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International Labor Standards and the US:
Industrial Relations Research Association (IRRA), Washington, D.C., January 2003
by Lee Swepston©
Chief, Equality and Employment Branch and Human Rights Coordinator,
International Labor Office, Geneva
In recent years there has been a remarkable degree of attention paid to labour standards around the world, as a measure of development, as an indicator of human rights performance and as an end in themselves. However, in spite of US pressure in favour of their adoption by other countries, the US has continued to stand aside from international standards and has preferred to keep its own internal references. The questions I will put are whether this is in the best interests of the United States, and whether there is not some benefit to be had from re-examining this position.
The growing importance of labour standards
Since the end of the Cold War, there is a growing acceptance in international discussions that labour standards are vital to development. During the Cold War, many - including both the US and the USSR - saw labour standards as an ideological tool: one side emphasized individual rights and the civil and political aspects of labour rights, and the other emphasized the economic and social aspects, reflecting the rather ridiculous distinction between the two UN Human Rights Covenants adopted in 1966.
Since then the picture has changed radically, and labor standards are one of the basic discussion points in development circles. Since the Social Summit in Copenhagen, and with further discussions, the ILO's set of 4 categories of 'core labor standards' is almost universally the point of reference. The 'social clause' discussion - advocacy of linking trade privileges with respect for labour standards - has become part of the mainstream. The US has long had such a clause in its GSP legislation, though it is little used, and the European Union has a similar clause that takes an incentive approach rather than a penalty approach. This discussion was a significant one in the ILO in the mid-1990s, and when it became clear that the votes were not there to adopt it, it yielded the creative Declaration adopted in 1998. The discussions leading up to the World Trade Organization's creation, and discussions since then, keep circling around this point, though the current position is that the ILO alone should be responsible for setting and supervising international labour standards.
In the International Financial Institutions - the World Bank and its regional sisters, and the International Monetary Organization - there is also a new attention to labour standards as a tool for development. The World Bank has a "Core Labor Standards Toolkit" - shallow but a good basis - and the Asian Development Bank has contracted the ILO to provide it guidelines and a handbook to incorporate core labour standards into all its operations. A consensus is growing that respect for labour standards is essential to economic and social development, and that failure to respect labour standards has a definite and measurable cost for development.
The UN's Global Compact includes four labour standards among its nine principles.
And there is the corporate social responsibility movement, reflected in ISO standards and in a the growing number of corporate codes of conduct, reflecting at least a consciousness of the need to be seen to respect standards, even if the movement is disparate and unsupervised.
Finally, this is part of the growing consensus inside the agencies working on international development issues, that a 'rights-based approach to development' is the best way to proceed.
US participation in international labor standards
Now, the main question of this discussion: to what degree is the US a part of this discussion, or does it stand aside from it? And if the US does stand aside, should it now become part of the discussion or remain outside it?
My colleague and I are international civil servants, and thus cannot offer advice or analysis of the national situation in a member State beyond certain limits, unless asked, of course. Specifically, there are limits on our right to advocate ratification of Conventions, except within the policy adopted by the ILO - such as the current campaign to ratify all the ILO's core Conventions, which by now most ILO member States have done or are approaching1. So we hereby advocate early ratification of the 6 of the 8 of these Conventions the US has not yet ratified, and offer the ILO's services to the tripartite constituents to assist in this analysis. In fact, the US once made a general request to the ILO for assistance in this regard, and the Office stands ready to provide it should the request be made more specific.
I have said this because it corresponds to what we do in virtually every other country around the world. Even before the current interest in labour standards, the ILO had participated in drafting almost all the developing world's labour legislation, and it still offers regular advice to all member States on their labour law and practice.
Nor is this restricted to the developing world. In July 2002, I went to Japan to speak at an academic conference on workplace discrimination, and pointed that there were only 19 countries around the world that have not yet ratified ILO Convention No. 111, and only 3 major countries that had not yet done so. Of those, the ILO had been providing detailed advice to China on ratification (which is still going on), and that it had been submitted to the US Senate after detailed discussions with the Office on the Convention's requirements. Japan took this very seriously, and I returned 10 days ago from a very serious discussion in Tokyo on its implications with a wide selection of ministries, and with a prediction by the Government that the Convention would be submitted for ratification before the end of this year.
In the time we have, I will make only a few points:
Most of the labour legislation in the developing world, and in much of the developed world as well, is based on ILO standards.
