law and the connection that has always existed with the promotion of social justice. Next, the chapter turns to consider principles of international environmental law that have emerged more recently, like the precautionary principle and public participation, and shows how these principles are in fact strengthening social justice among different stakeholders affected by environmental decision-making. Subsequently, specific regimes of international environmental law are appraised and the way in which they promote social justice is explored. Finally, the contribution considers recent developments in the areas of human rights and rights of nature, all of which engage and empower local communities in new ways, furthering the cause of social justice into the future.

II.  Social Justice and the Foundations of International Environmental Law Ever since its emergence, international environmental law has balanced the protection of the environment with human needs, particularly the promotion of social development. After the Stockholm Conference of 1972, several milestones facilitated the elaboration of environmental principles. The Rio Declaration adopted at the Conference on Environment and Development of 1992 was a particularly important moment at which environmental principles would crystallise. Some of these principles have helped to pursue the cause of social justice in international environmental law, albeit through different means. Turning first to prevention, this principle has always played a central role in the life of international environmental law. Indeed, prevention is often better than cure when it

7 ILO Centenary Declaration for the Future of Work 2019. Available at: www.ilo.org/wcmsp5/groups/public/– ed_norm/–relconf/documents/meetingdocument/wcms_711674.pdf, paras IIA(i) and (ii), IVF.

International Environmental Law and Social Justice: On Encounters  79 comes to environmental protection,8 and it is frequently referred to as the no-harm rule. Its development since the early Trail Smelter case9 has framed international environmental protection. In this context, environmental harm means transboundary damage, either to another state or an area beyond national jurisdiction.10 Environmental damage that has an observable impact across an international frontier falls within the purview of the rule. The centrality of prevention has come to be reflected in different ways across international environmental governance. It is, for example, manifested in Principle 17 of the Rio Declaration, which envisages the evaluation of risks through an environmental impact assessment for certain activities at an early stage of planning. States should take into account the impact of activities conducted on their territory for the environment and peoples that may be affected. The notion of sustainable development is also a cornerstone of international environmental governance that has attempted to balance the needs of the environment with the needs of people. At the birth of this concept, the World Commission on Environment and Development considered that it should ‘enhance both current and future potential to meet human needs and aspirations’.11 The Commission advised that ‘[g]overnments can stem the destruction of tropical forests and other reservoirs of biological diversity while developing them economically’.12 The spirit of the principle was expressed as follows: Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs.13

Turning to a related environmental principle, inter-generational equity purports to extend the universal application of rights to individuals not yet born. Aiming to ensure equity between generations, this is a principle of distributive justice.14 It is evident that inter-­ generational equity is integral to sustainable development. Principle 2 of the 1972 Stockholm Declaration of the United Nations Conference on the Human Environment also provided that ‘[t]he natural resources of the earth … must be safeguarded for the benefit of present and future generations …’. Its Principle 5 provided that ‘[t]he non-renewable resources of the earth must be employed in such a way as to guard against the danger of their future exhaustion …’. In its Advisory Opinion in Legality of the Threat or Use of Nuclear Weapons the International Court of Justice (ICJ) recognised that ‘the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn’.15 The link between the environment and the people who inhabit it has thus come into sharper focus over time.

8 L Boisson de Chazournes and S Maljean-Dubois, ‘Principes du Droit International de l’Environnement’ (2020) 5 Jurisclasseur Environnement et Développement Durable 1, para 60. 9 Trail Smelter (United States/Canada), 1938 and 1941, RIAA 1905. 10 See, eg, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996, ICJ Rep 226, para 29; Principle 21, Stockholm Declaration on the Human Environment 1972, UN Doc A/2994/XXVII. 11 World Commission on Environment and Development, Our Common Future (1987), UN Doc A/42/427, paras 15, 27. 12 ibid, para 55. 13 ibid, para 27. 14 D Shelton, ‘Intergenerational Equity’ in R Wolfrum and C Kojima (eds), Solidarity: A Structural Principle of International Law (Heidelberg, Springer, 2010). 15 Legality of the Threat or Use of Nuclear Weapons, 1996 ICJ Rep 226, para 29; Case Concerning the GabčíkovoNagymaros Project (Hungary/Slovakia), 1997 ICJ Rep 7, para 112.

80  Laurence Boisson de Chazournes The principle of sustainable development is intended to balance the needs of the environment with the needs of people, both today and in future generations. It clearly provides for the social and developmental pillars of environmental governance. Sustainable development has acquired a rhetorical power for bridging gaps, at least at a preliminary level. Subsequent practice has shown the virtue of sustainable development for reconciling different interests and for establishing links between different areas of international regulation. While its precise content and obligations remain somewhat unclear, the concept envisages taking into account the requirements of the environment in policy making along with other economic and social considerations. The environment cannot be considered in isolation, so a consideration of social impact must also be balanced with environmental protection.

III.  Social Justice and the Precautionary Principle The precautionary principle is emerging as a cornerstone of international environmental law and also serves to advance social justice.16 It has helped to link prevention, precaution and people. The precautionary principle, in fact, often extends and completes the spirit of the prevention principle.17 The principle of precaution found its primary expression in Principle 15 of the Rio Declaration: ‘in order to protect the environment, the precautionary approach shall be widely applied by states according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation’. Moreover, expressions of the principle can be found in various treaties such as in the preamble of the Convention on Biodiversity and its Cartagena Protocol (Articles 9 and 10), the Convention on Climate Change of 1992, the Vienna Convention for the Protection of the Ozone Layer of 1985 and its 1987 Montreal Protocol as well as the Convention on the Protection and Use of Transboundary Watercourses and International Lakes of 1992. This principle requires decision makers to consider the risks of environmental damage and to take measures that will minimise the risks of events harmful to the environment occurring. Just as with the principle of prevention, the principle of precaution is concerned with the evaluation of risk. In this way, both principles are closely intertwined with the requirement to conduct an environmental impact assessment provided for in both conventional and customary international law. A number of international instruments acknowledge the concerned States’ capacities to deal with the problem. This permits one to equate the precautionary principle with a proportional approach in light of a state’s economic, social and technological means. Precautionary measures do not aim to paralyse human activity, and precautionary measures can be expected to vary from one state to another. The precautionary principle is also notable in the way that it interacts with other fundamental principles. It lends these other principles strength and calls for a redefinition of their role in the international normative system. Two of these principles enjoy a privileged relationship with the precautionary principle: the principle of intergenerational equity and the principle of public participation. Considering the precautionary principle as geared towards

16 Boisson 17 ibid.

de Chazournes et al, above n 8, para 64.

International Environmental Law and Social Justice: On Encounters  81 the future permits acknowledgement of the rights of future generations and of their interests in decision-making processes. By regulating uncertainty, the precautionary principle is sensitive to the future consequences of human activity on the environment, health, and human survival. This principle benefits from the dynamism implicit in the notion of a precautionary approach. The management of the uncertainty linked to human activity must not become public decision-makers’ prerogative. International law seeks to guarantee a democratic decision-making process within states. The precautionary principle upsets traditional decision-making processes by requiring increased transparency. Precaution, considered as the symbiosis of technical, scientific, social, economic, cultural, political, and legal norms, involves a plurality of agents. Implementation of the precautionary principle must give rise to an effective and efficient application of the principle of public participation. The state cannot be the only agent responsible for the evaluation of whether precaution should be applied in a particular situation. Scientists, companies, non-governmental organisations (NGOs), local populations and other concerned actors must participate in the decisionmaking process. In addition, adequate information as a corollary to participation guarantees a transparent decision-making process. As noted by Marie-Angèle Hermitte, the precautionary principle is the bearer of ‘a subversive capacity for the whole of the legal order and leads the way to democratic renewal’.18 The precautionary principle triggers new reflection on the ‘social contract’. Precaution brings with it a new trend: that of complexity, and therefore the questioning of all absolute assumptions which have long been the foundations of modern society. The precautionary principle does not stand alone but is interwoven with other international law norms and principles. It might also be said to be mirrored in international labour law, particularly by those ILO Conventions that concern occupational health and safety.19 Such is the case with regard to the principle of public participation. The link between public participation and the precautionary principle is justified by the fact that the determination of a tolerable risk level requires the involvement of the public.20

IV.  Social Justice and Public Participation in International Environmental Law Access to information can be a tool for promoting social justice. (The ILO has, in fact, been a pioneer in this area, not least with the Indigenous and Tribal Peoples Convention, 1989 (No 169).21) Various instruments of international environmental law have gradually 18 Cited by M Laronche, ‘Principe de précaution et renouveau démocratique, Le Monde, 13 March 2001. 19 See, eg, Occupational Health and Safety Convention, 1981 (No 155), Art 4; Promotional Framework for Occupational Safety and Health Convention, 2006 (No 187), Art 3(3). See also the amendment adding ‘a safe and healthy working environment’ to the ILO Declaration on Fundamental Principles and Rights at Work, adopted by the International Labour Conference in June 2022. 20 S Boutillon, ‘The Precautionary Principle: Development of an International Standard’ (2002) 23 Michigan Journal of International Law 429, 440. 21 Interestingly, the Supreme Court of Justice in Mexico has recently cancelled the mining concessions of a Canadian company because the indigenous community of Tecoltemi had a right to prior consultation under Arts 6 and 15 of the ILO’s Convention 169 on Indigenous and Tribal Peoples of 1989 and they had not been consulted. Available at: www.proceso.com.mx/nacional/2022/2/17/corte-ampara-comunidad-indigena-cancelados-concesiones-mineras-en-tecoltemi-281099.html.

82  Laurence Boisson de Chazournes elaborated the meaning of this vital mechanism. Principle 10 of the Rio Declaration 1992 makes provision for access to information, participation in decision making, and access to justice in environmental matters. The Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters (‘Aarhus Convention’) of 1998 was an instrument concluded specifically on this issue, as was the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean of 2018. Access to information can be a critical aspect of democratic decision-making.22 In the context of environmental decision making, access to information entails the right to acquire environmental information from governmental entities.23 Interestingly, under the Aarhus Convention, the definitions of both ‘environmental information’ and ‘governmental entities’ are broad, allowing for a rather progressive approach.24 Another aspect of the Aarhus Convention is that it permits the public to participate in governmental decision-making processes concerning the issuance of permits for activities likely to have an impact on the environment (Article 6). This imposes an obligation to inform citizens, early in the decision-making process, of any initiative falling under the list of activities contained in Annex I of the Convention. Furthermore, the public has the right, in accordance with Article 6(7) to submit comments, information, analysis or opinions considered as relevant for the decision-making process. In fact, States have long emphasised the importance of public participation in the pursuit of sustainable development, as testified to in several environmental instruments.25 In addition, international human rights bodies have emphasised that consultations should be conducted with indigenous populations where there may be interference with natural resources on which they depend. In the Belo Monte Dam case, the Inter-American Commission on Human Rights required that construction on the dam be stopped until indigenous people had been properly consulted on their concerns relating to population displacement and the flooding of lands.26 In a case before the African Commission on Human and Peoples’ Rights, it found that the right to consultation was part of the right to development and, here, the Kenyan government should have consulted with the Endorois community in relation to activities at Lake Bogoria.27 The environmental impact assessment principle allows for access to information and public participation, notably through public consultation initiatives. One way to ensure its respect is to guarantee that those potentially affected have the opportunity to express their 22 See P Sand, ‘Information Disclosure as an Instrument of Environmental Governance’ (2003) 2 Heidelberg Journal of International Law 487. 23 Art 4(1), Aarhus Convention. 24 Art 2(3), Aarhus Convention. 25 See, eg, Outcome of the United Nations Conference on Sustainable Development (Rio+20, 20–22 June 2012), ‘The Future We Want’. Available at: www.sustainabledevelopment.un.org/content/documents/733FutureWeWant. pdf, para 13; Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (Escazú, 27 September 2018). Available at: https://repositorio.cepal. org/bitstream/handle/11362/43583/1/S1800428_en.pdf; Art XVII(3), African Convention on the Conservation of Nature and Natural Resources, Revised (Maputo, 11 July 2003). Available at: https://au.int/sites/default/ files/treaties/7782-treaty-0029_-_revised_african_convention_on_the_conservation_of_nature_and_natural_ resources_e.pdf. 26 Belo Monte Dam Case, Judgment of the Inter-American Commission on Human Rights MC-382-10 of 1 April 2011. 27 Centre for Minority Rights Development (Kenya) and Minority Group International (on Behalf of Endorois Welfare Council) v Kenya, African Commission on Human and Peoples’ Rights, Comm No 276/2003.

International Environmental Law and Social Justice: On Encounters  83 views, have access to the necessary information on the planned activity and are regularly consulted.28 Also noteworthy is the growing interest in the social responsibility of the private sector. There too, the ILO was pioneering in the adoption of the Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy,29 adopted in 1977 and amended and revised most recently in 2017. Respect for procedural guarantees, as well as for substantive guarantees, is included in codes of conduct, often drawing inspiration from the UN Global Compact,30 while also referring to the ILO Tripartite Declaration. The UN Guiding Principles on Business and Human Rights are also playing an increasingly significant role in this context.31 What is more, the UN Working Group on Business and Human Rights has encouraged states and corporations to embrace the ‘Protect, Respect and Remedy’ framework in the implementation of the UN’s Sustainable Development Goals,32 while there is the ongoing consideration of an instrument on human rights, multinational corporations and other businesses.33

V.  Biodiversity and Social Justice Turning to specific regimes of environmental protection, we see manifestations of a desire to advance social justice. The loss of biodiversity has a disproportionate impact on the poorest segments of global society.34 What is more, there is a need to counter systemic gender imbalance as women often have little decision-making agency in land and natural resource management.35 The 1992 Convention on Biodiversity (CBD) attempts to preserve biodiversity and ecosystems within states.36 At the same time, it aims for ‘… the sustainable use of [biodiversity’s] components and the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources …’.37 In this way, the CBD seeks to conserve biodiversity

28 See, eg, Tătar v Romania (2009) European Court of Human Rights 6702/01, paras 110–12. 29 Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, adopted by the Governing Body of the International Labour Office at its 204th Session (Geneva, November 1977) and amended at its 279th (November 2000), 295th (March 2006) and 329th (March 2017) sessions. Available at: www.ilo.org/ wcmsp5/groups/public/–ed_emp/–emp_ent/–multi/documents/publication/wcms_094386.pdf. 30 UN Global Compact 2000. Available at: www.unglobalcompact.org/. See also L Boisson de Chazournes and E Mazuyer (eds), Le Pacte mondial des Nations Unies 10 ans après/The Global Compact of the United Nations 10 Years After (Bruylant, 2011); L Boisson de Chazournes, ‘A “dialogic” approach in perspective’ in A Blackett and A Trebilcock (eds), Research Handbook on Transnational Labour Law (Cheltenham, Edward Elgar, 2015) 65–75. 31 UN Guiding Principles on Business and Human Rights 2011. Available at: www.ohchr.org/documents/issues/ business/A.HRC.17.31.pdf. See also J Knox, ‘The Human Rights Council Endorses “Guiding Principles” for Corporations’ 15(21) ASIL Insights (1 August 2011). 32 UN Working Group on Business and Human Rights, ‘The Business and Human Rights Dimension of Sustainable Development: Embedding “Protect, Respect and Remedy” in SDGs Implementation – 10 Key Recommendations to Governments and Businesses’, 30 June 2017. Available at: www.ohchr.org/Documents/ Issues/Business/Session18/InfoNoteWGBHR_SDGRecommendations.pdf. 33 Human Rights Council, Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights, UN Doc A/HRC/26/L.22/Rev 1, 25 June 2014. A third revised draft of this instrument was published in 2021. 34 J Mayers, ‘There’s Justice in the Battle for Biodiversity’, International Institute for Environment and Development (28 June 2018). Available at: www.iied.org/theres-justice-battle-for-biodiversity. 35 Ibid. 36 Art 2, Convention on Biodiversity (Rio de Janeiro, 5 June 1992, 1760 UNTS 79). 37 Art 1, ibid.

84  Laurence Boisson de Chazournes while ensuring that its benefits are used in a socially just way. Moreover, the CBD recognises the intrinsic value of biodiversity in its Preamble as well as acknowledging that biological resources have ‘actual or potential use or value for humanity’.38 The CBD’s Conference of Parties (COP) has noted that an ecosystems approach is ‘a strategy for the integrated management of land, water and living resources that promotes conservation and sustainable use in an equitable way’.39 Moreover, in its strategy launched in 2010, the CBD’s COP adopted several targets to be met. One of them, Aichi Target 11, is directed at ensuring the conservation of biodiversity in an equitable way.40 Further still, the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation to the Convention on Biodiversity places emphasis on indigenous and local populations and the sharing of benefits.41 These various instruments complement the aforementioned ILO Convention on indigenous and tribal peoples.

VI.  Climate Change and Social Justice The climate change regime is based on the advancement of a common interest; the goal of social justice is pursued in particular features of the legal framework. The Paris Agreement represents a universal effort to reduce greenhouse gas emissions and to adapt to the effects of climate change. It does this in a way that attempts to promote fairness at the same time. It takes into account the commitment of all states to reduce their greenhouse gas emissions and to take action to advance the agreement’s goals, as well as differences in national capabilities and circumstances.42 In addition, the various Paris instruments embrace action and mobilisation by many different actors. In the Decision of the Contracting Parties adopting the Paris Agreement, these actors are all grouped under the term ‘Non-Party Stakeholders’.43 The Paris instruments promote a multidimensional approach. A paradigm shift in governance is put in place, which includes a diverse spectrum of actors. In addition to states, the Paris instruments encompass international organisations, notably international financial institutions and financial mechanisms,44 sub-national bodies, such as regions and cities, and civil society. They are all entrusted with the task of reaching the objectives as framed in the Paris Agreement. Indeed, new alliances are being created, underlining the necessity of coordinated action between public and private actors at different levels of governance. A good example is the ‘Non-State Actor Zone for Climate Action’.45

38 Preamble, ibid. 39 CBD Decision V/6 ‘Ecosystem Approach’, Doc UNEP/COP/5/23 (2000); CBD Decision VII/11 ‘Ecosystem Approach’, Doc UNEP/CBD/COP/7/21 (2004). 40 Aichi Biodiversity Target 11, CBD COP 10 Decision X/2.Strategic Plan for Biodiversity 2011–2020, 29 October 2010. On this new strategy, see S Maljean-Dubois, Le droit international de la biodiversité, Les Livres de Poche de l’Académie de droit international de la Haye (Leiden, Brill/Nijhoff, 2021) 73–75. 41 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biodiversity, 3008 UNTS 3, 12 October 2014. 42 Arts 2.1, 2.2 and 3, Paris Agreement, Decision 1/CP.21, 2015. 43 Paris Agreement, paras 133–36. 44 See L Boisson de Chazournes, ‘Is there Room for Coherence in Climate Financial Assistance?’ (2015) Laws 541. 45 Paris Agreement, para 135.

International Environmental Law and Social Justice: On Encounters  85 Climate change represents one of the most significant challenges facing humankind. And climate justice has been at the heart of debates and contentions on the response to climate change. In a legal context, climate justice has been acknowledged in specific ways.46 A non-contentious approach to this notion is envisaged under the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts.47 It is not founded upon compensatory-based notions of repairing past damage, nor upon ceasing illegal action. Instead, the idea behind the Warsaw Mechanism is to establish a solidarity mechanism orientated towards the future. In this way, the solidarity pursued does not focus on the past, but rather attempts to foresee future risks and impacts. Climate justice is intended to be achieved through forecasting strategies. In particular, Article 8 of the Paris Agreement provides for areas of cooperation and facilitation to enhance understanding, action and support for all those affected by the devastating consequences of climate change. Climate justice actions, together with the Warsaw Mechanism, translate in large part to risk management, prevention and preparation activities to mitigate potential future damage (floods and other natural disasters). These elements hint at an evolving character of the climate change regime and in particular its willingness to build robust mechanisms that serve the future of humankind in an equitable way. Human rights are, for the first time in the context of climate change instruments, expressly referred to in the Paris Agreement and this indicates an increasing concern for the well-being of people who experience the worst consequences of climate change. The Preamble reminds parties that, when taking climate change action, they are expected to ‘respect, promote and consider their respective obligations on human rights’.48 These strong links between human rights and climate change help pave the way for a multidimensional approach in addressing climate change and for further collaboration between the human rights and climate change communities in defining and developing future strategies. In this context, it is interesting to note growing litigation in Europe, the United States and in other regions of the world to challenge states for not doing what they should be doing for the future.49 Individuals expect states to be accountable for their actions that will have an impact on generations to come and thus for social justice to the benefit of these generations.

VII.  Social Justice, Human Rights and International Environmental Governance The social pillar of international environmental law has become increasingly apparent over time. Indeed, Principle 1 of the 1992 Rio Declaration provided that: ‘Human beings are

46 D Olawuyi, ‘Advancing Climate Justice in International Law: An Evaluation of the United Nations Human Rights-Based Approach’ (2015) 11 Florida A&M University Law Review 103, 105. 47 Article 8, Paris Agreement. 48 Preamble, Paris Agreement. 49 See, eg, Urgenda Foundation v The State of the Netherlands, C/09/456689/HA ZA 13-1396 (24 June 2015); Netherlands v Urgenda, The Hague Court of Appeal, Civil Law Division, Case number: 200.178.245/01, Case/cause list number: C/09/456689/ HA ZA 13-1396, Ruling of 9 October 2018; Am Elec Power Co v Connecticut, 564 US 410 (2011); Native Vill of Kivalina v ExxonMobil Corp, 696 F3d 849 (9th Cir 2012); Juliana v United States, No 6:15-cv-1517-TC, 2016 WL 183903 (D Or Jan 14, 2016).

86  Laurence Boisson de Chazournes at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.’ Significantly, in 2002, the Johannesburg Declaration on Sustainable Development strengthened the social dimension of the notion of sustainable development. This is evident not least in paragraph 2 of the Declaration, which provides that ‘[the representatives of the peoples of the world] commit ourselves to building a humane, equitable and caring global society, cognizant of the need for human dignity for all’.50 In October 2021, the UN Human Rights Council adopted a resolution on a human right to a healthy environment.51 The social pillar of environmental governance is also encapsulated by civil and political rights, as well as human dignity and the basic human needs around work, education and improved health. Such human rights include individual rights as well as collective rights. This is similarly the case with labour law, and the right to freedom of association has a particular relevance. With respect to environmental governance, human rights courts have engaged with international environmental law and sustainable development. The Inter-American Court of Human Rights has rendered landmark decisions and opinions in this context. In its Advisory Opinion of 2017, the Inter-American Court of Human Rights quite eloquently drew the links between respect for human rights and the protection of the environment.52 The Court confirmed that there was a connection between human rights realisation and a healthy environment. The Court took the view that states must prevent significant environmental harm affecting the rights of people both within their own territory and beyond it.53 Significantly, the Court suggested that the right has extra-territorial application and states must have regard for peoples beyond their territorial jurisdiction.54 It remains to be seen whether this expansive interpretation of jurisdiction will open the door for broader human rights claims on the basis of environmental damage. Recognising a right to a healthy environment under the American Convention on Human Rights, the Advisory Opinion provides a basis for this right to be litigated in the future. Notably, the Court also referred to freedom of association as part of a category of ‘rights whose exercise supports better environmental policymaking, also identified as procedural rights’.55 Building on its Advisory Opinion, the Inter-American Court has also handed down a judgment involving territorial and ancestral rights for indigenous peoples. In Lhaka Honhat Association (Our Land) v Argentina,56 the Court ordered Argentina to grant 4,000 km2 of land which was part of their ancestral territory, to the Lhaka Honhat Association of Aboriginal Communities, the Court, basing its reasoning on their deprivation of rights under the American Convention on Human Rights, noted that the environment of these indigenous peoples had been interfered with, not least by modern farming practices in the 50 Johannesburg Declaration on Sustainable Development 2002, UN Doc A/CONF199/20, para 2. 51 Human Rights Council, Resolution 48/13 on the human right to a clean, healthy and sustainable environment, 8 October 2021. 52 The Environment and Human Rights (State Obligations in Relation to the Environment in the Context of the Protection and Guarantee of the Rights to Life and to Personal Integrity – Interpretation and Scope of Articles 4(1) and 5(1) of the American Convention on Human Rights), Advisory Opinion OC-23/17, Inter-Am Ct HR (ser A) No 23. 53 ibid. 54 ibid, paras 81, 95 and 101. 55 ibid, para 64. 56 Indigenous Communities of the Lhaka Honhat Association (Our Land) v Argentina, Judgment, 6 February 2020, Inter-Am Ct HR (ser C) No 400.

International Environmental Law and Social Justice: On Encounters  87 area, which had affected the traditional way that they feed themselves as well as having polluted the water they use.57 Significantly, the Court found that the rights to a healthy environment, to food, to water and to cultural identity were autonomous and had each been violated by the actions of Argentina. Aside from human rights, some countries have elaborated rights of nature within their domestic legal systems. In doing so, states have placed an obligation on themselves to protect those rights from being breached. Following overwhelming support in a referendum, such rights were included in Ecuador’s 2008 Constitution.58 It recognises that humans are part of nature and that nature is critical to the existence and well-being of human beings.59 In 2011, an Ecuadorian court granted a constitutional injunction to prevent excavation material from a road-widening project being dumped in the Vilcabamba River.60 In 2012, New Zealand signed an agreement with the Whanganui tribe to recognise the Whanganui River as a legal person. The protection of the river is entrusted to two guardians – the tribe and the government – and subsequent legislation has emphasised the importance of protecting the river’s ecosystem.61 At the international level, UN General Assembly resolutions show a growing commitment to develop rights of nature.62 As can be seen, these developments suggest an increasing empowerment of local communities and indigenous populations when it comes to environmental decision-making and trusteeship of the environment. This latest trend offers the strongest indication yet that international environmental governance can be used as an effective tool for advancing social justice.

VIII. Conclusion This contribution has revealed how international environmental law has sought to protect the environment, not at all costs, but in a way that is fair and equitable for all concerned, particularly local stakeholders. Over time, there has been a nurturing effect between different norms towards this aim. Today, social justice has relevance to almost all areas of environmental governance and it is, in this sense, a transversal issue. There is, of course, room for improvement. Indeed, an even more comprehensive approach is needed when reconciling the various interests at stake in the tension between human activity and environmental concerns. Perhaps a just transition principle could guide the process of economic change as we strive to make human activity more environmentally friendly. In the final analysis, social justice should not be seen as a norm to be balanced with environmental protection but, rather, as integral to it. 57 ibid. 58 C Kauffman and P Martin, ‘Can Rights of Nature Make Development More Sustainable? Why Some Ecuadorian Lawsuits Succeed and Others Fail’ (2017) 92 World Development 130, 132. 59 Preamble, Constitution of Ecuador 2008. Available at: https://pdba.georgetown.edu/Constitutions/Ecuador/ english08.html. 60 Case No 11121-2011-0010, Constitutional Injunction issued by the Appeal Court of Ecuador, 30 March 2011. Available at: https://mariomelo.files.wordpress.com/2011/04/proteccion-derechosnatura-loja-11.pdf. 61 Tutohu Whakatupua, The Crown-Whanganui 2012. Available at: www.wrmtb.co.nz/new_updates/Tuutohu WhakatupuaFinalSigned.pdf; Te Awa Tupua Act 2017. Available at: www.legislation.govt.nz/act/public/2017/0007/ latest/whole.html. 62 See, eg, UN General Assembly Resolution 70/208, 22 December 2015, ‘Harmony with Nature’, UN Doc. A/RES/ 70/208, Preamble.

88

8 Sustainability as a Guide for the Future Development of International Labour Law? TONIA NOVITZ

I. Introduction The international community must advance along a transformative path of sustained, inclusive and sustainable development that is guided by the principles of social justice and decent work. What is at stake is the future of the global economy and society, and indeed of our planet.1

The United Nations General Assembly (UNGA) has advocated that by 2030 there should be global realisation of 17 ‘Sustainable Development Goals’ (SDGs).2 Attached to the SDGs are a series of ‘targets’ also identified in the 2030 Agenda, while further ‘indicators’ have subsequently been adopted to assess the extent of the achievement of those targets.3 While there has been criticism of various aspects of the 2030 Agenda,4 there is little doubt that sustainability has become the ‘buzzword’ in policy making across the world, which has also been often embraced with great corporate zeal.5 The SDGs have become the focal point for many debates regarding global justice, based on understandings of economic, environmental and social imperatives. In particular, SDG 8 seeks to promote ‘sustained, inclusive, and sustainable economic growth, full and productive employment, and decent

1 International Labour Office, Time to Act for SDG 8: Integrating decent work, sustained growth and environmental integrity (Geneva, ILO, 2019) 3. 2 UN General Assembly Resolution Transforming Our World: The 2030 Agenda for Sustainable Development, 25 September 2015 A/Res/70/1. 3 International Institute for Sustainable Development (2018) Policy Brief: Getting to 2030: Tracking SDG Indicators for Evidence of Implementation Progress. Available at: sdg.iisd.org/commentary/policy-briefs/ getting-to-2030-tracking-sdg-indicators-for-evidence-of-implementation-progress/. 4 See, eg, T Pogge and M Sengupta, ‘The Sustainable Development Goals (SDGs) as Drafted: Nice idea, poor execution’ (2015) 24(3) Washington International Law Journal 571; DF Frey and G MacNaughton, ‘A Human Rights Lens on Full Employment and Decent Work in the 2030 Sustainable Development Goals’ (2016) 30(2) Journal of Workplace Rights 1, 10. 5 L Pingeot, Corporate Influence in the Post-2015 Process. Working Paper (Aachen/Berlin/Bonn/New York, Misereor, Brot für die Welt and Global Policy Forum, 2014). Available at: www.globalpolicy.org/images/ pdfs/GPFEurope/Corporate_influence_in_the_Post-2015_process_web.pdf; and R Scheyvens, G Banks and E Hughes, ‘The Private Sector and the SDGs: The need to move beyond ‘business as usual’ (2016) 24(6) Sustainable Development 371.

90  Tonia Novitz work for all’, which may seem to open avenues for promotion of the International Labour Organization (ILO) ideal of ‘decent work’, for example in the trade arena.6 Moreover, SDG 17 seeks to ‘revitalise’ a ‘global partnership for sustainable development’ of which the ILO is expected to play its part, for example as a ‘custodian’ agency for assessment of fulfilment of 14 SDG indicators.7 Francis Maupain has highlighted ways in which this engagement seems to offer a basis for ILO ‘regulatory revival,’ while recognising the problematic aspects of the 2030 Agenda.8 This chapter begins by outlining the extent of ILO engagement with the SDGs to date and then goes on to examine whether, and to what extent, we might expect the broader principle of ‘sustainability’ alongside concrete SDGs to act as a guide for the future development of international labour law. It is suggested that a sustainable development perspective, with its underlying emphasis on equality and, when linked to a capabilities discourse, could prompt further ILO policy initiatives. However, as Maupain has observed, this is not a path that an institution like the ILO can or should take with great confidence. The parameters of sustainable development are contested,9 and the more concrete implications of such a policy frame are currently the subject of experimentation, the successes of which cannot yet be fully evaluated.

II.  ILO Engagement with Sustainable Development to Date The ILO was no stranger to the notion of sustainable development in 2015 but had tended to regard this issue as predominantly concerned with environmental matters. So much is evident from the ILO ‘Green Jobs’ initiative10 and the recommendatory ILO Guidelines on Just Transitions agreed by a tripartite meeting of experts.11 The ILO had, however, also engaged with the Millennium Development Goal 1 on ‘poverty’, lobbying for ‘decent work’ to be recognised as an associated ‘target,’ which was finally accepted in 2007.12 The ILO initially welcomed new responsibilities under the 2030 Agenda from an operational perspective. An ‘Implementation Plan’ sought to improve International Labour Office resources to offer the integrated development-oriented programmatic assistance that would ensure the ILO played its role in the Global Partnership as anticipated.13 Less was said about 6 T Novitz, ‘Sustainable Labour Conditionality in EU Free Trade Agreements? Implications of the EU-Korea Expert Panel Report’ (2022) 47(1) European Law Review 3, 6–7. 7 See the contribution made by ILO statistics. Available at: ilostat.ilo.org/topics/sdg/; and Decent Work and the Sustainable Development Goals: A Guidebook on SDG Labour Market Indicators (Geneva, ILO, 2018). 8 F Maupain, ‘A Second Century for What?: The ILO at a Regulatory Crossroad’ (2019) International Organizations Law Review 1, 36–39. 9 M Pieraccini and T Novitz, ‘Sustainability and Law: A historical and theoretical overview’ in M Pieraccini and T Novitz (eds), Legal Perspectives on Sustainability (Bristol, Bristol University Press, 2020), 10. 10 See www.ilo.org/global/topics/green-jobs/lang--en/index.htm; and discussion by C Chacartegui, Workers’ Participation and Green Governance’ (2018) 40(1) Comparative Labor Law and Policy Journal 89, 99. 11 ILO, Guidelines for a Just Transition towards Environmentally Sustainable Economies and Societies for All (Geneva, ILO, 2015). Available at: www.ilo.org/wcmsp5/groups/public/–ed_emp/–emp_ent/documents/publication/ wcms_432859.pdf. 12 Frey and MacNaughton above, n 4, 16; the complex issues associated with such a linkage were explored in F Maupain, The Future of the International Labour Organization in the Global Economy (Oxford, Hart, 2013), 93–95. 13 International Labour Office, ILO Implementation Plan: 2030 Agenda for Sustainable Development (Geneva, ILO, 2016).

Sustainability as a Guide for the Future Development of International Labour Law?  91 the normative implications of the 2030 Agenda, although it was observed that: ‘Nearly all the SDGs connect to the ILO’s mandate and the four pillars of the Decent Work Agenda, some explicitly and others more indirectly.’14 The assumption seems to have been that it would be sufficient to utilise existing norms developed in the sphere of ‘decent work’, such as those articulated in the 2008 ILO Declaration on Social Justice for a Fair Globalization, and deploy these to assist in achievement of the SDGs. A flurry of activity generated by ILO centenary activities in 2019 has since suggested that sustainable development could also offer normative guidance regarding the future development of international labour law. The first significant indication of this direction of travel was the 2019 report of a Global Commission on the Future of Work, Work for a Brighter Future,15 the culmination of the Director-General’s Future of Work Initiative. The Global Commission recommended ‘transformative investments’ in ‘decent and sustainable work’ ‘in line with the United Nations 2030 Agenda for Sustainable Development’.16 This was hailed as a vital facet of the Global Commission’s proposal for ‘a human-centred agenda for the future of work’.17 Another prominent initiative was the subsequent Centenary Declaration of 2019, which began in Article IB by declaring it was imperative for the ILO ‘to shape a fair, inclusive and secure future of work with full, productive and freely chosen employment and decent work for all’. Article IC added that: ‘Such a future of work is fundamental for sustainable development that puts an end to poverty and leaves no one behind’ (my emphasis).18 The 2019 Declaration offered a vision of ‘just transition to a future of work that contributes to sustainable development in its economic, social and environmental dimensions’ (Article IIAi) and, again paired ‘decent work and sustainable development’ (Article IIAii and xvii, as well as Article IIIC). The third sequential item was the International Labour Office Report, Time to Act for SDG 8, which began and ended by making a clear connection between the ILO Centenary Declaration and Agenda 2030, especially SDG 8.19 That report is also interesting in its identification of ‘synergies’ between ‘decent work for all’ and various SDGs, including SDG 1 relating to poverty; SDG 3 on health and well-being; SDG 4 regarding ‘quality education’; SDG 5 concerning gender equality; and SDG 10, addressing equality within and between states.20 The report further stressed the significance of collective bargaining as a means by which to achieve social sustainability in the sense of inclusive protection of those engaged in the most precarious forms of work.21 Since 2019, perhaps understandably, there have been fewer ILO ‘flagship’ moments in which the SDGs have been given prominence. Nevertheless, the importance and relevance of the SDGs have been referred to in several ways. For example, in the preamble to the ILO’s World Employment and Social Outlook (WESO) report on platform work in 2021, 14 ibid, para 15. 15 ILO Global Commission on the Future of Work, Work for a Brighter Future (Geneva, ILO, 2019). 16 ibid, 13. See also 23 and 45–47. 17 ibid, 24 and 28. 18 ILO Centenary Declaration 2019.Available at: www.ilo.org/wcmsp5/groups/public/@ed_norm/@relconf/ documents/meetingdocument/wcms_711674.pdf. 19 ILO ‘Time to Act’ above n 1, ix and 79. 20 ibid, x and 2. 21 ibid, 33–34, 70–75.

92  Tonia Novitz the Director-General stressed that, while digital labour platforms had positive potential, including ‘to achieve the Sustainable Development Goals’, this would be possible only ‘if the work opportunities they provide are decent’.22 The SDGs also received further attention in the report’s concluding analysis, where the potential transformative significance of collective bargaining was stressed for this group of precarious workers, such that this should be a universal right for all.23 Notably, a contemporary ‘think piece’ reflecting on ILO contributions to realise SDG 8 ‘in a time of COVID-19’ has recognised connections between decent work and health under SDG3, as previously flagged by the ‘Time to Act’ Report.24 Moreover, the ILO website links efforts made by the Organization regarding child labour and forced labour to SDG target 8.7;25 and has given prominence given to links between SDG targets and ILO standards for labour migration.26 This may be indicative of some appreciation that, not only could importation of ILO standards add to the efficacy and force of the SDGs, but also that the SDGs offer normative bases for the further development of international labour standards. The ILO has, as the ILO Future of Work Initiative revealed, sometimes been slow to adjust to dynamic changes in the world of work, and the question is whether sustainability offers a normative prompt to do so.

III.  The Normative Potential of ‘Sustainability’ Virginie Barral, writing in 2012, observed that the principle of sustainable development was not yet a facet of customary international law, but functioned as an interpretive tool in environmental litigation.27 Indeed, as Margherita Pieraccini and I have argued,28 it may be helpful to view sustainability as a ‘directing principle’,29 which is evolving rather than static, not defined by precise legal rules, but rather by values and the capacity to promote reflection. Sustainability could thereby stimulate debate about what international labour law standards are needed and why, but also how ILO norms could be enhanced and extended in coverage. Furthermore, to say that sustainability is best viewed as a principle rather than a legal norm is not to claim that the notion lacks any discernable content. Since the 1970s, there has emerged a core encultured set of assumptions regarding the meaning of the term, which were reflected in the SDGs, associated targets and indicators and are worth examining.30

22 ILO WESO Report, The Role of Digital Labour Platforms in Transforming the World of Work (Geneva: ILO, 2021), Preface, available at: www.ilo.org/global/research/global-reports/weso/2021/WCMS_771749/lang--en/ index.htm. 23 ibid, 241 and 248–49. 24 A Pérez, The ILO contribution to SDG 8 in the time of COVID-19 (ILO Evaluation Office Think Piece, No. 20, Geneva, 2021). Available at: www.ilo.org/wcmsp5/groups/public/–ed_mas/–eval/documents/publication/ wcms_822252.pdf. 25 Available at: www.ilo.org/global/topics/sdg-2030/goal-8/target-8-7/lang–en/index.htm. 26 Available at: www.ilo.org/global/topics/dw4sd/themes/migration/WCMS_558577/lang–en/index.htm. 27 V Barral, ‘Sustainable Development in International Law: Nature and Operation of an Evolutive Legal Norm’ (2012) 23(2) The European Journal of International Law 377, 390. 28 Pieraccini and Novitz above n 9, 10–12, and 22–31. 29 See also N De Sadeleer, Environmental Principles – From Political Slogans to Legal Rules (Oxford, Oxford University Press, 2002) 252–59. 30 See Pieraccini and Novitz above n 9, chs 1 and 2.

Sustainability as a Guide for the Future Development of International Labour Law?  93 My suggestion is that the normative contribution that can be made by the concept of sustainability is two-fold: first, assisting in identification of conditions for durable policy relevant to the design of labour standards; and second, giving impetus to address inequalities and promote capabilities that could prompt extended application of labour standards to new and precarious modes of work.

A. Durability In colloquial terms, the term ‘sustainable’ has been used interchangeably with the idea of ‘durability’. A sustainable social policy, for example, is one that will last. What is likely to make us contemplate that a policy will not be adopted one day and merely discarded the next? This may have much to do with how it is adopted. Does it draw on the views of the social actors most affected by that policy, such that there is some reality check regarding both its aspirations and implementation? This means that sustainable development is best understood not as a static objective, but as a dynamic participatory process.31 SDG target 16.6 prompts the development of ‘effective, accountable and transparent institutions at all levels’, while target 16.7 seeks to ‘ensure responsive, inclusive, participatory and representative decision-making at all levels’. Target 16.8 provides a reminder that, at the international level, participation of developing countries has to be broadened and strengthened. For a policy to be sustainable, in the sense of being durable, we might also expect that it ensures protection of fundamental freedoms as advocated by SDG target 16.10. So, in the context of labour-related measures, we might expect protection of freedom of association, collective bargaining and a right to strike, which the UN Special Rapporteur has argued are implicit in target 16.10.32 Indeed, we would anticipate respect for all other core labour standards, as recognised in the 1998 ILO Declaration on Fundamental Principles and Rights at Work, explaining their recognition in targets 8.5 (addressing discrimination) and 8.7 (tackling forced labour and child labour). Furthermore, it would then be advisable for any policy to be adopted and implemented in accordance with the rule of law, such that it can warrant respect from all quarters as contemplated by target 16.3. Finally, there should be some assessment of whether the policy adopted can be effective, which would involve harnessing multilevel governance, and engagement with civil society, contemplated in the ‘Global Partnership’ set out in SDG 17. In these many and varied ways, ‘durability’ is a significant facet of both the principle of sustainability and its manifestation in the SDGs. Doubtless, the text of the 2030 Agenda could be more ambitious. It could have specified that trade unions are to be regarded as an important facet of civil society, made more detailed mention of the significance of trade union activities and their protection (currently tucked away in indicators 8.8.2 and 16.10.1), and could have attended to ‘the imperatives of a just transition of the workforce and the creation of decent work’ (to be found instead

31 T Novitz, ‘The Paradigm of Sustainability in a European Social Context: Collective Participation in Protection of Future Interests?’ (2015) 31 International Journal of Comparative Labour Law and Industrial Relations 243, 245. 32 Report of the Special Rapporteur on the rights to freedom of peaceful assembly and association, 7 August 2018, A/73/279, paras 6 and 58, also paras 87–89.

94  Tonia Novitz in the Preamble to the Paris Agreement on Climate Change).33 Nevertheless, the SDGs do offer scope for reflection on durable policymaking in the field of labour standards and, to that extent, are a helpful guide for the ILO and its Member States, as well as employer and worker representatives. Where ILO regulatory action seems to have stalled, this guidance may be useful. There have, for example, been notable gaps in regulation of global supply chains, such that certain forms of work are caught in cycles of precarity, exposed particularly by the COVID-19 pandemic.34 Further, the ways in which temporary migrant labour is used as a facet of ‘trade in services’ within the world economy is another issue which has successfully been evaded to date, perhaps because it falls between the two specialist competences of the ILO and the WTO.35 Arguably, a Global Partnership offers hope that joint regulatory efforts could address these, utilising not merely tripartite decision-making internal to the ILO, but also the broader global community engaging with issues of trade as well as labour.36 The next question is where the impetus for such policymaking might come from.

B.  Equality and Capabilities That impetus could come from the ways in which sustainable development can be linked to advocacy of equality and provision of capabilities in the sphere of work.37 In 2005, Erich Grießler and Beate Littig38 considered how policies relating to work could address the ‘needs’ of present and future generations intrinsic to sustainable development.39 They observed that labour standards are relevant ‘not just with regard to securing people’s incomes, but also with regard to … gainful employment (time structure, identity, etc), citizens’ integration (due to the high social status of paid work), and the significance of paid labour for social cohesion’.40 They recommended ‘the ecologisation of existing employment and the creation of new, environmentally sound jobs …’, ‘the gender-sensible re-distribution of all … work’ and ‘the freedom to choose at any stage in life between different forms of work … while being at all times entitled to individual social security’.41 This analysis, foreshadowing many aspects of the ILO decent work agenda which was to be recognised in the ILO 2008

33 See N Singh Ghaleigh, Just Transitions for Workers: When climate change met labour justice. Edinburgh School of Law Research Paper No 2019/30 (Edinburgh: University of Edinburgh, 2019). See also Boisson de Chazournes, Chapter 7 in this volume. 34 See the International Labour Office report. Available at: www.ilo.org/global/publications/WCMS_829895/ lang--en/index.htm. 35 T Novitz, ‘Supply Chains and Temporary Migrant Labour: The relevance of trade and sustainability frameworks’ in D Ashiagbor (ed), Re-imagining Labour Law for Development: Informal Work in the Global North and South (Oxford, Hart Publishing, 2019). 36 See Report of the Panel of Experts constituted under Art 13.15 of the EU–Korea Free Trade Agreement, 25 January 2021, referring to the wider context of ‘sustainable development’ at paras 74–79 and paras 90–94. 37 Novitz above n 35, 206–08. 38 E Grießler and B Littig, ‘Social Sustainability: A catchword between political pragmatism and social theory’ (2005) 8(1–2) International Journal of Sustainable Development 65. 39 World Commission on Environment and Development, Our Common Future (Oxford, Oxford University Press, 1987), 51. 40 Grießler and Littig above n 38, 73. 41 ibid, 74.

Sustainability as a Guide for the Future Development of International Labour Law?  95 Declaration, was also linked by these authors to the sphere of ‘capabilities’ theory and the work of Amartya Sen and Martha Nussbaum.42 This should perhaps not be so very surprising, given that Sen’s idea of Development as Freedom centres on recognising human ‘capabilities’, including those of ‘workers’.43 While Nussbaum has argued that government and public policy must urgently address ‘entrenched social injustice and inequality’ which hinders the realisation of capabilities.44 In her list of ‘central capabilities’, ‘affiliation’ plays an ‘architectronic’ role, organising and pervading other capabilities.45 She has conceded that affiliative thought and action can be linked to freedom of association and collective voice, which may be an important aspect of addressing systemic inequality (such as women’s informal work in India).46 This ambition to correct inequalities and build capabilities can be linked to determination in the preamble to the 2030 Agenda to address ‘poverty in all its forms and dimensions, including extreme poverty’ and the understanding that this is ‘a collective journey’ in which ‘no one will be left behind’.47 The 2030 Agenda goes on to make reference to equality and non-discrimination in respect of gender, race and ethnicity, but also material distribution of wealth.48 The specific vulnerability of migrant workers and female migrant workers receives particular attention.49 Such concerns are reflected in SDG 5 on ‘gender equality’ and SDG 10, which aims to ‘reduce inequality within and among countries’. The right to ‘equal pay for work of equal value’ is set out in SDG target 8.5, while the plight of those in precarious employment, including migrant workers, is addressed in target 8.8, which states that they are all deserving of ‘labour rights’ and ‘safe and secure working environments’. ‘Capabilities’ in the context of education and development also receive a mention in the main body of the 2030 Agenda and particular SDG targets.50 A problem highlighted by the Global Commission Report in 2019 was the way in which employment status operates in exclusionary ways, creating distributional inequalities in the labour market and having systemic social effects.51 This is despite the initiative taken in the form of ILO Recommendation No 198 on the ‘employment relationship’ which sought to encourage a more inclusive stance by Member States when legislating on eligibility for employment rights.52 The Global Commission sought to go further such that there should be a ‘universal labour guarantee’ enabling access not only to ‘fundamental workers’ rights’ (the core labour standards identified above) but also ‘an adequate living wage, limits on hours of work and ensuring safe and healthy workplaces’. Moreover, this should be for 42 ibid, 75, citing M Nussbaum and A Sen (eds) The Quality of Life, 2nd edn (Oxford, Clarendon Press, 2002). 43 A Sen, Development as Freedom, (Oxford, Oxford University Press, 1999) 27–30, 112–16. 44 M Nussbaum, Creating Capabilities: The Human Development Approach (Cambridge MA, Harvard University Press, 2011) 18–19. 45 ibid, 33–39. 46 M Nussbaum, ‘Labour Law and the Capabilities Approach’ in B Langille (ed), The Capability Approach to Labour Law (Oxford, Oxford University Press, 2019), 80. Cf in the same edited collection, A Bogg, ‘The Constitution of Capabilities: The Case of Freedom of Association’. 47 UN 2030 Agenda above n 2, Preamble. 48 ibid, Preamble and paras 3, 8, 13, 14, 20, 27 and 35. 49 ibid, para 29. 50 ibid, paras 25 and 28; and SDG targets 9.4, 9.5 and 12.1. 51 ILO Global Commission, above n 16, 12–14 and 38–39. 52 For discussion, see M Freedland. ‘Application of Labour and Employment Law Beyond the Contract of Employment’ (2007) 146(1) International Labour Review 3, 17–19; also N Countouris, Defining and Regulating Work Relations for the Future of Work (Geneva, ILO 2019) 17–18.

96  Tonia Novitz ‘all workers, regardless of their contractual arrangement or employment status’.53 This seems to be envisaged to be applicable for everyone in the wider ‘world of work’, as described by the 2008 ILO Declaration and most recently ILO Violence and Harassment Convention, 2019 (No 190). This proposal was not motivated by an ideological commitment to sustainable development, but it is one which would be consistent with SDG targets 3, 5, 8 and 10, and it is a shame that this only found partial expression in Article III.B of the ILO Centenary Declaration.54 Such initiatives could enable the full transformative potential of entitlements still contingent on an ‘employment relationship’ under the ILO Domestic Workers Convention, 2011 (No 189),55 going further to challenge the systemic inequalities observed by Nussbaum.56 Furthermore, the notion that collective bargaining can and should play a role in regulating precarious work, regardless of formal employment status, advocated as a facet of social sustainability by the International Labour Office,57 seems now to be finding fertile soil in the European Union (EU), with the European Commission now actively advocating for a role for collective bargaining in the context of an adequate minimum wage,58 and also for platform and other self-employed workers.59 Both of these seem to be linked to the von der Leyen Commission’s overarching ambition for ‘A Strong Social Europe for Just Transitions’ and its wider New Green Deal.60 A sustainability discourse might just prompt action to generate the adoption not only of international labour standards, but also of regional regulatory action.

IV.  A Final Word of Caution: Tensions Inherent in a ‘Holistic’ Approach? Finally, however, it would be wise to sound a note of caution. One attraction of the use of ‘sustainability’ rhetoric on the world stage may be that it is under-developed, such that its global appeal lies in its ambiguity.61 There remains uncertainty regarding how the contradictions inherent in ‘sustainable development’ can be overcome, so as to offer ballast for global policymaking and guidance for future international labour standards.

53 ILO Global Commission, above n 15, 38. 54 See V De Stefano, ‘Not as Simple as It Seems: The ILO and the Personal Scope of International Labour Standards’ (2021) 160(3) International Labour Review 387, 403–4. Note however the potential impact of ILC.110/ Resolution 1 (adopted 10 June 2022) on the inclusion of a safe and healthy working environment in the ILO’s framework of fundamental principles and rights at work, expanding the scope of the application of this right. 55 See A Blackett, Everyday Transgressions: Domestic Workers’ Transnational Challenge to International Labor Law (New York, Cornell University Press, 2019). 56 See above nn 44–46. 57 ILO ‘Time to Act’ above n 1, 33–34, 70–75; and ILO WESO Report above n 22, 241 and 248–49. 58 Commission Proposal for a Directive of the European Parliament and of the Council on adequate minimum wages in the European Union COM(2020) 682 final, 28 October 2020. 59 Commission Proposal for a Directive on improving working conditions in platform work COM(2021) 762 final, 9 December 2021; Commission Communication, Guidelines on the application of Union competition law to collective agreements regarding the working conditions of solo self-employed persons C(2022) 6846 final, 29 September 2022. 60 COM(2020) 14 final, 14 January 2020. 61 E Scotford, Environmental Principles and the Evolution of Environmental Law (Oxford, Hart, 2017).

Sustainability as a Guide for the Future Development of International Labour Law?  97 Sustainable development has long been concerned with reconciling inter- and intragenerational justice,62 while the 2030 Agenda similarly assumes that a ‘balance’ can readily be achieved between the economic, environmental and social pillars of sustainability, asserting that the SDGs themselves are ‘integrated and indivisible’.63 As Anne Trebilcock has commented, ‘the challenge will be to translate this into reality’.64 In 2013, prior to adoption of the SDGs, Francis Maupain observed the difficulties that ILO has long faced when seeking to reconcile social and economic goals.65 Assuming, as SDG 8 seems to do, that ‘economic growth’ can readily be squared with ‘decent work’, therefore poses problems. We might also recall how the EU’s espousal of sustainable growth and creation of employment led to hesitancy in the promotion of collective labour rights, particularly in the period immediately following the global financial crisis.66 While the von der Leyen Commission now claims to have adopted a ‘holistic’ approach,67 it is not clear how such tensions can readily be overcome. The solution set out in Article II(c) of the 1944 Declaration of Philadelphia could be of assistance, namely that social justice should take priority over economic and financial policies. However, there is a further problem, in that economic and social aims not only have to be reconciled with one another, but also with environmental objectives. Environmental concerns currently challenge previous advocacy of the benefits of economic growth, written into the 2030 Agenda and SDG 8,68 and may also pose problems for past assumptions regarding the dimensions of ‘decent work’. Attention to the environmental pillar of sustainability could have positive implications for labour rights, for example justifying an extended reach for collective worker voice beyond the now largely defunct idea of ‘the workplace’ to address health and safety concerns in the wider environment.69 However, giving full weight to environmental concerns could also justify restrictions on labour rights, as Paolo Tomassetti has acknowledged, for example curtailing access to a right to strike which generates environmental harms.70 This means that experimentation with sustainability as a normative base requires careful analysis and consideration. It has been observed that capabilities theory ‘needs to be supplemented by a theory of social choice, deliberative mechanisms, and a social theory about power in order to provide a full account of social justice and human rights’.71 Arguably, a sustainable development 62 See above n 39. 63 UN 2030 Agenda above n 2, Preamble. 64 A Trebilcock, ‘The ILO as an Actor in International Economic Law: Looking Back, Gazing Ahead’ (2019) European Yearbook of International Economic Law 3, 26. 65 F Maupain, The Future of the International Labour Organization in the Global Economy (Oxford, Hart, 2013), 22 and 26. See also ch 4. 66 cf Commission Communication, ‘Europe 2020: A strategy for smart, sustainable and inclusive growth’ COM(2010) 2020 final 3.3.10, discussed in Novitz above n 31, 261. 67 ‘The Commission’s Holistic Approach for Sustainability and the SDGs’. Available at: ec.europa.eu/info/strategy/ international-strategies/sustainable-development-goals/eu-holistic-approach-sustainable-development_en. 68 N Eisenmenger et al, ‘The Sustainable Development Goals Prioritize Economic Growth over Sustainable Resource Use: A critical reflection on the SDGs from a socio-ecological perspective’ (2020) 15(4) Sustainability Science 1101. See also G Kallis, ‘In Defence of Degrowth’ (2011) 70(5) Ecological Economics 873. 69 R Subasinghe and J Vogt, ‘Unions Must Join the Global Climate Strike to Avert Climate Catastrophe’ (2019) Equal Times. Available at: www.equaltimes.org/unions-must-join-the-global?lang=en#.Xxmw0p4za72. 70 See P Tomassetti, ‘Labor Law and Environmental Sustainability’ (2018) 40 Comparative Labour Law and Policy Journal 61; and P Tomassetti, ‘From Treadmill of Production to Just Transition and Beyond’ (2020) 26(4) European Journal of Industrial Relations 439. 71 J Fudge, ‘The New Discourse of Labour Rights: From Social to Fundamental Rights?’ (2007) 29 Comparative Labor Law and Policy Journal 29, 65.

98  Tonia Novitz discourse requires as much reflection, and perhaps more in that it demands engagement not only with the discipline of economics, but also with scientific and social evidence relating to environmental concerns. If the ILO intends to utilise a sustainability paradigm, and we have seen indications that this is the case, then these tensions will have to be addressed openly and rigorously. All that can be asserted with any confidence at this early stage is that a sustainability discourse seems likely to continue to stimulate debate and, in so doing, can offer opportunities for re-evaluating regulatory possibilities and pursuing justice in a changing world of work.

9 On the Irrelevance of Citizenship in the House of Labour ALAN HYDE

I. Introduction No project has occupied more time and energy of the world’s labour law scholars and policy-makers, over the past 30 years, than making provision for the 169 million people around the world working outside their country of origin.1 The United Nations maintains an International Convention on the Rights of All Migrant Workers and Their Families (1990), enacted as an international convention, rather than a convention of the International Labour Organization (ILO), precisely to emphasise its importance.2 There is a separate Global Compact for Safe, Orderly and Regular Migration.3 Longstanding ILO Conventions require that migrants be treated no less favourably than native workers as to remuneration, union participation, and social security.4 This principle of equality of treatment applies to workers who are not in lawful immigration status and whose status cannot be regularised.5 More recently, the ILO has compiled these and other nonbinding principals into a Multilateral Framework on Labour Migration (2006).6 The European Union (EU) has approached labour migration through a series of directives on [temporarily] posted workers.7 EU nationals who exercise their freedom of movement to work elsewhere in the EU can claim a contested suite of rights described as social citizenship. They are generally protected by local labour standards but not by local collective bargaining agreements.8 Social citizenship may also be extended under domestic law to migrants from outside the EU, who, for example, may be able to vote in elections for works councils even where they may not vote in general political elections.9 Hundreds of bilateral migration treaties address 1 ILO Global Estimates on International Migrant Workers: Results and Methodology 3rd edn (Geneva, ILO, 2021) 20. 2 Available at: ohchr.org/documents/ProfessionalInterest/cmw.pdf. 3 UNGA Res/73/195. un.org/en/ga/search/view_doc.asp?symbol=A/RES.73/195, in force as of 1 January 2019. 4 ILO Convention 97, Migration for Employment (1949), Art 6(1). 5 ILO Convention 143, Migrant Workers (Supplementary Provisions)(1975). 6 Available at: www.ilo.org/global/topics/labour-migration/publications/WCMS_178672/lang--en/index.htm. 7 Posted Workers Directive 96/71/EC, revised effective February 2022. Available at: https://osha.europa.eu/en/ legislation/directive/directive-9671ec-concerning-posting-workers. 8 D Friedrich, P Nanz, and K Blome, ‘Free Movement and the Emergence of European Social Citizenship’ (2012) 41 Österreichische Zeitschrift für Politikwissenschaft (ÖZP) 383. 9 See, eg, EE Korkmaz, ‘How do Turkey-origin Immigrant Workers in Germany Represent Themselves through Trade Unions and Works Councils’ (2018) 42 Economic and Industrial Democracy 716.

100  Alan Hyde the rights of migrant workers.10 New organisations have been created to represent migrant workers.11 The results of all this creativity range from the disappointing to the regressive, with the sole exception of EU nationals working in other EU countries, who are entitled to an increasing suite of social benefits. And even those EU nationals deemed posted workers may continue to be paid at the comparatively low rates of their home country, say in Eastern Europe, while working in an EU country with higher compensation.12 But apart from EU nationals working more-or-less permanently in another EU country, it is difficult to identify any migrants or group of migrants who have been helped in any way by the activity described in the last paragraph. They are routinely excluded from social benefits.13 The international conventions mandating equal treatment are weakly ratified and never enforced, not by the ILO in practice, not by the trade laws or private law instruments that increasingly incorporate core ILO standards. Bilateral agreements give migrants no rights they can enforce and may take away rights they had.14 The textbook examples of exploited migrant labour are just as exploited today as they were a generation ago. Construction work in emirates is conducted by migrants from South Asia trafficked into slave-like conditions.15 Household domestics and attendants are isolated and vulnerable to exploitation, including work without either pay or the ability to quit.16 The largest destination for migrant workers in Southeast Asia is the electronics industry in Malaysia, where migrants’ passports are confiscated; they work for very little in unsafe conditions; and are whipped if they try to quit.17 A Chinese tyre manufacturer constructed a factory in Serbia, said to be China’s largest industrial investment in Europe, using labourers recruited in Vietnam whose passports were confiscated. The laboureres were housed in pigsties without heat or hot water and denied the freedom to quit.18 10 A Chilton and B Woda, ‘The Expanding Universe of Bilateral Labour Agreements’ (2022), 23 Theoretical Inquiries in Law 1–64. A Chilton and E Posner, ‘Why Countries Sign Bilateral Labour Agreements’ (2018) 47 Journal of Legal Studies S45. 11 J Gordon, ‘Towards Transnational Labour Citizenship: Restructuring Labour Migration to Reinforce Workers’ Rights. A Preliminary Report on Emerging Experiments’ (2009). Available at: www.law.berkeley.edu/files/Gordon_ Transnatl_Labor_Final.pdf. 12 Case C-341/05 Laval un Partneri v Svenska Byggnadsarbetareförbundet (Laval) [2007] ECR I-11767. A Hyde and M Ressaissi, ‘Unions Without Borders: Recent Developments in the Theory, Practice, and Law of Transnational Unionism’ (2008) 14 CLELJ 271, 311–20. It remains to be seen whether the revision of the Posted Workers Directive effective 2020 will change this. It requires that posted workers be paid mandatory wages, not prevailing wages. T Novitz and R Andrijasevic, ‘Reform of the Posting of Workers Regime: An Assessment of the Practical Impact on Unfree Labour Relations’ (2020) 55 Journal of Common Market Studies 1325 (Serbian nationals posted to electronics manufacture in Slovakia on visitor visas, paid in cash without deductions for health or social security but with deductions for substandard housing). 13 J-M Lafleur and D Vintila, Migration and Social Protection in Europe and Beyond (Volume 1) (2020) (Heidelberg, Springer). See https://link.springer.com/book/10.1007/978-3-030-51241-5; EA Koning, Immigration and the Politics of Welfare Exclusion: Selective Solidarity in Western Democracies (Toronto, University of Toronto Press, 2019). 14 Lim v Offshore Specialty Fabricators, Inc, 404 F3d 898 (5th Cir 2005) (bilateral migration treaty between the Philippines and the United States (US) requires arbitration in Philippines of wage claims by Filipino workers in Louisiana, overriding state law making such arbitration agreements unenforceable). 15 M Qadri, ‘The UAE’s Kafala System: Harmless or Human Trafficking?’ (2020). See https://carnegieendowment.org/2020/07/07/uae-s-kafala-system-harmless-or-human-trafficking-pub-82188. 16 R S Parreñas, ‘The Indenture of Migrant Domestic Workers’ (2017) 45 Women’s Studies Quarterly 113. 17 SOMO Centre for Research on Multinational Corporations, Outsourcing Labour: Migrant Labour Rights in Malaysia’s Electronics Industry (Amsterdam, 2013). 18 A Higgins, ‘Giant Factory in Serbia Symbolizes Downsides of China’s Investments’ (23 January 2022) New York Times at 6. Available at: www.nytimes.com/2022/01/22/world/europe/china-serbia-vietnamese-workers.html.

On the Irrelevance of Citizenship in the House of Labour  101

II.  Time for a Fresh Approach: Rethinking Citizenship It is time for a fresh approach. Citizenship should not matter for labour law at all. Every human who works should be entitled to all the rights under the labour law where their body is.19 There should be neither Greek nor Jew in the house of labour law.20 All of this talk about posted or migrant workers just reinforces the idea that they call for some kind of special treatment. Labour law instead should insist that they are labour unmodified. This may seem very far from a new idea. As noted, since 1949 ILO Convention 97 has required that migrants be treated no less favourably than native labour as to remuneration, union representation, and social security; Convention 143 (1975) made clear that this obligation extends to migrants who are not in regular immigration status. Like other conventions of its era, Convention 97 was fairly extensively ratified by contemporary standards: 53 ratifications, including such migrant-receiving countries as Belgium, France, Germany, Israel, Italy, Netherlands, Norway, and the United Kingdom (Serbia, too). An analytic philosopher would no doubt insist that there is no semantic difference between a country treating noncitizens just as citizens, and that country’s taking no account of citizenship. Analytically, both are directions in which some factor is not considered. But these conventions play next to no role in the daily practice of the ILO and, unlike core rights, are not characteristically incorporated into trade agreements or corporate codes or framework agreements. I think that this shows that the pragmatics of holding citizenship irrelevant are different from the pragmatics of nondiscrimination, as I shall now explain. By citizenship, I mean the strictly juridical concept that is normally the same as nationality or subjecthood. It is the concept under which everyone on earth is a citizen of some country from which they derive rights, except for a few unfortunate stateless individuals who have been stripped of citizenship and have not acquired another. This kind of citizenship is descriptive and performative, but does not entail any particular suite of rights, such as voting or participation. Thus, one can be a citizen of North Korea or Equatorial Guinea. This juridical citizenship is also usually on or off; it does not usually admit gradations, almost never for the issues addressed in this chapter (citizen of A working in country B). Finally, I have yet to find any value in the use of ‘citizenship’ as a metaphor for inclusion, typically by political scientists, who speak of social or economic or cultural or substantive or quasi citizenship. The framework of this chapter is that working people have labour law rights by virtue of their work; these rights are theirs irrespective of their citizenship, indeed, all the more so if they are not citizens where they work. To try to solve this problem by inventing intermediate categories of citizenship is to invite strategic manipulation of a borderline that, I shall show, should rather be irrelevant or ignored. To put the point another way: non-citizens have many rights. Hannah Arendt was simply wrong to describe citizenship as ‘the right to have rights’. She was wrong when she made that statement, even more wrong now given the international law that Arendt wrongly thought impossible.21 Citizenship is thus a poor synonym for inclusion, as Linda Bosniak 19 This argument has much in common with L Bosniak, ‘Being Here: Ethical Territoriality and the Rights of Immigrants’ (2007) 8 Theoretical Inquiries in Law 389. Bosniak argues forcefully that territorial origins of rights must be supplemented by rights derived from transnational social connections. I agree, but for present purposes will argue only for a greater scope for rights deriving from the physical presence of a body in a territory. 20 Galatians 3:28. 21 H Arendt, The Origins of Totalitarianism 3rd edn (San Diego, Harcourt Brace) [1951] 298.

102  Alan Hyde has forcefully argued, since one must always ask automatically: but what about the noncitizens? What rights do they have?22 Getting the reader to acquire this automatic reaction may be the most important aim of this chapter. A half-century after TH Marshall, ‘citizen’ should move from a bland preferred metaphor for ‘rights holder’ into an inherently problematic, unstable, and slightly scary word that we should try to do without.23 This kind of juridical citizenship (hereafter, citizenship) is crucial in many legal contexts, so I do not believe that I am beating a dead horse. Citizenship largely determines where people vote, or obtain a passport, or settle. But knowing where a human votes or is theoretically permitted to vote or maintains a residence or holds a passport has no apparent connection to the labour laws that regulate the place where they work, their compensation, benefits, union representation, security, health, safety, or freedom from discrimination. My goal is to get you to find very strange any of the daily, ordinary invocations of the juridical concept of ‘citizen’. This may seem a large task. Every day, in thousands of mundane legal contexts, the different treatment of two otherwise identically situated individuals is justified on the purported ground that one is a citizen, and the other is not. Indeed, the justification of unequal treatment is the primary contemporary social and legal function of the concept of citizenship. We normally accept ‘because he or she is not a citizen’ as a complete justification. I do not think that we should. If I achieve my goal, readers who encounter this routine justification for different treatment should acquire the habit of asking, reflexively, so to speak: ‘What possible difference should that make?’ To a future generation, the purported justification ‘because she is a noncitizen’ will sound, already often sounds, as problematic and troubling as the non-justifications ‘because she is Black’ or ‘because she is a Jew’ or ‘because she is a woman’ sound to us.24 For make no mistake about it. In contemporary legal usage, the concept of citizen almost exclusively seeks to justify differential legal rights, privileges, or treatment, of otherwise identically situated individuals. It is this concept of citizenship that lets us go through a workplace at which many individuals perform identical tasks, and conclude that some have privileges that others lack, perhaps the very privilege to work or reside. The concept of citizen similarly lets us divide students taking the identical courses in the same university, secondary, or primary school. This kind of citizenship is powerful enough to sometimes divide members of the same nuclear family from each other, a division that in my country is not merely discursive but, increasingly, embodied, when one member of a family is deported to a country where they retain nominal citizenship but may not have seen for decades.25 Citizenship not only divides us one from another. It divides us from ourselves. Citizenship abstracts a legal person from a body.26 The human body may be in Germany or Japan or California, but the abstract legal person may be a citizen or national of Turkey or Korea or 22 L Bosniak, The Citizen and the Alien: Dilemmas of Contemporary Membership (Princeton, Princeton University Press, 2006) 1–12. 23 TH Marshall, Citizenship and Social Class (London, Pluto Press, 1992 [1950]) (three stages of ‘citizenship’ development: civil [ie, what this Article calls citizenship], political, and social rights). Recent European Community practice has not followed Marshall’s prediction, often extending social benefits to individuals who are not juridical citizens and lack political rights. C Joppke, Citizenship and Immigration (Cambridge, Polity, 2010) 164–72. 24 Cf D Kochenov, Citizenship (Boston MA, MIT Press, 2019); A Shachar, The Birthright Lottery: Citizenship and Global Inequality (Cambridge MA, Harvard University Press, 2010). 25 T Watson and K Thompson, The Border Within: The Economics of Immigration in an Age of Fear (Chicago, University of Chicago Press, 2021). 26 On law’s construction and deconstruction of the embodied self, see generally A Hyde, Bodies of Law (Princeton, Princeton University Press, 1997).

On the Irrelevance of Citizenship in the House of Labour  103 Mexico, deriving legal rights and privileges from a distant and abstract entity that the body may not have visited for years, maybe ever. The migrant may have no practical voice in the political life of either the country in which they are citizen, or the country in which they are resident. I do not mean to suggest that every modern person has such a tenuous relationship with his or her country of citizenship. For others, inside and outside their country of nationality, the relationship between the citizen and the nation is intensely emotional. But many others experience the entire relationship of ‘citizenship’ to be one between a disembodied self and an imagined community.27 So you see that I have little use for the concept of citizenship, and applaud the many around the world who work daily to efface its significance. I would be very happy if we were moving to a world in which anyone resident in a location for a few weeks, working and causing no trouble, would have the right to dignity, permanence, economic and political participation from and in the host country. And I would be very happy if labour law were the avant-garde of that revolution, the laboratory of anti-citizenship projects, in which a generation of treating citizenship distinctions as suspect, will have constructed the prototype model for larger social rejection of the concept of citizenship. But for present purposes, however, we will leave that thought experiment for another day and, instead, assume the vigorous stability of the current legal understanding of citizenship. That is, we will not challenge the following propositions. Each human in the world has a special relationship to one or more countries from which they derive rights and privileges even if not present there. Each country maintains its own laws on the acquisition of citizenship, largely free of international treaties or human rights law. There is, in fact, no international trend toward making citizenship more readily available. Most countries that have revised their citizenship laws recently have made the acquisition of citizenship more difficult.28 Our thought experiment will also assume the continued force of the following propositions of immigration law. Each state is normally free to decide who may enter and under what conditions. It may decide who may work. It may join the global rush for neoliberal immigration policies to attract the educated and talented.29 Or, like the US, it may strongly favour family members of current residents.30 International law has minimal purchase, requiring only that countries not expel migrants into threats to their life or freedom, and guaranteeing no right of any individual to be admitted to any territory in order to work. So differential treatment by citizenship, called immigration law, does not normally violate international law unless it rises to the level of a violation of human rights. We will have to question why labour law permits it. Conceding the continuing force of immigration law is a major concession, one forced upon me by the sad reality that recent UN covenants on migration and migrants have achieved exactly zero. However, as a matter of labour law, we will not accept the usual proposition of immigration law that a state’s privilege to control entry entails an equal privilege to expel or deport. For many migrant workers, this chapter’s advocacy of full labour law protection 27 B Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London: Verso, rev. edn 2006) [1991]; see also J Stevens, Reproducing the State (Princeton: Princeton University Press, 1999). 28 C Joppke, Citizenship and Immigration (Cambridge UK, Polity, 2010) 53–72, R Koopmans, P Statham, M Giugni, and F Passy, Contested Citizenship: Immigration and Cultural Diversity in Europe (Minneapolis: University of Minnesota Press 2005). 29 A K Boucher and J Gest, Crossroads: Comparative Immigration Regimes in a World of Demographic Change (Cambridge, Cambridge University Press, 2018). 30 A Hyde, ‘The Law and Economics of Family Unification’ (2014) 28 Georgetown Immigration Law Journal 355.

104  Alan Hyde would achieve nothing without this immigration law reform. If they can legally be deported or blacklisted for complaining of labour law violations, it matters little whether they are fully covered by labour law.31 So our proposed new transnational labour law, that takes aim at citizenship and requires states not to discriminate on the basis of citizenship, will – again, in the name of labour law – call states to account for deporting unauthorised migrant workers, rather than regularising their status. As we have already seen, citizenship performs the same function in labour law that it usually performs in any context: to justify the unequal treatment of otherwise identically situated individuals. Because the worker is posted, in EU parlance, they carry with them the lower labour standards of their country of origin. Because the worker is a migrant, they can be deported after the passage of time or for challenging the employer.

III.  And if Citizenship Disappeared from Labour Law? Citizenship would seem irrelevant to the project of labour law, which I take to be laws that guarantee dignity and security for all workers, wherever they work. One might have predicted that labour law would be the field in which the significance of citizenship would by now have eroded most completely. Since this has not happened, the question is, why not? What would happen if citizenship disappeared from labour law, so that all its provisions applied locally to anyone working there and whose body is therefore there? We don’t have to look very hard to determine why migrants are treated worse than native-born labour. They typically have no political power and little economic power. In ILO tripartism, the relevant decision-makers are a government for which migrants cannot vote, the employers who exploit them, and the unions that exclude them. Yet almost no one has defended this common discrimination on the basis of citizenship, on economic or moral or any other terms.32 Is there any possible justification for making the labour law that is applicable to a particular worksite or factory a function, even in part, of the workers’ citizenship? Is there any intellectual defence of the treatment of Vietnamese workers building a Chinese tyre factory in Serbia? The defences that I can think of do not convince. For example, one could imagine a defence based on a kind of crackpot Ricardianism in which low labour costs give Vietnam a comparative advantage in construction services, in what Jennifer Gordon has termed the ‘human supply chain’.33 In the basic Ricardian model taught in every economics textbook as the foundation of trade economics, a poor country like Vietnam or Bangladesh can gain from international trade, even if it is not the world’s most efficient producer of anything (absolute advantage). It need only have comparative advantage over more efficient producers, meaning low labour costs and low opportunity costs. This model remains basically valid. A good example is the explosive growth of 31 Jennifer Gordon and Audrey Macklin argued this particularly strongly (personal communication). 32 The refugee job compacts in Jordan and Ethiopia, which attempted to channel refugees to garment manufacturing jobs in export processing zones are one possible exception; see generally A Betts and P Collier, Refuge: Rethinking Refugee Policy in a Changing World (Oxford, Oxford University Press, 2017). The Jordanian plan explicitly attempted to segregate refugees from the general job market. The segregated garment zones failed in both countries, but Jordan did absorb some 45,000 Syrian refugees who work in sectors like construction and agriculture and are covered by normal Jordanian labour law. J Gordon, ‘The International Governance of Refugee Work: Reflections on the Jordan Compact’ (2021) 1 Global Public Policy and Governance 239–55. 33 J Gordon, ‘Regulating the Human Supply Chain’ (2017) 102 Iowa Law Review 445.

On the Irrelevance of Citizenship in the House of Labour  105 garment manufacture in Bangladesh. Bangladesh is not the world’s most efficient producer of anything. It has few natural resources, a largely unskilled labour force, no craft traditions that can enter global trade. Yet we have believed since David Ricardo that Bangladesh can benefit from free trade as long as it has comparative advantage, meaning low opportunity costs, over other producers of low-value-added manufacturing. China is a much more efficient producer of ready-to-wear garments than Bangladesh, but in China such production competes with higher value-added production, while in Bangladesh there is little competition for labour and resources. The past two decades have confirmed the Ricardo observation. In 1978, Bangladesh exported USD12,000 worth of garments. By 1984 the figure had risen to around USD31 million. Today Bangladesh annually exports around USD20 billion in garments. This accounts for 80 per cent of Bangladesh’s export earnings. Bangladesh is the second-largest manufacturer of garments in the world.34 And all this comes about for one reason: Bangladesh is a very cheap place to make garments. Its wages are a quarter of China’s.35 Bangladesh has no other natural or historical reason to be a leading garment manufacturer. With the rise of the ready-to-wear garment sector, median income has quintupled, and the poverty rate has dropped from 70 to 25 per cent.36 The labour rights advocate cannot deny this basic Ricardian model, but can certainly question the cost of this growth. Factories that collapse or catch fire suggest a weakness in how economists account for labour costs. Most trade economists operate within Stolper-Samuelson models in which labour is modelled merely as a (costly) factor in production and any increase in labour costs necessarily potentially threatens comparative advantage. This is puzzling because a generation ago, the New Trade Theory of Paul Krugman, Elkanan Helpman and others introduced non-rivalrous information and increasing returns into trade models (eg so that sites of production may reflect high knowledge rather than low production costs).37 Yet labour is still treated by trade economists exclusively as an expensive factor of production. This is a very incomplete understanding. When children leave factories and go to school, or when factories do not collapse on workers, this may be described as an increase in labour costs. But a healthy and educated workforce increases, rather than decreases, the comparative advantage of Vietnam or Bangladesh.38 So there is a large scope for new economic models of trade with a more sophisticated account of the relationship between labour costs and comparative advantage. However, even a simple economic model, in which low labour costs are equated with comparative advantage, does not explain or justify slavery-like working conditions for Vietnamese labourers in Serbia. Vietnam does not derive comparative advantage under any recognised trade models when its citizens build a factory in Serbia for a Chinese 34 J Hossain, M Ahmed, and J Sharif, Linking Trade and Decent Work in Global Supply Chains in Bangladesh (Dhaka, Friedrich-Ebert-Stiftung, 2018). 35 ILO, Wages and Productivity in the Garment Sector in Asia and the Pacific and the Arab States, wcms 534289, (Geneva 2016) 4. 36 Hossain et al, above n 34, 1. 37 PR Krugman, Rethinking International Trade (Cambridge MA, MIT Press, 1990). 38 S Braun, ‘Core Labour Standards and FDI: Friends or Foes? The Case of Child Labour’ (2006) 142 Review of World Economics 765 (child labour deters foreign direct investment); M Busse and S Braun, ‘Export Structure, FDI and Child Labour’ (2004) 19 Journal of Economic Integration 804 (foreign direct investment flows are negatively correlated with child labour, even among developing countries), EV Edmonds and N Pavcnik ‘The Effect of Trade Liberalization on Child Labour’ (2005) 65 Journal of International Economics 401 (trade liberalisation increases school attendance, particularly for girls), M Hussain and K E Maskus, ‘Child Labour Use and Economic Growth: An Econometric Analysis’ (2003) 26 World Economy 993 (countries with higher amounts of child labour have lower human capital in the future).

106  Alan Hyde manufacturer. Given the low wages, few remittances are sent to Vietnam. And, in the normal situation in which migrants do send remittances to their home country, advantages to Vietnam (in this example) would be increased if the Vietnamese labourers were to be compensated at Serbian rates and represented by Serbian unions. The current situation only benefits the factory owner, not the workers or their country of citizenship. A second possible defence of making citizenship salient might be some variant of: a country may always prefer its own citizens and is not obligated to extend the same rights and privileges to citizens of other countries. Whatever the validity of the general proposition, it obviously has no application to Vietnamese workers who are already physically labouring in Serbia. Assume that Serbia could legitimately have insisted that those construction jobs go to Serbian citizens and denied entry to non-Serbian citizens who are not refugees. Having passed up that decision and having allowed Vietnamese nationals to enter Serbia to perform construction work, Serbian citizens derive no benefit from excluding those noncitizen workers from Serbian labour law. On the contrary, the availability of foreign labour, and a system of labour law that excludes foreign citizens from protection, is a direct threat to whatever labour rights Serbian workers and labour organisations have managed to win from the state or their employers. I think the intellectual excitement of the past 30 years or so has emphasised the migrant or posted status of those Vietnamese workers and assumed that it is this status that calls for special rules and institutions, in a larger project of ‘de-territorialising labour law’.39 This has been and is an exciting project. It links interestingly with larger philosophic and political projects conceptualising cosmopolitanism and globalisation. I am not declaring it dead. But its achievements have been very disappointing and reframing is now in order, focusing instead on the fact that those workers are workers in Serbia. The task of creating new norms and institutions of transnational labour law – de-territorialising – will, of course, continue. But, in our present imperfect world, those workers need protection today, coming from Serbian labour law officials and unions, against their employers. They cannot wait for ‘deterritorialised’ transnational institutions that do not yet exist. The difficulties that noncitizen workers face when attempting to assert local ‘territorialized’ labour rights are well-known – employers who keep them ignorant and isolated, indifferent local institutions, language barriers – and need to be addressed locally. I do not think we need any new ILO Conventions to advance this goal. Conventions 97 and 143 just need to be read in this framework and become more central in the labour rights practice of the ILO, national governments, and worker advocates. That is, the requirement of ‘treatment no less favourable’ needs to be interpreted, in practice, as a requirement that the citizenship of a worker actually working in a particular territory be entirely irrelevant for labour law. Anyone physically working in a place is covered by labour law. Article 9 of Convention 143 already makes clear that this obligation applies even if immigration laws, that would have denied permission to be there, have not been respected. Physical presence and actual work are the relevant factors, never citizenship. Governments and labour organisations should be called to task more frequently to account for their efforts on behalf of the noncitizens in their territory. They should be asked to justify the expulsion of migrants, rather than regularising their status. And the irrelevance of citizenship should find a place among the labour rights included in private law instruments, trade agreements, and domestic trade law.

39 G

Mundlak, ‘De-Territorializing Labour Law’ (2009) 3 Law and Ethics of Human Rights 188.

10 Restrictive Visa Schemes and Global Labour Justice VIRGINIA MANTOUVALOU

I. Introduction The treatment of migrant workers is central in discussions on global labour justice.1 These workers are in a position of disadvantage for several reasons, such as their race or gender, language barriers, lack of support networks, and limited knowledge of their legal rights and avenues to claim them in the host country. In addition to these factors, restrictive migration schemes increase existing vulnerabilities, and are connected to widespread structures of exploitation at work. Employers take advantage of workers’ vulnerability by offering to them exploitative conditions, with patterns of exploitation affecting primarily those in low-paid sectors, such as domestic work or agriculture. In her seminal work on structural injustice, Iris Marion Young placed her attention on political responsibility of consumers for the treatment of workers on the basis of a ‘social connection model’ of responsibility.2 Building on scholarship on the concept of structural injustice, in this chapter I focus on migrant workers and argue that receiving states have both political and legal responsibility for workers’ exploitation because of their role in enacting restrictive visa schemes that constitute ‘state-mediated structures of exploitation’.3 In order to develop my argument, I focus on an especially vulnerable work sector, domestic work. I first discuss temporary labour migration, before turning to the UK Overseas Domestic Worker (ODW) visa in more detail and argue that schemes with particularly restrictive terms increase the vulnerability of these workers while both employers and whole economies benefit from this situation. I also explain that states with such schemes may have responsibility under human rights law to change the rules connected to the unjust structures in question.

1 For an overview of debates on global justice and workers’ rights, including the treatment of migrant workers, see Y Dahan, H Lerner and F Milman-Sivan (eds), Global Justice and International Labour Rights, (Cambridge, Cambridge University Press, 2016). 2 IM Young, ‘Responsibility and Global Labor Justice’ (2004) 12 Journal of Political Philosophy 365. 3 See V Mantouvalou, ‘Structural Injustice and the Human Rights of Workers’ (2020) 73 Current Legal Problems 59.

108  Virginia Mantouvalou

II.  Temporary Labour Migration Temporary labour migration programmes are schemes whereby migrant workers arrive in a country to work, but this often does not come with a route to permanent residence or citizenship. The schemes typically contain a number of restrictions, creating in this way special vulnerability to the workers who are affected. They may impose limitations in terms of the length of time that the migrant worker can stay in a country, but also other restrictions, such as binding the worker to a particular work sector or a particular employer, to the right to be accompanied by family members or form relations with locals.4 Temporary migrant workers also have no political rights.5 Such regimes are used in many legal orders and there is no single legal definition of them. This type of controlled migration is not new. In the twentieth century what are known also as ‘guestworker programmes’ were used in many countries, including Germany, South Africa and the United States. It is often said that the schemes constitute a ‘triple-win’: they are beneficial for the country of nationality of the worker, the country of destination and the workers themselves. However, the history of temporary labour migration schemes shows that in reality they create ‘perfect immigrants’. Host states do not have to plan their integration and social support as they are only there temporarily.6 Employers view them as ‘an unqualified good’ because it is a ‘fully flexible and temporary workforce’.7 The workers, in turn, accept jobs in sectors with substandard working conditions that others find backbreaking or repellent because they need to send remittances to their dependents in their home country where the incomes are much lower.8 There are only two winners: the host state (the national economy and the employers) and the workers’ country of origin. The host state’s national economy benefits from temporary migrant workers because they contribute to the economy through their work and even through being taxed without the state having to be concerned with their integration. The employers benefit from the fact that the migrant workers are temporary, and can be discarded as soon as they are no longer able or needed to do the work.9 The workers’ country of origin benefits from the remittances that they send. The migrant workers, on the other hand, are regularly exploited and trapped in a situation from which they cannot escape for they will then become undocumented and even more precariously employed. In fact, it has been argued that the schemes are structurally exploitative not only for the workers who migrate to work but also for the local workers, because their conditions keep wages and working conditions low for all.10 When it comes to

4 See, for instance, D Rajkumar, L Berkowitz, LF Vosko, V Preston and R Latham, ‘At the Temporary–Permanent Divide: How Canada Produces Temporariness and Makes Citizens Through its Security, Work, and Settlement Policies’ (2012) 16 Citizenship Studies 483. 5 See the discussion in M Walzer, Spheres of Justice (New York, Basic Books, 1984) p 56 ff and particularly 59. 6 C Hahamovitch, ‘Creating Perfect Immigrants: Guestworkers of the World in Historical Perspective’ (2003) 44 Labor History 69 at 73. 7 R Chin, The Guest Worker Question in Postwar Germany (Cambridge, Cambridge University Press, 2007) 45. 8 MJ Piore, Birds of Passage: Migrant Labour and Industrial Societies (Cambridge, Cambridge University Press, 1979 and online 2009). 9 Chin, above n 7, 45–46. 10 L Ypi, ‘Taking Workers as a Class – The Moral Dilemmas of Guestworker Programs’ in S Fine and L Ypi (eds), Migration in Political Theory – The Ethics of Movement and Membership (Oxford, Oxford University Press, 2016) 151.

Restrictive Visa Schemes and Global Labour Justice  109 the legal regulation of the schemes, scholars have observed that it has tended to privilege the interests of capital rather than the interests and rights of migrant workers.11 In designing the schemes, states focus on the needs of businesses, and attempt to develop rules that respond to those primarily, rather than the protection of workers’ rights. As states have a right to control entry of non-nationals, they generally put forward special justifications to allow migrant workers to be admitted. A typical justification that governments use in order to introduce temporary labour visas involves alleged labour shortages.12 The argument is that there are sectors where there are not enough people willing to do the necessary work, so there is a need for migrant workers in order to fulfil the tasks for which no local workers are available in the host country. The concept of labour shortages has been questioned both conceptually and empirically.13 The particular concern for me here, though, is that restrictive schemes that tie a worker to a work sector or an employer are linked to widespread patterns of exploitation. Immigration rules create special relations of dependency on the employer, in addition to the standard inequality of power that characterises the employment relationship, and hence precarious work. This is because workers under a restrictive visa who lose their job may also lose their accommodation, if they are staying at the employers’ premises, as well as the right to reside in the country, which may result in immigration detention and deportation. Not only that, but if they have been victims of trafficking, they may be vulnerable to be re-trafficked and exploited all over again. Temporary labour migration schemes contain a number of restrictive rules, which differ across the world.14 One of the most well-known systems for its negative effects on workers’ rights is kafala in Gulf countries. There are different variations of kafala in different Gulf countries. The main characteristics of kafala are that a migrant needs a visa in order to enter a country and there has to be a sponsor for the visa; a visa is necessary to exit the country or change employer whereby the sponsor declares that they do not object to the worker leaving the country or changing sponsor; sometimes there is also a requirement for a deposit, a sum of money paid by the sponsor for costs that involve the worker.15 Another well-known temporary workers’ scheme was the German scheme of guestworkers which was initiated in the 1950s in order to support the country’s economic growth after the war.16 Israel also used to have very restrictive immigration rules for migrant workers.17 In order to work in Israel, migrant workers used to require a visa that regulated the length of

11 J Howe and R Owens, ‘Temporary Labour Migration in a Global Era: The Regulatory Challenges’ in Howe and Owens (eds), Temporary Labour Migration in the Global Era: The Regulatory Challenges (Oxford, Hart, 2016) 3–4. 12 ‘Temporary Labor Migration Programs: Governance, Migrant Worker Rights and Recommendations for the UN Global Compact for Migration’ (2018) Economic Policy Institute. Available at: www.epi.org/publication/ temporary-labor-migration-programs-governance-migrant-worker-rights-and-recommendations-for-the-u-nglobal-compact-for-migration/ 13 B Anderson and M Ruhs (eds), Who Needs Migrant Workers? (Oxford, Oxford University Press, 2010). 14 For a discussion of a few different examples, see PT Lenard and C Straehle, ‘Temporary Labour Migration: Exploitation, Tool of Development, or Both?’ (2010) 29 Policy and Society 283. 15 See OH AlShehabi, ‘Policing Labour in Empire: The Modern Origins of the Kafala Sponsorship System in the Gulf Arab States’ (2019) 48 British Journal of Middle-Eastern Studies 291–310. 16 On this, see Chin, above n 7. 17 Discussed in E Albin, ‘The Sectoral Regulatory Regime: When Work Migration Controls and the Sectorally Differentiated Labour Market Meet’ in C Costello and M Freedland (eds) Migrants at Work (Oxford, Oxford University Press, 2016) 134 at 141.

110  Virginia Mantouvalou their stay and the name of the employer for whom they would work. The visa bound the worker to the specific employer, who was also responsible for the departure of the worker at the expiration of the visa. It also determined the length of stay. This visa was said to be linked to patterns of exploitation and abuse of migrant workers, facilitating employers who took advantage of the visa restrictions, as well as other legal exclusions from protective laws,18 and was eventually abolished after a ruling of the Supreme Court of Israel to which I return below. In what follows, I focus on domestic work to show the effects of a restrictive visa on this group of workers, and explain what responsibilities arise in this context.

III.  Domestic Work An example of a very restrictive visa scheme for domestic workers in Europe is the UK ODW visa. Domestic workers are workers undertaking various household tasks, such as cleaning, cooking, caring for children or the elderly. They are sometimes employed parttime, working for a few hours a day for different employers or full-time working for one employer. Some domestic workers live in the employers’ household. These live-in domestic workers are mostly migrants, both in the Western world and elsewhere.19 They migrate to work as domestic workers and send income generated through their work back to their families.20 An important particularity of the sector is that domestic workers have very few opportunities to develop social relations at work: they are isolated and do not have a circle of co-workers with whom they regularly interact. This also creates challenges for attempts to unionise. It is hard for trade unions to reach out to workers who work in private households. The great majority of domestic workers are women.21 Paid domestic work is on the rise for many reasons, such as wealth inequality, the increased participation of women in the labour market outside home in many developed countries and the marketisation of care provision.22 Without paid domestic workers, the labour force would look different today because the women who have historically been in charge of household tasks, such as care work and cleaning, would not be able to work outside the home. Domestic work sets challenges to feminist thought. Women participate in the labour market outside the home in many countries and achieve in this way greater equality to men. However, to do this

18 ibid, 142. 19 Some data are available in the ILO Report ‘Promoting Decent Work for Domestic Workers’ (Geneva, ILO, 2010) para 20. For analysis, see B Anderson, Doing the Dirty Work? The Global Politics of Domestic Labour (London, Zed Books, 2000). 20 See generally B Anderson and I Shutes (eds), Migration and Care Labour: Theory, Policy and Politics (London, Palgrave Macmillan, 2014). 21 ILO Report, above, n 19, para 21. For analysis, see B Ehrenreich and A Russell Hochschild (eds), Global Woman (New York, Metropolitain Books, 2002); H Lutz, The New Maids: Transnational Women and the Care Economy (London, Zed Books, 2011) 18. 22 See P Hondagneu-Sotelo, Doméstica (Berkeley and London, University of California Press, 2001) chapter 1; Ehrenreich and Russell Hochschild, ‘Introduction’, in Global Woman, above n 21; I Shutes and C Chiatti, ‘Migrant Labour and the Marketisation of Care for Older People: The Employment of Migrant Care Workers by Families and Service Providers’ (2012) 22 Journal of European Social Policy 392.

