New Forms of Global Labor Governance or

the Best of All Possible Worlds

Copyright © 2011 Marley S. Weiss

Can We Move From Universal Norms of Labor/Human Rights to Universal Obligations and

Enforcement Machinery

International human rights law, both civil and political, and economic and social, is predicated on the understanding that inherent in the human identity are certain moral entitlements that should be given legal form.

These norms are embodied in the Universal Declaration of Human Rights.

From the outset, however, whether these norms produce legal obligations, binding upon nation-states, much less upon other actors such as TNCs, has been contentious.

The move from moral philosophy to functional implementation mechanisms is precisely where we encounter great difficulty. By preserving enforcement to sovereign nations, we retain a membership (citizenship) based implementation and enforcement scheme, for a universal or “all-affected” set of rights and obligations.

Conventional Characterization of Global Labor Governance as

“Fragmented” – Historical Image Idealized image of historical national labor governance

regimes as “unified” or “integrated”

Etatist versions characterized primarily by governmental regulation

Corporatist versions characterized by bi-partite (peak labor and peak management) or tri-partite (labor-management-government) consensus regulation of labor markets and/or sectoral terms and conditions of work

Mythical levels of employer compliance with labor norms

Invisibility of non-standard workers and non-standard labor relationships

Labor markets as nearly entirely domestic; markets for goods and services primarily domestic

International Level Labor Governance – Historical Image

International Labour Organization (ILO) as primary international norm-setting organ

Tri-partite structure, but nation-state dependent in all aspects of the body; obligors and obligees, however, limited to member nation-states

U.N. Conventions (ICCPR, ICESCR and others) binding on nation-state ratifiers

Customary international law binding on all nation-states

As to economic, social and cultural rights, nation-states subject to duties “to respect, protect and fulfill.”

International Level Labor Governance – Historical Image

The obligation “to respect” means that the state itself is prohibited from directly acting to violate or interfere with these rights.

The obligation “to protect” goes beyond refraining from governmental action hostile to the rights in question by requiring the government to prevent violations by others. “To protect” means the state must enact and effectively enforce domestic legislation making these rights real in the labor market and workplaces of the country.

International Level Labor Governance – Historical Image

“The obligation to fulfill requires states to take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realization of such rights.”

This duty goes beyond simple incorporation and enforcement of the international norm within domestic law. It entails recognition and progressive elimination of impediments within other legal, social, and economic structures to the full effectuation of the objective of the international right.

The presumed unit of analysis, however, remains the internal structures and institutions of the nation-state as obligor to the convention.

Globalization Problems Globalization stems from a combination of dramatically

improved information, telecommunications and transportation technologies shrinking the effects of geographic space and legal changes decreasing the impermeability of nation-state borders for purposes of movement of goods, services and capital, while altering the framing of limitations of movement of persons, particularly workers.

In part by design, the cumulative effect has been to decrease power of national governments and institutions of governance over businesses, both as employers and otherwise, and to weaken the power of workers, individually and collectively, in comparison to business.

In addition, the scale of cross-border operations has vastly increased, posing separate regulatory issues for a legal order primarily based at the level of the nation-state.

Distinctive Labor Rights Structural Problem in Globalization

Labor and labor market-related migration rights, as compared to other economic and social rights (and civil and political rights), pose distinctive structural problems in this stylized description of the international legal order.

Each nation-state regulates terms of employment, terms under which freedom of association and collective bargaining rights may be exercised, and rules for lawful labor market participation status for immigrant workers.

Distinctive Labor Rights Structural Problem in Globalization (2)

At the domestic level, the main obligor of these rules is the employer, while the international norms, which the national laws are to implement and effectuate, are directed at the nation-state and not the employer.

On the international plane, the party with standing to enforce the international obligations against violation, for the most part, is another nation-state that is party to the instrument.

However, the intended beneficiaries and the main actors with a real stake in enforcement are the workers and their trade union representatives, who are usually subjects with enforcement rights under domestic law but not international law.

Distinctive Labor Rights Structural Problem in Globalization (3)

Globalization means increased mobility of businesses and workers‘ jobs, as well as goods and services, across national borders, but divergent national labor law regimes pose increasing barriers to effective implementation of the international norms.

