Human Rights and Employment
ARTICLE | October 3, 2010 | BY Winston P. Nagan
In the development of internationally sanctioned standards for labor and employment there are some threshold considerations that must be taken into account. First, labor and employment rights generally fall within the category of social, cultural and political rights. This is to be distinguished from conventional, civil and political rights. Internationally, the institution which had primary responsibility for developing labor and employment rights has been the International Labor Organization which was founded under the League of Nations and now grandfathered into the UN system. Thus, labor issues were on the international agenda as matters of international concern prior to the development of human rights law under the UN Charter.
In 1948, the Universal Declaration of Human Rights was adopted. Articles 23 and 24 specifically identify and explain the issue of the right to work and employment as human rights from the perspective of the Declaration. These articles are as follows:
“1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal work.
3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
4. Everyone has the right to form and to join trade unions for the protection of his interests.”
“Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.”
The specific issue to note is that the Universal Declaration is an instrument of moral and political obligation, but it is not a Declaration that requires legally binding prescription, enforcement and application.
The ILO was an already established institution and it had developed a corpus of treaty law and practice prior to the UN era. The ILO was moved by the principle that “lasting universal peace can be established only if it is based on social justice.” Thus, it saw its mission as establishing social justice standards for all the world’s workers. The ILO therefore institutionally is an institution with a distinct bureaucracy, an established nomenclature, developed constituencies and consistent practices. The ILO did not see it as crucial that it integrate its approach to the newly developing human rights constituencies. Among the differences was the idea that human rights spokesmen talked of the abuse of individual human rights whereas the ILO emphasized the duties of states. The violation of individual human rights was expressed in terms of the failure to conform to international standards.
An important development occurred in the 1960s when the UDHR served as the foundation for the development of two critically important human rights treaties. One dealt with civil and political rights, the other with economic, cultural and social rights. These two instruments together with the UDHR are generally considered to be an International Bill of Human Rights. These instruments confronted strongly entrenched ideological positions which fed the Cold War. Western industrialized countries favored civil and political rights in part because they were judicially enforceable and essential for democratic political culture. On the other hand, the socialist states of the East took the opposite position. They favored economic and social rights but were not willing to embrace the implications of importing Western democratic principles via an International Bill of Rights. The ILO was in an awkward position politically and in practice, tended to be somewhat more distanced from the developing human rights community.
From a technical perspective, the limitations and objections to economic and social rights were that these were not really rights in a legal sense; they were more closely related to political and economic goals. In this sense, the central decisions about social economic justice were ones that were more suited to the political rather than the legal sphere of government. We should keep in mind that employment and labor rights influence and are influenced by most of the other rights in the International Bill of Rights. For example, on the agenda of the ILO has been such issues as slavery, forced labor, child labor, debt bondage, discrimination (gender and racial), and associational freedoms which include claims to collective bargaining, etc.
The modern view of human rights has generated a consensus that these rights are universal, indivisible, inter-dependent and interrelated. At the UN’s 1995 Summit on Social Development, the core labor rights such as freedom of association, the right to organize, and collectively bargain were reaffirmed as fundamental human rights. Development within the ILO was significantly furthered in 1998 when the Conference of the ILO adopted a “Declaration of Fundamental Principles and Rights at Work.” These developments do not explicitly articulate the idea of an individual’s enforceable human right to employment or the states duty to provide employment or a corporate obligation to do what is possible within sound business practice to avoid unemployment strategies of doing business.
If we conceptualize the right to employment and labor as encapsulated in the value of skill, it is possible to briefly map the way in which skill is a base of power for securing other articulate human rights values. For example, skill in terms of access to power is a base that is critical to the shaping and sharing of power. In this sense, skill is a critical value for protecting human rights interests tied up with the exercise of political power. Similarly, skill is an important base to acquire wealth and related economic values and is therefore critical for economic justice. Skill is also a base for access to education and enlightenment which is central to human development. Skill is also a base for access to health and well being as well as to the institutions of social rectitude. Thus, employment rights including access and performance influence every other human rights value. Similarly, every other human rights value will influence the shaping and the sharing of labor and skill values. With this in mind, we examine the problem of full employment as a human right. It may be at the outset, better to see this in terms of the political will and articulate ideology of the state and state responsibility. From this perspective it is self-evident that governments routinely intervene in matters that directly affect the economic status of the individual. Such interventions may well influence both quantity of employment opportunities available as well as the nature of these opportunities. Some obvious examples of governmental policy influencing these issues are its role in setting interest rates, its approach to budget deficits, the expansive or restrictive nature of its import and export policy, its tax policies, its military expenditure, its immigration policies, its approach to industrial development, its investment in the society, its licensing policies, its environmental regulations, and a good deal more. One illustration of the way in which an ostensibly neutral tax policy could influence employment patterns is the regulation that provides incentives for capital investment in the form of depreciation while providing disincentives to employment in the payroll tax. This suggests a partiality to investing in technology rather than labor.