Restrictive Visa Schemes and Global Labour Justice  111 they have to employ other, often migrant women, to perform cleaning and caring duties at home.23 This is why it has been suggested that the feminist project is unfinished.24 Aragon and Jaggar examined migrant domestic labour as an instance of structural injustice at global level.25 Looking at the combination of structural factors that led to the development of the industry, they developed a powerful argument that the overall system is unjust, and that everyone who benefits from it participates in the injustice and has a responsibility to resist on the basis of structural complicity: ‘Because people are tainted by their participation, they have a political responsibility to work toward remedying this structurally unjust industry’, they maintained.26 What I want to highlight further here is that the law also creates a special vulnerability that is linked to structures of exploitation.27 This work sector is excluded from protective rules or treated differently to other workers in several fields, such as working time regulation,28 regulation of night work29 or occupational health and safety protection.30 A 2016 study of the ILO found that 60 million of the world’s 67 million domestic workers have no access to social security.31 In addition, immigration rules are particularly problematic.32 Temporary migration schemes for this kind of work, which does not depend on seasonal factors, create the sense that workers work for a family rather than being part of the labour market.33 The UK ODW visa, which is a particularly restrictive scheme, effectively ties domestic workers to the employer with whom they arrived in the country. The recent history of the scheme shows how it was developed and maintained despite evidence of abuse and exploitation, as well as persistent calls for reform. Since 1998, immigration rules allowed domestic workers to change employers but not work sector. After five years, the worker could apply for settlement. The Draft ILO Multilateral Framework on Labour Migration of 200534 and the UN Special Rapporteur on the Human Rights of Migrants cited the 1998 ODW visa as best practice,35 while the impact of this route of immigration on net migration was negligible.36 However, in 2012, the

23 Bridget Anderson shows how the employer of the domestic worker is the woman of the household. See Anderson, Doing the Dirty Work, above n 19; B Anderson, ‘Why Madam Has so Many Bathrobes?: Demand for Migrant Domestic Workers in the EU’ (2001) 92 Journal of Economic and Social Geography 18–26. 24 Ehrenreich, ‘Maid to Order’, in Global Woman, supra n 21, 103. See also Anderson, ‘Why Madam?’ supra n 23. 25 C Aragon and AM Jaggar, ‘Agency, Complicity, and the Responsibility to Resist Structural Injustice’ (2018) 49 Journal of Social Philosophy 439. 26 ibid, 453. 27 V Mantouvalou, ‘Human Rights for Precarious Workers: The Legislative Precariousness of Domestic Labor’ (2012) 34 Comparative Labor Law and Policy Journal 133. On the role of the law in the regulation of domestic work, see A Blackett, Everyday Transgressions – Domestic Workers’ Challenge to International Labor Law (New York, Cornell University Press, 2019). 28 ILO Report, above n 19, 48–50. 29 ibid. 30 ibid, 61 ff. 31 ILO Report, ‘Social Protection for Domestic Workers: Key Policy Trends and Statistics’ (Geneva, ILO, 2016). 32 On domestic work and migration, see M Galliotti, ‘Making Domestic Work a Reality for Migrant Domestic Workers’, ILO Domestic Work Policy Brief No 9 (Geneva, ILO, 2015). 33 ILO Report, supra n 19, 10. 34 Draft ILO Multilateral Framework on Labour Migration. Available at: www.ilo.org/public/english/standards/ relm/gb/docs/gb295/pdf/tmmflm-1.pdf, para 82. 35 See www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=4c0623e92, paras 60–61. 36 M Lalani, Ending the Abuse – Policies that Work to Protect Migrant Domestic Workers (London, Kalayaan, 2011).

112  Virginia Mantouvalou UK Government introduced a visa regime that did not permit domestic workers to change employer. This occurred against the backdrop of an outcry by domestic workers’ organisations that emphasised that the rules would trap domestic workers in serious exploitation and abuse. Two years after the new visa was put in place briefings from Kalayaan, the main UK-based NGO on the rights of domestic workers, showed that workers registered with them who entered the UK on the 2012 visa reported significantly worse treatment than those who were not tied to their employer during the same period of time but under the previous regime. This was confirmed in subsequent years.37 In an empirical study that I conducted, a series of interviews with migrant domestic workers who came to the UK after 2012, the pattern was clear.38 Domestic workers under the UK ODW visa were exploited, living and working in appalling conditions, and were being abused. Perhaps even more importantly, the workers whom I interviewed had become undocumented after they escaped their abusive employers. They became trapped in this way in ongoing cycles of exploitation by employers who were aware of their legal status as undocumented workers. A further well-documented example of a restrictive visa scheme in the domestic work sector is the Live-in-Caregiver Programme in Canada. The key feature of this that was described as problematic was the requirement that the workers live in the employer’s home.39 Scholars argued that the scheme exacerbates the vulnerability of this group of workers to exploitation.40 It was particularly emphasised that domestic workers have a clear preference to live out, because when they live in the employer’s household, there is an expectation of constant availability by the employer and significant restrictions on workers’ autonomy, to such an extent that they cannot have a private or family life.41 In 2014, the requirement to live in the employers’ household was removed. Temporary labour migration schemes increase and compound workers’ vulnerability to exploitation. States have political responsibility because they have adopted restrictive immigration rules that create this situation. Can it also be said that they have legal responsibility for the rules in question?

IV.  Responsibility under Human Rights Law In what follows I argue that receiving states may have legal responsibility under human rights law to change the visas in question. To support this, I focus primarily on European human 37 See the briefings of the NGO Kalayaan at www.kalayaan.org.uk/. See also Human Rights Watch, ‘Hidden Away’, March 2014. See also Centre for Social Justice Report, ‘It Happens Here’, March 2013; A Boff, ‘Shadow City, Exposing Human Trafficking in Everyday London’ GLA Conservatives, October 2013; F Field MP, ‘Report of the Modern Slavery Evidence Review’, December 2013; UN Special Rapporteur on Violence Against Women, 15 April 2014, www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14514&LangID=E. 38 See V Mantouvalou, ‘“Am I Free Now?” Overseas Domestic Workers in Slavery’ (2015) 42 Journal of Law and Society 329. 39 E Galerand, M Gallié and J Ollivier Gobeil in collaboration with PINAY and the Service aux collectivités of UQAM, ‘Domestic Labour and Exploitation: The Case of the Live-In Caregiver Program in Canada,’ 2015. Available at: http://socialtravail.uqam.ca/files/2015/06/15.01.09_rapport_en_vu1.1.131.pdf. 40 C Straehle, ‘Global Justice, Temporary Migration and Vulnerability’ (2012) 5 Global Justice: Theory, Practice, Rhetoric 71. 41 Blackett, above n 27, 65–68.

Restrictive Visa Schemes and Global Labour Justice  113 rights law. I begin by looking at the prohibition of slavery, servitude, forced and compulsory labour. The European Court of Human Rights (ECtHR) requires a strong element of coercion when examining whether there is a violation of Article 4 of the European Convention on Human Rights (ECHR) which contains this prohibition but has ruled on several occasions that migrant workers face such coercion.42 The first judgment that examined the treatment of a migrant worker under Article 4 was Siliadin v France.43 This involved a migrant domestic worker who was brought to France from Togo at the age of 15 years and 7 months and was even more vulnerable because of her age. She had been promised that she would work, be sent to school and that her immigration status would be regularised, but was instead kept as a domestic worker for many years. She worked for 15 hours a day with no pay and no day off, she slept on the floor in the children’s room and her passport was withheld. Her immigration status was never regularised. In this case, the Court recognised that the vulnerability of the applicant that was partly due to her immigration status44 and imposed a duty on the authorities to legislate in order to criminalise this treatment by the employers. Many European countries have complied with this obligation following Siliadin.45 The case has been followed by a line of applications which involved the serious abuse and exploitation of migrant domestic workers. In CN v UK,46 for instance, the Court explained specifically that ‘domestic servitude […] involves a complex set of dynamics, involving both overt and more subtle forms of coercion, to force compliance’, which requires ‘an understanding of the many subtle ways an individual can fall under the control of another’.47 These cases recognised that serious labour exploitation falls under the scope of Article 4 of the ECHR and that migrant workers are prone to it, led to an assessment of the legal framework in many legal orders and also, crucially, increased the visibility of a group of workers whose work is traditionally undervalued and invisible. The legal obligation on which the Court was asked to focus in this case law was the obligation to criminalise employers’ conduct and enforce criminal law, rather than immigration or labour laws that make workers vulnerable to exploitation. Monitoring of workers’ living and working conditions can be important in the context of a well-functioning labour inspection system. The imposition of an obligation on states to criminalise and prosecute alone, though, centres on individual responsibility of unscrupulous employers, not on structural factors that make workers vulnerable to such treatment. If investigations are solely tied to the criminal justice system, it is hard to see how they can lead to structural change or address systemic problems, such as those that are due to restrictive visas. However, the ECtHR recognised that very restrictive visa schemes create vulnerability to exploitation in contravention of the Convention in Rantsev v Cyprus and Russia.48 This 42 For a detailed account of the development of the case law under Art 4, see V Stoyanova, Human Trafficking and Slavery Reconsidered (Cambridge, Cambridge University Press, 2017). For a thorough analysis of the concept of exploitation in this context, see M Jovanovic, ‘The Essence of Slavery: Exploitation in Human Rights Law’ (2020) 20 Human Rights Law Review 674. 43 Siliadin v France, App No 73316/01, Judgment of 26 July 2005. 44 ibid, para 126. 45 See, eg, the UK Modern Slavery Act 2015. For a critical account, see V Mantouvalou, ‘The UK Modern Slavery Act Three Years On’ (2018) 81 Modern Law Review 1017. 46 CN v UK, App No 4239/08, Judgment of 13 November 2012. 47 ibid, para 80. 48 Rantsev v Cyprus and Russia, App No 25965/04, Judgment of 7 January 2010.

114  Virginia Mantouvalou involved a woman from Russia who arrived in Cyprus under an ‘artiste visa’. An ‘artiste’ was defined in the legislation as ‘any alien who wishes to enter Cyprus in order to work in a cabaret, musical-dancing place or other night entertainment place and has attained the age of 18 years’.49 Under this scheme, Ms Rantseva received a temporary work and residence permit. Having worked at a cabaret for three days, she escaped, only to be captured soon after and taken to the police. Since her immigration status was not irregular, the police returned her to her employer. Later that night she was found dead on the street below the flat where she was staying. The case was taken to the ECtHR by the victim’s father, who claimed that Russia and Cyprus had breached Article 4 of the Convention (among other provisions). Cyprus produced a unilateral declaration requesting that the case be not further examined, but the Court rejected it because of the seriousness of the issues raised. In relation to the immigration rules, of particular concern was the fact that cabaret managers made an application for an entry permit for the artiste in a way that rendered the worker dependent on the employer or agent and in this way vulnerable to human trafficking.50 The Court found that the obligation of the employers to inform the authorities if an artiste leaves her employment is a legitimate means to the end of monitoring compliance with immigration law. However, it is only the authorities that should take steps for non-compliance. Monitoring compliance cannot be the duty of the manager. This is why the Court was particularly troubled by the practice of asking cabaret owners and managers to lodge a bank guarantee covering artistes that they employed. This gave cabaret owners and managers significant power to control cabaret dancers by encouraging them to track down artistes who are missing or otherwise take personal responsibility for them. Relying on comments of the Council of Europe Commissioner for Human Rights, the Court emphasised that the authorities knew or ought to have known that the visa was problematic. The Commissioner had criticised the aspect of the scheme, whereby cabaret managers had to apply for the artiste, making the artiste dependent on her employer or agent and increasing the risk of exploitation. The Commissioner also criticised the visa for making it very challenging for law enforcement authorities to tackle trafficking and explained that it could be viewed as contradicting anti-trafficking measures.51 In light of this, the Court ruled that Cyprus had violated the Convention.52 We can also find an example from a national legal order, Israel, where a court has assessed the compatibility of very restrictive visa rules with human rights law. Under the Israeli scheme in question, the visa stated the worker’s length of stay and the name of the employer. The worker only had the right to work for the specific employer and for the period stated on the visa, while the employer was also in charge of the worker’s departure from Israel upon expiry of the visa. The Government claimed that the aim of the scheme was legitimate, as its purpose was the control of immigration. However, it was challenged before the Israeli Constitutional Court. The Court ruled that the visa scheme violates human dignity and breaches the Constitution by creating a situation that was described as foreign to labour

49 ibid, para 113. 50 ibid, paras 89, 91, 94, 100. 51 ibid, para 291. 52 The Court also ruled that Russia violated the ECHR with respect to its procedural obligations under article 4. Other case law that followed paid further attention to obligations of member states to investigate effectively cases of human trafficking. See the Grand Chamber case SM v Croatia, App No 60561/14, Judgment of 25 June 2020.

Restrictive Visa Schemes and Global Labour Justice  115 law principles and to the contract of employment.53 The Vice-President of the Court said that ‘we cannot avoid the conclusion – a painful and shameful conclusion – that the foreign worker has become his employer’s serf, that the restrictive arrangement with all its implications has hedged the foreign worker in from every side and that the restrictive arrangement has created a modern form of slavery’.54 The UK Overseas Domestic Worker visa was specifically discussed in a Report of the Group of Experts on Action against Trafficking in Human Beings (GRETA), which is the specialist body of the Council of Europe monitoring the implementation of the Convention on Action Against Trafficking in Human Beings.55 The GRETA Report explained that the UK Overseas Domestic Worker visa is problematic and underlined the necessity for labour inspections in private households, which is a topic that the European Committee of Social Rights has also examined in this context. It also asked the authorities to implement the recommendations of an independent report on the visa commissioned by the UK Government, which proposed that domestic workers should have an unconditional right to change employer.56 If we compare the UK visa to the Cypriot visa scheme in Rantsev, the latter was more restrictive. However, the vulnerability created by this visa to the workers is very significant. It traps them in employment relations that violate their rights, both while employed by the employer to whom the visa ties them and if they escape, as they become undocumented. The GRETA Report and materials of other human rights organisations that have criticised the ODW scheme,57 together with evidence on the working conditions of these workers, can provide a basis for the ECtHR to rule that the visa violates principles of the ECHR under Article 4 as well as other provisions of the Convention.58

V.  Bringing about Change There is no question that the reasons why migrant workers are vulnerable to exploitation are many and not exclusively created by law, as mentioned earlier in this piece. Global inequality and poverty are key structural features of the world order, constituting a central reason why many people migrate. These features cannot change with decisions of human rights bodies. Structural change is a complex process. Many different actors need to mobilise and a variety of avenues need to be pursued to achieve this. Aragon and Jaggar argued that we all have political responsibility to act against the exploitation of workers in the domestic labour sector, for instance, because of structural complicity. They proposed a number of ways in

53 Kav-Laoved v Government of Israel, HCJ 4542/02, 2006, [2006] (1) IsrLR 260. See the discussion in Albin, above n 17. 54 ibid, 313–14. 55 GRETA (2021)12, Evaluation Report – United Kingdom, 20 October 2021. Available at: https://rm.coe.int/ greta-third-evalution-report-on-the-united-kingdom/1680a43b36. 56 J Ewins, Independent Review of the Overseas Domestic Workers Visa: Final Report, 6 November 2015. 57 V Mantouvalou, ‘Labour Rights in the European Convention on Human Rights: An Intellectual Justification for an Integrated Approach to Interpretation’ (2012) 12 Human Rights Law Review 529; KD Ewing and J Hendy, ‘The Dramatic Implications of Demir and Baykara’ (2010) 39 Industrial Law Journal 2. 58 See N Sedacca, ‘Migrant Domestic Workers and the Right to a Private and Family Life’ (2019) 32 Netherlands Quarterly of Human Rights 288.

116  Virginia Mantouvalou which we can act so as to deliver these responsibilities and support domestic workers.59 Political mobilisation of workers and other citizens, and activism are undoubtedly crucial. Organising precarious workers, particularly those under seasonal visas or undocumented workers, is challenging but is also of fundamental importance both at national and at global level.60 Moreover, legal avenues can provide opportunities for change. Legal rules should not tie migrant workers to a specific employer nor should they require them to live in the employer’s premises. Seasonal workers or other workers under temporary visas should have a right to permanent settlement. In this chapter, I examined human rights law as a tool that has potential to challenge aspects of unjust structures built by immigration rules. I discussed case law of the ECtHR and some national legal orders which have found that particularly restrictive visa schemes are incompatible with human rights duties. State authorities tend to comply with these rulings and change the laws under consideration. Strategic litigation can play in important role in identifying the right cases and the fora where the cases should be pursued.61 Non-judicial bodies, such as GRETA, the ECSR and the ILO, have further highlighted the problems faced by precarious migrant workers under restrictive visas and by undocumented workers. Even though levels of compliance with their findings may not be as high as levels of compliance with judicial decisions, they are still influential: for instance, their reports are used by civil society groups, trade unions and other actors that pursue change, and also feed into the case law of national and supranational courts. Synergies between the various actors – individuals, trade unions and other civil society organisations – will be crucial when pushing for this change to occur. All these actors and avenues can help hold states accountable for their contribution to workers’ exploitation and dismantle the unjust structures in question.

59 Aragon and Jaggar, above n 25, 453–55. 60 See, eg, the International Domestic Workers Federation. Available at: https://idwfed.org/en. 61 On the effects of strategic human rights litigation, see H Duffy, Strategic Human Rights Litigation – Understanding and Maximising Impact (Oxford, Hart, 2018) Chapter 4.

11 Persistent Gender Gaps: Past Priorities, Future Prospects for the Pursuit of Equality in the World of Work SHAUNA OLNEY

I. Introduction The path to equality in the world of work has in many respects been signposted since 1919, yet the transformative goal of substantive equality1 remains elusive. The COVID-19 crisis showed the fragility of equality gains, with inequality increasing on many fronts2 and evidenced the need for more structural and sustainable approaches. When addressing equality and non-discrimination, a wide range of identities and personal characteristics are implicated, as well as every aspect of work. The areas of action are thus potentially vast; therefore, clear entry points need to be identified. Gender equality is the initial entry point taken in this chapter, as gender remains a touchstone for discrimination in the world of work, with long-standing obstacles remaining firmly in place.3 However, since identities and personal characteristics are interconnected, this entry point leads to other areas, including addressing issues of race/ethnicity, nationality and disability. Equality makes a tangible difference to people’s lives, including access to more and better jobs. However, for tangible results to be achieved, as well as a strong legal foundation prohibiting discrimination, there needs to be focused and practical action in areas that can challenge and overcome stereotyped assumptions and make visible that which has been invisible. Clear directions have been provided by the international framework in this context, with new approaches emerging, in particular with respect to violence and harassment, equal remuneration for work of equal value, and care work and care jobs.

1 UN Committee on the Elimination of Discrimination against Women (CEDAW), General Recommendation No 25 (2004) states that ‘Equality of results is the logical corollary of de facto or substantive equality’. Fredman advocates for a framework ‘which recognises and addresses the distributional, recognition, structural, and exclusive wrongs experienced by out-groups’: S Fredman, ‘Substantive Equality Revisited’ (2016) 14(3) International Journal of Constitutional Law 712. 2 ILO, COVID-19 and the World of Work: Ensuring No One is Left Behind in the Response and Recovery, Policy Brief (Geneva, ILO, 2020); World Economic Forum, Global Gender Gap Report 2021: Insight Report (Cologne, WEF, 2021). 3 ILO, Women at Work: Trends 2016 (Geneva, ILO, 2016).

118  Shauna Olney

II.  Signposting Priorities The development of the international foundation for equality has highlighted evolving priorities. As an organisation devoted to promoting social justice in the world of work, the International Labour Organization (ILO) was, and remains, the international leader in setting standards on equality in the world of work. The priorities of the past, which were hard won, meet with present priorities, providing insights and important points of reference for the future.

A.  International Priorities: Where the Past Meets the Present The importance of equality in the world of work was recognised over 100 years ago in the ILO Constitution.4 The drafters of the Constitution agreed that certain principles were ‘of special and urgent importance’, including ‘the principle that men and women should receive equal remuneration for work of equal value’.5 How much workers are paid remains the most obvious means of attributing value to work; paying women less than men was a long-standing, and highly visible form of discrimination. The later incorporation of equal remuneration for work of equal value in international human rights instruments underscores the essential nature of this right in the attainment of equality.6 Maternity leave and benefits were also identified as key equality issues in 1919, acknowledging the inextricable link between unpaid care work and paid work. These issues were not included by chance. While only men sat on the body responsible for drafting the Constitution and had voting rights at the first ILO Conference, trade union women and their allies were very vocal, embracing ‘a political vision dedicated to gender and industrial justice’, including calling for equal remuneration and a 12-week maternity ‘indemnity’.7 Women ensured maternity protection and cash benefits were on the agenda of the first International Labour Conference, and shepherded the adoption of the Maternity Protection Convention, 1919 (No 3).8 More recent Conventions have also continued to focus on care work, including recognising the impact of unpaid care work on both women and men workers,9 and from the perspective of care jobs, including addressing the situation of nurses and domestic workers.10 The Domestic Workers Convention, 2011 (No 189) provides that domestic workers should enjoy, inter alia, ‘effective protection against all forms of abuse, harassment and violence’,

4 International Labour Office, Official Bulletin, April 1919–August 2020, Geneva, 1923, Part XIII. 5 ibid, art 427. 6 Equal Remuneration Convention, 1951 (No 100); International Covenant on Economic, Social and Cultural Rights, 1966, art 7(a)(i); Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979, art 11(1)(d). See also the Discrimination (Employment and Occupation) Recommendation, 1958 (No 111), para 2(b)(v). 7 DS Cobble, ‘The Other ILO Founders: 1919 and Its Legacies’, in E Boris et al (eds), Women’s ILO: Transnational Networks, Global Labour Standards and Gender Equity, 1919 to Present (Netherlands, Brill, 2018). 8 ibid. The updated Convention is the Maternity Protection Convention, 2000 (No 183). See also CEDAW, Art 11(2). 9 The Workers with Family Responsibilities Convention, 1981 (No 156). 10 The Nursing Personnel Convention, 1977 (No 149); the Domestic Workers Convention, 2011 (No 189).

Persistent Gender Gaps  119 ‘decent working conditions’, ‘minimum wage coverage’, and remuneration ‘established without discrimination based on sex’, as well as coverage for maternity.11 The Violence and Harassment Convention, 2019 (No 190) is the most recent ILO Convention which, along with its accompanying Recommendation,12 provides a clear and proactive framework for addressing and preventing violence and harassment in the world of work. The Convention is the first international instrument to set out ‘the right of everyone to a world of work free from violence and harassment, including gender-based violence and harassment’, and requires States to respect, promote and realise this right.13 The Convention is clearly placed within the context of ending discrimination and promoting equality. The Preamble cites the 1944 ILO Declaration of Philadelphia, affirming the right of all human beings to pursue their material well-being and spiritual development, irrespective of race, creed or sex, ‘in conditions of freedom and dignity, of economic security and equal opportunity’.14 The Convention also calls for fundamental principles and rights at work, including the elimination of discrimination, to be respected, promoted and realised, with a view to preventing and eliminating violence and harassment in the world of work.15

B.  Past and Present Priorities: Ongoing Relevance While equal pay and maternity leave and benefits were recognised early on as key engines of equality, progress in these areas has been slow. Obstacles identified in 1919 have proven to be obstinate, indicating that longstanding issues need new approaches. Legal provisions mandating equal remuneration for work of equal value are absent for half of the world’s economies.16 The gender pay gap still averages approximately 20 per cent globally.17 The cumulative disadvantage of low pay and unequal pay over the life course is linked to women’s lower pension entitlements, resulting in more women than men living in poverty in old age.18 Pay gaps for particular groups are also evident, including for indigenous peoples, who earn 18.5 per cent less than their non-indigenous counterparts.19 Migrant wage gaps also exist,20 and there is evidence of disability and ethnicity pay gaps.21 Various identities often intersect, thus compounding pay gaps.

11 Arts 5, 6, 11 and 14. See also Blackett and Rittich, Chapters 3 and 4 in this volume. 12 The Violence and Harassment Recommendation, 2019 (No 206). 13 Preamble and Art 4(1). 14 Constitution of the International Labour Organisation, Annex, Declaration concerning the aims and purposes of the International Labour Organisation, 1944, Art II(a) (Declaration of Philadelphia). 15 Art 5. 16 World Bank, Women, Business and the Law (Washington, World Bank Group, 2022) pp 23–24. 17 ILO, Global Wage Report 2018/19: What Lies Behind Gender Pay Gaps (Geneva, ILO, 2018) ch 8. 18 ILO, World Social Protection Report 2020–22: Social Protection at the Crossroads – In Pursuit of a Better Future (Geneva, ILO, 2021) pp 177–79; see also European Commission, 2019 Report on Equality Between Women and Men in the EU (EU, 2019) p 23. 19 ILO, Implementing the ILO Indigenous and Tribal Peoples Convention No. 169: Towards an Inclusive, Sustainable and Just Future (Geneva, ILO, 2020) p 18. 20 ILO, Global Wage Report 2014/15: Wages and Income Inequality (Geneva, ILO, 2015) pp 50–53. 21 Equality and Human Rights Commission, Fair Opportunities for All: A Strategy to Reduce Pay Gaps in Britain (London, EHRC, 2017); M Cowper-Coles, Bridging the Gap? An Analysis of Gender Pay Gap Reporting in Six Countries (London, GIWL, 2021).

120  Shauna Olney Violence and harassment in its many forms, remains pervasive. While comparable data is lacking, studies from different parts of the world indicate high levels of violence and harassment in the world of work.22 Women report higher levels of violence and harassment, and there is evidence that minority women suffer more harassment than minority men or non-minority men or women.23 Lesbian, gay, bisexual and transgender workers are also significantly affected by violence and harassment.24 While no occupation or sector is free from violence and harassment, some are more exposed, particularly in care jobs, ­including in health care, education and domestic work.25 Not only is the intersection of violence and harassment and care jobs significant, but there is also a link with unpaid care work, as pregnant workers and new mothers experience harassment.26 Over a century after the adoption of the first international treaty on maternity protection, approximately 650 million women globally do not have access to adequate maternity leave and benefits;27 the majority of these are self-employed women in the informal economy.28 Looking at parental leave and benefits more broadly, important gaps remain, with two-thirds of men living in countries without paternity leave, and no or low income replacement during the leave period.29 Discrimination based on pregnancy and also linked to taking maternity or parental leave, for both women and men, remains a major concern.30 The extent to which unpaid care work and motherhood continue to shape women’s experience in the world of work is staggering. Before COVID-19, women performed threequarters of the over 16 billion hours spent in unpaid care work daily.31 The COVID-19 crisis exacerbated the situation, as couples fell into traditional gender roles, with women taking on even more unpaid care work and reducing their working hours to adapt to increased care responsibilities.32 The coopting of women’s time to undertake unpaid care work allows others in the household, particularly men, to spend more time in paid jobs, and to move forward their careers. There are a range of ‘motherhood penalties’, including an employment penalty, a wage penalty and a leadership penalty: women with children have the lowest chance of being employed, they face a wage penalty beyond the average gender pay gap and they are the least likely to be managers. Conversely, fathers appear to benefit from an employment, wage and leadership premium.33 22 ILO, Ending Violence and Harassment Against Women and Men in the World of Work, Report V(1) (Geneva, ILO, 2018) pp 24–26. See also World Health Organization, Violence against Women Prevalence Estimates, 2018 (Geneva, WHO, 2021). 23 ibid, ILO, Report V(1), p 30. 24 ibid; ILO, Discrimination at Work on the Basis of Sexual Orientation and Gender Identity: Results of the ILO’s PRIDE Project (Geneva, ILO, 2015). See also ILO, Sexual Harassment in the Entertainment Industry, Policy Brief (Geneva, ILO, 2020). 25 Ibid, ILO, Report V(1), pp 25–26, 68–70. 26 ILO, Women at Work (2016) p 57; See also Equality and Human Rights Commission, Pregnancy and Maternity-related Discrimination and Disadvantage: Experience of Mothers (London, EHRC, 2016). 27 ILO, Care at Work: Investing in Care Leave and Services for a More Gender Equal World of Work (Geneva, ILO, 2022) p 70. 28 ibid, pp 75–76. 29 ibid, ch 3. 30 ibid, p 83; EC, Report on Equality (2019), p 13. 31 ILO, Care work and Care Jobs for the Future of Decent Work (Geneva, ILO, 2018), p 43. 32 K Shockley, M Clark, H Dodd and E King, ‘Work-Family Strategies during COVID-19: Examining Gender Dynamics among Dual-Earner Couples with Young Children’ (2021) 106(1) Journal of Applied Psychology 15; G Zamarro and MJ Prados, ‘Gender Differences in Couples, Division of Childcare, Work and Mental Health During COVID-19’ (2021) 19 Rev Econ Household 11. 33 ILO, A Quantum Leap for Gender Equality: For a Better Future of Work for All (Geneva, ILO, 2019) pp 38–42.

Persistent Gender Gaps  121 Women are also over-represented in paid care jobs, in the health and social work sectors, education, and domestic work, a proportion that largely mirrors their contribution to unpaid care work.34 Care workers are low paid, with a ‘care pay penalty’, over and above the gender pay gap, that cannot be attributed to skills, experience or credentials.35 Care is often also racialised: domestic work in some countries is largely undertaken by disadvantaged ethnic or social communities,36 and many health care and domestic workers are migrant workers.37 Care, pay and violence and harassment intersect – as many care jobs are often significantly undervalued, and these workers are particularly vulnerable to violence and harassment.38 The COVID-19 crisis brought this reality to the surface, making it harder to ignore.39

III.  Towards a Transformative Approach to Equality Advancing equality in the world of work requires choices to be made. There are many paths that can be taken, and many obstacles standing in the way. Addressing the most serious and stubborn gaps and taking measures potentially having the most impact in closing those gaps, need to be prioritised. While not yet universal, there are an increasing number of laws prohibiting discrimination on a wide range of grounds, providing for equal remuneration for work of equal value, and for maternity, paternity and parental leave and benefits, and expanding protection against violence and harassment.40 However, these laws, and other legal and policy strategies have not broken the cycle of disadvantage in the labour market.41 Different approaches are needed to support these areas, that redress disadvantage, challenge stereotypes and address structural change.42 Passive or ‘neutral’ approaches will not advance equality, and success will be determined on results achieved.43 In the context of the Discrimination (Employment and Occupation) Convention, 1958 (No 111), the Committee of Experts on the Application of Conventions and Recommendations has highlighted that: ‘Proactive measures are required

34 Two-thirds of workers in care sectors are women: ILO, Care Work and Care Jobs (2018) pp 167–68. 76% of domestic workers and 89% of nurses are women: ILO, Making Decent Work a Reality for Domestic Workers: Progress and Prospects Ten Years After the Adoption of the Domestic Workers Convention, 2011 (No 189) (Geneva, ILO, 2021) pp 12, 17; World Health Organization, ICN and Nursing Now, State of the World’s Nursing 2020: Investing in Education, Jobs and Leadership (Geneva, WHO, 2020), p 40. 35 ILO, Care Work and Care Jobs (2018) pp 172–74. 36 M Oelz and U Rani, Domestic Work, Wages and Gender Equality: Lessons from Developing Countries, Working Paper No 5/2015 (Geneva, ILO, 2015). 37 ILO, Global Estimates on International Migrant Workers: Results and Methodology, 3rd edn (Geneva, ILO, 2021) p 24. 38 ILO, Care Work and Care Jobs (2018) p 171; ILO, Domestic Workers (2021), p 242. 39 ILO, The COVID-19 Response: Getting Gender Equality Right for a Better Future of Work, Policy Brief (Geneva, ILO, 2020); ILO, 12 Ways It Can Support the COVID-19 Response and Recovery. Violence and Harassment Convention No 190, Policy Brief (Geneva, ILO, 2020). 40 ILO, Giving Globalization a Human Face (Geneva, ILO, 2012), Pt V; World Bank, Women, Business and the Law (2022); ILO, Care at Work (2022); ILO, Report V(1). 41 M Campbell, S Fredman, J Fudge and S Olney, ‘A Better Future for Women at Work’ (2018) 1 University of Oxford Human Rights Hub Journal 1. 42 ibid 43 ILO, Giving Globalization a Human Face (2012) para 734.

122  Shauna Olney to address the underlying causes of discrimination and de facto inequalities resulting from deeply entrenched discrimination.’44 Different treatment may be needed to redress historical disadvantage and entrenched discrimination, and promote inclusion, which has been an important part of the evolution of non-discrimination and equality law and policy.45 A focus on substantive equality requires proactive measures to secure more equitable and sustainable outcomes, which are emerging in a number of areas.

A.  Ending Violence and Harassment in the World of Work: A Framework for Broader Action Equality in the world of work cannot exist in a climate of violence and harassment. Violence and harassment ‘is a threat to equal opportunities, is unacceptable and incompatible with decent work’.46 The adoption of Convention No 190 heralded a global commitment to ending violence and harassment in the world of work. The Convention goes beyond a requirement to broadly prohibit and remedy harm, and advocates for a multi-faceted and proactive approach to preventing violence and harassment, ensuring that those most at risk can assert their right to be free from violence and harassment. The broad scope of the Convention acknowledges that those most marginalised are often those lacking protection of laws, and covers all those who work, irrespective of c­ ontractual status or where they work, whether in the formal or informal economy. It also reaches well beyond the traditional workplace to address an evolving and dynamic world of work.47 A broad concept of gender is also portrayed. While acknowledging the impact of genderbased violence and harassment on women, the definition goes beyond a focus on women, and beyond a binary approach.48 The Convention also recognises the blurred lines between work and home, which became even more obvious during the COVID crisis, with a surge in cases of domestic violence.49 the Convention calls for measures to recognise the effects of domestic violence and mitigate its impact in the world of work.50 The main requirement under the Convention is to adopt ‘an inclusive, integrated and gender-responsive approach for the prevention and elimination of violence and harassment in the world of work’,51 supporting a targeted and transformative approach to equality. The right to equality and non-discrimination is to be ensured for women workers and others who are disproportionately affected by violence and harassment.52 Identifying sectors, occupations and work arrangements that are more exposed to violence and harassment, and ensuring their protection, and undertaking workplace risk assessments are also required.53 44 ibid, para 732. 45 C Sheppard, ‘Mapping Anti-Discrimination Law onto Inequality at Work: Expanding the Meaning of Equality in International Law’ (2012) 151 International Labour Review 1. 46 Convention No 190, Preamble. 47 Arts 2 and 3. 48 Art 1(1)(b). See E Carlson and S Olney, ‘A New Global Mandate to End Violence and Harassment in the World of Work: A Gender-responsive Approach’ (2021) 35(3) ABA Journal of Labor and Employment Law 493. 49 ILO, Getting Gender Equality Right (2020). 50 Art 10(f). 51 Art 4(2). 52 Art 6. 53 Arts 8 and 9.

Persistent Gender Gaps  123 Acknowledging that the underlying causes of gender-based violence and harassment must be addressed, and providing practical guidance in this regard in the Recommendation, further evidences the transformative approach taken.54 As States ratify and prepare to ratify the Convention, an increasing number of laws and policies are being adapted to meet the requirements of the Convention, including in the context of broader equality strategies.55 The inclusive, integrated and gender-responsive approach set out in the Convention provides a framework that if applied to other equality laws and policies would give them much broader reach and impact. The broad scope, holistic and at the same time targeted approach to addressing a serious manifestation of discrimination and promoting equality provides an important path towards substantive equality.

B.  From Low Pay to Pay Equity: Making the Invisible Visible Pay is important to people’s lives, as wages are a major source of household income,56 and thus a key aspect of economic empowerment. While different pay scales for men and women are now rare, more subtle and less visible inequalities in pay exist, resulting in stubborn gender pay gaps. Closing these pay gaps has become a priority for a number of countries, which are putting forward measures to make these gaps more visible and to address them in a more proactive manner. ‘Work of equal value’ remains one of the most misunderstood yet most important concepts in achieving pay equity, and ‘lies at the heart of … the promotion of equality’.57 It requires a means of measuring and comparing the relative value of different jobs, performed under different conditions. Convention No 100 points in this regard to objective job evaluation methods,58 which have become an area of increased focus, and these exercises have had a measurable impact on decreasing pay differentials.59 They are an important means of giving visibility to all aspects of jobs, including those overlooked characteristics of predominantly female jobs, often dismissed as ‘soft skills’, such as mental and psychosocial effort and responsibility for people.60 Making job evaluation processes, free from gender bias, mandatory, including for the setting of minimum wages could make an important contribution to exposing the undervaluation of certain jobs, and to closing pay gaps. Visibility can also be given through a better understanding of the nature and extent of the gender pay gap. Since the raw wage gap only provides a partial picture, a factorweighted approach to determining the gender pay gap has been proposed by the ILO, taking into account the wage structure of men and women, including clusters in different sectors and occupations.61 For more targeted responses, it is also important to look

54 See Recommendation No 206, paras 8 and 23(a). 55 For examples of recent laws and policies addressing violence and harassment, see ILO, Violence and Harassment in the World of Work: A Guide on Convention No. 190 and Recommendation No. 206 (Geneva, ILO, 2021). 56 ILO, Global Wage Report 2014/15, pp 35–43. 57 ILO, General Observation, Equal Remuneration Convention, 1951 (No 100), Report III (Part 1A) (Geneva, ILO, 2007). 58 Art 3. 59 ILO, Giving Globalization a Human Face (2012) paras 695–709. 60 M Oelz, S Olney and M Tomei, Equal Pay: An Introductory Guide (Geneva, ILO, 2013), pp 38–45. 61 ILO, Global Wage Report 2018/19, ch 9.

124  Shauna Olney beyond aggregate pay gaps. If the pay gap is divided into explained and unexplained components, what can be explained for example by age, education, experience, working time, occupation as well as workplace characteristics, accounts for very little of the gender pay gap, regardless of wage distribution. The unexplained portion dominates in almost all countries,62 indicating that discrimination continues to play an important part in pay. The undervaluing of ‘women’s work’ is further exposed when examining different occupations. Wages tend to be lower in highly feminised occupations, as well as in enterprises that are highly feminised compared to similar enterprises.63 The pay gap can also be analysed across the wage distribution, with high-income countries showing wider gaps at the upper end of the distribution, and low and middle-income countries having wider gaps at the lower end of the distribution.64 To address gaps at the lower end of the wage distribution, for example minimum wages could play an important role, as women are over-represented in those earning minimum wages or less.65 A relatively recent and particularly promising development, is the increasing number of countries that are legislating pay transparency requirements.66 Pay audits at the company level can help to reveal unexplained pay gaps, providing information for individual claims to be made, since otherwise the necessary information remains in the hands of the employer. Pay gap reporting has become more common but is still limited. Equal pay laws generally place the onus on the individual employee to prove unequal pay, which can be a long and expensive process. It also provides little incentive for employers to address structural issues, unless it is mandatory and shifts the onus to the employer to monitor and address pay differentials. Transparency must be accompanied by accountability; clear, time-bound and measurable goals for reducing the gender pay gap need to be set together with employees and their representatives; and there need to be real consequences for non-compliance and strict enforcement.67

C.  A Focus on Care: Where Priorities Converge Recognising, reducing and redistributing unpaid care work, and also rewarding care workers with more and decent work and ensuring they have voice and representation,68 could be truly transformative in overcoming stereotypes and ensuring a more equal world of work. Unpaid care work and paid care jobs are closely intertwined, not only in terms of their lack of recognition and undervaluation; paid care jobs are also essential in reducing and redistributing unpaid care work. Addressing care is an important strategy for increasing

62 ibid. 63 ibid. 64 ibid. 65 ILO, Global Wage Report 2020/21: Wages and Minimum Wages in the Time of COVID-19 (Geneva, ILO, 2020) ch 7. 66 For examples of recent wage transparency laws and policies, see M Cowper-Coles, Bridging the Gap (2021), and EC, Report on Equality (2019). 67 ibid, Bridging the Gap (2021). 68 See the ILO’s ‘5R framework’: Care Work and Care Jobs (2018) ch 6.

Persistent Gender Gaps  125 women’s employment, reducing pay gaps,69 and preventing and addressing violence and harassment.70 Women across the globe, in every region, want to work in paid jobs.71 Women’s aspirations are clear, yet they are not accessing paid jobs to the same extent as men, and the gender employment gap, at 24 per cent, has closed very little in over 20 years.72 Women themselves have identified unpaid care-related responsibilities and concerns as what is holding them back in the world of work.73 Looking at the space unpaid care takes in women’s lives, noted above, it should be no surprise that they have less time for paid work: if paid and unpaid work are combined, women work longer hours than men.74 There are also indications that men who are fathers would like to decrease their working hours, and take a more active role in bringing up their children.75 The aspirations of both women and men workers could be met by focusing on care policies, including paid leave and care services. Maternity leave and benefits, as identified in 1919, remain a critical element in recognising unpaid care work, valuing differences and accommodating specific needs and aspirations. Maternity protection and benefits have been recognised as a precondition for gender equality and essential to ensure women’s right to work,76 and cannot be seen as discriminatory on the basis that women receive different treatment. Women as mothers do not need to be invisible to ensure equality. However, other policies are also necessary to ensure the recognition and redistribution of care responsibilities, both within the family and between the family and the state, and confront social norms that reinforce the role of women as primary caregivers and men as breadwinners. Such policies can not only lead to an increase in women’s employment and pay, but also contribute to greater equality in social protection and redressing women’s vulnerability to poverty in old age.77 Paternity and parental leave can play a central role in shifting the dynamic within the household for care responsibilities. Involving fathers early on in caregiving of a child has been shown to be important for their ongoing caregiving role, as well as increasing mothers’ labour market participation.78 Increasing men’s take up of leave has become an increasing focus of public policies to promote equality in the world of work. As the financial impact of taking leave is a key consideration when deciding who should care for children, unequal pay can exacerbate the gender gap in care.79 Ensuring paternity and parental leave are adequately

69 EHRC, Fair Opportunities for All (2017); Cowper-Coles, Bridging the Gap (2021); J Rubery and A Koukiadaki, Closing the Gender Pay Gap: A Review of the Issues, Policy Mechanisms and International Evidence (Geneva, ILO, 2016). 70 ILO, Report V(1). 71 ILO and Gallup, Towards a Better Future for Women at Work: Voices of Women and Men (Geneva, ILO, 2017). 72 ILO, World Economic and Social Outlook: Trends 2022 (Geneva, ILO, 2022) Figure 1.6; ILO, Quantum Leap (2019) Figure 1.2. 73 ILO and Gallup, Towards a Better Future for Women at Work (2017). See also ILO, Care Work and Care Jobs (2018) p 83. 74 ibid, Care Work and Care Jobs, p 54. 75 See EC, Report on Equality (2019) p 9; See also EHRC, Fair Opportunities for All (2017), p 17. 76 Convention No 183, Preamble; CEDAW art 11(2). 77 ILO, World Social Protection Report 2020–22, pp 177–79. 78 M Tamm, Fathers’ Parental Leave-Taking, Childcare Involvement and Mothers’ Labour Market Participation, Discussion Paper No 11873 (Bonn, IZA, 2018). 79 EHRC, Fair Opportunities for All (2017) p 17. See also EC, Report on Equality (2019), p 12.

126  Shauna Olney paid is thus vital to ensuring men’s participation in care. Non-transferable (‘use it or lose it’), publicly funded leave for each parent has significantly increased men’s uptake.80 Availability of affordable and good quality childcare services has also been central to redistributing care. In high and low-income countries, the availability of affordable, publicly funded childcare is positively correlated with women’s labour force participation, wages and working hours.81 The period between the end of maternity/parental leave and the public provision of childcare or schooling, is a critical period for women’s labour market attachment. Higher levels of public spending on care policies, in particular early childhood care and education, are thus associated with higher levels of women’s employment.82 However, a statutory right to early childhood educational and development programmes exists in a limited number of countries.83 Changing demographics, with increased life expectancy, is also leading to an increase in the need for long-term care services for older people and people with disabilities.84 In the absence of such services, women remain the main providers of care for these groups and are often sandwiched between care responsibilities for both elder family members and children,85 further increasing time poverty. While there are a growing number of in-home personal care services, community services and residential care services, access to affordable long-term care and paid long-term care leave remains limited and urgently needs to be expanded.86 Affordable and good quality care services rely on qualified care workers. The number of care workers, their working conditions and level of pay are closely linked to the coverage and quality of care services. Working conditions and pay of care workers improve with the public provision of care services.87 Even before the COVID-19 crisis, difficulties in recruiting and retaining well-trained health workers were pervasive.88 Despite the importance of early childhood care and education for gender equality and children’s development, the status and pay of workers in this area are lower than other teachers.89 Among care workers, domestic workers face some of the worst working conditions.90 Decent work for all care workers needs to be ensured, including formal employment, social protection, equal remuneration for work of equal value, and decent working conditions, including the right to be free from violence and harassment.

IV.  Concluding Remarks The pursuit of equality is an ongoing process, as discrimination in the world of work is ‘both universal and constantly evolving’.91 Progress requires transformation, which cannot

80 ILO,

Care at Work (2022), chs 3 and 4. Bank, Women, Business and the Law (2022) p 52. 82 ILO, Women at Work (2016) pp 78–79. 83 ILO, Care at Work (2022) ch 7. 84 ibid, ch 8. 85 EHRC, Fair Opportunities for All (2017) p 17. 86 ILO, Care at Work (2022) ch 8. 87 ILO, Care Work and Care Jobs (2018) c 4. 88 ibid, pp 176–77. 89 ibid, p 188. 90 ibid, p 192. 91 ILO, Giving Globalization a Human Face (2012) para 845. 81 World

Persistent Gender Gaps  127 happen through a tentative and piecemeal process. Holistic and courageous approaches are needed, that recognise and value difference, redress disadvantage, challenge stereotypes, and address structural change. International priorities have been heralds of critical areas of focus. While these priorities remain relevant, approaches to them are being reshaped to support transformation, providing some optimism for the future. The importance of issues identified in the early days of the ILO has not waned, and the pressing need to address equal pay and unpaid care work is become increasingly recognised. Issues that have more recently been raised as urgent priorities in the pursuit of equality, including addressing paid care work, and ending violence and harassment in the world of work, have also proven to be pivotal in promoting equality. However, these issues do not stand alone, and are closely interconnected, enhancing not only their relevance, but also the potential impact of measures to address them, if they are addressed in a coordinated and intentional manner. Approaches to these areas are becoming bolder, raising visibility of those particularly vulnerable to violence and harassment, of pay gaps, and of the value and essential nature of care. The COVID-19 crisis has provided a window of opportunity, giving unprecedented visibility to unpaid care, and exposing the unequal pay and difficult working conditions of paid care workers, and high levels of violence and harassment at work and at home. The extent to which care systems support society and economies, and how much families support these systems can no longer be denied. Memories are short, however, and rather than the lessons learned advancing equality, there could be a rolling back, which in some instances is already happening.92 The experience and insights of the crisis need to be leveraged to accelerate change, and to ensure care work and care jobs, equal pay, and violence and harassment, remain visible and a central focus of policy responses for a more equal world of work. Advances in these intertwined areas would go a significant way to fulfilling the promise of the ILO Constitution of freedom and dignity, economic security and equal opportunity.93



92 World

Bank, Women, Business and the Law (2022) p 28. of Philadelphia, n 14.

93 Declaration

128

part ii Means

130

A.  International Institutions and the Future of Global Labour Justice I.  The International Labour Organization

132

12 The Past and Future of Governance: Epistemic Authority and the ILO JAN KLABBERS

I. Introduction About a decade ago, I authored a short piece claiming that the International Labour Organization (ILO), like other international organisations broadly set up to make the world a more equal place, had become marginalised.1 I identified three possible reasons as to why I thought this was the case, beyond the general political shift towards neo-liberalism. First, I suggested the ILO had paid too little attention to some aspects of globalisation (labour migration, the move to flexibilisation and the platform economy); second, it lacked a directorate of powerful states interested enough to adopt a leadership role; and third, the ILO had maybe been too keen on resorting to so-called soft law instruments. The latter would be problematic because while aiming to persuade social actors to adopt certain courses of action, doing so too often without a sterner approach might entail a lesser degree of interest and commitment: it might be easier to sway people’s hearts and minds, but there would be a price to pay in the form of those same people taking the ILO a little less seriously. Without suggesting that only ‘hard’ law, courts and enforcement would result in desirable behaviour, nonetheless a policy of mostly ‘nudging’2 may be too easy: sometimes actors just need to look in the mirror and ask themselves what they are doing, and if they are only being nudged, then there might never be a moment of truth, never a moment of serious commitment. That said, it remains the case that the ILO’s experiments with soft law and epistemic authority are of great interest, partly because the activities of its officials have made a mark, partly also because even if the ILO may be too soft (pun intended) on states, its use of epistemic authority may nonetheless have changed the way we think more generally about globalisation and social justice. In such a case the influence is not all that direct, as we

1 J Klabbers, ‘Marginalized International Organizations: Three Hypotheses Concerning the ILO’ in U Liukkunen and Y Chen (eds), China and ILO Fundamental Principles and Rights at Work (Alphen aan den Rijn, Kluwer, 2014) 181–96. It received a generous response of sorts in Francis Maupain, ‘Entre marginalisation et réinvention: l’OIT et son action normative face à la mondialisation et à la remise en cause du multilatéralisme’ in G Politakis, T Kohiyama and T Lieby (eds), ILO 100: Law for Social Justice (Geneva, ILO, 2019) 981–1006. 2 See briefly C Sunstein, ‘Nudging: A Very Short Guide’ (2014) 37 Journal of Consumer Policy 583.

134  Jan Klabbers usually expect from law and from authoritative actors, but rather intermediate: some of the work of the ILO and its officials, I will suggest, has influenced our thinking. The point is not so much to see to what extent ILO activities directly affect what states do. Such an approach remains state-centric, possibly far too state-centric to be of much use in a world where states no longer exercise much authority on their own and in which traditional patterns of political authority are no longer valid.3 Instead, I aim to provide some reflections on how the ILO exercises epistemic authority. A special twist is provided, I will suggest, by the circumstance that the ILO not only influences thinking about social justice, but that some of its officials have in addition been active in more general matters, steering general international law and, in particular, aspects of the law of international organisations. To say they have ‘influenced’ the law may be an overstatement if measured directly, in terms of exercising causal influence on the behaviour states and others, but again, indirectly, their epistemic authority has been noteworthy.

II.  An Epistemic Community It is a striking feature of the highly practice-based discipline of international organisations law that little of it is actually written by individuals deeply immersed in the practice. With some exceptions, many of the relevant studies are the work of academics studying and eventually re-imagining practice, rather than the work of practitioners themselves. And to the extent that studies on the law of international organisations are practically informed, the practice may be derived from positions other than within international organisations. For example, the great Henry Schermers practiced only briefly – at the Dutch Foreign Ministry at its international organisations desk – before he embarked on a long academic career. Working at a Foreign Ministry is bound to deliver a different perspective from working as legal counsel of, say, the World Meteorological Organization or the Universal Postal Union. Maybe this is only fitting. Many of the legal issues that confront many of the legal officers working at many international organisations have not all that much to do with the law of international organisations – or rather, these issues see mostly to very specific and limited aspects thereof: the legal position of staff members, issues of taxation privileges, whether to pay for garbage collection. Not every day will the opportunity arise to develop an ‘implied powers’ argument or adopt an ‘ultra vires’ stance. Perhaps as a result, it is no surprise that academic writings by officials at international organisations are few and far between.4 There are exceptions. Sometimes legal counsel use their pedestal to defend or explain earlier political action by the organisation – something along these lines is sometimes visible in the extracurricular writings of former UN legal counsel Hans Corell.5 Sometimes legal

3 J Klabbers, ‘The Cheshire Cat That is International Law’ (2020) 31 European Journal of International Law 269. 4 Former officials sometimes move to academia. Prominent examples may include former UN officials Jeremy Farrall and Ian Johnstone, and former WTO official Joost Pauwelyn. The one broad exception is the EU, hardly an international organisation, which has traditionally encouraged its officials to engage in academic work. For a seminal critique of the ‘revolving door’ see H Schepel and R Wesseling, ‘The Legal Community: Judges, Lawyers, Officials and Clerks in the Writing of Europe’ (1997) 3 European Law Journal 165. 5 Notably in H Corell, ‘Bush’s War has Damaged the United Nations’ in R Lee (ed), Swords into Plowshares: Building Peace Through the United Nations (Leiden: Martinus Nijhoff, 2006) 11–15.

The Past and Future of Governance: Epistemic Authority and the ILO  135 counsel aim to signal a change in legal position or even to influence the prevailing official interpretation of foundational documents: some of the writings of Ibrahim Shihata at the World Bank can be seen in this light, with him almost single-handedly shaping the human rights-orientation of the Bank.6 And sometimes legal counsel has an innate academic mindset and strives to derive general insights and understandings from the work they engage in within their own organisation: Gian Luca Burci’s writings while at the World Health Organization may serve as an example.7 Within this landscape though, one international organisation stands out. While Burci and even Shihata have been, by and large, alone in their efforts,8 the legal officers at the International Labour Organization (ILO) have, over the years, formed a fairly large group of visible international lawyers, a veritable ‘epistemic community’ existing across time, publishing in the leading journals and being invited to join highly prestigious academic associations, and even sitting on international tribunals.9 Academic international organisations lawyers worth their salt will recognise names such as Clarence Wilfred Jenks, Felice Morgenstern, Nicolas Valticos, Ebere Osieke, and Francis Maupain, and the work of Jenks and Morgenstern has itself been subjected to academic study.10 Labour lawyers, moreover, will recognise not only those names, but also the names of Adelle Blackett, Anne Trebilcock and others, and even in the neighbouring discipline of International Relations a former ILO official, Robert W Cox, made serious waves by pioneering a distinct approach to global affairs.11 Perhaps none of this is a coincidence: one of the very, very few publications by a director-general of an international organisation cited with some regularity also stems from the ILO, and consists of a series of lectures given by David Morse.12

III. Leadership This last point perhaps provides a clue as to why it is the ILO that, uniquely amongst international organisations, has spawned so much academic work: the role of its leadership. Some directors-general are well-known for other reasons, additional to the quality of their

6 I Shihata, ‘Human Rights, Development, and International Financial Institutions’ (1992) 8 American University International Law Review 27. 7 GL Burci, ‘Public/Private Partnerships in the Public Health Sector’ (2009) 6 International Organizations Law Review 359. 8 This is not entirely accurate: Burci co-authored a monograph on the WHO with former legal counsel Claude-Henri Vignes, but this only appeared after the latter had retired, and Burci’s level of academic activity is significantly higher than Vignes’. 9 The notion of epistemic community was launched by P Haas, ‘Introduction: Epistemic Communities and International Policy Coordination’ (1992) 46 International Organization 1. His father wrote the classic study of the ILO: EB Haas, Beyond the Nation-State (Stanford CA: Stanford University Press, 1964). 10 GF Sinclair, ‘C. Wilfred Jenks and the Futures of International Organizations Law’ (2020) 31 European Journal of International Law 525; J Klabbers, ‘The Timing of Felice Morgenstern’ in I Tallgren (ed), Portraits of Women in International Law: New Names and Forgotten Faces? (Oxford, Oxford University Press, forthcoming). 11 Cox pioneered a neo-Gramscian approach, taking seriously the socio-economic role of international actors other than states. See RW Cox, Production, Power, and World Order: Social Forces in the Making of History (New York, Columbia University Press, 1987); an autobiographical sketch is RW Cox, Universal Foreigner: The Individual and the World (Singapore, World Scientific Publishing, 2013). 12 D Morse, The Origin and Evolution of the ILO and Its Role in the World Community (Ithaca, Cornell University Press, 1969).

136  Jan Klabbers leadership. There is fame by family association (Julian Huxley, at UNESCO, was the brother of well-known novelist Aldous Huxley); because of their legacies (Brock Chisholm at the WHO comes to mind,13 as does the UN’s second Secretary-General Dag Hammarskjöld14), and some were well-known in part because of the circles they moved in (UNESCO’s René Maheu was a long-standing and close friend of French philosophers Simone de Beauvoir and Jean-Paul Sartre15). By the same token, it seems fair to say that for all their individual differences, the directors-general at the ILO have largely sponsored an outgoing, participatory and public role for their staff. Whatever their individual differences and perhaps partly inspired by Article 10 of the ILO Constitution, the leadership has generally emphasised the relevance of knowledge, research, and dissemination. Already the first Director-General, French socialist Albert Thomas, was known as a highly inspiring leader,16 actively representing the ILO and turning the organisation into a political actor to be reckoned with, far beyond what could legitimately be expected in the early days of international organisation.17 Thomas’ zeal was such that he even went in person to explain the ILO’s position to the Permanent Court of International Justice on the question whether the ILO had the competence to incidentally regulate employer’s activities – the Court answered in the affirmative.18 It is this form of leadership – stimulating research, producing knowledge, and endorsing dissemination thereof – that has characterised much of the ILO experience. It is no coincidence that the ILO celebrated its centenary by organising a large, high-profile and serious academic conference and a well-curated photo exhibition, something other classic unions have not done.19 The Universal Postal Union, eg celebrated its centenary (fittingly, one might say) by issuing and endorsing celebratory stamps,20 in much the same way as its sister organisation, the International Telecommunication Union, had done almost a decade earlier.21 Elsewhere, it is not uncommon to commission the writing of the organisation’s official history to commemorate a landmark anniversary.22 But perhaps even more telling is the attention generally given to research in the field of social affairs. Not only does the ILO boast research institutes and takes them seriously, it is also one of the very few international organisations publishing a serious academic journal in the form of the International Labour Review, first published in 1921 and with an editorial board largely composed of academics having no formal affiliation with the organisation.

13 G Vasconcelos Vilaça, ‘Virtue and Leadership in the World Health Organization’ in G Vasconcelos Vilaça and M Varaki (eds), Ethical Leadership in International Organizations: Concepts, Narratives, Judgment, and Assessment (Cambridge, Cambridge University Press, 2021) 249–89. 14 M Fröhlich, Political Ethics at the United Nations: Dag Hammarskjöld as Secretary-General (Abingdon, Routledge, 2008). 15 K Kirkpatrick, Becoming Beauvoir: A Life (London, Bloomsbury, 2019). 16 A leading study of leadership is NO Keohane, Thinking about Leadership (Princeton NJ, Princeton University Press, 2010). 17 A Blaszkiewicz, ‘Thomas, Albert Aristide’. Available at: www.ru.nl/fm/iobio (accessed 27 December 2021). 18 Publ PCIJ, Series B, no 13. 19 The conference proceedings are published as Politakis et al above n 1. 20 See www.postalmuseum.org/wp-content/uploads/2018/12/Stamp-History-1974-UPU.pdf (accessed 28 December 2021). 21 See www.postalmuseum.org/wp-content/uploads/2018/12/Stamp-History-1965-ITU.pdf (accessed 28 December 2021). 22 M Ducasse-Rogier, The International Organization for Migration 1951–2001 (Geneva, IOM, 2001).

The Past and Future of Governance: Epistemic Authority and the ILO  137 In short, epistemic authority – authority derived from and legitimated by knowledge and expertise – seems to be part of the ILO’s DNA.23

IV.  The World of International Organizations While it is not outlandish to expect epistemic authority to derive from a substantive field of activity or policy domain,24 a striking aspect of the epistemic authority of the ILO’s legal officers is that it is not limited to the field of labour law. Instead, ILO officials have made significant contributions to the law of international organisations (Osieke, Jenks, Maupain, and especially Morgenstern) and even to general international law (Jenks again, Valticos). This is not the place for a detailed examination of their works, but it is nonetheless worth noting that the law on the validity of acts of international organisations has been insightfully discussed by both Osieke and Morgenstern,25 while the latter was far ahead of her time when devoting part of her Lauterpacht lectures at Cambridge (itself a sign of the high esteem in which she was held in the academic community) to the – almost non-existent – legal framework for the regulation of relations between international organisations inter se.26 Jenks, in turn, wrote about a multitude of topics: some were within international organisations law, while others went far beyond, venturing into general international law. To some extent he always remained part of the generalist Cambridge crowd, having friendly relations with the likes of Lord Arnold McNair (at some point a judge at the ICJ), Sir Hersch Lauterpacht (McNair’s successor at the ICJ) and the young Robbie Jennings before the latter received a knighthood and joined the ranks of the ICJ. He wrote on international organisations and international immunities, but also on the law of outer space and, indeed, on issues of labour law. Jenks was a member of the Institut de Droit International Law, a select professional association one can only join upon invitation, as was Valticos, the latter even sat as ad hoc judge at the International Court of Justice, not just once, but three times, in three different disputes. Francis Maupain, in turn, is best known academically for his book discussing the ILO and its role in the (then) almost 100 years of its existence.27 Maupain’s study highlights the indispensable role of persuasiveness in international affairs, which will often be rooted in knowledge and expertise. Hence, there is considerable logic in the proposition that for the ILO to blossom and perform its mandate, it cannot rely on authority other than that stemming from epistemic prowess.28 23 A fine sociological exploration is P Alasuutari and A Qadir, Epistemic Governance: Social Change in the Modern World (New York, Palgrave, 2019). 24 See, eg, J Klabbers, ‘Reflections on the International Telecommunication Union: International Organizations as Epistemic Structures’ in A Bianchi and M Hirsch (eds), International Law’s Invisible Frames: Social Cognition and Knowledge Production in International Legal Processes (Oxford, Oxford University Press, 2021) 200–18. 25 F Morgenstern, ‘Legality in International Organizations’ (1976–1977) 48 British Yearbook of International Law 241; E Osieke, ‘The Legal Validity of Ultra Vires Decisions of International Organizations’ (1983) 77 American Journal of International Law 239; E Osieke, Constitutional Law and Practice in the International Labour Organization (Dordrecht, Martinus Nijhoff, 1985). 26 F Morgenstern, Legal Problems of International Organizations (Cambridge, Grotius, 1986). 27 F Maupain, The Future of the International Labour Organization in the Global Economy (Oxford, Hart, 2013). 28 See also F Maupain, ‘International Labor Organization: Recommendations and Similar Instruments’ in D Shelton (ed), Commitment and Compliance: The Role of Non-binding Norms in the International Legal System (Oxford, Oxford University Press, 2000) 372–93.

138  Jan Klabbers This was not always obvious. Cox suggests, and Maupain seems to confirm, that there have been serious differences of opinion with respect to such things as academic freedom of the research conducted under ILO auspices. Cox was generally convinced that such freedom was a conditio sine qua non, but his eventual boss, Jenks (who briefly served as Director-General) was less convinced. For Jenks, running the ILO during a cold spell in the Cold War, it was not clear that the institutional interest would be best served by allowing research institutes to be completely free.29 At the time of writing, the Institute they argued about (the International Institute for Labour Studies) no longer exists, although the ILO does boast a Research Department with a more focused economic orientation.

V.  The World of Social Justice The ILO is one of the more unorthodox creatures in the menagerie of international organisations, for several reasons. One is that it was created together with a large-scale peace settlement and with the first universal organisation aiming at collective security – no wonder it has always been somewhat overshadowed by the circumstances of its birth: it is the least extrovert among triplets.30 Second, while sometimes deemed a technical organisation in contrast to the political nature of the League of Nations, that is not really what it is. Its mission of social justice may owe something to a public ethos, but nonetheless it differs from the ethos underlying the earlier or contemporary public unions. Social justice may be an uncontested social good, but achieving it is highly political, in ways that do not apply with quite the same force to, say, harmonising postal relations, or predicting hurricanes. This is reflected in its tripartite structure, aiming to balance workers’ and employers’ interests under the guidance of governments, and the mission of social justice was devised at least as much out of a fear of communism (the ILO was created in the aftermath of the Russian revolution) as for its own sake.31 Additionally, the ILO’s member states have widely diverging interests (and have always had diverging interests, going back to the fear of cheap imports stemming from cheap labour in the colonies) in ways that, again, do not quite apply with the same force to, say, the World Health Organization or the International Bureau of Weights and Measures. Plus, it was somehow always understood that the eventual beneficiary of the ILO’s work should be the individual, rather than the member states.32 Hence, the ILO is a very peculiar institution, with a peculiar history and unique institutional design – so much so that, as with the European Union (EU), it is not very appropriate to generate general hypotheses on the basis of the ILO experience alone. 29 Maupain puts it in a more nuanced way: ‘… Jenks felt that allocating unlimited freedom of inquiry and expression to one unit was simply not worth the existential risk it created for the institution as a whole’. Maupain, The Future, above n 27, 121. 30 Being overshadowed is its fate, as already illustrated by H Nicolson, Peacemaking 1919 (London, Methuen, 1964 [1933]). 31 Useful is G Barnes, History of the International Labour Office (London, Williams and Norgate, 1926). 32 J Klabbers, ‘An Accidental Revolution: The ILO and the Opening Up of International Law’ in T Halonen and U Liukkunen (eds), International Labour Organization and Global Social Governance (Dordrecht, Springer, 2020) 123–40.

The Past and Future of Governance: Epistemic Authority and the ILO  139 And yet, again not unlike the EU, occasionally the ILO’s special characteristics make it suitable as a source of information and inspiration. It may not be a very representative organisation, but lessons can sometimes be learned from its experiences precisely because it is not very representative. In particular, the ILO’s experiences with epistemic authority stand out. As is well-known, the ILO traditionally has two types of legal instruments at its disposal. There is, first, the traditional convention: some 200 conventions have been negotiated under ILO auspices, on topics as wide-ranging as protecting women against having to work at night or the rights and protection of indigenous peoples. Many of these 200 conventions have rapidly entered into force, but there is a caveat: many require less than a handful of ratifications to enter into force – their reach may therefore be dramatically limited. Second, the ILO has been actively adopting recommendations, likewise some 200 or so. These may generative normative effects, but are not formally binding, and it may be their formal non-binding nature that helps them garner enough support to be adopted to begin with. Consequently, while it is tempting to view these as somehow having a normative pull, they may also amount to easy window-dressing: states may adopt them secure in the knowledge that they will not be bound. The conventions and recommendations, based as they are on a social compromise involving governments, labour and capital, tend to enjoy a high degree of legitimacy, as Maupain highlights – but legitimacy alone, whatever its merits (and these may be deceptively few33) is not sufficient for the exercise of regulatory authority. In addition, the legitimacy – however measured – of the ILO’s traditional output in the form of conventions and recommendations can easily be overstated: the consequences of adopting conventions and recommendations are not particularly far-reaching for those who do not want them to be far-reaching.34 No lesser authority than John Maynard Keynes, considered to be the cleverest men they knew by the likes of Isaiah Berlin and Bertrand Russell,35 realised that the way to persuade people is not to force or cajole them into behaving differently, but to reach for their hearts and minds. His major works were all written, explicitly, with this thought in mind, underlining the power of episteme.36 The same approach has been taken by the ILO: in addition to sponsoring conventions and adopting recommendations, it has gone out of its way to gather and disseminate information and generally influence the way people think about social justice, no mean feat in a setting in which it may be difficult to find any incontrovertible truths. After all, social justice is not an exact science, where the truth can be recognised and validated; instead, it depends on a meeting of minds where those involved come to believe that some course of action is the right thing to do – and political science has recognised, in a tradition building on Gramsci, that the smartest way of exercising power is to get others to believe that they want what you want.37 In this light, it is probably 33 M Koskenniemi, ‘Legitimacy, Rights and Ideology: Notes Towards a Critique of the New Moral Internationalism’ (2003) 7 Associations: Journal for Legal and Social Theory 349. 34 And states can easily be tempted into adopting conventions, secure in the knowledge that their parliaments will not approve them: see L Helfer, ‘Understanding Change in International Organizations: Globalization and Innovation in the ILO’ (2006) 59 Vanderbilt Law Review 649. 35 See R Davenport-Hines, Universal Man: The Seven Lives of John Maynard Keynes (London, William Collins, 2015), pp 6 and 245, respectively. 36 See, eg, JM Keynes, The Economic Consequences of the Peace (London, MacMillan, 1920) 279. 37 S Lukes, Power: A Radical View (London, MacMillan, 1974).

140  Jan Klabbers no coincidence that the leading neo-Gramscian approach to global affairs was developed by former ILO official Cox.38 It is in this spirit that much of the ILO’s research work needs to be understood, and it is in this spirit that several other initiatives must be understood. The most significant of these, in all likelihood, is the 1998 Declaration on Fundamental Principles and Rights at Work. This is neither a convention nor a recommendation, but instead a declaration explicitly linked to the ILO’s constitutional mandate (going back to the 1944 Declaration of Philadelphia) and setting up some minimum requirements to ‘level the playing field’. Member states are reminded that they should ban compulsory labour and child labour, recognise freedom of association and collective bargaining, and eliminate discrimination in employment. None of this is truly revolutionary, grounded as these principles are in human rights law and general decency; together they aim to prevent states from engaging in the proverbial race to the bottom. These principles thus also make sense in terms of maintaining a capitalist labour market, where the same basic rules apply to everyone. Part of the ambition behind the 1998 Declaration was to get states to ratify relevant conventions in greater numbers than before – and some of this has been achieved.39 This was considered all the more relevant in light of the creation of the World Trade Organization, liberalising trade and possibly impacting on labour rights, and with a strong dispute settlement mechanism at that. But Maupain is surely right in suggesting that the impact of the 1998 Declaration was not only visible in greater numbers of ratifications, but has been greater still in epistemic terms, ‘by helping to crystallise a consensus on the “rules of the game”’.40 The 1998 Declaration envisages reporting procedures and cooperation mechanisms but is, most of all, an exercise in ‘changing the hearts and minds’ of people.41 In a similar vein, though much more convoluted,42 the International Labour Conference (the ILO’s plenary) in 2008 adopted a Declaration on Social Justice for a Fair Globalisation, outlining four general goals or aspirations: promoting employment by creating a sustainable institutional and economic environment; promoting social protection; promoting social dialogue and tripartism; and respecting, promoting and realising the fundamental principles and rights at work.43

38 Cox, Production, Power, above n 11. 39 A useful overview of the origins of the Declaration can be found in E Reynaud, The International Labour Organization and Globalization: Fundamental Rights, Decent Work and Social Justice, ILO Research Paper No 21 (Geneva, ILO, 2018). 40 Maupain, The Future, above n 27, 53. In June 2022, the International Labour Conference adopted an amendment to the 1998 Declaration to add a ‘safe and healthy working environment’ to the list of principles and rights included. 41 As a result, perhaps, it attracted some prominent criticism, in particular by human rights law professor Philip Alston, suggesting (amongst other things) that by elevating some ‘fundamental principles’, other existing rights were being downplayed. See P Alston, ‘“Core Labour Standards” and the Transformation of the International Labour Rights Regime’ (2004) 15 European Journal of International Law 457. Replies were formulated by B Langille,’ Core Labour Rights – The True Story (Reply to Alston)’ (2005) 16 European Journal of International Law 409, and by one of the intellectual fathers of the Declaration, F Maupain,’ Revitalization Not Retreat: The Real Potential of the 1998 ILO Declaration for the Universal Protection of Workers’ Rights’ (2005) 16 European Journal of International Law 439. 42 This applies not just to the meandering text itself, both also to the circumstances surrounding its adoption: Maupain, The Future, above n 27, 57–58. 43 See further F Maupain, ‘New Foundation or New Façade? The ILO and the 2008 Declaration on Social Justice for a Fair Globalization’ (2009) 20 European Journal of International Law 823.

The Past and Future of Governance: Epistemic Authority and the ILO  141 The 1998 Declaration was further developed in the Decent Work Strategy, set out in 1999 by the newly appointed Director-General Juan Somavia just before he assumed office – and constitutes a rather brilliant example of exercising epistemic authority. Its brilliance resides in a combination of several factors. First, there is the label, with the adjective ‘decent’.44 This provokes a host of associations: to be ‘decent’ is a matter of, well, common decency; it is not overly ambitious and cannot be construed as ‘greedy’ or ‘going too far’ and is thus extremely difficult, politically, to withstand: few want to be seen as opposing ‘decency’.45 Second, there is the chosen form: not a recommendation or declaration, no constitutional amendment or convention, but a ‘strategy’. Not only is it difficult to be against ‘decency’, but it is also difficult to rally against a ‘strategy’, except through covert acts of sabotage. Perhaps it is no coincidence that the idea of ‘decent work’ has subsequently been adopted also outside the ILO framework, most notably in the UN’s Sustainable Development Goals – themselves an interesting exercise in finding alternative ways of exercising political authority.46 What also helped was that, after the WTO’s Seattle fiasco, the ILO took the lead in steering the thinking on how globalisation can be reconciled with social justice by means of establishing a high-level World Commission on the Social Dimension of Globalisation. Measured by concrete outcomes the Commission’s work may well have been disappointing, but it may have been considerably more successful in influencing how relevant actors came to think on the topic, and which priorities they embraced. Co-chaired by the incumbent presidents of Tanzania and Finland, the Commission brought North and South together, as well as the business world, civil society and academia. Perhaps most importantly, it refused to think of labour in isolation: the Commission’s final 2004 report also offers insights and possibilities on trade, finance, debt relief, and other aspects of global governance. In doing so it not only posited the ILO as an authoritative voice (an important aspect of intraorganisational turf wars), but also highlighted the interconnections between policy domains often considered in isolation, preparing hearts and minds for further collaborative analyses and efforts.

VI.  To Conclude Much, much, more could be said about the ILO’s experiences with epistemic governance. It is not the only international organisation doing this, as has come increasingly to be recognised in the literature.47 But it is one of the first to have embraced this, and the ILO truly stands out for the attention its legal officials have paid to developing not just

44 In a similar vein, A Margalit, The Decent Society (Cambridge MA, Harvard University Press, 1996, Goldblum trans). 45 And this quite separately from the ‘plasticity’ of its substance: decency is one of those Humpty Dumpty words can mean whatever anyone wants it to mean. See also Maupain, The Future, above n 27, 54. 46 A useful discussion of the earlier Millennium Development Goals is W Twining, General Jurisprudence: Understanding Law from a Global Perspective (Cambridge, Cambridge University Press, 2009) 323–61. 47 See, eg, KE Davis, A Fisher, B Kingsbury and SE Merry (eds), Governance by Indicators: Global Power through Classification and Rankings (Oxford, Oxford University Press, 2012); A Littoz-Monnet (ed), The Politics of Expertise in International Organizations: How International Bureaucracies Produce and Mobilize Knowledge (Abingdon, Routledge, 2017).

142  Jan Klabbers their substantive business (ie, labour law), but also the law of international organisations. Morgenstern and Osieke were among the first to suggest that there might be limits to what international organisations can do in terms of legality and validity, and Morgenstern singlehandedly put the legal framework for inter-organisational relations on the research agenda, some three decades or so (!) before others started to realise that there might be a topic there.48 Morgenstern also asked pertinent questions about such concepts as that of ‘family’ in the law of the international civil service,49 subjecting issues arising in practice to sharp academic scrutiny and paving the way for further reflections and expansions. If what matters is changing the hearts and minds of people, then surely the ILO’s track record will be much stronger than mere implementation or compliance statistics will ever be able to capture. Epistemic authority, it seems safe to claim, is here to stay. Paraphrasing Jon Landau’s famous discovery of the young Bruce Springsteen: we have seen the future of authority, and its name is epistemic.50 This, as such, is not particularly remarkable; what is more remarkable is the realisation that epistemic authority is not only the authority of the future, but also accounts for much past authority.

48 For sophisticated discussion, see R Uruena, ‘Interaction between International Organizations’ in J Klabbers (ed), The Cambridge Companion to International Organizations Law (Cambridge, Cambridge University Press, 2022) 222–43. 49 F Morgenstern,’ The Law Applicable to International Officials’ (1969) 18 International and Comparative Law Quarterly 739. 50 ‘I saw rock and roll’s future and its name is Bruce Springsteen’. Available at: www.massmoments.org/momentdetails/critic-declares-springsteen-future-of-rock-and-roll.html.

13 The Resilience of Multilateralism: An ILO Introspection for a System-wide Vision TOMI KOHIYAMA AND THOMAS LIEBY*

I.  Repositioning Multilateralism to Achieve Global Goals ‘Crisis’ may be currently one of the most commonly used terms. Yet, this cannot diminish in any way the unprecedented crisis of confidence towards international organisations that is hampering their ability to offer effective responses to global challenges. These organisations are often criticised for either favouring uncontrolled globalisation or being powerless against its adverse effects. These criticisms, together with domestic concerns, are fuelling a rise in populism aiming at ‘reinstating’ a State sovereignty, freed from any multilateral ties, to better protect national interests. Case-by-case, bilateral cooperation based on immediate interests is increasingly being proposed as an alternative to multilateralism. The current state of affairs poses a genuine existential challenge to international organisations, which hinge on the adherence and trust of their members. It may be high time for those organisations to perform an introspection to devise a meaningful way forward. This soul-searching exercise should start with seeking to understand the underlying causes of the crisis, which may ultimately show that the weaknesses in the current international legal framework are anything but irreparable. Harvard historian Quinn Slobodian articulately demonstrates that neoliberal movements have sought to shape multilateralism, international law and international institutions to further their policies.1 In his view, their intent was not to achieve greater collaboration on matters of common concern and the public good, the extension of democracy and human rights, or redistributive policies. On the contrary, they have sought to ‘encase’ or ‘insulate’ the world economic order from government and electoral demands of social justice.2 In the same vein, Alain Supiot notes that a poorly regulated globalisation has resulted in a shift between the means and ultimate goals of international policies, that the economy is no longer shaped to satisfy human

* The views expressed herein are those of the two authors and do not necessarily reflect the views of the International Labour Organization. The manuscript reflects developments up to April 2022. 1 ‘Neoliberalism emerged in the 1930s less as an economic project than as a project of politics and law.’ Q Slobodian, Globalists: The End of Empire and the Birth of Neoliberalism (Cambridge, MA, Harvard University Press, 2018) 92. See among the many examples of its influence on international institutions: 119, 120, 125, 136, 144 and 222. 2 ibid, 12, 22.

144  Tomi Kohiyama and Thomas Lieby needs. Too often ‘human capital’ is adjusted to economic and financial policies.3 Supiot laments the methodical deconstruction of institutions founded in the twentieth century on the ideals of social justice and solidarity. This abandonment generates what he sees as a dramatic increase in inequalities, the plunging of the working classes into precariousness, and mass migrations, which, in turn, cause protean anger and violence, feeding nationalism and xenophobia.4 International organisations must rise to a two-fold challenge. First, they must demonstrate that there is no intrinsic link between them and a given set of rules and policies. They are primarily a tool that is particularly fitting to bring adequate responses to the inherently global nature of most major challenges faced by societies. At the same time, they must assert their strength as institutions to which the international community has attached values and objectives. The key question is therefore how visible and influential these values and objectives are. This brings to the fore the question of the accountability of international organisations and their ability as institutions to respond to global challenges. The issue is compounded by their operation in an international order that will ‘increasingly be shaped by states that are on diverging paths’ and will have to ‘accommodate a much wider range of views and values than they have in the past’.5 In this context, the only viable way to bolster a system of international cooperation aimed at achieving social justice is not to dismantle it, but to recognise the weaknesses of international institutions and reform them. In other words: ‘the widespread mobilisations of public opinion around the world, and manifestations of anger and discontent with established institutions and actors of public life, can in large measure be attributed to policy failures precisely where multilateralism has a key role to play: above all in reducing inequalities, in tackling climate change, in extending human security, in protecting human rights, in managing human mobility, and in offering opportunities for decent work for all. In this perspective, what looks like a rejection of multilateralism might better be understood as ‘we the peoples’ making a pressing call for multilateralism to do its job better.’6 Recent writing advocating, in one form or another, a reinforcement of multilateralism and a rebalancing of globalisation have doubted that any event could be devastating enough to initiate profound mutations.7 The surge of civil unrest – coupled with the current pandemic, which has shattered the social foundations and the economy of many countries – may prove serious enough to give fresh impetus to reach the long-awaited turning point. The good news is that international organisations can rely on an unparalleled institutional maturity, exemplified by their diversity, greater integration and increasing efforts towards coherence and their ongoing introspection examining the validity of their governance structures and procedures.

3 A Supiot, L’esprit de Philadelphie, la justice sociale face au marché total (Condé-sur-Noireau, Seuil, 2010) 24–25. 4 A Supiot, La force d’une idée (LLL, 2019) 10–11. As early as 1919, the Preamble to the ILO Constitution expressed the same concern: ‘whereas conditions of labour exist involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled’. See also Supiot, Chapter 1 in this volume. 5 WR Mead, ‘The End of the Wilsonian Era’ 100:1 Foreign Affairs (Jan/Feb 2021) 131, 135. 6 ILO, GB.338/INS/3/1 (March 2020) para 9. 7 J Klabbers, ‘Marginalised International Organisations: Three Hypotheses Concerning the ILO’ in U Liukkunen and Y Chen (eds), China and ILO Fundamental Principles and Rights at Work (Aalphen an den Rijn, Kluwer, 2014) 181, 195.

The Resilience of Multilateralism: An ILO Introspection for a System-wide Vision  145 By reason of its constitutional values, principles and objectives, the ILO has a responsibility to be at the forefront of efforts to reposition multilateralism as a much-needed tool of cooperation and vector of social justice, and to bring about intellectual, spiritual and executive convergence at the international level. In this endeavour, the ILO has much to offer, as a result of its institutional culture and wealth of experience in navigating international upheaval, based on its responsiveness to external events and its flexibility in adapting its rules and institutional practices. Francis Maupain remains, to date, one of the intellectual figureheads of the ILO secretariat, especially as regards his understanding of the Organization’s institutional evolution. One of the key lessons of his work, both as a practitioner and an academic, is that the Organization’s constitutional objectives and procedures are at the foundation of its existence, its evolution, and ultimately its resilience. As it has done at every defining moment of its existence, the ILO should once again return to its foundations to examine how it can address current needs and contribute to a shift in the multilateral system. In paying tribute to Maupain’s work and intellectual teachings, this contribution will sketch out critical issues for a greater institutionalisation of social justice in the multilateral system – building on its universal treaty basis – namely the ILO Constitution – and greater integration of social justice in international law.8 A number of these issues are not new and underline that the institutionalisation of social justice requires tenacity as much as audacity. This contribution will also outline, based on the ILO experience, a possible new avenue for theoretical reflections on international organisations, which could revisit institutional legal theory, highlighting how the existence of international organisations as institutions embodying high principles is at the core of their value as mechanisms of international cooperation.

II.  Pathways to Institutionalising Social Justice in the Contemporary World The task of advancing social justice may well be a matter of persistence in reaffirming fundamental principles or recasting proposals from the past, when circumstances, such as a global crisis, appear to create an opportunity to reconsider them. Insights from the past could also be usefully combined with innovative approaches.

A.  Old Wine in an Old Bottle: Bringing about the Institutional Maturation of Social Justice 1.  A Universal Treaty Basis Any discussion of the future of multilateralism must consider what the ultimate aim of any policy must be. One quasi universally ratified treaty contains an unambiguous statement to that effect: the ILO Constitution, which incorporates the Declaration of Philadelphia and 8 M Kohen, ‘Does General International Law Incorporate the Concept of Social Justice?’ in G Politakis, T Kohiyama and T Lieby (eds) ILO 100 Law for Social Justice (Geneva, ILO, 2019) 91, 100.

146  Tomi Kohiyama and Thomas Lieby is binding on 187 States. It provides that social justice must be the ultimate aspiration of all policies, including economic and financial policies. Although the 1944 Declaration of Philadelphia is approaching its 80th anniversary, social justice is yet to become the backbone of dominant international policies. The international order exemplified by the Declaration, and its central tenets such as universalism, democratic values and respect for the rule of law, have even been viewed as nearing the end of their lifespan,9 with globalisation and technological innovation accelerating this process.10 In Jan Klabbers’ view, the ILO and other international organisations ‘associated with political aspirations no longer deemed all that relevant in a world dominated by neoliberalism’ have been somewhat marginalised.11 One of his hypotheses is that they have failed to develop a ‘keen sense of the Zeitgeist’,12 which may be defined as ‘the general intellectual, moral, and cultural climate of an era’.13 Yet the value of international organisations as institutions that are established on high principles may be derived precisely from their ability not to jump on any zeitgeist bandwagon. The current crisis may prove that some were right to remain true to their roots and make their dissenting voice heard. The Declaration of Philadelphia expresses a profoundly humanist vision of social justice which is formulated in such terms that its relevance and appeal to contemporary aspirations cannot be easily dismissed.14 In addition to its conventional legal basis, such a vision is anchored in a powerful constitutional machinery of two tripartite organs – the International Labour Conference and the Governing Body of the ILO – and the standards-related procedures, and benefits from the expertise of the secretariat, the ILO’s other constitutional organ. The principles enshrined in the Declaration and their institutional foundation should be the starting point of any effort to shift the means and goals of international policies.

2.  Coming to Terms with Coherence The implementation of the Declaration of Philadelphia is in essence a question of international coherence, insofar as the ILO is vested with the responsibility of examining and considering all international economic and financial policies in the light of the fundamental objective of social justice. This responsibility is yet to be fully implemented at the institutional level or to receive greater attention from the multilateral system and the broader public. At the time of the adoption of the Declaration, a resolution was proposed to enable the ILO to scrutinise economic and financial measures from the standpoint of their social adequacy. However, the proposal was discarded as it might duplicate the functions of the soon-to-be established Economic and Social Council of the United Nations.15 The matter

9 Mead (above n 5); see also A Cooley and DH Nexon, ‘The Real Crisis of Global Order’ 101:1 Foreign Affairs (Jan/Feb 2022). 10 Cooley and Nexon (above n 9) 107. 11 Klabbers (above n 7) 190. 12 ibid 191. 13 Merriam-Webster Dictionary. 14 See the principles set forth in Parts I and II of the Declaration. 15 ILO, Defending Values, Promoting Change – Social Justice in a Global Economy: An ILO Agenda (Geneva, ILO, 1994) 97–99.

The Resilience of Multilateralism: An ILO Introspection for a System-wide Vision  147 came to the fore again at the time of the adoption of the 2008 Declaration on Social Justice for a Fair Globalisation. This Declaration reaffirmed the ILO’s responsibility to examine international economic and financial policies and invited Member States to coordinate their positions in relevant international forums.16 In 2011, an attempt was made to supplement this reaffirmation through a draft resolution concerning the coherence of the multilateral system. The text proposed to invite the international institutions concerned to engage in debate at every session of the Conference ‘on the basis of a document prepared in collaboration with them, concerning evaluation of the social impact of financial, economic and trade policies’.17 However, for procedural reasons relating to setting the Conference agenda, this draft was not examined. The ILO Centenary Declaration for the Future of Work of 2019 has reaffirmed the need to reinforce international cooperation through the development of institutional arrangements with other organisations to promote policy coherence in pursuit of the ILO’s human-centred approach to the future of work. The Centenary Declaration recognises the strong, complex and crucial links between social, trade, financial, economic and environmental policies. On this basis, in March 2021, the Governing Body requested the Director-General to enhance the ILO’s role in the multilateral system by reinforcing its cooperation and developing institutional arrangements with other organisations to promote policy coherence.18 In mounting an effective response to the current and future crises, the question of coherence may be one of the greatest challenges. Admittedly, this challenge is partly due to the existing institutional set-up, where international organisations are independent from each other and have their own constitutional mandate, governance organs, standards, policies and budgets.19 While one should not underestimate the fact that such fragmentation may have allowed the ILO to maintain an alternative voice to the neoliberal zeitgeist, coherence is nevertheless indispensable to achieving the goals of the Declaration of Philadelphia. For decades, economic and social objectives have been dealt with somewhat independently. These closely interlinked matters must instead be tackled with some degree of integration.20 At the same time, institutional and normative coherence must arguably be developed based on the principles set out in the Declaration of Philadelphia. In this respect, the ILO could gain some leverage in the context of the current crisis, which has prompted multilateral institutions such as the International Monetary Fund to allow for ‘welfare-state-like’ interventions – even if timidly and temporarily – to respond to the immediate needs arising

16 Preamble; Part IIB (iv); Part II.C and Annex to the 2008 Declaration (Part III.C). See also F Maupain, ‘New Foundation or New Façade? The ILO and the 2008 Declaration on Social Justice for a Fair Globalization’ (2009) 20 European Journal of International Law 848. 17 ILC 100th Session (2011), Provisional Record No 2. 18 GB.341/INS/PV, para 265. 19 In this context, the sometimes strikingly opposite views set forth by the World Bank, the ILO and the OECD in their respective reports on the future of work cannot come as surprise; see P Alston and J Gandour, ‘The ILO’s Centenary Declaration and Social Justice in the Digital Age’ in Politakis et al. (above n 8) 565. 20 There are undeniable evolutions. Recently, the 2019 G7 Social Tripartite Declaration called for ‘further integration of international labour standards across policies in three key areas of action: international financing programs, trade, and a sustainable and inclusive future of work’. The Declaration is available at: www.elysee.fr/admin/upload/ default/0001/05/ef44c36dbf6142c703578cd12db4dea4a142c1a7.pdf.

148  Tomi Kohiyama and Thomas Lieby from the pandemic. Current criticisms could convince multilateral institutions that their sustainability will largely depend on their capacity to cater better for the social dimension of globalisation and to shield workers from its consequences by removing working conditions from the adjustment variables of global competition. There is no reason why the mandates of the international organisations concerned with trade and finance could not be read to converge with the principles set forth in the Declaration of Philadelphia21 and to fulfil the vision expressed therein: that national action under the guidance of an organised international order ‘must pursue constantly broadening social objectives and can be effective only in so far as economic policy is regarded as essentially a technique for achieving social objectives’.22 Another matter that is crucial for the impact of social justice is currently before the ILO Governing Body: the establishment of an international tribunal to rule on the interpretation of international labour Conventions. Although this was included in the Constitution in 1946, it was never implemented. Extensive discussions have already taken place on the conditions and arrangements concerning the possible setting-up of that tribunal.23 Its proponents perceive the tribunal as a means of strengthening the credibility of the ILO, enhancing legal certainty and bolstering the effectiveness and global resonance of its standards. The evolving circumstances may afford a new opportunity to reconsider the possibility of establishing such a tribunal. In particular, a growing number of international agreements directly reference international labour standards and establish dispute settlement bodies which can be called on to rule on their scope and meaning. Establishing an ILO tribunal could be key for the Organization to issue interpretative rulings under a procedure shaped by the constituents, thus pre-empting a fragmented interpretation of international labour standards. Additionally, a robust body of international case law on these standards could hardly be ignored in the field of finance or trade. It would encourage the integration of the concept of social justice into international law which, according to Marcelo Kohen, ‘is far from being concretely crystallised’ if not ‘widely ignored’ in certain fields of international law.24 In sum, the future of social justice as the prevailing goal of multilateralism lies to a great extent in the ILO capacity to persuade and engage with other international actors on the merits of the Declaration of Philadelphia in a post-pandemic world emerging from economic crisis. In this task, the ILO must make full use of its unique advantage: its tripartite structure and standards system. It must also adequately involve relevant actors in the work of its two tripartite organs. This may not call for new ideas, but rather a revamping of previously unsuccessful – yet still relevant – ideas.

21 Admittedly, some of these institutions were set up under the same world order vision prevailing at the time of the adoption of the Declaration of Philadelphia. See E Lee, ‘The Declaration of Philadelphia: Retrospect and Prospect’ (1994) 133 International Labour Review 468. 22 ILO, Future Policy, Programme and Status of the International Labour Organisation, ILC 26th Session (1944) Report I, iii. 23 For more information on the tribunal, see ILO, Standards initiative: Follow-up to the 2012 ILC Committee on the Application of Standards (2014) GB.322/INS/5 and the Minutes of the Related Discussion, GB.322/PV 17–45. For more details, see La Hovary, Chapter 15 in this volume. 24 Kohen (above n 8) 100.

The Resilience of Multilateralism: An ILO Introspection for a System-wide Vision  149

B.  New Wine in an Old Bottle: Unleashing Social Justice Through Regulations To contribute to the realisation of social justice, the ILO must be able to strive to ‘re-balance’ globalisation.25 Normative action is at the centre of its mandate and constitutes one of its major assets in closing the ‘governance gap’ which has so far resulted in a limited capacity of societies to manage the adverse consequences of globalisation and which can be narrowed ‘either through effective cooperation or through rollback, otherwise known as protectionism’.26 Some years before the ILO’s centenary, Maupain highlighted the need for the organisation to respond to the new regulatory needs and to transpose its goals and principles into international labour standards by giving concrete expression to the objective of social justice.27

1.  Unfinished Business in Labour Regulation? For some observers, the ‘international labour code’ covers almost all the basic elements of social justice identified in the ILO Constitution, and the ILO now has to focus on adapting its standards to remain relevant in the face of structural, technological, economic and political transformations.28 For others, the ILO has to some extent ‘missed the most salient manifestation of globalization’29 and new or substantially updated regulations are called for on a number of issues (such as global supply chains,30 ‘Uberisation’ and flexibilisation of labour,31 labour migration32 and resort to labour courts33). One of the challenges for the ILO is to make a compelling case for the value of traditional regulations and its effective combination with other forms of regulations. International

25 J Pauwelyn, ‘Is Globalization Finally Re-balancing? Novel Ways of Levelling the Playing Field for Labour’ in Politakis et al. (above n 8), 647, 648. 26 J Ruggie, ‘Making Economic Globalization Work for All: Achieving Socially Sustainable Supply Chains’ Keynote Address (2017) G20 Labour and Employment Meeting. 27 F Maupain, L’OIT à l’épreuve de la mondialisation financière, Peut-on réguler sans contraindre ? ILO – IIEES (2012) 2–8. 28 K Tapiola, ‘What Happened to International Labour Standards and Human Rights at Work?’ in T Halonen and U Liukkunen (eds), The International Labour Organization and Global Social Governance (Dordecht, Springer, 2020) 51, 63–64. See La Hovary, Chapter15 in this volume, on the Standards Review Mechanism. 29 Klabbers (above n 7) 186. 30 This is a topic of ongoing discussions at the ILO. Some constituents consider that there is no new regulatory gap at the international level because of cross-border supply chains and that the full implementation of existing standards is fully adequate to address decent work therein. Others point out, that, on the contrary, global supply chains are characterised by the dissociation between responsibility and the place where corporate power is exercised, and that they need to be reconnected. In March 2021, the Governing Body decided that the ILO secretariat should conduct an in-depth review to clearly identify if there are any gaps in the current body of normative and non-normative measures, including means of implementation and other measures, to facilitate a discussion on options to ensure decent work in supply chains, including at sectoral level, where appropriate. The review provided the basis for the work of a tripartite working group which adopted in July 2022 building blocks for a comprehensive strategy on achieving decent work in supply chains. Background information on the ILO discussions are available at: www.ilo.org/global/topics/supply-chains-preview/background-information/lang--en/index.htm. 31 While the matter is a multidimensional phenomenon which may be covered in part by some existing standards, it is not the subject of a comprehensive standard. 32 Klabbers (above n 7) 186. 33 Maupain (above n 27) 50.

150  Tomi Kohiyama and Thomas Lieby regulation has indeed witnessed a tendency to favour ‘soft’ approaches to international problems.34 The European Parliament has considered that the approach, which has been applied for several decades, of encouraging multinational companies to take responsibility for their supply chains ‘has made it clear that the voluntary approach is not enough’.35 It does not guarantee a level playing field, does not offer any remedies to victims of violations and can even generate competitive disadvantages for companies deciding to put in place due diligence standards. The European Union is currently contemplating a single binding standard on due diligence which would apply to all companies active in the EU market, and which would propose a similar enforcement approach to that of the regulation on personal data protection.36 The outcome of this exercise may have far-reaching implications on the regulation of global supply chains.