These barriers remain even if both the sending and receiving country, regarded in isolation, have enacted domestic labor law regimes in full compliance with international obligations.

This is especially true of trade unions and other worker interest representation organizations, embedded actors in civil society as well as labor market economic representation, with incompatible structures and traditions in various countries.

Exclusivity and Government v. Networks and Governance v.

Fragmentation and Pluralism at the Domestic Level

At the domestic level, is the “new governance” really new? In what respects have things changed and to what extent are they just being re-labeled?

Civil society and business actors partnering with formal structures of government as a tradition, a deviation from tradition, a virtue, a necessity, or a contingent consequence of choices

Disciplinary divergences in the label “law”: Law as government-created norms, by definition with exclusive authority to enact; political science ambivalent as between government, governance, networks, and combinations; sociology treating private norm creation and customary norm creation as equivalent to government norm-setting

New governance theories’ tendency to erase “democracy” and “power” from the discussion

The Highly-Fragmented U.S. Labor Norm-Setting and Enforcement

System Even prior to the 1990s and this wave of globalization, the

operation of the U.S. system for legal norm-setting and enforcement was highly fragmented, rather than the unitary, idealized model.

The common law in the U.S. governing tort and contract comes in 51 variations, one for each of the 50 states plus the District of Columbia.

Although some statutory areas are exclusively federal, some are primarily or exclusively set in 51 divergent state models; others are set at both levels, allowing for variations of claims, standards, enforcement procedures, and remedies for violations at both state and federal level.

Private sector collective bargaining provides a unitary, single channel, exclusivity-based method of norm-setting (subject to federal and state minimum standards) and an internal enforcement system.

The U.S. System in Operation in Labor Law and Labor Relations – Operating

in a Semi-Lawless Environment American labor unions for the past forty years have increasingly had to

operate within an industrial relations system formally providing rights to organize and bargain collectively and imposing duties of recognition and good faith collective bargaining on employers, but lacking effective procedures and remedies to induce employer compliance.

Unions use all sources of legal and economic leverage to extract recognition and a collective agreement providing employees with decent wages, hours, and working conditions. These include collective labor law mechanisms, individual employment law rights and enforcement mechanisms both state and federal, legal claims under other bodies of law, including corporate law, environmental law, securities law, tort law, consumer boycott appeals, and corporate social responsibility campaigns. Strategic thinking about how to identify and combine sources of leverage is a part of most union campaigns, whether organizing or collective bargaining.

Individual employees are bound by exclusivity of union representation in collective bargaining and CBA enforcement, but (so far) retain individual enforcement rights over statutory claims such as minimum wage and overtime and employment discrimination violations.

Adaptation of U.S. Approaches

Increasingly, trade unions in other, heretofore more stable industrial relations systems are adapting some of these U.S. approaches to their own national environment.

In domestic organizing and bargaining campaigns, U.S. unions as well as unions from other countries, are increasingly asserting international labor rights, particularly as human rights, both for the moral effect and to motivate a favorable interpretation of domestic labor norms.

At the international level, unions are utilizing the pluralism of the international labor law order to select the most suitable among alternative mechanisms to bring their claims before an international audience. Although available remedies may matter, usually the publicity effect of a legal ruling is the main objective. The goal may be to produce change in government policy or change in labor policies of a TNC, or a combination of the two.

The International Labor “System” in the

Aggregate ILO norms, especially those derived from the Declaration of Fundamental

Principles and Rights at Work, are implemented not only through the largely soft enforcement mechanisms of ILO supervisory machinery,, applicable to nation-states alone, but also through incorporation by reference into bilateral and regional free trade agreement labor chapters, with somewhat harder enforcement mechanisms against party nation-states as well as more direct naming and shaming publicity effects upon systemic corporate lawbreakers. In addition, they are increasingly implemented through incorporation into binding or semi-binding corporate social responsibility codes of conduct, sometimes subject to investment withdrawal sanction, international framework agreements entered into with trade union confederations, and other highly decentralized and pluralist measures which begin to make them directly applicable against employers, albeit still producing no retrospective remedy for employees. The aim of these measures is largely to alter governmental behavior, hence corporate behavior, or to directly alter corporate behavior prospectively.

This is far from an integrated scheme; on the contrary, it is a pluralist and alternatively utilizable non-system. That is both its strength and its weakness.

