Level of obligation with respect to ILO Conventions

Should we make an explicit reference to ILO conventions in Canadian free trade agreements?

Before contracting parties to a trade agreement commit to respecting workers ‘rights, they must first reach consensus and agree on a defined set of workers’ rights. Initially, under the North American Agreement on Labour (NAALC), a side agreement  to NAFTA, Canada and its partners outlined a list of rights, eleven in total, without making any reference to the ILO or the international labour law. Since then, Canada has established a list of internationally recognized labour rights and has made reference to two ILO documents: the ILO Declaration on fundamental principles and rights at work and its follow-up (1998) and the ILO Declaration on social justice for a fair globalization (2008).

For some,  including the European Union, such mention was not sufficient: an explicit reference to ILO conventions is still considered necessary. This would make the monitoring mechanism more rigorous since a direct reference to the relevant ILO Conventions would provide a  legal basis internationally recognized.

 

Ways to increase the level of obligation in labour chapters

  • Making an explicit reference to the eight fundamental ILO conventions. This offers the opportunity to map State practice with respect to the four principles of the 1998 Declaration: «(a) freedom of association and effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced or compulsory labour; (c) the effective abolition of child labour; (d) the elimination of discrimination in respect of employment and occupation» (quote from the 1998 Declaration).
  • Making additional reference to conventions related to the 2008 Declaration. In addition to fundamental rights, a reference could also be made to conventions on: the implementation of «acceptable conditions of work with respect to  minimum wages and hours of work»; the implementation of acceptable conditions of work  «with respect to occupational health and safety at work» (and compensation in case of breaching this right);  «providing migrant workers with the same legal protections as the Party’s nationals in respect of working conditions» (quote from the Agreement on Labour Cooperation between Canada and Colombia).

Arguments in favour

  • The reference to ILO conventions reinforces the universality of the rights mentioned, while the lack of reference points to an arbitrary and unshared choice of rights for workers at the international level.
  • It encourages contracting parties to ratify the conventions, if it has not been done yet.
  • Since the ILO has a monitoring mechanism for each of the conventions, requiring their ratification and their implementation would help to monitor their application at the national level more effectively. 

Arguments against

  • Imposing ILO instruments limits the sovereignty of States in the adoption and application of their laws.
  • Stronger States can use the reference to the conventions, an international legal instrument, as a way of practicing disguised protectionism against poorer countries.
  • The content of the conventions is often viewed as too consensual and «soft». Canada could promote standards and rights that are more specific and stronger.

What they said:

 

«Differences in conditions and levels of protection are somewhat linked to differences in levels of development. But if this approach is to be formalized, it presupposes the respect of certain common rules of the game. All the partners in the multilateral trade system must guarantee certain fundamental rights, without which workers cannot be assured of receiving their fair share of the fruits of economic progress generated by the liberalization of trade. The list of these rights seems no longer open to dispute: freedom of association and collective bargaining; the prohibition of forced labour, including forced labour of children; and non-discrimination (particularly in the form of «equal remuneration for work of equal value», stated in the Constitution).»

International  Office. «ILO Standard-Setting in a Globalizing World», Report of the Director-General, 85th Session of the ILC, ILO, Geneva, 1997

 

«The principal concerns identified [relating to the 1998 ILO Declaration] include: an excessive reliance on principles rather than rights, a system which invokes principles that are effectively undefined and have been deliberately cut free from their moorings in international law which in turn were based on many years of jurisprudential evolution, an ethos of voluntarism in relation to implementation and enforcement, combined with an unstructured and unaccountable decentralization of responsibility, and a willingness to accept soft ‘promotionalism’ as the bottom line. Rather than reiterating the grounds for these concerns, this conclusion will focus on the two most problematic dimensions — undefined standards, and promotional monitoring.»

Philip Alston. «The ’core Labour Standards’ and the Transformation of the International Labour Rights Regime», in «Social issues, globalisation and international institutions : labour rights and the EU, ILO, OECD and WTO », International Studies on Human Rights, Leiden, Boston, Martinus Nijhoff Publishers, 2006

 

«The importance of the ILO’s contribution to global governance cannot be overemphasized by crystallizing a consensus around the identification of fundamental principles and rights at work and their significance, also in the progress of other workers’ rights, as «rules of the game» necessary for a fair distribution of the growth profits.» (free translation)

Francis Maupain. «The ILO in the face of financial globalization – Can we regulate without constraints?»,  ILO – IIES, 2012


Concerning the 1998 ILO Declaration on fundamental principles and rights at work, mentioned in the United States-Peru Agreement:
«The inherent vagueness of the Peru Agreement’s obligation to up-hold the ILO Declaration prevents it from providing the guidance necessary to determine whether a party has violated its  chapter […] Additionally, the ambiguity of the obligation allows for flexible interpretations that can sanction insufficient  standards. This risk has the potential to exacerbate the proliferation of divergent international  standards and further divest the ILO Declaration’s principles of meaning.»

Michael A. Cabin. «Rights in the Peru Agreement: Can Vague Principles Yield Concrete Change?», Columbia Law Review, vol. 109, n° 5, 2009

 

«Where labour provisions refer to ILO conventions, parties can rely on ILO supervisory bodies’ reports, which provide guidance on the interpretation of labour standards. By contrast, the 1998 Declaration is not, as such, monitored by the ILO’s supervisory bodies, although some guidance on the 1998 Declaration may be drawn from the comments of ILO supervisory bodies on the fundamental conventions.»

International  Labour Organization. «The social dimension of free trade agreements», ILO and IIES, Geneva, 2013

 

«In 1998, the ILO acquired a new tool in the form of the   «Declaration on fundamental principles and rights at work» (hereafter referred as «Declaration»). The declaration was an attempt to restore universality to international standards by limiting the scope into the so-called core conventions. […] It was expected or wished to be accepted as being based on universal values and ideas from the humanist point of view […], including the point of view of non-Western developing countries. […] It must be understood that the very idea of human rights is being attacked by the non-Western world. The question is whether these are truly universal or mere Western ideas.»

«Tadashi Hanami. Deregulation and International Regulation: An Asian Perspective», in «Changing Industrial Relations & Modernisation of Labour Law: Liber Amicorum in Honour of Professor Marco Biagi, Roger Blanpain et Marco Biagi», Kluwer Law International, La Haye, 2003