2.  Stepping into ‘Uncharted Territories’? Two landmark advisory opinions of the Permanent Court of International Justice (PCIJ) from 1922 on the ILO’s competence to regulate the conditions of labour of persons employed in agriculture and to examine proposals for the organisation and development of methods of agricultural production offer a number of points for reflection on ILO standard-setting action in the contemporary context. For the PCIJ, the scope of the ILO’s competence ‘depends entirely upon the construction to be given to the [constitutional provisions] from which, and from which alone, the [ILO] derives its existence and its powers’.37 While the Court took the view that ‘consideration of methods of organising and developing production from the economic points of view is in itself alien to the sphere of activity marked out for [the ILO by its Constitution]’, it would appear that, from the Court’s perspective, nothing would prevent the ILO from considering production when it is directly linked to the question of labour conditions: ‘it is evident that the Organisation cannot be excluded from dealing with the matters specifically committed to it by the Treaty on the ground that this may involve in some aspects the consideration of the means or methods of production, or of the effects which the proposed measures would have upon production’.38 In this context, under its Constitution, whose terms ‘could hardly be more comprehensive’,39 the ILO would be competent to address financial and economic matters, and also other matters such as taxation, to the extent that they have direct implications on labour conditions. This would be consistent with the ILO’s responsibility under the Declaration of Philadelphia. On certain topics, standard-setting could incorporate 34 Klabbers (above n 7) 186. 35 European Parliament, Towards a Mandatory EU System of Due Diligence for Supply Chains, 1. 36 ibid, 6. See the Commission’s Proposal for a Directive on Corporate Sustainability Due Diligence of 23 February 2022, laying down rules on obligations of due diligence by companies regarding actual and potential human rights and environmental adverse impacts, with respect to their own operations, the operations of their subsidiaries, and the value chain operations carried out by established business relationships. See https://ec.europa. eu/info/sites/default/files/1_1_183885_prop_dir_susta_en.pdf. 37 Competence of the ILO to Examine Proposal for the Organization and Development of the Methods of Agricultural Production, PCIJ, series B, 12 August 1922, 54–55. 38 ibid, 59. 39 Competence of the ILO in Regard to International Regulation of the Conditions of the Labour of Persons Employed in Agriculture, Advisory opinion, PCIJ, series B, 12 August 1922, 27.

The Resilience of Multilateralism: An ILO Introspection for a System-wide Vision  151 ‘the strong, complex and crucial links between social, trade, financial, economic and environmental policies’ to which the Centenary Declaration refers. The ILO has already issued positions on monetary policies and taxation in the context of its response to the crisis brought about by the pandemic.40 There is no reason to consider that the exercise of its competence would be limited to policy advice and not to regulation in these fields. After all, international financial institutions have also adopted their own labour policies and standards and have gone beyond incorporating international labour standards as they have at times modified their scope and content, or have adopted their own standards.41 Of course, any normative exercise that might be undertaken by the ILO would need to closely involve all relevant international organisations and strive to ensure international coherence. When it comes to the ILO’s incidental competence to examine questions of production, reference can also be made to another area of regulation: ‘social labelling’ to certify the conditions under which products are manufactured. The topic in itself is not new. In 1997, a proposed Convention on a global social label was discussed at the International Labour Conference but was not adopted. While social labelling is currently associated with confusion, unreliability or a degree of proliferation,42 the idea could be revisited. There are many potential options, including a unique label guaranteeing compliance with international labour standards.43 Consumer awareness is undeniably much greater now than it was 30 years ago and there may be good reasons to recast the proposal.

III.  Theoretical and Axiological Reflections on Strengthening Multilateralism Theory matters. Including when it comes to generating a more accurate and widespread understanding of the workings of international organisations and devising desirable courses of action to better address the challenges faced by multilateralism. Klabbers observes that there is insufficient theorisation and discussion of the law of international organisations, in particular from practitioners who ‘have systematically thought about organisations, [but] have by and large refrained from systematic and more or less formal theorising’.44 This leads to a general lack of deep and acute understanding of international organisations. In the long run, this may fuel distrust. José Alvarez highlights the partial nature and sometimes biased character of ‘international legal frameworks’45 aimed at capturing international organisations from specific vantage points. Both authors call for an honest reading of international organisations. In particular, Klabbers laments the tendency to consider that international organisations ‘are inherently good’.46 40 ILO, A Policy Framework for Tackling the Economic and Social Impact of the COVID-19 Crisis, 6–7. 41 Y Chen, ‘The Making of Global Public Authorities: The Role of IFIs in Setting International Labor Standards’ AIIB Yearbook of International Law (Leiden, Brill, 2018) 109. 42 Maupain (above n 28) chapter 10. 43 ibid, 263–64. 44 J Klabbers, ‘The EJIL Foreword: The Transformation of International Organizations Laws’ (2015) 26 European Journal of International Law, 9, 15 and 19. 45 J Alvarez, ‘Frameworks for Understanding the ILO’ in Politakis et al. (above n 8) 59, 61. 46 Klabbers (above n 44) 29.

152  Tomi Kohiyama and Thomas Lieby

A.  Revisiting Legal Theory for a Better Understanding of International Organisations A cross-cutting perspective centred on the concept of the institution may help in further developing the general theory of international organisations. The accompanying intellectual endeavour could build on a rich and multidisciplinary literature on institutions, notably in the fields of law and philosophy. Santi Romano highlights, in particular, key aspects which are apposite to a contemporary reflection on international organisations.47 He defines an institution as any entity or social body which has ‘a firm and permanent unity … [I]ts identity does not get lost […] as its distinct elements vary, as well as its members, patrimony, means, interests, addressees, norms, and so on. It can regenerate itself but continue to be itself without losing its own individuality.’48 Romano also brings to the fore the critical role of law in the building and functioning of institutions in that ‘the institution exists and can be defined as such only inasmuch as it is created and preserved by the law’.49 Maurice Hauriou highlights the critical role of ideas in the creation and permanence of institutions, which hinge on the continued acceptance of these ideas by their members.50 Hauriou reflects on the ‘directing idea’ – ‘an ideal manifestation of the tasks to be realised by the institution’ – and the ‘organised power’ to realise the directing idea, and points out the hegemony of the ‘directing idea’ over the organised power.51 He also elaborates on the transition from ‘directing idea’ to ‘the highest principles of law’.52 This lens helps to focus attention on the importance of the foundational objectives and the manner in which they can generate changes in international organisations. It enables a study of international organisations which is detached from a grid analysis dominated by States. One of the fundamental differences between States and international organisations is that the latter are anchored on general objectives and high principles.53 As these objectives are quintessential to their enduring nature as institutions, their significance cannot be reduced to the letter of the founding treaty. The context in which they are applied is equally important to maintain the bond between the objectives and the social environment and developments. This link is vital for the continued existence of international organisations and their credibility as enduring mechanisms of international cooperation. The institutional lens might thus shed light on the ability of international organisation to reinvent themselves in ways not foreseen in their founding treaty, without losing their individuality. Far from leading to a naïve reading of international organisations, this lens would, in fact, require a critical study of international organisations, their procedures and the processes accompanying their evolution. Their relevance and impact should also be measured against

47 S Romano and M Croce, The Legal Order (Abingdon, Taylor & Francis Group, 2017). 48 ibid, 17–19. 49 ibid, 21. 50 Maurice Hauriou, L’institution et le droit statutaire (1906). 51 Romano and Croce (above n 47) xvi. 52 ‘These higher principles, which are expressions of what he calls ‘superlegality’, are best grasped as expressions of a ‘constituent power’, a power that keeps the laws and formal constitution in tune with the evolving character of the directing idea.’ ibid, xvii. 53 It is also a feature that distinguishes them from the other major institution, the enterprise. French philosopher Pierre Musso has demonstrated how the enterprise has overtaken the role of the State as a dominant institution; P Musso, La Religion industrielle (Nantes, Fayard Poids et Mesures du Monde, 2017).

The Resilience of Multilateralism: An ILO Introspection for a System-wide Vision  153 their objectives. The process of reinvention should be subject to stringent transparency requirements, as the primary condition allowing an organisation to realise its objectives and to reinvent itself remains its ability to secure sufficient political support from its members on the basis of its values and their realisation. While this places the focus back on members, the influence that international organisations as institutions have on them should not be discounted.54 In addressing the contemporary significance of Romano’s work, Martin Loughlin explains that ‘institutions evolve and maintain their world-building capacity only through the dialectical interplay of potestas and potentia’, namely between ‘the power created by drawing people together in a common undertaking’ and ‘the power over’.55 The latter rests on the former. This is a critical aspect when it comes to the impact of international organisations. The ILO Declaration on Fundamental Principles and Rights at Work of 1998 is a good illustration of this dialectic.56 At a time when the ILO’s impact was being questioned in the globalised economy, the ILO Members recognised, through the 1998 Declaration, their obligation to respect, promote and realise four categories of constitutional principles.57 The Declaration has had a major impact inside and outside the Organization.58 Members have reaffirmed their commitment to constitutional principles, and translated it either by ratifying the fundamental Conventions expressing these principles and rights or, absent of ratification, by reporting on measures to realise them. In so doing, they have strengthened the influence of the Organization over them, at the global level, through an institutional dialogue on the efforts to fulfil their commitment, and at the national level, with the mobilisation by the ILO of its means of action to support these efforts. The renewed adherence to the ILO’s values and objectives is at the core of its capacity to maintain a dynamic towards social progress through persuasion.

B.  Axiological Reflection for a Greater Impact? The dynamics of the international environment and the social and technological transformations may seem to render international organisation obsolete as instruments of cooperation.59 Their sustainability as institutions will hinge on how successful they are in providing a common sense of purpose and therefore generating a collective belief and willingness to act collectively. To that end, international organisations may need to engage in introspection on the manner in which their objectives and values – their true ends – relate

54 Alvarez (above n 45). 55 Romano and Croce (above n 47) xxviii (foreword by Loughlin). 56 F Maupain,  ‘Revitalization and not Retreat: The Real Potential of the ILO Declaration for the Universal Protection of Workers’ Rights’ (2005) 16 European Journal of International Law 439; F Maupain, ‘New Foundation or New Façade?’ above n 16, 823. 57 These categories currently are: freedom of association and the effective recognition of the right to collective bargaining, the elimination of forced or compulsory labour, the abolition of child labour and the elimination of discrimination in respect of employment and occupation. 58 ILO, Fundamental Principles and Rights at Work: From Commitment to Action, ILC, 101st Session (2012) Report VI; ILO, Fundamental Principles and Rights at Work: From Challenges to Opportunities, ILC, 106th Session (2017), Report VI; see also K Tapiola, The Teeth of the ILO – The Impact of the 1998 ILO Declaration on Fundamentals Principles and Rights at Work (Geneva, ILO 2018); U Liukkunnen, ‘The ILO and the Transformations of labour law’ in Halonen (above n 28) 28. 59 Mead (above n 5) 128–30.

154  Tomi Kohiyama and Thomas Lieby to the broader social and economic environment. This introspection would be separate from a discussion on the means of action and its impact. It should be purely axiological.60 In the wake of the adoption of the Centenary Declaration, the ILO is currently examining an amendment to the 1998 Declaration to add a fifth category of fundamental principles and rights at work relating to safe and healthy working conditions.61 This can be read as an introspection on the contemporary significance of the principle relating to the protection of workers’ safety and health at work set forth in the Constitution. This introspection is illustrated through the discussion on the terminology to formulate the new fundamental principle and right at work. As the amended Declaration would declare a constitutional principle, the wording could be aligned with the text of the Constitution placing emphasis on the protection of the life and health of workers.62 One the other hand, the principle is also expressed in the most recently adopted conventions on occupational safety and health. These conventions reflect an evolution in the promotion of occupational safety and health,63 placing emphasis on prevention and assessment of risks, through the formulation of a national policy and the complementary roles of public authorities, employers, workers at all levels. The debate on the issue can be read as an introspection of the enduring value of the ILO constitutional objective relating to safety and health, and its significance in the current context. A genuine axiological discussion is taking place within the ILO. Such introspection is not without risk as it can lead to a questioning or weakening on the high principles on which the institution is grounded. Yet it is the responsibility of the governance organs and the secretariat of each international organisation to take the initiative and undertake such an exercise. The scholarly literature has indeed highlighted that the backbone of any institution is the collective belief of its members in its objectives. An ‘institution’s power in the world rests primarily on the scale of its membership, the resources at its disposal, and, crucially, on the bonds of allegiance of the membership to the collective aims of that institution.’64

IV. Conclusion The consideration of the issues outlined above is indispensable to positioning social justice at the centre of multilateralism. This will depend on the ILO’s capacity to generate a sense of common purpose and adhesion to its values and high principles. The ILO will need to show that greater multilateralism is not antithetical to strong States, which are essential to support and implement the outcome of multilateral discussions and are essential to the

60 See also Agustí-Panareda, Chapter 5 in this volume. 61 On 10 June 2022, the ILO Conference adopted an amendment to the Declaration to include ‘a safe and healthy working environment’ among the fundamental principles and rights at work. 62 The Preamble to the Constitution refers to ‘the protection of the worker against sickness, disease and injury arising out of his employment’ while the Declaration of Philadelphia refers to the ‘adequate protection for the life and health of workers in all occupations’. 63 See GB 343/INS/6, paras 45–50; GB 343/INS/PV/ paras 177–217. See also, GB 344/INS/6/2. 64 Romano and Croce (above n 47) xxviii. Pierre Musso also addresses the core feature of any institution – the combination of a ‘faith’ and standards of conduct – and how the collective faith shared by its members cements any institution. Musso (above n 53) 7–105.

The Resilience of Multilateralism: An ILO Introspection for a System-wide Vision  155 future of multilateralism. Admittedly, the current context is far from optimal. Another leading figure of the ILO, Wilfred Jenks, referred to the Organization’s spirit of ‘business-like courage’65 with which it has always confronted its future problems. This spirit is very much needed today. It encapsulates the potency of the ILO and other international organisations as institutions governed by high principles, which can allow them to confront and influence any zeitgeist that is at odds with the objectives that they were established to fulfil.



65 ILO

Official Bulletin (1945) Vol XXVII, No 2, 125.

156

14 The Contemporary Quest for Social Justice: Some Further Thoughts on the ILO Contribution JEAN-MICHEL SERVAIS

I. Introduction The public debate that took place in 2019 on the future of the International Labour Organization (ILO) on the occasion of its centenary echoed two antagonistic visions of the Organization, ie the views on the one hand, quite idealistic and nostalgic, of those dreaming to go back to 1919 or to 1944 and to the spirit of a bygone period and, on the other, the statements of some, also comparing the present with the past, predicting the end of the institution if its Members do not dramatically change the structure and the means of action. Both refer in particular to the standard-setting activities for which the institution was created and which are still considered by many as its raison d’être. The present chapter discards both visions for lack of realism and of rational foundations. It rather considers that ILO labour standards constitute a fairly comprehensive corpus of minimum obligations seeking to give practical content to the notion of social justice. A first part recalls their strengths and weaknesses. The ambitious and original achievement lost part of its effectiveness when the internationalisation of economic exchanges destabilised the consensus that was reached between business freedom and labour protection. A search for decent work consequently replaced the aim of social justice in the Organization. Such a move has mixed results. The second part identifies two challenges which require an urgent response if the institution wishes to regain its role in the digital age. One is the precarisation of many, both employees and the self-employed, dealt with elsewhere in this volume. This chapter will rather focus on the transnationalisation of labour relations.

II.  Social Justice and the ILO A.  A Long-lasting Consensus The ILO Constitution sees the conclusion of international standards as one of its major functions and lists the reasons for this. The first is the improvement in labour conditions.

158  Jean-Michel Servais Linked to this is the belief that miserable working conditions provoke serious domestic unrest and imperil lasting peace in the world. Finally, generalised minimum guarantees were sought to avoid ‘unfair’ economic competition, as ‘the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations which desire to improve the conditions in their own countries’ (Preamble to the Constitution). The achievements have been more than significant, as shown in a wealth of literature. Mention is less frequently made of the technical cooperation programmes that show many cases where States have sought guidance from ILO standards for the reform of their labour legislation, whether or not they ratified the instruments concerned. Also revealing are the court decisions in which national and regional courts have referred to ratified or even nonratified conventions with a view to interpreting or correcting national provisions, or to identifying new general principles of law. Collective labour agreements signed at (branch or inter-sector) national or supranational level are other examples of the impact.1 The influence of the international labour standards also appears in the social clauses of both trade agreements and private social initiatives. They often integrate, explicitly or not, the provisions of some ILO Conventions and Recommendations or the content of the 1998 Declaration on Fundamental Principles and Rights at Work. When verifying the implementation of the clauses, the countries concerned regularly refer to the comments of the Organization’s supervisory bodies. The ILO is even informally called on to provide technical assistance or good offices to overcome the discrepancies observed. The Organization has more generally dealt with numerous labour disputes in which it officially or informally played a clear role of mediator. The cases concerned labour disputes that arose within a particular country or between countries. More informally still, high-level international civil servants have advised multinational enterprises on the way to improve the working conditions in their firms. The fall of the European Communist regimes in 1989 affected the consensus reached earlier. It confirmed the pre-eminence of the market economy. The borders were opening. The social consensus was modified; shareholders gained greater influence, where this was not yet the case, over the management of companies. At the same time, new technologies brought changes to the structure of employment: it drove a gap between regular (ie more or less permanent) staff and casual workers. The accelerated internationalisation of the market economy has limited the scope for action of the national public authorities, particularly in labour affairs. They may even have difficulties in imposing the application of their existing law to supranational entities. The decision-making power of many firms has moved further and further away from the workplace. Labour law is affected in both its content and its implementation. The national employers’ and workers’ organisations are faced with serious difficulties as well. The ILO, made up of these same actors, has consequently weakened. In parallel, new world players have risen in strength, first and foremost the multinationals. Regional groupings, such as the European Union (EU), constitute other new world players. Non-governmental organisations (NGOs) have used new communication technologies to create transnational networks which can carry great weight. None of the global actors is directly integrated into the decision-making process of the ILO. This is also an 1 For further developments on the impact of the international labour standards, see J-M Servais, International Labour Law (6th edn) (Alphen aan den Rijn, Kluwer, 2020), in particular §§ 1108–114.

The Contemporary Quest for Social Justice  159 explanation for some of the difficulties facing other international institutions, whose structures and modes of action continue to depend on inter-State relations. Their efforts to bring representatives of the global civil society into the fold reflect their desire to adapt to the new reality. Those developments have contributed to a proliferation of procedures, techniques and bodies for the control of social standards. They are based on instruments of universal or regional international organisations, on bilateral or multilateral free trade agreements, and on commercial regulation with a social clause as well as on private social initiatives. The consensus that led to the development of a body of international labour legislation and procedures for monitoring its implementation became tenuous. In search of wider support, the ILO moved to the new objective of decent work.

B.  The Move to Social Decency The Declaration of 1998 has established a hierarchy amongst the ILO standards, giving precedence to respect for freedom of association and collective bargaining, the abolition of child and forced labour, and the elimination of discrimination. The respect for those fundamental rights was supposed to enable the workers to claim freely and equally their fair share of the wealth they helped create and to achieve fully their human potential. The text left aside the other rights mentioned in the United Nations Covenant on Economic, Social and Cultural Rights, 1966, and in the vast majority of the ILO Conventions.2 Soon after the adoption of this Declaration, the ILO endorsed the so-called ‘decent work’ agenda. The notion has much in common with the one of ‘flexicurity’ used in the EU, although the latter concerns a more homogeneous group of countries. It echoes the principles enunciated by the Organization since its origin and updated in 1944, but introduces a measure – decency – that was not before included. The word ‘decency’ with regard to the working conditions was used in particular by George Orwell. He described his journey to Northern England in 1936 and the unemployment and proletarian life he observed in the poor mining areas.3 He advocated ‘common decency’ and a share for all. The concept clearly implies that men and women at work practise solidarity, without trying to dominate each other. It also implies that human relations are not to be reduced to utilitarian ideologies, but must include an ethical dimension. The two elements, solidarity and ethics, correspond to the decent behaviour analysed by Amartya Sen, particularly in The Idea of Justice.4 The Nobel Prize places these elements in a global perspective by relativising the idea of social justice. Sen presents the fable of the three children and the flute, each claiming exclusive ownership: Anne because only she can play it, Bob because he is poor and without any toys, and Carla because she spent months making it. There is no doctrine, no institution, to decide between these claims in a way that is unanimously accepted as just. The author believes that it is appropriate to devote oneself 2 In 2022, the International Labour Conference has, however, added to the list ‘a safe and healthy working environment’. 3 G Orwell, The Road to Wigan Pier (London, Penguin, 1962, original edition 1937). See J-M Servais, above n 1, §§ 1175–1183. 4 A Sen, The Idea of Justice (London, Penguin Books, 2009).

160  Jean-Michel Servais to concrete struggles against excesses, starting with the most blatant ones. Freedom is an essential means of achieving more justice as it strengthens the capacity to work towards development and progress. Sen’s speech to the 1999 ILO Conference, which enshrined the term ‘decent work’, showed his influence on the institution’s approach. The philosopher Avishai Margalit had used the word ‘decency’ in a book published shortly before.5 He points out that thinkers generally seek to lay the foundations of a just society, based on a balance between the notions of freedom and equality. He considers that this ideal is unrealistic and that the urgency calls for a decent society, a society whose institutions do not humiliate people. These conclusions shed light on the scope of the expression. ‘Decent’ means sufficient, not generous, but adequate, meeting minimum requirements that prevent humiliation. As it was written, to banish the unacceptable, it is considered inevitable to soften the primacy of the just over the good.6 The ethical dimension focuses on the promotion of major civil liberties applied to work. It reminds long-standing concerns expressed by Anglo-American lawyers who draw on the interpretation of those liberties to defend adequate conditions of employment, where labour relations are rather based on voluntarism than on state protection. European experts have claimed that decency is equivalent to dignity, a notion sometimes used in national legal systems as a guarantee against abuses. Laudable as it is, the idea does not correspond to the texts adopted at the ILO or to the intention of their authors. The words ‘dignité’ in French and ‘dignidad’ in Spanish were knowingly rejected to translate the English term ‘decency’. The solidarity dimension is expressed by the importance given to the cohesion of society and to its implementation through social dialogue, an objective repeatedly mentioned by the ILO among its priorities. It also appeared in a consolidation of social protection norms, which led to the adoption in 2012 of the Social Protection Floors Recommendation (No 202). A third element is called for to implement the decent work policy in line with the rights-based approach dear to Sen: individual and collective capacity-building to stimulate employment and development. ILO policy is carried out with an extensive use of promotional means, or soft law, as in the 2009 Global Jobs Pact or the 2008 Declaration on Social Justice for a Fair Globalization. The above analysis does not detract from the interest of these texts. They seek to rationally foster the objectives favoured by the Organization through political commitments translated into specific programmes. They allow the ILO to be associated with the global debate on economic development, as evidenced by its presence at G7 and G20 meetings. The decent work agenda however has difficulty in providing concrete answers to the social questions arising from digitisation and the protection of the proletarians of today, ie precarious workers and small independent entrepreneurs. It has not proposed satisfactory solutions either to the transnationalisation of labour relationships or to the considerable weight of the multinational companies and supply chains on social issues. It has reduced the place of international labour standards and of the mechanisms used to implement them. More generally, it offers no response to the breakdown of the social balance that has led to



5 A

6 H

Margalit, The Decent Society (Cambridge MA, Harvard University Press, 1998). Lagrange, ‘La société décente ou la politique au temps des catastrophes’ (2016) 430 Esprit 100.

The Contemporary Quest for Social Justice  161 new forms of protest and violence in industrialised countries and to an increase in power of a right-wing or left-wing populism that feeds on frustrations and words not followed by effects.

III.  And Now? Let’s avoid throwing the baby out with the bath water, however. The recognised shortcomings must not hide the fact that international labour standards retain, in all countries, a significant influence on academic discussions, policy-making and law reform. Beyond its supervisory procedures, the ILO goes on using the other means already mentioned for the implementation of its standards, ie technical cooperation, mediation and soft law. To retain a significant say on labour issues, the Organization nevertheless should move forward on the two issues that seriously destabilise industrial relations, ie precarisation and transnationalisation. A fundamental social question facing industrial societies and developing countries today, as manifested by the COVID-19 crisis, concerns the impoverishment of all those wageearners and the self-employed who are swept up, because of their forced inactivity, their inadequate remuneration or precarious work, in a current that is carrying or keeping them away from established structures. The exceptions and flexibility clauses frequently included in ILO Conventions exempt or permit exemption from their scope of application all or some of the persons, whether wage-earners or not, in sectors of activity in which precarity is the rule. The reasons put forward relate to the need for flexibility and for reducing the enterprise’s social protection costs. Paradoxically, the persons concerned are generally the most in need of social guarantees. It would be useful to clarify those issues in an ILO Convention that would deal especially with new forms of work such as remote work. The instrument should cover both self-employed and wage-earners and propose, inter alia, new ways of information for workers and of social dialogue. Provisions should consider the misuses of Artificial Intelligence (AI) when it blurs the nature of the relationship between the firm and the worker and when it controls the activities of the latter without due regard to his/her privacy and the protection of personal data. Precarisation has been abundantly dealt with in recent research. Yet few authors have addressed the conflicts of law raised by the transnationalisation of labour relations. The issues at stake concern domestic international law rules on competent jurisdiction and choice of applicable law. They include the legal effects of enterprise commitments based on codes of conduct and other social initiatives that may bind multinational companies.

A.  Codes of Conduct and Other Social Initiatives Major supranational firms may undertake to respect minimum labour standards in collective agreements they sign with trade unions federations or NGOs or in contracts of a private nature they conclude with their customers or with suppliers, subcontractors, licensees and other business partners. More often they integrate their commitment unilaterally within

162  Jean-Michel Servais codes of conduct or other social initiatives that apply to the company’s own operations at various levels (establishment, firm or group). The framework agreements concluded between transnational companies and international trade union federations normally establish follow-up mechanisms in which managers and workers’ delegates meet to oversee their application. Corporate codes of conduct too include generally internal and/or external procedures of supervision. However, the establishment of an efficient monitoring system raises complex issues with regard to the competence and the independence of the inspectors coming from private institutions, often selected and paid by the corporations themselves, and to the duration and the focus of the audits. Beyond those mechanisms, the legal obligations of multinational companies are analysed according to the law made applicable in accordance with domestic or European private international law or equivalent provisions on social security. The rules identified may recognise the binding force of unilateral undertakings either directly (as in legislation deriving from the Napoleonic civil code), or through implicit clauses in the employment contract or in company work rules. Elsewhere false public statements may be considered as an unfair practice leading to civil liability. Everywhere however, the legal value of such texts remains difficult to prove.

B.  Applicable Law Three hypotheses of increasing complexity can be distinguished. A dispute that arises within a country (such as a strike by transport workers), but affects citizens of other countries (by disrupting the supply of goods) can normally not be said to be transnational, from a labour law point of view. When, on the contrary, a grievance includes a foreign element, such as the nationality of one of the parties, but the activities of those involved are carried out in a single country, the domestic law specifies the applicable rules and regulations and the competent jurisdiction. The situation becomes more complex when the activities to which the dispute relates are carried out in more than one country. Furthermore, collective conflicts appear more difficult to solve than individual ones. Of some use may also be the distinction between conflicts of rights (ie about existing provisions) and conflicts of interests (aiming to modify terms and conditions of employment) referred to in the ILO Examination of Grievances Recommendation, 1967 (No 130). The distinction corresponds mainly to a conception of the judicial system that restricts the jurisdiction of the courts to applying the law. Many countries have nevertheless introduced it with the help of the ILO because it is easy to handle. In the case of a conflict of rights, the provisions of an international treaty or of European law apply, where appropriate. This is the case of the ILO Maintenance of Social Security Rights Convention, 1982 (No 157), which as a rule refers to the normal place of work as the touchstone (Article 5). In contrast, the Hague Principles of Choice of Law in International Commercial Contracts excludes contracts of employment. In the same manner, applying European Directive 2008/52 of 21 May 2008 on certain aspects of mediation in civil and commercial matters to labour disputes seems inadequate. Its preamble states in para 10 that the directive does not apply ‘to rights and obligations on which the parties are not free to decide themselves under the relevant applicable law. Such rights and obligations are particularly frequent in […] employment law’.

The Contemporary Quest for Social Justice  163 European Regulation 593/2008 of 17 June 2008, known as ‘Rome I’, determines which law is applicable to contractual obligations, including employment contracts. Leaving its abstruse wording to one side, Article 8 states that, in most cases, employment contracts shall be governed by the law of the country in which the employee habitually carries out his or her work. It leaves room, however, for the application of more than one national legislation in the same case. The provision only applies to individual employment contracts. Collective agreements come under the general provisions of the instrument, which cover all acts that give rise to contractual obligations. Article 3 states that the parties must have the freedom to choose the applicable law. In the absence of any such choice, Article 4 requires that the applicable law be that of the country in which ‘the party required to effect the characteristic performance of the contract has his habitual residence,’ that is to say, the place of central administration for companies, employers’ organisations or trade unions (Article 19). This solution also corresponds to parts of certain directives that cover other areas, such as worker information, consultation and participation. It is only suitable for company or group-wide agreements. With regard to agreements reached between employers’ and workers’ organisations from more than one country or at European level, no overall solution has clearly emerged. The same is true when it comes to applying national collective agreements to international employment relationships,7 It is by no means easy to determine, as Article 4 stipulates, the law of the country with which the contract is most closely connected. The implementation of other European instruments is still proving complex. Take, for example, Regulation 883/2004 of 29 April 2004 and 987 2009 of 16 September 2009 on the coordination of social security systems in case of partial transnational remote work. One could also cite Regulation 1215/2012 of 12 December 2012 regarding jurisdiction and the recognition and enforcement of judgments in civil and commercial matters or Regulation 662/2009 of 13 July 2009 establishing a procedure for the negotiation and conclusion of agreements between Member States and third countries on particular matters concerning the law applicable to contractual and non-contractual obligations. The brief mention of European standards that can be applied to conflicts of rights clearly shows that the solution may be problematic, as when the rules lead to several possibly applicable laws. Moreover, it does not always move in the direction of reconciliation. There are no similar provisions for conflicts of interest as for collective employment relations that do not result in a collective agreement. Those disputes are not entirely exempt from regulation; legal standards often impose restrictions upon the form that the dispute can take. Standards set out in national provisions governing private international law and European regulations can nonetheless result in the application of several national laws that are incompatible with one another. Indeed, industrial relations vary significantly from one country to another, even between those with shared borders. Such differences relate not only to the applicable legal rules, but also to how the system is considered and how those involved view their mission. The rules may relate to strike action (a simple freedom or an individual or collective right) or to collective bargaining and agreements (provisions that

7 On this second point, see F Jault-Seseke, ‘La détermination des accords collectifs applicables aux relations de travail international’ in Collectif, Le droit international privé: esprit et méthodes. Mélanges en l’honneur de Paul Lagarde (Paris, Dalloz, 2005) 455–73.

164  Jean-Michel Servais apply to all those who work for a particular company or indeed to the entire profession in many countries, but are simply a solemn agreement in, for instance, the United Kingdom). The rules also regard the recognition of trade unions, which is generally granted in continental Europe provided that the trade unions meet certain representativeness criteria, but which may be the result of a bitter struggle in the United States. It will therefore come as no surprise that transnational collective disputes too give rise to highly complex problems. On this matter, the application of European Regulation 864/2007 of 11 July 2007, known as ‘Rome II’, concerning the law applicable to non-contractual obligations, is not without its own difficulties. According to Article 9, the liability of an employer, worker or professional body for damages caused by a strike or lockout is governed by the law of the country where the action is being (or has been) taken. The provision could lead to the application of a law that is deemed prejudicial to freedom of association within the meaning of the ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87), as the ‘omnipresent’ threat of a claim for damages that could bankrupt a trade union – something that had become ‘possible in the light of the Viking and Laval judgments’8 – is creating a situation in which it could become impossible to exercise the rights enshrined in this international convention.9 Circumstances exist, however, where the rules admit modifications and application of a law immunising unions from such responsibility. If the party claimed to be liable and the party sustaining damage both have their habitual residence in the same country at the time when the damage occurs, then the law of that country shall apply according to Article 4, para 2 of Rome I. Furthermore Article 9 is without prejudice to the conditions relating to the exercise of such action in accordance with national law or to the legal status of trade unions provided for in such law (para 28 of the preamble). The traditional principles of private international law effectively moderate the rule: the regulation shall not undermine the provisions of the law of the place of jurisdiction that must govern the situation (Article 16), while Article 26 preserves the public order of the place of jurisdiction.10 In the specific case of posted workers, Directive 96/71 of 16 December 1996 aims to specify whether the law of the country of origin or that of the place where the work is carried out is applied. Its provisions, together with the European Court of Justice’s rulings in the Laval, Rüffert and Commission vs Luxembourg11 cases that interpret them, are the subject of widespread controversy. They relate specifically to the right to strike and to bargain collectively and how this can be reconciled with the freedom of establishment and the free movement of services. Since the Treaty of Lisbon has entered into force however, the right to take collective action has acquired, together with the European Union’s (EU)

8 ITF and FSU v Viking Line ABP, 11 December 2007, Case C-438/05; Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, 18 December 2007, Case C-341/05. 9 See the Report of the Committee of Experts on the Application of Conventions and Recommendations, International Labour Conference, 99th Session, Report II (4A) (Geneva, International Labour Office, 2010) 212 (case involving the United Kingdom). 10 See also Art 17. On the difficulties of interpreting this article, see also F Dorssemont and A van Hoeck, ‘Collective Action in Labour Conflicts under the Rome II Regulation’ European Labour Law Journal, (2011) 2(1), 48–75 and (2011) 2(2), 101–18. 11 Rüffert v Land Niedersachsen, 3 April 2008, Case C-346/06; Commission v Luxembourg, 19 June 2008, C-319/06.

The Contemporary Quest for Social Justice  165 entire Charter of Fundamental Rights,12 a value equivalent to that of the treaties. Although the Court has later confirmed its case-law,13 it is questionable whether this change in legal status has not shifted the balance between economic freedoms and this fundamental industrial right in favour of the latter. The amendments to this Directive, eg that of No 2018/957 of 28 June 2018, constitute further argument in that sense.

IV.  An Opportunity for the ILO? The difficulties just described should stimulate the ILO to strengthen its means of action. It would certainly be appropriate for the Organization to elaborate a global international instrument dealing with the applicable labour or social security law, the competent jurisdiction and the procedure to enforce court decisions in transnational labour conflicts.14 Nevertheless, its adoption would not solve all difficulties and lead to peaceful settlement in all cases, especially of collective conflicts. The ILO should therefore draw on its past experience to systematise and improve its practices of offering good offices in the implementation of its standards. The Tripartite Declaration concerning Multinational Enterprises and Social Policy, adopted by the ILO Governing Body, 1977, and later amended, could be of some help. It fosters the designation by governments, employers and workers of national focal points on a tripartite basis to promote the application of the principles it contains. The procedure echoes the national contact points established for the implementation of the OECD Guidelines for Multinationals; their competence includes a role of mediation and conciliation to solve practical problems that may arise. Unfortunately, the ILO Declaration, in contrast to the OECD guidelines, does not provide for the direct involvement of transnational companies or NGOs in a focal points mechanism. More pragmatically, the ILO has already, when requested and authorised, served as mediator in transnational labour conflicts: the quality and neutrality of its officials, with their first-hand knowledge of development problems in less industrialised countries, make the Organization an ideal third party. Its concrete involvement would contribute to solving the labour problems referred to above. Made more formal, arrangements could be inspired by the European Labour Authority15 that encourages cooperation between States on compliance with European law in its field of competence, organising coordinated and common inspections, ensuring mediation and facilitating the search for a solution in the event of cross-border disputes. Mention could also be made of the mission carried out by the ILO to observe the process of the legitimisation of the Collective Bargaining Agreement at the General Motors plant

12 The right to take collective action is covered in Art 28. 13 See Fonnship A/S v Svenska Transportarbetareförbundet et al, Case C-83/13, 8 July 2014 (para 41). 14 See also U Liukkunen, ‘Decent Work and Economic Growth’ in R Michaels, V Ruiz Abou-Nigm and H van Loon (eds), The Private Side of Transforming our World – UN Sustainable Development Goals 2030 (Mortsel, Belgium, Intersentia, 2021) 245–81. 15 European Regulation No 2019/1149 of 20 June 2019.

166  Jean-Michel Servais located in Silao, Guanajuato, under the framework of the Mexican Government’s compliance with commitments under the United States-Mexico-Canada Agreement on trade.16 In the same manner, one can learn from the experience of the ILO Better Work programmes, which bring together the Government, national firms, brands and retailers, trade unions and workers in the garment industry to improve working conditions and respect for labour rights. Enterprise assessments are conducted annually. The programme does not assess whether national law conforms to ILO Conventions, which is the responsibility of the ILO supervisory bodies. If, however, the national law is not in line with core international labour standards, participating enterprises are assessed as to their compliance with those international labour standards. In the Cambodia Better Work programme, for example, the ILO is responsible for setting up a monitoring system and conducting visits to the companies concerned. The project, jointly initiated by the ILO and the United States, aims at improving the situation of the workers in the textile enterprises of the country. It leads to a voluntary and consensual detailed evaluation of cases. Registration in the programme is a condition to obtain an export licence.17 In brief, these examples suggest new ways to adjust and strengthen ILO action. The objective is to give some answers to the problem raised at the beginning of this contribution, namely whether the Organization is able, and if so how, to build on common legal grounds that bring greater social justice. The goal can be achieved only if all actors involved are held accountable in order not only to guarantee an equal right to fundamental freedoms, but also, as stressed by John Rawls,18 to maintain economic inequalities within limits that allow the disadvantaged to benefit from means that enable them to achieve real equality of opportunity.

16 See www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_817138/lang--fr/index.htm. This agreement is examined in LeClercq, Chapter 18 in this volume. 17 See www.betterwork.org/where-we-work/Cambodia; R Sok, Les droits fondamentaux collectifs des travailleurs à l’épreuve des engagements de responsabilité sociale des entreprises multinationales au Cambodge (Lyon, Université Lumière de Lyon II, thesis, 2022) 172–212. 18 J Rawls, A Theory of Justice (rev edn, Cambridge MA, Harvard University Press, 1999).

15 The Impact of the Standards Review Mechanism on the Future of ILS: Not Even Diamonds are Forever CLAIRE LA HOVARY1

I. Introduction Chatting over lunch about the topic of this chapter, Francis Maupain reminisced about a conversation he had with a colleague who had exclaimed, when Francis touched upon the possibility of introducing an amendment to the Constitution of the International Labour Organization (ILO) to allow for abrogation of ILO Conventions: ‘diamonds are forever’! As this chapter explores, this has never been quite the case, and is certainly no longer so following entry into force of the amendment, some 20 years after Maupain’s successful influence as Legal Adviser of the ILO in suggesting it to the ILO Governing Body (GB). Outdated international labour standards (ILS) have been quietly put aside for quite some time, a few have been withdrawn, and since 2017 ratified conventions have officially been abrogated,2 thereby ending their legal effects. There is, of course, always an opportunity to adopt new and better-suited standards. However, this is very much contingent on the outcome of tripartite interaction and the existence of a common vision as to how best to pursue the objectives set out in the Constitution. Since 2016, both recommendations to abrogate ILS and to modernise the body of ILS have been made mainly through the work of the Standard Review Mechanism Tripartite Working Groups (SRMTWG, or SRM). There have been few or no studies of such ILS review mechanisms. Yet, these mechanisms have quite an impact on the body of ILS – even more so now because of the possibility to abrogate conventions.3 The object of this contribution is therefore to examine (1) why the ILO has had ILS review processes, (2) what the outcome of the SRM TWG has so far been, and (3) the rationale for abrogating conventions, arguably its most visible result. While the

1 The views expressed herein are the author’s and do not necessarily represent those of the ILO. 2 Four obsolete conventions were abrogated at the 2017 ILC. 3 Interestingly, the termination of treaties in public international law has not attracted many writers despite being ‘an immensely practical topic’ (A Aust, in A Peters and R Wolfrum (eds), Treaties – Termination Max Planck Encyclopedia of Public International Law (Oxford University Press 2008–). Available at: www.mpepil.com (accessed 2 March 2022).

168  Claire La Hovary meetings of the SRM TWG have enormous potential and have already provided positive outcomes – in terms of classification of standards, identifying legislative gaps and recommending specific actions in relation to standards – some challenges nevertheless remain.

II.  The Need to Streamline the Body of ILS The GB established the SRM to ensure that the ILO has a ‘robust body of [ILS]’.4 There is nothing novel in the rationale behind the SRM and it is not the first exercise of its kind in the ILO. Indeed, almost all ILS need to adapt to the changing realities of the world of work – even fundamental conventions – and some ILS have proved less resistant to time than others. The need to adapt and revise ILS was present from very early on – in 1929, the International Labour Conference (ILC) was already faced with the possibility of revising conventions adopted ten years earlier, as was specified in their texts5 – and the process of adaptation of ILS has been ongoing ever since. For example, more recent instruments have replaced older ones – the latest autonomous recommendation, Recommendation No 205 on employment and decent work for peace and resilience, adopted in 2017, superseded Recommendation No 71 on employment (transition from war to peace),6 by modernising it and expanding it to new areas. Some conventions consolidate and revise previous ILS – Convention No 138 on Minimum Age, adopted in 1973, revised earlier standards adopted on minimum age7 and the Maritime Labour Convention (MLC), adopted in 2006, consolidated and splendidly revamped multiple maritime ILS. Some conventions have been complemented by new instruments – since 2014, Convention No 29 on forced labour has had a protocol – a device which has been resorted to six times since 1982. Moreover, new issues have given rise to new ILS – eg Convention No 190 on harassment at work, adopted in 2019. However, because of this particular practice of revising and amending ILS and the concomitant impossibility to proceed to abrogations, the result has been unfortunately extremely confusing in terms of the sheer number of instruments and the uneven level of ratifications of instruments on the same themes (often the older having many more ratifications than the newest). As a result of the cohabitation of various ILS, C Wilfred Jenks – former Legal Adviser and then Director-General of the ILO – had remarked quite early on that the body of ILS was ‘a mass of inarticulate instruments, a number of which had been revised or duplicate each other’.8 In part to respond to this state of affairs, the GB has regularly put in place review procedures and discussed improvements in the standards-related activities of the ILO. There have been previous tripartite exercises to improve both the relevance and impact of ILS, in

4 See GB.310/LILS/3/1(Rev) (March 2011), para 2. 5 Conventions Nos 1 to 6, adopted in 1919, contain the following provision: ‘At such times as it may consider necessary the Governing Body (…) shall examine the desirability of placing on the agenda of the Conference the question of its revision in whole or in part.’ 6 R205, para 49. 7 C138, Art 10. 8 Remark cited in F Maupain, ‘The ILO’s Standard-Setting Action: International Legislation or Treaty Law?’ in V Gowlland-Debbas (ed), Multilateral Treaty-Making (Leiden, Martinus Nijoff Publishers 2000) 132.

The Impact of the Standards Review Mechanism on the Future of ILS  169 the 1970s,9 in the 1980s10 and one established in 1995. The latter is known as the ‘Cartier Working Party’ (Cartier WP)11 and it proceeded to examine, one after the other, 183 conventions and 191 recommendations (all of the ILS adopted before 1985, with the exception of fundamental and governance conventions). It wound up its work in March 2002. Since the work of the present SRM TWG builds on the recommendations of the Cartier WP concerning classification, it is relevant to look at the latter’s outcome – which was certainly not all that helpful. Indeed, ILS were divided into no less than six categories: ILS that should be revised; ILS that should be promoted; ILS that should be considered outdated; ILS with regard to which more information was requested; ‘other’ ILS (ie while not considered fully up-to-date, they remain nonetheless relevant); and ‘no conclusion reached’ (as for ILS on termination of employment). Not long after the Cartier WP completed its work, discussions in the GB concerned the matters of developing, keeping up to date and promoting standards. The 2008 Social Justice Declaration reaffirmed the central role of ILS and called for promoting ‘ILO’s standard setting policy as a cornerstone of ILO activities by enhancing its relevance to the world of work and ensure the role of ILS as a useful means of achieving the constitutional objectives of the ILO’ – thereby setting the scene for another review of standards. In November 2011, the GB agreed to establish the SRM; however, the tripartite group in charge of the SRM (SRM TWG) was established only in March 2015 – mainly because of the inconclusive attempts to resolve the ILO’s institutional crisis revolving around the right to strike.12 Not surprisingly, the terms of reference of the SRM TWG, adopted in November 2015, were the object of very careful discussions amongst the tripartite constituents (governments, employers and workers), given the far-reaching outcomes of the exercise for the shape of the body of ILS. Moreover, because the exercise is tripartite, it is not solely legal but political. The aim of the current SRM TWG is the same as that of the SRM, that is to ‘ensure that the ILO has a clear, robust and up-to-date body of [ILS]that respond to the changing patterns of the world of work, for the purpose of the protection of workers and taking into account the needs of sustainable enterprises’.13 9 Known as the first ‘Ventejol’ Working Party on ILS (1977–1979), following which the GB adopted a classification of ILS, including those that needed to be revised. 10 Known as the second ‘Ventejol’ Working Party on ILS (1984–1987), it established a revised classification of ILS, labelling them as ‘to be promoted on a priority basis’, ‘other instruments’, ‘obsolete instruments’ (suggesting that they should no longer be included in the collection of conventions and recommendations, in the list of ratifications or in other ILO publications), and it drew up a list of 25 ‘instruments to be revised’. 11 Officially ‘The Working Party on Policy regarding the Revision of Standards’. 12 GB.325/LILS/3 (October–November 2015). Setting-up of the SRM TWG was lengthy compared to the Cartier WP, which was set up one year after discussions took place at the ILC. The establishment of the SRM TWG was used in the negotiations between social partners in the context of the right to strike crisis that started in 2012. This crisis had created a deadlock in the functioning of the ILC Committee on the Application of Standards. The employers were in favour of an SRM TWG, but the workers stalled its establishment in order to help break this deadlock. These two social partners adopted a joint statement in February 2015: within the package that was adopted was an ‘agreement on the principles to guide the regular SRM and its subsequent establishment’. In the meantime, the establishment of the SRM was included in 2013 by the Director General in the ‘standards initiative’ which is part of the ILO seven ‘centenary initiatives’ (GB.312/LILS/5 (November 2011)). The standards initiative has two components: (1) to consolidate a tripartite consensus on an authoritative supervisory system, and (2) to enhance the relevance of international labour standards through a standards-review mechanism. 13 GB.325/LILS/3 (October 2015) para 8. There was no such reference to ‘sustainable enterprises’ at the time of the Cartier WP. The term ‘sustainable enterprises’ is more often than not ‘delinked’ from its original (and somewhat nebulous) meaning as defined during the 2007 ILC. It is now penetrating every single discussion in the ILO. However, it is not part of the constitutional landscape of the ILO and even though the term appears in some ILS, these need to be interpreted in light of the constitutional aims of the Organisation.

170  Claire La Hovary

III.  What Has the SRM TWG Accomplished So Far? The SRM TWG reviews ILS to make recommendations to the GB on: (1) the status of standards examined; (2) the identification of gaps in coverage, including those requiring new standards; and (3) practical and time-bound follow up actions. All three processes are linked. The programme of work concerns 235 ILS – all ILS adopted between 1985 and 2000, those classified by the Cartier WP as having an interim status, in need of revision, about which further information was to be requested, and the instruments identified as outdated and which have not been fully acted upon. In other words, the current exercise excludes ILS adopted after 2000, ILS that should be promoted according to the Cartier WP, and fundamental and governance conventions. 68 maritime instruments were assigned to the Special Tripartite Committee (STC) established under the MLC, where decisions have been smoother than in the SRM TWG as the social partners in the STC MLC have a very special connection.14 The SRM TWG, in contrast to previous revision exercises, examines ILS in thematic sets. It first proceeded, in October 2016, to address all the unfinished follow-up to the standards identified as outdated by the Cartier WP. It recommended that out of these 63 ILS, nine instruments be abrogated or withdrawn by the ILC; that the Secretariat (the International Labour Office) should take immediate steps with regard to the legal replacement of 14 Recommendations (ie recommendations that have been officially replaced by a revising instrument); that the Office should start ‘strategic follow-up within 12 months’ with regard to 30 Conventions; and that the SRM TWG itself should follow up those Conventions and an additional ten Recommendations at its later meetings. Regarding the status of standards, the SRM TWG decided at its 2017 meeting to classify ILS in only three categories: ‘up to date’, ‘requiring further action to ensure continued and future relevance’ and ‘outdated’. From its third to seventh meetings (the latter in September 2022), the SRM TWG classified 24 ILS as up to date, 11 as ‘requiring further action to ensure continued and future relevance’ and six as being outdated.15 The outcome on identifying gaps for standard setting has so far been mixed. First, very few have in fact been identified – gaps have so far been recognised in five areas: apprenticeships, biological hazards, chemical substances, guarding of machinery, ergonomics and manual handling. A gap was also noted regarding shift work; it was, however, decided to postpone discussion until the examination of ILS on working time at a later date. Second, the GB is slow to put a topic identified by the SRM TWG onto the agenda of the ILC in order to move towards adopting ILS. Indeed, the regulatory gap in relation to apprenticeships was identified in September 2016 while those regarding OSH topics were identified in September 2017; the recommendations of the SRM TWG were swiftly approved by the GB a month later. Placing a topic on the ILC agenda for standard-setting is never smooth, even when recommended by a tripartite body. The topic of apprenticeships was placed on the agenda of the 2021–2022 ILC in 2018;16 this delay was due to the resistance of some



14 As

is often said, shipowners and seafarers are ‘in the same boat’. (March 2022), Annex 1 and GB.346/LILS/1 (November 2022). 16 It was then moved to 2022–2023 because of the COVID-19 pandemic. 15 GB.344/LILS/3

The Impact of the Standards Review Mechanism on the Future of ILS  171 constituents (including Employers). The topic of biological hazards was placed on the agenda of the 2024–2025 ILC only in March 2021.17 Placing of other topics is still being discussed. Of course, there is also a wish to innovate in terms of the form of ILS and an MLC-type instrument is attractive with regard to OSH instruments. However, this is not straightforward, for the reason alluded to above.18 Given the time it takes to place an item on the agenda of the ILC, and the fact that the ILO no longer examines more than one standard-setting topic per year, adopting new ILS will take quite some time. Third, gaps so far have been interpreted stricto sensu, without the ambition needed to have ILS respond to the changing patterns of the world of work (apprenticeships did not extend to other forms of work-based learning at the 2022 ILC). In contrast to the above, abrogations are proceeding smoothly: the recommendations of the SRM TWG to abrogate/withdraw six conventions and three recommendations, for example, was approved in 2016 and executed at the 2018 ILC (at the earliest time possible). Clearly, the assignment to identify gaps does not mean that all possible new topics for standards will have to be identified within the SRM TWG. The GB, ILC and other platforms will continue to have a key role. However, one has to wonder when these topics, if they are ever approved by the GB, will find a place on the ILC agenda.19 Regarding the third output of the SRM TWG (possible follow up action), this encompasses promoting ratifications of ILS, including campaigns, assessing reasons for non-ratification of the most up-to-date instrument on a topic, promoting denunciation of the outdated instrument, proceeding with abrogation or withdrawal, and preparing the required documents for standard-setting once a topic has been placed on the ILC agenda. The SRM TWG has also recommended improving awareness of certain tools (eg, codes of practice), the publication of technical guidelines, targeted technical assistance as well as specific studies, including a background paper on implications of gendered language in social security instruments.20 A significant amount of work has been accomplished so far, a lot is yet to be done, and much of this work does not yield immediate results (ratifications take time). One of the most visible results of the SRM TWG has therefore, without doubt, been the abrogation and withdrawal of ILS, a process which now features at each ILC. In three ILCs, 18 Conventions were abrogated, and 11 conventions and 14 recommendations withdrawn. This process is channelled almost exclusively through the SRM TWG.

IV.  A Few Words on Abrogations Surprisingly, the procedure for abrogation has been available only since October 2015, following the entry into force of the 1997 amendment to the Constitution.21 For almost 100 years, obsolete conventions co-habited with up-to-date conventions and were considered

17 GB.341/INS/3/1(Rev2)/Decision (March 2021). 18 In addition, the MLC attracted considerable support before the formal negotiating process started. The process still spanned five years. 19 It can take many GB sessions, over many years, for an item to be placed on the ILC agenda. 20 GB.344/LILS/3 (March 2022). 21 ILO, Record of Proceedings, ILC 1997, No 1, 248–250 and No 10, 304.

172  Claire La Hovary ‘dormant’22 or ‘shelved’.23 Abrogating a convention has, of course, more far-reaching consequences than simply declaring it dormant or shelved, however: it erases it from international law. Denunciations – the term used in the ILO – which are provided in conventions – are unilateral acts that only terminate the effect of a convention vis-à-vis a ratifying state.24 The failure of the Constitution to provide for abrogation is surprising in a context where the possibility to amend the ILS was not provided for originally in the Constitution. This oversight had some advantages, however, as the Office explained.25 Indeed, as long as a convention is not abrogated, ratifying states remain bound by it unless they denounce it. Thus, even when they do not ratify a revising convention, they remain bound by the initial convention, which might still provide some relevant protection to workers. However, not being able to abrogate conventions also has drawbacks: it was not clear what exactly was meant by a convention being ‘dormant’ or ‘shelved’ – the terminology was obscure even for insiders. References to conventions that had been shelved was still made in the literature26 and these continued to be in force even when they no longer reflected contemporary practices and conceptions. Moreover, outdated (or even denounced) conventions that have not been abrogated could, theoretically, still be ratified (and ‘be revived’27). The question of the legal mechanism to revise a convention – an issue that is intrinsically linked to that of abrogation (as there is mostly a need to abrogate ILS that are revised) was examined as early as 1921.28 Amongst others, it was analysed by the then Legal Adviser, Jean Morellet, and explored by the GB and the ILC in the late 1920s. At the time, the question was framed within the debate as to whether conventions were considered ‘international legislation’ or ‘treaty law’.29 Morellet was of the opinion that they fitted squarely in the second category.30 As such, an existing convention could only be revised by a new convention, and the question that needed to be answered was ‘what [was] the legal effect produced by the new Convention on the old Convention which it revises’,31 in particular, whether abrogation followed. He concluded that the two conventions must exist side by side, from a ‘strictly legal point of view’.32 In Morellet’s opinion, the Constitution did not ‘empower the Conference to adopt Conventions which are binding on all States, and a fortiori it is not empowered to

22 This meant that reports under Art 22 of the Constitution were no longer requested (this term was used in 1985 regarding 20 conventions that had ‘lost their relevance’ (GB.229/1O/19 (Feb–March 1985)). 23 ‘Shelved’ is a more recent term that appeared in 1996 but has the same signification as ‘dormant’ – detailed reports on the application of the conventions in question are no longer requested and the text of conventions will not be published in ILO documents. 24 When multilateral treaties are concerned, public international law usually refers to ‘withdrawal’ rather than ‘denunciation’ which is used for bilateral treaties. 25 GB.265/LILS/WP/PRS/2 (March 1996). 26 This was the case when the status of ILS was not visible on the ILO website. 27 GB.265/LILS/WP/PRS/2 (March 1996), para 11 – the expression was used by Morellet. 28 N Valticos, Droit international du travail (Paris, Dalloz, 1983) 90. 29 On the one hand, the ILC is viewed as a legislative assembly, with conventions seen as legislative acts to which states accede through ratification; on the other hand, conventions are ‘contracts’ between states and remain their property. 30 ILO, Note by the Legal Adviser of the International Labour Office on the Legal Problems Connected with the Revision of International Labour Conventions, Annex 1 (ILO, Geneva, 1929) 734. 31 ibid 733. 32 ibid.

The Impact of the Standards Review Mechanism on the Future of ILS  173 repeal Conventions which it has drawn up but which the States Members have put into force by ratifying them’.33 This theory, contested at the time,34 is not completely in line with, inter alia, the fact that the Organisation has a role in all this.35 It is because of this theory that the ILC was not empowered to abrogate conventions without an explicit amendment of the Constitution, as now exists. The ‘solution’ that was adopted from 1929 onwards was to add in the final clauses of conventions a provision that spelled out the relationship with the older conventions. This could entail having the ratification of the new convention automatically involving denunciation of the older one (or not), and that the older conventions were closed (or not) to further ratifications.36 As explained above, this did not eliminate a convention from international law. As Maupain suggested as Legal Adviser in 1996, the simplest way of addressing these complications would be to ‘review and perhaps replace the “contractual” approach, which is the cause of this operation, by the “quasi-legislative” approach’. However, he conceded that this ‘would however be neither desirable nor realistic – particularly given that the GB’s role is not to decide between various legal theories’.37 He thus influenced the proposal for amendment to the Constitution allowing for abrogation of conventions to be placed before the GB. The GB decided unanimously to put the matter on the agenda of the ILC, where it was adopted in 1997 with huge support. Surprisingly, it took quite some time – 18 years – for the amendment to come into force.38 In March 2015, when only one ratification was missing, the Secretariat again urged member states to ratify the amendment, reiterating that the ‘maintenance [of a number of outdated conventions] is damaging to the clarity and legibility of the ILO’s body of standards’ and that it was ‘essential for the credibility of the Organization that it should have a body of up-to-date standards’.39 The new Article 19(9) of the Constitution reads: Acting on a proposal of the Governing Body, the Conference may, by a majority of two-thirds of the votes cast by the delegates present, abrogate any Convention adopted in accordance with the provisions of this article if it appears that the Convention has lost its purpose or that it no longer makes a useful contribution to attaining the objectives of the Organisation.

33 ibid. 34 For Georges Scelle, there was no doubt that ILO conventions are international legislation because they establish objective legal rules applicable to a State, they are adopted by the ILC (not by individual States) and individual ratification does not grant conventions a legal existence, as they already have it (G Scelle, L’Organisation internationale du travail et le BIT. (Paris, Librairie des Sciences Politiques et Sociales, 1930) 181–85). 35 See, eg, GB.265/LILS/WP/PRS/2 (March 1996), para 20. Morellet analysed the particularity of ILO conventions and fully acknowledged their hybrid nature; he dismissed the discussion surrounding this nature as purely doctrinal, however (‘Un Type Original de Traité: les conventions internationales du travail’ (1938) 1 Revue critique du droit international 20). 36 As Valticos explained, some latitude was granted because the new instrument might grant a higher or lower level of protection. Between 1932 and 1937, seven conventions were revised (three were softened and four were hardened by new conventions). Out of the first 158 conventions that were adopted, 40 revised previous ones – see Valticos, above n 28, 91–93. 37 ibid, para 17. The paper explains – rightfully – why it is not correct to conclude that conventions are purely treaty law. 38 Under Art 36 of the Constitution, an amendment takes effect once it has been ratified by two-thirds of ILO member states, including five of the ten ‘of chief industrial importance’. 39 GB.323/LILS/2 (March 2015), paras 13 and 15.

174  Claire La Hovary It also contains certain safeguards. The procedure for abrogation is similar to that for withdrawal of instruments and for adoption of new instruments (the GB places an item on the ILC agenda, the Office prepares a report and a questionnaire at least 18 months before the ILC discussion, Governments consult social partners and respond within 12 months, and the Secretariat then prepares a report which is examined by the ILC. All such ILC decisions need to have at least a twothirds majority). The ILC could also decide of course to withdraw conventions which had not entered into force because of insufficient ratifications or which are no longer in force as a result of denunciations, or recommendations. Indeed, in these cases, no legal obligations exist between two or more States. This has always been the case and the ILC did not need the 1997 amendment to take such action.40

V. Conclusion The work of the SRM TWG is essential for the ILO to fulfil its mandate. Its objective – to bring clarity to ILS – will only make their understanding and promotion easier. However, some challenges need to be surmounted in order for it to meet its full potential. The work of the SRM TWG is rightly presented by the Secretariat in a positive way – it ‘holds a pivotal role in the ILO’s institutional response to [ILS] policy’.41 It insists on the ‘members’ shared, and strong, sense of responsibility and commitment to its mandate and the objectives of the SRM’.42 The SRM TWG itself noted that there was ‘unanimity on the importance and value of [its] work’ and that individual members shared no less than ‘a personal commitment to attempt to reach consensus’.43 While this may very well be true,44 one has to wonder how widely this is shared since consensual recommendations of the SRM TWG are quite difficult to reach,45 and the GB has some difficulty – unless they concern abrogations – in putting them into action. Furthermore – and this is a broader issue – technical and financial resources are not necessarily available to translate the many recommendations into practice. Finally, it is disappointing that the SRM TWG has identified so few gaps in the body of standards when it is openly recognised that ILS, having been adopted since 1919, are not all standing the test of time and that there have been ‘transformative changes in the world of work’, coupled with the evidence that few ILS have been adopted in recent years.46

40 GB.270/LILS/1 (November 1997), para 2. 41 GB. 344/LILIS/3 (March 2022), para 13. 42 ibid. 43 ibid. 44 Proceedings of the SRM reveal some surprising statements that give insight to the discussions – eg, an employer’s contention that the Office could promote ratification only ‘upon request’ (GB.337/LILS/1, para 8). Promoting ILS is a role of the Office (Arts 1 and 10 of the Constitution). 45 In fact, no conclusions were reached regarding the status of the unemployment benefits instruments at the 2021 meeting of the SRM TWG (employers disagreed that a convention should be labelled as ‘up to date’ if it had too few ratifications). 46 Former Director-General Michel Hansenne expressed himself quite bluntly on new technologies: ‘[c]ontrary to what some advocates of deregulation undoubtedly believe, the objectives contained in the Preamble to the ILO Constitution cannot, by their very nature, ever be entirely fulfilled. (…) every time you approach a goal, another one is visible in the distance. As technology gathers speed, it creates new hazards – and only experience tells us that these hazards call for a new set of regulations. Man’s ability to think up new forms of exploitation is one step

The Impact of the Standards Review Mechanism on the Future of ILS  175 It is true that the SRM TWG was launched in a difficult context. As early as November 2011, before the collapse of trust between employers and workers spurred by the right to strike crisis, the views of the social partners on the guiding principles of the SRM were already somewhat opposed: […] the Workers’ group expressed a concern that a comprehensive review of existing [ILS] and any potential revision or consolidation of those standards could result in a reduction of protection for workers. The Employers’ group for its part wished to ensure that [ILS] more effectively safeguard the needs of sustainable enterprises and contain maximum flexibility to ensure that they can be applied to the full range of national economic and labour market conditions.47

These respective concerns remain today and reflect the difficulty of having meaningful tripartism in the absence of common goals, despite these goals being spelled out in the Constitution (social justice through the protection of workers – although these terms are not defined, a treaty needs after all to be interpreted and applied in good faith by the parties – as per international law). The fact that the social partners are not parties to the Constitution does not absolve them from this obligation. Of course, abrogation will give today’s body of standards a clearer profile – this was needed and is certainly welcome. However, concerns remain, such as when there is abrogation of conventions that have attracted more ratifications than the revising instrument (when there is nothing fundamentally wrong with the earlier convention), and when abrogation should be accompanied by suggestions of new topics and/or revised conventions. However, employers in particular are not keen to adopt new ILS in view of what they consider an ‘overproduction’ of standards.48 Abrogations need to be accompanied by ratifications, but it is impossible to force such action. Abrogations and the difficulty to agree on new areas for standard-setting are especially worrying in a context where interpretations of conventions are being criticised and limited, and in a context where ILS are under attack (see recent discussions at the ILC’s Committee on the Application of Standards). The SRM TWG has had positive outcomes: more attention is given to ratifications and these have increased. The standards follow-up action has the potential to bring out interesting insights from across the ILO. Further changes to the revision process, as Maupain suggested in 1996,49 would be extremely beneficial for future work. Some changes could increase the impact of the SRM TWG. A change from within the Organisation might bring further impetus to the work of the SRM TWG: the new directorship might bring the opportunity to re-centre constituents around the role of the ILO as

ahead of the legislator. Moreover, a glance at the agenda of recent sessions of the International Labour Conference is enough to realise that changes in the world of work linked to technology or other factors not only require normative action by the ILO but also provide the subject-matter for this standard setting’ ILO, Report of the Director General (ILO, Geneva, 1997). 47 GB.312/LILS/5, para 10. Governments, for their part, took varying positions and expressed the wish ‘to ensure that the ILO undertakes work that will be of full benefit to governments and their stakeholders’ (ibid). 48 See B Hepple, Labour Laws and Global Trade (Oxford, Hart 2005) 35 – this view is not new: see, eg, E Cordova, ‘Some Reflections on the Overproduction of International Labor Standards (1993) 14:1 Comparative Labour Law Journal 138–62. Employers are, however, not against adopting codes of practice or the like. During the Cartier WP, ‘both the Employer and the Worker members stressed that these two measures ratification/denunciation) together constituted a balanced action that should not be disrupted, and that they should be taken concurrently’ ILO, Working Party on Policy Regarding the Revision of Standards (Cartier Working Party) (ILO, Geneva, 2002). 49 GB.267/LILS/WP/PRS/2 (November 1996), Annex.

176  Claire La Hovary stated in its Constitution and give the Office increased scope to work within its parameters. Changes might come from outside the Organisation – for instance, in Free Trade Agreements, granting a more important role to the ILO might, at the same time, bring additional scrutiny to its functioning.50 A reconfiguration of the multilateral system is on its way, but it is unclear what its impact will be on the ILO. To return to the title of this chapter, ‘not even diamonds are forever’. As Maupain stated, conventions should not be regarded as ends in themselves, ‘but rather, like laws, as legal tools whose “raison d’être” is subordinated to the more general and fundamental objectives spelled out in the Constitution’.51 As stated by many, ‘the objectives contained in the Preamble to the ILO Constitution cannot, by their very nature, ever be entirely fulfilled’.52 It is hoped that an equilibrium will be found between abrogations and identifying gaps and new topics. The work of the SRM TWG is not finished and its full potential can still be realised.



50 See,

eg, LeClercq, Chapter 18 in this volume. above n 8, 135. 52 DG Report (1997), above n 46. 51 Maupain,

16 Is the ILO a Legitimate Global Institution? SUPRIYA ROUTH

I. Introduction The International Labour Organization (ILO) aims at promoting social justice by establishing global norms with a view to specifically addressing ‘injustice, hardship and privation’ of workers across the globe.1 Indeed, global institutions such as the ILO have an important role in promoting (domestic) social justice where workers are fairly treated. At the same time, they also run the risk of undermining their legitimacy if the universalisation of global norms is not sufficiently responsive to the radically heterogeneous demands of the diverse global workforce. The challenge for the ILO, then, is to be a catalyst of justice while responding to the demands of legitimacy. In this context, legitimacy is a dynamic concept: it has an historical lineage and a continuing import. This chapter argues that there are two components of global institutional legitimacy, first, at formation institutions should meet the requirements of justice as fairness, and second, they should continue to meet the demands of critical reflections of heterogeneous moral agents. The ILO’s formation coincided with a concluding phase of global trade that was dominated by industrialised colonial powers. From 1500 to 1900, the nature of global trade was characterised by the production of primary goods by colonies on the one hand, and manufacture and distribution of finished products by colonial powers on the other.2 The defining features of colonisation are the absence of political legitimacy and unfair treatment of colonised people. Unsurprisingly, therefore, the fundamental characteristic of global trade under colonial control was a complete disregard of the interests of colonised people and exclusion of their judgement from the conventions of the global trading regime. Colonisation-led global trade, thus, was an unfair trading regime. With the advent of the United Nations (UN), international relations were characterised by a somewhat formal equality among states, including the embrace of newly independent states. Yet the UN has been at the forefront of imposing neoliberal market norms and terms of global trade – drawn exclusively from the ideals of former industrial colonial powers – on newly independent states. In particular, the United Nations Constitutional Assistance

1 Preamble, ILO Constitution [Part XIII of the Treaty of Versailles, 1919]. 2 K Hofmeester and P de Zwart, ‘Introduction: Colonialism, Institutional Change, and Shifts in Global Labour Relations’ in K Hofmeester and P de Zwart (eds), Colonialism, Institutional Change, and Shifts in Global Labour Relations (Amsterdam, Amsterdam University Press, 2018) 11, 17–18. See also Blackett, Chapter 3 in this volume.

178  Supriya Routh (UNCA), which assists formerly colonised developing countries adopt constitutions based on Western liberal ideals, has actively promoted neoliberal markets with the involvement of International Monetary Fund (IMF) experts.3 Accordingly, global institutions (UN and IMF) consolidate the industrialised West’s preoccupations (e.g., expansion of global trade to newer markets) on formerly colonised states, even in postcolonial times. The ILO, as part of the Bretton Woods architecture since 1946, has traditionally imagined its normative initiatives with reference to the industrialised West’s ‘standard’ marketexchange model of the employment contract in creating universal norms on workers’ entitlements. That the standard model continues to shape the ILO worldview is evident from its conceptualisation of ‘informal’, ‘atypical’, and ‘non-standard’ – exceptional – in rationalising the majority of the global workforce who do not fit the standard model. In contrast, globally the history of working arrangements has been much more diversified and complex than that captured by the idea of the standard employment contract. Even in case of commodified labour, there has been a wide divergence in the manner labour exchanges were – and still are – organised, including self-employment, free (unattached, on-demand, casual) wage earning, indentured labouring, sharecropping, cooperative subcontracting, unfree work for proprietor, piece/time-rate earning and so forth.4 The imagination of the standard employment contract and bipartite employment relationship as representative of labour relations is a colonial export to the rest of the globe, particularly the erstwhile colonised Global South (broadly speaking). Frequently however, local institutions could not be completely substituted by the colonial institutions of property rights, formal employment contracts, and civil society-based participatory deliberations. Local (Indigenous) institutions and relationships – based on the norms of kinship, ethnicity, religion, caste, and other social relations – continued to exist alongside the exported colonial institutions. For example, family labour coexisted with waged work in India; share workers, convict workers, contract workers, and workers without contracts all worked together in mines of South Africa; slaves, labour gangs, indentured labour, debt contract, tenants and sharecroppers, unfree labour, smallholder farmers, wage workers, and cooperatives together produced sugar in various colonies.5 Ignoring this diversity and structuring the ILO around the ideal of market-based contractual relationship, which has a sui generis European lineage, the Organization should have to explain the ways it has addressed the concerns of these excluded categories of workers, for its continued postcolonial (global) legitimacy. This chapter evaluates the legitimacy of the ILO as a social justice-promoting global institution on the basis of the conceptual tools drawn from (liberal) theories of social justice, which allow for an important role for markets and trade in promoting justice. In doing so, the tools of social justice are nuanced by drawing on insights from the postcolonial perspective. The postcolonial perspective of taking ‘heterogeneity’ seriously6 means 3 V Sripati, Constitution-Making under UN Auspices (New Delhi, Oxford University Press, 2020) 4–14. 4 Hofmeester et al, above n 2, 12. One commentator seems to think that the expression ‘employment contract’ is inherently obscure and notes that ‘words’ in the ILO instruments are not sufficient to know what the ILO means by this term. See V De Stefano, ‘Not as Simple as it Seems: The ILO and the Personal Scope of International Labour Standards’ (2021) 160:3 International Labour Review 387. See also Blackett and McHugh-Russell, Chapters 3 and 30 in this volume. 5 See chapters in Hofmeester and de Zwart (eds), above n 2. 6 Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference (Princeton, Princeton University Press, 2000) 42–46.

Is the ILO a Legitimate Global Institution?  179 that it should inform both the conceptual constituents of social justice (eg, emphasising diversity–sensitive perspectives instead of availability of identical resources) and the decision-making process (eg, by centralising equitable participatory rights commensurate with the heterogeneity). The advantage of the postcolonial perspective is that instead of a clean-slate starting position and an ideal end-state, it emphasises the historical injustice of global economic exchanges and forces global justice theories to recognise (and possibly accommodate) the realities of such unjust positions. In this analytical perspective, meeting the ideal requirements of justice is insufficient unless it also accounts for the historical injustice suffered by formerly colonised peoples. While the postcolonial perspective does not deny the strength of universalist ideals and institutions, it does reassert the radical diversity of the global workforce in considerations of global justice. In Part 1, the chapter offers an overview of the idea of social justice and its global articulation. Drawing on conceptual accounts of social justice, Part 2 proposes an evaluative standard of legitimacy. On the basis of this evaluative standard, Part 3 argues that the ILO as an institution and instruments promulgated by the institution both fail to meet the requirements of legitimacy. Part 3 also evaluates two recent ILO instruments in order to assess their capacity to address the welfare of the ‘exceptional’ (i.e., non-standard) workforce. In conclusion, the chapter suggests that the ILO calibrate its activities so as to partially meet the standard of legitimacy.

II.  Global Social Justice: Meaning and Aim The idea of social justice is politically important because it offers an evaluative standard for examining the relationship among individuals, groups, and a range of state and non-state institutions. To be sure, different enunciations of the idea of justice offer different evaluative standards.7 At a general level, however, the idea of justice helps conceptualise how a society should be organised with a view to promoting well-being of its citizens and minimising social inequities without unduly burdening the society. Establishment of just institutions or basic structure of a society on the basis of the just rules of social engagement is, therefore, one of the fundamental aims of a theory of justice.8 What mediates between the abstract formula of justice and the establishment of institutions in a society is deliberative decision-making by autonomous citizens, who would (eventually) subject themselves to the institutions so established. Since modern societies are organised as constitutional nation states, democratic participation by equal autonomous citizens – civil society – in the realisation of social justice seems somewhat natural. Prominent theories of social justice have articulated the requirements of justice in this familiar context. In the constitutional state, identifying the (relational) basis of the requirements of justice – assigning rights and responsibilities – is uncomplicated. Citizens claim equal rights, equitable distribution of resources, and owe duties towards each other because their destiny is tied. 7 For example, see J Rawls, A Theory of Justice (Cambridge MA, Harvard University Press, 1971); A Sen, The Idea of Justice (Cambridge MA, Harvard University Press, 2009); R Dworkin, Justice for Hedgehogs (Cambridge MA, Harvard University Press, 2011); and M Nussbaum, Creating Capabilities: The Human Development Approach (Cambridge MA, Harvard University Press, 2011) for contemporary major versions of the idea. 8 Rawls, ibid.

180  Supriya Routh Thus, furthering social justice domestically means promoting fairness among a group of individuals whose life experiences could be shaped by others’ actions. Although this instinctive and multifaceted basis of relationship is absent in the global context, theories of global justice articulate what we owe each other as citizens of civilised societies engaged in cooperative action with each other (through market, trade, cultural, intellectual, and a range of other exchanges). In the last two decades the general domestic framework of justice has been extended to global concerns with a view to addressing the question of fairness among global citizenry. Prominently, this extension amounted to advancing the idea of social contract to ‘a Society of Peoples’ with varying internal political organisations, including liberal democracies and non-liberal governments.9 In this narrative, the aim of global social justice is to reduce material inequalities among different societies and distant peoples. One of the prominent ways through which geographically distant individuals are connected is by means of their participation in global production relations and economic exchanges, which takes its most direct relational form in global value chains. If individuals in the society of peoples – citizens of different states – are decent they should readily acknowledge this relationality and work towards furthering justice in distant societies.10 Obligations of global justice on the basis of this relationality has been conceptually articulated through the notions of liability and social connection, in different conceptualisations of justice.11 While the first means that individuals who cause harm to others, even if indirectly, by buying inexpensive products produced under exploitative conditions, owe duties of global justice, the latter signifies that by contributing to – complacency with – unjust global structures that result in exploitation of distant others, individuals owe duties of justice to others.12 Whereas the above causal relationship models attribute individual responsibility (and relationality) for global justice, the eventual aim of global justice is to assist all societies establish a just (domestic) institutional regime.13 In addition, this classical idea of global justice also contemplates the establishment of cooperative global institutions (such as the UN), facilitating fairness in trade and distribution of resources among distant peoples guided by the principle of equity.14 Global justice is, then, an ongoing quest wherein existing institutional structures – domestic and international – must be continuously examined for their ability to meet the principles of fairness and equity for distant individuals and societies.15

9 J Rawls, The Law of Peoples (Cambridge MA, Harvard University Press, 1999) 4–5, 9–10. ‘A Society of Peoples is reasonably just in that its members follow the reasonably just Law of Peoples in their mutual relations’ (ibid, 5). 10 ibid 23. 11 C Barry and K Macdonald, ‘How Should We Conceive of Individual Consumer Responsibility to Address Labour Injustices?’ in Y Dahan, H Lerner and F Milman-Sivan (eds), Global Justice and International Labour Rights (New York, Cambridge University Press, 2016) 92. 12 ibid 95–97. 13 Rawls, above n 9, 5–6. 14 ibid 35–36, 41–43, 69–70, 115; A Chin, ‘Thomas Pogge’s Conception of Taking the Global Institutional Order as the Object of Justice Assessments’ in T Brooks (ed) The Oxford Handbook of Global Justice (New York, Oxford University Press, 2020) 303, 304. 15 IM Young, ‘Responsibility and Global Labor Justice’ (2004) 12:4 The Journal of Political Philosophy 365, 371–79, 383–85; IM Young, ‘Responsibility and Global Justice: A Social Connection Model’ (2006) 23:1 Social Philosophy & Policy 102, 122–30; Barry and Macdonald, above n 11, 97; Sen, above n 7, xi, 5–8, 400–01.

Is the ILO a Legitimate Global Institution?  181 Institutions are means for achieving the ends of justice; they are also expressions of human agency. It is by catering to the requirements of justice that institutions attain – and maintain – their legitimacy. When institutions become incapable of catering to the requirements of justice, they should be changed or abolished. This institutional adjustment requires continuous vigilance by autonomous moral agents. Thus, legitimacy of institutions depends on two prominent components: their ability to promote the ends of justice and integrating deliberative participation of autonomous agents in their functioning. A combination of these two characteristics of legitimacy – just institutions and individual responsibility – offers a layered account of legitimacy, which could act as an evaluative standard to assess existing institutions of justice, both domestic and global.

III.  Legitimacy of Global Institutions in Promoting Justice Continued evaluation of social structures and resultant institutional adjustments are the focus of the comparative account of justice, which prioritises not an end-state but a continued quest for social justice.16 Through the very act of comparing social states, the comparative account of justice is, therefore, better able to combine the components of institutional design and individual responsibility. The comparative account of justice is thus interested in evaluating the legitimacy of social institutions – legitimacy of means – with reference to the goals – fairness and equity – of justice. Legitimacy here is a combination of (deliberative) process and goals. In the Rawlsian social contract-based account of justice for domestic societies, it is the citizens who decide the rules of justice and characteristics of institutions.17 The institutions of society acquire their legitimacy through the practice of democracy, both in establishing the institutions and in informing their functioning. What is central to Rawls’ idea of deliberative democracy is the exercise of public reason.18 Public reason is the value that guides institutions’ relationship to citizens, which signifies that in view of the plurality of values in modern societies, institutions and citizens are to offer reasonings for their opinions and actions that constitute ‘political’ reasoning in distinction to any specific philosophical or religious worldview.19 More expansive versions of reasoned deliberations, extending beyond citizens’ relationship with formal institutions, have also been offered as the foundation of just democratic governance of a society.20 In all these accounts, legitimacy of institutional structures and laws created by those structures depend on the depth – extensiveness – of deliberative democracy in a society. However, sole focus on formal representation and institutional finality (i.e. once established, institutions become final) undermines extensive deliberative democracy.21 If autonomous moral agents – citizens – are the eventual source of legitimacy

16 Sen, ibid. 17 See Rawls, above n 7. 18 Rawls, above n 9, 132–39. 19 ibid 132–33. 20 J Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA, MIT Press, 1996) 17–18, 42–45, 103–11; Sen, above n 7, 106–11, 410–12. 21 Sen, ibid, 324.

182  Supriya Routh for institutions and norms, only continued evaluation of institutions and their norms is compatible with the requirements of legitimacy in view of the ever-evolving nature of society. Just as in domestic societies, Rawls notes that global norms of distribution of basic rights, liberties, and entitlements should be established on the basis of reciprocity, that is, those formulating such rules for geographically distant societies should find them to be minimally acceptable to those societies, rather than an imposition from a dominant position.22 ‘In a reasonably just […] Society of Peoples, the inequalities of power and wealth are to be decided by all peoples by themselves.’23 Unless the Law of Peoples (as Rawls calls international law) complies with the fundamental principle of reciprocity, it runs the risk of being an instrument of Western dominance on the rest of the globe, and thus, unjust.24 The aim of global institutions is to eventually assist citizens in diverse societies to establish just domestic norms.25 Global institutions, and norms created by those institutions, exist alongside the requirement of deliberative democracy-based creation of regulatory norms in domestic societies. In this context, it is important to recognise that deliberative democracy often unfolds differently in postcolonial societies than it does under Western representative models, although the latter is often understood as the universal standard globally. As Partha Chatterjee argues, postcolonial societies often grapple with the complexities of political participation and deliberation that takes place simultaneously through the constitutionally conceived civil society and the extra-constitutional ‘political society’.26 While the former is a replication of the European nation states (the ‘universal’ model), the latter signifies a deliberative space wherein citizens challenge the consensus and conventions of the former space. In the latter space, citizens’ claims often involves contesting the property, contract, and criminal law regimes in order to have their entitlements (such as claims to illegally occupied squatter settlements) recognised by creating political and legal exceptions to those regimes.27 The bases of the above claims to recognition are social norms and conventions rather than constitutionally recognised rights.28 The persistence of these two simultaneous realms mean that unless there is a commitment to integrate deliberative participation from outside the constitutionally recognised civil society apparatus (such as electoral representations and trade unions) there will be a legitimacy deficit in any political project of social justice for postcolonial societies. This approach to legitimacy also militates against the homogenisation of distant individual societies. Ideas of global justice and legitimacy of institutions should be premised on the foundation that distant individual societies do not speak in consensus and are internally heterogeneous. Accordingly, continued evaluation of social justice-promoting institutions through deliberations extending beyond formal representative organisations should also be a measure of their legitimacy. 22 Rawls, above n 9, 14, 18, 41. 23 ibid 39. 24 ibid 121–22. 25 See generally Rawls, above n 9. 26 P Chatterjee, The Politics of the Governed: Reflections on Popular Politics in Most of the World (New York, Columbia University Press, 2004) 36–38. 27 ibid 40–41, 57–59; also see S Routh, ‘Examining the Legal Legitimacy of Informal Economic Activities’ (2022) 31:2 Social & Legal Studies 282. 28 Routh, ibid.

Is the ILO a Legitimate Global Institution?  183 In any case, global institutions will be unfair if they impose a specific worldview (eg, neoliberal market order) on every society and allow ‘the larger [states] with the wealthier economies’ to control the market so as to determine market outcomes or condone ‘unjustified distributive effects’ among peoples.29 Such control, along with the contraction of civil society engagement in domestic politics30 and non-recognition of the political society (in postcolonial states), is a problem of legitimacy along the continued evaluation (of institutions) trajectory. The curbing of domestic deliberative spaces, induced by global institutional arrangements, undermines the trust and respect among the citizens of the divergent states. This mistrust is contrary to the foundational principle of global justice, which should prioritise interests of geographically distant people and defer to their selfrespect compatible with the self-respect of every other people.31 I now turn to assessing whether the ILO meets the standards of legitimacy discussed in this section.

IV.  Global Labour Justice and the Legitimacy of the ILO Extensive economic globalisation has resulted in the erosion of labour rights and exacerbates insecurities among workers globally.32 The structure of global production and market exchange has led to this increasing marginalisation and exploitation of workers.33 Institutional structures of global trade, in particular global production chains, are constituted against the interest of workers.34 The structure of global trade, determined through institutions such as the World Trade Organization, the World Bank, the IMF and regional associations, works unfairly against all workers, but has disproportionally adverse impact on workers from the postcolonial states.35 The global trade framework establishes an unequal relationship between advanced industrialised states and labour-intensive postcolonial states.36 By taking advantage of their superior bargaining positions, advanced industrialised states substantially increased the mobility of capital and goods without simultaneously promoting the mobility of labour.37 This disproportionate patronage of capital resulted in continuing precariousness among workers everywhere. It is of course true that when the global trading regime was established, the negotiation process had representative participation from a range of independent states. However, with hindsight, many of these states failed to properly represent their major constituency, the workers. As an organisation concerned with global labour rights, one might expect the ILO to address this inherent injustice of the global trading structure. Recall, the ILO’s aim is 29 Rawls, above n 9, 43. 30 M Ronzoni, ‘Global Labour Injustice: A Critical Overview’ in Dahan et al, above n 11, 27, 29–30. 31 Rawls, supra n 9, 34–35, 37. 32 See Y Dahan, H Lerner, and F Milman-Sivan, ‘Shared Responsibility and the International Labour Organization’ (2013) 34:4 Michigan Journal of International Law 675, 680–81. 33 T Pogge, World Poverty and Human Rights (Cambridge, UK, Polity, 2008) 9, 14–16. 34 Dahan et al, above n 32, 682–83; Pogge, ibid, 18, 39, 122–23. 35 Pogge, above n 33, 18–19; Dahan et al, above n 32, 682–83; S G Reddy, ‘Just International Monetary Arrangements’ in C Barry and T W Pogge (eds), Global Institutions and Responsibilities (Malden, Blackwell, 2005) 218, 223–25, 229–32. 36 Pogge, above n 33, 20–21; Dahan et al, above n 32, 683; D Moellendorf, ‘The World Trade Organization and Egalitarian Justice’ in Barry and Pogge, above n 35, 141, 148–54. 37 Dahan et al, above n 32, 683–84; Pogge, above n 35, 16.

184  Supriya Routh ‘universal and lasting peace […] based upon social justice’ with an acute awareness of injustice and hardship faced by labour across the industrialising globe.38 At the same time, however, the ILO is a part of the global institutional structure, aiming to expand production, consumption, and international trade. Even though equality is a foundational principle of the ILO, by aiming for universal labour standards for societies that were (politically, industrially, and economically) unequal, the Organization has been inadvertently instrumental in promoting an unequal playing field between affluent industrial states and postcolonial developing states.39 In particular, the ILO’s ‘[s]even central policy concerns’ are too formalistic and conceived on an understanding of formal contractual relationship between capital and labour, based almost completely on the European industrial revolution structure.40 Although mindful of the constrained capacity of member states to address social policies, the 2008 Declaration on Social Justice for a Fair Globalization somehow fails to recognise the inherent injustice of the global trading structure, instead choosing to entrust member states with the responsibility to promote workers’ access to productive employment, conditions at work, social security protection, and social dialogue.41 By means of this Declaration, the Organization assigns its member states to create ILO-specified conditions for labour justice while also meeting their international obligations, which, according to the ILO, is the recipe for fair globalisation. While it is unsurprising that the ILO, a specialised agency of the UN since 1946 and part of the Bretton Woods global order, would recommend adherence to international trade commitments by member states, there is no indication that the Organization understands the contradictions of the prescribed recipe.42 In its attempt to balance workers’ rights with the needs of global trade, the ILO suffers from legitimacy deficit along two trajectories. First, the legitimacy deficit emerging from the global institutional structure per se (i.e., structural deficit) and second, legitimacy deficit of legal standards promulgated by the Organization (i.e., normative deficit). First, the ILO conceives of worker rights through market exchanges. Accordingly, the employment contract model is conceived as the universal model for worker entitlements. This model marginalises other heterogeneous working arrangements and sui generis worker entitlements. This universalisation of working relationships therefore makes the heterogeneous (and contextual) reasonings for worker entitlements and points of negotiations invisible. It obscures the incentives, motivations, power relations, and practices of working relationships that are based on social norms and local traditions. Such universalisation denies the diversity and autonomy of actors in postcolonial societies. The invisibility of ‘non-standard’ working arrangements from the universal model exposes heterogeneous 38 ILO Constitution, 1919. The Annex to the Constitution (Declaration of Philadelphia, 1944) reiterates the Organization’s commitment to promote all human beings’ ability to pursue material and spiritual improvement; promote social justice; increase economic efficiency; expand production, consumption, and international trade; and gradual and flexible application of the principles of the Declaration to ILO Member States; G Rodgers, E Lee, L Swepston and J Van Daele, International Labour Organization and the Quest for Social Justice, 1919–2009 (Geneva, ILO, 2009) 3–4, 209. 39 Rodgers et al, ibid; G Standing, ‘The ILO: An Agency for Globalization?’ (2008) 39:3 Development and Change 355, 357. However, ILO instruments do allow for some flexibility in realising these standards. 40 See Rodgers et al, above n 38, 8. 41 ibid, 205, 233. 42 Dahan et al, above n 32, 691; ILO Declaration on Social Justice for a Fair Globalization, International Labour Conference, 97th Session (2008).

Is the ILO a Legitimate Global Institution?  185 working arrangements and relationships to exploitation by globally mobile capital without the same scrutiny that is instituted for formal contract-based relationships. However, with the ILO’s gradual recognition of the ‘exceptional’ (i.e., informal, atypical, non-standard) working arrangements, the erstwhile obscure work-based relationships have become increasingly visible. Such recognition, per se, may not afford legitimacy to the ILO, unless its legal standards are also appropriately nuanced to the circumstances of these ‘exceptional’ working arrangements. Standards would be nuanced only when they emerge from legal actors’ specific context without being dominated by any specific worldview.43 What follows is that one of the preconditions of legitimate global norms is that they should be devised primarily on the basis of reasoned deliberations of actors who will be subjected to those norms. We must be careful not to substitute this participatory deliberation with formal representative participation.44 In postcolonial societies in particular, the deliberative space often extends beyond the formal representative model. Privileging representatives over contextual deliberations runs the risk of excluding embodied knowledge, contextual nuance, and heterogeneous interest-positions as legitimate sources of normative standards, thereby amounting to disrespect of distant peoples. Created on the basis of the (Eurocentric) orthodox representative framework of industrial relations, ILO legal standards often suffer from legitimacy deficit on this deliberative ground. ILO norms are created in a deliberative manner, but where only the most representative national organisations get to participate.45 It is argued that tripartism in the ILO is not only a limited ideal of industrial democracy but manifests a much broader concept of ‘participatory democracy’.46 It is on the strength of this tripartism that the principal legal instruments of the ILO claim global recognition. As admirable as it may be, mere formal tripartism may sometimes lead to the promulgation of disconnected, unthoughtful, and regressive instruments, particularly for the ‘exceptional’ workforce in postcolonial societies. Two examples will be instructive. In 2015, the ILO adopted the Recommendation Concerning the Transition from the Informal to the Formal Economy (No 204). The Recommendation posits that the informal economy is a threat to workers’ rights. Therefore, ILO member states should try to transition to the formal economy. The ILO mistakenly assumes that the form (i.e., formal/informal) itself is inherently connected to the actual realisation of substantive rights and that achieving a specified form (in this case ‘the formal’ employment contract) should help workers realise their rights. Accordingly, informal workers’ rights could be promoted by replicating the circumstances of formal employment contracts for informal economic relations.47 A second and comparatively more imaginative ILO instrument also suffers from the problem of ILO orthodoxy. The Decent Work for Domestic Workers Convention, 2011 (No 189) mandates comprehensive legal entitlements for (waged) domestic workers globally. The Convention also declares sensitivity towards heterogeneous working conditions of domestic workers.48 In spite of this recognition, the only way the Convention 43 Rawls, above n 9, 61–62. 44 On this point, see Sen, above n 7, 324. 45 Dahan et al, above n 32, 696. 46 Rodgers et al, above n 38, 17. 47 Recommendation No 204, paras 8–11. 48 See A Blackett, Everyday Transgressions: Domestic Workers’ Transnational Challenge to International Labour Law (Ithaca, Cornell University Press, 2019).

186  Supriya Routh conceives of domestic workers is in an employment contract contributing to marketgenerated wealth, thereby disregarding the empirical diversity of domestic work in parts of the Global South and devaluing non-market (social) contributions of domestic work.49 Domestic workers, then, should also fit the formal contract model to receive ILO patronage. Thus, both of the above-noted trajectories of legitimacy deficit are barriers to the integration of embodied experiences of heterogeneous workers in ILO policy-making processes.50 The ILO is part of the global structures of injustice and is therefore unlikely to suggest radical democratic change to promote global equity. By prioritising representative tripartism, the ILO ignores the varied conditions of deliberative democracy in post-colonial societies of the Global South. While overcoming this legitimacy deficit may be beyond the structural (and ideological) reach of the ILO, the legitimacy deficit of ILO standards for ‘exceptional’ workers could be overcome by allowing continuous consultation and the recognition of heterogeneous participation (and reasoning) in the deliberation process.

V. Conclusion: Just for Future This chapter evaluated the ILO as a global institution against the standards offered by conceptual accounts of global social justice, with a sensitivity to the uniqueness of postcolonial societies. On the basis of the evaluation, a more practical roadmap could perhaps be offered. If the basis of global justice is respect for distant peoples, imposition of a specific worldview – neo-liberal market order – on distant others is an antithesis of global justice. Since the structure of global trade and the ILO’s normative agenda have historically emerged with reference to the specific worldview, it should be a condition of legitimacy that the ILO’s centre of gravity – including the constitution of its secretariat – in future should move from a Eurocentric vision to a postcolonial sensitivity. While this prescription may mean different things in different contexts, what seems urgent is that the ILO abandon its normal/exceptional dichotomy in its policy making. While on the one hand, this shift would require mainstreaming of policy-making voices from the Global South, on the other, it would also require dissociating the market dominance of some member states as a leverage in ILO values, policymaking, staffing, and other aspects. It is through a postcolonial justice-focused reorientation of the ILO, offering more space to and respect for the erstwhile uninfluential constituencies, that the ILO could claim global legitimacy. The ILO also needs to attend to the normative legitimacy of ILO instruments. This would require the ILO to scrutinise along two fronts. First, while promulgating international instruments, the ILO should refrain from mandating ‘regulatory models’. Instead,

49 See S Routh, ‘Situated Experience as a Basis of Legitimate Law-Making: ILO Convention 189 and Domestic Workers in India’ in U Mahanta and I Gupta (eds), Recognition of the Rights of Domestic Workers in India: Challenges and the Way Forward (Singapore, Springer, 2019) 55, on the disjuncture between the ILO Convention and empirical realities. 50 However, the Recommendation (No 206) supplementing the Convention also suggests additional outreach beyond the tripartite constituents of industrial relations.

Is the ILO a Legitimate Global Institution?  187 it should attempt to offer broad overarching guidelines that aim at equitable treatment of different categories of workers. Since ‘exceptional’ workers are, by the very definition, heterogeneous, it is improbable that the ILO – or any global institution – will be able to devise a normative framework for every category of working arrangements. The ILO should instead focus on the fairness – equity – among the different categories of workers within member states. The ILO should be concerned with whether, irrespective of the nature of their working arrangements, workers are actually able to live equitable lives. Luckily, the Organization seems to have recognised its weakness and has already initiated a more heterogeneous and expansive approach to its standard-setting role.51 Second, the ILO should be mindful that equitable treatment of workers would depend largely on the extensive nature of participation-led lawmaking process. Such participation should not be assessed only on the touchstone of legally recognised civil society engagement (such as tripartite social dialogue). It should prioritise actual participatory engagement by workers in their contextual circumstances. The aim of such participation should not be to replicate the ILO’s ‘normal’ industrial model, but to introduce heterogeneous concerns – and solutions – in arriving at the just treatment of diverse workers. The ILO’s focus should not be on whether a member state has ratified an instrument, but on whether a member state has created conditions wherein a diversity of reflections could influence its social justice project. Going forward, the ILO may want to ponder practical ways to facilitate social justice without undermining the capacity of distant and diverse peoples – workers – to have the capacity to create their own path to justice. At a policy level this might mean calibrating ILO functions by moving away from prescribing labour standards and instead focusing on monitoring member states’ capacity to create their own contextual standards. The ILO is an important global institution. It is needed for centralising labour issues globally. It is how the Organization does this that will become the marker of its success in its second century.