As countries became independent beginning in the 1960s, and as they freed themselves from Communism in the 1990s, it was natural that new governments would turn to the ILO for labour law. In the most recent instance, we have been involved with the world's newest State, East Timor, for this purpose. And we give advice and counsel to others as they revise and modernize their legislation, to the tune of 50 or 60 pieces of labour legislation a year. An essential part of ILO advice is to assess conformity of draft legislation with ILO standards.
This creates a uniformity of labour law and principles around the world that favours equal treatment, and its existence favours stability and foreign investment.
The United States, however, has adopted a principle in its TAPILS discussions, based of course on the famous Bricker Amendment, that US labor legislation should not be revised by conventions adopted by an international organization. If I understand correctly, the principle has been extended to say that no Convention should be ratified if it would imply a change in US labor legislation. Is this not a bit exaggerated? I understand not using the ratification process to override the US legislative process- that makes sense, even if most countries in the world find that it is a rational way to amend some laws as long as you understand what you are doing. But virtually every other country in the world uses ILO standards as a guide to what its labor legislation should be, and adapts its legislation when necessary to allow ratification - should TAPILS not enlarge its frame of reference a little to include this idea? Let's face it, US legislation is not always the best in the world for working people, and there might be something to draw on from the experience of others.
Respect for ILO standards is a direct and significant contribution to respect for internationally-recognized human rights, and without respect for them a country cannot reasonably claim to be a rule-of-law country.
Respect for labor standards is necessary for both economic and social development, as is being recognized with increasing frequency in the work of international financial institutions and developing countries.
I will mention in passing here that the discussion on whether workers' rights are human rights was always a strange discussion, but is now firmly settled: ILO standards are an essential component of the international system of human rights protection. These two points together illustrate that increasing attention is being paid to labour standards in all international discourse on human rights and on development. The US has been a major factor in promoting this respect through its campaigns for including a labor standards component in the WTO machinery, and of course by its assistance to developing countries under the ILO IPEC programme and the Declaration programmes of action - i.e., by contributing financial help to the ILO to fight child labour and to promote core labour standards.
Here we face the essential problem that prompted the adoption of the internal US mechanisms for examining ILO standards, which was that lack of US commitment to the same standards that governed the rest of the world undermined the US's credibility when preaching conformity to these standards by others. The creation of the TAPILS process and the slow but steady commitment to ratify additional ILO Conventions as and when possible, stilled this criticism for a while - but the stalled examination of ratification, and the very low number of US ratifications is opening that gap again at a time when respect for labor standards by other countries remains a strong US position, and when the ILO standards system needs US support.
ILO supervision has proven a great unifying force and has exercised tremendous influence in creating the current respect - in law if not always in practice - for an agreed set of labour standards around the world.
The ILO has been lousy at blowing its own horn, but those of us in the system see daily impact and improvements from the ILO's blend of supervision, promotion and assistance. I can see that in the slow re-examination of discrimination of internal laws and practices on discrimination in China and Iran, where my own section has been working hard for several years, and I am sure Karen can cite other examples in the freedom of association area.
Here I have to welcome warmly the US's position that it will take part in ILO supervision even when that supervision is critical of the United States. There have been instances of severe criticism of US policy on freedom of association over the years, because that can be done even in the absence of ratification. And there are now some outstanding questions put to the US on the worst forms of child labour, following the ratification of Convention No. 182 and the US's first report on its application. What we now have to see is how the US will engage in a dialogue on a ratified Convention and whether, if the supervisory bodies find that there are problems, the US can go beyond a defensive position and discuss adapting domestic practice to international supervision.
And at the end of this review I will ask the following questions:
Does the US benefit from staying outside the system of common obligations undertaken through ratification by almost all other countries, and if so how?
And its corollary: does the US have anything to learn from examining its labor laws and practices in the light of those adopted by others, or is it already as good as it can get here?
I will leave the answers to these questions to the discussion, and not attempt to answer them myself. Certainly there is a feeling, often expressed by the United States, that it is not important whether the US has ratified these Conventions as long as it is in substantial compliance, but of course the lack of ratification makes it impossible to test this assumption by the same tools that are used by all other countries. I will also make it clear that the US is punctilious in respecting its formal obligations under the ILO standards system - it reports, it complies with requests for information, it participates in the supervisory process, and it is a strong player in the supervision of the application by other countries of ILO standards. But the answer to these questions is one for internal discussion in the US, and it will determine the future of the US involvement in the ILO system, and indeed in the entire international legal system for human rights.
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