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The Voyage of the Neptune Jade: the Perils and Promises of Transnational Labor Solidarity

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The Voyage of the Neptune Jade: the Perils and Promises of Transnational Labor Solidarity University at Buffalo School of Law Digital Commons @ University at Buffalo School of Law Journal Articles Faculty Scholarship Winter 1-1-2004 The Voyage of the Neptune Jade: The Perils and Promises of Transnational Labor Solidarity James B. Atleson University at Buffalo School of Law Follow this and additional works at: https://digitalcommons.law.buffalo.edu/journal_articles Part of the Labor and Employment Law Commons Recommended Citation James B. Atleson, The Voyage of the Neptune Jade: The Perils and Promises of Transnational Labor Solidarity, 52 Buff. L. Rev. 85 (2004). Available at: https://digitalcommons.law.buffalo.edu/journal_articles/807 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Journal Articles by an authorized administrator of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. The Voyage of the Neptune Jade: The Perils and Promises of Transnational Labor Solidarity JAMES ATLESONt An injury to one is an injury to all.' If you're not part of the solution, you're part of the problem. Sympathy strikes.., are becoming increasingly frequent because of the move towards the concentration of enterprises, the globalization of the economy and the delocalization of work centers. While pointing out that a number of distinctions need to be drawn here,. .. the [ILO Freedom of Association] Committee considers that a general prohibition on sympathy strikes could that workers should be able to take such action,2 lead to abuse and is itself lawful. provided the initial strike they are supporting t Distinguished Teaching Professor of Law, University at Buffalo. The author would like to thank Ellen Dannin for her careful comments on an earlier version of this paper, Alan Hyde, Patrick Macklem, Makoto Ishida, and Guy Mundlak for their suggestions, and Fred Konefsky for his unfailing support of this and all other projects. Jason Bowman, Kevin Hsi, John Haberstroh, and Erin Sobkowski provided valuable research assistance. Generous assistance was provided by the Baldy Center for Law and Social Policy and by Dean Nils Olsen. Versions of this effort were presented in a number of forums including the 1999 Intell Conference, Cape Town, South Africa; the 1998 Law and Society Conference, Chicago, Illinois; and the 1999 Labor Law Group Conference, Scottsdale, Arizona. Short versions of this paper have been published as James Atleson, The Voyage of the Neptune Jade: TransnationalLabour Solidarity and the Obstacles of Domestic Law, in LABOUR LAW IN AN ERA OF GLOBALIZATION 379 (Joanne Conaghan et al. eds., 2002) and James Atleson, "An Injury to one...". in TRANSNATIONAL LABOR SOLIDARITY AND THE ROLE OF DOMESTIC LAw 160 (James A. Gross ed., 2003). 1. INDUSTRIAL WORKERS OF THE WORLD CONST. PMBL., at http://pdx.iww.org/ preamble.html. 2. INTERNATIONAL LABOR ORGANIZATION, FREEDOM OF ASSOCIATION AND COLLECTIVE BARGAINING 74 (1994) [hereinafter FREEDOM OF ASSOCIATION]. BUFFALO LAW REVIEW [Vol. 52 INTRODUCTION This work is based on three propositions. First, that fairness-or rights-at work is critical to the functioning of a viable democracy. Senator Robert Wagner argued strenuously in the 1930s that fairness, participatory rights, and representation at work were critical if Americans were to take their political rights seriously. At a time when many argue that Americans have little interest in political participation, this connection may need to be remembered. Second, and closely related, is the notion that labor rights are human rights, although labor advocates and human rights specialists have not had much to do with each other until recently. That is, these rights are important totally separate from their functional use for creating independent power centers or for cementing political democracy. Human rights advocates have been understandably concerned about serious threats to health and safety as well as the suppression of democratic rights. Except for, perhaps, discrimination, the plight of workers as workers has not been a critical issue. Yet both labor and human rights stem from international documents. Labor rights are set out not only in International Labor Organization ("ILO") conventions and recommendations but also in UN documents such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights.3 