51 See, eg, the ILO Violence and Harassment Convention, 2019 (No 190); see also J Hahs and U Mückenberger (2021) ‘Segmenting and Equalization Narratives in the ILO’s Standard-Setting Practice’. Available at: https://doi. org/10.111/ilr.12344.

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II.  The World Trade Organization and the Trade and Labour Nexus

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17 Reforming the WTO to Better Promote Social Justice STEVE CHARNOVITZ1

I. Introduction Social justice should be a goal of global lawmaking. Although the concept of ‘social justice’2 infuses the law and policy of the International Labour Organization (ILO),3 social justice is not explicitly pursued in the law and policy of the World Trade Organization (WTO). In my view, global social justice is too important to leave exclusively to the ILO. The establishment of the WTO in 1994 resulted from the vision and hard work of governments, businesses, and scholars over the preceding century. Like any international organisation, the WTO comprises a community of actors; inside the WTO, the key actors are governments. More so than most multilateral agencies, including agencies of the United Nations (UN), the WTO is also a legal order enjoying a law-based dispute system.4 Another key feature of this legal order is that decisions are normally made by consensus.5 In recent years, the legislative and judicial functions of the WTO have not been successfully performed. A key obstacle is the United States (US). Since 2017, the US has refused to allow appointments to the WTO’s appellate tribunal. The shutdown of the WTO Appellate Body is especially troubling because its adjudicators have constructively clarified the jurisprudence regarding policy space for national environmental and social regulation.6 Besides judicial deadlock, WTO’s multilateral legislative agenda has also been blocked. At the WTO’s last Ministerial Conference (MC11) held in 2017, WTO member governments were unable to fulfill or launch new trade negotiations to achieve better rules for the world economy. The persistent deadlock that has stymied most WTO legislative initiatives stems from the difficulty of obtaining consensus. Commenting on this predicament, Ernst-Ulrich 1 This chapter is current as of 14 April 2022. 2 See CW Jenks, Social Justice in the Law of Nations (Oxford, Oxford University Press, 1970). 3 The Preamble to the ILO’s Constitution of 1919 begins with the social justice clause: ‘Whereas universal and lasting peace can be established only if it is based upon social justice …’ Part XIII of the Treaty of Peace (Versailles, 28 June 1919) [Treaty of Versailles]; ‘Peace and Social Justice’ (1919) 2 British Medical Journal 18–19. 4 Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement) (Marrakesh, 15 April 1994). 5 Art IX:1 of the WTO Agreement. 6 J Langille, ‘The Trade-Labor Relationship in the Light of the WTO Appellate Body’s Embrace of Pluralism’ (2020) 159 International Labour Review 569, 588.

192  Steve Charnovitz Petersmann observes: ‘The more UN and WTO reforms are blocked by authoritarian veto practices and political opportunism …, the more sustainable development and democratic civil society struggles for human rights, social justice and protection of the environment risk will remain “unsuccessful”.’7 The question of how (or whether) to seek social justice in international economic law goes back to the origin of the conceptualisation of the trading system in the early twentieth century. Since the mid-1970s, I have focused on these matters both as a US government official and as a scholar.8 Over the past three decades, the individual from whom I learned most about the ILO is Francis Maupain in his role of ILO Legal Adviser and Former Legal Adviser. In a comprehensive 2013 book on the ILO and its relationship with other international economic law, Maupain suggests a ‘widening’ of the ‘Horizon of Social Justice’ including at the WTO.9 Nine years later, suggestions for widening the WTO’s horizons are mainstream.10 Today, few would gainsay that the WTO has some normative role to play in the global governance of the ‘World of Work’. The question is what the WTO’s role should be. When the trading system was established after the Second World War, the multilateral conference convened to write rules was the UN Conference on Trade and Employment (UNCTE) held in 1946–1948.11 The International Trade Organization (ITO) Charter, produced by the UNCTE, included a chapter on ‘Employment and Economic Activity’. This wave of rulemaking for the global economy soon foundered and, because of defection by the US, that progressive ITO Charter failed to come into force. Consequently, the employment dimension of the multilateral trading system has remained inchoate since 1947. The theme of this volume is ‘possible global futures’. A scholar writing on global futures could undertake prediction or prescription. Back in 2005, I authored a predictive essay on what the WTO would be 15 years hence in 2020.12 Yet, when 2020 arrived, my predictions proved way off the mark as the WTO had degenerated into deeper failure than even my dystopic scenario. Today, pessimism about the WTO is endemic.13 This chapter proceeds in four parts: Part I provides a brief summary of the legal history of the emergence of a social dimension in the trading system. Part II explains why the WTO should not seek to condition trade on labour rights. Part III makes several specific suggestions for what the WTO should do to promote a stronger world economy including its labour markets. Part IV concludes in looking ahead to 2023 by looking back at 1923. 7 EU Petersmann, Transforming World Trade and Investment Law for Sustainable Development (Oxford, Oxford University Press, 2022) vi. 8 My scholarship has long noted the fundamental distinction between using national trade access (carrots or sticks) to raise foreign labour standards up to ILO standards versus using trade access to raise foreign costs in order to protect domestic producers and workers from having to compete with lower-income countries. 9 F Maupain, The Future of the International Labour Organization in the Global Economy (Oxford, Hart Publishing, 2013) 256. 10 A Trebilcock, ‘Governance Challenges and Opportunities for the International Labour Organization in the Wake of the Covid-19 Pandemic’ (2021) 18 International Organizations Law Review 370, 394. 11 JM Jensen, ‘Negotiating a World Trade and Employment Charter: The United States, the ILO and the Collapse of the ITO Ideal’ in JM Jensen and N Lichtenstein (eds), The ILO from Geneva to the Pacific Rim (London, Palgrave Macmillan, 2016) 83–109. 12 S Charnovitz, ‘The World Trade Organization in 2020’ (2005) 1 Journal of International Law & International Relations 167–89. 13 S Olson, ‘Is it time to expect less from the WTO?‘ 31 January 2022. Available at: www.hinrichfoundation. com/research/article/wto/post-wto-world/; J Zumbrun, ‘Economic Blacklist of Russia Marks New Blow for Globalization’, Wall Street Journal (10 March 2022).

Reforming the WTO to Better Promote Social Justice  193

II.  A Century of Trade and Labour Linkages Although governments for centuries have used treaties to regulate mutual trade policies, the successful establishment of a rule-based multilateral trading system did not occur until the General Agreement on Tariffs and Trade (GATT) was written in 1947. The hatching of the GATT was accomplished by a group of like-minded countries (led by the US) who wanted to get moving on mutual trade liberalisation without having to wait for all the governments participating in the multilateral UNCTE negotiations. The path to the UNCTE began at the Paris Peace Conference. In 1919, the US government proposed a Declaration for Equality of Trade Conditions proclaiming that import duties ‘as to the rest of the world be equal and without discrimination, difference, or preference, direct or indirect’.14 The British government supported a ’most-favoured-nation clause’ and called for a joint commitment ‘not to discriminate’ against trade by ‘indirect means’ such as ‘Customs or administrative regulations of procedure ….’15 Those idealistic beginnings of global trade lawmaking were soon dropped by peace negotiators. For international trade, the results of the Paris negotiations were: (1) the general commitment in the Treaty of Versailles of ‘equitable treatment for the commerce of all Members of the League’;16 and (2) an understanding that the League of Nations would put international economic law on its early agenda. The first early success ensued in 1923 when the League sponsored the negotiation of the International Convention for the Simplification of Customs Formalities. That Convention became the first twentieth-century multilateral trade treaty. In parallel with the UNCTE discussion of basic trade rules that 28 years later became GATT’s foundational trusses, the peace negotiators of 1919 also considered several proposals for labour-related trade rules. For example, the Labour Commission of France’s Chamber of Deputies recommended that negotiators ‘draw up measures to be taken against States’ through ‘commerce duties or prohibitions … levied’ against products ‘in inverse proportion’ to the ‘standard of protective labour legislation enjoyed’ by the workers in one country ‘as compared with the standard of protection’ afforded under international conventions.17 The US government proposed a treaty provision that ‘no article or commodity may be carried or delivered in international commerce if prison labour contributed to its manufacture’. Yet this US proposal was voted down by peacemakers.18 Still, the peace negotiators made unanticipated progress in promoting international worker rights. The most significant achievement was the multilateral agreement establishing the ILO. Furthermore, the League of Nations Covenant proclaimed that League member governments ‘will endeavour to secure and maintain fair and humane conditions of labour for men, women and children, both in their own countries and in all countries for which their commercial and industrial relations extend …’19 The project of promoting humane

14 DH Miller, The Drafting of the Covenant (New York, GP Putnam’s Sons, 1928) 16. 15 ibid 18–19. 16 Art 23(e) of the Treaty of Versailles. 17 Resolution of the Labour Commission of the French Chamber of Deputies, Official Bulletin (Geneva, ILO, 1919–20) 234, 238, 240. 18 Official Bulletin (Geneva, ILO, 1919–1920) 218–19, 225–28. 19 Art 23(a) of the Treaty of Versailles.

194  Steve Charnovitz conditions of labour in commercial relations had always been, and was destined to continue to be, a conditioning factor in the development of the world trading system.20 Although the problems of high tariffs and trade discrimination were discussed within the League of Nations, no lasting legal solutions were achieved. Still, one elemental connection came in the recommendations of the 1927 World Economic Conference for future agreements on trade. Among the issues discussed were: simplification and stability of customs tariffs, subsidies, anti-dumping, state enterprises, and collective action to expand international trade. With regard to the labour market, the 1927 Conference recommended that governments should ‘lead producers’ to give individuals the ‘healthiest and the most worthy employment’ and to use ‘methods of renumeration giving the worker a fair share of the increase of output’.21 To the extent that the 1927 Conference was prolegomena for a rule-based global economy, the Conference’s dual focus on both trade rules and labour outcomes became a constitutive moment. Attention to the goals of ‘worthy employment’ and a worker’s ‘fair share’ reappeared in future waves of reform. As the ILO gained its footing to promote the mondialisation of labour law, the topic of international trade occasionally arose in debate. For example, in 1926, ILO Director Albert Thomas contrasted the ‘ineffectiveness of protection by means of tariffs’ with the ‘efficacity of a simultaneous raising of labour standards’.22 Returning to this theme in a 1927 speech, Thomas averred that ‘neither free trade nor protection affords a final solution’ to social problems whose solution can only emerge through ‘organised co-operation between nations’.23 Due to space constraints, this chapter will not cover the developments over the next several decades where the labour and trade regimes intersected. That history includes: inter-war planning for a more organised world economy, the Declaration of Philadelphia, the negotiations at the UNCTE, the early cooperation between ILO and the infant ITO, the initial discussions in ILO on a social clause, and US actions during the GATT Tokyo Round24 to add a fair-labour-standards clause to GATT. I participated in those GATT reform efforts and recall how the US hobbled itself with bureaucratic infighting.

III.  Avoid a Labour Trap for WTO Progress Establishing the WTO in 1994 (by consensus) was an important achievement and looks even more impressive nearly three decades later. One of the many improvements made in global trade law was overcoming barriers to cross-border labour services. Note that ceasing protectionism for trade of goods and services does not mean that governments are committing to allow unfettered transborder movements of capital/money, labour, technology or data.

20 S Charnovitz, ‘The Influence of International Labour Standards on the World Trading System’ (1987) 126 International Labour Review 565. 21 Report of the World Economic Conference (1927) 134 Annals of the American Academy of Political and Social Science 174, 188. 22 ILO, Report of the Director, 1926, 496. 23 A Thomas, International Social Policy (Geneva, ILO, 1948) 110–11. 24 G Edgren, ‘Fair labour standards and trade liberalisation’ (1979) 118 International Labour Review 523, 530–33.

Reforming the WTO to Better Promote Social Justice  195 Seemingly, the most direct way of achieving higher labour standards in internationally traded goods and services would be to write a social clause into WTO rules as a condition for world trade. In line with US law at the time,25 in 1986, I recommended that GATT establish a system of ‘international fair labour standards’ with compliance to be reviewed by a multilateral organisation ‘rather than leave such decisions to the politics of each importing country’.26 I warned that: ‘As the LDCs [less-developed countries] grow more competitive over a wider range of goods, U.S. protectionism is likely to increase unless foreign competition is perceived as fair and unless the potentially injured workers have confidence in their opportunities for retraining and reemployment.’27 Several years later, as GATT transmogrified into WTO, I recommended that WTO ‘develop a set of minimum international labour standards that all Members would undertake to follow in producing for international commerce’.28 I proposed five standards covering ‘forced labour; child labour; freedom of association; toxic substances; and derogations from national law in export processing zones’.29 But in 1997, after 20 years of activism on labour-related trade issues, I changed my mind. I gave this explanation: The WTO, for three primary reasons, is never going to be a good forum for pursuing the goal of higher labour standards. First, the WTO is a specialised organisation on trade where trade ministers serve as representatives. Second, the WTO is not, and does not purport to be, a champion of worker rights. Third, decision-making in the WTO normally requires a consensus.30

Instead, I proposed that if trade controls are needed as part of the regulation of the production of internationally trade goods, then such rulemaking on ‘odious’ products should be undertaken by ILO.31 My views matured as a result of what I saw in WTO and ILO,32 and what I learned from other scholars. For example, in discussing the ‘dilemma’ for ‘trade theory’ with respect to the ‘international market in labour policy’, Brian Langille observed that the ‘resolution of our dilemma must be based in multilateral negotiation, agreement, and enforcement which aims at securing the gains from trade while permitting political negotiation of the proper scope of the market in labour’.33 I appreciated Langille’s concern that: ‘The problem with the ILO process is that it lacks direct connection to the trade issue’,34 but I saw no legal bar to making that connection.

25 US Public Law 93–617, Section 121(a)(4). 26 S Charnovitz, ‘Fair Labor Standards and International Trade (1986) 20 Journal of World 61, 76 (February). 27 ibid 78. 28 S Charnovitz, ‘The World Trade Organization and Social Issues’ (1994) 28 Journal of World Trade 17 (October). 29 ibid 31–32. 30 S Charnovitz, ‘Trade, Employment and Labour Standards: The OECD Study and Recent Developments in the Trade and Labor Standards Debate’ (1997) 11 Temple International & Comparative Law Journal 131, 160 (internal references omitted). 31 ibid 162–63 (internal references omitted). 32 ‘International Trade and Labour Standards: The ILO Director-General Speaks Out’ (1996) 135 International Labour Review 230. 33 BA Langille, ‘General Reflections on the Relationship of Trade and Labor (Or: Fair Trade is Free Trade’s Destiny)’ in J Bhagwati and RE Hudec (eds), Fair Trade and Harmonization. Legal Analysis (Cambridge, MIT Press, 1996) 231–66, 247, 260. In retrospect, my participation in the July 1993 authors’ workshop for the Fair Trade and Harmonization project sparked my reconsideration of earlier views on the trade-labour linkage. 34 ibid 260.

196  Steve Charnovitz Revisiting these issues now, I would add the additional point that any policy assignment to the WTO for worker rights will distract and impede the WTO from accomplishing its primary task which is to promote ‘a world where trade flows freely’ undergirded by WTO actions for ‘a fair, equitable and more open rule-based system ….’35 Keeping global supply chains open against state-centric protectionism is a job that cannot be accomplished without a well-functioning WTO. For prudential reasons, WTO should stay in its governance lane and rarely, if ever, call for trade restrictions. Rather, the WTO should catalyse open trade to promote both sustainable development and strategic interdependence among polities that share the planet. Even though other international regimes – for example on climate and on pandemics – suffer normative gaps, the WTO should not try to fill those gaps. Recasting the WTO into a global handyman is a trap that will further hinder its prospects for success. To be sure, a theoretical possibility always exists that by adding in more topics for bargaining, an international organisation can optimise its solution space.36 Yet no analysis has come to my attention showing how the likelihood of successful WTO trade liberalisation negotiations can be enhanced with worker rights piled onto the negotiating table. The efforts in 1996 to add worker rights to the WTO’s negotiating agenda did not achieve what advocates had hoped for. Instead, at the WTO’s 1st Ministerial Conference (Singapore, MC1), WTO member governments declared: ‘We renew our commitment to the observance of internationally recognised core labour standards. The International Labour Organization (ILO) is the competent body to set and deal with these standards, and we affirm our support for its work in promoting them.’37 Looking ahead, the WTO should continue to stay out of the ILO’s way, particularly given how unsuccessful the WTO has been since 1996 in accomplishing its own mission of ‘progressive liberalisation’.38 Above, this chapter posits the possibility of a trade control authored by ILO. How would such a trade control be administered? Because there are no centrally administered trade controls in the world economy, all trade controls are decentralised to national governments. A key distinction exists regarding whether a trade control is specifically required by an international treaty or whether a trade control is countenanced to uphold an international norm. One of the earliest examples of a required control came in the Phosphorus Match Convention of 1906 which directs governments to forbid the manufacture and importation of white phosphorus matches.39 An example of a countenanced trade control is the Wellington Convention on Driftnets stating that parties ‘may take measures’ to prohibit the importation of fish caught using a driftnet.40

35 WTO, Singapore Declaration, 1996, para 6. 36 See RD Tollison and TD Willett, ‘An Economic Theory of Mutually Advantageous Issue Linkages in International Negotiations’ (1979) 33 International Organization 425. 37 WTO, Singapore Declaration, para 4. See ‘Trade and Labour Standards’. Available at: www.wto.org/english/ thewto_e/minist_e/min99_e/english/about_e/18lab_e.htm. 38 See Art XIX of the General Agreement on Trade in Services (GATS). 39 Art 1 of the International Convention on the Prohibition of the Use of White Phosphorus in the Manufacture of Matches (Berne, 26 September 1906). The Convention sought to prohibit a manufacturing process for matches that was toxic to workers. 40 Art 3(2) of the Convention for the prohibition of fishing with long driftnets in the South Pacific (Wellington, 24 November 1989).

Reforming the WTO to Better Promote Social Justice  197 Note that in the field of labour, most of the existing trade controls operate in furtherance of national norms rather than international norms. The most well-known trade control – the US import ban of 1930 on certain goods produced with convict labour, forced labour and indentured labour41 – was not written to implement future ILO conventions regarding forced labour.42 Indeed, neither ILO Convention No 29 of 1930 nor ILO Convention No 105 of 1957 requires or countenances trade controls.43 Although the WTO should not set rules for fundamental labour standards, it could set rules encouraging government interventions to promote readjustment and retraining of workers who could lose their jobs due to trade.44 In 1995, I called for the WTO to establish a Committee on Trade and Employment. I noted that ‘the GATT has arguably dehumanised trade policy, and paid more attention to the needs of multinational corporations than of workers’.45 My essay sought to build on the GATT’s Preamble which states that parties recognise that ‘relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand ….’ A decade later, I proposed a WTO Decision on Trade and Employment with nine specific action items to achieve greater equity.46 In the intervening 16 years, the WTO is still not seen as caring about and remediating dislocations caused by trade.

IV.  Improve WTO Effectiveness The most constructive action WTO can take to promote social justice is to lower nationalistic trade barriers so that workers of the world can produce goods and services not only for domestic consumption, but also for export. As a team of economists recently reminded us: ‘The fallacy that protectionism is the answer in combating poverty, inequality, and socioeconomic marginalisation is toxic and must be actively countered.’47 In its 2001 launch of the Doha Development Agenda, the WTO sought to reduce protectionism. In 2015, the UN’s Agenda for Sustainable Development (2015) called ‘upon all members of the World Trade Organization to redouble their efforts to promptly conclude the negotiations on the Doha Development Agenda’.48 Unfortunately, Doha apathy in several countries (especially the US) 41 19 USC § 1307. 42 A US import ban on goods produced with convict labour had been in US law since 1890 and thus the 1930 legislation was not new policy. In 1930, the US was not yet a member of the ILO, so was not contemplating a ratification of what would become ILO Convention No 29. Indeed, the US has still not ratified it. 43 A State ratifying an ILO Convention takes on duties for its own performance, not the performance of its trading partners. 44 Worker job loss from competition with machines is not within WTO’s jurisdiction. Of course, the social effects of automation are within the ILO’s jurisdiction. 45 S Charnovitz, ‘Strengthening the International Employment Regime’ (1995) 30 Intereconomics 221, 223. This essay advocates adjustment assistance to dislocated workers, in contrast to compensating those workers. 46 S Charnovitz ‘The (Neglected) Employment Dimension of the World Trade Organization’ in VA Leary and D Warner (eds) Social Issues, Globalisation and International Institutions (Leiden, Martinus Nijhoff Publishers, 2006) 125–55, 144–46. 47 JN Bhagwati, P Krisna and FL Rivera-Batiz, ‘Protectionist Myths’ in C Erbil and FL Rivera-Batiz (eds) Encyclopedia of International Economics and Global Trade: International Trade and Commercial Policies (Singapore, World Scientific Publishers, 2020) 33–56, 52. 48 UN/A/RES/70/1 (2015), para 65.

198  Steve Charnovitz led to an abandonment of that modest trade round.49 Still, the WTO continues patchwork efforts to reduce barriers to trade in both goods and services. Because WTO legislative decision-making generally requires consensus, the WTO cannot move faster than the most dilatory government. Since 2001, the WTO has produced a few new legal agreements, such as the Trade Facilitation Agreement of 2013, but, on the whole, the WTO’s productivity pales next to that of the ILO which, since 2001, has legislated seven new conventions and two protocols. Many multilateral environmental regimes have also been more productive than the WTO over the past 20 years. With little prospect of restoring lawmaking in the WTO, governments and private actors have turned to workarounds. Because of the difficulty of achieving consensus among 164 WTO member governments, many commentators propose legislating in smaller coalitions. Although the term ‘plurilateral’ is sometimes used to describe such initiatives, that term is inaccurate with respect to the WTO because, in WTO law, to establish a new plurilateral agreement still requires the consensus of all WTO governments, even though each government retains the option to sign on.50 So, a better term for deals among a subset of WTO countries would be ‘Minilateral’ or Codes. Although consensus decision-making worked in the GATT between 1947–1964, during the Kennedy Trade Round, GATT governments began pursuing agreements through ad hoc coalitions of governments. This technique worked to produce GATT Codes/Agreements in 1967, but those acts were not widely ratified. The GATT had more success in the Tokyo Round when its non-multilateral Codes/Agreements did come into force for subscribing countries in 1979. While the WTO Agreement emphasises ‘multilateral trade relations’,51 in practice, the WTO has always had a non-multilateral track. In the early years of the WTO, an innovative legal technique arose to formalise bargains among a subset of WTO countries. That occurred in the 1996 Telecommunications Reference Paper, which contains commitments that WTO governments can subscribe to under the WTO General Agreement on Trade in Services (GATS). Some of the Reference Paper commitments go beyond trade: for example, the Reference Paper calls for ‘objective, timely, transparent and non-discriminatory’ regulation of scarce electromagnetic resources.52 In December 2021, the WTO re-employed the Reference Paper approach to discipline domestic regulation of services.53 The Reference Paper technique for bargaining could be used to formalise joint national commitments on any issue of trade in services, and this method could be put to use beyond services. Under GATT, governments schedule ‘concessions’54 on tariffs. Yet concessions could also be scheduled for Reference-Paper-style regulatory commitments on goods. The challenge of making use of Minilateral/Code arrangements is that while one can easily imagine how like-minded governments might want to agree among themselves to WTO-plus commitments that add obligations not contained in WTO law, the core WTO

49 Proposals for deeper economic integration were never seriously considered by the WTO. 50 Art X:9 of the WTO Agreement. 51 ibid, art III:2 of the WTO Agreement. 52 Available at: www.wto.org/english/tratop_e/serv_e/telecom_e/tel23_e.htm. 53 WTO, Joint Initiative on Services Domestic Regulation. Available at: docs.wto.org/dol2fe/Pages/SS/directdoc. aspx?filename=q:/WT/L/1129.pdf&Open=True. 54 Art II of GATT.

Reforming the WTO to Better Promote Social Justice  199 non-discrimination rule would prevent a Minilateral arrangement from giving less favourable treatment to countries that chose not to join. What this means is that Minilateral deals cannot reduce substantive WTO law requirements. So, the potential policy space provided by Minilateral agreements is constrained. Nevertheless, if there is a critical mass of likeminded countries, they may still see a benefit in achieving a Minilateral agreement to govern their mutual trade relations.55 Besides the possibility of Minilaterals, there are several other ways that social or environmental factors in the market could be made relevant inside the WTO. First, governments could use the World Customs Organization (WCO) to rewrite the harmonised tariff system to differentiate products based on their method of production which could include environmental and labour practices. Second, international standardising bodies could promote new international standards for products that incorporate ecological and human rights concerns.56 Then, under WTO rules, national technical regulations that are in accord with such standards would be ‘rebuttably presumed’ under WTO law not to create an unnecessary obstacle to trade.57 Third, governments could negotiate an ‘intergovernmental commodity agreement’ including process-related conditions. Pursuant to WTO rules, when a government undertakes obligations under such a sectoral agreement, that action can qualify under GATT’s ‘General Exceptions’.58 Many decades ago, a few international commodity agreements contained commitments for ‘fair labour standards’.59 For any of these three approaches – WCO, international standard-setting, and commodity agreements – producer practices could be tracked using blockchain or geotagging technology. Another modality of improving national trade policy without relying on the WTO is through regional trade agreements. In future negotiations, such agreements can address numerous economic issues regarding goods, services, data, investment, cryptocurrency, technology, and the movement of people. Regional agreements can also promote harmonisation on public health, environmental, and labour policies even when such harmonisation might not be achievable or even needed in multilateral fora.60 Although any regional trade agreement inherently conflicts with WTO’s nondiscrimination norms, WTO rules contain an exception for economic integration agreements that meet specific GATT and GATS requirements.61 In addition, GATS permits ‘Labour Markets Integration Agreements’.62 Although that policy space has apparently not yet been used, this provision presents a pathway to promote social justice in labour market integration.

55 To be sure, a political realist can imagine a Minilateral arrangement that discriminates against non-members notwithstanding fundamental WTO rules against trade discrimination. In other words, governments can just ignore WTO rules, as the US regularly does. 56 Y Naiki, ‘Meta-Regulation of Private Standards: The Role of Regional and International Organizations in Comparison with the WTO’ (2021) 20 World Trade Review 1, 24. 57 Arts 2.4–2.5 of the WTO Agreement on Technical Barriers to Trade (TBT). 58 Art XX(h) of GATT. 59 U Kullman, ‘“Fair Labour Standards” in International Commodity Agreements’ (1980) 14 Journal of World Trade Law 527. 60 See C Scherrer, ‘Novel Labour-related Clauses in a Trade Agreement: From NAFTA to USMCA’ (2020) 11 Global Law Journal 291. 61 See Art XXIV of GATT; Art V of GATS. 62 Art V bis of GATS.

200  Steve Charnovitz The WTO can also promote social justice by revising the WTO rules that have proven dysfunctional in the first 25 years of the WTO. One problem is that WTO rules make illegal any national subsidy that causes adverse effects on other countries even if the subsidy is designed to correct a market failure or supply a public good.63 To be sure, WTO anti-subsidy rules do not seem to be restraining governments from providing hundreds of billions of dollars in state aid to domestic commercial enterprises and industries. Nevertheless, if governments engage in conduct that WTO law prohibits, this contradiction will undermine respect for world trade law. Continued respect for the WTO is also far from assured because progress depends on the cooperation of every member government including the problematic governments of Russia, China and the US. One scenario is that the WTO would be replaced by a new organisation using the same legal legerdemain that allowed major economies in 1994 to switch out the WTO for the GATT. The WTO’s replacement could be called the Allied Trade Organization (ATO). That ATO could be based on principles entirely opposite from those of the WTO. The new principles might be: (1) omitting the WTO’s law-centric focus; (2) rejecting the MFN non-discrimination principle and replacing it with discrimination for favoured nations who share certain volitions or values; (3) excluding unpopular countries (eg Russia) from ATO membership; (4) revising decision-making from consensus to control by major economies; (5) replacing the norms of trade liberalisation and market openness with the norms of protection and nonmarket industrial policy; and (6) reframing the ATO to assist governments achieve joint public law aims (like slowing climate change) rather than to supervise nationalist trade measures.

V. Conclusion Over the past four decades, my scholarship has been predicated on a duty of optimism. This chapter makes several recommendations for how the WTO and its member governments could promote social justice and greater inclusivity in the trading system. The most important action is to restart and consummate the long-delayed Doha Development round. Such negotiations could include legal reforms in WTO law and new Minilaterals of like-minded governments that supplement the WTO. In moving forward, policymakers can draw inspiration from the speeches given at the ground-breaking for the building in Geneva that now houses the WTO and that was originally built for the ILO. At that October 1923 celebration, the speakers included many luminaries from the League of Nations and ILO. A building commemoration booklet64 published by the ILO notes that among the attendees were the delegates of the League Conference on Customs Formalities. In closing, my chapter recalls the ceremonies address by Léon Jouhaux, who was a key negotiator in 1919 for what later became known as the ILO’s constitution.65 Jouhaux 63 WTO Agreement on Subsidies and Countervailing Measures (SCM), art 5. Note that government expenditures for the public goods of ‘general infrastructure’ are exempt from the definition of a subsidy. ibid, art 1.1(iii). 64 Laying of the Foundation Stone. Speeches Made at the Ceremony on 21 October 1923 (Geneva, ILO, 1923). 65 Jouhaux served as a leading worker representative on the ILO Governing Body from 1919 until his death in 1954. He won the Nobel Peace Prize in 1951.

Reforming the WTO to Better Promote Social Justice  201 refers to the building under construction as the ‘House of Endeavour – endeavour to achieve Justice, Liberty, Right and all the best of which Humanity is capable’.66 In 2022, the GATT/WTO has endeavoured on world trade in its headquarters for decades longer than the ILO did its endeavouring in that building. Looking to the future, the WTO’s quest for ‘freer mutually beneficial trade through exchange of market access’ should be pursued by seeking the best for humanity through social justice, human freedom, and upholding natural law rights of workers, businesses, and consumers in the global economy.67

66 Laying of the Foundation Stone 18–19. 67 B Langille, ‘The Political Economy of Decency’ in GP Politakis, Tomi Kohiyama and Thomas Lieby (eds) ILO 100 Law for Social Justice (Geneva, ILO, 2019) 503–29, 521. See also WTO Preamble (referencing the ‘field of trade and economic endeavour’.

202

18 A Tale of Tripartism, a Tribunal, and Trade DESIRÉE LeCLERCQ

I. Introduction As Tagore famously expressed: ‘The sparrow is sorry for the peacock at the burden of its tail.’1 This chapter urges that the International Labour Organization (ILO) accept its unique beauty, in this case, its tripartite structure. That acceptance would enable the organisation to reclaim its international labour rights and advance social justice through an authoritative international labour tribunal. Tensions between labour and capital are unavoidable. Most industrial relations systems are predicated on negotiations between those countervailing forces through representatives of workers and employers. Governments, in turn, are responsible for regulating fair and equal processes to enable that collective bargaining. The ILO’s beauty flows from its tripartite mandate that exemplifies such synthesis. Its structure centres on negotiations between the government, employer, and worker representatives from its member States, distinguishing the ILO from international organisations that operate based on a consensus solely between governments.2 Tripartite negotiations in the ILO have enjoyed remarkable results. At the ILO’s annual International Labour Conference, its tripartite members have exposed and addressed State disobedience, galvanised technical assistance and capacity building in developing countries, saved millions of children from horrible labour conditions, removed women from forced and hazardous work, and created novel regulations governing the working and living conditions of seafarers and domestic workers, among other achievements. And yet, by anchoring its legitimacy to tripartite consensus, the ILO has invited a vulnerability unique to its institution. If one of the ILO’s tripartite constituents revolts, the organisation is rendered paralyzed – thus granting each of those actors an enormous power and strategy. The following sections tell a tale of the ILO’s tripartism. This tale begins with the ILO’s efforts to design an international labour tribunal, an initiative that the employer’s group undermined in 2012. It then describes the far-reaching effects of that failed attempt. It concludes by discussing how the ILO has watched the unravelling of its tripartite system from the sidelines. The refusal of one of its tripartite constituents – employers – has placed 1 R Tagore, Collected Poems and Plays of Rabindranath Tagore (New Delhi, Rupa Publications, 2002). 2 For details of the ILO’s tripartite processes and structures, see ILO, Rules of the Game: An Introduction to the Standards-related Work of the International Labour Organization 17 (Geneva, ILO, 2019).

204  Desirée LeClercq the interpretation, supervision, and enforcement of international labour instruments squarely within the exclusive ambit of one of its other constituents – governments. The ILO has been left waiting, helplessly but patiently, for an invitation to participate in its own system of labour standards.

II.  The Origins of a Tribunal The ILO’s supervisory system entails an intricate machinery of reporting, written dialogue, and in some instances, discussion during the International Labour Conference. Apart from one narrow and rarely invoked exception,3 the ILO’s supervisory bodies lack the binding legal authority necessary to direct governments or provide interpretations of ILO legal instruments. For nearly a century, the ILO has grappled with this lacking authority. The ILO’s early Constitution envisioned recourse to the Permanent Court of International Justice, predecessor of the International Court of Justice (ICJ), for matters of interpretation. It was silent concerning an in-house adjudicative body. In 1946, the ILO Conference considered amendments that would, in addition to referral to the ICJ, empower the ILO’s Governing Body to establish ‘a tribunal for the expeditious settlement of any dispute or question relating to the interpretation of a Convention …’.4 That new provision, now codified as Article 37(2) of the ILO Constitution, reads as follows: Notwithstanding the provisions of paragraph 1 of this article the Governing Body may make and submit to the Conference for approval rules providing for the appointment of a tribunal for the expeditious determination of any dispute or question relating to the interpretation of a Convention which may be referred thereto by the Governing Body or in accordance with the terms of the Convention. Any applicable judgement or advisory opinion of the International Court of Justice shall be binding upon any tribunal established in virtue of this paragraph. Any award made by such a tribunal shall be circulated to the Members of the Organization and any observations which they may make thereon shall be brought before the Conference.

Despite establishing the basis for such a mechanism, the ILO’s members were in no rush to launch their new tribunal. That impetus would arise in fits and starts over the next eighty years, each effort unsuccessful.5 In the meantime, the ILO’s interpretation and application of its labour conventions rested with its supervisory bodies and its Office, which provided ‘non-authoritative … opinions or clarifications’ when requested by the ILO’s members.6 In 2007, the ILO’s workers’ group requested that the Governing Body consider establishing the tribunal.7 The following year, the ILO’s employers’ group expressed its support of an

3 For a discussion of the instance in which the ILO’s Governing Body invoked art 33 of its Constitution, see B Langille, ‘The Curious incident of the ILO, Myanmar and Forced Labour,’ in A Blackett and A Trebilcock (eds), Research Handbook on Transnational Labour Law (Cheltenham, Edward Elgar Publishing, 2015) 509–522. 4 ILO, XXVII Official Bulletin (1945) 454. 5 Interpretation of International Labour Conventions: Non-paper prepared by the International Labour Standards Department in consultation with the Office of the Legal Advisor for the consultation process launched by the Governing Body at its 306th Session (Geneva, ILO, November 2009) 5 (para 7). 6 ibid, 24. 7 ILO GB. 306/10/2 (Rev), para 44(a); Interpretation of International Labour Conventions: Non-paper prepared by the International Labour Standards Department in consultation with the Office of the Legal Advisor for the consultation process launched by the Governing Body at its 306th Session (Geneva, ILO, November 2009) 2 (para 2) [hereinafter, ‘Non-Paper’]; ILO GB.298/9 (Rev), para 69 (Geneva, ILO, March 2007).

A Tale of Tripartism, a Tribunal, and Trade  205 ILO study that would ‘address applicable methods for the interpretation of ILO Conventions and be practical by adopting a users’ perspective’.8 However, the group couched that support in its expressed criticisms of the ILO’s current interpretive procedures and allegations of prolonged and ‘arbitrary use of various procedures’ across supervisory bodies.9 The discussions around a tribunal were thus linked to discussions around ‘a better application and supervision of standards’10 and the ‘methods of interpretation’ used by the ILO’s supervisory bodies.11 In 2010, the ILO Secretariat distributed a non-paper that outlined the various ways in which ILO conventions were interpreted both inside and outside the ILO.12 Concerning the latter, the paper referred to the ‘broad variety of jurisdictions’ mandated to apply and interpret national laws that ‘give effect to international labour standards’.13 A wide array of trade agreements incorporated specific ILO instruments ‘without the Organization being able to ascertain the meaning or the relevance of its own mandate’.14 According to the non-paper, an authoritative tribunal would complete the ILO’s supervisory machinery. It would ‘offer an open procedure of an adversarial nature’ that would be ‘accessible to both governments and employers’ and workers’ organisations …’.15 That mechanism would also enable the ILO to ‘respond to the rise in references in international labour standards in bilateral, regional and multilateral agreements through authoritative interpretations of its Conventions’.16

III.  The Tribunal’s Details Drawing inspiration from other international tribunals, the ILO Director-General circulated a proposed Statute setting out the details of the potential tribunal.17 Geographically, the tribunal would have been housed at the International Labour Office headquarters in Geneva, Switzerland, to ‘minimise operation costs and facilitate the protection of the tribunal’s status and necessary immunities …’.18 Substantively, the tribunal would have considered the ‘special features of International Labour Conventions, in particular the unique role of employers’ and workers’ organisations in the adoption process.’19 The tribunal’s composition would have aligned with ‘common requirements found in the statutes of other international courts and tribunals’.20 It would have consisted of 12 judges, each appointed for a six-year term, to serve on individual panels of three or five judges.21

8 GB.303/12, para 106 (Geneva, ILO, November 2008). 9 ibid. 10 GB.302/9/2, para 10 (Geneva, ILO, June 2008). 11 GB.306/10/2 (Rev), para 14 (Geneva, ILO, November 2009). 12 Non-paper, above n 7, 26–27. 13 ibid, 26. 14 ibid, 28 (quoting ILC, 96th Sess., 2007, Report V, Strengthening the ILO’s Capacity to Assist its Members’ Efforts to Reach Its Objectives in the Context of Globalization, Ch 4, para 97 (Geneva, ILO, June 2007). 15 ibid, 30–31. 16 ibid, 31. 17 ILO, Governing Body, GB.322/INS/5 (Geneva, November 2014). 18 ibid, para 54. 19 ibid, para 57. 20 Ibid, para 58. 21 ibid, paras 59–60; 62.

206  Desirée LeClercq The Governing Body officers representing workers, employers, and governments would have participated in the nomination process to ensure that the judges would enjoy ‘the confidence of the three groups’.22 Those officers would have selected judges based on the judges’ ‘high moral character and competence’, ‘sufficient professional qualifications’, ‘adequate competence on the subject matter’ and ‘fluency in one of the official languages of the tribunal (English, French, and Spanish) …’.23 Finally, the composition would have reflected a gender, nationality, legal system, and geographical distribution balance.24 The tribunal’s proposed procedure, according to the document, would have combined ‘the need to ensure tripartite access to the tribunal and the objectives of expeditious settlement and reasonable cost’.25 The ILO’s tripartite Governing Body would have had sole authority and discretion to refer a question or dispute to the tribunal concerning receivability.26 The tribunal’s proceedings would have been carried out with ‘full tripartite participation’ by including ‘participation rights’ to government, employer and worker members of the Governing Body.27 Where the tribunal proceeded over broad questions or disputes, other groups of workers and employers – such as those in specific sectors – could have also participated.28 The Governing Body could have invited international organisations that had ‘an interest in the matter referred to the tribunal’.29 Finally, international intergovernmental and non-governmental organisations, including employers’ and workers’ organisations with any interest in the matter, would also have had the right to ‘submit a request to the tribunal to participate in the proceedings’.30 A central concern about establishing an international tribunal was whether cases could be resolved in less than one year. To that end, the proposed Statute would have imposed a six-month timeline ‘from the date the Governing Body submits a formal request for interpretation to the date the tribunal delivers its award’.31 After having been notified, all interested parties would have had a default of 45 days to submit written statements, to be made available to the public,32 and participants would have had 30 days to comment on submissions.33 Particularly for adversarial cases, the tribunal would have ‘offer[ed] the possibility of holding hearings’ over a ‘default time frame of five days’.34 Those hearings would, in principle, have been open to the public.35 Once presiding over a hearing, the five-member panel would have required a threemember quorum.36 The majority’s awards ‘would be binding which means that they would be opposable to all, only subject to any relevant judgment or advisory opinion of the 22 ibid, para 66. 23 ibid, para 58. 24 ibid, para 61. 25 ibid, para 79. 26 ibid, para 81. 27 ibid, para 84. 28 ibid. 29 ibid. 30 ibid, para 85. 31 ibid, para 87. 32 ibid, para 92 (noting that the tribunal could decide to keep the submissions confidential if circumstances warranted). 33 ibid. 34 ibid, para 93. 35 ibid (noting that the tribunal could decide to close the hearings to the public if circumstances warranted). 36 ibid, para 95.

A Tale of Tripartism, a Tribunal, and Trade  207 International Court of Justice.’37 The award would have been circulated to all ILO members and discussed at the International Labour Conference, thus enabling governments to ‘provide their views’ and consider potential follow-up action.38 The Statute did not provide a right to appeal because appeals were deemed ‘counter to the expeditious settlement of a question or dispute’.39 The ILO’s detailed proposed Statute reveals how close the organisation had come to establishing a tribunal capable of rendering authoritative and binding decisions. However, that development coincided with efforts by its employers’ group to revolt against the ILO’s system of supervision. The group’s efforts were so successful that they extinguished the momentum behind the tribunal and left the organisation stunned, timid and paralyzed due to concerns about future tripartite disruption.

IV.  The Employers’ Revolt The discussions between the ILO’s tripartite members regarding a potential tribunal revealed the vulnerabilities in its tripartite process. Throughout those discussions, the employers’ spokespersons reiterated the group’s discontent with the ILO’s supervisory system, its methods of interpretation, and the ILO Office’s ‘grave failure’ to provide helpful information on interpretive processes.40 The group’s repeated critiques of the ILO’s supervisory system, and the culmination of those critiques into a successful strategy to dismantle the ILO’s supervisory processes in 2012, has received significant scholarly attention.41 In short, under the International Labour Conference Standing Orders, the Committee on the Application of Standards (CAS), is responsible for discussing ‘individual cases relating to the measures taken by Members to give effect to the Conventions to which they are parties’.42 That list is decided ‘after the Employers’ and Workers’ groups have met to discuss and adopt it’.43 In addition to the tripartite CAS, the ILO has a Committee of Experts on the Application of Conventions and Recommendations (CEACR), which is composed of 20 international labour jurists from around the world. The CEACR makes observations on the implementation of ratified conventions (under Article 22 of the Constitution) and drafts general surveys describing the extent to which effect is given to various international labour standards in law and practice and identifying obstacles to ratification (under Article 19 of the Constitution). In 2012, just before the workers’ and employers’ groups began their consultations over the list of cases in the CAS, the CEACR presented its most recent General Survey on the

37 ibid, para 96. 38 ibid, para 97. 39 ibid, para 98. 40 ILO, Governing Body, 306th Sess, GB.306/10/2 (Rev), para 15 (Geneva, November 2009). 41 See, eg, F Maupain, ‘A Second Century for What?’ (2013) 17 International Organizations Law Review 291, 309–310; C La Hovary, ‘Showdown at the ILO? A Historical Perspective on the Employers’ Group’s 2012 Challenge to the Right to Strike’ (2013) 42 Industrial Labour Journal 338; J Bellace, ‘The ILO and the Right to Strike’ (2014) 153 International Labour Review 29–70. 42 Standing Orders of the International Labour Conference (as amended), art. 10(1)(b) (Geneva, ILO, 2006). 43 See, eg, Int’l Lab. Conf., 105th Sess., Committee on the Application of Standards (Geneva, ILO, June 2016), 5 (describing the procedure for the list of cases).

208  Desirée LeClercq eight ILO fundamental conventions. The employers’ group objected that the General Survey was ‘fundamentally unacceptable’ because it characterised the right to strike as the ‘necessary corollary’ of an ILO convention despite the convention’s silence on the matter. The General Survey, they argued, ‘was not agreed or authoritative text of the ILO tripartite constituents’ and erroneously gave the impression to those ‘[o]utside of the ILO’ that it represented ‘the position of the ILO, which [it does] not’.44 Citing that offence, the employers’ group walked out of the CAS, refused to agree on a list of cases and effectively shut down case discussions.45 The purported dispute over the right to strike was symbolic.46 The Employers’ more fundamental, foundational objection was that the CEACR’s alleged interpretive creep impacted legal systems outside the ILO. In that connection, the group noted that the ILO’s conventions were incorporated into ‘many international processes and instruments …’ and worried that the CEACR’s interpretive reasoning would ‘materially influence []’ tripartite credibility.47 The failure of the 2012 CAS proceedings demonstrates the weight of the ILO’s tripartism. One of the three groups may weaponise the tripartite procedures for strategic purposes. Since 2012, the employer’s group has continued to object to the CEACR’s supervision, employers’ and workers’ groups have stopped working together amicably and the CEACR has disavowed its own authorities in subsequent General Survey reports.48 The failure of the ILO’s tripartism has had salient implications for much of the organisation’s functioning. In the words of ILO Director-General Guy Ryder, the organisation seems to have ‘frozen’, waiting to see if tripartite conflict will ‘flare up again’.49 The ILO’s Governing Body most recently addressed the tribunal at its March 2022 session.50 Rather than resolve the matter, it decided to yet again postpone the discussion within the ominous context of ‘strengthening the supervisory system …’.51 In the meantime, the ILO has left a void in the interpretation of international labour standards. 44 ILO, Report of the Committee on the Application of Standards: General Report, Rec. of Proc. No. 19/Part 1, ILC, 101st Sess. (Geneva, ILO, June 2012), para 145. 45 ILO, Report of the Committee on the Application of Standards: General Report, Rec. of Proc. No. 19/Part 1, ILC, 101st Sess. (Geneva, ILO, June 2012), para 195. 46 Some scholars have noted that the employers’ group had not seized the opportunity to object to the ILO’s supervisory bodies’ interpretation in other instances, despite the ILO’s longstanding view that its conventions enshrined the right to strike. For a detailed description of this historical interpretation, see Bellace, above n 41, at 47–53. But see C La Hovary, ‘The ILO’s supervisory bodies’ soft law jurisprudence’ in A Blackett and A Trebilcock (eds), Research Handbook on Transnational Labour Law (Cheltenham, Edward Elgar Publishing, 2015) 316 (arguing that the ‘Employers had been developing their arguments against the interpretations of the [ILO’s supervisory committee] and the content of the right to strike for quite some time – since 1989 to be exact …’). 47 ILO, Report of the Committee on the Application of Standards: General Report, Rec. of Proc No 19/Part 1, ILC, 101st Sess, para 82 (Geneva, ILO, June 2012). 48 See, eg, ILO, Report of the Committee on the Application of Standards: General Survey concerning Labour Relations and Collective Bargaining in the Public Service, International Labour Conference, 102nd Sess, para 6 (Geneva, ILO, June 2013) (‘The Committee’s opinions and recommendations are not binding within the ILO supervisory process and are not binding outside the ILO unless an international instrument expressly establishes them as such or the supreme court of a country so decides of its own volition.’). 49 G Ryder, ‘I never looked for this job and I don’t think I am going to miss it,’ interview by I Andersen, Arbetet (16 December 2021). Available at: www.arbetet.se/2021/12/16/i-never-looked-for-this-job-and-i-dont-think-i-a m-going-to-miss-it/. 50 ILO, Governing Body, 344th Sess., GB.344/INS/5, Work Plan on the Strengthening of the Supervisory System: Proposals on Further Steps to Ensure Legal Certainty and Information on Other Action Points in the Work Plan (Geneva, 17 February 2022). 51 ILO, Governing Body, 344th Sess, GB.344/INS/5, Decision (Geneva, 28 March 2022).

A Tale of Tripartism, a Tribunal, and Trade  209 Lacking binding interpretations, States are increasingly incorporating and interpreting the ILO’s international labour standards under their international economic instruments. The resulting legal pluralism, disparate enforcement, and questionable invocation of the ILO’s labour standards in the trade context, which are discussed below, could have been avoided. Those results may still be avoided, but only if the ILO embraces the vulnerabilities inherent in its tripartism and continues to act boldly notwithstanding.

V.  The ILO’s Labour Standards without the ILO As noted, the ILO’s international labour standards increasingly appear in extra-ILO instruments. Relevant to this chapter is the proliferation of bilateral, multilateral, and regional trade agreements, the vast majority of which now expressly incorporate the ILO’s instruments and labour standards. Specifically, trade agreements are increasingly using the ILO’s 1998 Declaration on Fundamental Rights and Principles (‘1998 Declaration’) to form the basis of the labour-rights commitments. The 1998 Declaration is to some a legally sophisticated construct, while to others it is an opaque and confusing document.52 It is non-binding yet commits all ILO members to constitutionally binding norms as well as the principles concerning the fundamental rights which are the subject of [the fundamental] Conventions …’.53 While many observers have laudably debated the clause, its meaning remains uncertain. Nevertheless, that vagueness enables countries like the United States, which have not ratified the majority of the ILO’s fundamental conventions, to benefit from the ILO’s neutrality and legitimacy by incorporating the fundamental labour rights contained in the 1998 Declaration. It also allows non-ratifying countries to shape and define the contours of the ILO’s fundamental labour rights, particularly in the absence of any link to the ILO’s supervisory processes. Under their trade agreements, States do not direct their questions or disputes concerning the interpretation of the 1998 Declaration and conventions to the ILO. Instead, arbitral panelists chosen by the trade parties decide those matters. To date, only two disputes have arisen – one between the United States and Guatemala54 and the other between the European Union and the Republic of Korea.55 The two decisions expose wildly different interpretations of the ILO’s processes, the importance of incorporating ILO text in trade agreements, and the labour commitments of the various parties. The ILO has not, through any of its committees or bodies, offered to weigh in.56

52 I fall into the latter camp. See generally J Agusti-Panareda, F Ebert, and D LeClercq, ‘ILO Labor Standards and Trade Agreements: A Case for Consistency’ (2015) 36 Comparative Labour Law & Policy Journal 347. 53 ILO, ILO Declaration on Fundamental Principles and Rights at Work and its Follow–up (Geneva, ILO, 1998). 54 In the Matter of Guatemala – Issues Relating to the Obligation Under Art. 16.2.1(a) of the CAFTA-DR, Final Report of the Panel (14 June 2017). 55 Panel of Experts Proceeding Constituted under Art. 13.15 of the EU-Korea Free Trade Agreement, Report of the Panel of Experts (20 January 2021). 56 See D LeClercq, ‘Fit for Whose Purpose?: How Panelists Interpret Labor Rights in Trade, and What That Tells Us about the Trade/Labor Relationship’ in International Economic Law & Policy Blog (2 January 2022).

210  Desirée LeClercq Meanwhile, governments have been imposing or threatening to impose economic sanctions on other governments and in foreign factories in the name of ILO labour rights enforcement. The United States has been a key actor in this respect. Under the United States–Mexico–Canada Agreement (USMCA), the United States established a targeted enforcement mechanism entitled the ‘Factory-Specific Rapid Response Labour Mechanism’ (RRLM). The RRLM authorises the United States to suspend trade benefits for individual factories in Mexico for failing to satisfy the rights under the ILO’s Declaration. Within months, the Biden administration launched two enforcement actions under the RRLM against Mexican factories for interfering with employees’ free choice during union and certification elections.57 That the ILO’s supervisory bodies have expressed concern with similar interference during union elections in the United States did not deter that enforcement. On the one hand, labour advocates have supported incorporating ILO rights and standards in trade agreements because they believe that the threat of economic sanctions supplements the ILO’s non-binding supervisory authorities. On the other hand, some have noted concern with the double standards exhibited by governments that aggressively enforce ILO standards that those governments, themselves, fail to protect at home.58 The ILO’s tripartite structure has a significant role to play in trade. It protects against unilateral government action by requiring dialogue between governments, workers, and employers. The ILO’s concession to States’ appropriations of its name, values, and instruments in their profit-seeking agreements has enabled an unfair and inequitable trade platform. At the time of writing, the ILO cannot even weigh in on emerging trade and labour discussions at the World Trade Organization (WTO) – it is one of the few international organisations that does not enjoy observer status there. While the ILO waits, frozen in tripartite deadlock, governments have taken ownership of its standards by interpreting and applying them in other countries based on State priorities. For example, in 2019, the US goods trade deficit with Thailand amounted to approximately $20 billion.59 That year, President Trump’s Office of the US Trade Representative (USTR) announced that it was suspending $1.3 billion in trade preferences under its Generalized System of Preferences (GSP) for Thailand based on the country’s ‘failure to adequately provide internationally-recognised worker rights’.60 More concretely, USTR cited Thailand’s failure to afford freedom of association and collective bargaining rights to workers in the seafood and shipping industries.61 Let us assume that the Trump administration legitimately sought to improve working conditions for workers in the seafood industry in Thailand. If that were the case, USTR could achieve its objective by suspending the trade benefits reaped by Thai firms that contravened fundamental labour rights stipulated in the agreement. Which is what USTR did.

57 D LeClercq, ‘Biden’s Worker-Centered Trade Policy: Whose Workers?’ in International Economic Law & Policy Blog (16 May 2021). Available at: www.ielp.worldtradelaw.net/2021/05/bidens-worker-centered-trade-policywhose-workers.html. 58 See, eg, D LeClercq, ‘The Disparate Treatment of Rights in U.S. Trade’ (2021) 90 Fordham Law Review 1, 3–10. 59 Office of the US Trade Representative, ‘Thailand’, (n.d.), ustr.gov/countries-regions/southeast-asia-pacific/ thailand. 60 Office of the US Trade Representative, ‘USTR Announces GSP Enforcement Actions and Successes for Seven Countries’ (25 October 2019). Available at: ustr.gov/about-us/policy-offices/press-office/press-releases/2019/ october/ustr-announces-gsp-enforcement. 61 ibid.

A Tale of Tripartism, a Tribunal, and Trade  211 Now let us assume that the Trump administration sought to reduce the trade deficit and illegitimately protect the United States (US) seafood industry by eliminating foreign competition. If that were the case, USTR could have suspended the trade benefits reaped by Thai firms by citing the fundamental labour rights stipulated in the agreement. Which, again, is what USTR did. The labour rights in trade instruments, left ubiquitous and ill-defined, grant States sufficient discretion and the means to achieve both legitimate and illegitimate ends. The ILO recently missed a critical opportunity to raise awareness of the centrality of its labour standards in trade agreements. At its March 2022 Governing Body session, the ILO’s members advanced a draft resolution to amend the 1998 Declaration to provide a new fundamental labour right concerning occupational safety and health.62 In anticipation of that decision, the ILO had distributed a paper outlining the legal effect of that decision on trade agreements.63 Rather than highlight the potential impact of ILO actions on trade commitments, the document dismissed the Declaration as a ‘non-binding Conference resolution’ whose amendments ‘would not give rise to new legal obligations – directly or indirectly – for States parties to [trade agreements]’.64 Not only did the ILO miss this critical opportunity, its advice was not entirely correct. When State parties enter into a bilateral or multilateral agreement expressly committing to the ILO’s 1998 Declaration, and those same States agree that the ILO should amend the 1998 Declaration, a dispute panel could reasonably infer that they intended their agreement to be dynamic and to evolve with the incorporated instrument.65 Rather than acknowledge that possibility, the authors haphazardly conclude that the amendment could not ‘affect the scope or content of trade agreements’ or otherwise ‘create a legal obligation for that Member State. …’66 Going even further, the ILO eventually proposed a savings clause that expressly stipulated that such an amendment could not ‘be automatically introduced into existing trade agreements without the consent of the States parties to those agreements’.67 While the drafters acknowledged that ‘saving clauses are unusual in non-binding instruments’, discussions around trade implications were ‘politically sensitive’ thus requiring ‘an unambiguous understanding’ of the rights and obligations incurred under trade instruments.68 The ILO’s members, duly persuaded, adopted the proposed resolution during the 110th Session of the International Labor Conference in June 2022.69 The ILO proved capable of satisfying political palettes. By allowing governments to avoid their new responsibilities in trade, however, the organisation also proved incapable of advancing global justice.

62 ILO, Governing Body, 344th Sess, GB.344/INS/6/Decision (Geneva, 17 March 2022). 63 ILO, Governing Body, 343rd Sess, GB.343/INS/6, paras 24–31 (Geneva, 15 October 2021). 64 ibid, para 28 (emphasis added). 65 See, generally, J Arato, ‘Subsequent Practice and Evolutive Interpretation: Techniques of Treaty Interpretation over Time and Their Diverse Consequences’ (2010) 9 The Law and Practice of International Courts and Tribunals 443, 447–450 (discussing the interpretive methods in the Costa Rica v Nicaragua ICJ judgment). 66 ILO, Governing Body, GB.343/INS/6, Proposals for Including Safe and Healthy Working Conditions in the ILO’s Framework of Fundamental Principles and Rights at Work, para 29 (Geneva, 15 October 2021). 67 ILO, Inclusion of Safe and Healthy Working Conditions in the ILO’s Framework of Fundamental Principles and Rights at Work, International Labour Conference, 110th Sess, Rep VII, para 31 (Geneva, 5 May 2022). 68 ibid, para 33. 69 See ILO, Second Report of the General Affairs Committee, Proposed Resolution Submitted to the Conference for Adoption, International Labour Conference, 110th Sess, Record of Proceedings (Geneva, 4 June 2022).

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VI.  A Future Labour Tribunal Imagine brands like Nike or Walmart passively acquiescing while other businesses profit from using their names and logos. Yet, that is exactly what the ILO is doing while States are appropriating its name, neutrality and legitimacy in their trade agreements. The ILO’s tripartite revolt cost the organisation a critical opportunity, with significant implications for social justice within trade. Consider the Thailand case again. This time, let us assume that the ILO had established a tribunal capable of rendering authoritative interpretations. Now, one might argue here the obvious: neither the US nor Thailand has ratified the ILO’s conventions on freedom of association and collective bargaining. Thus, a tribunal capable of interpreting ILO conventions would have been irrelevant. That would be correct, but merely demonstrates why future attempts to resurrect the ILO tribunal must be more ambitious – that tribunal must be mandated to render binding interpretations and awards over all the ILO’s legal instruments, including the 1998 Declaration.70 One might also argue that the ILO has no authority to sue States for refusing to use its tribunal in the same way that brands can sue for trademark infringement. That would also be correct. Nevertheless, the ILO could expressly disavow all trade agreements that attempt to use the ILO’s name and instruments without preconditioning enforcement on its tribunal’s awards within the agreements’ terms.

VII.  Tripartism’s Path to Social Justice The ILO’s tripartism grants it an unrivalled beauty in the form of balance, neutrality and legitimacy. The ILO resists that beauty and has become weighed down by internal deadlock. This section suggests a way forward in the pursuit of social justice. Trade agreements are evolving. States are increasingly using those agreements to regulate social rights including workers’ rights. They are inventing new models of trade agreements and are raising labour issues in their WTO trade discussions. The USMCA RRM factory-level enforcement mechanism has garnered significant acclaim, and the Biden administration has suggested that a model of the RRM may be included in all future US trade agreements. An ILO tribunal could ensure a fair-trade regime and it is uniquely poised to enter the fray. Compared to the WTO’s internal battles, which have stagnated over State-centric power struggles, the ILO’s tripartite structure shows its superior colours. Whereas the WTO’s members resist substituting sovereignty with international rules, the ILO’s employers and workers also get a vote. Rather than shrink before that tripartism, the ILO must lean into it. For various reasons, all three of the ILO’s tripartite constituents have a vested interest in equipping the ILO with an authoritative tribunal capable of deciding labour disputes.

70 The tribunal would not be the ILO’s first complaint procedure mandated to decide on matters emanating from the ILO’s Constitution. Its Committee on Freedom of Association – albeit a non-binding authority – hears complaints of alleged violation of the principles of freedom of association based on the Constitution and not the conventions. See Maupain, above n 41, 316.

A Tale of Tripartism, a Tribunal, and Trade  213 Developing governments have an apparent interest: they want to protect their domestic industries from potentially illegitimate enforcement actions by developed countries as disguised protectionism. The issue for developed governments is less obvious. On the one hand, those governments want to preserve their regulatory space, particularly on social standards and domestic policies. On the other hand, those governments also want to demonstrate that their trade actions are legitimately tied to improving international labour rights. While some governments may ultimately resist limitations on their sovereignty at the ILO as they do at the WTO, the ILO’s tripartite machinery allows the workers’ and employers’ groups to outmuscle them. The ILO’s workers’ group has an interest in ensuring that trade is aligned with international labour protections that ensure fairness and equal representation. An ad hoc system of labour enforcement threatens to undervalue labour rights in some countries and during some administrations and overvalue those rights in others, to the detriment of predictability and legal certainty. The ILO’s employers’ group may have the greatest interest of all. They have the most to lose if powerful States continue to aggressively enforce trade agreements against weaker States’ factories, as suggested by the USMCA’s trajectory. Under the USMCA enforcement actions noted earlier, Mexican employers had to agree to US-authored rectification plans committing to prescriptive election procedures under threat of withdrawal of trade benefits. Unlike in most national enforcement proceedings, employers under these trade enforcement proceedings are not guaranteed due process. The petition against one of the Mexican factories, for example, was a paltry two pages. USTR and the US Department of Labour nevertheless deemed the petition sufficient to launch enforcement action – a decision made behind closed doors and without opportunity for appeal. Moreover, given the complexities of supply chain production, it is equally likely to assume that these enforcement actions, albeit restricted to factories in developing countries thus far, will nevertheless impact the production chains of lead firms in developed countries. The ILO’s tripartism will have a significant role in achieving social justice if the ILO lets it. Rather than crumple under the weight of its tripartite tail, the ILO must embrace the lessons of its past and renew its efforts. Maybe, like the peacock, the ILO will never achieve some feats. But the possibilities before it will advance social justice, as long as the organisation seizes them.

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III.  The Potential of Regional Systems

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19 Achieving Social Justice Through Investor-related Labour Obligations? Brief Insights from the African Investment Treaty Practice MAKANE MOÏSE MBENGUE

I. Introduction It was my opportunity and privilege to meet Francis Maupain in 2000 when I was ­interning and then working as an external collaborator at ILO headquarters in Geneva. Maupain, thanks to his intellectual generosity, was among the first who taught me what is to be an international lawyer in the international institutional system and to acquaint me with the interaction between social justice and globalisation. I had the immense pleasure to assist him in reviewing his seminal course at The Hague Academy of International Law on ‘L’OIT, la justice sociale et la mondialisation’.1 When I became later an expert in investment negotiations, mainly for African countries, I was always inspired by Maupain’s pioneer conceptualisation of the need to integrate social concerns in international economic agreements. The following developments are a testimony of how African investment agreements evolved towards making his views a reality. In 2004, the World Commission on the Social Dimension of Globalisation stressed the need to adapt corporate governance to labour standards. Trade union leaders in industrialised countries had expressed their dissatisfaction with corporate governance. They complained, in particular, about the fact that globalisation encouraged employers to play ‘fast and loose with labour practices’;2 they also opposed the approach of many corporations which perceived voluntary corporate social responsibility (CSR) simply as ‘an attempt at a public relations repair job’,3 without any real positive impact on corporate responsibility or sustainability.

1 Francis Maupain, L’OIT, la justice sociale et la mondialisation, Recueil des cours de l’Académie de droit ­international de La Haye, vol 278, 1999, pp 199–396. 2 A Fair Globalization: Creating Opportunities for All, Report of the World Commission on the Social Dimension of Globalization, ILO, 2004, p 21, para 122. 3 Ibid.

218  Makane Moïse Mbengue Fifteen years later, Maupain called upon the International Labour Organization (ILO) to wake up from its ‘regulatory slumber’, as the exponential increase in voluntary corporate social responsibility had, in his view, the perverse effect of exempting States from their responsibility to promote legislation for the benefit of all workers, including those who are supposed to benefit from social responsibility commitments.4 In this context, the ILO could envisage encouraging States to reform their international investment agreements (IIAs) in such a way to ensure that corporations – which are engaged in cross-border investment flows – better comply with international labour law (ILL). The jurisprudence of investment tribunals has already revealed that States can adopt policies vis-à-vis foreign investors in order to foster compliance with ILL by resorting to measures as diverse as increasing minimum wages,5 managing labour strikes6 or requiring labour-related local content,7 without any risk of infringing the current generation of IIAs or investment contracts. However, more can be done than conditioning the future of ILL in the context of foreign investment on the bon vouloir (goodwill) of investment arbitral tribunals. The current reform of the international investment regime provides an opportunity to States which are States parties to ILO Conventions to implement ILL by integrating international labour standards more effectively into IIAs. This would be in line with the object and purpose of the 2008 ILO Declaration on Social Justice for a Fair Globalisation. The integration of ILL (especially the core labour rights contained in the ILO 1998 Declaration on Fundamental Principles and Rights at Work, as amended in 2022) in IIAs would represent, indeed, an important contribution to social justice by allowing States to address the negative impacts of globalisation through the design and formulation of more stringent State obligations in respect of labour as well as of a new generation of investor-related labour obligations. A review of current international investment law-making reveals that African countries have been very innovative in this regard and are pioneer rule-makers when it comes to the incorporation of ILL obligations in IIAs.

II.  ‘We Insist!’:8 Towards More Stringent Due Diligence Obligations for States under African IIAs in Relation to ILL African IIAs (in particular, regional investment agreements adopted by Regional Economic Communities in Africa and intra-African Bilateral investment treaties (BITs)) show promising trends in terms of subjecting States to more stringent or hard law obligations with respect to labour protection. Most of the time, IIAs would – when they contemplate 4 Francis Maupain, ‘Entre marginalisation et réinvention: l’OIT et son action normative face à la mondialisation et à la remise en cause du multilatéralisme,‘ in GP Politakis, T Kohiyama and T Lieby (eds), ILO100: Law for Social Justice (Geneva, ILO, 2019) 981–1006, 991. 5 The Award is not public. See www.iareporter.com/articles/egyptian-official-confirms-victory-in-veolia-caseat-icsid-as-company-remains-silent. 6 Noble Ventures, Inc v Romania, ICSID Case No ARB/01/11, Award, 12 October 2005. 7 Sergei Paushok v Government of Mongolia, UNCITRAL, Award on Jurisdiction and Liability, 28 April 2011. 8 The title is inspired by the jazz album of Max Roach, We Insist!, Candid, 1961.

Achieving Social Justice Through Investor-related Labour Obligations?  219 regulating labour – limit themselves to subjecting State conduct in the field of foreign investment to a principle of non-regression in relation to labour. In other words, they would require States not to waive labour standards to facilitate investment retention and expansion on their territories or to act in ‘a manner that weakens or reduces adherence to the internationally recognised labour rights’.9 Recently, a number of African IIAs have gone further and now impose more proactive duties of due diligence on States with the aim of guaranteeing the effectiveness of labour standards and ILL in the operation of investments within their territories. For instance, the 2018 Economic Community of West African States (ECOWAS) Common Investment Code (ECOWIC) recognises in its preamble ‘[…] the essential role that both domestic and foreign private investment when accompanied by appropriate environmental and labour policies, can play in the sustainable development of the Parties, including in reducing poverty, increasing productive capacity, furthering growth, creating jobs, expanding trade, improving technology and transfer of technology, furthering human rights and human development and enhancing economic development’. The need for ‘appropriate labour policies’ departs from the customary understanding of due diligence – i.e. an obligation of means or of conduct – and implies a veritable obligation of result upon ECOWAS Member States in the field of labour. The ECOWIC is one the rare investment legal instrument in the constellation of IIAs that specifically defines the precise type and content of labour legislation that ECOWAS Member States are to have in relation to investments. According to Article 1 (j) of the ECOWIC: ‘Labour legislation’ means legislation, or provisions thereof, that are directly related to the following internationally recognised labour rights: (i) (ii) (iii) (iv)

the right of association; the right to organise and bargain collectively; prohibition on the use of any form of forced or compulsory labour; minimum age for the employment of children;

acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health.

In the framework of the ECOWIC, such precise scope and terms in regulating labour ­legislation has as its specific object and purpose ensuring compliance by ECOWAS Member States with Article 30 of ECOWIC (‘Labour and Employment Standards’) which reads as follows: (1) Member States recognise that it is inappropriate to encourage investment by relaxing domestic labour legislation. Accordingly, each Member State shall ensure that it does not waive or derogate from such legislation as an encouragement for the establishment, maintenance or expansion of an investment in its territory. (2) Member States shall ensure that national laws and regulations provide for high levels of labour and human rights protection appropriate to its economic and social situation provided that the key principles of the Common Investment Code are not sacrificed in the process.

The ECOWIC also innovates by requiring a certain level of cooperation between ECOWAS Member States – in particular those that are host states of investments – and investors.

9 As

an example, see the Central America-Dominican Republic Free Trade Agreement, art 16.2.2.

220  Makane Moïse Mbengue This is another peculiarity of African IIAs which emphasise the importance or even, perhaps, the necessity of investment cooperation between States and foreign investments in the realisation of labour rights and standards and the implementation of ILL in its core fundamental principles. Article 30(3) of the ECOWIC serves as a legal basis for such a novel cooperation under IIAs: Member States shall in consultation with investors design employment schemes in accordance with existing ECOWAS Social Security and Labour/Employment Policy, in particular to: (i) conform to government policies designed to extend equality of opportunity and treatment, including on wages, benefits and conditions of work; (ii) observe freely negotiated obligations concerning employment stability and social security in conjunction with the trade unions or other representatives of employees; (iii) not discriminate on the basis of race, colour, sex, religion, language, social, national and ethnic origin or political or other opinion; (iv) maintain the highest standards of health, risks and safety in the workplace; (v) apply the relevant and or to establish industrial dispute resolution mechanisms that provide due process and appropriate procedure to employers and workers, in conformity with domestic laws and policies; (vi) not use child labour and to support efforts for the elimination of all forms of child labour including forced or compulsory labour within the Community; (vii) make every effort to mitigate to the greatest possible extent every adverse effect of any purported investments changes on employees and the economy in the Member State.

In this regard, investors shall take the following steps: (i) consult with host country authorities and national employers’ and workers’ organisations in order to keep manpower plans in harmony with national social development policies, making optimal use of labour available locally and within the Community to provide substantial employment or reduce unemployment; (ii) give priority to the employment and promotion of host country nationals; use technologies which generate employment; and (iii) promote, within relevant regulatory regimes and provisions in Member States, ­employment in the Community by entering into supply contracts with local enterprises and by prioritising the use and the processing of local raw materials. This type of obligation applicable to both foreign investors and States affords a better guarantee that States will exercise their due diligence vis-à-vis investors in relation to labour protection and standards. These are labelled ‘horizontal obligations’ in the context of IIAs and reflect an African exception in the field of international investment law. The 2016 Pan-African Investment Code (PAIC), adopted in the context of the African Union, has paved the way for such a practice and serves as a model in Africa in relation to labour issues. Indeed, Article 34 of the PAIC (‘Labour Issues’) provides as follows: 1. Member States shall not encourage investment by relaxing domestic labour legislation. Accordingly, each Member State shall ensure that it does not waive or derogate from such legislation as an encouragement for the establishment, maintenance or expansion of an investment in its territory. 2. In this regard, investors may: (i) consult with the host State authorities and national employers’ and workers’ organisations in order to keep manpower plans in harmony with national social development

Achieving Social Justice Through Investor-related Labour Obligations?  221 policies, making optimal use of labour available locally and within the sub region to provide substantial employment or reduce unemployment; (ii) ensure the employment and promotion of the host State nationals; (iii) use technologies that specifically generate employment; and (iv) promote employment in the Member States by entering into supply contracts with local enterprises and by prioritising, to the full extent possible, the use and processing of local raw materials. 3.

Investors shall comply with international conventions and existing labour policies and, in particular, not use child labour and shall support efforts for the elimination of all sorts of child labour, including forced or compulsory labour within Member States.

Despite these significant trends in African IIAs, the integration of ILL in IIAs should not be limited only to State obligations. Directing subjecting foreign investors to specific and auton­omous labour obligations would ensure per se that IIAs truly contribute to social justice. Soft law provisions in IIAs that simply encourage investors to voluntarily incorporate internationally recognised standards of corporate social responsibility (such as those embodied in the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, the Organisation for Economic Co-operation and Development (OECD) Guidelines on Multinational Enterprises and the United Nations Principles on Business and Human Rights) in the framing and operation of their investments are insufficient and ineffective in driving sustainable investment that is in line with core labour standards.10 This is the case, for instance, of Article 14 of the 2016 Colombia-Canada BIT, which limits itself to say: Each Party should encourage enterprises operating within its territory or subject to its jurisdiction to voluntarily incorporate internationally recognised standards of corporate social responsibility in their practices and internal policies, such as statements of principle that have been endorsed or are supported by the Parties. These principles address issues such as labour, the environment, human rights, community relations and anti-corruption. The Parties should remind those enterprises of the importance of incorporating such corporate social responsibility standards in their internal policies.

Investment jurisprudence has, although on very limited occasions, already admitted that the misconduct of the investor vis-à-vis core labour rights, notably those contained in the 1998 ILO Declaration on Fundamental Principles and Rights at Work, could affect the legality of an investment. The Phoenix tribunal, for instance, considered that ICSID protection should not ‘be granted to investments made in violation of the most fundamental rules of protection of human rights, like investments made in pursuance of torture or genocide or in support of slavery or trafficking of human organs’.11 Nevertheless, once again, the fate of ILL cannot be subject to free riding by investment arbitral tribunals. The Hassan Awdi case is revealing at that level. Romania, the respondent in that investment case, argued that under the preamble of the treaty in question, ‘the intention of the States Parties to the BIT was indeed to exclude from its protection investors who invested and operated their

10 Jean-Michel Marcoux, ‘Informal Instruments to Impose Human Rights Obligations on Foreign Investors: An Emerging Practice of Legality?’ (2021) 34 Leiden Journal of International Law 109. 11 Phoenix Action, LTD v The Czech Republic, ICSID Case No ARB/06/5, Award, 15 April 2009, para 78.

222  Makane Moïse Mbengue investments in bad faith or with the deliberate intent of breaching international workers’ rights’12 since the preamble made reference to the contribution to the well-being of workers and promotion of the respect for internationally recognised worker rights. The tribunal did not retain this argument as a ground of inadmissibility of the claim brought before ICSID by the claimant investor, however. The so-called Bangladesh arbitrations, which have been unfortunately discontinued (by voluntary settlement), could have provided unique momentum to address investor-related labour obligations specifically.13 Even those these were not investor-state arbitrations per se, but rather contract-based arbitrations between trade unions and groups of employers, they emphasised the need to identify new legal responses and solutions to the negative impacts of investment activities on labour rights, and demonstrated that ‘business as usual’ was not viable in the matter of corporate social responsibility.14 In international investment law, this need for a paradigm shift that would permit the imposition of direct hard law obligations on investors in order to prevent adverse impacts of their investments on labour rights is also emerging mainly in the African investment-treaty practice to an extent that one could speak of another African exception at this level.

III.  ‘Inner Urge’:15 Africa as a Laboratory for the Fabric of Direct Investor-related Labour Obligations The trend consisting in formulating direct investor obligations in relation to labour was set in Africa by the ECOWAS Supplementary Act on Investments (2008) which provided, in relation to ‘pre-establishment obligations,’ that ‘Investors and Investments shall conduct an environmental and social impact assessment of the potential investment’.16 In its ordinary meaning, a social impact assessment can include an assessment of the impact(s) of an investment on core labour rights. With respect to ‘post-establishment obligations’ the ECOWAS Supplementary Act went even further and adopted strong ILL language in the context of foreign investment. Indeed, Article 14 reads as follows: (1) Investors or investments shall, in keeping with best practice requirements relating to their activities and the size of their investments, strive to comply with hygiene, security, health and social welfare rules in force in the host country. (2) Investors shall uphold human rights in the workplace and the community in which they are located. Investors shall not undertake, or cause to be undertaken, acts that

12 Hassan Awdi, Enterprise Business Consultants, Inc. and Alfa El Corporation v Romania, ICSID Case No ARB/10/13, Award, 2 March, 2015, para 145. 13 PCA Case No 2016-36 and PCA Case No 2016-37 in the matter of Arbitration commenced pursuant to the Accord on Fire and Building Safety in Bangladesh and the United Nations Commission on International Trade Law Arbitration Rules 2010. For background see, eg, A Trebilcock, ‘Rana Plaza Seven Years on: Transnational Experiments and Perhaps a New Treaty?’ (2020) 159:4 International Labour Review 545–568. 14 The Bangladesh arbitrations were an important source of inspiration for The Hague Rules on Business and Human Rights Arbitration (2019). See Yiannibas, Chapter 23 in this volume. 15 The title is inspired by the jazz album of Joe Henderson, Inner Urge, Blue Note, 1966. 16 Art 12(1).

Achieving Social Justice Through Investor-related Labour Obligations?  223 breach such human rights. Investors shall not manage or operate the investments in a manner that circumvents human rights obligations, labour standards as well as regional environmental and social obligations, to which the host State and/or home State are Parties. (3) Investors shall not by complicity with, or in assistance with others, including public authorities, violate human rights in times of peace or during socio-political upheavals. (4) Investors and investments shall act in accordance with fundamental labour standards as stipulated in the ILO Declaration on Fundamental Principles and Rights of Work, 1998. Noteworthy is the fact that the ECOWAS Supplementary Act went as far as providing legal consequences for the investor’s breach of these obligations, including those on labour. The consequences as they relate to dispute settlement are mostly of a procedural nature. In case of a breach, the investor would be deprived of the right to use the dispute settlement mechanism under the ECOWAS Supplementary Act (recourse to investor-State dispute settlement (ISDS) for instance). If ISDS is initiated, the host state is granted a right to file counterclaims to obtain compensation for the breach committed by the investor. The ECOWAS Supplementary Act also provides for the possibility for the home or host state to initiate international arbitration against the concerned investor and for private persons (as well as the host state) to initiate domestic proceedings against the concerned investor. The model provided for under Article 18 (‘Relation of Investor’s Liability to Dispute Settlement’) is so unusual in providing enforcement mechanisms against an investor who breaches core labour standards that it deserves to be quoted in full: (1) Where it is established by a court of competent jurisdiction of the host State that an investor has breached Article 13 of this Supplementary Act, the investor shall not be entitled to initiate any dispute settlement process established under this Supplementary Act. A host or home State may raise this as an objection to jurisdiction in any dispute under this Supplementary Act. (2) Where an investor is alleged by a host Member State or an intervener in a dispute settlement proceeding under this Supplementary Act to have failed to comply with its obligation relating to pre-establishment impact assessment, the tribunal hearing such a dispute shall consider whether this breach, if proven, is materially relevant to the issues before it, and if so, what mitigating or offsetting effects this may have on the merits of a claim or on any damages awarded in the event of such award. (3) Where a host Member State or home Member State believes that an investor or its investment has breached Article 13 or has persistently failed to comply with its obligations under Article 14 or 15, and such investor or investment has been notified by the host Member State or home Member State, as appropriate, either the host Member State or the home Member State may initiate proceedings before a tribunal established by this Supplementary Act. (4) Where a persistent failure to comply with Article 14 or 15 is raised by a host Member State defendant or an intervener in a dispute settlement proceeding under this Supplementary Act, the tribunal hearing such a dispute shall consider whether this breach, if proven, is materially relevant to the issues before it, and if so, what mitigating or offsetting effects this may have on the merits of a claim or on any damages award in the event of such award.

224  Makane Moïse Mbengue (5) A host Member State may initiate a counterclaim before any tribunal established pursuant to this Supplementary Act for damages resulting from an alleged breach of the Supplementary Act. (6) In accordance with the applicable domestic law, a host State or private person or organisation, may initiate actions for damages under the domestic law of the host Member State, or the domestic law of the home Member State where such an action relates to the specific conduct of the investor, for damages arising from an alleged breach of the obligations set out in this Supplementary Act. The proceedings in the domestic law Court shall conform to the procedures applicable in the Community Court of Justice. Echoing the ECOWAS Supplementary Act, the 2012 Model BIT of the South African Development Community (SADC) pursued, albeit with some variations, the ECOWAS approach and stipulated that ‘Investors and their investments shall act in accordance with core labour standards as required by the ILO Declaration on Fundamental Principles and Rights of Work, 1998’.17 Interestingly, the Commentary to the SADC model underlines the following: ‘For labour standards, the ILO Declaration sets out what are considered as the minimum global standards, or core labour standards. Almost all States have subscribed to these minimum standards. There is no evident rationale for any investor to operate in a manner than denies these standards, given the tripartite nature of the process by which ILO standards are adopted, as between government, industry and labour.’ There is here a clear mutual supportiveness between ILL and IIL. This mutual supportiveness has developed in such a way to recalibrate labour obligations in the field of foreign investment in light of African needs and specificities. For instance, the PAIC also refers to labour standards as part of ‘socio-political obligations’ which is another category of obligations that can only be found in African regional investment instruments. Article 20 of the PAIC (‘Socio-political Obligations’) provides that: Investors shall adhere to socio-political obligations including, but not exclusively, the following: (a) (b) (c) (d) (e)

and observance of domestic laws, regulations and administrative practices; respect for socio-cultural values; non-interference in internal political affairs; non-interference in intergovernmental relations and respect for labour rights.

Some other African regional investment instruments have opted for dealing with labour standards and ILL under the broader category of ‘Business Ethics and Human Rights’. The 2017 Revised Investment Agreement (2018) of the Common Market for Eastern and Southern Africa (COMESA) goes in that direction and requires investors to uphold freedom of association and the effective recognition of the right to collective bargaining, to eliminate all forms of forced labour, including the effective abolition of child labour, and to eliminate discrimination. Article 29 reads as follows: 1. COMESA investors and their investments shall observe the United Nations Guiding Principles on Business and Human Rights with modifications necessary for local circumstances.

17 Art

15.

Achieving Social Justice Through Investor-related Labour Obligations?  225 2.

COMESA investors and investments shall among others: (a) support and respect the protection of internationally proclaimed human rights; (b) ensure that they are not complicit in human rights abuses; (c) uphold freedom of association and the effective recognition of the right to collective bargaining; (d) eliminate all forms of forced and compulsory labour, including the effective abolition of child labour; and (e) eliminate discrimination in respect of employment and occupation.

The particularity of this African practice is that it has transposed onto foreign investors some obligations that were originally designed for States. These trends in African regional investment instruments have led to cross-fertilisation in intra-African BITs, such as the 2016 Nigeria–Morocco BIT (Article 1818), which is quite often presented as a gold standard in the relation to the reform of the investment regime towards more sustainable investment. National investment legislation in Africa also increasingly incorporates labour concerns and standards in the formulation of traditional investment standards such as the national treatment standard. The 2015 South Africa Investment Law goes in that direction when determining the scope of national treatment. Its Section 8 provides that: ‘Foreign investors and their investments must not be treated less favourably than South African investors in like circumstances’ and indicates that the examination of ‘like circumstances’ must take into account, inter alia, the ‘effect on employment’. In other words, a foreign investor who contributes poorly to employment – from a quantitative and qualitative point of view – cannot expect to benefit from the same favourable treatment that would be accorded to domestic investor(s) who contribute significantly to employment. Cross-fertilisation is not just occurring in Africa. The need to strengthen the implementation of labour rights in the broader context of economic agreements has also been recently highlighted by the European Commission. Modern European Union trade agreements include Trade and Sustainable Development (TSD) chapters, which require the parties, among others, to make continuous and sustained efforts towards the ratification of fundamental ILO conventions. In a Communication of 22 June 2022 on ‘The power of trade partnerships: together for green and just economic growth’, the European Commission proposed to further strengthen the implementation and enforcement of the TSD chapters of EU trade agreements, in particular by including the use of trade sanctions for breaches of core TSD provisions. Implementation and enforcement of labour rights and obligations under IIAs will also be crucial; it is to be hoped that such new developments will also influence the making and negotiation of future IIAs around the world.

IV. Conclusion All this being said, the challenge for Africa will be to crystallise and harmonise the mentioned trends at the continental level for a more effective and coherent implementation of ILL in the context of investment agreements. In this context the future Investment Protocol to the



18 What

does it say/do?

226  Makane Moïse Mbengue African Continental Free Trade Agreement (AfCFTA) might be an opportunity to consolidate investor obligations in relation to labour and ensure that foreign investment in Africa truly contributes to achieving social justice and sustainable investment. Draft Article 32 (‘Business Ethics, Human Rights and Labour Standards’) of the future Investment Protocol is a promising legal avenue in this respect: Investors shall comply with the highest standards of business ethics, human rights and labour standards, and in particular shall: (a) support and respect the protection of internationally recognised human rights; (b) ensure that they are not complicit in human rights abuses; (c) comply with the International Labour Organisation (ILO) standards, including the ILO Fundamental Principles and Rights at Work; (d) not use child labour or forced and compulsory labour; and (e) eliminate discrimination in respect of employment and occupation. More than just regulating labour in the context of investment, Draft Article 32 confirms the status of Africa’s leadership as a rule-maker in this field.

20 A Regional Revitalisation of Labour Rights? The Emerging Approach of the Inter-American Court of Human Rights FRANZ CHRISTIAN EBERT

I. Introduction In a seminal article published in 2005, Francis Maupain argued that the true potential of the ILO’s 1998 Declaration on Fundamental Principles and Rights at Work resided in the ‘revitalisation’ of the protection of labour rights at the global level.1 This chapter aims to show that the term ‘revitalisation’ is also fitting to describe a labour rights development that is currently taking place in the American hemisphere, driven, more specifically, by the Inter-American Court of Human Rights (IACtHR). While the IACtHR has dealt with worker-related issues for some time,2 it has recently adopted a more comprehensive approach to economic, social, and cultural rights that has also transformed its engagement with labour rights. The remainder of this chapter proceeds as follows. Section II provides a brief overview of the legal and institutional context of the IACtHR. Section III then describes the shift in the Court’s approach to economic, social and cultural rights. On this basis, Section IV examines three key features of the emerging Inter-American approach to labour rights. These encompass an expanding catalogue of labour rights with an increasingly pronounced economic and social rights components, a high degree of coherence with other international instruments and a transformative approach to reparations. Section V contextualises the Court’s new approach and highlights its practical implications for defending labour rights in Latin America.

1 F Maupain, ‘Revitalization Not Retreat: The Real Potential of the 1998 ILO Declaration for the Universal Protection of Workers’ Rights’ (2005) 16 European Journal of International Law 439–65. 2 See, eg, T Novitz, ‘Protection of Workers under Regional Human Rights Systems: An Assessment of Evolving and Divergent Practices’ in C Fenwick and T Novitz (eds), Human Rights at Work. Perspectives on Law and Regulation (Oxford, Hart, 2010) 409–38, 430–33.

228  Franz Christian Ebert

II.  The IACtHR in a Nutshell Together with the Inter-American Commission on Human Rights, the IACtHR is one of two principal human rights organs of the Organisation of American States (OAS). Established in 1979 and composed of seven part-time judges and a secretariat, the Court adjudicates cases under the American Convention of Human Rights (ACHR) and certain related regional human rights instruments.3 In addition, the Court adopt advisory opinions on legal issues raised by a Member State or an OAS organ.4 For the Court’s contentious jurisdiction, the Inter-American Human Rights System provides for a two-tier procedure: individuals and groups can file petitions with the Inter-American Commission of Human Rights. After examining the merits of the case and publishing its findings in a report, the Commission can decide to submit the case to the Court.5 While the Commission has a wider mandate,6 the Court’s contentious jurisdiction only extends to those 20 OAS Member States from the Latin American and Caribbean region which have ratified the American Convention of Human Rights and have expressly recognised the Court’s jurisdiction.7 In its more than 40 years of existence, the Court has issued more than 400 judgments and 30 advisory opinions on a wide array of human rights issues,8 ranging from forced disappearances9 to the land rights of indigenous peoples.10

III.  The IACtHR’s Turn to Economic, Social and Cultural Rights11 The IACtHR’s engagement with labour rights is not new.12 On several occasions, the Court has addressed labour-related matters, including workers’ freedom of association,13 forced labour14 and modern slavery.15 The Court’s engagement with labour rights has, however, intensified significantly in recent years. This can only be understood against the background of a fundamental shift in the Court’s broader doctrinal approach to economic, social and 3 See JM Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights (2nd edn, Oxford, Oxford University Press, 2013) 6. 4 Art 64 ACHR. 5 Art 61 in conjunction with Arts 48 and 50 ACHR. 6 Art 41 ACHR. 7 Art 62 ACHR. In particular, Canada and the United States have not ratified the Convention. For a list of the countries currently covered by the IACtHR’s jurisdiction see: Inter-American Court of Human Rights – What is the I/A Court HR? Available at: corteidh.or.cr. 8 The relevant documents are on the Court’s website. Available at: www.corteidh.or.cr. 9 See already the Court’ first judgment on the merits, IACtHR, Velásquez Rodríguez v Honduras. Judgment of 29 July 1988. Series C No 4. 10 See, eg, IACtHR, Kichwa Indigenous People of Sarayaku v Ecuador. Judgment of 27 June 2012. Series C No 245. 11 This section partly draws on FC Ebert and C Fabricius (2018) ‘Strengthening Labor Rights in the Inter-American Human Rights System’, 4 International Labor Rights Case Law 179–85. 12 For a comprehensive overview of the Court’s labour-related jurisprudence, see MF Canessa Montejo, ‘Labor human rights and the jurisprudence of the Inter-American Court of Human Rights’ in JR Bellace and B ter Haar (eds), Research Handbook on Labour, Business and Human Rights Law (Cheltenham, Edward Elgar, 2019) 334–357, 342–55. 13 See, eg, IACtHR, Baena Ricardo et al v Panama Judgment of 2 February 2001 Series C No 72. 14 See, eg, IACtHR, Ituango Massacres v Colombia Judgment of 1 July 2006 Series C No 148. 15 See IACtHR, Hacienda Brasil Verde Workers v Brazil Judgment of 20 October 2016 Series C No 318.

A Regional Revitalisation of Labour Rights?  229 cultural rights.16 At the core of this is a novel interpretation of Article 26 of the ACHR on the ‘progressive development’ of economic, social and cultural rights which the Court construed to provide for justiciable rights. The case at hand concerned the dismissal of Alfredo Lagos del Campo, a worker and trade union leader employed by a Peruvian cable producer.17 While presiding over an ­election committee for a workers’ representation body, Mr Lagos del Campo had detected improper interference by the company with the election process.18 After he had reported these incidents to the competent authorities and criticised these activities in a local newspaper, the company terminated his contract of employment; domestic legal action against the dismissal remained unsuccessful.19 The IACtHR held Peru to be responsible for infringing Mr Lagos del Campo’s rights under the ACHR. Importantly, the Court considered not only the rights expressly provided for by the ACHR’s wording,20 but also found a violation of the ‘right to job security’.21 In this regard, the Court’s analysis centred around Article 26 of the ACHR, whose somewhat unwieldy wording stipulates as follows: The States Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realisation of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organisation of American States as amended by the Protocol of Buenos Aires.

The Court had mentioned Article 26 in earlier decisions but had never construed it to give rise to justiciable rights.22 In developing its new interpretive approach, the Court relied strongly on the position of Article 26 within the Convention’s structure: The Court emphasised that Article 26 is situated in Part I of the Convention, which contains ‘State Obligations and Rights Protected’. Therefore, the Court argued, Article 26 ACHR should be construed to entail the same obligations23 as the civil and political rights embodied in Articles 1–25 of the Convention.24 These obligations ‘include aspects that have an immediate effect, as well as aspects that have a progressive nature’.25 In essence, this reasoning potentially renders all economic, social and cultural rights referred to the OAS Charter justiciable in concrete situations.26

16 Before that, the Court had addressed economic and social rights issues mainly indirectly, notably by integrating certain socioeconomic elements into its interpretations of the civil and political rights protected under the ACHR. This included notably construing the right to life to contain a right to a decent life (‘vida digna’). See further B Duhaime and F Hansbury, ‘Les droits économiques, sociaux et culturels et le système interaméricain de protection des droits de la personne: deus ex machina au dernier acte’ (2020) 61 Les Cahiers de droit 539–64, 551–58. 17 IACtHR, Lagos del Campo v Peru, Judgment of 31 August 2017, Report No 27/15, Case No 12795, paras 46–47. 18 ibid, para 48. 19 ibid, paras 48–55; 58–60. 20 At stake were notably freedom of expression, freedom of association and the right to a fair trial and judicial protection; see ibid, paras 166, 191 as well as operating paras 4–7. 21 ibid, para 153. On the content of this right see below. 22 Cf, eg, IACtHR, Acevedo Buendía et al. (‘Discharged and Retired Employees of the Comptroller’) v Peru. Judgment of 1 July 2009. Series C No 198, paras 92–107. 23 These obligations are contained in Arts 1(1) and 2 ACHR. 24 IACtHR, Lagos del Campo, above n 17, para 142. 25 This was specified in the Court’s subsequent case law on the matter; see, eg, IACtHR, Spoltore v Argentina. Judgment of 9 June 2020. Series C No 404, para 97, which is the source of the citation. 26 This is particularly relevant given that the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) extends the Court’s jurisdiction

230  Franz Christian Ebert Methodologically, the Court examined the content of the OAS Charter to derive from it the rights covered, given that Article 26 refers to the content of the Charter. In addition, the Court looked to other regional and global instruments. In particular, the Court relied on the American Declaration of the Rights and Duties of Man, which the Court considered to be ‘in relation to the OAS Charter, a source of international obligations’.27 While welcomed by various commentators,28 this approach has given rise to significant controversy, as illustrated by the dissent by two judges from this part of the judgment.29 That being said, this approach has meanwhile been used in numerous decisions and several advisory opinions, dealing with the right to health,30 the right to water31 and the right to social security,32 among others. By now, it can thus be considered part of the Court’s settled case law.