To the extent that employment is one of the most important mechanisms for the allocation of purchasing power to the individual, the right to employment may be seen as the critical foundation of economic democracy. If society cannot assure the survival of all citizens through employment access, it may be that the state has a special obligation to provide employment opportunities for all. In short, the right to employment is not a privilege, it is a right. To the extent that economic survival is critically sustained by employment it could be argued that the right to employment has the character of a fundamental human right. The critical question then is: How strategically should the state act to secure this fundamental right to economic survival?
The International Commission on Peace and Food provided a report to the UN on this matter in 1994. Its principle point was that there had to be a universal affirmation of and commitment to, the delivery of fundamental economic rights to all. According to the International Commission there should be an approach which recognizes:
“.. [t]he right of every citizen to employment is the essential basis and the most effective strategy for generating the necessary political will to provide jobs for all. What is needed is not another job generation program, but a change in social values that will accelerate the natural and inevitable evolution of society, from one in which labor is regarded as a dispensable resource to one based on full human rights and the enormous productive potential of the human being. The type and magnitude of change needed today is comparable to that embodied in President Roosevelt’s New Deal for the American people during the Great Depression at a time when 25 percent of the work force was unemployed, to the Indian Government’s decision to launch the Green Revolution in the mid-1960s to achieve self-sufficiency in food grains at a time when the country was highly dependent on imported food to stave off famine, and to Mikhail Gorbachev’s initiatives late in the 1980s to end the Cold War and transform Soviet society.”1
There are many skeptics in political circles as well as academic and scientific circles who genuinely believe that full employment is simply an unfeasible policy. It is very possible that this outlook has a corrosive effect which initiates this discourse with an assumption of futility. Thus, a critical part of initiating this dialogue is the assumption that a full employment society is a realistic prediction if there is a plausible and wide-spread acceptance of the necessity of this in economic terms as well as the importance of this commitment in juridical and moral terms. In this sense, more may be required to fully explore all the ramifications of the notion of employment itself. This could include not simply the market value of labor but other components of labor that deal with the very nature of human development. An approach is suggested in the Human Development Report of 1990 which stresses that a significant element of the dynamic of employment is embedded in the “capability approach.” This approach suggests that economic measures of labor value are insufficient. For example, a measure like the GDP may unintentionally distort our view of the critical value of employment to individual and social well being. It may be that the notion of employment seen through the lens of capability would emphasize the production and distribution of freedom as a better indication of human value. According to the Human Development Report “the basic objective of development is to create an enabling environment for people to enjoy long healthy and creative lives. This may appear to be simple truth but it is often forgotten in the immediate concern with accumulation of commodities and financial wealth.” Central to the capability approach is the insight that social and economic arrangements should have as a key objective the expansion of human capability. This includes the freedom to defend and enhance valuable activity. Central therefore to the stress on capability is the expansion of human freedom in the aggregate in the economic sector. It also permits a clearer link to the fundamental human rights standards which are now the foundation of modern social organization. In short, what is central then to human rights approach to employment is the recognition of “opportunity freedom” (capability) and “process freedom.” These freedoms are then cornerstones of the dynamic of employment both in terms of the conditions of access and performance.
The challenge that a focused human rights approach generates is that it compels a discourse about the values which implicate human rights and are part of the culture of labor, skill and employment. This carries a further implication that these values must in turn provide compelling normative guidance for newer approach to the problem of a commitment to full employment. It may be assumed that the current flavor of dominant economic policy is one that either tolerates or may even tacitly encourage unemployment as an economically efficient mechanism for stabilizing the market, and the dominant business values of self-interest behind it. This means that we must generate a change in the discourse of our values and then look toward a process of those changes being reflected in a wide framework of decision making at all levels for the promotion of full employment. This a view also taken by the International Commission as follows:
“We must recognize that the present status and functioning of our economies is the result of specific choices that have been made in the past, based on priorities and values that were relevant or dominant at the time, but which we certainly are not obliged to live with indefinitely, and, in fact, are continuously in the process of discarding in favor of new values and priorities. The rapid adoption of environmentally-friendly policies around the world is positive proof of how quickly the rules, even economic rules, can change when there is a concerted will for a breakthrough.”2
1 International Commission on Peace & Food, Uncommon Opportunities: Agenda for Peace & Equitable Development, Zed Books, London, 1994, p.86. See http://www.icpd.org/UncommonOpp/CHAP04.htm.