E Pluribus Unum or Vice Versa

The U.S. system is on the one hand, one of exclusive government control at each level, and on the other hand, of radical pluralism in laws, fora, and between state and federal levels, as well as through collective bargaining.

The U.S. collective labor law system is one of exclusive bargaining agency, with the union having the right to totally displace the individual in bargaining over terms and conditions of employment, and subject to a duty of fair representation, to have a broad range of authority of resolution of individual claims arising under the collective agreement. Nevertheless, it stands alongside the wildly plural individual employment rights system as well as the totality of very plural broader legal system.

Collectively represented workers are able to maximize their bargaining power in an extremely hostile, almost unregulated environment through these mechanisms, while unorganized workers have almost no ability to utilize the system, and NGOs are able at best to vindicate the legal rights of workers through litigation, but can neither bargain effectively for individual or systemic terms, nor to pressure employers for systemic change.

Cosmopolitanism or Exclusivity – Worker Representation

Trade unions are able to effectively represent employees in the U.S. precisely because they have an exclusive franchise, running not only to their members but to all workers employed within the bargaining unit the union represents based on majority status.

They have considerable democratic legitimacy, and for the most part are subject to democratic constraints in their policies. They are further subject to democratic constraints in that many forms of job actions require rank and file participation.

They forge strong shared collective identities, based on mutual trust, reciprocity and loyalty.

Cosmopolitanism or Exclusivity – Worker Representation

NGOs, by contrast, are elite-led, either non-membership or mass membership organizations without much direct participation and with little sense of identity.

A non-exclusive organizing and bargaining system would either have to be based on the functional equivalent, or would be far less effective in producing sufficient collective worker power to countervail that of most employers.

Input and consultation means something very different than bargaining from a relatively equal position. An employer may consult with many, but in effect, unilaterally decide. It remains free to chart its own course. Open representation schemes can afford an opportunity for voice types of input, but not for serious bargaining.

Cosmopolitanism or Exclusivity – Worker Representation

At the global level, trade unions are beginning to forge stronger, and more permanent cross-border relationships while utilizing the national and local level building blocks pre-existing within domestic industrial relations systems. This is a vehicle for combining cross-border union power against cross-border employers without too strongly modifying national systems of industrial relations. International framework agreements and similar devices are nascent steps towards true trans-national collective bargaining without a transnational legal regime specifying an industrial relations model. It is a solution for a pluralist world.

A key limit on such arrangements is the need to grow into increased shared identity, reciprocity and trust. A universal obligation to all workers or even all union workers would be unworkable both in terms of the sentiments of the workers and in terms of the demands upon them.

Cosmopolitanism or Exclusivity – Government or

GovernanceGovernments that provide too much input to non-

governmental sources risk jeopardizing functional democracy.

Delegating decision-making to private actors in an unequal power environment strongly risks delegating unbridled power to those already wealthy and powerful, particularly big business interests.

Corporatist arrangements are predicated on “functional democracy,” or a democracy which takes into account separate interests of labor and capital in areas of their mutual social and economic concern, and rather than being an exception to this rule, is a special case which tends to prove it.

Cosmopolitanism or Exclusivity – Government or Governance

Shared identity and boundaries provide a basis in which to make political decisions; it legitimates those decisions as democratic and allows sufficient permanence to build a political community in which deliberative aspects of democracy can take place.

At the global level, international institutions and conventions remain plural, but largely controlled by exclusivity aspects of national sovereignty.

The EU illustrates the dangers of muddied thinking about new governance and indirect mechanisms distorting or eliminating accountability for citizens, seemingly technocratic methods yielding domination by corporate and financial interests without visible fingerprints. This breeds dangerous levels of disillusionment with the hollowed-out façade of democracy which has, historically, led to authoritarianism, xenophobia, racism, nationalist extremism, and other forms of extremism.

Pluralism Side By Side with Exclusivity? Can You Get There From

Here?

Universal human rights notions are based on the moral cosmopolitan idea of a core of shared entitlements necessary for human dignity.

The idea that these norms can be achieved through non-nation-state-based legal mechanisms, however, is both deluded and likely to produce perverse consequences.

Trans-border and multinational labor actors can function in coordinated ways, but must preserve their local and national democratic bases to ensure accountability and representativity to the workers.