IV.  Key Features of the Emerging Inter-American Approach to Labour Rights A.  Expanding the Labour Rights Catalogue Based on this doctrinal innovation, the Court has progressively strengthened the labour rights dimension of the ACHR by elaborating the labour dimension of the economic and social rights protected thereunder. This has included developing rights that are not expressly covered by the ACHR, notably the right to work, the right to just and equitable working conditions and the right to strike. The right to work, which features expressly in the OAS Charter and in the American Declaration of Rights and Duties of Man,33 has become an important doctrinal vantage point for the Court. Notably, the Court has used it to deduce from it other, more specific rights, most prominently the aforesaid right to job security,34 which essentially boils down

to only two of these rights, namely workers’ freedom of association and the right to education. See Art 19(6) in conjunction with Arts 8 (1)(a) and 13, Protocol of San Salvador. 27 See IACtHR, Lagos del Campo, above n 17, paras 143–144 (quote at para 144). On the use of other international instruments by the Court see below. 28 See, eg, JF Calderón Gamboa, ‘Consolidando los derechos económicos, sociales, culturales y ambientales en el Sistema Interamericanola justiciabilidad directa en la sentencia Lagos del Campo y la relatoría DESCA’, in C Proner et al (eds), 70º Aniversario de la Declaración Universal de Derechos Humanos: La Protección Internacional de los Derechos Humanos en cuestión (Valencia, Tirant lo Blanch, 2018) 343–54, 352. 29 Separate partially Dissenting Opinions of Judge Eduardo Vio Grossi and Judge Humberto Antonio Sierra Porto pertaining to the Inter-American Court of Human Rights Case of Lagos del Campo v Peru, Judgment of 31 August 2017. 30 IACtHR, Poblete Vilches et al v Chile. Merits, Reparations and Costs. Judgment of 8 March 2018. Series C No 349. 31 IACtHR, Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v Argentina Judgment of 6 February 2020. Series C No 400. 32 IACtHR, Muelle Flores v Peru. Judgment of 6 March 2019. Series C No 375. 33 See Art 45(b) of the OAS Charter, which provides: ‘[w]ork is a right and a social duty, […]’, and Art XIV of the American Declaration of Rights and Duties of Man, according to which ‘[e]very person has the right to work […]’. 34 See IACtHR, Lagos del Campo, above n 17, especially at paras 147, 149.

A Regional Revitalisation of Labour Rights?  231 to a right to protection against unjustified and arbitrary dismissals.35 This requires the State notably ‘to adopt the appropriate measures for the due regulation’ as well as the enforcement of this right and ‘to protect the workers against unjustified dismissal through its competent organs’.36 Where unjustified dismissals have occurred, State authorities must ‘rectify the situation’ by reinstating the worker or through other appropriate means and ensure that workers have access to ‘effective grievance mechanisms’.37 This situates the Inter-American Human Rights System at the vanguard of protecting workers against unjustified dismissal in the region, all the more since only two countries in the Americas ratified the ILO’s Termination of Employment Convention of 1982 (No 158), one of which has denounced it.38 At the same time, the Court has made it clear that the right to work is not limited to dismissal protection. The Court has considered that the right to work was violated in a case where the worker concerned had been transferred to another position against her will for reasons related to her sexual orientation.39 More importantly, the Court has also deduced ‘a right to receive a just remuneration’ from the right to work. While the case in point concerned a failure by the state to pay outstanding wages to its workers,40 this right could, in principle, also be used to address questions regarding the adequacy of wages in the private or public sector. Several other aspects of the right to work could become relevant, too, especially in times of economic crises. In particular, the right to work requires State Parties, according to the Committee on Economic, Social and Cultural Rights, to ensure that labour market reforms do ‘not render work less stable or reduce the social protection of the worker’.41 The second substantial contribution of the Court concerns the ‘right to just and favor­able conditions of work’.42 So far, the Court has mainly used this right as an umbrella concept to construct a ‘right of the worker to perform his labors in conditions that would prevent occupational accidents and disease’.43 Apart from a state obligation to ensure effective remedies,44 this right involves a ‘duty to regulate the work’ at issue and a duty

35 ibid, para 149. At the core of this right is the idea that ‘the employer must provide satisfactory reasons’ for the dismissal and ‘that the worker may appeal the decision before the domestic authorities;’ IACtHR, Casa Nina v Peru. Judgment of 24 November 2020. Series C No 419, para 107. The Court has also considered that the right to work ‘protects the worker from being deprived of his job due to direct or indirect interference by the judiciary.’ IACtHR, Palacio Urrutia et al v Ecuador. Merits, Reparations and Costs. Judgment of 24 November 2021. Series C No 446, para 155. 36 The Court has also emphasised that ‘the right to job security protects workers from being deprived of their jobs due to direct or indirect interference by the public authorities’: IACtHR, Pavez Pavez v Chile. Judgment of 4 February 2022. Series C No 449, para 88. 37 IACtHR, Lagos del Campo, above n 17, para 149; on this see also IACtHR, Dismissed Employees of Petroperú et al v Peru. Judgment of 23 November 2017. Series C No 344, para 193. 38 See the ILO’s NORMLEX Database. Venezuela and Brazil ratified the Convention in 1985 and 1995, ­respectively, with Brazil having denounced it in 1996. 39 IACtHR, Pavez Pavez, above n 36, paras 140 and 146. 40 IACtHR, National Federation of Maritime and Port Workers (FEMAPOR) v Peru. Judgment of 1 February 2022. Series C No 448, para 111. 41 Committee on Economic, Social and Cultural Rights (CESCR), General Comment No 18, The Right to Work, E/C.12/GC/186, adopted 24 November 2005, para 25. 42 IACtHR, Employees of the Fireworks Factory of Santo Antônio de Jesus and their families v Brazil. Judgment of 15 July 2020. Series C No 407, para 155. 43 IACtHR, Spoltore, above n 25, para 99, in which the Court first developed this right. 44 ibid, para 97.

232  Franz Christian Ebert to ‘effectively implement those regulations, and therefore to exercise control and oversight over the working conditions’.45 This does, however, not exhaust the potential of this right. Indeed, the Court expressly left open which features other than safe and healthy working conditions could be covered by it.46 Other features that are potentially covered by this right include notably decent working time, weekly rest and paid annual leave.47 The Court’s doctrinal development regarding labour rights at this point is particularly advanced with regard to collective labour rights, notably the right to strike. In a decision of 2022, the Court scrutinised specific features of the domestic ballot rules and other procedural requirements regarding the legality of strike action under domestic law.48 This decision built on an advisory opinion on collective labour rights in the Inter-American system, which had comprehensively laid out the contours of the right to strike and the right to collective bargaining mainly along the lines of ILO jurisprudence.49 This advisory ­opinion also declared the right to strike to be a general principle of international law,50 which potentially has implications way beyond the Inter-American system.51 Given the recent nature of the Court’s case law on these labour rights, a number of aspects still remain to be clarified. For example, the criteria according to which a dismissal is considered (un)justified have not yet been fleshed out. Furthermore, for certain obligations under the right to safe and healthy working conditions it is not entirely clear whether the Court derived them from the ACHR or from the relevant domestic legislation which the Court also refers to in its argumentation.52 Finally, it remains to be seen to which extent the Court will apply these rights to workers in informal employment, who make up a large share of the Latin American workforce.53

B.  Coherence with International Standards Early on in its development of labour rights, the IACtHR has engaged with relevant international instruments and the related jurisprudence, especially from the ILO.54 Under its

45 IACtHR, Buzos Miskitos (Lemoth Morris et al) v Honduras. Judgment of 31 August 2021. Series C No 432, para 78. 46 IACtHR, Fireworks Factory, above n 42, para 155. 47 See CESCR, General Comment No 23 on the Right to Just and Favourable Conditions of Work, E/C12/GC/23, published 27 April 2016, paras 34–44. 48 IACtHR, Former Employees of the Judiciary v Guatemala. Judgment of 17 November 2021. Series C No 445, paras 116–122. 49 IACtHR, Rights to Freedom to Organize, Collective Bargaining, and Strike, and Their Relation to Other Rights, with a Gender Perspective. Advisory Opinion OC-27/21 of 5 May 2021. Series A No 27, paras 88–105. 50 See ibid, para 97. 51 See K Lörcher and FC Ebert ‘Streikrecht und gewerkschaftliche Vereinigungsfreiheit als allgemeine Grundsätze des Völkerrechts’ (2022) Arbeit und Recht 52–57. 52 See, eg, IACtHR, Fireworks Factory, above n 42, para 174; IACtHR, Buzos Miskitos, above n 45, paras 75–77. 53 See R Maurizio, Employment and Informality in Latin America and the Caribbean: an Insufficient and Unequal Recovery (Geneva, ILO, (2021) 30. Available at: wcms_819029.pdf (ilo.org). For an optimistic assessment regarding the right to strike in this regard, see M Morales Antoniazzi and J Lobato, Un paso al frente: la huelga como derecho humano en el Sistema Interamericano de Derechos Humanos, Max Planck Institute for Comparative Public Law & International Law Research Paper No 2022-03 (Heidelberg, MPIL, 2022) 21–24. 54 See, eg, B Duhaime and É Décoste, ‘From Geneva to San José: The ILO Standards and the Inter-American System for the Protection of Human Rights’ (2020) 159 International Labour Review 525–44, especially at 530–33.

A Regional Revitalisation of Labour Rights?  233 new approach to labour rights, the importance of references to international labour law instruments within the Court’s jurisprudence has further increased. Similar to its European counterpart,55 the Court has relied on Article 31(3) of the Vienna Convention on the Law of Treaties (VCLT),56 which provides for taking into account ‘any relevant rules of international law applicable in the relations between the parties’.57 On this basis, the Court has heavily relied on the ‘international corpus juris on the matter’.58 This has included a wide array of soft and hard law instruments, ranging from the Universal Declaration of Human Rights59 and United Nations human rights treaties60 to ILO instruments61 and occasionally even the European Social Charter62 and the African Charter on Human and Peoples’ Rights.63 With regard to ILO instruments, the Court has made use of a large variety,64 including the fundamental conventions dealing with trade union rights,65 gender equality,66 forced labour67 and child labour,68 as well as other conventions in the areas of labour inspection,69 occupational safety and health,70 and dismissal protection.71 Thereby, many key features of the relevant rights have essentially been defined by reference to international instruments and the jurisprudence of the related supervisory bodies. For example, when fleshing out the contours of the right to strike, the Court has extensively relied on the jurisprudence of the ILO Committee on Freedom of Association (CFA). In Former Employees of the Judiciary, the Court adopted, among others, the CFA’s definition of the term ‘strike’ and the general criteria developed by the CFA according to which States may impose certain conditions on the exercise of the right to strike.72 The Court’s engagement with the CFA’s jurisprudence is even more extensive in the advisory opinion on the matter. Here the Court relied on the CFA’s findings on the nature and content of the right to strike virtually in every step of its analysis, resulting in the Court’s interpretation of this right that is highly coherent with that developed by the CFA.73 55 See prominently European Court of Human Rights, Demir and Baykara v Turkey, Series A no 48 (2009) EHRR 54, paras 65–67. 56 See, eg, IACtHR, Spoltore, above n 25, para 87. 57 Art 31(3)(c) VCLT. 58 IACtHR, Rights to Freedom to Organize, Collective Bargaining, and Strike, above n 49, para 46. 59 See, eg, IACtHR, Spoltore, above n 25, para 91. 60 While the Court has primarily referred to the UN Covenant for Economic, Social and Cultural Rights in this regard (see, eg IACtHR, Rights to Freedom to Organize, Collective Bargaining, and Strike, above n 49, para 95), also references to other treaties have featured in its analysis, such as to the Convention on the Elimination of All Forms of Discrimination against Women; see IACtHR, Fireworks Factory, above n 42, para 163. 61 See, eg, IACtHR, Buzos Miskitos, above n 45, paras 70–71. 62 IACtHR, Rights to Freedom to Organize, Collective Bargaining, and Strike, above n 49, para 62. 63 See, e.g., IACtHR, Lagos del Campo, above n 17, para 145. 64 The Court has also cited to the ILO’s 1998 Declaration on Fundamental Principles and Rights at Work; see IACtHR, Pavez Pavez, above n 36, para 90. 65 This includes notably ILO Conventions Nos 87 and 98; see, eg, IACtHR, Rights to Freedom to Organize, Collective Bargaining, and Strike, paras 64 and 120. 66 This includes ILO Conventions Nos 100 and 111; see, eg, IACtHR, Maritime and Port Workers, above n 66, para 108, and IACtHR, Pavez Pavez, above n 36, para 89, respectively. 67 ILO Convention No 29; see, eg, IACtHR, Hacienda Brasil Verde, above n 15, para 230. 68 IACtHR, see Buzos Miskitos, above n 45, para 71. 69 ILO Convention No 81; see ibid, para 70. 70 ILO Convention No 155; see, eg, IACtHR, Fireworks Factory, above n 42, para 165. 71 ILO Convention No 158; see IACtHR, Lagos del Campo, above n 17, para 148. 72 IACtHR, Former Employees of the Judiciary, above n 48, paras 109 and 118, respectively. 73 See IACtHR, Rights to Freedom to Organize, Collective Bargaining, and Strike, above n 49, paras 96, 98–105.

234  Franz Christian Ebert That being said, ILO instruments and jurisprudence have not always been the main point of reference for the Court when dealing with the content of labour rights. For instance, in order to establish the right to job security as an element of the right to work, the Court has based itself primarily on the work of the UN Committee on Economic, Social and Cultural Rights (CESCR), namely its General Comment No 18 on the Right to Work.74 Similarly, when establishing the contours of the right to safe and healthy working conditions, notably with regard to available remedies, the Court has based itself primarily on the CESCR’s General Comment 23 on the Right to Just and Favourable Conditions of Work.75 In both cases, the relevant ILO instruments are cited but occupy a secondary place in the Court’s argumentation, serving mainly an illustrative purpose.76 This may, in part, be explained by the fact that the CESCR’s human rights-based reasoning and the logic of the ICESCR are by nature more closely aligned with the IACtHR’s approach than the ILO system of international labour standards. At the same time, it illustrates the Court’s commitment to a plurality of sources in this area, that includes but does not necessarily prioritise ILO instruments and jurisprudence.

C.  Transformative Reparations A particularly distinctive feature of the IACtHR is its approach to reparations. In addition to monetary compensation,77 the Court has also required State Parties to adopt further measures, which have included constructing memorials for victims,78 creating a database on disappeared persons,79 and handing over territories to indigenous communities.80 In this regard, the Court has developed what has been described as a ‘transformative’ approach to reparations,81 which emphasises tackling the root causes for structural human rights violations.82 This has included building capacity among state actors to deal with human rights issues, creating programmes to prevent human rights violations, changing relevant laws and putting in place adequate administrative bodies for their implementation.83 A case in point is the Court’s Fireworks Factory decision. The case concerned the explosion of a fireworks factory in a remote rural area in the Brazilian State Bahía in 1998, which caused 60 deaths, most of which involved Afro-descendent women. The incident occurred in a region subject to significant social vulnerability with highly limited

74 See IACtHR, Lagos del Campo, above n 17, para 147, referring to CESCR, General Comment No 18. 75 See IACtHR, Spoltore, above n 25, para 94, referring to CESCR, General Comment No 23. 76 See IACtHR, Lagos del Campo, above n 17, para 148; IACtHR, Spoltore, above n 25, para 95. 77 See C Correa Montt, ‘Artículo 63’ in C Steiner and M-Ch Fuchs (eds), Convención Americana sobre Derechos Humanos (Bogotá, Konrad Adenauer Stiftung, 2019) 1019–99, 1068–84. 78 See, in this regard, M Aksenova, ‘Creative Potential of Reparations at the Inter-American Court of Human Rights and the International Criminal Court’ (2020) 43 Suffolk Transnational Law Review 1–38, 14–15. 79 See R Rubio-Marín and C Sandoval, ‘Engendering the Reparations Jurisprudence of the Inter-American Court of Human Rights: The Promise of the Cotton Field Judgment?’ (2011) 33 Human Rights Quarterly 1062–91, 1089. 80 See, eg, D Contreras-Garduño and S Rombouts, ‘Collective Reparations for Indigenous Communities Before the Inter-American Court of Human Rights’ (2010) 27 Merkourios – Utrecht Journal of International Law 4–17, 11. 81 See Rubio-Marín and Sandoval, above n 79, 1083–84. 82 IACtHR, González et al. (‘Cotton Field’) v Mexico. Judgment of 16 November 2009. Series C No 205, para 450. 83 TM Antkowiak, ‘Remedial Approaches to Human Rights Violations: The Inter-American Court of Human Rights and Beyond’ (2008) 46 Columbia Journal of Transnational Law 351–419, 382–84.

A Regional Revitalisation of Labour Rights?  235 employment opportunities; 65 per cent of the local residents were ‘vulnerable to poverty’ while 25 per cent of the children were exposed to extreme poverty.84 In order to address the ‘extreme vulnerability of the workers [concerned] owing to their situation of intersectional discrimination and poverty’, the Court obligated the State to ‘to design and execute a socioeconomic development program’ for the area concerned.85 The programme was to address the absent employment opportunities, ‘especially for young people over 16 years of age and Afro-descendant women living in poverty’.86 Its components involved, among others, vocational training activities, measures addressing the problem that children dropped out of school due to work, and campaigns to raise awareness about the safety risks concerning fireworks production as well as human rights issues more broadly. The programme was to be implemented ‘in coordination with the victims and their representatives’ and followed up by annual progress reports by the State to the Court.87 Such an approach arguably holds significant promise, in particular in cases of entrenched labour rights violations that are connected to structural problems, such as endemic violence or systemic deficits regarding the rule of law.

V. Conclusion By developing a new interpretive approach to economic, social and cultural rights, the Court has contributed to a ‘regional revitalisation’ of labour rights in three ways: First, the Court’s new approach strengthens labour rights in substantive terms, thereby furthering the constitutionalisation of labour rights in the region.88 Second, the Court contributes to the dialogue on labour rights between different international bodies by engaging extensively with ILO and other international jurisprudence. Thirdly, the Court contributes to addressing labour rights compliance deficits more effectively by ordering transformative reparations for the human rights violations at stake. A key added value of the Court’s new approach is its contribution to the enforceability of labour rights in Latin America. Several Latin American constitutional courts have ruled that IACtHR judgments are binding on all courts within their jurisdiction.89 Similarly, the Court’s doctrine of ‘conventionality control’, which requires that courts and other state institutions examine domestic legal acts as to their compatibility with the ACHR and, if necessary, abstain from applying it,90 holds potential for enhancing the protection of labour rights in practice.

84 IACtHR, Fireworks Factory, above n 42, para 60. 85 ibid. 86 ibid. 87 ibid. 88 See on this tendency R-M Belle-Antoine, ‘Constitutionalising Labour in the Inter-American System on Human Rights’ in A Blackett and A Trebilcock (eds), Research Handbook on Transnational Labour Law (Cheltenham, Edward Elgar, 2015) 284–97, especially at 285. 89 See, eg, D García-Sayán, ‘The Inter-American Court and Constitutionalism in Latin America’ (2011) 89 Texas Law Review 1835–62, 1840. 90 E Ferrer Mac-Gregor Poisot, ‘Conventionality Control. The New Doctrine of the Inter-American Court of Human Rights’ (2015) 109 American Journal of International Law Unbound 93–99, 93.

236  Franz Christian Ebert Through its innovative jurisprudence, the IACtHR will likely continue to generate impulses for the development of labour rights. In this way, Court could also contribute to an additional layer of what Adelle Blackett has termed ‘social regionalism’.91 Whether the Court’s approach to labour rights will to some extent by taken up by its counterparts in Europe or Africa or indeed at the global level remains to be seen. Either way, the experience of the IACtHR serves as a reminder that the future of social justice and the world of work may, at least in part, be regional.

91 See A Blackett, ‘Toward Social Regionalism in the Americas’ (2002) 23 Comparative Labor Law & Policy Journal 901–66.

21 Social Sustainability and Labour Rights in a Resilient EU BRUNO CARUSO AND VERONICA PAPA

To David Sassoli and the Ukrainian resisters, builders of the European people– ‘We are immersed in epochal transformations: youth unemployment, migration, climate change, digital revolution, new world balances, which in order to be governed need new ideas, the courage to know how to combine great wisdom and maximum audacity.’ David Sassoli (Inaugural speech as President of the European Parliament, 3 July 2019)

I. Introduction This chapter examines the axiological inversion induced in the European system by four epochal crises that have occurred in the last few years, on the one hand, and by the theoretical perspective of social sustainability, on the other (Part II). Against the backdrop of these four crises, the principle of sustainability – as will be stressed in this chapter – could complement the system of European values, which are still asymmetrically skewed towards the economic side, and strengthen the quest for a more socially-orientated balancing of rights between economic freedoms and social rights in the European Union (EU). Indeed, it is in the wider change of context induced first by the COVID-19 crisis, and now by the invasion of Ukraine by Russia, that a brisk change of pace was imposed on European institutions, demonstrating the need to profoundly review the economic dogmas that guided the previous post-crisis policies. In Part III, the authors will try to outline the framework of the new European social agenda, starting from some recent regulatory initiatives launched by EU institutions in the social law field using a sustainability-orientated approach. These initiatives should be considered along with the simultaneous change of pace of another key player in the construction of the European social model: the European Court of Justice (ECJ). Usually considered a key actor in twentieth-century European ­integration, at the beginning of the new century, with the Laval quartet,1 the Court seemed

1 Referring to the cases of Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets avd. 1, Byggettan, Svenska Elektrikerförbundet [2007] ECR I-11767, Case C-341/05;

238  Bruno Caruso and Veronica Papa to impress a strong economicist and neo-liberal imprint on its case law, inducing scepticism and disillusionment with the European model, especially among scholars who preferred to look at the ‘trees’ and not at the ‘forest’ of the European legal system. As will be said (Part III), with its recent case law, the Court of Justice has sent unequivocal signals about the link between social and human rights, paving the way for a holistic conception of sustainable development (social, environmental and economic) as set out in the United Nations (UN) 2030 Agenda.2 Lastly, the authors will offer some reflections on the possible evolution of the European social model (ESM) in times of crisis (Part IV).

II.  The European Social Model in the Face of Four Epochal Crises Scholars and those who care about the European system have for some time now been asking the following question: What will remain of the European social model and of the EU itself after the four great shocks that have hit Europe in the new millennium? These four shocks are widely known but it is worth recalling them briefly. First, the financial and sovereign debt crisis, then the COVID-19 health crisis and now, most serious of all, the Ukrainian crisis, which has brought the horror of the twentiethcentury wars back to the heart of the continent. Such epochal events are typical symmetrical crises with asymmetrical effects. They have affected all people and nations of the EU (hence their symmetrical character) but with uneven effects, with the result of increasing inequalities between nations and peoples and, within member states, between social classes (hence their asymmetrical effect). The fourth crisis (universally known as Brexit) is different from the others: even if sparked by serious economic hardship and a fearful reaction to global migration flows, it has taken on an institutional character. Triggered by a political class that acted as the sorcerer’s apprentice, Brexit was sealed by the British people with a referendum. Finally, by i­nvoking Article 50 of the Treaty on European Union (TEU), the United Kingdom conservative government started the EU withdrawal procedure – on behalf of various nations, including Scotland and Northern Ireland, in which there was a majority of Remainers – leaving the project of building a European common home. Given its unilateral nature, partly allowed by a weak formal constitutional framework, Brexit represented, for the EU, an asymmetrical institutional crisis. And yet it did not fail to inflict a deep wound on the whole European project and on the historically, culturally and

International Transport Workers’ Federation, Finnish Seamen’s Union v Viking Line ABP, OÜ Viking Line Eesti [2007] ECR I-10779, Case C-438/05; Rechtsanwalt Dr Dirk Rüffert v Land Niedersachsen [2008] ECR I-1989, Case C-346/06; and Commission of the EC v Luxembourg [2008] ECR I-4323, Case C-319/06, which were criticised for subordinating collective bargaining and strike activity to economic freedoms. 2 United Nations Development Programme, The SDGS in Action. See Sustainable Development Goals (see www.undp.org); ASVIS, L’unione Europea e gli Obiettivi di Sviluppo Sostenibile (see www.asvis.it). Communication from the Commission, A Strong Social Europe for just transitions, Brussels, 14 January 2020, COM(2020) 14 final; SDG Watch Europe, Manifesto for a Sustainable Europe for its Citizens. The Need for Action (www.sdgwatcheurope.org).

Social Sustainability and Labour Rights in a Resilient EU  239 geographically grounded idea of the European demos (which certainly includes the British people). In this, it produced a symmetrical institutional effect (the first, albeit peaceful, split from the European federal state under construction). It is now time to look at the question of what remains of the institutional European project and the ESM in the face of these shocks (both symmetrical and asymmetrical). Against the backdrop of these epochal crisis scenarios, factors of resilience and positive recovery stand out and deserve to be mentioned. First, the outcome of the confrontation between crises and resilience factors is currently unpredictable. The outcome will mostly depend on the ability of governments and institutional decision-makers to provide adequate responses to these dramatic scenarios, promoting the resilience countertendencies that are germinating in the civil societies of Member states in the relaunch of the European model. Much will also depend, within the democratic political process, on the ability of the peoples of the Union to remain firmly anchored in the defence of the values of freedom and democracy enshrined in national constitutions and in the EU legal system. The most dramatic, but also the most shining example of such an anchorage comes from a people not yet formally integrated into the EU system but who have achieved the right to become a Member State ‘on the ground’, faced with the suffering of war: the Ukrainian people. The most discouraging example, demonstrating the historical contradictions of this phase, is the choice of the Hungarian people to confirm as its political leader Viktor Orban, a notorious champion of ‘sovereignism’ and illiberal values (and as such basically anti-European), including an internal constitutional structure that is incompatible with the European rule of law. Without entering into sophisticated sociological and political analyses, all this also suggests that the ideological, political, and social cleavages (not only in Europe) are no longer connected to the ideological class-based stereotypes of the twentieth century (right/ left, liberals/social democrats, market supporters/state supporters) but are positioned on new cleavages, generating transversal alignments: ‘sovereignists’ vs ‘Europeanists’; environmentalists vs climate change deniers; anti-globalists vs globalisation reformers and advocates of selective re-globalisation;3 advocates of open and closed societies;4 pro-vaccine vs anti-vaxxers, pro-Putinists vs anti-Putinists, etc. With reference to factors of resilience and reaction, with regard to the first crisis (the sovereign debt crisis), the severe social consequences caused by austerity policies and the conditions linked to financial aid imposed by European political and financial institutions are now well-known.5 These measures seriously harmed national welfare systems, especially in the Mediterranean states. The European institutions – above all the Court of Justice (obsessed with the primacy of economic freedoms over social issues), but also the European Commission (as endorser of austerity policies) – failed to recognise that most of the populist and ‘sovereignist’ drift, spreading all over the continent, was based on the defence of national welfare systems against the logic of market integration imposed by Europe – something which was subtly exploited against the European project.

3 This implies the shortening of value chains and the introduction of security concerns in technological and industrial cooperation in new European policies ranging from the EU’s dependence on Russian energy sources to the United States military shield and Chinese semiconductors. 4 See A Ross, The Raging 2020s (New York, Henry Holt and Company, 2021). 5 cf C Caruso and M Morvillo (eds), Governing with Numbers. Economic Indicators and the Budget Decision in the Constitutional State (Bologna, il Mulino, 2020).

240  Bruno Caruso and Veronica Papa Populist movements and parties – especially in their ‘social’ version, rather than in their ‘sovereignist’ one – have, in fact, channelled not only the fears deriving from global migratory movements but also most of all the discontent deriving from the loss of status (for the middle class) and the simultaneous spread of precariousness, poverty and new forms of social and economic subordination. According to some scholars, this latter phenomenon has given rise to a social class – called the ‘new plebs’6 – which can be used politically even to subvert the democratic order and certainly to favour illiberal impulses (the so-called pseudo-democracy). This phenomenon is also due to the widespread distorting effects of new technologies (‘gig workers’ and platform capitalism).7 And yet the reaction of Europe, and its institutions, albeit with some delay and hesitation, materialised in a peculiar ‘springboard effect’. In the last years of the Juncker Commission, the EU started to reverse its social course, with the launch of the European Pillar of Social Rights.8 This solemn proclamation of rights, even though a soft law instrument, was, in fact, followed by regulatory activism in the social field (which will be briefly described in Part III). Although these new regulatory initiatives are not sustained by a high-profile theory – as at the time of the Delors Commission – it is worth recalling the current debate on the reformability of capitalism and on the idea of a ‘capitalism of stakeholders’,9 along with the principle of sustainable development, which is already present in the European ‘Constitution’ (TEU, Article 3). The relaunch of the powerful idea of (economic, social and environmental) sustainability – a genuinely new paradigm according to some scholars10 – took place in parallel with international initiatives11 and it was linked to the topic of climate change, which resulted in the launch of the European Green Deal in December 2019.12 However, the climate crisis has also been an – unwanted and unwelcome – catalyst of the second epochal crisis mentioned above – the global COVID-19 pandemic. After some false steps,13 the European institutions have moved along the path of a renewed pan-European solidarity: not only has the EU promoted the coordination of information on the virus and international research on the vaccine but it has also become the leading geopolitical power in the distribution of vaccines; it has become the pharmacy of 6 P Perulli, Nel 2050. Passaggio al nuovo mondo (Bologna, il Mulino, 2021). 7 A Casilli, Schiavi del clic. Perché lavoriamo tutti per il nuovo capitalismo? (Milano, Feltrinelli, 2020). 8 Interinstitutional Proclamation on the European Pillar of Social Rights (2017/C 428/09); see S Garben, ‘The European Pillar of Social Rights: An Assessment of its Meaning and Significance’ (2019) 21 Cambridge Yearbook of European Legal Studies, 101–27. 9 See A Ross, above n 4, chapter 2; M Carney, Value(s) (Glasgow, William Collins, 2021); K Schwab and P Vanham, Stakeholder Capitalism (Hoboken, John Wiley & Sons, 2021); FL Block, Capitalism. The Future of an Illusion (Berkeley, University of California Press, 2018); I Ferreras, J Battilana and D Méda, Democratize Work: The Case for Reorganizing the Economy (Chicago, University of Chicago Press, 2022). 10 T Novitz, ‘The Paradigm of Sustainability in a European Social Context: Collective Participation in Protection of Future Interests?’ (2015) 31(3) International Journal of Comparative Labour Law and Industrial Relations 243–62; T Novitz, ‘Engagement with sustainability at the International Labour Organization and wider implications for collective worker voice’ (2020) 159(4) International Labour Review 463–82; A Bongardt and F Torres, ‘The European Green Deal: More than an Exit Strategy to the Pandemic Crisis, a Building Block of a Sustainable European Economic Model’ (2022) 60(1) Journal of Common Market Studies 170–85. 11 cf above n 2. 12 Communication from the Commission, The European Green Deal, Brussels, 11 December 2019, COM(2019) 640 final. 13 Examples include the initial low stocks of protective equipment, due to the interruption of long supply chains, and the early difficulties in the supply of vaccines, due to the absence of shared European procurement.

Social Sustainability and Labour Rights in a Resilient EU  241 the world. From a regulatory point of view, the starting point (EU Regulation No 241/2021) was a convergent response to the health crisis in the ‘common European interest’ (already stated in the hardly used Articles 121, 146, 198, 206 of the Treaty on the Functioning of the European Union (TFEU)), but it soon went further. The SURE Regulation14 and the Next generation EU15 on economic recovery and employment are not just a Keynesian economic manoeuvre, comparable in size to the Marshall Plan after the Second World War, but they also constituted the embryo of a common financial policy (the pooling of national debts and the issuance of European bonds). These measures also represent the prerequisite for a decisive change in the rules of political governance, with the achievement of economic and monetary integration as the only and all-pervasive objective of the EU and of debt stability policies as the dominant trait of economic governance. The measures may even represent the trigger for the reform of governance rules (ie, the overcoming of the intergovernmental principle and the unanimity majority rule)16 in the direction of a renewed constitutionalism inspired by the principles of the Ventotene Manifesto17 (hence the launch of the Conference on the future of Europe in May 2021, which saw the late David Sassoli as its protagonist). Unfortunately, it is mainly as a result of the ongoing war (the third symmetrical crisis) that European integration, including its political dimension, will probably be achieved, through adaptation of the EU governance rules. The ‘changing world’, with the resurgence of blocs and the rise of ‘relative globalisation’, requires the constitutional completion of a federal Union ‘beyond the nation-states’, capable of managing foreign policy and common defence. This prospect is no longer unthinkable but possible and indeed necessary for the endurance of the values of democracy and freedom in Europe (and beyond). With regard to the asymmetrical crisis, Brexit, and the laborious process that gave rise to the withdrawal agreement between the EU and the UK (which entered into force on 31 January 2020), it is possible to say, citing Ursula von der Leyen, that Brexit ‘belongs to history’18 and that, despite the open wound, the EU has been able to demonstrate unity.

III.  An Unprecedented Social Activism? New Chapters of the EU Social Agenda in a Sustainability-orientated Approach As mentioned in Part II, the impact of the four crises on the European legal system has brought about a new, evolving, framework characterised by unprecedented activism on the part of EU institutions in the social field. 14 Council Regulation (EU) 2020/672 of 19 May 2020 on the establishment of a European instrument for ­temporary support to mitigate unemployment risks in an emergency (SURE) following the COVID-19 outbreak. 15 Regulation (EU) 2021/241 of the European Parliament and of the Council of 12 February 2021 establishing the Recovery and Resilience Facility. F Fabbrini, Next Generation EU. Il futuro di Europa e Italia dopo la pandemia (Bologna, il Mulino, 2022). 16 S Fabbrini, Sdoppiamento: Una prospettiva nuova per l’Europa (Bari, Laterza, 2017). 17 This manifesto, officially entitled ‘For a Free and United Europe’, was written in 1941 by Altiero Spinelli while imprisoned during the Second World War. 18 EU President von der Leyen described the strenuous withdrawal negotiation, quoting the Beatles, as a ‘long and winding road’, stating also that ‘It is time to leave Brexit behind. Our future is made in Europe’

242  Bruno Caruso and Veronica Papa There has been a shift from a mix of neoliberalism in the field of social law and harsh austerity policies in the economic and financial ones – as a reaction to the first ­symmetrical crisis – to the proclamation of the European Pillar of Social Rights (the main legacy of the Juncker Commission) and, finally, to the current phase characterised by activism in the social policy field of the von der Leyen presidency. This social activism, inspired by the Social Pillar, was certainly accelerated by the second symmetrical crisis (the pandemic) but probably also by the need to counter, on the one hand, Europhobic ‘sovereignists’ (protagonists of the fourth crisis: Brexit) and, on the other hand, the growing scepticism among those who, taking progressive positions, criticised the persistent imbalance between economic and social policies in the EU. Solemnly proclaimed by the EU institutions in 2017, the Social Pillar – according to the 20 principles enshrined in it – can be considered as a catalyst of social policies designed to provide EU-level protection, but also as a driving force for an ‘alternative’ model of development based on economic and environmental sustainability and on the importance of the person in the workplace. In this respect, the attention to the re-balancing of caring responsibilities, addressed in the 2019 Directive on work-life balance,19 as well as the recent proposal for a directive on wage transparency, aimed at closing the gender pay gap,20 are worthy of note. While the potential of the Social Pillar was initially greeted with scepticism, given its soft law nature, it subsequently produced evident spill-over effects, acting as the driving force behind later initiatives. From this point of view and considering subsequent regulatory developments, the Social Pillar could be defined as a springboard for a rich program of legislative action in social law. Partly using this springboard, the Commission is currently working on a number of proposals in the social law field that are worth recalling briefly in this context. The most important of these is probably the proposal on adequate minimum wages.21 This proposal is part of the broader EU social agenda (including ‘reducing inequalities, defending fair wages, fighting social exclusion and tackling poverty’).22 It is clearly inspired by the goal of preventing in-work poverty – proclaimed by principle 6 of the Pillar, mentioned in the Preamble – as well as by a sustainability-orientated approach, cited in the incipit of the proposal.23 The first paragraph of the Explanatory memorandum explicitly re-connects the purpose of guaranteeing adequate working and living conditions to the concept of sustainability, defined as the social sustainability (for workers) of the policies of the Union, also as part of the post-Covid reconstruction of ‘fair and resilient economies and societies’. (Remarks by President Ursula von der Leyen at the press conference on the outcome of the EU–UK negotiations, 24 December 2020). See also F Fabbrini, Brexit (Bologna, Il Mulino, 2021) and F Fabbrini, Brexit and the Future of the European Union (Oxford, Oxford University Press, 2021). 19 Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU. 20 Proposal for a Directive of the European Parliament and of the Council to strengthen the application of the principle of equal pay for equal work or work of equal value between men and women through pay transparency and enforcement mechanisms, COM/2021/93 final. 21 Proposal for a Directive of the European Parliament and of the Council on adequate minimum wages in the European Union, COM(2020) 682 final. 22 Council of the European Union, the Porto Declaration, 8 May 2021, press release. 23 Where it is clearly stated that ‘ensuring that workers in the Union earn adequate wages is […] in line with the United Nations 2030 Agenda for Sustainable Development and its Sustainable Development Goals’.

Social Sustainability and Labour Rights in a Resilient EU  243 From this point of view, the proposal could not be more dissonant with the reaction of the Union to the first symmetrical crisis. The proposal sits in a context of radical discontinuity with the previous positions of the Commission, where – in times of devastating austerity policies – the emphasis was entirely placed on internal devaluation and wage containment policies in order not to hinder competitiveness. As mentioned above, the proposal on adequate minimum wages is part of the EU’s renewed activism in social matters, along with several other recent initiatives, dealing with collective bargaining for self-employed workers,24 minimum income, wage transparency, the right to disconnect, rights to information and consultation, and other measures planned or announced by the Commission in the European Pillar of Social Rights Action Plan of 4 March 2021. In addition to the initiative to combat social dumping and wage poverty, a fundamental chapter of the new social agenda of the Union would appear to be – also for its symbolic overtones – the proposed directive on platform work,25 which may be considered the epitome of precarious (and poor quality) work. The proposal mentions the need to support the sustainable growth of digital labour platforms in the EU. In this case, sustainability takes on a ‘protective’ meaning, as an external limit on the disruptive effects of an otherwise highly detrimental phenomenon, namely the unchecked exercise of platforms’ monopsony power in the face of the socio-economic weakness of platform workers. While it is true that the proposal aims to improve working conditions in platforms primarily by bringing platform workers under the umbrella of subordinate work, its approval could also result in a purposive26 extension of the protective boundaries of labour law.27 Lastly, the Commission released a Proposal for a Directive on Corporate Sustainability Due Diligence28 that – even if restricted in scope and of limited binding effect – attempts to create a common legal framework requiring European companies to respect human rights and the environment in their own operations, and those of their subsidiaries and their upstream and downstream value chain. Alongside these regulatory proposals in the field of labour (or corporate) law, there is, as already mentioned, the package of recovery and resilience measures, in particular the Next Generation EU plan, as a synthesis of a convergence between economic policies inspired by the principles of a sustainable environmental transition and the return to a neo-Keynesian vision of public intervention in the economy.

24 European Commission, Approval of the content of a draft for a Communication from the Commission – Guidelines on the Application of EU competition law to collective agreements regarding the working conditions of solo self-employed persons COM(2021) 8838 final. 25 European Commission, Proposal for a Directive of the European Parliament and of the council on improving working conditions in platform work, 21 December 2021, COM(2021) 762 final. 26 G Davidov, A Purposive Approach to Labour Law (Oxford, Oxford University Press, 2016). 27 The Commission’s abovementioned initiative aimed at overcoming competition law constraints to provide a collective voice for the self-employed would appear to move in the same direction, despite some perplexities linked to the establishment of economic thresholds for identifying the imbalance of power between solo self-employed and their counterparties. 28 European Commission, Proposal for a Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937, 23 February 2022, COM/2022/71 final.

244  Bruno Caruso and Veronica Papa It can therefore be said that the health crisis has made the pendulum swing in the ­ irection of a rebalancing of social policies both in the traditional sense – with initiatives d to protect workers in an economically and legally weak position (such as through the minimum wage and the platform work directive proposals) – and in a proactive sense, promoting new policies of sustainable development, a green economy and social inclusion, and making good on the (so far rather neglected) political objectives enshrined in the opening articles (Articles 2–3) of the TEU.

IV.  Towards a Holistic Concept of Sustainability: Bright Pages in Recent ECJ Case Law Among the bright pages of the EU’s new social agenda, there is the reversal of the Laval doctrine by the same institution that had created it: the European Court of Justice.29 For those who look at the overall construction of the European order (the forest) from a diachronic perspective, and refrain from neurotically observing the social Eurobarometer through single episodes (the trees), the new orientation of the Court of Justice in Hungary v Parliament and the Council30 should be seen not as another episode in a contradictory saga, but as the Court’s contribution to the social resilience of the EU legal system. As in the Laval quartet, the point of contention was the regulation of transnational ­posting of workers, but the text and context of the ECJ’s legal arguments could not be more different from its previous ones (well-known for the socially frigid interpretation of posting rules, giving primacy to fundamental economic freedoms). In Hungary v Parliament and the Council, the Court of Justice rejected the action for the annulment of the new posting directive, which provides a more precise definition of the equal treatment rule for posted workers. The Court based its legal reasoning also on the social mainstreaming clause of Article 9 of the TFEU, so far barely implemented and yet crucial to the extent that it states the Union’s duty to take into account ‘requirements linked to the promotion of a high level of employment’ and the ‘guarantee of adequate social protection’ in defining and implementing its policies and activities. This enhancement of the horizontal social clause, finally ‘taken seriously’, together with an emphasis on the task of ‘safeguarding the general interests recognised by the FEU Treaty’,31 could lead to a sustainability-orientated approach even in ECJ case law. Beyond the confines of social law, other recent judgments of the Court would suggest a case law that looks at the holistic principle of sustainability as a fundamental aim of the European legal system. This could be a sort of new paradigm which could consolidate a neo-humanistic path of EU law, marking a natural evolution of the re-balancing between economic freedoms and fundamental rights: from human to social rights as well as those relating to the environment. Some salient examples of this evolving case law concern the



29 See

n 1.

30 Hungary 31 ibid,

v Parliament and the Council, C-620/18, ECLI:EU:C:2020:1001, § 41, 46. § 41.

Social Sustainability and Labour Rights in a Resilient EU  245 human rights conditionality of EU funds,32 the infringement procedure against Hungary regarding its asylum law33 and, more specifically, environmental matters.34

V.  European Social Law, the Crises and the World to Come The European social model is, therefore, being forged in a climate of crises, despite the weakness of its constitutional infrastructure and although every rustling of an electoral leaf in one of the leading member states could jeopardise its stability. Yet, having a more definite framework becomes more urgent every day, given the regulatory responses that epochal crises may require. The complex phenomenon, syncretically defined as the digitisation of work, produces changes that may seem contradictory, but which are, however, different aspects of a single process. On the one hand, the creation of new supply chains, combining post-technological modernity and old Fordist organisation, generates a déjà-vu of intensive exploitation and under-protection of labour and, at the same time, new forms of subjugation and discrimination, hidden by the veil of technological objectivity (the algorithm). On the other hand, this phenomenon produces experiments in bottom-up participatory and collaborative praxis for new knowledge workers,35 especially in companies that embraced the paradigm of sustainability and the importance of human resources.36 Given that these transformative processes are inherently transnational, they reinforce the tendency towards a supranational dimension of labour regulation, which began with the Maastricht Treaty in 1992 (with the two-speed social legislation based on the Agreement on social policy, later incorporated in the Social Chapter, with the approval of the Treaty of Amsterdam).37 Compared to a few decades ago, however, something has changed. The European social model has acquired an identity, but also a more defined soul. The paradigm of sustainability, embedded in the fundamental principles of the Union (TEU, Article 3.3), brings together a highly competitive social market economy, rigorous protection of the environment and social protection. Moreover, it could express not only a protective function but could also generate new cooperative relationships in the workplace, based on the enhancement of the person and her capabilities. This paradigm, already a value in itself,

32 Hungary v European Parliament and Council of the European Union, C-156/21, ECLI identifier: ECLI:EU:C:2022:97; Republic of Poland v European Parliament and Council of the European Union, C-157/21, ECLI identifier: ECLI:EU:C:2022:98. 33 European Commission v Hungary, C-821/19, ECLI:EU:C:2021:930. 34 In one of the few cases submitted to the Court: Nomarchiaki Aftodioikisi Aitoloakarnanias and Others v Ypourgos Perivallontos, Chorotaxias kai Dimosion ergon and Others, C-43/10, ECLI:EU:C:2012:560; see also (although less relevant), Armando Carvalho and Others v European Parliament and Council of the European Union, C-565/19 P, ECLI identifier: ECLI:EU:C:2021:252. 35 The ‘creative class’, as defined by P Perulli and L Vettoretto, Neoplebe, classe creativa, élite. La nuova Italia (Bari, Laterza, 2022). 36 B Caruso and L Zappalà, ‘Un diritto del lavoro “tridimensionale”: valori e tecniche di fronte ai mutamenti dei luoghi di lavoro,’ in R Del Punta (ed), Valori e tecniche nel diritto del lavoro (Firenze, Firenze University Press, 2022) 29 ff. 37 B Caruso, ‘Changes in the Workplace and the Dialogue of Labor Scholars in the “Global Village”’ (2007) 28(3) Comparative Labor Law & Policy Journal 501–46.

246  Bruno Caruso and Veronica Papa intertwines, acquiring further lustre, with the ancient liberal values of classical constitutionalism and the principles of representative democracy (TEU, Articles 2, 9, 10 and 11): equality, non-discrimination, solidarity, the rule of law and respect for human rights. Sustainability, as a new theoretical paradigm, and classic values, combined into the new policies stemming from the Social Pillar, can build – should reason prevail over horror – the constitutional filigree of a new European federal state that EU governments and peoples will have to complete in the enduring spirit of the Ventotene Manifesto. Despite the winds of war, which are blowing as never before since the tragedies of the twentieth century, and the epochal crises that beset Europe, it is still that enchanting girl, as in the origin myth, able to attract the love of the father of the gods and to procure great gifts not only for its peoples but for the whole of humanity.

B.  Possible Futures of Global Labour Justice by Other Means: Public and Private Actors

248

22 Peeling the Onion: On Choices Judges Make in Transnational Labour Litigation JUDY FUDGE AND GUY MUNDLAK

I. Introduction Transnational labour law is a multi-scalar assemblage of agents, institutions, ­instruments and legal concepts that has emerged to address the governance gap caused by the mismatch between the global nature of production and the territorial format of labour law. Lead firms, most often located in the Global North, source production through a chain of subsidiaries and suppliers in developing countries with weak labour and human rights laws, weak law enforcement mechanisms, or both. Global value chains (GVC) transcend national borders and offshore production and supply by carefully choosing venues based on direct economic costs and the local legal regimes. Public international law, especially human rights conventions of the International Labour Organization (ILO) and the United Nations (UN), provide strong normative foundations for transnational labour law, but the associated enforcement mechanisms are weak, and traditionally they do not apply directly to the private corporate actors. A variety of global, regional, bilateral and unilateral trade laws that have incorporated labour and human rights commitments in side agreements and social clauses may boost the normative acceptance of such rights, but do not resolve the problems presented by the public international law instruments. Moreover, neither public international nor trade laws provide opportunities for workers to directly assert their claims and seek redress. During the 1990s, transnational corporations (TNCs) developed corporate social responsibility (CSR) initiatives, a form of private self-regulation, as a way of bridging the governance gap by linking seemingly private corporate norms to an image of public governance. These ‘soft laws’ have proliferated and expanded over time, extending corporate commitments beyond the ILO’s core labour standards to cover a range of issues, such as health and safety, living wages, working time and more. A key component of transnational labour law, corporate codes express TNCs’ commitments to workers employed on the lower rungs of the global value chains. Over time, CSR initiatives have built upon the basic premise, as reflected in the 2011 UN Guiding Principles on Business and Human Rights that,

250  Judy Fudge and Guy Mundlak alongside a state’s duty to protect against human rights abuses by corporations within their jurisdiction, exists a direct duty on corporations to prevent such abuse.1 The idea that corporations should be responsible to the communities from which they benefit is the ethical basis for CSR measures and their widespread embrace suggests that this norm has become generally accepted. There are countless examples of TNCs espousing their commitment to CSR and sustainable governance by imposing codes of conduct on their subsidiaries and suppliers, requiring them to protect human and labour rights. No longer just general claims of social responsibility, codes are carefully drafted, extensive reports are issued annually, social auditing firms are engaged to certify these reports, and, in several states, legislation imposes detailed universal reporting formats and precise due diligence requirements, while chromatic corporate websites inform consumers and communities about these initiatives and provide an opportunity for them to raise their concerns. But, when workers at the bottom of global supply chains are discovered to have suffered violations of their human and labour rights, lead firms argue that they are not legally responsible for these harms. Indeed, TNCs use domestic and international private law to distance themselves jurisdictionally and legally from claims brought by workers employed by their subsidiaries and suppliers. Are workers assumed to have satisfactory venues to litigate their rights against their contractual employers in the territory where the harm occurred? The inadequacies of this option are well known; domestic laws are often too lax, local employers are often unable to compensate the victims, and, most importantly, the role of agents higher up in the GVC who exert power over those agents down the value chain is ignored. At the same time, advocacy groups’ attempts to use transnational litigation strategically to impose a duty on TNCs to prevent harm to workers down the supply chain have garnered limited success. Innovative strategies attempt to identify suitable national and transnational jurisdictions, try different legal claims (in contract, torts or international law), invoke a range of legal fields and remedies (civil law and human rights litigation), inventive procedures (such as class action suits) and inspire consumers’ collective action. Despite impressive attempts, courts in the Global North have overwhelmingly accepted the various legal arguments that lawyers make to cocoon lead firms from liability for the harms caused to workers further down the chain from whose labour they profit. By early 2022 there was not a single case decided, from beginning to end, on its merits, holding a lead firm headquartered in the Global North responsible for the labour rights violations committed by its suppliers and subsidiaries located in the Global South, although a few cases were settled out of court in the shadow of the law and others have attracted a high level of media attention.2 What accounts for the divergence between the growing recognition of TNCs’ ethical responsibility for the rights of workers in the global value chains they profit from and the dearth of cases establishing legal liability? In this chapter, we emphasise the role of the judiciary in transnational litigation and focus on judges’ reluctance to translate the widely accepted ethical responsibility of TNCs to respect the human and labour rights of workers 1 JG Ruggie and JF Sherman, ‘The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights’ (2017) 28 European Journal of International Law 921, 923. 2 N Bueno and C Bright, ‘Implementing Human Rights Due Diligence Through Corporate Civil Liability’ (2020) 69 International and Comparative Law Quarterly 789; European Coalition for Corporate Justice (ECCJ), Suing Goliath (2021). Available at: www.corporatejustice.org/publications/suing-goliath/.

Transnational Labour Litigation  251 in their value chain into an enforceable legal claim. In doing so, we draw attention to the host of background legal doctrines and legal institutions that structure and uphold global value chain capitalism and the role of judicial method in sustaining it. Section II shows how global value chains do not simply emerge out of an unfettered market, but, instead, their business models are carefully constructed out of legal components. While the premise that legal institutions are important for the development of global capitalism is widely accepted, Section III shifts the focus from legislation to judicial law making. Section IV demonstrates how the core legal components that create global value chains fashion a range of seemingly insurmountable barriers to workers successfully litigating their rights across borders, ranging from matters of jurisdiction to substantive concerns about choice of law and the rights of workers. We argue, by contrast, that many of these obstacles are a matter of judicial choice; they are neither essential nor a matter of legal truism, and to support our argument we identify the rare departures from the common judicial narrative. Section V concludes by juxtaposing competing judicial conceptions of the role of judges in placing responsibility on corporations at the top of GVCs.

II.  Legal Institutionalism and Value Chain Capitalism The term ‘value chain capitalism’ captures the transformation in the organisation of production away from vertically integrated firms in which supply, production and distribution are integrated through a network of subsidiaries to one in which these functions are ‘disaggregated, geographically dispersed and contractually coordinated’ through a chain of suppliers, contractors and subsidiaries.3 While technological change, especially digitalisation, propelled the disaggregation of production from firms to chains, international trade rules such as the General Agreement on Tariffs and Trade initiated the process of creating legal conditions for global trade and commerce beyond the reach of individual nation states.4 Combined, these processes enabled large transnationals firms to disaggregate production and to disperse its components around the globe. In 2014, former Director-General of the World Trade Organization (WTO) Pascal Lamy observed that GVCs, as the ‘face of the modern global economy’, are creating a ‘new world of trade’.5 In 2020, the World Bank reported on the intensification and concentration of global value chain trade in specific regions (East Asia, Europe and North America) and sectors (electronics, machinery and transport equipment). Significantly, in each country in these regions, global value chains ‘tend to be concentrated among 15 percent of large firms that both import and export and together account for 80 percent of total trade flows’.6 The proliferation and expansion of global value chains means that the jobs of many workers around 3 D Danielson, ‘Situating Human Rights Approaches to Corporate Accountability in the Political Economy of Supply Chain Capitalism’ in D Brinks, J Dehm, K Engel and K Taylor (eds), Power, Participation and Private Regulatory Initiatives: Human Rights under Supply Chain Capitalism (Philadelphia, University of Pennsylvania Press, 2021) 224–42, 227. 4 Q Slobodian, Globalists: The End of Empire and the Birth of Neoliberalism (Cambridge MA, Harvard University Press, 2018). 5 G Baars et al, ‘The Role of Law in Global Value Chains: A Research Manifesto’ (2016) 4 London Review of International Law 57–79, 59. 6 World Bank, Trading for Development in the Age of Global Value Chains (2020) 15.

252  Judy Fudge and Guy Mundlak the world are directly dependent on them. Indeed, the ILO estimated there were 435 million global supply-chain-related jobs in 2013.7 TNCs have constructed complex supply chains by taking advantage of ‘geographic dispersion in costs, surplus labour and state policy’.8 This dispersion, along with ‘the interdependence of the different participants in the chain and dependence of suppliers on chain access, gives large buyer firms extraordinary bargaining power over suppliers and states’.9 The geographic flexibility of TNCs located in the Global North at the top of the chain enables them to engage in regulatory arbitrage and to extract large mark ups at the expense of consumers, suppliers and workers in the Global North and South.10 The two key features of GVCs – the fragmentation of production and its geographic dispersion – distance lead firms from legal liability for the violations of the rights of workers employed further down the chain. These strategies enable lead firms to escape the regulatory reach of territorially based legal jurisdiction. Conventionally, law is treated as an ‘institutional backdrop against which the economic and inter-organisational dynamics driving the globalisation of production play out’.11 However, legal concepts, doctrines and institutions such as property, contract and the corporation do not simply facilitate markets by correcting information and types of market asymmetries. The imaginary of a ‘free’ market obscures the ways in which legal components are used to constitute GVCs so that their liability for harms for activities from which they profit is minimised.12 Legal institutionalists place law at the centre of capitalism and they focus on the key elements, what Katharina Pistor calls ‘modules’, of private law that create the ‘legal code’ of capitalism.13 These components are combined and recombined in a highly modular form to fashion capitalism. It is the malleability of these legal components, the way in which they can be manipulated and combined by lawyers, lobbyists, accountants and strategists, that endows them with their productive power.14 These private law arrangements enable parties to organise their horizontal arrangements ‘while resting assured that these arrangements will (in all likelihood) be enforceable in a court of law’.15 The very same private arrangements that create the links within the value chain also place the burden of proof on third parties, such as workers or consumers, who seek to challenge the ways in which the lead firm has assembled the chain to distance itself from such claims.16 Moreover, such a challenge must overcome the powerful sense that these components of private law are natural, essential and indisputable features of ‘free’ markets.

7 ILO, World Employment and Social Outlook 2015: The Changing Nature of Jobs (Geneva, ILO, 2015) 133. 8 A Kumar, Monopsony Capitalism: Power and Production in the Twilight of the Sweatshop (Cambridge, Cambridge University Press, 2020) 19. 9 Danielson (2021), above n 3, 227. 10 World Bank (2020), above n 6, 84–86. 11 Baars (2016), above n 5, 60 12 ibid, 54. 13 K Pistor, The Code of Capital: How the Law Creates Wealth and Inequality (Berlin, De Gruyter 2019), 13. 14 ibid. 15 K Pistor, ‘The Code of Capital: How the Law Creates Wealth and Inequality – Core Themes’ (2021) 11 Accounting, Economics and Law 1–7, 2–3. 16 MP Gergen, ‘Privity’ in A Gold et al (eds) The Oxford Handbook of the New Private Law 481 (Oxford, OUP 2020).

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III.  What Do Judges Do? The Legal Construction of Global Value Chains Judges play a crucial role in the realm of private law, the domain in which the key legal components of the code of capitalism are fabricated and assembled.17 In the process of adjudication judges mould some of the key legal components of capitalisms and rule on the validity of its specific combinations. Since this process is dispersed and decentralised, judicial interpretation seeks to achieve decisional coherence through its commitment to the rule of law – universality, consistency and neutrality.18 Judges appear to be treading familiar and well-established legal paths when applying particular legal doctrines. At the same time, however, judges are confronted by an economic, industrial and political context that may bear scant resemblance to the context in which these doctrines were developed decades and, perhaps, centuries ago. In such cases, the common law, in particular, gives judges an opportunity to develop private law to meet these new conditions. Transnational litigation offers judges the choice of following the well-worn path of relying on familiar constructs of private law or setting out in a new direction by adapting and developing private law doctrines for a changing economic regime. The productive power of private law is essential for the construction of global value chains. Corporate lawyers combine and recombine key legal components, especially contract (‘privity’), corporate law (‘corporate veil’) and international private law (‘national attribution of conflicts’) to construct global value chains.19 In doing so, they engage in what Maureen McBarnet calls ‘transnational legal work’ to construct ‘creative compliance’ which goes beyond simple regulatory arbitrage and involves ‘playing’ with the different laws within one territorial jurisdiction or across several to find advantageous legal categories.20 The corporation is a key legal component of global value chains. The legislative grant of power whereby the corporation is treated as a unitary entity with a legal personality that is separate from its investors (shareholders), and shareholder liability that is limited to the extent of the value of their ownership shares, exempts corporations from the normal operation of contract, property and liability laws.21 But a legal form that was designed to facilitate capital formation for investment when ‘only people – natural persons – were owners’, today has ‘been stretched to apply to multinational corporate groups with subsidiaries, joint ventures, contractors, and other types of affiliates in up to 200 states and territories around the world, each of which is legally construed as a separate and independent entity’.22 Separate legal personality and limited liability distance lead firms from harms that occur further down the chain. 17 Pistor (2019), above n 13. 18 Z Adams, ‘Labour Law, Capitalism and the Juridical Form: Taking a Critical Approach to Questions of Labour Law Reform’ (2020) 50 Industrial Law Journal 434; U Baxi, ‘Some Newly Emergent Geographies of Injustice: Boundaries and Borders in International Law’ (2016) 23 Indiana Journal of Global Legal Studies 15. 19 KH Eller, ‘Is “Global Value Chain” a Legal Concept?’ (2020) 16 European Review of Contract Law 3, 13. 20 D McBarnet, ‘Transnational Transactions: Legal Work, Cross-Border Commerce and Global Regulation’ in M. Likosky (ed), Transnational Legal Processes (LexisNexis, Butterworths, 2002). 21 D Ciepley, ‘Beyond Public and Private: Toward a Political Theory of the Corporation’ (2013) 107 American Political Science Review 139. 22 JG Ruggie, ‘Global Governance and New Governance Theory: Lessons from Business and Human Rights’ (2014) 20 Global Governance 5, 13.

254  Judy Fudge and Guy Mundlak Operating simultaneously as both a linking and distancing device, contract is another essential component of global value chains. Companies in the chain are distinct legal entities linked together via a series of bilateral contracts. At the same time contractual privity binds the parties who have consented to the contract, it distances them from interference by, and responsibility to, third parties, thereby imposing ’an individualistic operating logic’ that typically restricts the possibility of legal claims by chain actors only to those actors with who they have a direct contractual relationship.23 Although contracts within the chain are conventionally treated by private law as independent and separate legal arrangements, in fact, they are embedded within a web of interdependent relationships.24 Since effective control is a prerequisite for the fragmentation of production, precisely how contract operates both as a legal device to limit the liability of leading actors within the chain, and as form of governance that extends beyond privity is a perplexing question, one which judges seek to sidestep for pragmatic and conceptual reasons.25 Private international law is also a critical legal component of global supply chains since it establishes the place (jurisdiction) in which a legal action can be launched and the laws of the jurisdiction that govern the resolution of the claim. Upendra Baxi explains how three organising concepts of private international law – competence (jurisdiction), comity and convenience – bear little resemblance to the geographies of production and exploitation.26 Rules, ranging from the mundane such as limitation periods to more substantive formulations of tort doctrines, differ across legal systems. These principles of private international law are structured in ways that offer advantages to the lead actors within the supply chain. Since global supply chains span multiple legal systems, conflict-of-law rules give dominant firms substantial leeway to pick and choose among the legal rules of different jurisdictions.27 Moreover, courts tend to defer to contractual (choice of law) clauses specifying which jurisdiction’s rules should govern disputes arising under the contract, a choice that typically favours the party with the most power to set the terms of the contract. Judges can devise alternative paths with the traditional corporate, contract and territorial legal constructs. The tort of negligence exemplifies the judicial capacity for creative adjudication that still conforms with the traditional logic of private law. For example, Salminen shows, in the context of expanding manufacturers’ liability to consumers, how private law in both common law jurisdictions and civil law systems developed in response to the rise of mass production.28 This analysis demonstrates that judicial reasoning is an open-ended process in which judges make choices between adhering to traditional constructs and developing the law to fit traditional values to changing economic realities. In the next section we explore the extent to which judges have reconsidered the assemblage of legal components 23 A Rühmkorf, ‘Towards Sustainable Supply Chain Networks: Mandatory Human Rights Due Diligence as a New Governance Tool?’ in RM Barker and I h-Y Chiu (eds), The Law and Business of Decentralised Business Models: Between Hierarchies and Markets (Abingdon, Routledge 2020) 116–48. 24 F Cafaggi and P Iamiceli, ‘Regulating Contracting in Global Value Chains. Institutional Alternatives and their Implications for Transnational Contract Law’ (2020) 16 European Review of Contract Law 44, 57. 25 J Salminen, ‘Towards a Genealogy and Typology of Governance Through Contract Beyond Privity’ 16 European Review of Contract Law 25. 26 Baxi above n 18, 26. 27 Pistor above n 15, 5–6. 28 J Salminen, ‘From Product Liability to Production Liability: Modelling a Response to the Liability Deficit of Global Value Chains on Historical Transformations of Production’ (2019) 23 Competition & Change 420; see ­generally, S Whittaker (ed), The Development of Product Liability (Cambridge, Cambridge University Press, 2010).

Transnational Labour Litigation  255 that have been used to distance workers from the centres of power and have developed legal mechanisms to bind lead firms to foster a greater sense of responsibility to those located further down the supply chain.

IV.  The Choices Judges Make Despite TNCs’ unprecedented power and control over the actors embedded in the local economies at the bottom of the value chain, there is scant case law involving workers asserting their rights against them and, for the most part, what little there is, is unsupportive. Judicial convergence around the need to expand manufacturers’ product liability has not spilt over into lead firms’ responsibility, whether moral or legal, for workers’ rights. The intuition that CSR obligations, which TNCs embrace and publicise to demonstrate their allegiance to universally recognised fundamental rights, should ground a legal obligation has, so far, kindled little acceptance in courtrooms around the world. Attempts to persuade judges to forge responsibility down the supply chain have been met with judicial reasoning that, like an onion, reveals a new legal issue once another is peeled away, with the result that litigation rarely cuts to the core. Questions of jurisdiction lead into the choice of law and, this issue, in turn, requires delineating a legal claim that can assign responsibility to the lead firm. These layers, however, are not wholly separable; questions of jurisdiction or standing, for example, depend on the cause of action asserted in the workers’ claim. On top of these formal legal hurdles, the practicalities of transnational litigation are hardly accommodating of workers’ claims; the path for the workers who suffered harm to a courtroom in the country where the TNC at the top of the chain is located appears infinitely long. The jurisdictional question is the first challenge facing workers bringing an action in the territory in which a lead firm in a global value chain resides. In some instances, jurisdictional grounds alone are sufficient to dismiss the case. Judges emphasise the distance between where the harm to the workers’ occurred and the state in which the workers seek to assert their claim. Even laws that allow extra-territorial jurisdiction, such as the Alien Tort Claims Act or the Trafficking Victims Protection Reauthorization Act in the United States, are narrowly interpreted and treated as admitting extraterritorial jurisdiction only in exceptional cases.29 Moreover, even when jurisdiction is acknowledged plaintiffs must often respond to counterclaims that courts should exercise their discretion to acknowledge forum (jurisdiction) non-conveniens. When jurisdiction is accepted in a case of transnational labour litigation, the choice of law rules courts apply point to the law in the state where the workers’ rights were violated. While contractual claims may raise the possibility that the law where the TNC resides and manages control may govern the dispute, judges often defer to contractual clauses that are drafted to distance the dispute. Similarly, judges treat negligence claims as indicating

29 For the US Alien Torts Claims Act, see Kiobel v Royal Dutch Petroleum Co 569 US 108 (2013); for the US Trafficking Victims Protection Reauthorization Act, see Jane Doe et al v Apple Inc et al, Case No 1:19-cv-03737 (US District Court, District of Columbia, 2019).

256  Judy Fudge and Guy Mundlak the territorial law where the workers performed their work, and not where the corporate decisions that discount monitoring and enforcement take place.30 The consequences of this layering of legal issues is aptly illustrated by David Doorey’s analysis of the Canadian case of Das v George Weston Ltd, which involved a class action in negligence brought by victims of the Rana Plaza catastrophe against the large Canadian retailer that contracted with a local manufacturer in Bangladesh and a CSR auditing company.31 While the motions court acknowledged that Ontario courts had jurisdiction to hear the action, it applied the law of Bangladesh – the lex loci delicti. Consequently, the court applied the very short limitation period provided under the Bangladeshi law, barring the claims of all the workers who were not minors. Short limitations periods were similarly considered a bar to litigation by Rana Plaza victims brought in the United States and by victims of a fire in a Pakistani factory in a lawsuit lodged in Germany.32 The transnational aspect of the litigation is often sufficient to dismiss the case and this result is not a mere coincidence. TNCs’ choice of where to source production often rests, inter alia, on the legal system and its benefits to the TNC. For this reason, states devise legal rules and processes that accommodate the interests of the TNCs to attract their business. Thus, the effect of respecting comity is to distance the dispute to places where the interests of the host state and the TNC coincide. The third layer of legal resistance to workers’ claims is based on an absence of privity. In a class action lawsuit brought in the US on behalf of workers employed by Walmart’s suppliers against the giant retailer for breach of its code of conduct, a federal appellate court provided an inventory of the arguments that distance workers from the firm at the top of the chain.33 In dismissing the claim that a corporate code applying to contractors creates an obligations towards the contractors’ workers, the court refused to accept an argument that built on exceptions, such as third-party beneficiary doctrine, to privity in contract law. It also declined the contractual claim that relied on developments in employment law, such as the responsibility of joint employers. Various torts claims that would have held the giant retailer liable for failing to monitor the employment practices of the contractors were rejected because the court found that Walmart did not owe the workers a duty of care. Finally, the court refused the claim of unjust enrichment on the ground that enrichment is not unjust if there is no prior direct contact and expectations between the workers and the parent company. Subsequent cases in different jurisdictions have adopted one or more of these distancing devices.34 Rare exceptions, involving consumers suing lead firms for unfounded statements of social responsibility, can be found in situations where traditional privity could be identified.35 30 In Germany see: Jabir and others v KiK Textilien und Non-Food GmbH (Case No 7 O 95/15), dismissed in 2019; in Canada, Das v George Weston Limited, 2018 ONCA 1053 (application to appeal dismissed by the Supreme Court in 2019). 31 D Doorey, ‘Lost in Translation: Rana Plaza, Loblaw, and the Disconnect Between Legal Formality and Corporate Social Responsibility’, Unpublished Paper (2018). Available at: papers. ssrn. com/sol/papers. 32 In the US, see Rahaman et al v JC Penny Corporation, Inc et al, CA No N15C-07–174 mmj (Delaware Superior Court, 2016); in Germany, see Jabir and others (2019), above n 30. 33 Jane Doe v Walmart Stores, Inc 572 F3d 677 (US Court of Appeal for the 9th Circuit, 2009). 34 Similar reasoning appears in the matter of Jabir v Kik (Germany) and Das v Weston (Canada), see above n 30. 35 Board of Regents of the University of Wisconsin v Adidas America (lawsuit filed in 2012, and later withdrawn by plaintiff after settlement); Kasky v Nike, Inc, 27 Cal 4th 939 (Supreme Court of California, 2002). But even consumers’ claims, constructed with full privity based on consumer protection legislation, encountered judicial obstacles; see, eg, Barber v Nestlé USA, Inc, 154 F Supp 3d 954 (US District Court for the Central District of California, 2015).

Transnational Labour Litigation  257 Courts have emphasised the voluntary nature of corporate codes of conduct as a key reason for refusing to juridify them. In the Walmart case, the federal appellate court held that while the corporate code allowed the retailer to monitor suppliers it did not require Walmart to do so, and, thus, the code did not create any kind of obligation towards the alleged beneficiaries of such monitoring activities.36 In Das v Weston, the Ontario court opined that although self-imposed corporate codes indicate that retailers accept some moral responsibility for the actions of their contractors, it was concerned that transforming the moral duty into a legal one would deter, ex ante, TNCs from assuming any responsibility whatsoever. For this reason, the court chose not to juridify the voluntary code of conduct, a decision that Doorey rightly claims makes CSR obligations a matter of mere ‘window-dressing’.37 A similar approach, albeit relying on corporate law, is evident in the US decision in a class-action lawsuit brought against Apple, Google, Alphabet, Microsoft, Dell and Tesla on behalf of children who were alleged to be victims of forced labour who faced serious injuries from hazards in cobalt mines in the Democratic Republic of Congo. The plaintiffs attempted to overcome the jurisdictional barrier by claiming that the Trafficking Victims Protection Reauthorization Act’s application to a ‘venture’ should be interpreted to address the corporations’ supply chain. Refusing to adopt such an expansive interpretation, the court adhered to traditional corporate law and contract doctrines and held that the giant TNCs were separate entities from their suppliers and too distant from the causal chain. According to the US District Court for the District of Columbia: the only connection that Plaintiffs allege with specificity is that Defendants are end-purchasers of refined cobalt …. It might be true that if Apple, for example, stopped making products that use cobalt, it would have purchased less of the metal from Umicore, which might have purchased less from Glencore, which might have purchased less from CMKK, which might thus have instructed Ismail to stop purchasing cobalt from child artisanal miners, which might have led some of the Plaintiffs to not have been mining when their injuries occurred. But this long chain of contingencies, in all its rippling glory, creates mere speculation, not a traceable harm.38

This quotation succinctly captures the reasoning by which courts distance lead firms from legal responsibility for their value chains. By contrast, the United Kingdom Supreme Court overcame the jurisdictional hurdle by developing a different approach to TNCs’ liability for the actions of subsidiaries. At issue in Vedanta Resources plc v Lungowe was whether the parent corporation located in the UK was liable for the failure of its subsidiaries in Zambia to comply with health, safety and environmental standards.39 Significantly, the Court extended proximity and responsibility beyond the criterion of ‘active’ control, stating: [t]he parent may incur the relevant responsibility to third parties if, in published materials, it holds itself out as exercising that degree of supervision and control of its subsidiaries, even if it does not in fact do so. In such circumstances its very omission may constitute the abdication of a responsibility which it has publicly undertaken.40 36 See Doe v Walmart (2009), above n 33. 37 Doorey (2018), above n 31. 38 See Jane Doe et al v Apple Inc et al (2019), above n 29, 21–22. 39 Vedanta Resources plc. v Lungowe [2019] UKSC 20. This case was further extended in cases concerning environmental claims – Okpabi & Ors v Royal Dutch Shell Plc & Anor [2021] UKSC 3. 40 ibid, 55.

258  Judy Fudge and Guy Mundlak Although Vedanta involved a parent corporation with subsidiaries, rather than the more typical contractor arrangements in consumer-facing, buyer-driven GVCs, the ruling provides an open-ended framing of responsibility. The Court specifically asserted that in a case of tortious liability for harms to persons affected by activities there is nothing ‘special or conclusive about the bare parent/subsidiary relationship’; control and assumption of responsibility are the key elements for establishing a duty of care.41 The adaption of common law tort doctrine to the economic and social realities of GVCs by the British courts received further traction from the Canadian Supreme Court in Nevsun, a case involving a Canadian mining company whose subsidiary was alleged to have used forced labour provided under the Eritrean National conscription scheme in its Eritrean mine.42 Building on prior case law, the Court developed a common law tort based on customary international law, namely – the prohibition of forced labour, slavery, cruel, inhumane or degrading treatments and crimes against humanity. Noting that ‘it is not “plain and obvious” that corporations today enjoy a blanket exclusion under customary international law from direction liability for violations of obligatory, definable and universal norms of international law’, Justice Abella held that this tort could make corporations liable in domestic courts for violations committed in other jurisdictions.43 While justly applauded by advocates of transnational labour litigation for peeling away many of the legal impediments to lodging claims against lead firms in GVCs, it is important to recognise the limits of Nevsun.44 The first level court did not allow the plaintiffs to proceed with a class action despite the fact that between 2008 and 2016 over 1,000 Eritreans were conscripted to work at the mine.45 Moreover, the case involved a situation of direct ownership, coupled with the most severe forms of forced labour. Such reasoning may exclude judicial intervention and, hence legitimate, lesser forms of labour violations occurring in GVCs fashioned out of contractual arms-length relations.46 It is an open question as to whether Nevsun will revitalise or obstruct efforts to pursue transnational litigation to vindicate more common claims of wage theft, for example, against lead firms espousing elaborate CSR commitments. This decision could become an important inflection point in the future of transnational labour litigation. The question is whether judges will choose either to develop the law in the direction of Nevsun or to dig in their heels and continue down the well-trodden path that is obstructed by legal hurdles.

41 ibid, 54. 42 Nevsun Resources Ltd v Araya, 2020 SCC 5. 43 ibid, 113. 44 See A Kamalnath, ‘Transnational Corporations and Modern Slavery: Nevsun and Beyond’ (2021) 21 Journal of Corporate Law Studies 491–515; H S Fairley, ‘International Law Matures within the Canadian Legal System: Araya et al v Newsun Resources Ltd’ (2021) 99 Canadian Bar Review 193; E Monteiro, ‘Mining for Legal Luxuries: The Pitfalls and Potential of Nevsun Resources Ltd v Araya’ (2021) 58 Canadian Yearbook of International Law/ Annuaire canadien de droit international 331. 45 Nevsun Resources Ltd v Araya, 2016 BCSC 1856, para. 486–569. 46 This critique is similar to that made of the ILO’s decision to focus on the Declaration on Fundamental Principles and Rights at Work by P Alston, ‘“Core Labour Standards” and the Transformation of the International Labour Rights Regime’ (2004) 15 European Journal of International Law 457.

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V.  Conclusion: Choices Judges Should Make The preceding brief review of cases involving transnational labour litigation reveals that, for the most part, judges are reluctant to peel away the legal layers that TNCs have constructed to distance themselves from liability for the actions of their global value chains. Since they generally defer to how TNCs combine the components of private domestic and international law, it is obvious that judges do not perceive their role as reformers, let alone revolutionaries. What accounts for this perception? Excerpts below from two key cases, suggest that at the core of the onion is a contested understanding of the courts’ constitutional role within the separation of powers. Reversing a lower court ruling that had allowed six men to sue Nestlé USA and Cargill over claims they were trafficked as child slaves to farms in Côte d’Ivoire that supply cocoa to the two giant food companies, the United States Supreme Court proclaimed: This Court has never – not once in 230 years – invoked the Alien Tort Statute to create a new cause of action. Of course, courts at common law may have enjoyed the power to create (or ‘recognize’) causes of action. But the power to create a cause of action is in every meaningful sense the power to enact a new law that assigns new rights and new legally enforceable duties. And our Constitution generally assigns that power to Congress.47

The message from the Court is clear; judges overstep their constitutional authority if they develop the common law to recognise new causes of action to protect workers’ rights. Although the weight of judicial opinion is that courts should not develop legal doctrines that would facilitate transnational labour litigation, this view is not universal. The highest courts in both the United Kingdom and Canada have begun to adapt legal doctrines to meet the challenges of global value chain capitalism. In Nevsun, the Supreme Court of Canada was explicit in stating that judges have a responsibility to develop the law to meet these challenges, claiming that international human rights norms were not meant to be theoretical aspirations or legal luxuries, but moral imperatives and legal necessities. Conduct that undermined the norms was to be identified and addressed. The process of identifying and responsively addressing breaches of international human rights law involves a variety of actors. Among them are courts, which can be asked to determine and develop the law’s scope in a particular case. This is one of those cases.48

Judicial passivism in the face of TNCs’ creative manipulation of legal components to construct global value chains that distance them from workers who produce the products they profit from, is as much a choice as judicial activism to questioning the way TNCs cocoon themselves from liability for the harms caused to workers by the value chains they control. There is always a choice; the question is which one should judges make?



47 Nestlé

& Cargill v Doe, 593 US___ (2021) Gorsuch concurring, in a 4–4 decision. above n 42, para 1.

48 Nevsun,

260

23 The Use of Arbitration to Resolve Transnational Labour Disputes KATERINA YIANNIBAS

I. Introduction When harm occurs, redress is sought. When harm occurs in a cross-border context with the presence of inequality of arms – which can often be the case in labour-related disputes – seeking redress becomes a challenge both legally and practically. When faced with the possibility of a denial of justice because of the difficulties of accessing judicial remedy,1 whether because of the legal challenges of establishing jurisdiction, the insufficiency of the applicable law, the fear of reprisal, the sheer cost, the urgency for a resolution, among a number of other concerns, a question arises: Can arbitration overcome some of the legal and practical barriers faced when bringing transnational labour-related claims through existing mechanisms of redress, particularly national courts?

The question is not whether arbitration should supplant judicial remedy and thus circumvent the very necessary State responsibility to provide effective enforcement of labour rights, but rather whether arbitration can provide another option for rights holders to seek remedy. There are linkages between public and private mechanisms that are worth exploring. Focusing on the centrality of the rights holder renders primordial the issue of access. And fundamental to access is the power of choice. Providing various options for redress recognises that there is no ‘one-size-fits-all’ solution for the myriad of circumstance of the involved parties or the nature of the dispute. Of note, choice derived from options empowers the rightsholder. This chapter seeks to set out the strategic advantages of the arbitration mechanism as an option for the resolution of transnational labour disputes, as well as advancements to adapt the arbitration mechanism for its use to resolve transnational labour disputes; specifically, The Hague Rules on Business and Human Rights Arbitration and the Model Arbitration Clauses for the Resolution of Disputes Under Enforceable

1 See generally, Juan José Álvarez Rubio and Katerina Yiannibas (eds) (2017), Human Rights in Business: Removal of Barriers to Access to Justice in the European Union; see also Gwynne Skinner Robert McCorquodale, Olivier De Schutter, and Andie Lambe (2013) The Third Pillar: Access to Judicial Remedies for Human Rights Violations by Transnational Business (International Corporate Accountability Roundtable (ICAR), CORE Corporate Accountability Coalition, European Coalition for Corporate Justice (ECCJ) Report.

262  Katerina Yiannibas Brand Agreements, and finally, notable developments and areas for continued consideration moving forward.

II.  Advantages of the Arbitration Mechanism in a Cross-border Context Arbitration is a non-judicial and non-State based mechanism that provides a final and binding resolution (an arbitral award) with international enforcement by one or more third-party neutrals. One immediately recognisable advantage therefore is the mechanism’s certainty of outcome. In contrast to mediation or other forms of facilitated settlement, compliance with an arbitral award is not voluntary. In contrast with a foreign judgment rendered by a national court, recognition and enforcement of an arbitral award is immediate in any of the 169 Contracting States of the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), subject only to few exceptions.2 The New York Convention obliges Contracting States to recognise and to enforce foreign awards in the same way as domestic awards, as well as requiring national courts to give full effect to arbitration agreements by requiring courts to enforce arbitration agreements and deny parties access to court in contravention of their agreement. The unparalleled utility for enforcement derived from the New York Convention affords parties the possibility of obtaining awards subject to limited judicial review and enforceable across borders. Another salient feature of the arbitration mechanism that may render it advantageous for the resolution of transnational labour disputes is the various ways in which neutrality manifests. Arbitration is a creature of contract. Accordingly, parties can make choices surrounding the design and the conduct of the arbitration to better meet their needs and their collective sense of fairness.3 To start, arbitration can provide a neutral forum independent of both the parties and their home states, thus removing the inherent sense of bias from the selection of a forum between parties of different nationalities and legal traditions. The parties can choose the language or languages used in the conduct of the arbitration, in the parties’ written and oral submissions, in the procedural orders and in the award(s) issued by the arbitrator(s). This can promote a greater sense of accessibility and inclusion, not to mention a cost-saving measure since official legal translation or interpretation can augment costs. Akin to the choice of forum, parties can select expert adjudicators that are not of the nationality of the parties. Party autonomy over the selection of the arbitrator(s) can help to promote and to ensure that the adjudicating arbitral authority has the relevant competence in international labour rights. Parties can alternatively designate an appointing authority to facilitate the selection of the arbitrator(s) or draw from an established roster.4 2 United Nations Commission on International Trade Law, Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (UNCITRAL, New York Convention). See specifically Art V for the exceptions to recognition and enforcement. A full list of Contracting States is available at: www.newyorkconvention.org/ list+of+contracting+states. 3 It is important to note here that the procedural decisions which parties make concerning dispute settlement are also choices of cultural preference. 4 The United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules designate the Secretary-General of the Permanent Court of Arbitration (PCA) to act as the appointing authority. The PCA maintains specialised panels of arbitrators but has yet to develop a specialised list of arbitrators or experts in the areas of human rights or labour, as it has for environmental disputes and space related disputes.

The Use of Arbitration to Resolve Transnational Labour Disputes  263 The selection of a neutral and highly specialised adjudicator in the specific matter of the case at hand can augment the credibility of the process and thus the legitimacy of the outcome. The inherent adaptability of arbitral process and design lends broad autonomy to the parties. However, with great choice comes great responsibility. There is work in foreseeing what issues need to be adapted to the particularities of a case. This work is made even greater a task for those unfamiliar with arbitral processes. The work to modify the applicable rules of arbitral process after the commencement of arbitration is most often done by counsel. This involves time, which when lawyers are involved, often means more money. Identifying and modifying arbitral processes to better meet the needs of parties when a human rights or labour-related claims are at issue is work that has already been initiated. This essay explores two of those instruments: The Hague Rules on Business and Human Rights Arbitration and the Model Arbitration Clauses for the Resolution of Disputes Under Enforceable Brand Agreements.

III.  The Hague Rules on Business and Human Rights Arbitration The Hague Rules on Business and Human Rights Arbitration (The Hague Rules) offer a comprehensive set of procedural rules for the conduct of arbitration involving disputes concerning adverse business-related human rights impacts.5 In the field of international arbi­ tration, the adoption or to amendment of arbitration rules and related instruments is most often relegated to the working groups of the United Nations Commission on International Trade Law (UNCITRAL)6 or renowned arbitral institutions. The Hague Rules emerged out of a different approach, completely independent of the inter-State model and independent of any one arbitral institution. Instead, The Hague Rules were developed by an independent group of jurists in coordination with input from a sounding board of hundreds of diverse experts and two rounds of online global consultation. Because business and human rights exist at the intersection of various schools of discipline and practice, the convergence of various expertise was necessary. The work to converge perspectives and to produce a useful deliverable was done by the drafting team of The Hague Rules. The drafting team, led by Judge Bruno Simma, consisted of 14 experts from diverse professional backgrounds – ­representing business, civil society, academia, arbitral institutions, as well as practising attorneys, judges and arbitrators – with expertise in human rights, arbitration, litigation, collaborative forms of settlement, operation of supply chains, and other topics relevant to the elaboration of a set of business and human rights arbitration rules.7 As a way to include an even wider range of expertise and perspective, the drafting team further assembled a sounding board with members ranging from representatives of government to non-governmental organisations to general counsel of multinational enterprises. An iterative and transparent drafting process commenced in January 2018. The result, published in December 2019, makes key 5 For the full text of The Hague Rules on Business and Human Rights Arbitration, see www.cilc.nl/cms/wp-content/ uploads/2019/12/The-Hague-Rules-on-Business-and-Human-Rights-Arbitration_CILC-digital-version.pdf. 6 For a full list of UNCITRAL arbitration instruments, see https://uncitral.un.org/en/texts/arbitration. 7 For a full list of the Drafting Team members of The Hague Rules on Business and Human Rights Arbitration, see www.cilc.nl/project/the-hague-rules-on-business-and-human-rights-arbitration/.

264  Katerina Yiannibas amendments to the UNCITRAL Arbitration Rules 2013 so as to introduce procedural ­safeguards for cases related to adverse human rights impacts. While procedural rules can go only so far in solving larger systemic challenges for rightsholders, one of the useful aspects of the modification of the arbitral process is to signal issues for both the arbitral ­authority and the parties. Some of the procedural safeguards in The Hague Rules that could be strategic to consider in seeking to resolve transnational labour disputes include are: transparency as a default option; protection of parties, representatives and witnesses; independence and expertise requirements for adjudicators; availability of collective redress; and the rights-compatibility of the outcome.

A.  Transparency as a Default Option Due to the public interest inherent in the adjudication of human rights claims, The Hague Rules provide for transparency as the default option. At the commencement of arbitration, the Rules provide that each party to the dispute is to communicate a copy of the notice of arbitration and the response to the notice of arbitration to the repository (designated as the International Bureau of the Permanent Court of Arbitration).8 Unless a party makes an application to the arbitral tribunal, the repository will make the names of the disputing parties, the economic sector involved, as well as the legal instrument under which the claim is being made, publicly available.9 Moreover, Article 42 of the Rules provides that the following documents will be publicly available: the notice of arbitration, the response to the notice of arbitration, the statement of claim, the statement of defence; a list of all exhibits, expert reports and witness statements; the orders, decisions and awards of the arbitral tribunal. Of note, arbitration rules cannot limit the parties’ autonomy to derogate from rules as they choose. So, it therefore becomes relevant to identify under what circumstances the Rules allow the parties to depart from the default rule. The Rules do lend discretionary power to the arbitral tribunal to adapt the transparency requirements as necessary, taking into account the public interest, the parties’ interest in a fair and efficient process, the ­potential for aggravating conflict, and the need to protect the safety of the parties, witnesses, ­representatives or others involved in or affected by the proceedings.10

B.  Protection of Parties, Representatives and Witnesses Confidentiality in international arbitration can lend a sense of secrecy, which for some results in a lack of trust in the process, since confidentiality can be a means of avoiding scrutiny or public accountability. While there is that concern, certain uses of confidentiality can also help to protect parties, witnesses and representatives from intimidation, physical

8 The Hague Rules on Business and Human Rights Arbitration (2019) (Hague Rules on BHR Arbitration), Art 1(1). Article 43 indicates that the repository shall regularly publish general information about arbitration under these Rules as a source of continuous learning, including industry sector, names of arbitrators, outcome of cases and costs. 9 ibid, Art 39. 10 ibid, Art 38.

The Use of Arbitration to Resolve Transnational Labour Disputes  265 harm or other forms of reprisals. The United Nations Office of the High Commissioner for Human Rights (OHCHR) has reported an increase in both the number and in the severity of reprisals and intimidation against individuals engaging with affiliated human rights bodies and mechanisms.11 In recognition of this safety concern, the Rules provide that the arbitral tribunal may designate specific representatives in order to protect the identity of a party or its representatives where it may be sensitive in the circumstances of the case.12 For the protection of witnesses, the Rules lend discretion to the arbitral tribunal to determine the manner and conditions under which witnesses will be examined. If there is a legitimate interest of a witness based on a demonstrated genuine fear, the arbitral tribunal may decide to restrict the representatives of the parties who are informed of the identity of the witness13 and can authorise other means of examination that do not require their physical presence at a hearing.14

C.  Independence and Expertise Requirements for Adjudicators There is a strategic advantage in having a choice to select an impartial, respected and highly specialised adjudicator in international labour rights, or other relevant areas of expertise, to decide the outcome in a transnational labour dispute. The Hague Rules provide that an arbitrator must have demonstrated expertise in international dispute resolution and in areas relevant to the subject matter of the dispute.15 Moreover, the Rules provide that the arbitrator must not be a national of the State of any of the parties.16 If varied expertise is needed, the parties can choose to select three arbitrators rather than a sole arbitrator, though this can increase the cost.17 In such a case, the parties would each select an arbitrator and the two party-appointed arbitrators would select the presiding arbitrator. It is important to note that there are no international qualifications for arbitrators, yet. Since arbitrators are party appointed, it is often the case that they are also paid by the parties themselves. The cost arrangement might raise concern for some regarding the independence and impartiality of contracted arbitrators. Impartiality and independence of adjudicators are fundamental towards the legitimacy of a process and outcome. So much so that the New York Convention holds the lack of impartiality of an arbitrator as one of the few grounds for refusal of recognition and enforcement of an arbitral award. To better ensure the independence and impartiality of arbitrators, The Hague Rules include a Code of Conduct that is binding on the parties in assessing the impartiality, independence or qualifications of candidate arbitrators.

11 UNCHR ‘Cooperation with the United Nations, its representatives and mechanisms in the field of human rights’ (HRC 48th session, 29 September 2021) A/HRC/48/28. The United Nations Human Rights Council Resolution 12/2 invites the Secretary-General to submit, annually, a report with a compilation and analysis of any available information, from all appropriate sources, on alleged reprisals for cooperation with the UN in the field of human rights, as well as recommendations. 12 Hague Rules on BHR Arbitration, Art 18(5). 13 ibid, Art 33(3). 14 ibid, Art 33(5). 15 ibid, Art 11(1)(c). 16 ibid, Art 11(1)(d). 17 ibid, Art 7(1). Alternatively, an appointing authority can be used to select the arbitrator(s) (Art 8). The parties can also choose to appoint more than three arbitrators.

266  Katerina Yiannibas In particular, the Code of Conduct requires candidates for appointment as an arbitrator to disclose any interest, including financial, any relationship or any matter that could reasonably be considered as affecting their independence or impartiality, or that might otherwise give rise to a reasonable perception of impropriety.18

D.  Availability of Collective Redress Collective redress, known as class action or mass claims or in other legal traditions, is not always available as a judicial remedy in all jurisdictions but can be a useful and a strategically advantageous approach in cases with a large class of persons whose rights have been adversely impacted. As a general principle, The Hague Rules provide that claims with significant common legal and factual issues should be heard together.19 The Rules indicate that the arbitral tribunal can adopt appropriate procedures for the number, character, amount and subject matter of the claims. Moreover, the Rules also allow the arbitral tribunal to join third party beneficiaries of the underlying legal instrument containing a validly concluded arbitration agreement.20 To facilitate the drafting of a valid arbitration agreement that could be interpreted to allow third party beneficiaries to bring an arbitration against one or more of the parties to the underlying agreement, the annex to The Hague Rules provides model clauses.

E.  Rights Compatibility of the Award Rights compatibility – ensuring that outcomes and remedies accord with internationally recognised human rights – is one of the effectiveness criteria for non-judicial mechanisms under the United Nations Guiding Principles on Business and Human Rights.21 To this end, The Hague Rules require that the arbitral tribunal state the reasons upon which the award is based and additionally require that the award is human rights-compatible.22 This requirement is a signal to the arbitral tribunal to consider human rights in the legal reasoning of the award. Moreover, this rule further assists in fulfilling the arbitral tribunal’s duty to render an enforceable award by ensuring that the arbitral tribunal has considered potential issues of compliance with public policy which may arise under the law of the seat of the arbitration or under the law of the State(s) where enforcement of the award is sought. In applying the law or standards designated by the parties, the Rules also require the arbitral tribunal to take into account any usage of trade, standards or instruments that may have become usages of trade.23 This gives certain discretion and flexibility to the parties and the tribunal in

18 ibid, Code of Conduct, Arts 1–3. 19 ibid, Art 19(1). 20 ibid, Art 19(2). 21 United Nations Human Rights Council, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy Framework”’, A/HRC/17/31 (2011), Principle 31. 22 Hague Rules on BHR Arbitration, Art 45(4). 23 ibid, Art 46(4).

The Use of Arbitration to Resolve Transnational Labour Disputes  267 choosing the normative sources from which the applicable law is drawn. This could include, for instance, industry or supply chain codes of conduct, commitments or regulations from sports-governing bodies or unions, or any other relevant human rights norm.

IV.  Model Arbitration Clauses for the Resolution of Disputes under Enforceable Brand Agreements The publication of The Hague Rules in 2019 highlighted the particular ways in which arbitration could be adapted to provide procedural safeguards to parties seeking remedy for business-related human rights claims. The Hague Rules have inspired other projects, all with the same aim, providing effective remedy for rights holders. Following the launch of The Hague Rules, a coalition of civil society groups – the International Labor Rights Forum, Clean Clothes Campaign, Global Labor Justice, and Worker Rights Consortium – sought to provide a model dispute resolution system centred on arbitration for disputes concerning labour standards in supply chain operations. Building on my knowledge from the drafting of The Hague Rules, I worked closely with these groups as well as with select international labour experts to create a template for a more cost-effective and expedited arbitration model focusing on the needs of both trade unions and employers. This effort resulted in the publication of the Model Arbitration Clauses for the Resolution of Disputes Under Enforceable Brand Agreements (Model Arbitration Clauses).24 In the wake of the Rana Plaza factory collapse in Bangladesh in 2013, which resulted in the loss of over 1,000 lives with thousands more injured, Enforceable Brand Agreements (EBAs) have become an increasingly important mechanism through which trade unions, non-governmental organisations, and multinational enterprises can establish binding accountability for labour rights in the operations of brands’ third-party suppliers. The aim of an EBA is to replace brands’ voluntary and often aspirational corporate socially responsible (CSR) programmes with legally enforceable obligations to require that suppliers respect labour rights.25 The Model Arbitration Clauses are designed to be directly incorporated into such agreements. The Model Arbitration Clauses distil many of the salient features of The Hague Rules: transparency as a default option;26 the protection of parties, witnesses and representatives;27 the possibility of collective redress;28 and an arbitrator code of conduct.29

24 The Model Arbitration Clauses for the Resolution of Disputes Under Enforceable Brand Agreements (Model Arbitration Clauses) were published in June 2020. For the full text, see https/laborrights.org/sites/default/files/ publications/%20Model%20Arbitration%20Clauses%20for%20the%20Resolution%20of%20Disputes%20 under%20Enforceable%20Brand%20Agreements.pdf. 25 Some examples of Enforceable Brand Agreements include the International Accord for Health and Safety in the Garment and Textile Industry (2022) (formerly the Bangladesh Accord on Fire and Building Safety (2013)); the Coalition of Immokalee Workers’ Fair Food Program (2011); Agreements on combating gender-based violence and harassment that have been negotiated by brands, labor unions, women’s rights organisations, and apparel suppliers in Lesotho (2019). 26 Model Arbitration Clauses, above n 24, Art 7. 27 ibid, Art 7(4). 28 ibid, Art 12. 29 ibid, Annex 2.

268  Katerina Yiannibas Where the Model Arbitration Clauses are distinct is that they are more tailored to some of the particularities of labour disputes, in particular time sensitivity.

A.  Expedited Timetable Under the Model Arbitration Clauses, the maximum amount of time that can be expended from the time the notice of arbitration is received through completion of the arbitration is 190 business days.30 The Model Arbitration Clauses include an annex with a timetable setting out a detailed schedule for responses and decisions. The form of the pleadings is part of the expedited process and orients parties to be both brief and precise. The notice of arbitration should serve as the initial statement of claim from the complainant to the respondent. Pleadings should be minimal in length and should set out clearly the question(s) for the arbitrator to decide. The intention here is to limit the back and forth between lawyers over preliminary motions. The process presupposes to some extent that the parties should be fully apprised of their respective positions based on exchanges in the stages leading up to the arbitration. To expedite the issuance of a final award, upon agreement of the parties, each party may submit to the arbitrator its last best offer for resolving the dispute and ask the arbitrator to choose one of these final offers as the basis for the award. Otherwise, the arbitrator’s decision will be based31 on the enforceable brand agreement and where relevant, application of relevant international human rights and labour rights law and standards.

B.  Interim Measures and Remedies for Labour Issues The nature of labour disputes often requires swift and non-monetary solutions. Accordingly, the Model Arbitration Clauses provide a wide and illustrative array of provisional, conservatory, or interim measures for the arbitrator to restore the status quo, prevent irreparable or serious harm or prejudice, preserve evidence, preserve assets, or other criteria normally applied to the issuance of an injunction by a court.32 For instance, an arbitrator may issue an interim order to not dismiss or otherwise retaliate against a worker or, conversely, to immediately reinstate or make whole workers who were dismissed or discriminated or retaliated against.33 Similarly, there are a wide array of remedies particularly relevant to a labour dispute that are available to the arbitrator for the issuance of the final award. The Model Arbitration Clauses set out that the arbitrator may order any remedy available in law or equity to compel the brand(s) to secure compliance by suppliers with labour rights or standards in the enforceable brand agreement – the underlying legal instrument under which the arbitration is being brought. The Model Arbitration Clauses contain an illustrative list of non-monetary relief and include: restitution, rehabilitation, satisfaction, specific

30 ibid, Annex 1. The arbitrator may, at any time, upon party agreement, modify any period of time prescribed or agreed by the parties. 31 ibid, Art 13(3). 32 ibid, Art 11(1). 33 ibid, Art 11(2).

The Use of Arbitration to Resolve Transnational Labour Disputes  269 performance, mandatory training, and the provision of guarantees of non-repetition.34 The aim here is to signal what is possible to both the arbitrator and the parties.

C.  Fairness in Costs The issue of costs is of concern to any party seeking a formal remedy. But this concern is heightened when there exists an inequality of arms between the parties. As the old adage goes: money doesn’t grow on trees. It does not grow in a set of arbitral procedural rules or clauses either. The costs concern is indeed serious, since lack of funding can in and of itself lead to a gatekeeping denial of justice. While the Model Arbitration Clauses cannot purport to solve this problem outright, they do point to a potential solution. The Clauses suggest that the parties ‘make every effort’ to establish a fund within the enforceable brand agreement to cover arbitrator’s fees and expenses as well as common costs of the arbitration.35 If there is no fund established under the EBA, the Clauses indicate that the parties bear the common costs of the arbitration, including the arbitrator’s fee and expenses, equally. However, the arbitrator may take into consideration the relative financial resources of the parties, as well as the nature of the dispute and the particular facts and circumstances of the case, to allocate the common costs to the parties in differing amounts.36

V.  Moving Forward: Progress and Areas for Continued Consideration The Hague Rules and the Model Arbitration Clauses have spotlighted some of the elements particular to human rights and labour disputes that require more attention through safeguards that can be afforded through arbitral process. The work has not stopped there. Other related projects have emerged that continue to highlight the nuances of a more specialised approach to the design of arbitral process to provide more effective access to remedy for rights holders: the International Labour Arbitration and Conciliation Rules (ILAC Rules),37 the Sport and Human Rights Dispute Resolution Mechanism38 and the Human Rights at Sea Arbitration.39 There is an increased focus on making the United Nations Guiding Principles

34 ibid, Art 13(2). 35 ibid, Art 14(2). 36 ibid, Art 14(3). 37 The ILAC Rules is a project of Uni Global Union. For a full text of the ILAC Rules, see img1.wsimg.com/ blobby/go/7b3bb7ce-48dc-42c3-8e58-e961b9604003/downloads/2021%20July%202-International_Labour_ Arbitration__.pdf?ver=1649148713026. The ILAC Rules are mentioned in the Orpea SA Global Agreement for a Partnership on Ethical Employment, Social Dialogue, Collective Bargaining and Trade Unions Rights (April 2022), see specifically, Art 7.3: If the corresponding dispute has not been resolved through mediation or otherwise, any party may seek a final and binding resolution by arbitration in accordance with the International Labour Arbitration and Conciliation Rules (‘ILAC Rules’). 38 The Sport and Human Rights Dispute Resolution Mechanism is a project of the World Players Association. For more information, see uniglobalunion.org/wp-content/uploads/WPA-Access-to-Remedy.pdf. 39 Human Rights at Sea Arbitration is a project of Human Rights at Sea and Shearman & Sterling LLP. For more information, see www.hrasarb.com/.

270  Katerina Yiannibas on Business and Human Rights (UNGP), in particular Principle 31 on the effectiveness criteria of non-judicial grievance mechanism, more actionable and specific.40 These initiatives work towards that aim. The instruments highlighted recognise that arbitration is but one other option available to parties. The linkages between options also merit careful consideration; particularly, the way in which binding mechanisms – such as arbitration – can promote the effectiveness of non-binding and non-adversarial mechanisms. There is a general trend towards the design of systems of dispute management and prevention rather than promoting the use of one single mechanism above another. For instance, the Model Arbitration Clauses require that the parties first refer the dispute to a non-adversarial method – fact-finding, consultation, dialogue, conciliation, mediation, or facilitation – and if the dispute is not settled within such reasonable period as the parties may agree, then the dispute will proceed to be settled in arbitration.41 Ultimately, the goal of a well-designed dispute resolution system is conflict prevention. Because arbitral awards are binding and internationally enforceable, the availability of arbitration can, at best, serve to deter conflict altogether or, alternatively, better promote compliance with settlements arising from more collaborative forms for facilitated settlement. An area worth further progress and consideration is the issue of consent. Non-judicial remedies, including arbitration, require the consent of the parties. Under the New York Convention, a valid arbitration agreement, in writing, is a requirement for the recognition and enforcement of an arbitral award.42 While there are a number of possible scenarios to establish party consent to arbitration, the challenge for workers is to establish consent to arbitrate international labour rights violations with brands. Procedural design of an arbitration mechanism for transnational labour disputes is not enough. You need institutionalisation. Licensing and crediting agencies, as well as lending institutions and development banks, have a role to play in this context to promote dispute settlement clauses that are mindful of international human rights and labour rights in their agreements with brands. There is also concern over the arbitrability of labour disputes, ie whether a dispute(s) can be subject to binding arbitration. Under the New York Convention, recognition and enforcement can be refused by national courts if the subject matter of the dispute is not capable of arbitration under the law of that country.43 Ultimately, what is arbitrable depends on domestic arbitration laws, as there is no international arbitrability standard. While the question is open whether national legislatures will decide to take back categories of disputes, the trend has been in the opposite direction.44 A number of States have made the commercial reservation which is permitted to the New York Convention,45 but courts have generally

40 On this point, see, eg, A Trebilcock, ‘The Rana Plaza Disaster Seven Years On: Transnational Experiments and Perhaps a New Treaty?’ (2020) 159 International Labour Review 545–68, 562. 41 Model Arbitration Clauses, above n 24, Art 1(1). 42 UNCITRAL, New York Convention, above n 2, Art II. 43 ibid, Art V(2). 44 Research into the arbitrability of labour disputes is work I am currently pursuing in collaboration with International Lawyers Assisting Workers (ILAW). 45 A number of States have made a reservation to the New York Convention, which indicate that the reserving State will apply the convention on differences arising out of legal relationships, whether contractual or not, which are considered commercial under their domestic laws. For a full list of Contracting States that have made the commercial reservation to the New York Convention, see www.newyorkconvention.org/countries.

The Use of Arbitration to Resolve Transnational Labour Disputes  271 demonstrated a broad interpretation of what constitutes ‘commercial’ and are likely to accept the validity of an arbitration agreement and the resulting jurisdiction of an arbitral tribunal where there is clear intent of the parties to arbitrate.

VI. Conclusion In situations where a judicial remedy is not available or would not be effective, arbitration may serve as an effective option for parties seeking to resolve a transnational labour dispute. Moreover, arbitration as a backstop in a broader system of non-adversarial mechanisms of collaborative settlement may indeed serve to promote early settlement as well as compliance with non-binding resolutions. There is power in options. But access is just the beginning. There has to be investment in continuous learning to improve both judicial and non-judicial mechanisms, including arbitration. Beyond studying the implementation of procedural safeguards, there is a need to ensure that arbitrators are capable of effectively adjudicating labour disputes. Further work is required to measure the effectiveness of arbitration to resolve transnational labour disputes. A good designer receives feedback from users to identify areas for improvement. Continuous learning as an approach will serve to better our ever-broadening sense of remedy and justice.

272

24 Buying Beyond Our Borders: Public Procurement and Labour Rights in Global Supply Chains OLGA MARTIN-ORTEGA AND MARTINA TRUSGNACH

I. Introduction Global supply chains are organised to deliver goods and services in fast, efficient and costeffective ways. They are not designed to protect human rights or provide decent working conditions and lives for those working in them. On the contrary, some scholars even argue that they are purposefully built to take advantage of low labour protections in developing countries.1 Supply chains are made of complex processes and stages, often with hundreds of companies and entities involved across a number of states and jurisdictions, and include millions of workers exposed to hazardous working conditions, excess and often compulsory overtime, low wages or wage theft, discriminatory practices and abusive and fraudulent labour recruitment. In the most extreme cases, such practices can also include bonded labour, forced labour and human trafficking. To date, the international human rights and international labour rights regimes have failed to resolve these issues. To address them, it is essential to devise how to extend human and labour rights protection beyond individual states’ borders and how to remedy violations which take place away from where the decision maker sits. Current international developments addressing business and human rights, including the United Nations Guiding Principles on Business and Human Rights (UNGPs),2 make explicit reference to the responsibilities of corporations beyond their direct impacts, including for the actions of their business partners and in their global supply chains. Human rights abuses are linked to the products the private sector buys as much as those that the state purchases. However, there are no similar provisions for states, even when state’s supply

1 RM Locke, ‘We Live in A World of Global Supply Chains’ in D Baumann-Pauly and J Nolan (eds) Business and Human Rights: From Principles to Practice (Abingdon, Routledge, 2016), 299; G LeBaron, ‘Subcontracting is Not Illegal, but is it Unethical? Business Ethics, Forced Labor, and Economic Success’ (2014) 20 Brown Journal of World Affairs 237, 244. 2 UNHRC, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises (UN Doc A/ HRC/17/31) (21 March 2011).

274  Olga Martin-Ortega and Martina Trusgnach chains overlap with private ones. In international law, states’ duties to protect human rights from violations caused by third parties, including businesses, continues to be restricted to a state’s jurisdiction. The UNGPs contain a non-committal reference to extraterritoriality. However, they hold the key to further integrating state human rights obligations into the sphere of commercial activities and along supply chains, having opened the door to consider public procurement as a tool to protect, promote and potentially remedy human rights abuses in these settings. Associating the award of public contracts to the protection of human rights and promotion of decent work in supply chains provides a clear opportunity for states to exercise their duty to protect human rights. The question arises, do states have an obligation to procure goods, services and works which are delivered under conditions which respect human rights? If so, what does this obligation entail and how should it be articulated in the context of a legal system, namely public procurement law, which prioritises efficiency, nondiscrimination of economic actors, competition and value for money? This chapter argues that the definition of the state-business nexus in the business and human rights framework, as defined by the UNGPs, allows for public procurement to be considered a key regulatory tool in public supply chains.3 Section 2 explores the role of the state-business nexus in global supply chains. Section 3 explores the historical relationship between public procurement and labour rights and examines its role as a regulatory tool for the pursuit of domestic social policies. It argues that an evolution and expansion of this role of procurement to protect human rights beyond state borders is necessary, although most of the regulation so far has focused on private actors.

II.  Reaching to the Global Supply Chain: The State Business-Nexus Global production is organised in highly fragmented and geographically dispersed networks.4 The transnational dimension and complexity of supply chains perpetuate asymmetric power relations and result in human and labour rights violations which are often hidden in the multiple tiers of production spread across multiple jurisdictions.5 In this context, consumers, including the institutional consumer, i.e. the state through its procuring public bodies, are far removed from workers involved in the production of the goods they purchase. At the same time, corporate brands or lead firms6 are shielded from labour 3 This chapter focuses on the procurement of goods and not services or public works. 4 K Lukas, L Plank, and C Staritz, Securing Labour Rights in Global Production Networks: Legal Instruments and Policy Options, June 2010. See http://bim.lbg.ac.at/en/accountability-labour-rightsglobal-productionnetworks, 1; O Martin-Ortega, O Outhwaite and W Rook, ‘Buying Power and Human Rights in the Supply Chain: Legal Options for Socially Responsible Public Procurement of Electronic Goods’ (2015) 19 International Journal of Human Rights 341. 5 K Lukas, ‘Human Rights in the Supply Chain: Influence and Accountability’ in R Mares (ed), The UN Guiding Principles on Business and Human Rights: Foundations and Implementation (Leiden: Koninklijke Brill, 2012) 163. 6 Brands or core firms are considered distinct companies, as they are set apart by the considerable impact and leverage they have down their production chain, as Mares describes. See R Mares, ‘The Limits of Supply Chain Responsibility: A Critical Analysis of Corporate Responsibility Instruments’ (2010) 79 Nordic Journal of International Law 194. This chapter refers generally to corporations, companies, multinational enterprises and businesses, and more specifically to brands or contracting brands when addressing issues directly related to supply chain and public procurement.

Buying Beyond Our Borders  275 rights’ obligations towards those who manufacture the products they market, as they do not employ them directly. Ultimately, a significant number of actors whose commercial decisions have a direct impact over workers’ working and living conditions are unable or unwilling to see the effects of such decisions. This is particularly patent in the context of public supply chains. Corporations are not the sole actors in the business and human rights dynamic;7 states, as powerful economic agents, including in their role as mega-consumers, must take into account their own obligations when exercising such economic power, including when ‘buying beyond borders’. The obligation of states to protect against corporate human rights abuses and their role in overseeing the supply chain has not received as much attention in the literature as the human rights supply chain responsibilities of private actors. At the same time, little consideration has been given to the human rights impacts of the central state and other public bodies in terms of their role as a consumer, by comparison, for instance, to that focused on transnational corporations via their supply chains. This lack of policy coherence undermines fulfilment of the UN Framework and UNGPs, both directly, as government fail to require their own suppliers to respect human rights, and indirectly, as governments weaken the ‘business case’ for companies to respect human rights and due diligence, by failing to send the right market signals and undermine the moral case because they fail to lead by example. In fact, whilst the UNGPs make explicit references to supply chains in the context of the corporate responsibility to respect, there is no direct mention of them when discussing the state duty to protect. Instead, UNGP 6 affirms that ‘States should promote respect for human rights by business enterprises with which they conduct commercial transactions’. However, public procurement is mentioned by the UNGPs when establishing the state’s duty to protect human rights in the context of the so-called state-business nexus.8 In fact, the commentary to UNGP 6 goes on to affirm that public procurement, together with other commercial transactions, provides States ‘with unique opportunities to promote awareness of and respect for human rights by those enterprises, including through the terms of contracts, with due regard to States’ relevant obligations under national and international law’. The state-business nexus includes the activities of MNEs beyond states’ borders, therefore implicitly pointing to the role that States can have with regard to the supply chains they are connected to through their purchasing capacity. At the same time, a state’s domestic and international human rights obligations apply to public bodies, and therefore do so also in the context of public procurement. This clearly permits public authorities to conduct public procurement so as to give effect to these obligations. This interpretation assumes that the state’s duty to protect human rights has an extraterritorial reach, extending to protection of the rights of those in the supply chain, which we consider not yet clearly established in international law. Together with the UNGPs, it is important to highlight that the UN Sustainable Development Goals (SDGs), adopted by the UN General Assembly in 2015,9 contain explicit 7 Outhwaite and Martin-Ortega above n 4. 8 C Methven O’Brien and O Martin-Ortega, ‘The Role of the State as Buyer under Guiding Principle 6 Submission to UN Working Group on Business and Human Rights Consultation on “The State as an Economic Actor: The Role of Economic Diplomacy Tools to Promote Business Respect of Human Rights”’, vol 4. See www.bhre.org/policy-papers. 9 UNGA Res 70/1, ‘Transforming our World: The 2030 Agenda for Sustainable Development’ (25 September 2015). See Novitz, Chapter 8 in this volume.

276  Olga Martin-Ortega and Martina Trusgnach reference to public procurement. In fact, the SDGs draw explicit links between procurement and all dimensions of sustainability, ie economic, environmental and social, including the respect and protection of human rights. SDG 12 explicitly includes public procurement among its targets, establishing to promote public procurement practices that are sustainable, in accordance with national policies and priorities (Target 12.7). Beyond this, public procurement is directly relevant, and instrumental, for the achievement of several SDGs, including SDG 1 (end poverty in all its forms); 5 (achieve gender equality and empower all women and girls); 7 (ensure access to affordable, reliable, sustainable and modern energy for all); 8 (promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all); 9 (build resilient infrastructure, promote inclusive and sustainable industrialisation and foster innovation); 11 (make cities and human settlements inclusive, safe, resilient and sustainable); and 12 (ensure sustainable consumption and production patterns). The UNGPs, supported by the SDGs, have strengthened the duty of the states by highlighting the state-business nexus and calling upon states to promote respect for human rights by the business enterprises they contract with. However, this is not the same as maintaining that public authorities have a legal obligation not to get implicated in human rights abuses across the supply chain. Indeed, it should be kept in mind that the UNGPs and SDGs are non-binding instruments. Regardless, states’ significant buying power does provide them with capacity to influence the behaviour of those enterprises with which they engage. As mega-consumers, states should exercise leverage over suppliers to shift markets towards sustainable production, and lead by example by introducing human rights into supply chain management and establishing arrangements for human rights due diligence. In this way, public procurement interacts with both the state duty to protect and the corporate responsibility to respect human rights and can become a relevant tool in the protection of human rights in global supply chains.

III.  Linking Public Procurement and Labour Rights in Global Supply Chains Public procurement has been used as a tool for achieving social justice since the beginning of the twentieth century.10 In fact, although procurement regimes have historically prioritised the achievement of value for money, non-discrimination between tenderers and open competition, public procurement has for decades also focused on promoting national labour markets and protecting vulnerable individuals or disadvantaged groups. These are referred to as secondary, or rather horizontal goals of public procurement.11 The post-war

10 C McCrudden, Buying Social Justice. Equality, Government Procurement and Legal Change (Cambridge, Cambridge University Press, 2007). Available at: https://global.oup.com/academic/product/buying-social-justice9780199232437?prevNumResPerPage=20&prevSortField=1&facet_narrowbytype_facet=AcademicResearch& start=20&lang=en&cc=es. 11 S Arrowsmith and P Kunzlik (eds), Social and Environmental Policies in EC Procurement Law: New Directive and New Directions (Cambridge, Cambridge University Press, 2009); S Arrowsmith, ‘Horizontal Policies in Public Procurement: A Taxonomy’ (2010) 10 Journal of Public Procurement 149. Available at: www.emerald.com/insight/ content/doi/10.1108/JOPP-10-02-2010-B001/full/html.

Buying Beyond Our Borders  277 period saw the development of a framework of policies and regulations on social and redistributive justice, in which procurement was included as a complementary instrument for the enforcement of human and labour rights as well as the promotion of fairness and equality in the labour market.12 One of the first organisations to see and act on the potential for public procurement to protect and advance labour rights was the International Labour Organization (ILO). The Labour Clauses (Public Contracts) Convention (No 94) and its accompanying Recommendation (No 84),13 both from 1952, were the first international instruments to make a direct and explicit link between international labour standards and public procurement.14 In fact, they remain the only international instruments which specifically and exclusively address the inclusion of social clauses in public contracts. The ILO instruments address socially responsible procurement by requiring bidders and contractors to align themselves with the locally established prevailing pay and other working conditions as determined by law or collective bargaining.15 In doing so, they aim to prevent labour costs to be used as an element for competition among bidders for public contracts, and to ensure that public contracts do not exert a downward pressure on wages and working conditions.16 This, in turn, attempts to prevent public authorities from e­ ntering into contracts involving unacceptably low levels of social protection, and to encourage them instead to lead by example and raise the labour market bar.17 Unfortunately, Convention No 94 has not been particularly successful in terms of ratification.18 At the time of writing, 63 states are parties to it.19 Moreover, there is no available evidence of implementation of the Convention beyond the General Survey by the ILO Committee of Experts on the Application of Conventions and Recommendations in 2008, which determined that it may have suffered ‘from a lack of interest underpinned by “modern”

12 MA Corvaglia, Public Procurement and Labour Rights. Towards Coherence in International Instruments of Procurement Regulation (Oxford, Hart, 2017), 8. 13 International Labour Office, Labour Clauses (Public Contracts) Convention, 1949 (No 94) and Recommendation (No 84). A Practical Guide (Geneva 2008) (ILO 2008), 5. 14 Corvaglia, above n 12. 15 As specified in Art 2(1), the most favourable working conditions are established with reference to the relevant collective agreement, arbitration awards and national law regulations. As Corvaglia points out, the purpose of Convention No 94 is not to impose established minimum wages but to ensure that workers enjoy wages and working conditions as satisfactory as the conditions normally established in national law; Corvaglia, above n 12, 67. 16 ILO, Report of the Committee of Experts on the Application of Conventions and Recommendations (articles 19, 22 and 35 of the Constitution), General Survey concerning the Labour Clauses (Public Contracts) Convention, 1949 (No 94) and Recommendation (No 84), Report III (Part 1B) (General Survey), March 2008, xiii and 10. 17 International Labour Office, Labour Clauses (Public Contracts) Convention, 1949 (No 94) and Recommendation (No 84). A Practical Guide (Geneva, ILO, 2018) (ILO, 2018). 18 See, Ratifications of C094 – Labour Clauses (Public Contracts) Convention, 1949 (No 94). Following a review by the Working Party on Policy regarding the Revision of Standards and further discussions, this Convention was designated as an ‘up-to-date’ instrument; see www.ilo.org/dyn/normlex/en/f?p=1000:12040:::NO:RP,12040::. In 2007, the Committee on Sustainable Enterprises of the International Labour Conference concluded that the Organisation should continue to promote the ratification and application of the international labour conventions relevant to the promotion of sustainable enterprises, including Convention No 94. ILO 2018, 7. In June 2008, the Conference Committee on the Application of Standards devoted part of its general discussion to the examination of the findings of the Committee of Experts, particularly as regards the present-day relevance of Convention No 94 and, more generally, with respect to the social dimensions of public procurement, ILC, 97th Session, 2008, Record of Proceedings, 19/24–19/43, paras 73–139. See also La Hovary, Chapter 15 in this volume on the ILO’s ongoing standards review. 19 The UK denounced the Convention in 1982.

278  Olga Martin-Ortega and Martina Trusgnach public procurement policies which, in prioritising competition at all costs among potential contractors, goes against the Convention’s aim of requiring the application by all bidders of the best locally established working conditions’.20 Yet, as the General Survey also explicitly establishes, ‘experience shows that the problem raised and dealt with by the instruments is a real one, and that it is most acute where national laws fail to establish a relevant floor of binding labour standards’21 – which is indeed the case for several countries where goods production takes place.22 The Convention and Recommendation are products of the reconstruction efforts following the Second World War, when the need to rebuild a significant number of public infrastructures, whilst at the same time promoting the development of war-torn economies, led to an increase of public contracting. The instruments were developed within the framework of concerns regarding decent wages, including minimum and living wages, which has continued ever since. As Corvaglia points out, the inclusion of fair and decent wage clauses in public contracts has a long tradition in the procurement practices of the United States (US) and European countries.23 This continues today, for example in the proposed European Union (EU) Directive on Adequate Minimum Pay of 2020, which establishes that, in the performance of public procurement and concession contracts, economic operators (including the subcontracting chain thereafter) are required to respect the applicable collectively agreed wages and statutory minimum wages where they exist.24 The Directive seeks to place public procurement within the framework of the EU goal to ensure that ­workers in the Union earn adequate minimum wages, to guarantee adequate working and living conditions and build fair and resilient economies and societies.25 At the same time, the use of procurement as a policy tool does not stop at ensuring decent wages: for example, it can also be used to address structural inequalities, as in the case of South Africa.26 All these instruments, however, have focused on procurement as a tool for social justice at national level. This needs to change: in recent years, the role of governments as ‘mega-consumers’ has placed them in a unique position to influence the market, generate demand for sustainably produced goods and responsibly delivered services, and incentivise responsible business conduct, both within states’ borders and beyond.27 The disconnect between human and labour rights violations in global supply chains, including abusive recruitment practices and the responsibilities of consuming states is 20 General Survey, above n 16, xiii. 21 ibid. 22 J Nolan, ‘Chasing the Next Shiny Thing: Can Human Rights Due Diligence Effectively Address Labour Exploitation in Global Fashion Supply Chains?’ (2022) 11 International Journal for Crime, Justice and Social Democracy 1, 2; Locke, above n 1, 304. 23 Corvaglia, above n 12, 66. 24 Proposal for a Directive on adequate minimum wages in the European Union, COM(2020) 682 final, 28 October 2020. 25 ibid, 1. 26 See G Quinot, ‘Constitutionalising Public Procurement through Human Rights: Lessons from South Africa’ in O Martin-Ortega and C Methven O’Brien, Public Procurement and Human Rights: Opportunities, Risks and Dilemmas for the State as Buyer (Cheltenham, Edward Elgar, 2019). 27 Martin-Ortega and O’Brien, ibid. A failed attempt to use procurement to prevent public buyers supplying from abusive regimes was the Massachusetts Burma Law, which sought to limit state entities from purchasing services from companies doing business with Myanmar (Burma). See Corvaglia, above n 12 at 59 and 126; O Martin-Ortega and M Eroglu, ‘The European Corporate Social Responsibility Strategy: A Pole of Excellence?’ in J Orbie and L Tortelli (eds) The European Union and the Social Dimension of Globalisation (Abingdon, Routledge, 2008).

Buying Beyond Our Borders  279 changing. For example, since 2018, the Principles to Guide Government Action to Combat Human Trafficking in Global Supply Chains, adopted by the governments of Australia, Canada, New Zealand, the United Kingdom and the US, also include a principle specifically addressing public procurement.28 This establishes that governments should take steps to identify, prevent, mitigate, remedy and account for how they address human trafficking in their supply chains, which may include the adoption of tools and incentives, and appropriate due diligence processes. Also in 2018, the Organisation for Security and Economic Cooperation (OSCE) published the Model Guidelines on Government Measures to Prevent Trafficking for Labour Exploitation in Supply Chains,29 which recommend that public buyers include contract performance conditions prohibiting activities known to lead to trafficking in human beings and labour exploitation, including charging recruitment fees to workers. Despite these commitments and guidelines, however, states have not had much practice at implementing regulations to support public purchasers in promoting human rights and protecting labour standards beyond their borders. This contrasts with the action taken to promote responsible business conduct in the private sector, which has seen the establishment of obligations on companies regarding human rights due diligence in their supply chains, clearly spanning across different countries. As defined by the UNGPs, supply chain human rights due diligence refers to the processes to identify, prevent, mitigate and remedy the human rights (and environmental) violations associated with commercial activities and business partnerships.30 In practice, exercising due diligence involves designing and implementing a set of measures to understand what risks people may face due to the way the products we buy have been produced and the services we contract are delivered. Recent normative developments have seen states imposing two main types of obligations on companies in this respect: (1) to report on their efforts to exercise human rights due diligence, also known as non-financial reporting laws;31 and (2) to exercise substantive due diligence, this is to take effective action and face legal consequences if their activities and commercial partnerships bring about harms for individuals. These are more advanced and sophisticated obligations, also referred to as due diligence legislation.32 28 Principles to Guide Government Action to Combat Human Trafficking in Global Supply Chains (2018). 29 OSCE Model Guidelines on Government Measures to Prevent Trafficking for Labour Exploitation in Supply Chains (2018). 30 UNGP 15. See A Trebilcock, ‘Due Diligence on Labour Issues – Opportunities and Limits of the Guiding Principles on Business and Human Rights’ in A Blackett and A Trebilcock (eds), Research Handbook on Transnational Labour Law (Cheltenham, Edward Elgar, 2015) 93–107. 31 Dodd-Frank Wall Street Reform and Consumer Protection Act, Section 1502 Specialised Disclosure, Conflict Minerals (2010); SEC Rules, 17 CFR Parts 240 and 249 (2013); California Transparency in the Supply Chain Act (2010); Directive 2014/95/EU amending Directive 2013/34/EU as regards disclosure of non-financial and diversity information by certain large undertakings and groups (2014), also known as the EU Non-Financial Reporting Directive; UK Modern Slavery Act (2015), Section 54 Transparency in the Supply Chains of the UK Modern Slavery Act (2015); Australian Modern Slavery Act (2018). 32 French Duty of Vigilance Law (2017); Regulation (EU) 995/2010 laying down the obligations of operators who place timber and timber products on the market (2010); Regulation (EU) 2017/821 laying down supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas; EU regulations on timber and conflict minerals imports (2017), also known as the EU Conflict Minerals regulation; The Netherlands Child Labour Due Diligence Law (2019); Germany Supply Chain Due Diligence Act (2022, entering into force in 2023). The EU has committed to passing mandatory corporate human rights due diligence regulation and legislative initiatives are currently being considered in other jurisdictions, such as Switzerland.

280  Olga Martin-Ortega and Martina Trusgnach When establishing the scope of their application, however, the norms define the bodies as ‘commercial organisations’ and with reference to corporate law, thus not extending to the public sector, but only covering the private one. An exception is the Australian Modern Slavery Act, which includes an obligation to publish modern slavery statements for the public sector.33 Regardless, both types of obligation, as they are currently framed and exercised, have limited ability to address human and labour rights abuses in global supply chains. Whilst non-financial reporting norms have resulted in corporate policy changes, there is no evidence that they are having a positive impact, in practice, on the rights of workers at factory or farm level.34 In fact, when companies act on their commitments expressed in non-financial reports, they tend to focus on assessing and responding to risks in their Tier 1 suppliers. This, however, will very rarely uncover violations at lower levels of the supply chain, therefore perpetuating their invisibility – despite the fact that abuse is most prevalent at the bottom of supply chains.35 At the same time, guidance provided by governments on how to produce such reports generally refers to employment issues and working conditions,36 but overlooks other practices which may lead to bonded or forced labour, such as unfair recruitment policies.37 As a consequence, abusive practices which violate human rights and which place workers at risk of further abuse will not be included in assessment exercises and will therefore not be addressed. Due diligence legislation, on the other hand, contains substantive obligations to act, coupled with sanctions for non-compliance, including civil and criminal liability. The possibility of becoming liable for actual human rights violations in their supply chain provides significant incentives for companies to monitor their own suppliers and demand compliance with labour standards down the supply-chain tiers. Current practice, however, is focused on determining the severity of risks to prioritise due diligence strategies (and eventually court liability strategies by interested parties) and therefore leaves out several labour rights violations.38 As it can be seen, therefore, the regulation of corporate practices which may lead to human rights abuse in the supply chain is not a particularly effective way to address such violations. This deficient regulatory system runs parallel to existing public procurement regimes, including the EU Procurement Directives39 and the WTO Plurilateral Agreement 33 In 2020 the UK Government committed to extend the reach of the MSA Transparency in Supply Chains ­provision to the public sector. 34 V Nelson, O Martin-Ortega and M Flint, ‘Making Human Rights Due Diligence Work for Small Farmers and Workers’ (2020). See https://fairtrade-advocacy.org/ftao-publications/publications-statements/ making-human-rights-due-diligence-frameworks-work-for-small-farmers-and-workers/. 35 J Allain, A Crane, G LeBaron and L Behbahani, Forced Labour’s Business Models and Supply Chains (Belfast, Joseph Rowntree Foundation, 2013), 40. 36 EU Non-Financial Reporting Guidelines refers generally to: ‘employment issues, including employee consultation and/or participation, employment and working conditions’; Communication from the Commission, Guidelines on Non-financial Reporting (Methodology for Reporting Non-financial Information) (2017/C 215/01). 37 See, eg, the UK guide: ‘Home Office, Transparency in Supply Chains: A Practical Guide’ (2017, updated 2021). See Mantouvalou, Chapter 10 in this volume. 38 Nelson, Martin-Ortega and Flint, above n 34. 39 The European framework comprises a number of directives, of which the most relevant ones for this analysis are Directive 2014/24 on Public Procurement and Repealing Directive 2004/18, and Directive 2014/25 on Procurement by Entities Operating in the Water, Energy, Transport and Postal Services and reappealing Directive 2009/17.

Buying Beyond Our Borders  281 on Government Procurement (GPA),40 which also limit the capacity of public bodies to address abusive behaviour in the supply chain, because they are restrictive regarding the inclusion of social considerations within procurement processes. This makes it difficult to use public procurement to prevent forced labour and human rights violations in sourcing and manufacturing countries, or to legally challenge public buyers if abuses are discovered in their supply chains. For example, the EU Directive 2014/24/EU explicitly prohibits contracting authorities from requiring general corporate social responsibility (CSR) policies and practices from suppliers as part of their tender processes. Instead, the 2014 Directives strictly require a ‘link to the subject matter of the contract’ when establishing technical specifications and award criteria during the tender process. In practice, this significantly reduces the capacity of contracting authorities to demand their supplier to consider and act upon social issues in their supply chain before contract awards.41 The lack of clarity over how and when the link to the subject matter is used, in turn, may have had a chilling effect on contracting authorities averse to the litigation risks they could be exposed to, but otherwise ready to insert sustainability and CSR conditions into their tender processes.42 Beyond the lack of policy coherence this represents,43 such normative restrictions also generate an important contradiction among legal obligations for states, as they place the protection of human rights against the duty to acquire goods and services in an efficient, cost-effective, competitive and non-discriminatory manner, public procurement’s traditional, ‘primary’ aims.44 As this chapter argues, public buyers should not be made to choose; and protecting human rights, be this within the state border or beyond, should not bring the risk of defaulting on procurement regulations.

IV. Conclusion Global supply chains are sites of widespread human and labour rights abuses. While corporate behaviour has been under increased scrutiny and regulation, through non-financial reporting laws and due diligence legislation, the role of public bodies in protecting the human rights of those producing the goods they procure has been mostly overlooked. Public procurement, however, represents an important tool to promote human rights protection. This is established practice within national borders. The time has come to take full advantage of the power of public procurement to protect human rights beyond them, in global supply

40 See www.wto.org/english/tratop_e/gproc_e/gp_gpa_e.htm. See also Charnovitz, Chapter 17 in this volume. 41 Directive 2014/24, Recital 1, Art 53(1). See, eg, A Semple, ‘The Link to the Subject Matter: A Glass Ceiling for Sustainable Public Contracts?’ in B Sjafjell and A Wiesbrock (eds), Sustainable Public Procurement Under EU Law. New Perspectives of the State as Stakeholder (Cambridge, Cambridge University Press, 2016). 42 See, eg, M Andhov and R Caranta (eds) ‘Sustainability Through Public Procurement: The Way Forward – Reform Proposals’ (Bonn, German Institute of Development and Sustainability, March 2020), 38. 43 UNGP 8 explicitly calls on states to ensure policy coherence by ensuring that ‘government departments, agencies and other State-based institutions that shape business practices are aware of and observe the State’s human rights obligations when fulfilling their respective mandates, including by providing them with the relevant information, training and support’. See also Novitz, Chapter 8 in this volume. 44 These are the primary objectives of procurement as defined by the EU Procurement Directives, WTO and UNCITRAL regulations.

282  Olga Martin-Ortega and Martina Trusgnach chains. Although the current procurement regulatory framework is restrictive, it does not prohibit the use of public procurement for such goals. At the same time, such a role for public purchasing can be inferred from the UNGPs definition of state-business network and is supported by several other international and regional commitments. Moving forwards, states should ensure that they lead by example by promoting responsible consumption and production through they own purchasing practices, and by ensuring that the companies they purchase from respect human rights throughout their supply chain. Some states have already started in this endeavour45 and it is our hope that several others will follow suit.

45 See, eg, P Göthberg, ‘Public Procurement and Human Rights in the Healthcare Sector: The Swedish County Councils’ Collaborative Model’ in O Martin-Ortega and C Methven O’Brien, above n 26.

25 EU Trade Preferences and Human Rights in Myanmar RICHARD HORSEY

I. Introduction The situation in Myanmar in recent years has posed critical challenges to the rights-based system of trade preferences of the European Union (EU). The country had its preferential access to the European market suspended in 1997 due to serious and longstanding violations of the Forced Labour Convention, 1930 (No 29) of the International Labour Organization (ILO). Access was restored in June 2012, with Myanmar benefiting from the Everything But Arms (EBA) scheme, as a result of progress in the labour rights situation that was formally recognised by the ILO that month.1 However, the violent expulsion of more than 700,000 Rohingya in 2016 and 2017 – described by the United Nations (UN) as ethnic cleansing and more recently by the United States (US) as genocide – triggered serious questions as to whether the country could continue to benefit from a scheme that requires countries to adhere to fundamental human and labour rights standards. A military coup in February 2021 followed by brutal violence unleashed by the military against peaceful protesters and communities deepened these concerns. And yet, unlike in the case of Cambodia, the EU has not moved to reconsider Myanmar’s preferential access to the single market. The reasons for this are sound: EBA access has allowed a significant garment industry to develop in Myanmar, for which Europe is the major market, providing employment to at least 500,000 people, mostly young women from impoverished rural areas. Removing access, so the logic goes, would undermine the development objectives of the scheme, impact the lives of many vulnerable women and their families and would be unlikely to do anything to change the abuses in question. This logic may be sound, but following it comes at the potential cost of undermining the integrity of the whole EBA scheme and its human rights conditionality. Indeed, there are also political and geopolitical dimensions, with Cambodia’s harsher treatment being attributed, at least in part, to that country’s authoritarian leadership and close, almost clientelist, relations with China, compared with Myanmar’s popularly elected leadership (until the February 2021 coup), and more cautious engagement with Beijing. To limit damage to the credibility of 1 Resolution concerning the measures on the subject of Myanmar adopted under Art 33 of the ILO Constitution, which the 101st Session of the International Labour Conference adopted on 13 June 2012.

284  Richard Horsey its trade preferences, the EU should be more upfront about the political and geopolitical elements of its decision making.

II.  The EU’s Approach to Human Rights and Trade in Myanmar The EU established its Generalised Scheme of Preferences (GSP) in 1971 as a system of tariff reductions that provide preferential access for developing countries to the European single market. This was facilitated by a waiver agreed by the General Agreement on Tariffs and Trade that year, allowing trade preferences as an exception to the Most Favoured Nation principle. The aim is to support sustainable development and human rights, and to this end the EU’s GSP system is a conditional one: since 1994, the implementing regulations provide that trade preferences may be withdrawn in case of serious and persistent violations of core human rights or labour rights.2 The first test of such GSP conditionality was Myanmar (Burma). In 1995, a complaint submitted jointly to the European Commission (EC) by two workers’ federations called for the withdrawal of GSP benefits due to the Myanmar military regime’s egregious use of forced labour.3 The complaint stated that: The evidence is both consistent and overwhelming: the use of forced labour in military ­operations, civilian or military construction, maintenance work and infrastructure (including tourist) development is part-and-parcel of the Burmese population’s everyday life.4

After holding hearings into the matter – during which it was not, however, granted permission to visit Myanmar – the EC decided in 1997 to suspend Myanmar’s GSP access, the first time it had taken such a decision.5 Belarus was subsequently suspended from the scheme in 2006 due to freedom of association violations, following a complaint in 2003; Sri Lanka was suspended from the GSP+ scheme in 2010 for breaches of fundamental human rights standards, and reverted to standard GSP tariffs.6 The 1997 decision to suspend Myanmar from the GSP scheme was relatively uncontroversial at the time. The country had been under the control of a brutal military dictatorship for almost a decade, was subject to EU restrictive measures and similar sanctions from other Western countries and faced boycotts by Western consumers. Its exports to the EU were very limited – in total, less than €100 million in 1996.7 Foreign aid flows to the country were also very limited, with the EU suspending most non-humanitarian assistance.8 In short, the 2 Council Regulation No 3281/94 of 19 December 1994. 3 ‘Burma: SLORC’s Private Slave Camp’, International Confederation of Free Trade Unions and European Trade Union Confederation, June 1995. 4 ibid. 5 Council Regulation (EC) No 552/97 of 24 March 1997. 6 C Portela and J Orbie, ‘Sanctions under the EU Generalised System of Preferences and foreign policy: Coherence by Accident?’ (2014) 20 Contemporary Politics 63–76. GSP+ is the EU’s special incentive arrangement for sustainable development and good governance, with zero tariffs for eligible products. Council Regulation No 732/2008 of 22 July 2008. 7 Eurostat data for EU-15. See also F Giumelli and P Ivan (2013), ‘The Effectiveness of EU Sanctions: An Analysis of Iran, Belarus, Syria and Myanmar (Burma)’ European Policy Centre, Issue Paper No 76. 8 Council of the European Union, Common Position of 28 October 1996 on Burma/Myanmar, 96/635/CFSP.

EU Trade Preferences and Human Rights in Myanmar  285 suspension of trade preferences was consistent with political measures against the country, and there was no obvious development impact of the suspension given the limited trade and the fact that the EU was not providing development assistance to Myanmar at the time. Indeed, the possible development impact was not even a question that was raised by EU ­officials and diplomats when suspension of Myanmar’s GSP access was under consideration.9

III.  Reconciling Human Rights and Development Objectives Following wide-reaching reforms initiated in 2011 by the military-backed ­government of President Thein Sein,10 the EU began rolling back its restrictive measures, and ­reinstated Myanmar’s access to trade preferences in July 2013, with retroactive effect from 13 June 2012.11 The EU had already resumed some development assistance following Cyclone Nargis, which devastated the Irrawaddy Delta in 2008. Following the 2011 liberalisation, it increased this significantly.12 As a Least Developed Country, Myanmar was reinstated to the most concessional version of the EU’s GSP scheme, the EBA, which gives the world’s 47 Least Developed Countries duty- and quota-free access to the EU for all exports, except for arms and ammunition.13 Coming at a time of domestic reform and reengagement with the world, EBA brought a windfall to Myanmar’s export industries – most importantly the garment industry, but also the food processing sector. In 2017, garments comprised 72 per cent of Myanmar’s €1.56 billion (US$1.8 billion) in exports to Europe, making it one of the few regions with which Myanmar enjoyed a trade surplus.14 To acquire and maintain EBA access, countries have to meet certain standards for human rights and labour rights.15 The EU decision to reinstate trade preferences was in part triggered by improvements in the country’s adherence to fundamental standards.16 The determination by the International Labour Organization (ILO) that there had been meaningful progress in elimination of forced labour was key – as demonstrated by the fact that the EU backdated Myanmar’s access to EBA to 13 June 2012, the day the ILO’s annual conference first recognised such progress in a resolution lifting ILO sanctions, and the day

9 Author’s contemporaneous notes. 10 Myanmar: Major Reform Underway, International Crisis Group, 22 September 2011. 11 Regulation (EU) No 607/2013 of the European Parliament and of the Council of 12 June 2013 repealing Council Regulation (EC) No 552/97. 12 ‘Supporting the Transition: Understanding Aid to Myanmar Since 2011’, The Asia Foundation, February 2018. 13 ‘Everything but Arms (EBA)’, European Commission website. Available at: www.trade.ec.europa.eu/ access-to-markets/en/content/everything-arms-eba. 14 ‘EU trade privileges move alarms garment sector’, Frontier Myanmar, 6 October 2018. 15 The EU is preparing a new GSP scheme to replace the current arrangements when they expire, which will cover a period of 10 years starting 1 January 2024. According to draft proposals, the new scheme will expand the list of international conventions that need to be complied with by adding two additional human rights instruments on the rights of people with disabilities and child rights; two labour rights conventions on labour inspections and tripartite dialogue; and one governance convention on transnational organised crime. The draft proposals also introduce new conditionalities on climate change and environmental protection. See ‘Commission proposes new EU Generalised Scheme of Preferences to promote sustainable development in low-income countries’, European Commission, Press Release, 22 September 2021. 16 Regulation (EU) No 607/2013, above n 11.

286  Richard Horsey before Aung San Suu Kyi addressed the conference plenary calling for aid and investment to strengthen democracy in her country.17 But restoring trade preferences was a decision also taken partly on political grounds, an expression of confidence in Myanmar’s political direction at the time. However, optimism that the country was on a new path and was making progress on addressing its long legacy of human rights abuses did not last long. The Myanmar military’s violent expulsion of the Rohingya over 2016–2017 – described at the time by UN Secretary-General Antonio Guterres as a ‘textbook example of ethnic cleansing’ and triggering an International Criminal Court investigation and a genocide case against Myanmar at the International Court of Justice – catastrophically undermined Myanmar’s international reputation.18 In March 2022, the US government designated the violence as genocide.19 In addition to being a human rights catastrophe, this situation presented the EU with a thorny policy dilemma. EBA access is tied to human rights standards, and it is hard to conceive of a more serious violation of such standards than ethnic cleansing and (potential) genocide. Prima facie, it was difficult to see how Brussels could continue to extend trade preferences to Myanmar. On the other hand, the reason for the conditionality in the EBA scheme is to promote sustainable development in recipient countries. Ending Myanmar’s access to the scheme would have had an undoubted negative impact on development outcomes. This is because the EBA scheme has been enormously successful in promoting sustainable development in the country. Following the EU’s 2012 reinstatement of Myanmar’s GSP membership, garment manufacturing had taken off. Europe is the most important destination market, accounting for more than half of Myanmar’s garment exports by value.20 Overall, by 2018, garments had become Myanmar’s second-largest export item, after oil and gas.21 However, unlike oil and gas, which employs relatively few people, the garment industry is a major employer – by 2018 the sector was thought to employ at least 500,000 people, the vast majority of whom were young women who have migrated from poor rural areas of Myanmar.22 There is no inherent contradiction between human rights conditionality and development. Indeed, a key rationale of such conditionality is to promote better human rights standards and thereby ensure that the development boost provided by GSP concessions is ‘sustainable’. That is, human rights and labour rights conditionality is aimed at helping ensure that trade preferences are not only good for GDP figures and trade volumes, but also promote decent jobs and improve social disparities. The problem arises when sustainable

17 ibid; ILO resolution, above n 1; and ‘Aid, investment needed to strengthen democracy in Myanmar: Suu Kyi’, ILO News, Geneva, 14 June 2012. 18 See ‘The Rakhine State Danger to Myanmar’s Transition’, International Crisis Group, Statement, 8 September 2017; ‘UN human rights chief points to ‘textbook example of ethnic cleansing’ in Myanmar’, UN News, 11 September 2017; ‘The Republic of The Gambia institutes proceedings against the Republic of the Union of Myanmar and asks the Court to indicate provisional measures’, International Court of Justice, Press Release No 2019/47, 11 November 2019; and ‘ICC judges authorise opening of an investigation into the situation in Bangladesh/Myanmar’, International Criminal Court, Press Release, 14 November 2019. 19 ‘Biden administration rules Myanmar army committed genocide against Rohingya’, Reuters, 21 March 2022. 20 ‘The Garment Industry in Myanmar: Status Update and Current Dilemmas: Should We Stay or Should We Go?’ EuroCham Myanmar, May 2021. 21 ‘Growth Amidst Uncertainty’, World Bank Myanmar Economic Monitor, May 2018. 22 Author interviews, Myanmar garment sector entrepreneurs, 2015–2018. See also ‘Weaving Gender: Challenges and opportunities for the Myanmar garment industry,’ ILO Country Office for Myanmar, October 2018.

EU Trade Preferences and Human Rights in Myanmar  287 development (perhaps sub-optimal but nevertheless meaningful) is occurring in a context of poor adherence to human rights, as is the case in post-2011 Myanmar (and even more clearly, post-2016). In such a case, removal of trade preferences – while perhaps deemed necessary for the overall credibility of the conditionality provisions of the GSP scheme – would be unlikely to trigger any improvement in human rights outcomes and would significantly impact on sustainable development. This impact would be to punish the wrong people: the military’s brutal treatment of the Rohingya was unconnected to the garment industry and those working in it, and the military did not derive any significant tangible benefit from the industry. The situation was very different when the EU previously removed Myanmar’s access to trade privileges, in 1997. At that time, Myanmar’s economy was suffering a deep malaise and its exports to the EU were minimal. There was no real tension between human rights and development considerations, because trade with the EU had not triggered significant improvements in either human rights or development.

IV.  Squaring the Circle Within the EC itself, the push for a withdrawal of Myanmar’s trade privileges was led by the Trade Commissioner at the time, Cecilia Malmström. After reading the report of the UN Fact-finding Mission, which outlined the ‘gravest crimes under international law’ in Rakhine State, she felt strongly that these privileges needed to be urgently reviewed.23 On 5 October 2018, Malmström told a meeting of European trade ministers in Austria that the EU would send a mission to Myanmar to determine whether to begin a withdrawal process, which would include a six-month review window for Myanmar to demonstrate progress.24 The move came despite the UN Fact-finding Mission’s report making an explicit recommendation against ‘general economic sanctions’ that could hurt ordinary working people in Myanmar.25 However, the threat of EBA withdrawal provoked widespread criticism from both within and outside Myanmar. There was near unanimity from civil society and advocacy organisations at the time, including those working on human rights issues related to the Rohingya, that this would be an unwelcome move, especially its likely impact on hundreds of thousands of poor women in the garment sector. For example, on 10 October 2018, Burma Campaign UK, a long-time critic of military rule and abuses, and generally an advocate for stronger sanctions, put out a statement together with other European campaign groups calling for the EU to reverse course. According to the statement: Such a move risks having a disproportionate impact on ordinary people who have played no role in human rights violations against the Rohingya and others, and in fact themselves suffer from a lack of human rights and genuine democracy in Burma. Instead, the EU should impose targeted

23 Author interviews, individuals with knowledge of the Commissioner’s thinking, Brussels, October 2018. 24 ‘EU to hit Cambodia with trade sanctions, says Myanmar may follow’, Reuters, 5 October 2018. 25 ‘Report of the detailed findings of the Independent International Fact-Finding Mission on Myanmar’, UN Human Rights Council, Thirty-ninth session, Doc. A/HRC/39/CRP.2, 17 September 2018, para 1668.

288  Richard Horsey sanctions against the Burmese military and its leadership, who are responsible for crimes against humanity, war crimes and perhaps even genocide according to a recent UN investigation.26

On 13 October 2018, the President of the Confederation of Trade Unions Myanmar, Maung Maung, published an open letter to the EU in the state-run Global New Light of Myanmar strongly objecting to the revocation of GSP.27 Maung Maung was once a strong advocate for sanctions during the time of the military regime and was part of the initial complaint that led to the removal of Myanmar’s GSP privileges in 1997; his views carry considerable weight in the global trade union movement. Ultimately, the EU did not initiate an EBA withdrawal process. The Trade Commission inquiry team visited Myanmar from 28–31 October 2018 and reported its findings to the Trade Commission the following month.28 The Trade Commission had the power to act based on its own review of the report – that is, without any EU-wide vote on the decision to begin the withdrawal process.29 However, this did not mean that the Commission was immune to political influence from Member States, and several, including the United Kingdom, made clear that they did not feel a withdrawal would be constructive.30 Within the EU’s External Action Service there was also a strong feeling that triggering the withdrawal process would be counterproductive, but that since the Myanmar government was engaging closely with the EU on the matter and keen to avoid any withdrawal, the threat should be maintained to extract some meaningful concessions, even if real progress on the rights of the Rohingya did not appear within reach.31 This was the path that was followed. This was also the path of least political resistance within the EU at the time. There was certainly dissatisfaction among European leaders with the civilian government’s response to the atrocities committed against the Rohingya, and Aung San Suu Kyi’s failure to make any real effort to address the impunity of the perpetrators, or even show empathy for victims. However, the narrative of blame for these atrocities was focused on the military, with recognition that the Aung San Suu Kyi-led civilian side of the government had no operational or political control over the Defence Services. In addition to the impact on ordinary workers, removal of trade privileges would have likely undermined the civilian government while doing nothing to impact the military.

V.  Geopolitical Factors, Plus a Coup d’état This dilemma of how to balance the human rights conditionality in the EU’s GSP scheme with its development objectives is not unique to Myanmar. Some of the same issues have arisen in other cases, including Pakistan’s access to GSP-Plus, the withdrawal of which was

26 ‘EU Trade Commissioner Cecilia Malmström must drop proposal to remove Burma trade privileges’, Burma Campaign UK, 10 October 2018. 27 Maung Maung, ‘An open letter to the EU members’, Global New Light of Myanmar, 13 October 2018, 8. 28 ‘Myanmar: EU mission assesses human rights and labour rights situation’, European Commission Press Release, 31 October 2018. 29 While the Commission has delegated power to decide on EBA withdrawal, to enter into force any actual withdrawal requires that there be no objection from the European Council and Parliament. 30 Author interviews, EU diplomats, November 2018. 31 Author interviews, EU officials, October–November 2018.

EU Trade Preferences and Human Rights in Myanmar  289 called for by the European Parliament in a July 2021 resolution due to concern over the country’s blasphemy laws; no action was taken by the Commission.32 A more instructive comparison may be that of Cambodia. In July 2018, the EU dispatched a fact-finding mission to Cambodia to investigate violations of core human rights and labour rights. This was three months before a similar mission to Myanmar (see above), but the outcome was very different. On 11 February 2019, the EU launched a formal procedure towards temporarily suspending Cambodia’s trade privileges, citing a ‘deterioration of democracy, respect for human rights and the rule of law’.33 Then, on 12 August 2020, Cambodia became the first country to lose (partial) access to EBA privileges under the scheme’s human rights conditionality provisions, affecting around 20 per cent of its annual exports to the EU, including selected garment and footwear products, and all travel goods and sugar.34 In announcing the measures, Trade Commissioner Phil Hogan noted that the EU was ‘committed to supporting Cambodia’s economic and social development through trade preferences’ but stated that ‘respect for human rights is non-negotiable for us’.35 On the contrary, however, the EU’s inconsistent application of GSP conditionality suggests that it applies considerations other than human rights principles when making decisions about preference withdrawal.36 This is clear from a comparison of the Cambodia and Myanmar cases. The dilemma faced by the EU was very similar – the plight of a similar number of garment workers, mostly young women, whose livelihoods would be imperilled if the sector lost privileged access to the European market, and more broadly the risk that years of trade-driven development gains would be undermined.37 What additional factors were influencing EU decision making? Based on the author’s discussions with senior EU officials at the time, including the trade mission to Myanmar, two factors seem to have been particularly relevant, one political and the other geopolitical: • Politically, there was a huge difference between the two governments. Hun Sen was an authoritarian prime minister who had held power since 1985 by crushing his political opponents and presiding over non-credible elections.38 State Counsellor Aung San Suu Kyi, although she had a questionable record on human rights while in office, was freely elected and enjoyed enormous popularity. She was also in a political struggle with the Myanmar military which whom she shared power under the 2008 constitution, and

32 ‘European Parliament resolution of 29 April 2021 on the blasphemy laws in Pakistan, in particular the case of Shagufta Kausar and Shafqat Emmanuel’, Doc 2021/2647(RSP). 33 ‘Cambodia: EU launches procedure to temporarily suspend trade preferences’, European Commission Press Release, 11 February 2019. 34 ‘Cambodia loses duty-free access to the EU market over human rights concerns’, European Commission Press Release, 12 August 2020. 35 ibid. 36 See, eg, D Schmücking, ‘Why Cambodia? EU’s incoherence in Trade Preferences under the EBA Scheme’, Konrad Adenauer Stiftung, 26 May 2020. For an earlier broad analysis, see S Velluti, ‘The Promotion and Integration of Human Rights in EU External Trade Relations’ (2016), 32 Utrecht Journal of International and European Law 41–68; see also J Orbie and F De Ville, ‘Core Labour Standards in the GSP Regime of the European Union: Overshadowed by Other Considerations’ in C Fenwick and T Novitz (eds), Human Rights at Work: Perspectives on Law and Regulation (Oxford, Hart Publishing, 2010) 487–508. 37 At that time in Myanmar, the garment industry employed some 500,000 workers, versus around 750,000 in Cambodia. 38 See, eg, S Strangio, Cambodia: From Pol Pot to Hun Sen and Beyond (New Haven, Yale University Press, 2020).

290  Richard Horsey there was a prevailing view in the diplomatic community in Yangon that her fraught relations with the military constrained her ability to offer human rights concessions.39 • Geopolitically, the situation was also very different. Cambodia was seen by the EU and many others as effectively a client state of China.40 This came at a time of rising great power rivalry and deep unease in the West about China’s authoritarian tilt and leveraging of its economic might and outsized role in global supply chains to punish critics – governments, institutions and individuals – around the world. This was seen as antithetical to European values and an existential threat to the rules-based international order and rewarding a client state with free access to the European market did not sit well with policymakers in Brussels. By contrast, Myanmar – which has always regarded its giant neighbour not as an ally but as a threat – was seen as at risk of being captured by Beijing but striving to avoid that outcome by cultivating a more balanced set of external economic and political relations. From that perspective, EU trade preferences were important in preventing Myanmar from falling too deeply into China’s embrace.41 The 1 February 2021 military coup in Myanmar shifted this picture considerably. The human rights situation declined precipitously as a result of the military’s brutal crackdown on dissent, killing more than 1,600 civilians and rolling back fundamental human rights protections.42 Aung San Suu Kyi and other civilian leaders were detained and prosecuted. The grounds for removing Myanmar’s trade preferences under EBA conditionality provisions were further strengthened, and any concerns about the adverse political consequences of such a move evaporated. These grounds may have been further strengthened by the ILO Governing Body’s 25 March 2022 decision to establish an unprecedented second Commission of Inquiry into forced labour and freedom of association violations in Myanmar.43 The geopolitical considerations did not significantly change, however. All indications were that China was dismayed that the coup had severely damaged its political and economic interests in Myanmar and brought into power a military leadership that it knew to be deeply distrustful of Beijing – much more so than the civilian government it had ousted.44 The day after the coup, the EU issued a declaration on behalf of all Member States, condemning the coup and stating that it would ‘consider all options at its disposal to ensure that democracy prevails’.45 Indications of what this might mean were included in a 39 See, eg, Myanmar’s Stalled Transition, International Crisis Group, 28 August 2018. 40 See, eg, ‘Embracing China, Facebook and himself, Cambodia’s ruler digs in’. New York Times, 17 March 2018. 41 For a detailed discussion of Myanmar’s relations with China, see Commerce and Conflict: Navigating Myanmar’s China Relationship, International Crisis Group, 30 March 2020. 42 ‘Situation of human rights in Myanmar since 1 February 2021’, Report of the United Nations High Commissioner for Human Rights, Human Rights Council, UN Doc A/HRC/49/72, 15 March 2022. 43 ‘ILO Governing Body agrees Myanmar Commission of Inquiry’, ILO Press Release, 25 March 2022. On the work of the earlier Commission of Inquiry, see Report of the Commission of Inquiry appointed under art 26 of the Constitution of the International Labour Organization to examine the observation by Myanmar of the Forced Labour Convention, 1930 (No 29), (1998) LXXXI ILO Official Bulletin (Series B) 1–400; F Maupain, ‘Is the ILO Effective in Upholding Workers’ Rights?’ in P Alston (ed), Labour Rights as Human Rights (Oxford, Oxford University Press, 2005) 85–142; and R Horsey, Ending Forced Labour in Myanmar: Engaging a Pariah Regime (Abingdon, Routledge, 2011). 44 See R Horsey, ‘One year on from the Myanmar coup,’ International Crisis Group Q&A, 25 January 2022. 45 ‘Myanmar: Declaration by the High Representative on behalf of the European Union’, Council of the European Union, Press Release, 2 February 2021.

EU Trade Preferences and Human Rights in Myanmar  291 9 February speech by the EU foreign affairs chief Joseph Borrell at a special debate on the situ­ ation in Myanmar in the European Parliament. He noted that the EU had three main tools at its disposal: targeted sanctions on military leaders and military-owned enterprises; a review of EU development assistance; and the possibility of revoking EBA access.46 The Parliament adopted a long and strongly worded resolution, inter alia, urging the Commission to launch a formal investigation with a view to suspending Myanmar’s EBA trade access, while bearing in mind the possible effects on the population and economy.47 Despite this resolution, key Member States, as well as many voices in the Commission, remained opposed to revoking trade privileges and, ultimately, no formal steps were taken in this direction. Rather, the EU focused on other measures, including a suspension of official development assistance and targeted sanctions on individuals and entities linked to the Myanmar regime and military.48 However, removal of EBA access remains a possibility, and it may again be a geopolitical factor that tips the balance. Russia’s February 2022 invasion of Ukraine has transformed global geopolitics and has made the diplomatic and economic isolation of Russia a key focus of the EU. Russia, which has longstanding close relations with Myanmar and, in particular, very close military ties, has emerged as the regime’s most important international ally following the coup. The Myanmar regime has vocally supported Russia’s invasion of Ukraine.49 Myanmar will appear to the EU as an unquestioning supporter of the bloc’s principal geostrategic foe.

VI.  Policy Considerations It is probably inevitable that EU decisions on withdrawing trade preferences under human rights conditionality provisions will involve considerations that go beyond human rights and sustainable development, to involve other EU interests, including political and geopolitical factors. Yet, the fact that the EU rarely acknowledges that these additional factors are part of the decision-making process, leaves the EU open to the charge that its GSP scheme is applied non-transparently and inconsistently. This non-transparent and inconsistent application of the scheme’s human rights provisions is well known and has been pointed out in public commentary and in the academic literature (see above). An opportunity to address this would be the current process of formulating a revised GSP scheme to take effect from January 2024. However, in the EU-commissioned mid-term evaluation of GSP in 2018, this issue was barely mentioned in the 336-page report.50

46 ‘Myanmar: Speech by High Representative/Vice-President Josep Borrell at the European Parliament debate’, Brussels, 9 February 2021. 47 ‘European Parliament Resolution of 11 February 2021 on the situation in Myanmar’, Doc 2021/2540(RSP). 48 See ‘Myanmar/Burma: EU imposes restrictive measures on 22 individuals and 4 entities in fourth round of sanctions’, Council of the European Union Press Release, 21 February 2022. 49 See, eg, ‘Where do Russia’s allies stand as Western powers slam Moscow?’ Al Jazeera, 25 February 2022. 50 See ‘Mid-Term Evaluation of the EU’s Generalised Scheme of Preferences (GSP), Final Report,’ European Commission, July 2018.

292  Richard Horsey The EU’s draft proposals for the revised scheme include adding additional human rights, labour rights and good governance instruments that need to be complied with, along with new climate change and environmental protection conditionalities, as well as introducing a new expedited withdrawal process for exceptionally serious human rights abuses. But they do not really address the question of their consistent and transparent implementation, in particular as concerns the role of political and geopolitical factors.51 The challenges for the EU in this regard are only likely to deepen. On the one hand, the EU is seeking to apply economic leverage in support of its democratic, social and human rights principles at a uniquely difficult time. More than ever, these principles are being eroded globally, the rules-based international order is under considerable pressure and the West is losing influence with the rise of China, particularly in Asia. The importance of geopolitical considerations is also rising as the world enters a more uncertain and contested multi-polar environment. Russia’s invasion of Ukraine has brought these issues closer to home for Europe and thrown them into sharper focus. Political and geopolitical factors are likely to weigh ever more heavily on EU policymakers including, perhaps especially, as regards trade preferences.

51 See ‘Commission proposes new EU Generalised Scheme of Preferences to promote sustainable development in low-income countries’, European Commission, Press Release, 22 September 2021. See also, ‘The Commission proposal on reforming the Generalised Scheme of Tariff Preferences: analysis of human rights incentives and conditionalities’, European Parliament, January 2022.

26 The Future of Health and Safety at Work as a Fundamental Principle and Right – Will it Meet ISO and UN Challenges? ISABELLE DAUGAREILH

I. Introduction In June 2022, the International Labour Conference of the International Labour Organization (ILO) adopted a landmark Resolution on the inclusion of a safe and healthy working environment in the ILO’s framework of fundamental principles and rights at work (‘the Resolution’).1 In the aftermath of the COVID-19 pandemic and the disastrous effects it had on workers, the ILO overcame challenges, crises and conflicts to arrive at a consensus on the place of a right to a safe and healthy working environment in its normative system. This has strengthened the ILO’s hand at a time when other institutions are jockeying to occupy policy space. Although a safe and healthy working environment has been a constitutionally based concern of the ILO since 1919, it has taken a century for it to become designated as a principle and a fundamental right. Now integrated into the 1998 Declaration on Fundamental Principles and Rights at Work, ILO member states, whatever their level of economic development, have undertaken to respect and promote this principle and this right, whether they have ratified the relevant conventions or not. With this historic gesture, the ILO constituents (governments, employers and workers) have added the Occupational Safety and Health Convention, 1981 (No 155) and the Promotional Framework for Occupational Safety and Health Convention, 2006 (No 187) to the list of the other eight ILO fundamental Conventions. Whilst continuing to regulate through the adoption of conventions, at the same time the ILO is using forms of regulation that rely on soft law (instruments other than conventions).2 Indeed, it was with the 1998 Declaration and its follow-up, now amended by the Resolution, that the Organisation invented a combination of the two types of regulation. 1 Resolution adopted at the 110th Session of the International Labour Conference, 10 June 2022, ILC.111/ Resolution I. 2 F Maupain, ‘L’OIT devant le défi de la mondialisation – de la réglementation à la régulation internationale du travail ?’ in P de Senarclens, Maîtriser la mondialisation – La régulation sociale internationale (Paris, Presses de Sciences Po, collection Académique, 2000) 147.

294  Isabelle Daugareilh The combination consists of creating a non-legally binding platform to encourage the ratification of the fundamental Conventions. That the ILO has found, with this type of arrangement, a way of rendering its normative actions effective is proven by the indisputable indicator of the number of ratifications of the so-called fundamental conventions. This combination organises a continuum between conventions and non-convention instruments. This allows for some experimentation with a whole range of indices of normativity (degree of binding force/precision of rules, etc.)3 which make the distinction between soft law and hard law redundant. Since the 1998 Declaration, ILO has undergone what Prosper Weil has called a ‘stretching of international normativity’,4 the ILO Centenary Declaration (2019) and the Resolution that followed on from it being part of this underlying normative trend. Francis Maupain was one of the prime movers on this normative trend, which has proven to be a transformative impulse for the ILO. After what has been a long march, the right to health and safety at work has become the fundamental right to a safe and healthy working environment (Part II). This new normative gesture by the ILO is also an example of the ‘venerable old lady’ showing that she still has the ability to stand up and be counted in an international normative context where competition is rife on this subject (Part III).

II.  The Long March of the Fundamental Right to a Safe, Healthy Workplace After a long process made up of advances, postponements and programming changes, the ILO managed to arrive at a consensus that led to the adoption on 10 June 2022 of the Resolution (A). This was achieved at the price of a compromise which heralds another whose outcome is clearly in the hands of the constituents and is therefore their responsibility (B).

A.  Setbacks with the 2019 Declaration The right to a safe, healthy workplace is evoked in the ILO Constitution (1919), which refers in its Preamble to ‘the protection of the worker against sickness, disease and injury arising out of his employment’ being ‘urgently required’. The Declaration of Philadelphia (1944), annexed to the Constitution, sees furthering ‘adequate protection for the life and health of workers in all occupations’ as one of the ‘solemn obligations’ of the ILO. And yet it was not included in the fundamental principles and rights at work in the 1998 Declaration. In the Declaration on Social Justice for a Fair Globalisation 2008, it was included in the strategic objective on social protection. The question is therefore more than just a simple subject of interest for the ILO, which now has 43 different documents that refer to it.

3 C Thibierge, ‘La densification normative: découverte d’un processus’, Mare et Marin, 2013. Recueil Dalloz, no 14, 2014, 834; La force normative: naissance d’un concept (Brussels, LGDJ-Bruylant, 2009). 4 P Weil, ‘Le droit international en quête de son identité’, 237 (VI) Récueil des Cours de l’Académie de droit international (1992) (The Hague, Martinus Nijhoff Publishers, 1996) 227.

The Future of Health and Safety at Work as a Fundamental Principle and Right  295 Healthy and safe working conditions were among the issues raised in the draft text of the Centenary Declaration. The very clear initial proposal to include the right to safe and healthy working conditions in the fundamental rights of the 1998 Declaration5 gave way to a more ambiguous, less bold, vaguer and less constraining phrase: ‘safe and healthy working conditions are fundamental to decent work’. This statement used part of the wording of the amendment proposed by the European Union (EU) governments and part of the employers’ amendment. The rewriting of the text of the Centenary Declaration revealed that there was very strong resistance to extending the substantive content of the 1998 Declaration.6 However, the Centenary Declaration was accompanied by the Resolution on the Centenary Declaration, adopted by the International Labour Conference on 21 June 2019, which requested the Governing Body ‘to consider, as soon as possible, proposals for including safe and healthy working conditions in the ILO’s framework of fundamental principles and rights at work’. The adoption of the 2022 Resolution is the result of a process of discussions held within the Governing Body7 (‘GB’) and the General Affairs Committee of the Conference (‘the Committee’). The latter was charged with deciding on points relating to form: should the inclusion of the new principle-right in the 1998 Declaration be an amendment to the Declaration or should a new Declaration be adopted, potentially with its own follow-up mechanism? By opting for the first solution, the Committee and then the ILC chose to preserve the unity, authority, scope, visibility and efficacy of the 1998 Declaration and its follow-up mechanism, which has ensured its success, and which would now be ­applicable to the right to a safe and health working environment. Like the 1998 Declaration, the Resolution is declaratory and does not aim to establish the fundamental character of the rights, for ‘fundamental rights are not fundamental because the Declaration says so; the Declaration says that they are fundamental because they are’.8 As for the choice of C155 and C187 as the two Conventions to underpin the fundamental right to a safe and healthy work environment,9 this is logically in line with the conclusions of the two ILO General Surveys, respectively those of 200910 and 2017 and their referencing outside the ILO in the International Covenant on Economic, Social and Cultural Rights (Art.7), the European Social Charter (Art 3), the Seoul Declaration of 2008 and then the Istanbul Declaration of 2011. This choice corresponds to a concern to have a global, even a systemic vision of this right and in so doing to justify the choice of the wording, which does not refer to a right to health but to a safe and healthy environment as mentioned in Articles 1(d) and 2(1)

5 Draft: II.C: ‘Safe and healthy working conditions constitute a fundamental principle and right at work to be added those contained in the ILO Declaration on Fundamental Principles and Rights at Work of 1998.’ 6 International Labour Conference, Provisional Record No 6B (Rev), Fourth item on the agenda: ILO Centenary outcome document, Report of the Committee of the Whole. 7 337th Session of the GB, GB.337/PV, §116. 341st Session of the GB and 343rd Session of the GB GB.341/PV, §198. 8 ILO, Consideration of a possible declaration of principles of the International Labour Organization concerning fundamental rights and its appropriate follow-up mechanism, Report (ILC), 86th session, 7, 1998, p. 1. 9 C Brakenhielm and J Obadia, ‘Sécurité et santé au travail’ in JM Thouvenin and A Trebilcock, Droit international social, Bruylant, Cedin, Tome 2, 2013, Brussels, p. 995. The 1985 Convention C171 on occupational health services was suggested by the workers’ group whereas the employers’ group only wished to use Convention C187, see ILC.110/Record no 1D, 17 June 2022. 10 2009 General Survey concerning Convention C155, ILC.98/III(1B), §294 and 295.

296  Isabelle Daugareilh of Convention No 187.11 As for the discussions on the substance, they concerned the legal effects of the Resolution, which led to a compromise.

B.  The Compromise on the 2022 Resolution ‘International law is a creative and flexible instrument that can regulate anything and do anything as long as States want and know how to use it.’12 ILO law is no exception to this rule and seems to have inspired the two elements in the compromise that are expressly contained in the Resolution. These are the saving clause for States (1) and the principle of complementary responsibility, which concerns the constituents (2).

1.  The Saving Clause for the Member States Historically, the ILO has stood apart from other international organisations due to its tripartite nature, which runs through all the processes involved in producing and controlling standards. Furthermore, the recital of the 1919 Constitution which refers to ‘the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations which desire to improve the conditions in their own countries’ remains a central concern of the ILO. It is for these reasons that ILO law differs from public international law in many respects. Thus, it rejects ratifications accompanied by reservations for two reasons. First, the Treaty that established the ILO does not provide for any system of general approval of reservations after the closure of the International Conference. Secondly, above all because it would go against the tripartism by virtue of which employers’ and workers’ organisations have equal standing with governments in the process of adopting a Convention and in the mechanisms for implementing them.13 However, some ILO Conventions contain flexibility clauses, which enable States to accompany their ratification with a declaration. These adaptations can take a variety of forms: authorised exclusion of certain branches or types of businesses, exceptions allowed for certain categories of workers, possibility of ratifying certain parts of the instrument, use of expressions leaving room for interpretation on the part of the States (‘if necessary, in light of national conditions and practice,’ etc.).14 The options must be open and provided for in the text of the relevant Convention.15 In the field of occupational health and safety,

11 2017 General Survey, ILC.106/III/1B, §573, 579, 580. 12 Serge Sur, translated quote from ‘Le droit international au cœur des relations internationales’, Dossier A quoi sert le droit international, Questions internationales, no 49, 2011, p. 4, sp.p.11. 13 CW Jenks, The International Protection of Trade Union Freedom (London, Stevens, 1957) 542–47, 547, Statement in the Committee of the Whole of Vienna Conference on the Law of Treaties (Doc NU A/CONF 39/C1/ SR; §11 quoted by PH Imbert, Les réserves aux traités multilatéraux (Paris, Pedone, 1979) 28 ; BIT, Code international du travail (ILO, International Labour Code), vol I, (Geneva, ILO, 1951) CV–CX ; Dupuy, Y Kerbrat, Droit international public, 12th edn (Précis Dalloz, 2014) 286. 14 J-M Servais, Droit international du travail (Brussels, Larcier, 2015) 234 ff, 380 ff. 15 This is the case of the Minimum Age for Admission to Employment Convention, 1973 (No 138) and the Employment Injury Benefits Convention, 1964 (No 121).

The Future of Health and Safety at Work as a Fundamental Principle and Right  297 Convention No 155, for example, provided for flexibility clauses for the ratifying State, which can even make certain exclusions from the scope of application.16 The 2022 Resolution contains a quite different clause known as the savings clause, which is worded as follows: ‘nothing in this resolution shall be construed as affecting in any manner the rights and obligations of a Member arising from existing trade and investment agreements between States.’17 The legal effects on multilateral and bilateral economic free trade agreements were the focus of a large part of the discussions among constituents, even though – the Resolution being a non-binding instrument – there was absolutely no need for such a clause. This gives an idea of how sensitive a subject this is.18 The secretariat of the ILO expressed itself in somewhat different terms: the Declaration, just as it does not create any new constitutional obligations for member States, does not release them from any legal obligations they may have under international law (…). The Declaration, given that it is not even a treaty, would not provide any legal basis for derogations from these treaties inter se. Neither would it allow the ILO to issue any sort of instructions on a matter that does not fall within its competence.19

Like the 1998 Declaration, the 2022 amendment to it does not create any new legal obligation, direct or indirect, for the States parties to economic free trade agreements. Its incorporation can only be explicit and therefore depends entirely on the willingness of the States, which are also not under any obligation to consider its insertion in the treaties in force. It should be emphasised that only 65 per cent of free trade agreements expressly mention the 1998 Declaration and 9 per cent the Fundamental Conventions, and that the binding force of the clauses relating to them varies considerably.20 This shows just how far there still is go for the 1998 Declaration in its initial version, never mind the version amended by the 2022 Resolution, to truly penetrate international trade and international economic law. The savings clause in the Resolution protects States against any over-bold interpretation or any attempt to give it a scope that in principle it does not have. Worded as it is, the clause potentially blunts the right newly qualified as fundamental, restricting its reach and leaving international labour law at the mercy of the globalisation of the economy and an international economic law that is very largely deaf to social issues.21 The second element in the compromise, the principle of complementary responsibility,22 could, if it were taken seriously by the constituents, have the effect of mitigating the savings clause. However, from a formal point of view, the Declaration’s authors did not include it in the body of the text of the Resolution, but rather in its preamble.

16 Arts 1(2) and (3), 2(1) and 3 of the Convention. Convention C161 and the accompanying Occupational Health Services Recommendation (No 171) provide for a progressive commitment for States to introduce health services for all workers in all branches. 17 Unilateral incentives were initially included. 18 The clause was defended among others by Bangladesh and the United States. 19 ILO, Consideration of a possible Declaration of principles of the International Labour Organisation concerning fundamental rights, 22, quoted at the 343rd Session of the GB, GB.343/INS/6, 14 October 2021. 20 ILO, Handbook on Assessment of Labour Provisions in Trade and Investment Arrangements, 2017. Quoted in GB.343/INS/6. 21 See LeClercq, Chapter 18 in this volume. 22 Instead of shared responsibility. In fact, the workers’ group maintained that the responsibilities and duties of employers and governments were quite different to those of workers who have ‘little to no real power to influence their working environment’, ILC.110/Record 1 D, 17 June 2022.

298  Isabelle Daugareilh

2.  The Complementary Responsibilities of the Constituents The preamble also states that: ‘A safe and healthy working environment requires the active participation of governments, employers and workers through a system of defined rights and responsibilities, and duties as well as through social dialogue and cooperation.’ The use of social dialogue globally in matters relating to safe and healthy working conditions is already established practice, whether as part of International Framework Agreements (hereinafter IFAs) or multi-stakeholder agreements (as in the Bangladesh Accords). Safe and healthy working conditions count among the subjects most often dealt with in IFAs even though they were not part of the rights enshrined in the 1998 Declaration. Moreover, it is on this subject that IFAs are most innovative and most demanding. These agreements23 in fact include obligations of means, including: the introduction of a dialogue with bodies of staff representatives in order to draw up a quality, health, safety and environmental policy, introduction of indicators relating to workstation safety24 and control mechanisms within internal management systems which are made known to the staff ­representatives, recognition at global level of a worker’s right to remove himself/herself from unsafe working conditions,25 the setting up a global joint monitoring committee and an information system on risks and safety training.26 These commitments are sometimes the subject of a cascade of contracts running through the global value chain, which gives them the potential to be legally effective.27 The adoption of the Resolution should boost the inclusion of the right to safe and healthy working conditions in future IFAs or those that are renewed. Furthermore, following the Rana Plaza building collapse of 24 April 2013, three initiatives were taken in Bangladesh involving public and private stakeholders, including the Accord on Fire and Building Safety in Bangladesh (hereinafter the Accord) signed on 13 May 2013 by two international trade union federations – IndustriAll Global Union and UNI Global Union – and by transnational companies. The Accord introduced a fire and building safety programme in the garment industry in Bangladesh. It applies to all suppliers of products made for the signatory companies, the latter committing to ensure that suppliers agree to be inspected and to apply the corrective and training measures set up by mutual agreement between the brand and the local company. The legally binding Accord has set up a tripartite executive committee which has the power to hire inspectors and to expel companies that fail to comply. The text gives the parties in a dispute the right to go to international

23 I Daugareilh, ‘Enjeux et limites des accords cadre internationaux: l’exemple des entreprises françaises’ in I Daugareilh, La RSE, vecteur d’un droit de la mondialisation ? (Brussels, Bruylant, 2017). 24 Indicators introduced for the first time in the EDF Agreement of 25 January 2009 on the social responsibility of the EDF group. Available at: www.industriall-union.org. Indicators also appear in the IFAs of companies such as Solvay (ex-Rhodia), Lafarge, Peugeot and France Telecom. 25 Total agreement signed in 2015 with Industri’All. Available at: www.industriall-union.org. 26 In the Danone agreement the beneficiaries of the safety obligation are the employees of temporary work agencies and subcontractors and, more generally, anyone present on the site, whether or not they are there to work and whatever their legal status. 27 L Boy, ‘Les apports de la certification, de la normalisation, et de la labellisation  à l’effectivité ou l’efficacité des normes juridiques’ in I Daugareilh, La RSE, vecteur d’un droit de la mondialisation? (Brussels, Bruylant, 2017).

The Future of Health and Safety at Work as a Fundamental Principle and Right  299 arbitration.28 The signatories gave the ILO a role as ‘trustee’ of the implementation of the Accord. The Accord highlights the responsibility of the host State in the face of global value chains.29 The results of its implementation30 demonstrate that the national territory is the right level at which to achieve a progression from a situation of poor working conditions to a satisfactory state. Without external pressure, the Bangladesh State would not have accepted such initiatives; conversely no progress is possible in these contexts without the full and willing involvement of the host State as well as the economic and social actors. Now, the difficulties encountered when it came to renewing the 2013 Accord in 2018 due to the organised resistance of the exporter employers in Bangladesh (who had supporters in the government) and the seising of the Supreme Court by the owner of a local garment factory led the Bangladesh government to take a harder line in the face of what it considered to be interference in its internal affairs on the part of the ILO as well as the partners in the Accord. Given this context, the signing of a new Accord on 1 September 2021 for a twoyear period can be seen as a victory on two fronts. Firstly, the Accord remains multipartite, binding and includes a simplified process for going to arbitration. Secondly, its subjectmatter scope has been extended from safe and healthy working conditions to include due diligence on human rights throughout the supply chain, and a commitment was made to extend the scope of the Accord to other countries as well. The enshrining of the right to safe and healthy workplace as a fundamental right in the 2022 Resolution reinforces the application of the new Accord. Far from ending the debate on safe and healthy working conditions, the 2022 Resolution in fact opens a new chapter whose effectiveness will depend partly on the constituents’ engagement in the context of free trade agreements as well as agreements that arise out of the transnational social dialogue. Since safe and healthy working conditions have been a source of tension in international relations, the adoption of the Resolution should allow the ILO to re-position itself more favourably.

III.  The ILO’s Multilateral Re-Positioning on Safe and Healthy Working Conditions Re-asserting multilateralism31 is one thing, while actually implementing and maintaining it is another. As a United Nations (UN) Specialised Agency, the ILO is often confronted

28 Two sets of arbitration proceedings were brought by the trade unions IndsutriAll Global Union and Uni Global Union at the Permanent Court of Arbitration in 2016 against two brands. The Arbitration tribunal issued a termination order on 17 July 2018 following a financial settlement reached by the parties, whose identity has remained secret. Permanent Court of Arbitration, Arbitrations under the Accord on Fire and Building Safety in Bangladesh between IndustriALL Global Union and UNI Global Union and two global fashion brands, PCA Press Release, 17 July 2018, The Hague. See www.pca-cpa.org/cases/152/. See Yiannibas, Chapter 23 in this volume. 29 See Martin-Ortega and Trusgnach, Chapter 24 in this volume. 30 Y Kang, ‘The Rise, Demise and Replacement of the Bangladesh Experiment in Transnational Labour Regulation’ (2021) 160(3) International Labour Review 407–30; A Trebilcock, ‘The Rana Plaza Disaster Seven Years On: Transnational Experiments and Perhaps a New Treaty? (2020) 159(4) International Labour Review 545–68. 31 See B Badie and G Devin, Le multilatéralisme. Nouvelles formes de l’action internationale (Paris, La Découverte, 2007).

300  Isabelle Daugareilh with competing international regulation initiatives. This is the case in particular with the International Organisation for Standardization (ISO), which has adopted a standard on workplace health and safety, ISO 4500132 (A). The ILO also has to defend its leadership on work and social protection issues in the international diplomatic sphere, within the UN system itself (B).

A.  The Spectre of Standard ISO 45001 on Health and Safety in the Workplace After the ILO and ISO signed a first Memorandum of Understanding (MoU) in 2005 when the ISO 26000 standard on organisations’ social responsibility came out,33 they signed a second MoU in August 2013.34 The latter concerned the two organisations’ collaboration in the field of occupational safety and health management systems. This agreement was terminated by the ILO on 8 March 2018. The aim of the 2013 MoU was, first, to avoid ISO standards contradicting those of the ILO and, secondly, to reinforce the complementarity between the mandates of the two organisations. In this MoU it was stipulated that ‘Given the broad mandate and action of the ILO to promote social justice and decent work, and ISO’s broad mission, ISO standards that relate to issues within the ILO’s mandate (ILO issues) should respect and support the provisions of ILS and related ILO action, including by using ILS as the source of reference with respect to ILO issues in case of conflict.’35 Where the two conflict, the MoU specified that precedence must be given to the ILO’s standards over those of ISO. The conflict between the two organisations concerned the content of the ISO standard on occupational health and safety published in April 2018. Prior to this, the ILO had taken part in four years of discussions with ISO. Notwithstanding the ILO’s observations, however, the ISO standard contains protection requirements that are less demanding than the ILO standards. It does not contain guarantees for workers such as the right to withdraw in the case of serious and imminent danger for their health and safety without fear of reprisals, the right to free personal protective equipment, the right to free training, etc. The ISO 45001 standard harbours several risks: jeopardising progress in national legislation towards the ILO international standard, impeding the effectiveness of a State’s own standards adopted in line with ILO legal instruments, and giving companies involved in international trade carte blanche to thwart the ILO’s efforts to establish the fundamental right to a safe and healthy working environment. This illustrates the extent to which the principle of coherence mobilised in the Centenary Declaration is a condition for the ILO 32 International standard ISO 45001, Occupational health and safety management systems – Requirements with guidance for use, Reference no ISO 45001:2018 (F). 33 I Daugareilh, ‘L’ISO à l’assaut du social : risques et limites d’un exercice de normalisation sociale’ in I Daugareilh (dir.) Responsabilité sociale de l’entreprise transnationale et globalisation de l’économie (Bruylant, Brussels, 2010). By the same author, ‘La norme ISO 26000 sur la responsabilité sociale des organisations: observations sur un exercice d’inter-normativité’ in M Capron, F Quaisnel-Lanoizeléee, M.F., ISO 26000, une norme ‘hors norme’ ? (Economica, Paris, 2010) p 147. 34 319th Session of the Governing Body of 16–31 October 2013, GB.319/INS/INF/1, 2013. 35 See ILO GB of 26 October–9 November 2017, GB.331/INS/10, Appendix I, p 11 and decision of 7 November 2017.

The Future of Health and Safety at Work as a Fundamental Principle and Right  301 maintaining its position on the international institutional and normative plane. This example also shows the extent to which international organisations whose standards are directly aimed at companies, especially those involved in international trade, indirectly hold sway over the Member States of the ILO, by allowing those companies to claim that they comply with a standard on occupational health and safety, albeit one that is less demanding than those of the ILO. In this respect, the confirmation of safe and healthy working conditions as a fundamental right at the 110th Session of the ILC is an eminently powerful political act that will help to tackle ‘lowest bidder’ international (technical) standards – as long as the constituents take the principle of complementary responsibility established by the 2022 Resolution seriously. The interest of this principle becomes tangible here in the sense that each ISO 45001 certification sought by a company on the basis of said text could be seen as undermining the reach of the 2022 Resolution. The progressive extension of private international – technical – standards is a formidable weapon in the hands of – transnational – companies, which could prove to pose a major risk (to democracy and social justice) in the absence of legal regulation of the activities of transnational companies. The power of these economic actors and their legal irresponsibility remains one of – if not the major – problems facing us this century. The fact that the Centenary Declaration says nothing about this issue can no doubt be seen as one of the text’s weaknesses. Even if, since 2013, the UN has undertaken36 the development of a legally binding international instrument to regulate companies’ transnational activities,37 the question of the regulation of global value chains would certainly deserve more significant input from the ILO.38

B.  The Construction of ILO/UN Relations on Decent Work, and Safe and Healthy Working Conditions Leadership on social issues in the UN’s global goals does not go without saying. The ILO’s rapprochement with the UN began with an initiative by Juan Somavia during the preparation of the 1995 Copenhagen summit (which Somavia chaired before becoming ILO Director-General).39 The Decent Work Agenda initiative launched at the 1999 ILC was supposed to serve as the basis for a reflection on development within the UN. And yet, decent work would only feature on the margins of the September 2000 Millennium Summit, the UN having turned to the Organisation for Economic Co-operation and Development

36 UN, General Assembly, A/HRC/RES/26/9. See E Decaux, ‘La sous-commission des droits de l’homme des Nations Unies, de 1947 à nos jours’ (2007) 132(4) Relations internationales 59. By the same author (ed.), La responsabilité des entreprises multinationales en matière de droits de l’homme (Brussels, Bruylant, 2010). 37 S Grosbon, ‘Projet de traité international sur les sociétés transnationales et les droits de l’homme’ Revue des droits de l’homme, Varia 16/2019; see also Trebilcock, above n 30, 556–63. 38 After this chapter was written, a tripartite working group of the ILO agreed on a strategy for decent work and supply chains, with recommendations to be reviewed by the ILO Governing Body in November 2022. Available at: www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_850378/lang--en/index.htm. 39 M Louis, L’Organisation internationale du travail et le travail décent, Un agenda pour le multilatéralisme, (L’Harmatan, coll. Questions contemporaines, 2011) 89.

302  Isabelle Daugareilh and the Bretton Wood institutions to draw up a report in which the ILO was not invited to participate.40 The ILO reacted by convening a World Commission on the Social Dimension of Globalisation, which would produce a report which recommended that decent work ‘should become a global goal, not just an ILO goal’.41 It was thanks to this report that the Decent Work Agenda would largely be taken up again at the Millennium Summit in 2005. This was the ‘beginning of recognition’,42 which at the last Millennium Summit on sustainable development in 2015 led to the integration of full employment and decent work into Sustainable Development Goal 8 (Target 5). The promotion of safe and secure working environments is part of the UN’s 2030 Agenda for Sustainable Development: as a ‘worker’s right’ it is necessary to ‘protect labour rights and promote safe and secure working environments of all workers, including migrant workers, particularly women migrants, and those in precarious employment’.43 Under the Agenda, the ILO is in charge of providing indicators on the frequency of frequency of fatal and non-fatal occupational injuries, by gender and immigration status. The Agenda includes other targets on mental health and illness caused by hazardous chemicals. Even if the taking on board of the ILO’s strategies by the international institutions implies constant efforts, it is facilitated by the institutional links in the UN system, whereas no such connection exists with the ISO, making the resumption of the dialogue broken off in 2018 all the more complex.

IV. Conclusion The universalisation of the rights enshrined in ILO law no doubt offers the best way forward to reinforce, in an indisputable manner, the ILO’s role in the regulation of labour relations on a global level. The integration of safe and healthy working conditions in the 1998 Declaration puts them on that path. Although the ILO has never been so close to its goal since the fall of the Berlin Wall, the institution is, as Francis Maupain has often said,44 facing the challenge of a globalised economy that still lacks regulation of social issues in a formal and binding way in the same way that it regulates economic issues. It can only be hoped that the fundamental right to a safe and healthy working environment will not pay the price!

40 ibid, 94. C Percher, ‘Le concept de travail décent à l’épreuve de l’Union européenne’ Doctoral Thesis, Lyon 2, 2017. 41 World Commission on the Social Dimension of Globalization, A Fair Globalization: Creating Opportunities for All (Geneva, ILO, 2004). 42 Louis, above n 39, 96. 43 See Novitz, Chapter 8 in this volume. 44 F Maupain, L’OIT à l’épreuve de la mondialisation financière – Peut-on réguler sans contraindre? above n 2.

C.  ‘Labour Law Itself ’ and the Future of Global Social Justice

304

27 On Social Justice and Artificial Intelligence: Trade Unions as Instruments for the Dissemination of Transnational Norms JULIA LÓPEZ LÓPEZ AND EUSEBI COLÀS-NEILA

I.  Debates on Social Justice and Decent Work in a Framework of Complex Sources of Regulation The technological advances of recent decades have opened relevant debates not only on employment and the right to equality and non-discrimination of workers, but also on how to build societies in which progress implies social justice. Within the new technologies, the development of artificial intelligence (AI) occupies a central place due to the pervasiveness of this technological advance, which at the same time presents dangers for the fundamental rights not only of workers, but of citizens as a whole. AI is defined as a multidisciplinary field for ‘understanding, modeling and replicating intelligence and cognitive processes’.1 Its analysis must be framed within a context of globalisation and challenges for international labour law as a right2 and the deepening of democratic structures in the new labour law3 in the search for social justice. Using the framework of the International Labour Organization (ILO) as a reference for the management of new technologies is appropriate because we are within global scenarios with multilevel actors and sources of governance.4 The evolution of labour standards in the ILO opens up broad references to Conventions and Recommendations alongside other governance standards of the ILO – on Decent Work and the 2030 Agenda for Sustainable Development, on Fair Globalization and the Future of Work. These weave a regulatory fabric that is the point of reference for the analysis of artificial intelligence as both progress and as a challenge.

1 K Frankish and WM Ramsey (eds), The Cambridge Handbook of Artificial Intelligence (Cambridge, Cambridge University Press, 2014). 2 Cf A Blackett and A Trebilcock, ‘Conceptualizing Transnational Labour Law’ in A Blackett and A Trebilcock (eds) Research Handbook on Transnational Labour Law (Cheltenham, Edward Elgar, 2015) 3–31. 3 M Barenberg, ’A New Labor Law for Deep Democracy. From Social Democracy to Democratic Socialism’ in AB Cornell (ed), The Cambridge Handbook of Labor and Democracy (Cambridge, Cambridge University Press 2022) 33. 4 T Novitz, ‘The Potential for International Regulation of the Gig Economy’ (2020) 31 King’s Law Journal 275–86.

306  Julia López López and Eusebi Colàs-Neila In the framework of the European Union (EU), it has been maintained that the so-called cosmopolitan legal order has transcended minimalism in the recognition of rights in order to maintain a commitment to democracy and national diversity within a system governed by the principle of subsidiarity.5 Technological changes radiate their influence also in a delocalised way and in this sense, in order to guarantee labour standards in developing as well as more developed countries, it is necessary to concentrate on democratic alternatives that are incompatible with repression, informal labour or deregulation.6 The regulation of artificial intelligence in a context of growing violation of labour rights (according to the International Trade Union Confederation (ITUC) Index of 2021) is key from a global perspective in which the different institutional actors – ILO, EU and trade unions – play an interactive role in the generation of their own rules but as well in the integration of rules emanating from other sources of governance (the clear example is the implementation of provisions of ILO conventions in trade union policies).

II.  AI Regulation and Trade Unions’ Reception of ILO Standards and the Charter of Fundamental Rights of the EU The ILO has been evolving in the development of governance instruments, not only for the labour market but also for human rights, combining classic instruments such as Conventions and Recommendations with other more recent ones that fall under the heading of governance. In addition to the fundamental Conventions – on freedom of association, equality and non-discrimination, and abolition of child labour and forced labour – the use of governance instruments on decent work and social justice create a spill over that allows maintaining the centrality of people in the implementation of employment and labour market policies and beyond. Fundamental workers’ rights as defined by the ILO are built on two pillars: the right to freedom of association and the right to equality and non-discrimination. These two pillars allow the development of the main objective of the ILO’s Future of Work, which is the centrality of the person as the axis of reference in the organisation of work in the future and therefore, within the field of technological change, the construction of a protagonist or agency of all those involved in decision-making without discrimination. Participation, transparency and respect for fundamental rights – privacy, equality and dignity – make up the glossary to implement the processes of design and implementation of AI from a social justice perspective. The hard law references to be used as a basis for the construction of the regulatory framework for AI are two-fold: first, Article 11 of the European Convention of Human Rights7 on freedom of assembly and association, with two elements: the recognition of the right to freedom of association and the right to organise and the ILO Freedom of Association

5 AS Sweet and C Ryan, A Cosmopolitan Legal Order: Kant, Constitutional Justice and the European Convention of Human Rights (Oxford, Oxford University Press 2018) 3. 6 B Langille, ‘Human freedom and human capital: Re-imagining labour law for development’ in T Novitz and D Mangan (eds), The Role of Labour Standards in Development: From Theory to Sustainable Practice (Oxford, Oxford University Press, 2011) 27. 7 Adopted by the Council of Europe and interpreted in the case law of the European Court of Human Rights.

On Social Justice and Artificial Intelligence  307 and Protection of the Right to Organize and Collective Bargaining Convention, 1948 (No 87) recognises the right of workers and employers to establish and join organisations of their own choosing without prior authorisation and the Right to Organize and Collective Bargaining Convention, 1949 (No 98), which provides that ‘workers shall enjoy adequate protection against any act of anti-union discrimination’ (Article 1(1)). Trade unions globally share the ILO principles of social justice and decent work and revitalise the rights derived from the ILO Conventions in the demands they make regarding management of AI. Thus, trade unions mimic ILO principles and become a means of implementing not only hard law standards but also ILO soft law. An example of this trend is the umbrella organisation UniGlobal, which advocates the regulation of AI based on transparency of systems, negotiation of processes and information rights. Workers must have access to data and they must be able to influence decision-making processes. Fundamental rights must be guaranteed on the basis of the principle of data minimisation, as well as access to information on how and when data is used. Biometric data and personal identification information must be protected, along with equipment that locates workers. In the EU’s 2018 analysis of the spill over between AI policies and actors, it proposes an AI management strategy8 based on three pillars for action: increase public and private investments in AI, prepare for socio-economic changes and ensure an adequate ethical and legal framework. In 2020, the White Paper on Artificial Intelligence, the European approach of excellence and trust,9 became a proposal for a Regulation.10 Although this draft was adopted without the participation of the social partners, the European Economic and Social Committee has recalled ‘the need to consult and inform workers and their representatives when introducing AI systems that could lead to changes in the organisation of work, surveillance and its control, as well as in the systems of evaluation and recruitment of workers’.11 The principle of subsidiarity is a key to understanding the management of AI at the transnational level and how relations with countries play out in the context of multilevel governance in this matter.12 The proposed Regulation, in its Article 3, defines an artificial intelligence system as ‘software that is developed using one or more of the techniques and strategies listed in Annex I and that can, for a given set of human-defined objectives, generate output information such as content, predictions, recommendations or decisions that influence the environments with which it interacts’. The objective of this proposal is, among others, to ensure that AI systems introduced and used in the EU market are safe and respect existing legislation on fundamental rights and values of the Union and improve governance. The new rules should be without prejudice to the General Data Protection Regulation13 and the Criminal Data Protection Directive.14 The control of the development and use of

8 Brussels, 7 December 2018, COM(2018) 795 final. 9 Brussels, 19.2.2020. COM (2020), 65 final. 10 Proposal for a Regulation of the European Parliament and of the Council, laying down harmonised rules in the field of artificial intelligence, SEC (2021) 167 final, SWD(2021) 84 final and SWD(2021) 85 final. 11 ‘Communication from the Commission to the European Parliament to the Council, the European Economic and Social Committee and the Committee of the Regions – Building trust and confidence in human-centric ­artificial intelligence’ (COM (2019) 168). 12 See J Prassl, ‘The Interaction of EU Law and National Law: Between Myth and Reality’ in A Bogg, C Costello and ACL Davies (eds), Research Handbook on EU Labour Law (Cheltenham, Edward Elgar, 2016) 42–64. 13 Regulation (EU) 2016/679. 14 Directive (EU) 2016/680.

308  Julia López López and Eusebi Colàs-Neila high-risk AI processes, such as the use of biometric identification, as well as the guarantee of algorithmic non-discrimination, are axes of governance planning proposed by the European Union. They imply a control of corporate powers in the use of these technologies, with the prohibition of some of these processes and the monitoring of others.15 An important point to underline in this frame refers to the weight of the EU Charter of Fundamental Rights in the regulation of AI to ‘constitutionalise’ among others the right to human dignity, respect for private and family life and the protection of personal data, non-discrimination and equality between men and women, the rights to freedom of expression and assembly and the guarantee of the right to effective judicial protection and to an impartial hearing, the presumption of innocence and the rights of defence. In addition, the proposal aims for the management of AI to have positive effects on the rights of various special groups, such as the rights of workers to fair and equitable working conditions and the integration of disabled persons, as well as the right to a high level of environmental protection and the improvement of its quality, in particular with regard to the health and safety of people. In the interaction between institutional actors the European Trades Union Confederation (ETUC) promoted a Resolution on 2 July 2020 on European Strategies in AI, with a clear integration and extension of the principles of the ILO and the EU Charter of Fundamental Rights. The text maintains that workers’ rights must be reinforced, avoiding disproportionality in the mechanisms of control and surveillance of workers, prohibiting algorithmic discrimination by bias, and respecting rights to privacy. It classifies AI processes as being of risk, high risk or prohibited. The idea is that the implementation processes guarantee access to information about the data, at national, sectorial and company levels, that the participation of representatives in the design, development and control of the processes is recognised and that there is a clear definition of responsibilities, with reversal of the burden of proof in favour of the workers, based on the precautionary principle. ETUC argues that it is essential to develop an AI management framework that yields a safe, predictable and reliable model. At the ETUC level, it argues that it is essential to regulate AI based on principles of participation, transparency and accountability – with reversal of the burden of proof in the processes in favour of workers – and with a view to compatibility between technological changes and the protection of labour rights. ETUC reminds us how failures in the configuration of algorithms have caused fatal accidents in the automobile industry and led to the demand to place people at the centre in the governance of new technological forms of AI.

III.  The Principles of Transparency, Control and Participation as Axes of Trade Union Policy – Comparative Models The analysis of the governance and regulation of IA processes cannot be confined to the global level because of the aforementioned element of delocalisation of its effects in different

15 RM Locke, The Promise and Limits of Private Power. Promoting Labor Standards in a Global Economy (Cambridge, Cambridge University Press, 2013).

On Social Justice and Artificial Intelligence  309 countries with complex contexts and effects. In this sense, the study of comparative cases of how norms and actors regulate IA can reveal a more complete picture of the role of trade unions in a multilevel framework. The starting point is the repetition at the global level of trade unionism’s mirroring of ILO principles in the governance of IA through soft law instruments such as guidelines and hard law through collective bargaining, with different levels of trade union participation.16 In this regard, Spain is a valuable exception in comparative law, offering the first case of legal recognition of the right of workers’ representatives to information regarding the introduction of AI in the workplace. The so-called ‘Rider Law’,17 the result of a tripartite social agreement process, involving the government and the most representative trade unions and employers’ organisations at state level, sought not only to facilitate recognition of the labour/employment nature of the services provided by the platform delivery personnel, but also introduced the right to information in the Workers’ Statute and the right of the works council in the following terms: 4. The Works Council shall have the right, as often as appropriate in each case, to: … d) Be informed by the company of the parameters, rules and instructions on which algorithms or artificial intelligence systems are based that affect decision-making that may affect working conditions, access to and maintenance of employment, including profiling.

As for the levels of union participation in the management of AI and spill over rules, it is becoming common in comparative law for collective bargaining agreements to include clauses relating to digital technology in general and, in some cases, to AI and algorithmic management in particular. In the absence of legislative interventions similar to the Spanish one, the collective bargaining agreement is shown to be the most appropriate way to recognise individual and collective rights in the face of algorithmic management by companies. Certainly, technology companies are the most permeable to the massive use of algorithms and AI in the day-to-day management of different aspects of labour relations. In Germany, for example, the framework agreement of the IBM Central Holding GmbH Group,18 establishes rules on the use of AI aimed at ensuring that human beings are the ultimate decision-makers. This Agreement is interesting not only for its content but also for the procedure that led to its adoption. On this issue, it was the Works Council in Hamburg that convinced the company of the benefits to be gained, and its commitment to concluding the agreement was translated into an offer to present and discuss it with the rest of the staff representatives. One of the inspiring principles of the procedure was to take into consideration the concerns of the employees to increase their acceptance of the use of the

16 H Collins, G Lester and V Mantouvalou (eds), Philosophical Foundations of Labour Law (Oxford, Oxford University Press, 2018) 26. 17 Royal Decree-Law 9/2021, of 11 May, amending the revised text of the Workers’ Statute Law, approved by Royal Legislative Decree 2/2015, of 23 October, to guarantee the labour rights of persons engaged in delivery in the field of digital platforms. Available at Permalink ELI: www.boe.es/eli/es/rdl/2021/05/11/9. 18 See www.bund-verlag.de/betriebsrat/deutscher-betriebsraete-preis/Preis-2021/SP-Digitalisierung. See also Federal Ministry of Labour and Social Affairs, Report of the Independent Interdisciplinary Council on Employee Data Protection, January 2022. Available at: www.denkfabrik-bmas.de/fileadmin/Downloads/Publikationen/ Report_of_the_independent_interdisciplinary_Employee_Data_Protection_Advisory_Committee.pdf.

310  Julia López López and Eusebi Colàs-Neila AI tools in the company. With reference to the contents of the Agreement, rules are included concerning transparency, clarity, non-discrimination and a guarantee of data and algorithm quality. Of particular interest are the rules relating to ‘assessment on a spectrum of hazards’ (covering cases in which the role of AI is of varying intensity, from mere recommendations to automated decisions) and the creation of an AI Ethics Council, with broad and varied participation (staff members, works council, representatives of severely disabled workers and internal AI experts). Collective agreements regulating various aspects of IA can also be found in the field of delivery platforms. This is the case of the working conditions agreement signed between the company Just Eat España and the trade unions Comisiones Obreras (CCOO) and Union General de Trabajadores (UGT).19 This is the first collective regulation of a home delivery platform in Spain and the first to develop the ‘Rider Law’ previously mentioned regarding workers’ rights to information on the use of AI algorithms and systems. Indeed, to ensure the effectiveness of the agreement, the ‘right to information in the face of algorithms and artificial intelligence systems’ is among the digital rights recognised.20 The accord highlights the specification of the aspects on which relevant information used by the algorithm will be provided in relation to the activity carried out by the delivery workers (type of contract, number of hours, time preferences and time off) and guarantees human supervision of the algorithms, in particular so that the latter do not consider data that may lead to the infringement of fundamental rights. To channel the right to information, a joint commission (‘Algorithm Commission’) is created; it may request the appearance of the person responsible for supervising the algorithm and/or AI system. Finally, there is recognition of a collective right (of the Algorithm Commission) and an individual right to information on digital work tools and associated health risks, with prior information on whether it is a chatbot or a person with whom a conversation is being held. However, neither AI nor, therefore, the inclusion of rules for its governance in collective bargaining is unique to technology companies or platforms. In the United Kingdom (UK), examples can be found in both the private and public sectors. In the first case, the framework agreement reached between the Communications Workers Unions and the Royal Mail Group stipulates the introduction and deployment of certain technology and in parallel a series of protections for workers and their representatives that are to avoid ‘the exploitative practices that bear down on workers (as seen in companies that operate in the wider post and logistics sector)’ and ‘ensure that the key decision makers in the workplace are the local manager and local representative and not the technology’.21

19 See www.ccoo-servicios.es/archivos/Acuerdo%20Sindicatos%20JUST%20EAT(1).pdf. 20 As will be seen below, the bulk of digital rights recognised is similar to other examples of collective bargaining in Spain, following, to some extent, those recognised at the legal level in Organic Law 3/2018, of 5 December, on Personal Data Protection and guarantee of digital rights (arts 87–91). Available at Permalink ELI: www.boe.es/eli/ es/lo/2018/12/05/3/con. The law deals with the right to digital and work-related disconnection; the right to privacy and the use of digital devices in the workplace; the right to privacy against the use of video surveillance and sound recording devices in the workplace; and the right to privacy in relation to the use of geolocation systems in the workplace. 21 See: www.cwu.org/news/rmg-cwu-key-principles-framework-agreement-the-pathway-to-change.

On Social Justice and Artificial Intelligence  311 As far as the public sector is concerned, the Wales Workforce Partnership Council agreement contains an interesting annex on digitisation, which lists five principles to be considered in the transition to digitised workplaces, including consultation with employee representatives before the introduction of technology and their involvement to avoid negative consequences, particularly in terms of occupational health and well-being.22 In Spain, these ideas are also beginning to make their way into the bargaining content, mainly in the finance sector. The 24th Collective Bargaining Agreement for the banking sector includes an extensive, and in some respects innovative, regulation23 which has inspired other agreements in similar areas. On the one hand, two important general statements are made in Article 79: it emphasises the role of collective bargaining as ‘an instrument to facilitate adequate and fair governance of the impact of the digital transformation of the entities on employment in the sector’; in line with the legal reform at the time, it calls on c­ ompanies to inform workers’ representatives of the ‘technological changes that are going to take place … when … they are relevant and may have significant consequences on employment and/or substantial changes in working conditions’. On the other hand, Article 80, under the heading ‘digital rights’, contains an extensive catalogue of rights that includes what it calls ‘the right to artificial intelligence’.24 As in the aforementioned German case, here we also see the effectiveness of the principle of human control of automated decisions, recognising the right of workers ‘not to be subject to decisions based solely and exclusively on automated variables, except in those cases provided for by law’. As a derivative of the above, the Spanish collective agreement also recognises ‘the right to non-discrimination in relation to decisions and processes, when both are based solely on algorithms’, in which case the worker may request the intervention of the persons designated by the company for this purpose in the event of any discrepancies. In addition, placing value on the participation of workers’ representatives, it recognises their right to be informed ‘about the use of data analytics or artificial intelligence systems when the decision-making processes in human resources and labour relations are based exclusively on digital models without human intervention’; additionally, it specifies the minimum scope of such information: ‘data that feed the algorithms, the logic of operation and the evaluation of the results’. In addition, the Spanish general statewide collective agreement for the sector covering insurance, reinsurance and mutual insurance companies collaborating with the Social Security system (articles 10–14) contains almost identical provisions.25 In relation to the

22 The Wales Workforce Partnership Council is a tripartite structure made up of the Welsh Government, trade unions and employers, which deals with staffing issues in the devolved public services. The full text of the agreement is available at www.gov.wales/sites/default/files/publications/2021-12/workforce-partnership-councilagreement-2021.pdf. 23 BOE, 30 March 2021. Available at: www.boe.es/eli/es/res/2021/03/17/(1). 24 The other digital rights recognised, although with nuances in their development, coincide with those mentioned above, n 6, with the addition of the important right to digital education, aimed at ensuring the training of workers in the use of digital tools. In a very similar way, some subsequent agreements include elements of this content. This is the case with the Collective Agreement for financial credit establishments (BOE, 15 October 2021), which contains the same catalogue of digital rights in Article 35. Available at: www.boe.es/eli/es/res/2021/10/05/ (2). See also the XXII collective agreement for credit cooperatives (BOE, 12 January 2022), arts 68 and 69, which, on the other hand, does not include the right to training in digital technologies or the right to protection against the uses of AI. Available at: www.boe.es/eli/es/res/2021/12/29/(8). 25 BOE, 27 December 2021. Available at: www.boe.es/eli/es/res/2021/12/15/(2).

312  Julia López López and Eusebi Colàs-Neila regulation of AI, beyond avoiding explicit reference to the recognition of rights in its rubric (the more neutral formula ‘use of artificial intelligence in labour relations’ is preferred), express reference is made to the principles of human control and transparency. The explicit multilevel connection to the Joint Declaration on Artificial Intelligence, approved by the European Social Agents of the Insurance Sector on 16 March 2021, is also worthy of mention. The absence of people in the trade unions with sufficient training in digital technology is perhaps one of the most relevant common problems encountered. For this reason, as a precondition for a successful approach to bargaining, prior awareness-raising and training is required, as well as the assistance of experts. Even more important is the dissemination of basic knowledge among workers’ representatives and workers themselves about technology, its possibilities and risks, to facilitate their understanding, as well as to promote good practices on how to deal with them in collective bargaining and in relations with companies. Action guides and other similar mechanisms thus emerge as a key instrument for raising awareness and preparing for the future negotiation of agreements, especially, at the national level.26 The work carried out by the Trades Union Congress (TUC) in the UK is particularly noteworthy, deploying activity at different levels and through various means to raise ­awareness among workers’ representatives of the consequences of AI for workers and trade unions and to empower them to meet the challenges it poses. Its initiatives include the TUC Digital Lab27 and the AI Manifesto (‘Dignity at work and the AI revolution. A TUC Manifesto’).28 The Digital Lab’s activities include the development of strategic principles for trade unions to address the digital transformation, the organisation of seminars to share best practices, and the creation of a research fund to increase knowledge and possibilities for action. For its part, the Manifesto synthesises a series of values that it considers fundamental, as well as proposals for their implementation. In particular, it highlights the empowerment of the voice of workers, to implement in collective bargaining the values it considers basic, the call to legally recognise an obligation to consult representatives on the use of high-risk AI systems and to access information that makes effective the principle of transparency and explainability and the recognition of a right to human review of automated decisions. This intense interest of the TUC is reflected in the activities of the federated unions. Thus, the Prospect union is developing, under the title ‘Future of work, technology and data. Campaign for better work for all in the new normal’,29 a line of work aimed at strengthening the participation of workers to negotiate the protection of their data in the employment relationship, guarantee the effective right to digital disconnection, establish limits to corporate control, or offer a right to training. To this end, the union has developed action guides on different topics to support various actions. These include guides for union activists and

26 As seen above, this practice is also followed globally. Thus, ‘The Algorithmic Management – A Trade Union Guide’, published by UNI Global Union Professionals & Managers (uniglobalunion.org/wp-content/uploads/uni_ pm_algorithmic_management_guide_en.pdf) is worth noting. It provides the main features and consequences of recruitment algorithms, workplace decision algorithms and job development management algorithms, as well as the main demands that unions should make when bargaining in this area. 27 See: digital.tuc.org.uk/. 28 Available at: www.tuc.org.uk/sites/default/files/202103/The_AI_Revolution_20121_Manifesto_AW.pdf. 29 Available at: https://prospect.org.uk/future-of-work-technology-and-data/.

On Social Justice and Artificial Intelligence  313 affiliates on the right to digital disconnection, to provide them with mechanisms to ensure the welfare and rights of workers; a guide for union representatives on digital technology, with resources for negotiating on the collection and use of data by the employer; and a guide on data protection impact assessment for use in consultation procedures in this area. In addition, the Community trade union, in collaboration with the Institute for the Future of Work, has produced a negotiation guide (‘Technology Agreements: A partnership approach to use of technology at work’), and an annex on data protection (‘Annex: Know Your Data Protection Rights’),30 addressed to workers’ representatives. As in other cases, Community’s position, aware of the inevitability of the introduction of automation in companies, is not one of outright opposition, but rather that of demanding its participation in order to ensure that workers’ rights are respected. Part of Community’s strategy focuses on offering tools to workers’ representatives to learn how digital technology works, and how to evaluate its use and impacts. Among its demands is the creation of technological forums in which workers’ representatives, with appropriate training, can participate alongside the company. As for the rest, they are common to those of Prospect; they refer to setting limits to the monitoring exercised by companies, increasing the rights over workers’ data, and guaranteeing the right to digital disconnection. As far as AI and algorithms are concerned, the strategy insists on the development of periodic evaluations of their impact, considering in particular the effects that automated decisions may have in terms of equality. The above leads us to reflect on the importance of collaboration networks between unions. The experiences of both unions should be understood as being connected in the context of the Unions21 initiative, a forum in which unions share practical experiences, ideas and proposals on common issues, especially the use of data.31 The Confédération française démocratique du travail (CFDT-Cadres) has also promoted the development of a guide on AI, compiling good practices and recommendations.32 It arises from the need for social dialogue intervention prior to the introduction of new technology, analysing which jobs may be affected and what training needs arise, strengthening the participation of women in digital jobs, assessing AI on the quality of working conditions and emphasising the need to train negotiators on AI issues. Similarly, the Confederazione Generale Italiana del Lavoro (CGIL) has promoted the Proggeto Lavoro 4.0,33 in charge of analysing the digital impact on work and the role of the trade union. Trade unionists and external experts collaborate through the online platform Idea Diffusa, where ideas are shared, turning networks into a means for collective action. Its activity is developed in multiple areas, such as the organisation of thematic seminars, training of trade unions and representatives, and support for projects and negotiation processes. As in the French case, a manual contains advice and good practices for negotiation,34 which also insists on the idea of the necessary training of the union and its representatives, as well as the use of the Idea Diffusa platform as a support mechanism for negotiations. 30 Both are accessible at: community-tu.org/preparing-for-the-future/#82a83ab6. 31 See: unions21.org.uk/events/unions-21-conference. 32 F Salis-Madinier, Le guide de l’intelligence artificielle au travail. Vos droits face aux algorithmes. (Eyrllles – CFDT Cadres, 2022). 33 More information is available at: www2.cgil.it/cose-progetto-lavoro-4-0/. 34 A Gramolati and G Sateriales (eds), Contrattare l’innovazione digitale. Una cassetta degli attrezzi 4.0 (Roma, Ediesse, 2019).

314  Julia López López and Eusebi Colàs-Neila Indeed, the adaptation of national trade unionism to the advances made by digital technology offers examples of how it can be used to improve the exercise of the unions’ functions. Beyond this Italian experience, one can cite the work of Flanagan and Walker, who review the cases of a union in the United States (Organization United for Respect, OUR) and one in Australia (United Workers Union, UWU), which have taken advantage of AI to develop chatbots to use in their organisation.35 The result of the reconfiguration of the original chatbot allowed workers who would otherwise have been marginalised to receive more information, and the union to improve its organisation and activity.

IV.  Final Remarks For Jeremias Prassl in his important work36 on Artificial Intelligence (AI), the regulation of economic relations that use this highly significant technology should incorporate not only individual but also collective worker rights. In his formulation, rights that are experienced at the individual level – for example, including the protection of dignity, privacy, ­equality, and non-discrimination – should be complemented with strategies involving collective efforts of workers that involve their shared agency and thus the participation of actors such as unions and other forms of worker representation. Building on this insight, from our perspective, the pursuit of this objective should make ample use of the Charter of Fundamental Rights which has developed in the chapter on Solidarity an itinerary or list of legal policies to achieve an inclusive solidarity. In our view, this principle should be incorporated in the development of equality and non-discrimination policies in the regulatory framework applied to AI. Crucially, the real-world applications of AI are dynamic and changing, hence the importance of identifying ways to guarantee the principle of inclusive solidarity in a changing world. We suggest that the chapter on solidarity and its notion of inclusive solidarity offers a strong framework for providing channels to construct inclusion for the future as a preventive policy against inequality.37

35 F Flanagan and M Walker, ‘How Can Unions Use Artificial Intelligence to Build Power? The Use of AI Chatbots for Labour Organising in the US and Australia’ (2021) 36 New Technology, Work and Employment 159–76. Available at: https://doi.org/10.1111/ntwe.12178. 36 J Prassl, ‘Regulating Algorithms at Work: Lesson for a European Approach to Artificial Intelligence’ (2022) 13(1) European Labour Law Journal 30–50 37 See J López López (ed), Inscriptions of Solidarity: Labour Law and Beyond (Cambridge, Cambridge University Press 2022).

28 It’s about Time – Gender, Justice and Working Time Regulation in Employment and Care Work KIRSTEN SCHEIWE

I.  Utopias about Gender Justice and Working Time – What are We Heading for? ‘It’s about time’ is the title of one policy paper among others that focus upon work and gender.1 The ILO has moved from ‘decent work’ towards ‘decent working time’.2 There are a number of utopias that imagine a future of fewer working hours for all (among them pretty old ones; six hours per day, said Thomas Morus in his Utopia in 1516, or three hours a day and 15 hours per week, predicted Keynes for his grandchildren in 1930).3 Beyond the ‘realm of necessity’ the ‘realm of freedom’ starts, where you can dedicate your time to leisure or whatever you want, but the ‘realm of necessity’ includes not only working time in employment, but all the long hours of cooking, cleaning and caring, unpaid but necessary reproductive work and subsistence production that glue society together. But often theories and policies of time focus only upon employment and paid work, while the ‘second shift’ in households and families remains neglected. Since unpaid work and care are still predominantly women’s work, neglecting them contributes essentially to persistent global gender inequalities. Time policies have to encompass both employment and care work. Therefore another ideal has been framed as the ‘universal caregiver model’4 or the ‘global universal caregiver model’,5 the idea of a social and political order where all persons independent of gender 1 Human Rights and Equal Opportunity Commission, It’s About Time: Women, Men, Work and Family – Final Paper (Sydney, 2007); JY Boulin, M Lallement, JC Messenger and F Michon (eds), Decent Working Time: New Trends, New Issues (Geneva, International Labour Organization, 2006); UN Women, Care in Latin America and the Caribbean during COVID-19: Towards comprehensive systems to strengthen response and recovery (2020, http://hdl.handle.net/11362/45917). 2 ILO, Decent Working Time: Balancing workers’ needs with business requirements (Geneva, ILO, 2007); ILO, Ensuring Decent Working Time for the Future: General survey concerning working-time instruments, Report III (B) (Geneva, ILO, 2018); ILO, Guide to Developing Balanced Working Time Arrangements. Conditions of Work and EQ (Geneva, ILO, 2019). 3 JM Keynes, ‘Economic Possibilities for our Grandchildren’ in Essays in Persuasion (New York, Harcourt Brace, 1930) 358–73. 4 N Fraser, ‘After the Family Wage: Gender Equity and the Welfare State’ (1994) 22 Political Theory 591–618. 5 A Weir, ‘The Global Universal Caregiver: Imagining Women’s Liberation in the New Millennium’ (2005) 12 Constellations 308–30.

316  Kirsten Scheiwe can invest time and work in paid and care work, and where the social costs of work, including care work, are divided more equally and in a just way.6 Others name this the ‘earner-carer-model’ where a person can be both at the same time, employee as well as carer. In this model time policies allow for varying combinations of paid and unpaid work over the life course, including options for leave, a reduction or increase in working time at different stages of life with varying needs, all this to be supported by public infrastructure, care services and social rights. Decent working hours are seen as an essential human right.7 What we need is an inclusive view of work time, paid or unpaid or in hybrid forms, and on time regulation in different spheres, be it the labour market, public or private services, ‘times of the city’, of transport and infrastructure, the life of private households and families. What counts is the ‘total working time’ as the sum of paid and unpaid work time,8 as it is scrutinised in a growing number of time surveys and gender-sensitive reports. Women, globally, spend on average about three times as much time on unpaid care and domestic tasks as men.9 GRAPH 28.1  Time spent daily in unpaid care work, paid work and total work, by sex, region and income group, latest year.

Source: L Addati, U Cattaneo, V Esquivel and I Valarino, Care work and care jobs for the future of decent work (Geneva, ILO, 2018), 31. Copyright © International Labour Organization 2018.

6 J Rubery, ‘Regulating for Gender Equality: A Policy Framework to Support the Universal Caregiver Vision’ (2015) 22 Social Politics: International Studies in Gender, State & Society 513–38. 7 D McCann, ‘Decent Working Hours as a Human Right: Intersections in the Regulation of Working Time’ in C Fenwick and TA Novitz (eds) Human Rights at Work: Perspectives on Law and Regulation (Oxford, Hart, 2010) 509–28, K Scheiwe, ‘Domestic Workers, EU Working Time Law and Implementation Deficits in National Law: Change in Sight?’ (2021) Zeitschrift für ausländisches und internationales Arbeits- und Sozialrecht (ZIAS) 1–21, 6 (EUI LAW Working Paper 2021/03). Available at: https://hdl.handle.net/1814/70620. 8 ‘Total work time is the sum of paid work time and unpaid work time. Paid work refers to work done for the production of goods or services for the market and is calculated as the sum of time devoted to employment, job searches and commuting. Unpaid work refers to work done without payment and develops mainly in the private sphere. It is measured by quantifying the time a person spends on self-consumption work, unpaid domestic work

It’s about Time  317 Taken together, the three gender gaps – the ‘gender pay gap’, the ‘gender time gap’ between men’s and women’s weekly employment times, and the ‘gender care gap’ between women’s and men’s work times in unpaid care work – show how unevenly and hierarchically working times are distributed along gender and class lines, with severe consequences for gender inequalities in income, resources and power. Gender inequalities in labour outcomes – labour force participation, working times, wages, job quality, pensions10 – are heavily influenced by inequalities in unpaid care work, the ‘missing link’ in the analysis of gender gaps in labour outcomes.11 Looking at working times in both employment and care work and at the regulation of working time across spheres offers a valuable perspective for analysing gender inequalities at work and for developing reform perspectives. ‘Time poverty’ is a sociological concept that describes a relative lack of free time resources compared to other members of the community, which has been used for analysis in countries at different stages of development.12 Gender inequalities in the distribution of time for care work are biggest for poorer households.13 Ideas of social justice and ‘decent working times’ or ‘time justice’ for the future require comprehensive ideas and strategies for legal change over different spheres of work and care, as well as a global vision on migration and ‘care chains’ as part of the picture of the international division of labour. But it is difficult to overcome the gendered ‘time divide’ and to put this agenda into practice nationally and globally. Especially in times of crisis such as the COVID-19-pandemic, underemployment and unemployment have risen, whilst care work ‘at home’ has increased and affects women more than men. In this contribution, first some facts about gendered working time patterns are reported (see Section II). Section III turns towards legal regulation and investigates the construction of gendered working time hierarchies by labour law and social security regulation. The gendered hierarchy of working times that privileges the ‘standard employment relationship’ and long hours of a ‘care-free’ worker should be replaced by a new ‘care-full’ standard employment relationship with around 30 hours employment per week and social rights to leave and a reduction in working time over the life course. This requires limits on excessive working hours and overtime, as well as the abolition of disadvantages for part-time workers, who have no or only limited access to overtime pay or are widely excluded from labour law and social security rights in the case of very short working hours (‘marginal work’).

and unpaid care for their own home or to support other household work.’ Gender equality observatory for Latin America and the Caribbean. Available at: https://oig.cepal.org/en/indicators/total-work-time. 9 OECD, Unpaid Care Work: The Missing Link in the Analysis of Gender Gaps in Labour Outcomes. Policy Brief (Paris, OECD, 2014). 10 F Bettio, P Tinios, P and G Betti, G, The Gender Gap in Pensions in the EU (European Commission, Directorate General for Justice, European Union, 2013). 11 OECD, above, n 9; S Razavi, The Political and Social Economy of Care in a Development Context: Conceptual Issues, Research Questions and Policy Options (Geneva, United Nations Research Institute for Social Development, 2007). 12 OI Abdourahman, ‘Time Poverty: A Contributor to Women’s Poverty’ (2010) 11 Journal statistique africain 16–36; C Blackden and Q Wodon, Gender, Time Use, and Poverty in Sub-Saharan Africa (Washington DC, World Bank, 2006), 6; S Chatzitheochari and S Arber, ‘Class, Gender and Time Poverty’ (2012) 63 The British Journal of Sociology 451–71; T Warren, ‘Class and Gender-Based Working Time? Time Poverty and the Division of Domestic Labour’ (2003) 37 Sociology 733–52. 13 Cf detailed data of the Gender Equality Observatory for Latin America and the Caribbean. Available at: https:// oig.cepal.org/en/indicators/total-work-time.

318  Kirsten Scheiwe In times of globalisation, migration regimes and global ‘care chains’ have imprinted hierarchies and social inequalities in a new fashion that requires international coordination and regulation, discussed in the following section. Towards the end, the reform agenda is summarised and a catalogue of suggestions for ‘decent working times’ and gender justice at work is discussed (see Section IV).

II.  Some Facts about Gendered Working Time Patterns Working time patterns differ all over the world and undergo change, which makes it difficult to compare them. Worldwide, a high proportion of employees work very long hours (the highest number is displayed in the Asia and Pacific region, followed by the Arab States region, while the proportion of workers who work excessive hours is lowest in Europe. There is a substantial gender difference in excessive hours, in developed countries men are twice as likely as women to work very long hours.14 Among part-time workers, women are highly overrepresented. One-third of employed women were working part time in the EU in 2018, nearly four times the rate for men (8%). The highest share of employed women working part-time was recorded in the Netherlands (74%), while the lowest share was in Bulgaria (2%).15 Underemployment is another prominent phenomenon, with many parttime workers wishing to work more hours. The picture changes if you take into account hours of work both in employment and in unpaid care activities, housework and subsistence production. There are not that many surveys and statistical resources that investigate the time investment in these types of work, but a growing number of statistics and reports shed light upon these sectors and activities.16 Across the world, without exception, women carry out three-quarters of unpaid care work, or more than 75 per cent of the total hours provided. Women dedicate on average 3.2 times more time than men to unpaid care work. There is no country where women and men perform an equal share of unpaid care work. As a result, women are constantly time poor.17

UN Women has summarised it comprehensively: Currently and on a global level, most contributions to care work take place in the domestic sphere and are carried out by women as unpaid work. For this reason, traditionally, these contributions have not been visible in economics or in development. Unpaid care work accounts for almost half of total work time, making it essential for maintaining the sustainability of the system as a whole, given that all people, in every stage of life, need care. Without care work, all other activities cannot function.18

14 J Messenger, Working Time and the Future of Work (Geneva, ILO, 2018) 4. 15 Available at: https://ec.europa.eu/eurostat/de/web/products-eurostat-news/-/EDN-20200306-1. 16 J Charmes, The Unpaid Care Work and the Labour Market. An Analysis of Time Use Data Based on the Latest World Compilation of Time-use Surveys (Geneva, ILO, 2019); N Folbre, ‘Informal Employment and Non-market Work’ in J Charmes (ed) Research Handbook on Development and the Informal Economy, 147–67 (Cheltenham, Edward Elgar, 2020). 17 Charmes, ibid, 3. 18 UN Women, above n 1 at 2.

It’s about Time  319

III.  Gendered Working Time Regulation – Some Basics Struggles over the length of the working day in employment and its regulation (the eighthour-day, the ban on child labour and women’s night work in the nineteenth century etc) are intrinsically linked to capitalism and the emergence of the ‘free labourer’ since the distinction between working time and ‘non-work’ (free time, leisure) is not so clear-cut under different social conditions. The separation between home and workplace was never as rigid in agriculture, and work activities in the household and their contribution to the maintenance and subsistence of the family have long been seen as ‘productive work’. This changed with modern industrial production, the home/work divide and the ideological assumptions accompanying the Enlightenment’s distinction between the ‘public and private’ spheres, the assignment of gender roles and the organisation of reproductive work to women ‘in the home’. Housework and reproductive work no longer counted as ‘work’ in mainstream economics, and these work hours were not counted by official statistics for a long time. This is the background for the following arguments: First, from a gendered perspective we must take total working hours into account, in employment as well as in care work and unpaid household activities. Both are work and ‘decent working times’ have to integrate the two. Second, the closer an employment relationship is to private household production and care activities, considered to be ‘women’s work’, the higher the risk that it is unrecognised, undervalued and less protected by labour law and social security regulation. This is not meant to ignore the high level of professionalisation of some types of care work, but it serves as a model to explain differences and ‘sliding scales’ in working time regulation and social security (with domestic workers at the bottom end, while ‘unpaid family work’ remains firmly outside labour law). Third, globalisation and the transnational labour market for care workers, professionals and domestic workers have produced particular inequalities and exploitation, care chains and a care drain that need to be addressed. Fourth, the question ‘What can law do about it?’, be it through national or international law, is challenging. It’s about time for ‘decent working time’ and ‘decent care’ – over the last decades there have been several proposals for changing the gendered ‘time divide’ and for developing coherent time policies and regulation. However, first comes the critique of the gendered features of labour law regulation of working times.

A.  The Gendered Hierarchy of Working Times that Privileges Long Hours of a ‘Care-Free’ Worker has to be Replaced by a New ‘Care-Full’ Standard Employment Relationship in a Life Course Perspective In labour law, rights and entitlements are connected in various ways with time factors (duration of working hours, minimum working hours, length of employment, seniority, age etc). The hierarchy of employment forms is centred around the normative model of the ‘standard employment relationship’ or ‘standard working week’, which requires long and full-time working hours of an employee freed from care obligations, and corresponds very often with the time patterns of men, while women are overrepresented in part-time employment, an employment time pattern very often combined with care duties in the

320  Kirsten Scheiwe family or private household. The dominant employment relationship and its time patterns has clear gender connotations.19 The standard working week requires ‘care-free’ employees and implies a male breadwinner model. With increasing time flexibility upwards, starting from the standard working week of full-time employment, more economic advantages and legal incentives are granted (overtime bonuses, extra pay for night shifts etc), while time flexibility downwards brings about further economic and legal disadvantages (part-time work, no overtime bonuses for part-timers below the full-time threshold, exemptions from labour law and social security coverage for minor work etc). The closer the workplace is to the private household, the higher the risk of lower levels of legal protection and pay (as for domestic workers). Take, for example, live-in domestic workers who often work excessive hours in so-called ‘24-hour-care’ and are expected to be available nearly around the clock – an example of extreme ‘time flexibility upwards’ – but they are at the bottom end of the pay scale and, in various countries, they enjoy lower levels of labour law or social security protection. This is due to the particularities of this special labour market segment ‘private household’, the gender-typing of domestic and care work and migrant status. Although the ‘standard employment relationship’ is losing ground in terms of numbers, and the share of precarious employment has been increasing over the last decades, it nonetheless remains a crucial reference point of labour law and social security. Those who cannot live up to it – since they work part-time, on low wages, in temporary jobs, or since their employment career has interruptions and gaps over the life course – are disadvantaged in terms of labour law protection or social security benefits. Old age poverty of part-time working women or lone parents is a typical outcome. This demonstrates the necessity of replacing the dominant time models of the ‘care-less’, typically male fulltime employment (with time flexibility ‘upwards’ through overtime, night or shift work), supplemented by female-dominated forms of ‘time flexibility downwards’ (part-time work, working time reductions because of care needs or family-related interruptions), by a new ‘standard employment relationship’ that is centred around long part-time (about 30 hours per week) and allows care needs to be combined with employment needs in different situations over the life course. Social justice requires changing the central idea, the standard working week (regulated by statutes and collective agreements) in a way that allows all individuals to have enough time for families, care, also for self-care and leisure. If total working hours are too long – work time in employment plus work time at home, care and household activities – this puts serious pressure upon the person concerned, which results in stress and health risks. Although there are differences between countries and different groups of employees and also differences in ‘time squeeze’ and ‘time poverty’ over the life cycle, this is everywhere gendered, since women are still doing the bulk of care work. Overall, the ‘standard working week’ should be shortened to make the actual ‘long part-time’ pattern (something

19 K Scheiwe, Male Times and Female Times in the Law. Normative Models of Time in Labour Law, Social Security Law and Family Law, and their Impact on the Gendered Division of Labour (Florence, EUI, 1991). Available at: https://cadmus.eui.eu/handle/1814/4779, 65 ff.; K Scheiwe, ‘The Gender Dimension of German Labour Law – Time Revisited’ in Y Kravaritou (ed) The Sex of Labour Law in Europe (Dordrecht, Kluwer, 1996) 53–87; LF Vosko, ‘Precarious Employment and the Problem of SER-Centrism in Regulating for Decent Work,’ in S Lee and D McCann (eds) Regulating for Decent Work. Advances in Labour Studies (London, Palgrave Macmillan, 2011); A Zbyszewska, Gendering European Working Time Regimes (Cambridge, Cambridge University Press, 2016).

It’s about Time  321 between 28 to 35 hours per week, which is open to discussion) into the new standard for all, allowing for variation over the life course. A different normative model could look like this: GRAPH 28.2  Non-discriminating working time norms that allow combining paid and unpaid work Coherent time policies Employment working time law

Carers’ rights and benefits

overtime, night and shift work subject to restrictions to protect health and safety, bonus pay also for part-time workers, no exemptions for live-in domestic workers

Care-related leaves and right to working time reduction (maternity, parenthood,

New standard working week FULL-TIME EMPLOYMENT = 30 – 35 hours (=former long PART-TIME WORK) Right to request shorter working hours and back to full-time employment

care for seriously ill or sick persons) with benefits (flat rate or wage replacement) and pension credits

Right to minimum working hours for part-time work No exemptions from social security including domestic workers Source: Kirsten Scheiwe.

B.  A First Step: Reduce Excessive Working Hours20 and the Disadvantages of Part-Time Workers: The Example of Overtime Work and Part-Time Workers’ Exclusion from Overtime Bonuses Overtime work beyond the ‘standard working week’ fixed by contract, collective agreement or law is very common and is one of the main instruments of flexibilisation for enterprises. Part-time work is the most frequent form of working time flexibility downwards and highly feminised, the overwhelming part of part-time workers are married women, often with children. But part-timers who work overtime beyond their contractually stipulated working time as a rule do not receive overtime bonuses, since overtime is defined in collective agreements with reference to the standard employment relationship and full-time work.

20 Of the global workforce, 36.1% worked excessive hours and more than 48 hours per week (ILO, Global Commission on the Future of Work, Work for a Brighter Future (ILO, Geneva, 2019) 20.

322  Kirsten Scheiwe Overtime by part-time workers provides special advantages for employers: the ‘normal’ advantages of part-time work for employers (working time ‘flexibility downwards’ and lower wage costs) are combined with the possibility of ‘time flexibility upwards’ without having to pay overtime premiums, as long as the threshold of the weekly ‘standard working hours’ is not transgressed. The issue of overtime pay for part-timers has been critically discussed in the labour law literature, but case law in Europe has rejected this claim up to now.21 Two changes are needed. The first one is a general limitation and reduction of overtime for full-time employees22 in order to protect workers’ health and to combat un(der) employment. This could be promoted by the introduction of an obligatory compensation in free time from a certain, relatively low threshold of overtime hours onwards (instead of paying overtime bonuses). Employees should be free to choose when they take this compensatory time off. This could be an incentive for new engagements and improved time planning in enterprises. Second, overtime worked by part-timers requires better pay and legal recognition.

C.  Night Work, Shift Work, Weekend Work – Gendered Inequalities of ‘Time Flexibility Upwards’ These forms of working time provide for ‘upward time flexibility’, extending the standardised core working hours of full-time work which are concentrated in the hours between 7am and 6pm during the day. Women are underrepresented in these forms of working time – with the exception of some strongly segregated areas, eg the health sector, hotel and restaurant business, care institutions and live-in domestic workers, which are often subject to exemptions from working time restrictions. Night work is regularly connected with deprivation of sleep and psychical and physical stress since it runs contrary to the biological day/night-rhythm and brings about particular health risks. The lower evaluation of care work is evident from the unequal bonuses for shift work/night work/weekend work. Bonuses are much higher in capital-intensive sectors of industry than in branches with a high proportion of women (service sector, health care, care homes, hotel and catering and live-in domestic workers). Live-in domestic workers are a particularly vulnerable group with excessive working hours worldwide, frequently in breach of working time regulations, and they are exploited heavily.23 Many of them are migrant workers posted by agencies, who promise 24-hour care

21 B Fitzpatrick, C Docksey and R Holtmaat, ‘Overtime Payments for Part-time Workers: Joined Cases C-399/92, C-409/92, C-425/92, C-34/93, C-50/93 and C-78/93, Angelika Helmig v Stadt Lengerig and others [1995] IRLR 216 (ECJ)’ (1995) 24 Industrial Law Journal 387–94. 22 The legal limits for maximum weekly working hours are set at present between a maximum of 48 hours (Europe and Commonwealth), in a 49–59 hour range (Americas, Caribbean and Africa), and 60 hours or more in the Middle East, Asia and Pacific (ILO 2018, above, n 2, 12). 23 ILO, Domestic Workers Across the World: Global and Regional Statistics and the Extent of Legal Protection (Geneva, ILO, 2013); C Hobden, Working Time of Live-in Domestic Workers, ILO Domestic Work Policy Brief No 7 (Geneva, ILO, 2013).

It’s about Time  323 by care workers who live in private households. Often it is expected that they are available for work around the clock, eg to help persons severely in need of care in their home also during the night, which is obviously in breach of working time law and a serious risk for the health and security of the care worker and also of the person being cared for. Despite the ILO Domestic Workers Convention 2011 (No 189) and its claim of equal treatment of domestic workers, there are various exemptions under national law with regard to working time regulations which are neither compatible with Convention 189 nor with the EU working time directive.24 Although many live-in domestic workers have excessive working hours with extreme time flexibility ‘upwards’, they do not receive high bonuses like their male counterparts for night shifts in industry. The particular vulnerability is due to the combination of domestic work as ‘women’s work’, the invisibility of the worker in the private home and the migration status of many of them, which leads to intersecting forms of disadvantages. The recognition of live-in domestic workers’ rights and the effective implementation of working time protection is therefore a touchstone of gender justice at work.

D.  Very Short Part-Time Work: The Cumulation of Risks and Low Protective Standards of Labour Law and Social Security Law at the Bottom Line of Time Scales The concept of ‘marginal’ part-time work or ‘minor working hours’ points to part-time work below certain time (or income) thresholds. This employment form grants much less entitlement to labour law and social security rights, it is often not liable to social insurance contributions (pension insurance, sickness insurance, unemployment insurance) and provides therefore considerable wage savings for employers. During the COVID-19-crisis, many ‘marginal part-time employees’ were left without any social security or compensation for short-time work or dismissal. The gender-specific profile of ‘minor employees’ is based on the assumption that the typical female employee not liable to social insurance payments is a housewife. Short-hours part-time work is concentrated in private households and cleaning services. What is required is the abolition of the ‘minor working hours threshold’, a guarantee of minimum hours per week and stipulating appropriate penalties in case of noncompliance,25 the introduction of liability to social insurance, and granting only very few exceptions within strict limits. The question whether the extensive exclusion of ‘minor part-time employees’ from social security contributions and coverage constitutes indirect discrimination against women has been answered in the negative by the case law of the Court of Justice of the European Union.26

24 Scheiwe, above, n 7. 25 ILO 2019, above, n 2. 26 Rinner-Kühn v FWW, Case 171/88, European Court Reports 1989 -02743, ECLI:EU:C:1989:328; see also C Barnard and B Hepple, B (1999) ‘Indirect Discrimination: Interpreting Seymour-Smith’ (1999) 58 The Cambridge Law Journal 399–412; Scheiwe, above, n 19.

324  Kirsten Scheiwe

IV. Reforms Some elements of legal reform that could contribute to a redistribution of working time are the following:27 (1) A general reduction of working time in employment, a shorter working week as the ‘standard employment relationship’ around 30 hours per week (with possible variation over the life-course related to varying needs). (2) A reduction of excessive working hours by strict limits on overtime and/or compulsory time-off in compensation for overtime. (3) A legal claim on working time reduction in special situations, especially for rearing children and care activities, and a right to go back to the former full-time hours.28 (4) Extended rights for taking time off for a reasonable cause (eg care for ill members of the household); a new legal interpretation of the employer’s managerial prerogative with regard to working time and the reasonable interests of the employee regarding care duties; and the recognition of a legal right of employees to the reduction of working time/changes in the distribution of working hours under certain conditions for due causes. (5) A revaluation of part-time work in labour law and social security law; abolition of the disadvantages connected with employment relations with very short working hours (exclusion from certain labour law and social security rights); minimum hours and better minimum standards for part-time work. (6) Reform of the time-models in social security law and tax law which directly or indirectly discriminate against women based on a ‘breadwinner model’ of marriage that presupposes an employee freed from care-duties at home; more egalitarian normative models and minimum guarantees in social security law. (7) Recognition of care work, such as childcare, as giving claim to wage-replacement and certain benefits and pension credits. (8) Social time policies: enhancement of the compatibility of the time structures of the labour market, public institutions, infrastructure and private households; the coordination of these time structures should be a structural element of public planning and administrative action, and the administration should receive the competences necessary for this coordination (eg local time policies or ‘city time-policies’). (9) Improvement of public services and infrastructure; an obligation for the state and local authorities to create an efficient supply of qualified childcare institutions, long-term care services and social service support for carers and ancillary infrastructure. (10) Efficient legal stimuli and sanctions tending to the increase of men’s working time in household and care work, regarding equal sharing of care leaves or incentives for contemporaneous reduction of working hours for care needs.

27 Scheiwe, ibid n 19, 203f; D McCann and J Fudge, J, ‘Unacceptable Forms of Work: A Multidimensional Model’ (2017) 156 International Labour Review 147–84, see also nn 1 and 2. 28 L Addati, U Cattaneo and E Pozzan, Care at Work: Investing in Care Leave and Services for a More Gender Equal World of Work (Geneva, ILO, 2022).

It’s about Time  325 (11) Efficient implementation of the ILO Domestic Workers Convention 189 with regard to working time protection of domestic workers, especially of live-ins, and of the EU working time directive for this particularly vulnerable group of employees.29 (12) Care policies that ‘recognise, reduce, and redistribute unpaid care work’, taking a rights-based approach guided by the principles of equality, universality and solidarity through the provision of public services, infrastructure and social protection policies.30 The fragmentation of policies and legal regulations of time is a central problem for a coordinated approach; employment working time law and other legal subsystems, including migration policies, interact, but it is difficult to change them in a coordinated and simultaneous way. In times of globalisation the need for regulation through transnational and international law imposes even more challenges. It’s about time!

29 V Pavlou, Migrant Domestic Workers in Europe: Law and the Construction of Vulnerability (Oxford, Hart Publishing, 2021); Scheiwe, above, n 7. 30 L Addati, U Cattaneo, V Esquivel and I Valarino, Care Work and Care Jobs for the Future of Decent Work (Geneva, ILO, 2018).

326

29 Epistemic Secrets of Labour Law: Towards a Decolonial Turn FLÁVIA SOUZA MÁXIMO PEREIRA AND PEDRO AUGUSTO GRAVATÁ NICOLI

I.  Introduction: Telling Secrets We want labour law to leave its realm for a moment. To paraphrase the poet Sophia de Mello Breyner Andresen, we want to face the terror of death, the harsh daylight, and ‘cross the desert of the world’.1 The secrets we want to tell here actually seem forbidden. Some can be couched in our theoretical approach that intends, through an interdisciplinary speculative method, to review the order of things in labour law. It is, in fact, a set of provocations, which revolves around what jurists, even in the field of critique, insist on hiding. Interpellations that raise suspicion, without mincing words, out of strong concerns. Inquiries that are able to see the colonial, racial, gender and sexualised foundations in labour law regulation. When we look at the facts, the existence of racism, sexism and LGBT phobia in the worlds of (un)regulated work is no longer much of a secret. But there is something beyond a factual description of oppression. The secrets we want to talk about are, in fact, not just factual. They are epistemic secrets. Secrets that hide that coloniality, race, gender and sexuality are the ways of producing, being and knowing labour law. These are not just secondary or external phenomena. They are at its very foundations. And they express themselves in its categories. Unveiling these mysteries opens the door to a re-elaboration of the very thinking about labour law, in search of other paths towards social justice. We aim, then, to provoke a legal sphere that, itself, is the daughter of the insurgency, but which cannot fail to permanently metabolise its contradictions. We want to take part in this exhumation of buried secrets. Talking about epistemic secrets is a difficult and painful wager because it involves reviewing categories that captivated us and brought us here, to this common place. This common place that we know and love, which is the epistemic territory of labour law. We are here because we genuinely want ‘all human beings, irrespective of race, creed or sex, [to] have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity’.2 1 S M B Andresen, Para atravessar contigo o deserto do mundo. Livro sexto (Lisbon, Morais, 1962) 63 (free translation). 2 Declaration of Philadelphia concerning the aims and purposes of the International Labour Organisation (Philadelphia, 10 May 1944), later annexed to the ILO Constitution.

328  Flávia Souza Máximo Pereira and Pedro Augusto Gravatá Nicoli But to know someone really requires undressing ourselves. To reveal also what we do not want to show. To reveal our ugly parts that we insist on hiding even from ourselves. You know and you love someone when you can get into the core of their being. Knowing their innermost secrets. Despite all these contradictions. Yet, labour law insists on keeping its epistemic secrets from us. Its epistemic subject appears to us with no race, gender, sexuality, or location in any relation of power.3 To reveal itself, labour law must show its location in terms of geopolitics and body politics of knowledge.4 This consists in the recognition of its economic, social, epistemic, and ontological position. Labour law’s knowledge production must consider ‘from where we are looking and whom we are seeing’.5 We want to reveal these epistemic secrets of labour law, raising some questions regarding its foundations, because we want to continue loving and fighting for labour law’s epistemology. These are questions that have always bothered us, researchers from the ‘Global South’, such as: From which epistemic place were the main categories of labour law created? How are the core categories of labour law translated into different geopolitical contexts? Who is the epistemic subject of labour law? What are the relationships between the specificities of each worker’s body and their legal protection in labour law? We know that these are precarious inquiries and, above all, without many answers. And we also know that telling secrets is always risky. The great risk here is distorting what we want to reveal. Hence, an introductory note must precede the revelation of these epistemic secrets: labour law, in legal relations, is one of the greatest accomplishments of modernity. The employment relationship itself represents a subaltern6 achievement. And yet this achievement is constantly threatened. Alongside this, labour law also contributed to the institution of racism, coloniality, sexism and LGBTphobia in many ways. And for that reason, it should be criticised without nostalgia and with epistemic responsibility. But note: its contemporary destruction does not relate to this decolonial critique. Labour law is being destroyed to comply with ostensibly economic interests, which constitute a series of lies from a scientific point of view. The lie that labour protection is expensive, that it impedes development, economic growth, and job creation. That labour law, after all, protects too much. There is plenty of scientific proof that this is all a lie.7 We know that the simple destruction of regulated, typical, and protected employment, as has been happening in most jurisdictions, is nothing more than a deepening of coloniality, racism, sexism and LGBT phobia. The bodies marked by these elements suffer first and strongly from the effects of precariousness at work. To destroy labour law would be to bury its epistemic secrets even more deeply. Therefore, when we reveal what we see as epistemic secrets of labour law here, we are also defending it. We want a future for labour law that is radically opposed to the one that is being designed. A future that exposes and faces the difficulties that its epistemic secrets have imposed. 3 R Grofoguel, ‘Para descolonizar os estudos de economia política e os estudos pós-coloniais: Transmodernidade, pensamento de fronteira e colonialidade global’ (2008) 80 Revista Crítica de Ciências Sociais 115–47. 4 G Anzaldúa, Borderlands/La frontera: the new mestiza (San Francisco, Aunt Lute Books, 1987). 5 S Madhok, ‘A Critical Reflexive Politics of Location, ‘Feminist Debt’ and Thinking from the Global South’ (2020) 27(4) European Journal of Women’s Studies 396. 6 G Spivak, ‘Can the Subaltern Speak?’ in C Nelson and L Grossberg (eds), Marxism and the Interpretation of Culture (London, Macmillan, 1988), 271–313. 7 See S Deakin, The Contribution of Labour Law to Economic Development and Growth (Cambridge, Cambridge University Press, 2016); Centro de Estudos Sindicais e de Economia do Trabalho, Contribuição crítica à reforma trabalhista (Campinas, Unicamp, 2017).

Epistemic Secrets of Labour Law: Towards a Decolonial Turn  329 Despite the risk, we can no longer deviate from these questions. They come from many interactions, on different planes of space and time. These reflections are radically crossed by dialogue, interlocution, conviviality, in short, by the sharing of thinking with many researchers from the ‘Global South’. We thank them all. Hence, these are not really ‘our’ questions, because they were not produced by us alone. These inquiries were provoked by the encounter of modern labour law foundations, densified in the employment relationship, and dissident epistemologies, as decolonial theories, feminist studies, queer theory and critical racial reflections. Let us take here the dissident adjective in the sense of its etymological origin. A dissident is a person who literally sat with the opposite side: the sum of the prefix dis (against, in disagreement) with sedere (to sit down). What we want is exactly this: to sit intellectually next to those who have not been in the hegemonic theories’ debates (or the critical ones). To sit with those whose ways of living and thinking, in recent centuries, have always been regarded as non-rational, nonscientific, naive, invalid, abject. We will do this to rethink, in the future, the very conception of the foundations of labour law, (re)theorising from these dissident places its theory. To start, we will offer some introductory elements to relate the legal subordination and the concept of coloniality. Taking a small theoretical step, we will try to demonstrate that the central element of the employment relationship has unspoken epistemological affiliations. Its abstract conceptual statement will specifically affect certain spaces, people, and bodies. And this interpellation that destabilises its epistemic belonging is essential for the process of recreating labour law’s epistemology. All this in a movement of simultaneity, similar to what Chandra Mohanty8 sees for Southern feminism in the face of hegemonic feminism: to destabilise and deconstruct, to create and build. This chapter bets on a gesture of going beyond, knowing the risks. It bets on another future. We want you to take these questions and tell us other labour law’s secrets. Advance around, in the same line, or against the questions. Perhaps they serve to update the critique. Perhaps they help us to think together about labour law’s epistemology in another way.

II.  Decolonial Theories and Legal Subordination in Subalternity: The (Non-) Standard Employment Relationship This approach will come to the uncomfortable conclusion that the employment relationship, the standard category of labour law, is marked by coloniality. Subordinated labour is a thought from coloniality. And, with that, the question will be: how to decolonise labour law?9 The starting point, however, is much more general: the formal end of the colonial world did not put an end to the power complex that constituted this arrangement in the past and continues to constitute the arrangements of the present. The field of decolonial studies, with its many variations and disputes, is based on this common assumption: the continuity of colonial power in time and space, which takes place on multiple planes, ranging from economic to political and legal regulation, from social 8 C Mohanty, Third World Women and the Politics of Feminism (Bloomington, Indiana University Press, 1991). 9 See A Blackett, ‘On the Presence of the Past in the Future of International Labour Law’ (2020), 43(2) Dalhousie Law Journal 947. [See also Blackett’s chapter in this volume.]

330  Flávia Souza Máximo Pereira and Pedro Augusto Gravatá Nicoli relations to scientific and academic knowledge, from experiences and norms of sexuality and gender to the racial division of the world. This dissident field of study has been denouncing and opposing the dynamics of these modern/colonial forms of power. It has been questioning modern concepts, institutions, practices, ways of being and living, to reveal how much of what is taken as objective or neutral, as natural, or timeless, is actually constituted by what can be called coloniality.10 Our approximation between labour law and decolonial thinking begins by analysing the centrality that the Modernity/Coloniality Group grants to Latin America in this debate. This research group, formed in the late 1990s, is formed by Latin American intellectuals located in various universities in the Americas. ‘The collective carried out a fundamental epistemological movement for the critical and utopian renewal of the social sciences in Latin America in the 21st century: the radicalisation of the postcolonial argument in the continent through the notion of the “decolonial turn”’.11 The theoretical and empirical developments of decolonial thinking, in terms of labour relations and legal regulation, also justify this choice. They allow us an exercise of body politics of knowledge,12 considering that we are Brazilian researchers, and we experience this work reality from the ‘Global South’. This theoretical field will help us to understand, or at least to ask ourselves, how the employment relationship (and legal subordination, its central element) is impregnated with coloniality. For the Peruvian sociologist Aníbal Quijano,13 coloniality is the permanence of colonial power structures in every field of social existence. Permanence that occurs, for the author, mainly from the creation of the geopolitical category of race by the coloniser. Before Latin America’s colonisation, race was associated with culture, religion, and ethnicity. In the invasion of Latin America, race was associated with the phenotype, especially with the skin colour, to legitimise the social division of labour between colonised and coloniser: ‘Indigenous people’ were confined in servitude, especially in Latin American countries colonised by the Spanish, and ‘Blacks’ were enslaved. The Spanish and the Portuguese, as the dominant white race, could receive wages, be merchants, artisans, and independent farmers. Only white men could occupy the middle and high posts of the colonial, civil or military administration. Therefore, race, associated with skin colour, is a geopolitical identity created in Latin America’s colonisation that is strongly related to the world of work. Quijano14 specifically elaborates the idea of a coloniality of the control of labour: ‘the control of a specific form of labour could, at the same time, be the control of a specific group of dominated people’. Also from this same matrix, which superimposes racialised controls on labour, we can derive a coloniality of labour, a coloniality of law and, at the intersection, a coloniality of the regulation of labour,15 all constituted by the colonial and racialised capitalist system.16

10 A Quijano, ‘Colonialidad del poder, eurocentrismo y América Latina,’ in E Lander (ed) Colonialidad del saber (Buenos Aires, CLACSO, 2000) 117–142. 11 L Ballestrin, ‘América Latina e o giro decolonial’ (2013) 11 Revista Brasileira de Ciência Política, 89. 12 W Mignolo, ‘Epistemic Disobedience and the Decolonial Option: A Manifesto’ (2011) Transmodernity, 60. 13 Quijano, above n 10, 14 ibid, 119 (free translation). 15 P Nicoli, ‘Coloniality of labour regulation: centralising informality, complexifying inclusion, decolonising labour law’ (2020), 11(4), Revista Direito e Práxis, 2698. 16 D Ashiagbor, ‘Race and Colonialism in the Construction of Labour Markets and Precarity’ (2021) 50(4) Industrial Law Journal 506–31; N Fraser ‘Expropriation and Exploitation in Racialised Capitalism: A Reply to Michael Dawson’ (2016) 3(1) Critical Historical Studies 163.

Epistemic Secrets of Labour Law: Towards a Decolonial Turn  331 We will exemplify these concepts through their material expression, evoking everyday life. A simple example, from our lives, which is certainly reproduced in some way around yours. In front of the main entrance of the Federal University of Minas Gerais campus in Belo Horizonte, there are always black women selling cakes, snacks, coffee, drinks, in styrofoam boxes placed on the pavement. Very early in the morning, students, employees, outsourced workers from the university, people who work at the gas station nearby, people walking down the street on their way to work, in short, a huge number of people, buy from these women. And this scene happens every day in the cities of the so-called ‘Global South’. And also on the outskirts of northern metropolises. What street food vendors do massively, repeatedly, in proportions that are not portrayed in global statistics or in institutional labour categories, is crucial in so many ways.17 First, because they affect the life lived by a huge universe of people, for whom the world of work is only this world. But it is also fundamental to the production structure, and for the circulation of goods produced on a large scale. In our mundane example, the preparations involve: wheat flour, eggs, chicken, cheese, ham, soy oil, cans of Coca-Cola, ground coffee, sugar, napkins, running water, cooking gas, electricity. Large intensive agricultural crops, industrialised products from multinationals, public services with tariffs, local raw materials, embodied know-how. All this at the same time. Under the form of providing cheap food in a public place, full of working-class people coming and going. The direct and indirect ties of this form of labour are very dense. And deeply marked by coloniality. Most workers in the world are in similar conditions. Precarious, vulnerable, informal are variations in adjectives that, depending on the context, have more precise meanings, but which all refer to this universe. In the eyes of the labour law categories, which are the ones that interest us most directly here, all this is ‘atypical’ work. This is because subordination, which is the most important legal element in the characterisation of regulated employment in the world, would not appear in its ‘typical’ form. The labour lawyer trained in the classic lines of protective humanism may be quick to respond: ‘But this is indeed subordinated labour. This activity must be understood as employment. It would be enough to identify the employer, the “atypical forms” of subordination and that’s it.’ This answer, based on a juridical-protective instinct, although important for a strategy based on labour rights claims, does not help us to understand the complexity of this scene. If it were that simple, the statistical data would not account for the massive prevalence of these so-called atypical and invisible forms of work, especially in the domain of self-employment, in social reproduction and in the tangles of informality. This is where the coloniality of subordination in labour law is revealed. Legal subordination, in its conceptual history in Europe, starts from the realisation of a concrete condition of socioeconomic, material subordination. It is not just technical, it is not just economic; subordination becomes legal, as any labour manual will teach us. It is that general and abstract legal state through which the employee undertakes to accept the employer’s orders as to the ways of performing his or her work. This process of becoming abstract is, in fact, fundamental to the legal technique, so that diverse situations can be expansively framed in the concept. A logical gateway is consolidated in a structurally simple syllogism: present the



17 See

also Rittich and McHugh-Russell, Chapters 4 and 30 in this volume.

332  Flávia Souza Máximo Pereira and Pedro Augusto Gravatá Nicoli factual elements that indicate subordination, the abstract legal category is applied, and the protections are extended.18 What we need to remember here, along the lines of a geopolitics of knowledge,19 is that this is a conceptual itinerary produced in a time and place: in Europe from the transition from the nineteenth to the twentieth centuries. In other words, the legal subordination is forged in the light of a socially common bilateral labour relationship between employee and employer in those urban, European, industrialised spaces and times. It is a legal category that brings within itself the social struggle for it, of course. Subordination as an operative concept in law, in this sense, is a legal achievement of a struggle. But of a situated social struggle. ‘Typical’ wage work, regulated under the regime of the standard employment relationship, has never expressed, and still does not express, the extent of the structure of productive relations in the world-system20 of modern capitalism.21 The fracture between labour law’s epistemology and the experience of those who work in the ‘Global South’ is not accidental: it is a Eurocentric project of power. Notwithstanding its emancipatory ethos, labour law’s epistemology is a product of capitalist modernity and as such it is suffused with Eurocentric coloniality. Eurocentrism does not refer to all Western European cognitive history, but to a specific form of rationality that became worldwide hegemonic and colonising, both in Europe and in the rest of the world.22 Rooted in the Enlightenment era rejection of theology in favour of a rational scientific worldview, this ‘new’ scientific rationality was totalitarian because it also rejected all other non-European forms of knowledge,23 deeming them naive, irrational, and uncivilised. Contra its claims of ‘universality’, ‘objectivity’ and ‘impartiality’, Eurocentrism was situated in power relations of Western and Christian masculinity. Its scientific content was geared towards itself, maintaining modern capitalist racial-sexual divisions of labour, including in the realm of knowledge and law.24 Despite being established in colonisation, Eurocentrism is still the reference for the world’s knowledge production. Much has been, and continues to be, left out. The universalisation of subordinated labour category is an invention, like many other universalist inventions of modernity. It leaves out many subaltern ways of working, which were and are, even today, widely distributed through coloniality. Coloniality of power, in general, of racialised labour, but also of gender.25 These relationships prevail in the poorest countries of the ‘Global South’ in the form of self-employment.26 And, in general, it is performed by specific bodies, in race (black) and in gender (women). This is precisely why, even if labour is legally subordinated, this status is not sufficient to undo the condition of subalternity derived from coloniality. Labour law is involved in a power mechanism of enormous complexity. While protecting and placing itself as an

18 See Goldín, Chapter 31 in this volume. 19 W Mignolo, ‘Epistemic Disobedience and the Decolonial Option: A Manifesto’ (2011) Transmodernity 60. 20 I Wallerstein, World-systems Analysis: An Introduction (Durham, Duke University Press, 2004). 21 P Nicoli, ‘Coloniality of Labour Regulation: Centralising Informality, Complexifying Inclusion, Decoloniing Labour Law’ (2020) 11(4) Revista Direito e Práxis 2698. 22 Quijano, above n 10, 126. 23 W Mignolo, ‘Epistemic Disobedience and the Decolonial Option: A Manifesto’ (2011) Transmodernity, 60. 24 ibid. 25 M Lugones, ‘Rumo a um feminismo descolonial’ (2014) 22(3) Estudos Feministas 935–52. 26 ILO, World of Work Report 2014: Developing with Jobs (Geneva, ILO, 27 May 2014).

Epistemic Secrets of Labour Law: Towards a Decolonial Turn  333 instrument of social struggles, it can help to create, legitimise and maintain such circuits of inequality. These inequalities also remain and grow inside labour law: legal absorption in the employment relationship is not equivalent to enjoyment of social protection. The maintenance of wage inequality in the context of regulated employment is proof of this. Black women, even in formalised work, continue to earn systematically less.27 The same applies for the gendered and racialised distribution of precarious employment statutes in labour law, which break with the fiction of a closed typicality. Work that is fixed-term, zero-hours, intermittent, part-time, hourly, or task-based, in old and new ways, have always been socially distributed in terms of social power such as gender, sexuality, and race.28 Therefore, in summary, legal coloniality is expressed in typical labour law, ie in the employment relationship, in at least three structural dimensions: (i) by the subaltern margins: in unprotected labour, essentially constituted by self-employment and unpaid reproductive labour; (ii) by legal precariousness: in the precarious nature of labour law protections in the ‘Global South’, which includes labour fraud (actual employees considered formally as entrepreneurs, for example), legally tolerated fraud (such as outsourcing) and legally constituted inequalities (regulation of domestic employment) or total legal exclusions (non-regulated domestic day workers, such as the diarista29 in Brazil); (iii) by the implosion of its protective nucleus: in the constant destructive force of what is protected, by the loss of rights and proliferation of more precarious contractual statuses, redistributed in the light of gender, sexuality and race. In this third form, the complexity of the coloniality of the legal regulation of labour is unveiled. Protected employment is not the result of legal coloniality just because it leaves many people out, with a hegemonic definition of the epistemic subject of labour law. Those inside the protection nucleus are also challenged by the same colonial forces. Coloniality knows no formal legal limits. It is always trying to expand. Destroying protected employment, social rights, existing labour protections is also a dimension of it. That is why legal subordination becomes a boundary. The defence of typical, subordinated employment, as a basic category of understanding of labour law, appears as a resistance strategy in this power dispute. The expansive conceptual inflections of legal subordination do as well. All this, it seems to us, is part of the resistance against coloniality and its daily dynamics. In the countries of the ‘Global South’, it should be noted, the sociopolitical defence of inclusion through employment30 has historically been placed as a key element in the fight against coloniality.

27 ibid. 28 ibid. 29 The legal framework of domestic work in Brazil – Law n. 150/2015 – maintains the category of diarista, which is a discriminatory legal interpretation of the temporal element of the general employment relationship when applied to domestic workers by Brazilian courts. These domestic day workers, working up to two days a week for the same person or family, are to be treated as non-continuous workers, without any right to labour protections in the strict sense. Even if the work is performed two times a week for the same employer, full time, for as long as it may last. 30 To expand legal subordination, Brazilian courts created the structural subordination theory, which is manifested by the insertion of the worker in the dynamics of the employers’ services, regardless of receiving direct orders. See M Mendes and J E Chaves, ‘Subordinação estrutural-reticular: uma perspectiva sobre a segurança jurídica’ (2007) 46(76) Rev Trib Reg Trab 3ª Reg 197–218.

334  Flávia Souza Máximo Pereira and Pedro Augusto Gravatá Nicoli There are, however, major disagreements in the field of labour criticism. Feminist literature, above all, points even more strongly to the problems of standard employment in the face of the social reproduction labour, consolidated in Leah Vosko’s31 position. Vosko understands that as long as the typicality of standard employment is maintained, within what she sees as ‘employment centrism’ what we will always do is what gives name to her best-known book: ‘managing the margins’.32 The protection of what is today an enormous universe of precarious forms of work will necessarily involve a review of standard, legally subordinated employment, as a basic category. This is where the terrain is demarcated for other ways of thinking about labour law. In the field of labour law’s critique, those who were content with legal subordination failed to reveal the assumptions on which it is based. On the other hand, anyone who wants to simply dismantle protected employment is also wrong. Both positions fail to understand it in its ambiguity in power struggles within the framework of coloniality. Thus, the questions remain: for what and for whom does legal subordination serve? Is it time to decolonise it? How? Is it possible to think about a labour law that brings to its heart the dynamics of ‘non-typical’ subordinated labour? How can epistemologically plural legal thinking contribute to this? Even though these are very difficult questions, and reflect on the employment relationship at a time when it is under threat, the process of decoloniality is not a mere detail that can be left for later, if we want a future in which all human beings can ‘claim freely and on the basis of equality of opportunity their fair share of the wealth which they have helped to generate, and to fully achieve their potential’.33

III.  Ceci n’est pas une Conclusion We have now told you some of the epistemic secrets of labour law. Uncertainties remain. We found at every step, at every point, how the central element of the employment relationship has always had unconfessed epistemological trappings. That is so as it was not theorised from a declared epistemic and social place. It was produced from a place that is not neutral and universal, and, therefore, does not contemplate the reality and thinking that comes from subjects from the ‘Global South’, from women, from black people, from indigenous people, from LGBTs (and, beyond this text, from people with disabilities). We want, then, to find other ways of thinking about this central element. We want to see it through the eyes of those who have not conceived it and are affected by it. These are questions that only make sense if answered from plural knowledge production that will help labour law expands its critique. The usual answers are already given: it’s in, it’s out, it fits, it doesn’t fit, it’s subordinated labour, it’s not a subordinated, it’s in the law, it’s fraud, it’s not fraud. All this we already know. It’s no secret. And, at this point, we are less interested in these ready answers. We want the ‘imagination of previously unimagined futures’.34 31 LF Vosko, Managing the Margins: Gender, Citizenship and the International Regulation of Precarious Employment (Oxford, Oxford University Press, 2010). 32 ibid. 33 ILO, Declaration on Fundamental Principles and Rights at Work and its Follow-up (Geneva, 18 June 1998). See Ewing and Hendy, Chapter 6 in this volume. 34 K Bidaseca and M Meneses (eds) Epistemologías del Sur (Buenos Aires: CLACSO 2018) 11–21, 19.

Epistemic Secrets of Labour Law: Towards a Decolonial Turn  335 We want to think about another future, far from the univocal logic of modernity/coloniality, which is structurally racist, sexist, cisgendered and heteronormative. We could summarise the points, try to re-articulate them, and promise something. Fill the end with positivity, hoping that these dissident epistemologies will provide relief from the dystopian picture of labour relations in today’s world. What we have been going through contemporaneously in labour regulation has a very bitter taste. A bitter taste, especially for poorer workers, people of colour, LGBT people, women, who will be systematically more subject to precarious arrangements. They are the preferred victims of intermittent, outsourced work, deaths, accidents, regular overtime, in short, everything we know. They do not retire; they are subject to social risk. And they survive, albeit in many mortified ways. Our strategy, in formulating questions that try to reveal secrets, may expand the discomfort even further. And this chapter ends like this. Sitting down with the discomfort is essential, without promising relief or a simplified exit. The operative strategies around the labour categories, in their legal values, continue to be important political and institutional trenches. But they must not serve as reductive peacemakers of our anxieties and concerns. We offer discomfort here. And the certainty that dealing with it theoretically, reopening the articulations of the hegemonic way of conceiving labour regulation, constitutes an indispensable step towards a critical decolonial thinking. Towards a different future with labour law’s decolonial turn. To reach different paths to this unattainable horizon of social justice. A step that, we hope, will help labour law to cross the desert of the world to ‘in the high wind’.35 Which is where, after all, labour law was born to live.



35 Andresen,

above n 1, 63 (free translation).

336

30 After ‘Subsistence Work:’ Labour Commodification and Social Justice in the Household Workplace LIAM McHUGH-RUSSELL1

I. Introduction What might social justice mean for those engaged in subsistence work? This is not an obvious topic for a book dedicated to possible global futures of work. In keeping with the stadial view of economic (and social) progress embraced by the classical economists,2 the international development project has tended to view the extension of market work as a precondition of healthy, wealthy societies.3 At the ILO’s founding, the prevalence of market work (especially waged labour) was understood as the crux of the labour problem for industrialised countries, and its relative absence was one marker of the ‘imperfect development’ that countries would have to overcome to fully benefit from international labour standards.4 While some ILO standards now encompass subsistence production, the organisation continues to foreground market employment as the unique pathway to development.5 Contemporary political theory has sought to rehabilitate Marx’s concept of

1 My thanks to Adelle Blackett and Genevieve Renard Painter for their constructive feedback, André Pritchard, Haruna Kebba Sowe and Francesco Bruno for research assistance and the editors for their patient support. All remaining errors are mine. 2 See A Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (Oxford, Clarendon Press, 1976), bk I, ch 3; and WC Roberts, ‘What Was Primitive Accumulation? Reconstructing the Origin of a Critical Concept’ (2020) 19 European Journal of Political Theory 532, 542–43 (on Marx). 3 K Rittich, ‘Historicising Labour in Development: Labour Market Formalisation through the Lens of British Colonial Administration’ in D Ashiagbor (ed), Re-Imagining Labour Law for Development: Informal Work in the Global North and South (Oxford, Hart Publishing, 2019); D Alessandrini, et al ‘The Dream of Formality: Racialisation Otherwise and International Economic Law’ (2022) 25:2 Journal of International Economic Law 207–33. 4 Constitution of the International Labour Organization, Part XIII of the Treaty of Peace between the Allied Power and Associated Powers Germany (Versailles, 28 June 1919, UKTS 1919 No 4) as amended, art 19(3); S Zimmermann, ‘“Special Circumstances” in Geneva: The ILO and the World of Non-Metropolitan Labour in the Interwar Years’ in J Van Daele et al (eds), ILO Histories: Essays on the International Labour Organization and Its Impact on the World During the Twentieth Century (Berne, Peter Lang, 2010) 248. See also Blackett, Chapter 3 in this volume. 5 M Bacchetta, et al, Globalization and Informal Jobs in Developing Countries (Geneva, International Labour Organization (ILO) and World Trade Organization, 2009).

338  Liam McHugh-Russell ‘primitive accumulation’, originally deployed to chart how people were dispossessed from the means of subsistence.6 But such scholarship tends to invoke the concept metaphorically, to denote other processes that deploy violence to dismantle non-capitalist social relations.7 Recent labour law scholarship, likewise, has sought to recover the dispossession central to the construction of free labour on which contemporary labour law is conditioned. Yet that work, too, tends to seek the contemporary legacy of historical processes, rather than focusing on their occurrence in the present.8 In short: subsistence work, when it is seen at all, is largely seen as a vestige of the past. This chapter develops three challenges to these narratives. First, subsistence work is a widespread, present reality. There is evidence that between 500 million and 1 billion people worldwide currently rely on subsistence activities as their primary income source. Second, subsistence work bears on the ILO’s mandate, not only because social justice requires attending to the margins but also because its regulation has underexplored import for the ILO’s so-called core mandate. Third, existing ILO standards already have and have had significant relevance to subsistence work, not least of which is ‘counting it out’ in official statistics. The conclusion addresses the broader question of how classification bears on the agenda of pursuing social justice within and beyond the ‘household workplace’.

II.  Prevalence of Subsistence Work How many people globally are engaged in or depend on subsistence work? Seeking an answer means confronting acute conceptual and measurement issues. Official statistical standards ignore and disregard the value of most of the work households do to support themselves.9 In line with the historical invisibility of all ‘domestic work’,10 these standards place unpaid reproductive labour – cooking, cleaning, caring for family – beyond the ‘production boundary’ which determines what counts as ‘productive’, as income and as work.11 Relying on a poorly motivated, ambiguous and deeply gendered distinction between goods and services, those measures do, however, encompass household work to grow, hunt or fish for food, construct and repair buildings, or gather fuel.12 Beyond these 6 See, eg, S Federici, Re-Enchanting the World: Feminism and the Politics of the Commons (Oakland, PM Press, 2019); see especially K Marx, Capital: A Critique of Political Economy, vol 1 (Ben Fowkes tr) (London, Penguin, 1976) Pt IIX. 7 Roberts, above n 2, 534–36. 8 D Ashiagbor, ‘Race and Colonialism in the Construction of Labour Markets and Precarity’ (2021) 50 Industrial Law Journal 506; H Fechner, ‘Legal Segmentation and Early Colonialism in Sub-Saharan Africa: Informality and the Colonial Exploitative Legal Employment Standard’ (forthcoming) International Labour Review; Rittich, above n 3. 9 M Waring, If Women Counted: A New Feminist Economics (New York, Harper, 1990); T Wobbe and L Renard, ‘The Category of “Family Workers” in International Labour Organization Statistics (1930s–1980s): A Contribution to the Study of Globalized Gendered Boundaries Between Household and Market’ (2017) 12 Journal of Global History 340. 10 A Blackett, ‘Emancipation in the Idea of Labour Law’ in G Davidov and B Langille (eds), The Idea of Labour Law (Oxford, Oxford University Press, 2011) 420–36, 429–31. 11 European Commission and others, System of National Accounts 2008 (European Commission and others 2009) paras 6.23–6.48. 12 ibid, 6.27, 6.32–6.33. The gendered foundation of the goods/services distinction is well illustrated by the long treatment of water-carrying – generally women’s work – as non-productive. See Inter-Secretariat Working Group

Subsistence and Social Justice  339 conceptual issues with prevailing standards, those whose income is primarily derived from intra-household production may also engage in market-facing activities (and vice versa) and the allocation between the two is often seasonal. More pointedly, communities reliant on subsistence farming or similar activities have often engaged in communal production and reciprocity that transcend the household boundary and sometimes resemble market-based exchange. Though official standards count some household work as ‘productive’, there is no reliable global accounting of how many engage in or depend on such work. It is worth exploring why. The clearinghouse for global labour statistics is the ILO’s Department of Statistics (ILOSTAT). ILOSTAT maintains standardised, up-to-date global labour statistics by aggregating country-level data and constructing country-level estimates where recent data is unavailable or out of sync with international standards.13 ILOSTAT’s focus, however, is on labour market indicators and especially on the makeup of the ‘labour force’, a category defined to include only people who have a job – work for pay or profit – or are actively seeking one.14 The best available analyses of who is working and what kind of work is being done, reflected in the ILO’s ‘flagship’ report on trends in the ‘world of work’, are thus founded on data that exclude subsistence work entirely.15 Since 2003, the ILO has also collected statistics about work and workers usually neglected in conventional labour statistics, under the rubric of ‘informal employment’ and work in the ‘informal economy’.16 Along with historically under-counted market-based work, the operational definition of informal employment can encompass ‘productive’ non-market work.17 Yet because national statistics have tended to exclude agricultural work wholesale, subsistence work was long excluded in practice from global estimates of informal employment.18 While the ILO has now compiled global estimates of informal employment that include agriculture, for various reasons those measures still exclude own-use household production.19

on National Accounts, System of National Accounts (Brussels, European Commission and others, 1993) 653–54, 656–57. 13 International Labour Organization, ‘ILO modelled estimates and projections’. Available at: ilostat.ilo.org/ resources/concepts-and-definitions/ilo-modelled-estimates/. 14 International Labour Organization, ‘Resolution Concerning Statistics of Work, Employment and Labour Underutilization’, Nineteenth International Conference of Labour Statistics, Report of the Conference (Geneva, ILO, 2013) paras 7, 11, 15, 16, 27–31, 47–48. 15 International Labour Organization World Employment and Social Outlook: Trends 2022 (Geneva, ILO, 2022). 16 International Labour Organization, ‘Resolution Concerning Statistics of Employment in the Informal Sector’, Fifteenth International Conference of Labour Statistics, Report of the Conference (Geneva, ILO, 1993); International Labour Organization, ‘Guidelines Concerning a Statistical Definition of Informal Employment’, Seventeenth International Conference of Labour Statistics, Report of the Conference (Geneva, ILO, 2003); International Labour Organization, Women and Men in the Informal Economy: A Statistical Picture (3rd edn) (Geneva, ILO, 2019). 17 International Labour Organization, ‘2003 ICLS Guidelines’, above, n 16, paras 1, 3(2)(vi), 7; International Labour Organization, ‘Resolution Concerning Statistics of the Labour Force, Employment and Unemployment’, Eighth International Conference of Labour Statistics, Report of the Conference (Geneva, ILO, 1982) paras 9(1), 9(6). 18 International Labour Organization, Women and Men in the Informal Economy: A Statistical Picture, 2nd edn, (Geneva, ILO, 2013) 3; cf International Labour Organization, ‘1993 Resolution’, above n 16, para 16. 19 International Labour Office, Women and Men in the Informal Economy, above n 16, 6–9. See also text to nn 60–69 below. The International Conference of Labour Statisticians (see text to n 60 below) will discuss a revised approach to informality at its 2023 meeting. See International Labour Office, ‘Draft Resolution concerning Statistics of the Informal Economy’. Available at: https://ilostat.ilo.org/topics/informality/#Methods.

340  Liam McHugh-Russell Research concerned with global agricultural production sheds some light on the prevalence of subsistence farming. Best estimates suggest there are over 485 million farms of less than 2 hectares in area, with a similar number of ‘family farms’, on which family members provide the majority of labour.20 However, these estimates depend on uneven sources, including census data as much as 60 years old.21 They also offer only a rough proxy for the population engaged in household production, because they exclude hunting, fishing and pastoral production, and overcount farms where subsistence work complements rather than substitutes for market-based income. There is illuminating household-level income data. The UN’s Food and Agriculture Organization (FAO) and the World Bank’s Living Standards Measurement Study support the collection of fine-grained data about rural income generation.22 Their data show that, across nine African countries representing over half of the continental population, nine out of 10 rural households earn part of their income from own-account agricultural production. One quarter have no other income source.23 Given that approximately 50 per cent of Africa’s population is rural, a reasonable estimate is that Africa is home to 150 million people who rely solely on subsistence work to meet their needs, with even more relying primarily on such work. Unfortunately, this data exists only for a small, unrepresentative sample of ­countries, so there is no way to extrapolate to a global estimate. Perhaps the best way to grasp the global scale of subsistence work is to deliberately attend to those who go uncounted. Estimates of the global working age population (between 15 and 64) is 5.1 billion.24 The global labour force, per the ILO’s definition, is estimated at 3.5 billion.25 Thus, about 1.6 billion people between the ages of 15 and 64 are neither participants in the labour market nor seeking to join it. Of course, this residual includes more than just subsistence goods production. It includes many students; people unable to work who survive on a combination of social assistance, personal savings and family and community support; and the idle rich, including those from wealthier countries who can afford to retire before age 65. A large portion is represented by people – mostly women – engaged primarily in unpaid reproductive labour. Even accounting for these other categories, these numbers suggest, in line with the other available data, that between 500 million and 1 billion people of working age rely primarily on subsistence work worldwide.

III. Competence Does the ILO have competence to regulate such work? Despite the centrality of marketfacing work in ILO activity, few today explicitly dispute the ILO’s competence to regulate 20 SK Lowder, J Skoet and T Raney, ‘The Number, Size, and Distribution of Farms, Smallholder Farms, and Family Farms Worldwide’ (2016) 87 World Development 16. 21 ibid, 20. 22 See, eg, A Sagesaka, A Palacios-Lopez and A Amankwah, Measuring Agricultural Labor: A Guidebook for Designing Household Surveys (Washington, World Bank, 2021). 23 B Davis, S Di Giuseppe and A Zezza, ‘Are African Households (Not) Leaving Agriculture? Patterns of Households’ Income Sources in Rural Sub-Saharan Africa’ (2017) 67 Food Policy 153, 156 (Table 1). 24 International Labour Organization, ‘Population by sex and age – UN estimates and projections, Nov. 2021’. Available at: www.ilo.org/shinyapps/bulkexplorer57/?lang=en&segment=indicator&id=POP_ 2POP_SEX_AGE_NB_A. 25 International Labour Organization, ‘World Employment and Social Outlook’ above n 15, 106.

Subsistence and Social Justice  341 beyond it. Many once did, however, as shown by the 1921 opinion of the Permanent Court of International Justice (PCIJ) regarding the scope of the ILO’s competence.26 The key holding in that case was a rejection of claims, rooted in constitutional references to ‘industry’, that the ILO lacked competence to address any agricultural work, market-based or not. In rejecting such sectoral limits, the court embraced two lines of reasoning which on their face are incompatible with ILO competence over non-market work. The court’s first line of reasoning, about the personal scope of ILO competence, placed the interests of wage earners at the core of the ILO’s mandate.27 The second was functional. The constitution links the organisation’s mandate to the idea that ‘the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations which desire to improve the conditions in their own’, grounding the common presumption that ILO standards function as ‘rules of the game’ to prevent global economic integration from fostering a ‘race to the bottom’ in domestic labour standards.28 Though the preamble of the constitution articulates ‘social’ and ‘political’ aims beside this ‘economic’ goal,29 the PCIJ read those functions conjunctively, implying that international labour standards were justifiable only insofar as they affect the competitive position of countries – that is, only if they impact on production costs for goods and services tradable in global markets.30 If this were right, it could be argued that work which produces no goods or services for the market is neither a proper subject of regulation aimed at ensuring fairness in global markets nor, a fortiori, within the ILO’s competence at all. However strong those arguments may have been a century ago, neither has held water since the 1944 constitutional amendments which inter alia replaced Article 427 of the ­original constitution with the Declaration of Philadelphia. In contrast to Article 427, which gave the PCIJ strong warrant to prioritise ‘wage earners’, the Declaration of Philadelphia sets out an inclusive definition of social justice, under which ‘all human beings’ can pursue ‘both their material well-being and their spiritual development, in … freedom and dignity … economic security and equal opportunity’.31 The Declaration also gave the pursuit of that principle independent standing as a goal of ILO activity.32 As put by Francis Maupain, whose professional work and scholarship have consistently foregrounded the role of ILO standards as global rules of the game, ILO standards also serve a ‘magisterial’ role, giving concrete effect to social justice claims of particular groups of workers, be they employees or otherwise.33

26 Competence of the ILO in regard to Persons Employed in Agriculture (1922) PCIJ Series B, No 2 (citations to World Courts, www.worldcourts.com). 27 ibid, paras 26, 38. 28 B Langille, ‘Imagining Post “Geneva Consensus” Labor Law for Post “Washington Consensus” Development’ (2010) 31 Comparative Labor Law & Policy Journal 523, 531–33. See, eg, International Labour Organization, Rules of the Game: An Introduction to the Standards-related Work of the International Labour Organization (Geneva, ILO, 2019). 29 B Burkett, ‘The International Labour Dimension: An Introduction’ in JDR Craig and M Lynk (eds), Globalization and the Future of Labour Law (Cambridge, Cambridge University Press, 2006). 30 Competence in Agriculture, above n 26, para 28. France had argued that conditions in agricultural work had no impact on international competitiveness. F Maupain, The Future of the International Labour Organization in the Global Economy (Oxford, Hart Publishing, 2013) 14. 31 Declaration of Philadelphia, annex to ILO Constitution, above n 4, art II(a). 32 ibid, art II. 33 Maupain, above n 30, 6–7; F Maupain, ‘Revisiting the Future’ (2015) 154 International Labour Review 103.

342  Liam McHugh-Russell Though these arguments fail on legal grounds, there is value in confronting their ­underpinning premises head on. There is a substantial body of research and practice showing how the regulation of subsistence work matters for working conditions and productivity in market-oriented industries. Arthur Lewis offered a classical account of the interaction in his path-breaking contribution to development economics.34 Lewis suggested that developing countries were characterised both by a capitalist sector, in which employment was structured to generate a productive surplus that could fund capital accumulation, and a subsistence sector organised primarily to meet the basic needs of the population it supported. Inspired by Paul Rosenstein-Rodan, Lewis characterised subsistence work in these c­ ountries as a matter of ‘disguised unemployment’ or ‘surplus labour’.35 Rosenstein-Rodan’s basic premise had been that feeding, housing and caring for those ‘living on the land’ could be done by only a portion of that population’s available working time.36 According to this view, the average worker made a negligible contribution to overall output (thus ‘surplus labour’) and could have a higher output if they moved into more productive work (thus ‘disguised unemployment’). Lewis, like Rosenstein-Rodan, saw the key to growth in developing countries not in capital investment per se, but in the movement of workers into capitalist work in step with the expansion of capitalist production. By formalising the model, Lewis clarified the political economy of the interaction between the two sectors. Capitalist firms, in seeking to boost their surplus, would seek to maximise the output they extracted from each hour of worker time they paid for. By contrast, disguised unemployment in the subsistence sector meant work was relatively ‘easy going’, at least on average.37 Wages in the capitalist sector would thus be shaped not only by competition among capitalist firms for workers, but also by the tacit comparison those workers would make between market-orientated employment and the more communal, less exploitative form of life they might enjoy if they stayed on the land.38 Insofar as wage rates impact profits, profits fuel capital accumulation, and capital determines real output, Lewis emphasised the strong political incentives that would align – and had historically aligned – to keep incomes low in the subsistence sector.39 Considered in terms of the functions of international labour law, his analysis suggests that a country’s competitiveness in global markets is significantly conditioned by prevailing working conditions for its population who live off the land.

IV. Standards Notwithstanding the pronouncement in the Declaration of Philadelphia that ‘labour is not a commodity’, ILO standards have primarily been concerned with overcoming or moderating 34 WA Lewis, ‘Economic Development with Unlimited Supplies of Labour’ (1954) 22 The Manchester School 139. 35 PN Rosenstein-Rodan, ‘The International Development of Economically Backward Areas’ (1944) 20 International Affairs 157, 159–160. On the role of ‘disguised unemployment’ in the genealogy of the ILO’s concept of ‘informality’, see A Benanav, ‘The Origins of Informality: The ILO at the Limit of the Concept of Unemployment’ (2019) 14 Journal of Global History 107. 36 Lewis suggested that the ‘subsistence sector’ so defined was limited neither to household production nor to rural agriculture. 37 Lewis, above n 34, 150. 38 ibid, 148–50. 39 ibid, 149–52.

Subsistence and Social Justice  343 the antinomies of selling labour power on the market – ie, with already commodified labour.40 Nonetheless, ILO standards intersect with both subsistence work and labour commodification in at least three ways sketched out here. First, the history of international labour standards provides a regrettable index of the injustices that can characterise the relation between subsistence economies and marketbased development. Lewis’s work made clear that, in the transition away from subsistence production, workers available for profit-orientated, market-facing work must be compelled to take up a different pace and mode of work and, often, an entirely different mode of life. ‘Free labour’ needs to be made. Lewis emphasised that workers might be pulled into market-facing work by wages offering a high premium over incomes under the subsistence alternative.41 But he also noted that meeting the demand for an adequate labour force at wages commensurate with capital surplus has often meant pushing people into that work – through coercion, expropriation and force. Marx’s account of primitive accumulation in Europe often provides an archetype for these processes: the violence of the enclosures, he argued, kickstarted capitalism by separating the population from the means of subsistence, thereby creating a population amenable to capitalist exploitation.42 Though Marx cast this dynamic as largely accidental,43 colonialism reveals a litany of strategies deliberately aimed at ‘extracting colonised people from their land’.44 Providing adequate labour for both colonial infrastructure and capitalist enterprise was a perennial preoccupation of colonial administrators and a central aim of colonial policy.45 Beyond the pull to waged work entailed in fostering demand for consumer goods, market-facing work could be made quasi-compulsory by imposing taxes payable only in cash.46 Though international norms had turned against slavery, colonial administrators were willing to countenance various forms of forced labour – paid at ‘market rates’ – to make workers available for resource development and to build a culture (or ‘habitus’) of work.47 Though some ILO officials contested the approach, such practices were legitimated by ILO standards promulgated in the interwar years.48 As one example, the original text of the Forced Labour Convention 1930 (No 29), while mandating the elimination of forced labour, was primarily concerned with regulating its continued use in colonial territories during a ‘transitional period’ aimed at ‘educating’ colonised peoples in the habits of waged labour.49

40 L Vosko, Managing the Margins: Gender, Citizenship, and the International Regulation of Precarious Employment (Oxford, Oxford University Press, 2010) ch 2. 41 Lewis, above n 34, 150. 42 Marx, above n 6, chs 27–30. 43 Roberts, above, n 2. 44 A Blackett, ‘Decolonizing Labour Law’ in D’Arcy du Toit (ed), Labour Law and Social Progress: Holding the Line or Shifting the Boundaries? (Alphen aan den Rijn, Kluwer Law International, 2016) 91. Perspectives drawn from critical race studies and literature on racial capitalism emphasise flaws in historical narratives that account for the rise of European capitalism independently of Europe’s integration into circuits of colonial extraction. See also Ashiagbor, above n 8. 45 Rittich, above n 3; Fechner, above n 8. 46 Rittich, ibid, 35. 47 Fechner, above n 8; D Maul, Human Rights, Development and Decolonization: The International Labour Organization, 1940–70 (Basingstoke, Palgrave Macmillan, 2012) 20–22; Rittich, above n 3, 34–35. 48 C Szabla, ‘Entrenching Hierarchies in the Global Periphery: Migration, Development, and the “Native” in ILO Legal Reform Efforts’ (2021) 21 Melbourne Journal of International Law 334; Zimmermann above n 4; Maul above n 47, 17–27. 49 Maul, above n 47, 23–25; Zimmermann, above n 4, 248–49. See also the Recruiting of Indigenous Workers Convention, 1936 (No 50); the Contracts of Employment (Indigenous Workers) Convention, 1939

344  Liam McHugh-Russell Though the relevant conventions and provisions are no longer in force, this episode underlines the ILO’s contribution to the conditions under which labour commodification occurs and its role in the process by which workers (and communities) move from subsistence to market-facing work. Job creation and the promotion of ‘full and productive’ employment has been the centrepiece of the ILO’s bid for standing in global development circles,50 and one of few areas in which the organisation has actively sought common ground with the World Bank and the International Monetary Fund (the IFIs), as well as the World Trade Organization.51 Bracketing the ambiguities of ‘job’ and ‘employment’,52 the ILO’s primary agenda to promote decent work for subsistence workers remains a matter of guiding them into market-facing work – that is, commodifying their labour. Given the broader contradictions in the approaches to employment advanced by the ILO and IFIs respectively,53 it is worth being vigilant that employment promotion does not make the ILO complicit in forms of labour commodification incompatible with its normative mandate. Second, although non-market work either expressly or functionally falls outside the scope of most Conventions and Recommendations, there are numerous standards where coverage is broad enough to encompass subsistence work.54 The fundamental labour rights elaborated in the 1998 Declaration on Fundamental Principles and Rights at Work clearly apply to all workers, though the corresponding Conventions may not optimally express those rights for subsistence workers: the Equal Remuneration Convention 1951 (No 100) and the Right to Organise and Collective Bargaining Convention 1949 (No 98) are both aimed primarily at regulating employer conduct that would undermine the relevant fundamental rights. ILO standards also encourage the inclusion of subsistence workers in social security schemes, though much rests at the discretion of national authorities.55 Third, a handful of international labour standards directly chart the social justice challenges faced by subsistence workers and possible responses to them. The most notable examples are the Indigenous and Tribal Peoples Convention 1989 (No 169), whose coverage includes a significant portion of communities who rely on subsistence farming, hunting and fishing and pastoral activities, and the Tenants and Sharecroppers Recommendation 1968 (No 132), which covers a large subset of subsistence farmers. Both standards promote continuing access to land as the keystone of livelihoods for subsistence workers and their families, and identify loss of access as a key threat to those livelihoods. Convention 169, however, makes clear that states not only shape the access threats posed by private interests, but have themselves been a source (often the primary source) of those threats.56

(No 64); the Penal Sanctions (Indigenous Workers) Convention, 1939 (No 65); and the Forced Labour (Regulation) Recommendation, 1930 (No 36). 50 See, eg, the first element of the Decent Work Agenda as articulated in the International Labour Organization, ‘Declaration on Social Justice for a Fair Globalization’ (International Labour Conference, 96th Session, 2008), para A(i). For an historical perspective, see Benanav, above n 35. 51 Maupain, above n 30, ch 5. 52 See text to nn 60–67 below. 53 Maupain, above n 30, 95–100. 54 A Trebilcock, ‘Transnational Socio-Economic Rights: Interlinkages in the Context of the Right to Food’ in A Fischer-Lescano and K Möller (eds), Transnationalisation of Social Rights (Cambridge, Intersentia, 2016) 187–98. Approximately 72 out 160 in-force Conventions apply to subsistence work (author’s calculations). 55 Social Protection Floors Recommendation, 2012 (No 202), arts 4–6; Minimum Standards of Social Security Convention, 1952 (No 102) arts 9(c), 15(c), 27(c). 56 Convention 169, Pt II.

Subsistence and Social Justice  345 Recommendation 132 makes clear that, in a context where subsistence work is done without title, formal right, or guaranteed access to land, ‘effective recognition of the right to collective bargaining’ may require empowering associations of workers to bargain with those who have ultimate control of the land.57

V. Counting Beyond existing standards, constructive thinking about social justice for subsistence workers requires hearing their voices.58 Obstacles to effective voice are linked to challenges of visibility. One of the great lessons of research on global governance over the last two decades is that what counts politically turns on what gets counted and how.59 Sadly, as discussed above, official statistics tend to neglect subsistence work and that is at least partially attributable to often-overlooked ILO standards. Elaborating global standards for the collection of statistics about work and workers is the wheelhouse of the International Conference of Labour Statisticians (ICLS), which operates under ILO auspices.60 Between 1954 and 1982, the keystone of ICLS standards was the ‘labour force’, a measure that encompassed only those performing or seeking work for a wage (‘employment’) or profit (‘self-employment’) and excluded subsistence work entirely.61 In 1982, the ICLS adopted a more expansive definition of employment and thus a wider scope for the labour force, that encompassed both market-based work and own-use goods production.62 It is unclear though that any country ever collected data using this more expansive definition.63 Current ILOSTAT estimates, discussed above, are based on the 2013 Resolution on Statistics of Work, which replaced the 1982 standards.64 Promisingly, the 2013 Resolution includes extensive guidance for consistent enumeration of persons engaged in ‘own-use production work’, including production of all goods and services for direct household use.65 The ILO has celebrated its construction of statistical standards capable of quantifying all

57 Recommendation 132, arts 7, 12–13. 58 Ideally, the future of labour law would ‘create [] space for historically marginalised actors to conceive and construct alternative regulatory frameworks, or a new, emancipatory common sense’. Blackett, ‘Decolonizing’ above n 44, 89. 59 GC Bowker, Sorting Things Out: Classification and Its Consequences (Cambridge, MIT Press, 1999); KE Davis, A Fisher, B Kingsbury and SE Merry (eds), Governance by Indicators: Global Power Through Quantification and Rankings (Oxford, Oxford University Press, 2012). 60 For a description of the ICLS, its working methods and its relation to the ILO, see Standing Orders of the International Conferences of Labour Statisticians, 281st Session of the ILO Governing Body (1981). 61 International Labour Organization, ‘Resolution Concerning Statistics of the Labour Force, Employment and Unemployment’, Eighth International Conference of Labour Statistics, Report of the Conference (International Labour Organization, 1954) paras 4, 6(1)(a). 62 International Labour Organization, ‘1982 Resolution on Economically Active Population’ above n 17, para 9(1), 9(6). 63 An ILOSTAT search for ‘own-use’ only lists national data which exclude own-use production. See International Labour Organization, ‘Catalogue of National Data Sources’. Available at: ilostat.ilo.org/data/ national-sources-catalogue/. 64 International Labour Organization, ‘2013 Resolution on Statistics of Work’ above n 14. 65 ibid, paras 22–26.

346  Liam McHugh-Russell forms of work.66 Nonetheless, the new standards return to a definition of ‘employment’, ‘job’ and ‘labour force’ that excludes non-market work of all kinds.67 Although ICLS guidelines are not ‘international labour standards’ in the conventional sense, they influence how work is accounted for and whose work counts in national statistical practices. They are also given the force of law by the Labour Statistics Convention, 1988 (No 160), which requires ratifying members to collect and send the ILO statistical information based on ICLS standards.68 While Convention 160 urges members to collect statistics ‘representative of the country as a whole’, the emphasis is on ‘the economically active population’, ‘employment’, ‘unemployment’ and ‘visible underemployment’, concepts which, as noted above, have seldom been interpreted to include non-market work or workers.69 The last 40 years have shown that changes at the margins of ICLS standards are not enough to get countries to count work beyond the market. If the case were more strongly made about the importance of subsistence production in the entire economic system; if, more generally, the relevant standards made household production more than an afterthought, then the ILO might help to make more work and workers visible. Allowing those workers to participate in crafting those standards might at once support and exemplify the political voice they deserve.

VI. Conclusion Two closing thoughts about goals and concepts. First on the discourse of ‘informality’. As it was originally used, drawing on Lewis’s analyses, ‘informality’ was intended to capture the fraught interactions between labour market governance and actual practices of work in the transition from subsistence to capitalist production.70 Yet, in the intervening years, the concept’s linkages with labour commodification seem to have been swamped by more general concerns about mismatches between regulatory agendas and institutional forms. While ‘informality’ draws attention to work that departs from hegemonic forms, it always risks flattening socio-legal realities.71 And, as embodied in the Transition from the Informal to the Formal Economy Recommendation, 2015 (No 204), informality seems to function within the ILO as accessory to a model of development and its relationship to work centred on, albeit not limited to, (waged) employment.72 Employment has been a self-evident organising trope for advocacy to place work at the centre of policies to facilitate, as put in the

66 ibid, paras 1, 6–7. See especially International Labour Organization, ‘Measuring work in official statistics: The new international standards’ (25 August 2016). Available at: www.youtube.com/watch?v=o8-d7ZqQs94. 67 International Labour Organization, ‘2013 Resolution on Statistics of Work’ above n 14, paras 12(b), 15, 27–28. 68 Convention 160, arts 1, 2, 5. 69 Ibid, arts 7–13. On ‘visible underemployment’ see Benanav, above n 35, 111–13. 70 J Harris and MP Todaro, ‘Migration, Unemployment and Development: A Two-Sector Analysis’ (1970) 60 American Economic Review 126; K Hart, ‘Informal Income Opportunities and Urban Employment in Ghana’ (1973) 11 Journal of Modern African Studies 61. 71 L McHugh-Russell, ‘Labour Law, Development and the Uses of Informality’ in D Ashiagbor (ed), Re-Imagining Labour Law for Development: Informal Work in the Global North and South (Oxford, Hart Publishing, 2019); A Blackett, Everyday Transgressions: Domestic Workers’ Transnational Challenge to International Labor Law (Ithaca, Cornell University Press, 2019) ch 2. 72 Cf Alessandrini et al., above n 3; Benanav, above n 35. There are countervailing trends. See n 19 above.

Subsistence and Social Justice  347 Declaration of Philadelphia, ‘material well-being and spiritual development … economic security and equal opportunity’.73 However, as we imagine work in the ILO’s second century, it is crucial to be attentive to other modes of production, other ways of life and other forms of law through which decent work might be realised.74 Second, as we do our imagining, ‘subsistence’ may prove an unhelpful category. Lewis was hardly alone in associating economic life beyond the market with indolence, stagnation and privation; viz Marx’s remark that capitalism had ‘rescued a considerable part of the population from the idiocy of rural life’ or Angela Davis’ claim that only paid work can free women from the ‘invisible, repetitive, exhausting, unproductive, uncreative … nature of housework’.75 Yet in seeking to grasp the work done and the value created in the ‘household workplace’ – and in the communal relations that transcend it – we should avoid tropes and schema that presume there is neither work nor value to be found.76

73 Maupain, above n 30, 86–88. See also Ewing and Hendy, Chapter 6 in this volume. 74 A Mills, ‘The Lifeworlds of Law: On Revitalizing Indigenous Legal Orders Today’ (2016) 61 McGill Law Journal 847. 75 K Marx and F Engels, Manifesto of the Communist Party (originally published 1848, tr Samuel Moore Cosimo, 2009); A Davis, Women, Race & Class (New York, Vintage Books, 1983) ch 13. 76 S Federici, Caliban and the Witch: Women, the Body and Primitive Accumulation (2nd edn, New York, Autonomedia, 2014); Blackett, ‘Transgressions’ above n 71; Wobbe and Renard, above n 9.

348

31 Social Justice for an Ongoing Theoretical Reconfiguration of Labour Law ADRIÁN GOLDIN

I.  From the Inadequate Inclusiveness of the Idea of Labour Subordination to the Subjective Weakening of Labour Law Any possible future for labour law’s contribution to social justice is deeply tied to labour law’s own normative self-definition and self-understanding. Labour law has been struggling with this internal problem and this chapter aims to advance further the cause that the unavoidable reconfiguration of labour law confirms its full insertion in the field of social justice. Let’s take a look at that process. Built around the dominant idea of ‘labour subordination’, the legal regime of labour protection responded to the uniqueness of the category being protected (in other words, to its own normative attribution) by means of a correlative logic of regulatory uniqueness. In other words, if there is a unique category of protected subjects – those who are party to a contract of employment – all of them should share a unique protection regime.1 This sole normative centre of imputation had been conceived as a logical counterpart of a dominant contractual type2 within which the process of categorising the relationship was simple, evident and almost intuitive; in most cases, the formulation of a logical, volitive and complex operation3 using indicia was therefore not required. The idea of dependence or subordination acted in that context as a qualifying criterion; its presence defined the existence of an employment contract, and its absence excluded it.

1 As in many other countries, in Argentina there were (and still are) some special regimes that govern workers in certain particular professional sectors (just by way of example in Argentine law, among several others, those of construction workers, professional journalists, farm workers, domestic workers, janitors, etc.). But their existence did not alter the dominance of labour subordination as the main and virtually the only generic labour term with very broad scope. 2 See A Montoya Melgar, ‘The Future of Subordination in the Evolution of Labour Law’ (‘El futuro de la subordinación en la evolución del Derecho del Trabajo’) in Le transformazioni del lavoro. La crisi della subordinazione e l’avvento de nuove forme di lavoro (Rome, Fondazione Giulio Pastore, Diritto e politiche del lavoro – 1 Franco Angeli, 1999). 3 ibid.

350  Adrián Goldin Today it could be said that, due to the profound transformations occasioned by progress, that simple, evident and almost intuitive approach is losing its historical prevalence; the exploration of the frontiers of the employment relationship becomes more and more common, and the technique of referring to a set of indicia unveils – on account of its increasing use – its congenital weakness. Along with other phenomena that cannot be considered here in a more detailed way, the boundaries between self-employment and the contract of employment are blurred, causing what could be called an inadequate inclusiveness of labour subordination and, therefore, of the contract of employment. That inadequate inclusiveness of the idea of labour subordination has contributed significantly to the production of a certain subjective weakening of labour law,4 a process that, I have argued, was also the result of other phenomena that have converged in its production. Among them: high levels of unemployment, the growing incidence of informality, processes of vertical disintegration of companies and decentralisation of the methods of organising production, fraud and other ways of escaping labour law’s reach (the so called ‘flight from labour law’)5 and legislative policies that consider certain subordinated labour relationships as if they were not such. In addition, ambiguous relations, ie those which – even when showing strong economic worker’s subjection – do not seem to include the feature of labour subordination. In short, a loss of personal scope of the social law. In this framework, the borders between employment and self-employment are blurred, provoking some incertitude about the inclusion of non-dependent workers in the system of protection. In addition, the question arises as to the validity of persisting in an historical equation that recognises only these two conditions – contract of employment/self-employment – as terminal points of the taxonomic scheme conceived in this way.6 Formulating the question in another way, is it about the pertinence of maintaining that binary scheme as a determinative point of reference to establish access to or exclusion from the legal regime of labour protection or, on the contrary, to redesign it to include (or exclude) other people who work in the subjective scope of that regime? In fact, it is this unresolved dilemma that encourages the creation of third categories – protected or not – assimilable to one or another of the terms of that equation; in view of this mode of conception, these additional categories unavoidably respond to that binary scheme that is today in a kind of fluid state or at least strongly questioned.

4 Described in my ‘Labour Subordination and the Subjective Weakening of Labor Law’ in G Davidov and B Langille (eds), Boundaries and Frontiers of Labor Law (Oxford, Hart Publishing, 2006) 109–31. 5 Along the same lines, see M Rodriguez Piñero (1992), ‘La huida del Derecho del Trabajo’, Relaciones laborales: Revista crítica de teoría y práctica, ISSN 0213-0556, 85; M Freedland and N Kountouris, The Legal Construction of Personal Work Relations (Oxford, Oxford University Press, 2011), in which the authors refer to the ‘flight from labor law … lamented by several of our continental European colleagues …,’ mentioning, in particular, the Italian notion of ‘fuga dal diritto del lavoro’ in P Ichino (1990), ‘La fuga dal diritto del lavoro,’ Democrazia e diritto, 1990–69 and F. Liso (1992) ‘La fuga dal diritto del lavoro’ in Industria e sindacato, 1992, n 28, pp 1–9. See also B Hepple and B Veneziani, The Transformation of Labor Law in Europe: A Comparative Study of 15 Countries: 1945–2004 (Oxford, Hart Publishing, 2009). 6 By the way, the response to the challenge of facts is far from being unanimous. In some countries, such as Italy and Germany, the strategy has consisted in tracing the contours of some groups of autonomous workers who work under unequal contractual conditions and making them subject to protective legislation (the para-subordinate worker in Italy and the quasi-employee in German legislation). However, such a movement, which was started some decades ago, still did not acknowledge the most recent ‘inadequate inclusiveness’ of the legal-personal aspect of subordination but it did acknowledge dissatisfaction with the dichotomic criterion – contract of employment/

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II.  Seeking a Wider Centre of Imputation for Labour Law In view of this process, it is worth asking whether there is in the system – or will it be necessary to conceive – another type of logic different from that applying the equation of contract of ‘employment/self-employment’ to determine who will be included in the labour protection regime. Is it still subordination (or its absence) that defines entry into that system or is there a different mode of access in process? I favour the hypothesis that the system is leaning towards making possible the inclusion of all people who work and who are ‘in need of protection,’ in order to assign to each category the level of protection that is adequate and relevant in terms of constitutional and legal values and principles.7 This process of inclusion would not imply – as it has until now – an extensive inference based in the binary scheme of subordination and autonomy, but rather access to the system of protection for those particular categories that are considered ‘in need of protection’ by means of a special statute in each case. This would make it possible to avoid a certain overuse of the employment contract, as criticised in the literature.8 Such overuse has implied a stretching and distortion of that concept to enable inclusion in the system of protection some categories for which this framework is not adequate. In the follow-up to this process, it does not seem necessary to question the persistence of the historical binary distinction, since it seems pertinent to continue making use of it where reality itself justifies this, but to not apply it where that distinction fails to explain certain connections to work. What looks necessary to admit, on the other hand, is that the binary distinction is no longer self-sufficient to discern the scope of the labour protection system.

A.  The Hypothesis of the Segmentation and Pluralisation of the Legal Regime Within such a framework, another possible response to this dilemma could recognise early warning signs in the cases of certain professional categories that are the object of – or require – specific protection legislation because, although they do not clearly meet the functional-legal condition of subordination, they do evidence, from an economic perspective, a clear situation of subjection and a consequent need of protection.9

self-employment – which had arisen over time, and which left certain situations that had always included contractual inequality without protection (cf M Grandi (1999), ‘El problema della subordinazione tra attualita e storia’ in Le transformazioni del lavoro, above n 2, 11). 7 As Freedland points out; M Freedland, ‘Application of labour and employment law beyond the contract of employment’ (2007) 146(1–2) International Labour Review 3–20). It should, however, be stressed that the category of personal work contracts, albeit significantly larger than that of the contract of employment, is nevertheless still confined to contracts wholly or primarily for performance by the worker by himself or herself. 8 ‘Over used in the sense that some of the rights that currently apply only to employees should be enjoyed by broader groups’ (see G Davidov, ‘The Reports of My Death are Greatly Exaggerated: ‘Employee’ as a Viable (Though Over-used) Legal Concept’ in Davidov et al (eds), above, n 4, 133–52, 136. 9 In Argentina, this is the case of fruit and vineyard contractors and intermediaries and workshop leaders under the law on home work. In France, as set out in Book VII of the Labour Code, this would be the case for certain at home workers, itinerant workers, agents and park keepers (VRP), reporters, artists and models, child care assistants, branch managers, etc (G Lyon-Caen, Le droit du travail non salarié (Paris, Sirey, 1990) 42).

352  Adrián Goldin According to this hypothesis, the already mentioned segmentation of the dominant type, the growing heterogeneity of work processes, and their de-standardisation and correlative fragmentation of the traditional categories10 have produced a generalised assignation of differentiated protection regimes – also breaking the logic of a sole regime as historically corresponded to that dominant type.11 It is thus probable that the construction of broader centres of imputation for labour legislation will materialise ‘ex post’ by means of regrouping the categories resulting from such fragmentation on account of common needs and the availability of resources for protection. The definition of some new categories – with new centres of imputation of labour law – would, in that case, be the complex expression of those simultaneous trends of diversification and convergence. That said, the modern phenomenon of human labour tends to show that it is no longer possible to include in the contract of employment – dominant up to now – all those who work and are therefore ‘in need of protection’. Nor, at least for the moment, is another category correlatively wide to enable them all to be recipients of a new broadly comprehensive protection regime. I perceive closer to facts the hypothesis that a certain segmentation or pluralisation of protection is taking place, a kind of crumbling of the historical regulatory uniqueness articulated around the idea of subordination or dependence and of its legal regime. And that in this contemporary haul, the system is looking for a new configuration by incorporating different categories, each of which claims its own protection regime. This is what seems to be happening with the so-called ‘renaissance of self-employment’12 (including not only the economically dependent self-employed), in the case of teleworkers

10 A Baylos, ‘Igualdad, uniformidad y diferencia en el derecho del trabajo’ (1998) Revista de Derecho Social, no 1, 11–38. 11 The fragmentation of protection legislation, which used to be considered a pathological phenomenon, should now be seen as a natural phenomenon and even as a condition to enable the integration of situations which were previously difficult to incorporate (J Cruz Villalón, ‘El proceso evolutivo de delimitación del trabajo subordinado’ in Trabajo subordinado y trabajo autónomo en la delimitación de las fronteras del derecho del trabajo, Estudios en Homenaje al Profesor José Cabrera Bazán (Madrid, Ed. Tecnos y Junta de Andalucía, 1999). 12 Indeed, this is the case for self-employment which the pandemic revealed as one of the most urgent in ‘need of protection’ and subject to the threatening regime under which if you do not work, you lose your income. Thus, the self-employed who provide personal services without any assistance constitute one of the categories – certainly, not the least important – that are in need of protection, so they could also require a special regime. See, inter alia, D Boegenhold and U Fachinger (2007), Renaissance of self-employment – Renaissance of Entrepreneurship? Some remarks and empirical evidence for Germany, Working Paper of the Centre for Social Policy Research, No 2 (February 2007). See also W Conen and J Schippers (eds) Self-Employment as Precarious Work: A European Perspective (Cheltenham, Edward Elgar, 2019). In the latter, the contributors consider the way in which the longterm decline in self-employment since the 1970s has slowed and even reversed in some countries, emerging as a manifestation of precarious work. It is then about work ‘in need of protection’ and no longer directly classifiable in the terms of the standard of labour subordination. See also N Countouris, V De Stefano, K Ewing and M Freedland, ‘Covid-19 crisis makes clear a new concept of “worker” is overdue’ (2020) Social Europe, 9 April 2020. Available at: www.socialeurope.eu/covid-19-crisis-makes-clear-a-new-concept-of-worker-is-overdue. From the perspective of these authors, ‘this new definition must include not only traditional employees but also all those self-employed who do not make up “companies” (they do not employ personnel and do not account for a substantial amount of assets to carry out what is clearly personal). It is time that all labour and social security rights apply to every worker who provides jobs or services in a predominantly personal way and does not do so by actually operating a commercial enterprise on their own account’. It is precisely the facts that are being faced today that allow us to see the opening of a ‘direction’ in which the protection system could go to incorporate a regime for the self-employed, with the singularity that the trend of segmentation enables their entry into the labour protection system, now not undermined as a kind of ‘dependent workers by ascription’ – and in fact less protected – but rather with each of them in a category that takes into account their own condition.

Social Justice for an Ongoing Theoretical Reconfiguration of Labour Law  353 or, more broadly, ‘remote’ workers, and the wide variety of platform workers. In call centretype activities, even from the workers’ homes, various ‘third categories’ have already been identified, with others to come.

B.  A New Regime Morphology and a New Expansive Trend of Labour Law This pluralisation or segmentation of labour protection would entail the incorporation into the protection system of new legal regimes that would, in many cases, be different from the traditional sectorial statutes that complemented the once virtually exclusive regime of the contract of employment. Indeed, most of these new regimes belong to a new regime morphology, acknowledging the mediation of communication technologies, forms of information processing, modes of recruitment or of work provision. That traditional regime of regulatory uniqueness tends to be replaced by a scheme of segmentation or plurality of protection regimes, one of which, of course, continues to be the historical regime of the contract of employment. The latter should still be developed and update its criteria for inclusion since, as seems obvious to me, the debate on the content and scope of the notion of labour subordination has not yet concluded in any way. As previously stated, the traditional binary distinction will remain in force where it is still useful and not where it no longer does, even if each of its terms – employment contract/self-employment – were included in the legal protection system, subjecting each of them to a different regulatory scheme. It is no longer obvious that the traditional binary equation – contract of employment/ self-employment – is still sufficient to define incorporation in or exclusion from the system of protection. Although for a long time only subordinated workers were of concern to labour law – there were others but the scope of the contract of employment was sufficiently wide and expansive and it addressed the most pressing social requirements – today that category seems to be contracting, while various manifestations of segmentation and pluralisation of the protection regimes ensue. Without going back to the etiology of these phenomena,13 from a more elemental perspective it is necessary to establish whether these approaches imply relevant changes in the basic idea of labour law. If at the level of personal work, there is an increase in the inequality of the parties, the technical instruments of protection should be expanded correlatively and the necessary ones added to give appropriate responses. Hence the eventual need to replace the historical formula of ‘work + personal subordination’ by a broader one whose terms could be ‘personal work + contractual inequality’. But the latter would be an external and conceptual formula that would not serve – at least for the moment – to attribute a generic protection regime, but would just explain and provide a basis in each case for the construction of a specific protection regime for each result reached using that formula. This would therefore be a factor in legislative development and not one of direct inclusion in a pre-existing regime such as the contract of employment. New and special regimes would, among other characteristics, accentuate the specific singularities of

13 See

Goldin, above, n 4.

354  Adrián Goldin categories and, in that framework, liberate the worker (eg, platform ­workers14) from the need to judicially claim her inclusion in one of the generalised statutes of protection (currently, that of the contract of employment). Thus, if – as expected – the process of heterogenisation and ‘de-standardisation’ of the labour protection system deepens, it is highly probable that there will be a correlative confirmation of the breakdown of that system of regulatory uniqueness. In this context, mutually unassimilable categories would correlatively require different protection regimes.

C.  Therefore, a New, Expansive Trend in Labour Law If a process like the one just described were underway and implied the relaxation of the limits that the idea of labour subordination imposes for the determination of the subjective scope of labour law, we would be in the presence of a new, expansive trend in labour law. This legal regime – contrary to the contraction resulting from the inadequate inclusiveness of subordination – would not lose anything that it already has. Indeed, the traditional contract of employment would still be present, but the system of protection would incorporate new categories, most of them regulated by their respective regime or legal regulation. In that framework, the already established question of defining the scope of the contract of employment would still constitute a valid one, but would now be located within a broader one: that of a system of protection that reaches other categories beyond the contract of employment in its historical formulation. In this way, labour law, although it would not dispense with the concept of labour subordination as an inclusive factor (it is this category that until now defined inclusion in the protection system), it would be getting rid of it as a determinant of exclusion (the absence of dependency excluded a worker from the system). Labour subordination would make up one of the categories and would no longer be the only or the central defining indicator for inclusion into the system of protection. The latter, until now corseted in the concept of labour dependency, does not seem to renounce subordination, but neither does it any longer accept being confined to that characterisation. Other regimes already are and will also be a part of such a system of protection even if they do not include the link of subordination. It seems to me that this kind of ongoing reconfiguration of the legal regime of protection is developing as an autopoietic phenomenon.15 In it, the system seeks its own redesign by itself, regardless of any ‘creative voluntarism’. This assessment is based on the idea that just as no one programmed the theoretical construction of the concept of the contract of employment, no one will be able to define ‘ex ante’ the categories that tend to replace it.

14 Often, the legal claim is not the appropriate answer: litigation is time consuming and too expensive. Individual situations, which are resolved on a case-by-case basis, are an imperfect vehicle for addressing broader considerations of distribution and social equity and often result in mere formal changes in contractual arrangements rather than concrete progress in the legal situation of workers (see A Goldin, ‘Los Trabajadores de Plataforma y su regulación en Argentina’ (‘Platform workers and their regulation in Argentina’), LC/TS.2020/44 (United Nations/ CEPAL (ECLAC), June 2020). 15 ‘Autopoiesis’ is a neologism that designates the quality of a system capable of reproducing and maintaining itself.

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III.  A Plurality of Regimes Complemented by a Set of Common Standards We would then be facing a segmented and pluralised protection scheme made up of a series of special statutes. It will be probably accompanied by a set of common rules that could be at least – and I mention them just as examples – those of the Decent Work Agenda of the ILO Centenary Declaration16 or the Universal Labour Guarantee proposed in the report of the Global Commission for the Future of Work.17 Thus, together with that plurality of protected categories included in the legal protection system – for Freedland and Kountouris, a family of contracts18 – we would find a set of common rules in a construction that looks analogous to that in which commercial law has been conceived. Therefore, in the terms proposed by those documents, that set of common rules would include at least the protection of the fundamental rights of workers included in the ILO Declaration on Fundamental Principles and Rights at Work, adopted in 1998,19 an ‘adequate living wage’ and maximum limits on working hours. Also, the guarantee of safety and health at work whose recognition as one of the fundamental rights at work is already under active discussion.20 Collective agreements or domestic legislation can add to this common labour protection floor. All of this, together with the very personal rights of people at work,21 the latter a product of jurisprudence and also of legislation definitively incorporated into the legal system (just to illustrate this concept, let me mention the right to one’s own image, the rights to intimacy and privacy, freedom of choice of sexual orientation, freedom of expression and opinion, ideological and religious freedom, among many others).

IV.  Additionally, Universal Social Protection Unrelated to the Occupational Situation Meanwhile, the aforementioned phenomena of contractual de-standardisation, of the inadequate inclusiveness of the contract of employment and of the subjective weakening of labour law, 16 See www.ilo.org/global/about-the-ilo/mission-and-objectives/centenary-declaration/lang--en/index.htm. 17 See www.ilo.org/global/publications/books/WCMS_662410/lang--en/index.htm. 18 See M Freedland and N Countouris, The Legal Construction of Personal Work Relations (Oxford, Oxford University Press, 2012). 19 ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up. Available at: www.ilo.org/ declaration/thedeclaration/textdeclaration/lang--en/index.htm. 20 A resolution adopted alongside the ILO Centenary Declaration for the Future of Work (2019) (above, n 16) requested the Governing Body ‘to consider, as soon as possible, proposals for including safe and healthy working conditions in the ILO’s framework of fundamental principles and rights at work,’ in the same way as for the eight fundamental ILO Conventions. The item was placed on the agenda of the 110th session of the International Labour Conference (ILC), which on 10 June 2022 adopted a resolution amending the 1998 ILO Declaration on Fundamental Principles and Rights at Work to add the principle of a safe and healthy working environment. The new fundamental Conventions are the Occupational Safety and Health Convention, 1981 (No. 155) and the Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187). 21 I have examined the reflection of these very personal rights of people at work in Argentina, ‘Droits fondamentaux de la personne et relations du travail en Argentine’ in P Auvergnon (ed), Libertés individuelles et relations de travail: le possible, le permis et l’interdit (Bordeaux, Bordeaux University Press, 2011).

356  Adrián Goldin together with the so widespread preference of employers for self-employment and also the introduction of disruptive technologies, are highly incidental factors in the growing difficulty for the financing of contributory social protection systems. The tax base is eroded as the formal labour force declines, and expenditure for pensions and care services – a product of the aging population – increases. For this reason, the need arises to conceive, together with the traditional contributory system of social security of a clearly occupational nature, a component of the social coverage system unrelated to the increasingly elusive occupational situation. In the latter, the contributory resources of the traditional system, which should be preserved as much as possible, will have to be integrated with resources that will no longer be able to depend – at least, not centrally – on the occupational situation of the beneficiaries. In this way, as proposed in the ILO Centenary Declaration, labour protection regimes should be accompanied by a ‘complete and … universal’ social protection system and a system for covering transitions. According to the latter, that coverage would not only simultaneously reach everyone who needs it, but also, from a diachronic perspective, each one of them all of the time. In this case, the problem is to ensure the continuity of protection during the gaps between paid employment – or as we would now say, paid occupation – and in other situations in the subject’s life. In other words, it is about how to fill the interstices of need.22

V.  A Labour-specific Sense of Social Justice As suggested in the opening lines of this chapter, if this transformation – this ­segmentation and pluralisation of the labour protection system – were under way, the realisation of the principle of social justice should also be sought within the framework of this scheme. If you change the way you regulate work, you will inevitably have to mutate the idea of social justice in its connection with work. The broadening of social justice beyond waged employment is thus necessary, and it is already underway in the concept itself of ‘Decent Work’. This idea – proposed by the ILO since the turn of the century23 – refers to ‘work that is productive and delivers a fair income, security in the workplace and social protection for families, better prospects for personal development and social integration, freedom for people to express their concerns, organise and participate in the decisions that affect their lives and equality of opportunity and treatment for all women and men’. It is clearly a more conceptual and less casuistic formulation (in terms of rights) of social justice, which is not only linked to wage earners but to all the people who work and all the enterprises in which they do so.24 From that perspective, 22 Alain Supiot argues that the rights of people at work should extend to all forms of personal activity in the service of another, forms that could take place in the lives of any of them. This includes, as an example, volunteer work that, in the author’s opinion, is essential for the survival of society (such as work within the family for the reproduction of the labour force). To the extent that the occupation is useful for society, it would be appropriate to assign it a set of social rights and a protection status (from his introduction to ‘Le Travail in perspective,’ Paris, LGDJ, 1998, 1). See Rittich, Chapter 4 in this volume. 23 See ILO, Decent Work, Report of the Director-General, International Labour Conference, 87th Session, (Geneva, ILO, 1999). Available at: www.ilo.org/global/topics/decent-work/lang--en/index.htm. 24 ILO, Declaration on Social Justice for a Fair Globalization, adopted by the International Labour Conference, Article I.A (Geneva, ILO, 2008), 11.

Social Justice for an Ongoing Theoretical Reconfiguration of Labour Law  357 promoting social justice means not only increasing income and creating jobs; it is also a question of rights, dignity and freedom of expression of workers, as well as of economic, social and political autonomy.25 In this way, it is the standard of Decent Work that is reached when its protection regime is not limited to work and its conditions, but allows for the connection with other values in life. Therefore, it is not enough to ensure the policies, activities and institutions directly linked to labour markets. On the contrary, it is necessary that at the global and national levels the convergence of policies is reinforced in a whole range of spheres that have an impact on production, enterprises and workers, that is, at the social, financial, tax and economic levels. In short, it could be said that the idea of Decent Work is the modern labour expression of social justice, which is explicitly enriched by other components. In the trend towards expanding the subjective scope of the system of protection, overcoming the restricted framework of dependency is, therefore, only one of the axes of the process of extension.

25 A broad concept of social justice, not only as a proper exchange of quantities (of work for wages) but also of adequate access to work, and of a fair recognition of people, already contained in the Preamble of the ILO Constitution and in the Declaration of Philadelphia, requires truly humane working conditions. It is about the fair recognition of people focused on the dichotomy between having and being so that they have the satisfaction of giving the full measure of their abilities and making the greatest contribution to the common good, which facilitates the possibility of development for individuals, personal and social integration, freedom to express their concerns, organise themselves and participate in decisions that affect their lives (see A Supiot, ‘What International Social Justice in the Twenty-first Century?’ Keynote address to the XXI World Congress of the International Society for Labour and Social Security Law, Cape Town, 12–15 September 2015).

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PUBLICATIONS OF FRANCIS MAUPAIN Articles, Book Chapters and Books ‘A second century for what? The ILO at a regulatory crossroad’17:1 International Organizations Law Review (2020) 291–343, and in vol 16 (2019) 1–53, doi.org/10.1163/15723747-2019009. ‘Entre marginalisation et reinvention: l’OIT et son action normative face à la mondialisation et à la remise en cause du multilatéralisme’ in G Politakis, T Kohiyama and T Lieby (eds), ILO100: Law for Social Justice (Geneva, ILO, 2019) 981–1006. ‘Résilience et raison d’être: Quel avenir pour l’OIT et sa function de regulation de l’économie globale’ in P Musso and A Supiot (eds) Qu’est-ce qu’un regime de travail réellement humain? (Paris, Éditions Hermann 2018) 433–60, doi.org/10.3917/herm.musso.2018.01.0433. ‘ILO Normative Action in its Second Century: Escaping the Double Bind?’ in A Blackett and A Trebilcock (eds), Research Handbook on Transnational Labour Law (Cheltenham, Edward Elgar, 2015) 301–15, doi.org/10.4337/9781782549796. ‘Revisiting the Future’ 154:1 International Labour Review (2015) 103–14, doi.org/10.1111/ j.1564-913X.2015.00233.x (also available in French (original) and Spanish). ‘L’OIT à l’épreuve de la monidalisation financière: Peut-on réguler sans contraindre?’ COMPTRASEC Working Paper WPS/2015/13. Available at: https://comptrasec.u-bordeaux. fr/201513-francis-maupain-l-oit-l-preuve-de-la-mondialisation-financi-re-peut-r-gulersans-contraindre. ‘The ILO Regular Supervisory System: A Model in Crisis?’ 10:1 International Organizations Law Review (2013) 117–65. The Future of the International Labour Organization in the Global Economy (Oxford, Hart, 2013). L’OIT à l’épreuve de la mondialisation financière: Peut-on réguler sans contraindre? (OIT/ Institut international des études sociales, 2012), 311. Available at: http://ilo.org/wcmsp5/ groups/public/---dgreports/---dcomm/---publ/documents/publication/wcms_192404.pdf. ‘Une Rolls Royce en mal de révision. L’efficacité du système de supervision de l’OIT à l’approche de son centenaire’ 114:3 Revue générale de droit international public (2010) 465–99. ‘Renforcer l’engagement solidaire des Etats en mobilisant la responsabilité sociale des consommateurs hors frontières par un label “travail décent”‘’ in I Daugareilh (ed), La responsabilité sociale de l’entreprise transnationale et la globalisation de l’économie (Brussels, Bruylant, 2010) 615–32.

360  Publications of Francis Maupain ‘Introduction au colloque’ Colloque La France et l’OIT: 90 ans d’histoire commune (Paris, BIT, 2009) 13–20. ‘New Foundation or New Façade? The ILO and the 2008 Declaration on Social Justice for a Fair Globalization’ 20:3 European Journal of International Law (2009) 823–52, doi:10.1093/ ejil/chp070. ‘Nouvelle foundation ou nouvelle façade? La déclaration de l’OIT sur la justice sociale pour une mondialisation equitable’ Droit fondamentaux (Jan 2008–Dec 2009) and European University Institute Working Paper 2009/14. Available at: http:/hdl.handle.net/1814/12975. ‘Is the ILO Effective in Upholding Workers’ Rights? Reflections on the Myanmar Experience’ in P Alston (ed), Labour Rights as Human Rights (Oxford, Oxford University Press, 2005) 85–142. ‘La “valeur ajoutée” de la Déclaration relative aux principes et droits fondamentaux au travail pour la cohérence et l’efficacité de l’action normative de l’OIT’ in I Daugareilh (ed), Mondialisation, travail et droits fondamentaux (Brussels, Bruylant, and Paris, LGDJ, 2005) 1–56. ‘Revitalization Not Retreat: The Real Potential of the 1998 ILO Declaration for the Universal Protection of Workers’ Rights’ 16:3 European Journal of International Law (2005) 439–65, doi:10.1093/ejil/chi125. ‘Persuasion et contrainte aux fins de la mise en oeuvre des normes et objectifs de l’OIT’ in Jean-Claude Javillier and Bernard Gernigon (eds), Les normes internationales du travail – un patrimoine pour l’avenir: Mélanges en l’honneur de Nicolas Valticos (2004) 687–700. Available at: www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/ publication/wcms_087423.pdf. ‘Mondialisation de l’économie et universalité de la protection des droits des travailleurs’ in Institut René Cassin (ed), Commerce mondial et protection des droits de l’homme: les droits de l’ homme à l’épreuve de la globalisation des échanges économiques (Bruylant, Brussels, 2001) 111–50. ‘Le renouveau du débat normatif à l’OIT de la fin de la guerre froide à la mondialisation’ Bulletin de droit comparé du travail et de la sécurité sociale (2001) 3–27. Available at: https:// comptrasec.u-bordeaux.fr/sites/default/files/revue_free_pdf/2001-RDCTSS.pdf. ‘The liberalization of international trade and the universal recognition of workers’ fundamental rights: The new ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up’ in L-A Sicilianos and M Gavouneli (eds), Scientific and Technological Development and Human Rights (Ant N Sakkoulas Publishers, Athens, 2001) 35–48. ‘Libéralisation du commerce international et protection universelle des normes fondamentales du travail, in Actes et débats de colloque, L’Organisation Mondiale du Commerce: Vers un droit Mondial du commerce? Lyon (Brussels, Bruylant, 2001). ‘L’OIT, la justice sociale et la mondialisation’ 209 Recueil des cours de l’Académie internationale de la Haye (Hague Academy of International Law, The Hague, 1999) 201–396.

Publications of Francis Maupain  361 ‘International Labour Organization Recommendations and Similar Instruments’ in Dinah Shelton (ed), Commitment and Compliance. The Role of Non-Binding Norms in the International Legal System (Oxford University Press, Oxford, 2000) 372–93. ’‘L’OIT devant le défi de la mondialisation – de la réglamentation à la regulation internationale du travail ?’ in P de Senarclens (ed), Maîtriser la mondialisation: La regulation sociale internationale (Presses de Sciences Po, Paris, 2000) 147–91. ‘The ILO’s Standard-setting Action: International Legislation or Treaty Law’ in V GowllandDebbas, H Hadj-Sahraoui and N Hayashi (eds), Multilateral Treaty Making (Nijhoff/ Springer, Dordrecht, 2000) 129–35, doi/org/10.1007/978-94-017-6964-8_10. ’‘Gardien du patrimoine ou inventeur juridique? Le rôle du conseiller juridique d’une organisation internationale face au changement’ Receuil d’articles de conseillers juridiques d’Etats, d’organisations internationales et de praticiens du droit international (New York, United Nations, 1999) 259–283. ‘L’interprétation des conventions internationales du travail’ in R.-J. Dupuy (ed), Mélanges en l’honneur de Nicolas Valticos: Droit et justice (Pedone, Paris, 1999) 567–583. ‘L’OIT, la justice et la mondialisation’ 279:3 Receuil des cours de l’Académie de droit international (1999) 201–396. ‘The Settlement of Disputes within the International Labour Organization’ 2:2 Journal of International Economic Law (June 1999) 273–293, doi:10.1093/jiel/2.2.273. ‘Workers’ rights and multilateral trade (before and after Seattle), Vienna Symposium on ‘The WTO after the Seattle Ministerial Conference’ Vienna, 8–9 December 1999. ‘ILO’s role for global rights for workers – also in relation to WTO; ILO’s strategy in this respect’ SiD’s Global Labour Summit, Copenhagen, 1997. ‘Trade and Core Labour Standards’ 44:6 Wirtschaftspolitische Blätter (1997), Federal Economic Chamber of Austria, Vienna, 582–594. ‘Vers une dimension sociale dans la liberalisation des échanges internationaux: la dialectique OMC-OIT’ 12:4 Revue française d’économie (1997) 17–34. ‘Clandestins ou privilègiés? Les fonctionnaires internationaux en poste à Genève et domiciliés en France et la ratification de la convention sur les privilèges et immunités des institutions spécialisées’ 42 Annuaire français de droit international (1996) 635–44. ‘L’Organisation Mondiale du Commerce deux ans après: de la revendication de clauses sociales dans le système commercial multilateral à l’acceptation d’une dimension sociales dans la libéralisation du commerce international’ Revue française d’économie, September 1996. ‘La protection internationale des travailleurs et la liberalisation du commerce mondial: un lien ou un frein?’ 100:1 Revue générale de droit international public (1996) 45–100. ‘Une révolution tranquille dans le droit des traités: l’abrogation des conventions internationales du travail obsolètes’ 42 Annuaire français de droit international (1996) 629–35.

362  Publications of Francis Maupain ‘Circulation des travailleurs et délocalisation des entreprises – L’apport de l’OIT’ in Relations entre économies industrialisées et économies en transition ou en développment, Aspects institutionnels et juridiques (Brussels, Bruylant, 1995). ‘La France et l’action normative de l’OIT’ in L’internationalité dans les institutions et le droit – Convergences et défis, Études offertes à Alain Plantey (Paris, Éditions Pedone, 1995) 161–76. ’‘La succession à l’OIT’ in G Burdeau and B Stern (eds), Dissolution, continuation et succession en Europe de l’Est: succession d’États et relations économiques internationales (Paris, Montchrestien et Cahiers du CEDIN, no 9, 1994). ‘Particularismes institutionnels et vocation universelle: les défis croisés des relations CEE-OIT’ 1 Revue générale de droit international public (janvier–mars 1990) 50–90. ‘Federalism and International Labour Conventions – Some reflections prompted by two anniversaries’ 126:6 International Labour Review (1987) 625–51. Also available in French (original) and Spanish. ‘La réforme de l’Organisation internationale du Travail’ 33 Annuaire français de droit international (1987) 478–95, doi.org/10.3406/afdi.1987.2789. ‘L’élargissement du contrôle judiciaire des modifications unilatérales des conditions d’emploi des fonctionnaires internationaux et la notion des droits acquis’ 51:1 International Review of Administrative Sciences (1985) 33–53, doi.org/10.1177/002085238505100106; and in 60:1 Revue internationale des sciences administratives (1985). ‘Une nouvelle dimension jurisprudentielle du droit de la fonction publique dans la famille des Nations Unies’ 84:3 Revue générale de droit international public (juillet-septembre 1980) 794–825. (with Felice Morgenstern) Responsabilité civile des travailleurs: une étude internationale (BIT, Genève, 1976). (with Felice Morgenstern), International Survey of Civil Liability of Workers (ILO, Geneva, 1976). (with J Lemoine) ‘La défense des intérêts des agents internationaux par les associations du personnel’ (Les agents internationaux – Colloque d’Aix-en-Province, Société française pour le droit international (mai 1984) (Paris, Éditions Pedone, 1985). (with Bruce Jenks)‚ ‘Les activités conjointes des organisations internationales en particulier au sein du système des Nations Unies’ in René-Jean Dupuy (ed), Manuel sur les organisations internationales/A Handbook on International Organizations, 2nd edn (Leiden, Martinus Nijhoff, 1998) 513–28. (with T Kohiyama)‚ ‘L’Organisation internationale du Travail’ Repetoire de droit international Dalloz (1998). (with Marialaura Fino) ‘International Labour Organization’ in T Cottier and KN Schefer (eds) Elgar Encyclopedia of International Economic Law (Cheltenham, Edward Elgar, 2017) 153–55, doi.org/10.4337/9781784713546.83.

Publications of Francis Maupain  363

Book Reviews (Selected) La gouvernance par les nombres: Cours au Collège de France (2012–1014) (by Alain Supiot), 156:2 International Labour Review (2017) 303–06, doi.org/10.1111/ilr.12067 (also available in French (original) and Spanish). L’Entreprise dans un monde sans frontières: Perspectives économiques et juridiques, Alain Supiot (ed), 154:2 International Labour Review (2015) 299–305, doi.org/10.1111/j.1564913X.2015.00242.x (also available in French (original) and Spanish). L’Esprit de Philadelphie (by Alain Supiot) 149:3 International Labour Review (2010) 389–91 (also available in French (original) and Spanish).

364

INDEX A Access to information  78, 81–2, 307 Africa Commission on Human and Peoples’ Rights  82 controlled migration  108 investment treaty practice background  217–18 challenge at continental level  225–6 formulation of direct investor obligations  222–5 need for more stringent due diligence obligations  218–22 non-standard labour  178 public procurement as tool for social justice  278 regional value chains  32 time spent on unpaid work  316 Anarcho-capitalism  20–1 Applicable law  162–5, 261, 267 Arbitration advantages in cross-border context  262–3 African investment arbitration  222–3 alternative for rights holders  261–2 areas worth further progress and consideration  269–71 availability of collective redress  266 effective option for parties  271 Hague Rules on Business and Human Rights Arbitration comprehensive set of procedural rules  263–4 independent and expert adjudicators  265–6 model arbitration clauses under EBAs expedited timetable  268 fairness on costs  269 importance  267–8 interim measures and remedies  268–9 outcomes and remedies  266–7 protection of participants  264–5 transparency as the default option  264 Artificial intelligence (IA) EU management strategy  307–8 future developments in labour law  41 hard law references  306–7 importance  305 need for re-evaluation at global level  5 need to consider collective worker rights  314 powerful external force in play  1

trade union policy Australia  314 benefits of comparative study  308–9 EU  313 Germany  309, 311 Italy  313 Spain  309–13 UK  310, 312–13 US  314 Wales  311 Axiologies core values of ILO abstract to concrete materialisation of social justice  56 adaptability  58–9 content-rich and malleable articulation  57–8 engagement and methodology coupled with expert elements  60–1 global governance  30 harnessing of ILO axiologies in the future importance of consensus-building processes  63–4 optimisation of supervisory and standard setting machinery  61–3 overview  61 Maupain’s commitment to ILO  55–6 strengthening multilateralism general theory of international organisations  152–3 importance  151 international organisations as instruments of cooperation  153–4 B Biodiversity  80, 83–4 Bretton-Woods regime  24–5, 27, 30, 32, 178 Brexit  238, 241–2 C Capabilities theory  94–7 Capitalism anarcho-capitalism  20–1 epistemology as product of capitalist modernity  332 ethno-capitalism  21–2

366  Index future of social justice new disenchantment of the world  25 primacy of the national State  23–4 three rigid alternatives  26–8 link with gendered working time  319 new conditions for the regulation of the economy modernity as driving force  28–9 need to plan a paradigm change  32–4 re-launching of the nation State,  30–2 utopian scenarios of global governance  29–30 racial capitalism critical race studies  343 foundations of international labour law  37–9 unpaid work  52 three rigid alternatives Bretton-Woods regime  27 global governance  27–8 the ‘golden straitjacket’  26–7 value chain capitalism  251–2 Care work effect of care obligations  51 evolving priority  118–19 gendered working time  319 need for transformative approach  124–7 ongoing priority  120–1 reform proposals  324 Child labour African Continental Free Trade Agreement  226 COMESA Revised Investment Agreement 2018  224–5 Decent Work Strategy 1999  159 ECOWAS Social Security and Labour/Employment Policy,  220–1 IACtHR jurisprudence  233 ILO instruments  306 ILO’s research work  140 link to capitalism  319 proposal for higher labour standards  195 Citizenship EU social citizenship  99–100 expression of freedom and ‘recognition’  24 global social justice  180 meaning and aims of social justice  179–80 rationale for continuing significance  104–6 time for a fresh approach  101–4 utopian scenarios of global governance  29–30 Climate change current challenges  2–3 engine of transformative change  47 ILE regime  84–5 international cooperation  144 Preamble to the Paris Agreement  94 precautionary principle  80 Collective bargaining see Freedom of association and collective bargaining

Coloniality see also Post-colonial perspectives; Decolonial theories centrality of Modernity/Coloniality Group grants to Latin America  330 coloniality of subordination in labour law  329 decolonial theories  330 impact of slavery  38–9 at least three structural dimensions  333 need for other ways of thinking  334–5 race as geopolitical identity  330 standard category of labour law  329 Compulsory labour see Forced and compulsory labour Corporate social responsibility (CSR) African IIAs  221–2 Colombia-Canada BIT  221 development during 1990s  249–50 EU law  281 public procurement  274 World Commission on the Social Dimension of Globalisation 2004  217–18 Cosmopolitanism democratic-cosmopolitan ideal of intelligent globalisation  33 internationalism distinguished  20 uprooting cosmopolitanism of the global economy  25 COVID-19 cycles of precarity  94 disclosure of inequalities  42 fragility of equality gains  117 ILO engagement with SDGs  92 ILO Resolution on the inclusion of a safe and healthy working environment  293 impact on EU epochal event  238 imposition of brisk change of pace  237 impact on social justice  2–4 impoverishment due to forced inactivity  161 issues with part-time work  323 need to address ‘the social fabric of our societies’  65 possible reality check  19 rethinking of capital’s organisational strategies  31 rising unemployment  317 sharing the fruits of progress  69 unpaid care work daily  120–1 useful lessons about telework  20 D Decent Work Strategy 1999  141, 159–61 Decolonial theories  38, 43, 330

Index  367 Democracy democratic-cosmopolitan ideal of intelligent globalisation  33 new disenchantment of the world  25 primacy of the national State  24 sharing the fruits of progress  67 utopian scenarios of global governance  29–30 Development see also Sustainable development Doha Development Agenda 2001  197 Myanmar, reconciling human rights and development objectives  285–7 Dialectal ‘sublation’  13–14 Discrimination see Equality; Gender equality Dispute resolution arbitration advantages in cross-border context  262–3 alternative for rights holders  261–2 areas worth further progress and consideration  269–71 availability of collective redress  266 effective option for parties  271 Hague Rules on Business and Human Rights Arbitration  263–4 independent and expert adjudicators  265–6 model arbitration clauses under EBAs  267–71 outcomes and remedies  266–7 protection of participants  264–5 transparency as the default option  264 ECOWAS fundamental principles  220 potential ILO tribunal cost of ILO’s tripartite revolt  212 effect of government ownership of ILO standards  209–11 origins  204–5 path to social justice  212–13 proposed Statute setting out details  205–7 vulnerabilities in its tripartite process  207–9 transnational labour litigation absence of privity  256 adaption of common law tort doctrine  258 choice of law  255–6 jurisdictional question  255 liability for subsidiaries  257–8 voluntary nature of corporate codes of conduct  257 Distributive justice principle  49, 52–3, 79, 277 Domestic work development of international labour law  40–1 evolving priority  118–19 gender inequality  50–1 gendered working time  319 ongoing priority  120–1 reform proposals  325

UK ODW visa scheme instance of structural injustice  111 problematic immigration rules  111–12 role of women  110–11 scope  110 E ‘Economist naturalism’  15 Emancipation  36 Employers’ organisations  67, 77, 163, 309 Enforceable Brand Agreements (EBAs) Hague Rules on Business and Human Rights Arbitration  263 model arbitration clauses expedited timetable  268 fairness on costs  269 interim measures and remedies  268–9 procedural safeguards  267–8 Environmental law see International environmental law Epistemic authority changing the hearts and minds of people  141–2 continuing importance  133–4 contributions to the law of international organisations  137–8 Hague Rules on Business and Human Rights Arbitration  265–6 the ILO community of lawyers  134–5, ix ILO’s pursuit of social justice Decent Work Strategy 1999  141 Declaration on Fundamental Principles and Rights at Work 1998  140–1 Declaration on Social Justice for a Fair Globalisation 2008  140 neo-Gramscian approach to global affairs  139–40 research work  140 role of leadership  135–7 Equality see also Gender equality African Continental Free Trade Agreement  226 COMESA Revised Investment Agreement 2018  224 concept of ‘citizen  102 Decent Work Strategy 1999  159 Declaration of Philadelphia  55 difference to people’s lives  117 ECOWAS Social Security and Labour/ Employment Policy,  220 extreme phase of neoliberal capitalism  32 future of work  41 ILO Constitution  118 ILO instruments  306 ILO view of work  48, 48–9 impact of economic globalisation  184 impact of globalisation  2

368  Index need for re-evaluation at global level  5 powerful external forces in play  2 primacy of the national State  24 principle of ‘sustainability’ as guide to ILL  94–6 sharing the fruits of progress ensuring just outcomes  68, 70 need for just process  67 UN SDGs  33, 91 World Bank view of work  44 Eurocentrism  332 European Union (EU) applicable law  163–5 decisive card to play  20 impact of four crises on social model  238 imposition of brisk change of pace  237–8 management of new technologies AI management strategy  307–8 overview  306 Myanmar’s preferential access to the single market critical challenges to the rights-based system of trade preferences  283–4 EU’s Generalised Scheme of Preferences (GSP)  284–5 need to address inconsistent application of GSP scheme  291–2 reconciling human rights and development objectives  285–7 similar issues arising elsewhere in the World  288–91 threatened withdrawal of preferences  287–8 new sustainability approach ECJ case law on holistic concept of sustainability  244–5 impact of four crises on social model  241–4 transformative processes forged by crises  244–5 new world player  158 public procurement as tool for social justice  278, 280–1 social citizenship  99–100 sustainability discourse  96 vision for a post CO VID-19 world  65 Expertise see Epistemic authority F Feminist perspectives see also Gender equality challenge of domestic work  110–11 disagreements in the field of labour criticism  334 feminisation of labour  49–50, 321 need to rethink the future  329 non-market labour  52 recognition, measurement and valuation of unpaid work  51 Southern feminism in the face of hegemonic feminism  329 undervaluing of ‘women’s work’  124

Forced and compulsory labour see also Slavery and servitude Forced or compulsory labour  153, 219–21 Freedom of association and collective bargaining see also Employers’ organisations; Trade Unions African regional investment instruments  224–5 COMESA Revised Investment Agreement 2018  224–5 core traits of ILO axiologies  55–7, 56 core value of international labour law  78 Decent Work Strategy 1999  159 Declaration on Fundamental Principles and Rights at Work 1998  140 Development as Freedom  95 a future labour tribunal  212 government ownership of standards  210 hierarchy of ILO standards  159 ILO Committee (CFA)  233 ILO Convention 87, 1948  159 ILO instruments  306 management of new technologies  306–7 Myanmar  284 proposal for higher labour standards  195 relevance to environmental governance  86 sharing the fruits of progress  66–8 sustainable social policy  93 WTO proposals  195 Fruits of progress see Sharing the fruits of progress Fundamental rights see Human rights; Labour rights and protections Future of the world narratives  13–14 G Gender equality see also Sexism decent working time overview  315–18 domestic work  50–1 evolving priorities care work  118–19 domestic work  118–19 maternity leave  118 violence and harassment  119 IACtHR jurisprudence  233 ILO view of work  49–52 link to capitalism  319 need for re-evaluation at global level  5 need for transformative approach  126–7 care work  124–6 equal pay  123–4 need to prioritise serious gaps  121–2 ongoing process  126–7 opportunity provided by COVID-19  127 violence and harassment  122–3

Index  369 ongoing priorities care work  120–1 domestic work  120–1 equal pay  119 maternity protection  120 violence and harassment  120 UN SDGs  33, 91 working time decent working time  315–18 differing patterns throughout world  318 issues with part-time work  323 link with capitalism  319 need for ‘upward time flexibility’  322–3 need to change centrality of standard working week  319–21 private household production and care activities  319 reduction of excessive working hours  321–2 reform proposals  324–5 relevance of total working hours  319 Geographical mobility see Migrant workers Global social justice see also Social justice advantage of postcolonial perspective  179 cooperative action among citizens  180 core concept  5–6 future move from a Eurocentric vision  186 legitimacy of ILO as social justice-promoting global institution failure to deal with inherent injustice of global trading  183–5 overview  177–9 problem of ILO orthodoxy  185–6 problem of legitimacy of ILO instruments  186–7 legitimacy of institutions as social justice-promoting global institution evaluation of social structures and resultant institutional adjustments  181–3 meaning and aims of social justice  179–81 meaning and aim  179–81 need to review normative legitimacy of ILO instruments  186–7 origins in early 20c trading system  192 role of WTO  191 UN SDGs  89 Global supply chains effect of disruptions  3 EU enforcement approach  150 human and labour rights violations  250 ILO regulatory gaps  94, 149 importance of private international law  254 number of related jobs  252 powerful external forces in play  2

public procurement need to increase rights protection  281–2 overview  273–4 state-business nexus  274–6 tool for achieving social justice  276–81 rethinking capital’s organisational strategies  31 WTO governance  196 Global value chains (GVCs) choice of venue  249 connection of geographically distant individuals  180 dearth of cases establishing legal liability  250–1 health and safety at work  299 layering of legal issues absence of privity  256 adaption of common law tort doctrine  258 choice of law  255–6 forging responsibility down the supply chain  255 jurisdictional question  255 liability for subsidiaries  257–8 reluctance of judges to act as reformers  259 voluntary nature of corporate codes of conduct  257 negative externalities  30 role of judges in private law  253–5 share of capital  32 value chain capitalism  251–2 Globalisation anarcho-capitalism  20–1 democratic-cosmopolitan ideal of intelligent globalisation  33 duty to promote social justice  77 erasure of diversity and cultures  14–15 powerful external forces in play  1–2 problems of ‘hyper-globalization’  3 rebalancing of globalisation by ILO  149 techno-theological concept  21 uprooting cosmopolitanism of the global economy  25 Governance asymmetrical migrant workers  39 competing labour market governance agendas  43 environmental governance  78 epistemic authority of ILO changing the hearts and minds of people  141–2 continuing importance  133–4 contributions to the law of international organisations  137–8 the ILO community of lawyers  134–5, ix pursuit of social justice  139–41 role of leadership  135–7 global governance  27–30 global supply chains  196

370  Index ILO competence to regulate subsistence work challenges to underpinning premises  342 constitutional amendments 1944  341 PCIJ opinion  340–1 international environmental governance  85–7 lessons from COVID-19  20 management of new technologies EU management strategy  307–8 hard law references  306–7 need to consider collective worker rights  314 overview  306 trade union policy  308–14 need to adapt corporate governance to labour standards  217 relationship between global governance and national governance  33 role of ILO  13 world as we now find it  2 World Bank view  45–6 H Hague Rules on Business and Human Rights Arbitration availability of collective redress  266 comprehensive set of procedural rules  263–4 independent and expert adjudicators  265–6 outcomes and remedies  266–7 protection of participants  264–5 transparency as the default option  264 Harassment see Violence and harassment Health and safety at work/safe and healthy working environment compromise on 2022 ILO Resolution complementary responsibilities of participants  298–9 overview  296 saving clause for Member states  296–7 Declaration on Fundamental Principles and Rights at Work 1998 as revised 2022  48 ECOWAS Social Security and Labour/Employment Policy,  220 IACtHR jurisprudence  233 ILO Resolution on the inclusion of a safe and healthy working environment  293–4 multilateral re-positioning of ILO conflict over ISO 45001  300–1 construction of relations on decent work  300–1 effect of competing international regulation  299–300 multiplicity of ILO documents  294–6 need for re-evaluation at global level  5 universalisation of rights enshrined in ILO law  302

Hours of work decent working time overview  315–18 Declaration of Philadelphia  65 Declaration on Fundamental Principles and Rights at Work 1998  48 gendered working time decent working time  315–18 differing patterns throughout world  318 issues with part-time work  323 link with capitalism  319 need for ‘upward time flexibility’  322–3 need to change centrality of standard working week  319–21 private household production and care activities  319 reduction of excessive working hours  321–2 reform proposals  324–5 relevance of total working hours  319 sharing the fruits of progress ensuring a just minimum  70 importance of just process  66 required measures  72 Human rights see also International labour standards (ILS); Labour rights and protections African Commission on Human and Peoples’ Rights  82 African Continental Free Trade Agreement  226 COMESA Revised Investment Agreement 2018  225 decent working time  316 ECOWAS Supplementary Act  222–3 Hague Rules on Business and Human Rights Arbitration availability of collective redress  266 comprehensive set of procedural rules  263–4 independent and expert adjudicators  265–6 outcomes and remedies  266–7 protection of participants  264–5 transparency as the default option  264 IACtHR jurisprudence  233 ILO instruments  306 Inter-American Court of Human Rights environmental governance  86 key features of emerging approach  230–5 overview of the legal and institutional context  228 ‘regional revitalisation’ of labour rights  235–6 shift in approach to economic, social and cultural rights  228–30 international environmental governance  85–7

Index  371 management of new technologies  306–7 Myanmar’s preferential access to EU single market critical challenges to the rights-based system of trade preferences  283–4 EU’s Generalised Scheme of Preferences (GSP)  284–5 need to address inconsistent application of GSP scheme  291–2 reconciling human rights and development objectives  285–7 similar issues arising elsewhere in the World  288–91 threatened withdrawal of preferences  287–8 public procurement need to increase rights protection  281–2 overview  273–4 state-business nexus  274–6 tool for achieving social justice  276–81 treatment of a migrant workers under Art 4  112–15 United Nations Guiding Principles on Business and Human Rights  273 ‘Hyper-globalization’  3 I Immigration see Migrant workers Indigenous peoples Argentina  86 Convention on Biodiversity  84 epistemic secrets of labour law  334 IACtHR approach to reparations  234 jurisdiction  228 ILO legal instruments  139 impact of colonialism  178, 330 increasing empowerment  87 Indigenous and Tribal Peoples Convention 1989  81 international labour standards  344 investigations and standard setting  38 link with IEL  78 low pay and unequal pay  119 need for consultations  82 Inequality see Equality, see Gender equality Informality see Market work; Non-market work Innovation see Technology and innovation Institutions International Labour Organization see International Labour Organization (ILO) International Organisation for Standardization see International Organisation for Standardization (ISO)

legitimacy as social justice-promoting global institution evaluation of social structures and resultant institutional adjustments  181–3 meaning and aims of social justice  179–81 overview  177–9 World Trade Organization see World Trade Organization (WTO) Inter-American Court of Human Rights (IACtHR) environmental governance  86 key features of emerging approach coherence with international standards  232–4 strengthening of rights dimension  230–1 transformative reparations  234–5 overview of the legal and institutional context  228 ‘regional revitalisation’ of labour rights  235–6 shift in approach to economic, social and cultural rights  228–30 social pillar of environmental governance  86–7 International agreements see Treaties International environmental law approach to social justice need for a just transition  78 distributive justice principle  79 fair and equitable approach  88 importance of social pillar  85–7 neoliberal shift of 1980s  19 precautionary principle  78–80 prevention principle  78–9 relationship with social justice access to information  81–2 foundations of IEL  78–80 historical links  78 precautionary principle  78–80 public participation  82–3 specific regimes biodiversity  83–4 climate change  84–5 sustainable development  79 International labour law see also International labour standards (ILS); Litigation; Treaties African investment treaty practice background  218 challenge at continental level  225–6 formulation of direct investor obligations  222–5 need for more stringent due diligence obligations  218–22 approach to collective bargaining  67–8 approach to domestic work  40–1 aspirational vision of the world of work  35–6 citizenship rationale for continuing significance  104–6 time for a fresh approach  101–4

372  Index coloniality of subordination in labour law  329 emancipatory approach to standards  36–7 foundations in slavery  38–9 future developments approach to invisibility  41–2 transnational approach  41 key writings  36 legal construction of GVCs  253–5 legal instruments used by ILO  139 management of new technologies  306–7 migrant workers  99–100 multi-scalar assemblage  249 neoliberal shift of 1980s  19 possible future broadening of social justice beyond waged employment  356–7 financing of contributory social protection systems  355–6 inclusion of all people who work and are ‘in need of protection’  351 need to address profound transformations  349–50 new expansive trend  354 new legal regimes  353–4 set of common standards  355 specific protection legislation  351–3 principle of ‘sustainability’ as guide durability  93–4 equality and provision of capabilities  94–6 overview  92–3 tensions inherent in holistic approach  96–8 social justice as core value  78 Violence and Harassment Convention 2019  119 International Labour Organization (ILO) adoption of Declaration of Philadelphia in 1944  16, 24 approach to Myanmar  285 aspirational vision of labour law  35–6 Centenary Declaration for the Future of Work  41 competence to regulate subsistence work challenges to underpinning premises  342 constitutional amendments 1944  341 PCIJ opinion  340–1 core traits of ILO axiologies abstract to concrete materialisation of social justice  56 adaptability  58–9 content-rich and malleable articulation  57–8 engagement and methodology coupled with expert elements  60–1 decent working time overview  315 reform proposals  325 duty to promote social justice  77

engagement with the SDGs centenary activities 2019  91 ‘flagship’ moments post-2019  91–2 historical approach  90 International Labour Office Report  91 responsibilities under 2030 Agenda  90–1 epistemic authority changing the hearts and minds of people  141–2 continuing importance  133–4 contributions to the law of international organisations  137–8 the ILO community of lawyers  134–5, ix pursuit of social justice  139–41 role of leadership  135–7 flagship statements on the state of work  43 Global Compact for Safe, Orderly and Regular Migration  99 global development circles  344 global labour statistics  339 harnessing of potential axiologies importance of consensus-building processes  63–4 optimisation of supervisory and standard setting machinery  61–3 overview  61 health and safety at work compromise on 2022 Resolution  296–9 multilateral re-positioning of ILO  299–302 multiplicity of ILO documents  294–6 Resolution on the inclusion of a safe and healthy working environment  293–4 universalisation of rights enshrined in ILO law  302 importance of equality  118 international labour standards (ILS) see International labour standards (ILS) legitimacy as social justice-promoting global institution failure to deal with inherent injustice of global trading  183–5 overview  177–9 problem of ILO orthodoxy  185–6 problem of legitimacy of ILO instruments  186–7 management of new technologies hard law references  306–7 overview  305 Maupain’s axiological commitment  55–6 mission of social justice  138 need to build peace based upon social justice  14 need to play leading role  19 need to strengthen its means of action  165–6

Index  373 pathways to institutionalisation need to generate sense of common purpose  154–5 rebalancing of globalisation  149 scope of the ILO’s competence  150–1 potential tribunal for dispute resolution cost of ILO’s tripartite revolt  212 effect of government ownership of ILO standards  209–11 origins  204–5 path to social justice  212–13 proposed Statute setting out details  205–7 vulnerabilities in its tripartite process  207–9 public procurement as tool for social justice  277–8 special characteristics  138–9 tripartism see Tripartism two types of legal instruments  139 unique status  13 view of work equality and environmental sustainability  48 institutional differences in focus and emphasis  47 labour rights and protections  48 positioning of technology  46–7 rise of flexible forms of work  47 skill acquisition  47 support for smaller firms  47–8 International labour standards (ILS) African Continental Free Trade Agreement  226 African investment treaty practice challenge at continental level  225–6 formulation of direct investor obligations  222–5 need for more stringent due diligence obligations  218–22 applicable law  162–5 codes of conduct and social initiatives  161–2 continuing significance  161 core traits of ILO axiologies adaptability  58–9 content-rich and malleable articulation  57 Decent Work Strategy 1999  159–61 domestic work  40 effect of government ownership on dispute resolution  209–11 emerging approach of IACtHR  232–4 EU trade preferences  283–4 guidance for legislative reform  158 harnessing of ILO axiologies in the future  61–3 IACtHR emerging approach  232–4 influence on social clauses  158 International Organisation for Standardization (ISO) conflict over ISO 45001 and its effects  299–301

limitations of current ILO standards  67 major function of ILO  157–8 need for emancipatory approach  36–8 need for ILO to strengthen its means of action  165–6 non-market work  344, 346 North American trade agreements  205, 209–13 proliferation of procedures for control of standards  158–9 right to strike controversy  208 standards review mechanism establishment of SRM 2011  59 outcome of the SRM TWG to date  170–1 overview  167–8 pivotal role of SRM TWG  174–6 rationale for abrogating conventions  171–4 underlying rationale  168–9 subsistence work commodification of labour  344–5 history of international labour standards  343 overview  337 International Monetary Fund (IMF) global development circles  344 neoliberal market norms  178 sharing the fruits of progress  65 structure of global trade  183 International Organisation for Standardization (ISO) conflict over ISO 45001 and its effects  299–301 effect of competing international regulation  299–300 International organisations see Multilateralism Internationalism acceleration of market economy  158 cosmopolitanism distinguished  20 cosmopolitansm distinguished  20 diversity of social models  16 standard-setting activities of ILO  157 Investment treaties see African investment treaty practice L Labour law  357 see also Enforcement; International labour law; Litigation dominant idea of ‘labour subordination’  349 extension of the protective boundaries  243 incorporation of new legal regimes  353–4 need for new expansive trend  354 search for a wider centre of imputation  351–2 subjective weakening  350, 357 transnational labour law  249

374  Index Labour rights and protections see also Human rights African investment treaty practice  222–5 applicable law  162 citizenship  101–3 Convention on the Rights of All Migrant Workers and Their Families 1990  99 Decent Work Strategy 1999  159 Declaration on Fundamental Principles and Rights at Work 1998  140–1 Declaration on Social Justice for a Fair Globalisation 2008  140 emerging approach of IACtHR key features  230–5 overview of the legal and institutional context  228 ‘regional revitalisation’ of labour rights  235–6 shift in approach to economic, social and cultural rights  228–30 EU proclamation of rights  240–1 global value chains (GVCs)  255 health and safety at work compromise on 2022 Resolution  296–9 ILO Resolution on the inclusion of a safe and healthy working environment  293–4 multilateral re-positioning of ILO  299–302 multiplicity of ILO documents  294–6 universalisation of rights enshrined in ILO law  302 ILO Convention 1948  159 ILO legal instruments  139 ILO view of work  48 labour-related trade issues overcoming of barriers to cross-border labour services  194 possible social clause in WTO rules  195 preference for rulemaking by ILO  195–6 rules for fundamental labour standards  197 treaty requirements for trade control  196 public procurement need to increase rights protection  281–2 overview  273–4 state-business nexus  274–6 tool for achieving social justice  276–81 rationale for continuing significance  105–6 right to bargain collectively  67 Law see International environmental law; International labour law; Labour law LGBT phobia epistemic secrets of labour law  327–9 need for other ways of thinking  334–5

Litigation environmental litigation  92 Inter-American Court of Human Rights (IACtHR) see Inter-American Court of Human Rights (IACtHR) migrant work issues  116 transnational labour litigation absence of privity  256 adaption of common law tort doctrine  258 choice of law  255–6 jurisdictional question  255 liability for subsidiaries  257–8 reluctance of judges to act as reformers  259 voluntary nature of corporate codes of conduct  257 M Market work current challenges  48–9 operational definition of informal employment  339 precondition of healthy, wealthy societies  337 prevalence  337 work/life ‘balance’  51, 319, 324–5 Maternity protection  118–20, 125–6 Maupain, Francis adoption of 1998 and 2008 Declarations  55 axiological commitment to ILO  55–6 dedication v–x duty to promote social justice  77 engagement with the SDGs  90 influence as ILO Legal Adviser  v–ix, 192 intellectual figurehead of ILO  145 publications  359–62 respected and treasured figure  4–5 social justice at the heart of his reflection  13 Universal Protection of Workers’ Rights 2005  227 what it is to be an international lawyer  217 Migrant workers centrality to global justice  107 failure of globalisation  39 Global Compact for Safe, Orderly and Regular Migration  99–100 ILO Centenary Declaration  41–2 need for re-evaluation at global level  5 opportunities for change  115–16 powerful external force in play  1 standards of living dependant on strict immigrant workers control  29 temporary labour migration programmes exploitation of workers  108–9 restrictive rules  109–10 scope  108 special justifications for admission  109

Index  375 time for a fresh approach to citizenship  101–4 UK ODW visa scheme human rights responsibilities under Art 4  112–15 instance of structural injustice  111 problematic immigration rules  111–12 role of women  110–11 scope  110 Models see Social models Modern slavery see Slavery and servitude Mondialisation  22, 194, 217 Multilateralism Framework on Labour Migration 2006  99, 111 free trade agreements  159, 297 global challenges to international organisations  143–5 ILO’s labour standards  205, 209 implementing safe and healthy working conditions competing international regulation initiatives  299–300 ILO /UN Relations on Decent Work  301–2 Standard ISO 45001  300–1 increasing role of ILO  41, 43, 145 institutionalising social justice continuing relevance of Declaration of Philadelphia  145–6 need to generate sense of common purpose  154–5 overcoming the challenge of coherence  146–8 rebalancing of globalisation by ILO  149 role of labour regulation  149–50 scope of the ILO’s competence  150–1 international financial institutions  45 legal challenges  13 re-evaluation at global level  5 SRM TWG changes  176 theoretical and axiological reflections general theory of international organisations  152–3 importance  151 international organisations as instruments of cooperation  153–4 WTO  191–5, 198 Multinational corporations dearth of cases establishing legal liability  250–1 development of corporate social responsibility (CSR)  217, 249–50 Enforceable Brand Agreements (EBAs)  267 framework agreements  162 GATT dehumanisation of trade policy  197 global value chains (GVCs)  251, 253 globalisation of production  252 Hague Rules on Business and Human Rights Arbitration  263 ILO Tripartite Declaration of Principles  221

liability for the actions of subsidiaries  257–8 role as mega-consumers  275 UN Guiding Principles on Business and Human Rights  83, 273 value chain capitalism  251–2 WTO Committee on Trade and Employment  197 Myanmar critical challenges to the rights-based system of trade preferences  283–4 EU’s Generalised Scheme of Preferences (GSP)  284–5 need to address inconsistent application of GSP scheme  291–2 reconciling human rights and development objectives  285–7 similar issues arising elsewhere in the World  288–91 threatened withdrawal of preferences  287–8 N Non-discrimination see Equality; Gender equality Non-market work definition of informal employment  339 ILO’s competence  341 incomplete accounting and analysis  53 labour standards  344, 346 O Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinationals  165, 221 ‘Hayekian’ growth model for capitalism  25 P Parental leave  50, 120–1, 125–6 Paternity leave  120–1, 125–6 Pay see Wages Post-colonial perspectives see also Coloniality advantage of a postcolonial perspective  179 core topic  6 domination of global trade  177–8 history of international labour standards  343 ILO treatment of colonial powers  38 ILO’s formation  177 legitimacy of ILO as social justice-promoting global institution non-recognition of the political society  183 taking ‘heterogeneity’ seriously  178–9 unfolding of deliberative democracy  182 uniqueness of postcolonial societies  186 varied conditions of deliberative democracy  183–6

376  Index slavery as a global institution  35 standard employment contracts and bipartite employment relationships  178 Precautionary principle  78–80, 308 Prevention principle  78–9 Procurement see Public procurement Protections see Labour rights and protections Public participation  78, 81–3 Public procurement need to increase rights protection  281–2 overview  273–4 state-business nexus  274–6 tool for achieving social justice  276–81 R Racial capitalism benefits of unpaid work  52 critical race studies  343 foundations of international labour law  37–9 and unpaid work  52 Racism care work  50–1, 121 disparities in forced labour in US prisons  39 domestic work  40, 121 epistemic secrets of labour law  327–9 future of work  41 ILO’s newest declaration  41 need for other ways of thinking  334–5 portrayal of non-standard workers  331 race as geopolitical identity  330 Regional systems African investment treaty practice background  217–18 formulation of direct investor obligations  222–5 need for more stringent due diligence obligations  218–22 European Union (EU) applicable law  163–5 decisive card to play  20 ECJ case law on holistic concept of sustainability  244–5 impact of four crises on social model  238–41 imposition of brisk change of pace  237–8 new sustainability approach  241–4 new world player  158 social citizenship  99–100 sustainability discourse  96 transformative processes forged by crises  244–5 vision for a post CO VID-19 world  65 Inter-American Court of Human Rights environmental governance  86 key features of emerging approach  230–5

overview of the legal and institutional context  228 ‘regional revitalisation’ of labour rights  235–6 shift in approach to economic, social and cultural rights  228–30 Latin America and Caribbean  82 new world players  158 North American trade agreements  209–13 promotion of international labour standards  209 technical cooperation programmes  158 Rights see Human rights Rights and protections see Labour rights and protections S Safe and healthy working environment see Health and safety at work/safe and healthy working environment Servitude see Slavery and servitude Sexism see also Gender equality epistemic secrets of labour law  327–9 need for other ways of thinking  334–5 Sharing the fruits of progress commitment to a minimum wage  70–2 Declaration of Philadelphia  65–6 ensuring just outcomes  68–70 importance of just process  66–8 overview  65–6 required measures  72–3 Slavery and servitude see also Forced and compulsory labour African Continental Free Trade Agreement  226 COMESA Revised Investment Agreement 2018  224–5 Decent Work Strategy 1999  159 foundations of international labour law  38–9 future developments in labour law  41–2 as a global institution  35 IACtHR jurisprudence  233 ILO instruments  306 Myanmar  285 proposal for higher labour standards  195 treatment of a migrant workers under Art 4  112–15 US import ban of 1930  197 use by multinational companies  30 Social dumping  25, 243 Social justice see also Global social justice core traits of ILO axiologies  56 future of capitalism new disenchantment of the world  25 three rigid alternatives  26–8

Index  377 guiding light for ILO  77 ILO mission  138 need to change centrality of standard working week  320 need to re-imagine the future of justice at work  5–6 new conditions for the regulation of capitalism modernity as driving force  28–9 need to plan a paradigm change  32–4 primacy of the national State  23–4 re-launching of the nation State,  30–2 utopian scenarios of global governance  29–30 pathways to institutionalisation continuing relevance of Declaration of Philadelphia  145–6 need to generate sense of common purpose  154–5 overcoming the challenge of coherence  146–8 rebalancing of globalisation by ILO  149 role of labour regulation  149–50 scope of the ILO’s competence  150–1 possible future for labour law broadening of social justice beyond waged employment  356–7 financing of contributory social protection systems  355–6 inclusion of all people who work and are ‘in need of protection’  351 need to address profound transformations  349–50 new expansive trend  354 new legal regimes  353–4 set of common standards  355 specific protection legislation  351–3 potential ILO tribunal  212–13 public procurement as a tool  276–81 re-evaluation at global level  5 relationship with IEL access to information  81–2 foundations of IEL  78–80 historical links  78 precautionary principle  80–1 public participation  82–3 role of ILSs guidance for legislative reform  158 influence on social clauses  158 major function of ILO  157–8 proliferation of procedures for control of standards  158–9 sharing the fruits of progress commitment to a minimum wage  70–2 Declaration of Philadelphia  65–6 ensuring just outcomes  68–70

importance of just process  66–8 overview  65–6 required measures  72–3 subsistence work need for collection of statistics  345–6 overview  337 UK ODW visa scheme  111 world as we now find it impact of globalisation  1–2 problems of ‘hyper-globalization’  3 rethinking necessary adjustments  2–3 space for hope  4 threats to faith in change  4 Social models collection of cultural traits  14 complex historical and cultural balancing acts  16–17 diversity as anthropological fact  20 impact of diversity on ILO  16 impact of globalisation  14–15 neoliberal shift of 1980s  19 nineteenth century challenges  15 prospering of scientism  18 suppression of diversity  18 typology of European social models  15–16 universalism at work  18 Social sustainability see Sustainable development Soft law African IIA s  221 continuing importance  133–4 core traits of ILO axiologies  56 corporate social responsibility (CSR) initiatives  249 EU Social Pillar  240–1 ILO regulation  293–4 implementation of decent work policy  160 implementation of ILO standards  161 trade union implementation of standards  307, 309 Standards review mechanism establishment of SRM 2011  59 outcome of the SRM TWG to date  170–1 overview  167–8 pivotal role of SRM TWG  174–6 procedure for abrogation  174 rationale for abrogating conventions  171–4 underlying rationale  168–9 ‘State paternalism’  15 Statistics and indicators ICLS  345–6 ILOSTAT  339 Labour Statistics Convention 1988  346 SDG indicators  89–92 World Bank Living Standards Measurement Study  340

378  Index Subordinated labour see also Emancipation coloniality of subordination in labour law  329 invented universalisation  332–4 need for other ways of thinking  334–5 platform workers  243 possible future for labour law broadening of social justice beyond waged employment  356–7 financing of contributory social protection systems  355–6 inclusion of all people who work and are ‘in need of protection’  351 need to address profound transformations  349–50 new expansive trend  354 new legal regimes  353–4 set of common standards  355 standard category of labour law  329 Subsistence work see also Unpaid work connections to racial and gender justice  51 discourse of ‘informality’  346–7 domination of Global South  48 ILO competence to regulate subsistence work challenges to underpinning premises  342 constitutional amendments 1944  341 PCIJ opinion  340–1 ILO standards commodification of labour  344–5 history of international labour standards  343 overview  337 numbers globally engaged conceptual and measurement issues  338–9 household-level income data  340 ILOSTAT  339 research into agricultural production  340 those who go uncounted  340 rehabilitation of idea of ‘primitive accumulation’  337–8 social justice need for collection of statistics  345–6 overview  337 unhelpful category  347 Sustainable development and Sustainable Development Goals European Union (EU) impact of four crises on social model  238–41 imposition of brisk change of pace  237–8 ILO engagement with SDGs centenary activities 2019  91 ‘flagship’ moments post-2019  91–2 historical approach  90

International Labour Office Report  91 responsibilities under 2030 Agenda  90–1 ILO’s rapprochement with UN  302 new EU approach ECJ case law on holistic concept of sustainability  244–5 impact of four crises on social model  241–4 transformative processes forged by crises  245–6 principle of ‘sustainability’ as guide to ILL durability  93–4 equality and provision of capabilities  94–6 overview  92–3 tensions inherent in holistic approach  96–8 reconciling human rights and development objectives in Myanmar  285–7 relationship between IEL and social justice  79 rhetorical power for bridging gaps  80 social dimension  86 UN goals as basis of paradigm shift  33 UN SDGs  89–90 T Technology and innovation see also Artificial intelligence (IA) cooperation programmes  158 economic globalisation  21 engine of transformative change  47 growing interdependence of nations  14 ILO view  46–7 proliferation of procedures for control of standards  158 World Bank view  44–5 Temporary labour migration programmes exploitation of workers  108–9 human rights responsibilities under Art 4  112–15 restrictive rules  109–10 scope  108 special justifications for admission  109 ‘Time poverty’  126, 317, 320 see also Gender equality Trade see also World Trade Organization African Continental Free Trade Agreement  226 GATT dehumanisation of trade policy  197 Myanmar’s preferential access to EU single market critical challenges to the rights-based system of trade preferences  283–4 EU’s Generalised Scheme of Preferences (GSP)  284–5

Index  379 need to address inconsistent application of GSP scheme  291–2 similar issues arising elsewhere in the World  288–91 threatened withdrawal of preferences  287–8 Trade unions see also Freedom of association and collective bargaining codes of conduct and social initiatives  161–2 development in France  17 ECOWAS Social Security and Labour/Employment Policy,  220 IACtHR jurisprudence  233 management of new technologies Australia  314 benefits of comparative study  308–9 EU  313 European Trades Union Confederation  308 Germany  309, 311 Italy  313 Spain  309–13 UK  310, 312–13 US  314 Wales  311 need to adapt corporate governance to labour standards  217 powerful external forces in play  2 Transnational corporations see Multinational corporations Transnational labour litigation absence of privity  256 adaption of common law tort doctrine  258 choice of law  255–6 forging responsibility down the supply chain  255 jurisdictional question  255 liability for subsidiaries  257–8 reluctance of judges to act as reformers  259 voluntary nature of corporate codes of conduct  257 Treaties see also International labour standards (ILS) African investment treaty practice background  217–18 challenge at continental level  225–6 formulation of direct investor obligations  222–5 need for more stringent due diligence obligations  218–22 basic ILO action  145–6 rebalancing of international trade  33–4 Tripartism see also Employers’ organisations; Trade unions core traits of ILO axiologies abstract to concrete materialisation of social justice  56–7

engagement and methodology coupled with expert elements  59–62 importance of consensus-building processes  63–4 early form of transnational cooperation  37 government ownership of ILO standards  209–11 ILO Convention No 189 on domestic workers  40 ILO Declaration of Principles  83 ILO Guidelines on Just Transitions  90 path to social justice  212–13 principle of ‘sustainability’ as guide to ILL  94 rationale for continuing significance  94 revolt over potential ILO tribunal  212 right to strike controversy and revolt over potential ILO tribunal  207–9 vulnerability of ILO  203–4 U Ukrainian crisis impact on EU deepening challenges  292 epochal event  238 imposition of brisk change of pace  237 removal of EBA access  291 shattering of world legal order  4 United Nations Agenda for Sustainable Development 2015  197 characterisation of international relations  177–8 Conference on Trade and Employment 1946–8  192 construction of ILO/UN relations on decent work  300–1 Convention on the Rights of All Migrant Workers and Their Families 1990  99 Doha Development Agenda 2001  197 ethnic cleansing in Myanmar  286 Guiding Principles on Business and Human Rights  273 household-level income data  340 neoliberal market norms  177–8 Sustainable Development Goals  89–90 sustainable development goals as basis for paradigm shift  33 World Trade Organization see World Trade Organization (WTO) Unpaid work see also Gender equality; Subsistence work case for attending to unpaid work  51–2 gender discrimination  125, 315–18 graph of comparative time spent  316

380  Index non-discriminating working time norms  339 normal for many  49 value in the labour market  50 work/life ‘balance’  51 V Value chain capitalism  251–2 Violence and harassment evolving priority  119–20 ILO Convention No 190 2018  121–3, 168 need for transformative approach  122–3 ongoing priorities  120 principle of ‘sustainability’ as guide to ILL  96 Visa schemes human rights responsibilities under Art 4  112–15 opportunities for change  115–16 temporary labour migration programmes exploitation of workers  108–9 human rights responsibilities under Art 4  112–15 restrictive rules  109–10 scope  108 special justifications for admission  109 UK ODW visa scheme instance of structural injustice  111 problematic immigration rules  111–12 role of women  110–11 scope  110 W Wages Declaration of Philadelphia  65 domestic work  49 effect of de-globalisation  32 equal pay evolving priority  118–19 need for transformative approach  123–4, 127 ongoing priorities  119 gender pay gap  317 measurement and valuation of unpaid work  51 rationale for continuing significance  104–6 sharing the fruits of progress commitment to a minimum wage  70–2 ensuring just outcomes  68–70 importance of just process  66–8 temporary labour migration programmes  108–9 Universal Labour Guarantee  48 Work see also Non-market work; Unpaid work domestic work  50–1 effect of care obligations  51

flagship statements  43 ILO view equality and environmental sustainability  48 institutional differences in focus and emphasis  47 labour rights and protections  48 positioning of technology  46–7 rise of flexible forms of work  47 skill acquisition  47 support for smaller firms  47–8 incomplete accounting and analysis  53 market work  48–9 current challenges  48–9 incomplete accounting and analysis  53 precondition of healthy, wealthy societies  337 work/life ‘balance’  51 need for more holistic view  52 need to re-imagine the future of justice at work  5–6 re-evaluation at global level  5 social pillar of environmental governance  86 unpaid work  50–2 work/life ‘balance’  51 world as we now find it impact of globalisation  1–2 problems of ‘hyper-globalization’  3 rethinking necessary adjustments  2–3 space for hope  4 threats to faith in change  4 World Bank view centrality of technology  44–5 flagship statements  43 preoccupation with formalisation  46 Workers’ organisations see Trade unions Working time see Hours of work Workplace governance see Governance World Bank flagship statements on the state of work  43 global development circles  344 structure of global trade  183 view of work centrality of technology  44–5 preoccupation with formalisation  46 workplace governance  45–6 World Trade Organization (WTO) Committee on Trade and Employment  197 emergence of social dimension in the trading system establishment of ILO  193–4 General Agreement on Tariffs and Trade 1947  193

Index  381 mondialisation of labour law  194 path to UNCTE  193 World Economic Conference 1927  194 establishment  191 improving WTO effectiveness formalisation of joint national commitments  198 harmonised tariff system  199 lowering of nationalistic trade barriers  197–8 possibility of Minilaterals  198–9 regional trade agreements  199 replacement by Allies Trade Organization  200

revision of rules  200 smaller coalitions to obtain consensus  198 labour-related trade issues overcoming of barriers to cross-border labour services  194 possible social clause in WTO rules  195 preference for rulemaking by ILO  195–6 rules for fundamental labour standards  197 treaty requirements for trade control  196 public procurement regime  280–1 recent legislative and judicial functions  191–2 structure of global trade  183 ways to promote social justice  200–1

382