Third, the recognition and protection of collective action is critical to the advancement of many kinds of rights, especially work-related rights. These rights are generally stated in individual terms, but all have a collective dimension. Many rights are meaningful only when exercised in a collective manner or, at least, can only be effectively achieved, recognized, and enforced in a collective manner. Global forces are making it more rational for workers to engage in cross-border sympathetic action. The 3. See Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GOAR, 3d Sess., Pt. 1, at 71, art. 20(1), art. 23(4), U.N. Doc. A/810 (1948); Int'l Covenant on Civil & Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, art. 22; Int'l Covenant on Econ., Soc., and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3, art. 8. 2004] NEPTUNE JADE transnational aspect of capital, including the cross-border mergers that are occurring, will mean that labor disputes in one country will be of concern to workers in another, even if they are not employed by the same firm. Indeed, a good deal of cooperative activity already exists.4 Much of this type of activity, however, will be unlawful, but this will not be the first time that rational strike activity occurred in the face of hostile law. Thus, the use of collective action will often involve the expression of a right-not because one is entitled to it and not because there is a remedy for its violation. The increasingly global nature of our economy has led many to consider whether labor rights could or should be deemed international human rights. The idea that all citizens of the world possess basic rights has gained currency in recent years, and it is certainly reasonable to argue that the workplace, the location in which people spend most of their lives, should not be exempted. Indeed, various international conventions and documents do indeed set forth specific workplace rights, and unions may be able to expand or enforce those rights by their own efforts. Separate from the notion that labor rights are human rights, the recognition and protection of worker solidarity is fundamental to the law of many nations. Recently, some have advocated a return to notions of workplace equity and industrial democracy, ideas embedded in the labor legislation of many nations.5 In the United States, for 4. A Lexis/Nexis search in October, 2001, for instance, revealed numerous strikes or threatened work stoppages within and across borders. Eight thousand members of the National Union of Metalworkers of South Africa, for instance, threatened to strike in solidarity with aluminum workers in Mozambique. See Irene Louw, Numsa Digs in Heels Over Auto Strike Sympathy Action Expected This Week, Bus. DAY (S. Afr.), Aug. 13, 2001, at 2. Workers of various airlines at the Dublin airport threatened to walk off the job in sympathy with striking British Midland workers. See Padraig Yates, One Hour Strike Could Shut Dublin Airport, IRISH TIMES, Mar. 3, 2001, at 6; see also Padraig Yates, British Midland Staff End Strike, IRISH TIMES, Mar. 6, 2001, at 4. The Korean Transport Workers Federation boycotted logs in sympathy with New Zealand workers. See Korean Boycott 'Threat to NZ's Reputation,' DOMINION (Wellington), Jan. 4, 2001, at 2. Sympathy strikes totally within countries occurred in South Africa and Korea. See, e.g., Major Auto Strike Hits South Korea, CHI. TRIB., Apr. 7, 2000, at 2; Louw, supra, at 3. Additional examples will be discussed subsequently. 5. See generally James Gross, A Human Rights Perspective on United States Labor Relations Law: A Violation of the Right of Freedom of Association, 3 EMPLOYEE RTS. & EMP. POL'Y J. 65 (1999); see also Lance Compa, UNFAIR BUFFALO LAW REVIEW [Vol. 52 instance, the concept of solidarity is embodied in the National Labor Relations Act's definition of "employee" which expressly extends beyond the boundaries of any individual employer. If worker solidarity is important to advance shared goals within one country, the increasingly global nature of work and the mobility of capital suggest that it is essential that worker solidarity exist across national boundaries. After all, the rise of transnational corporations makes it likely that in some instances worker solidarity efforts across national boundaries could be within the confines of one employer. This concern forms the initial idea of this work, an endeavor that also involves comparative and domestic labor law and the problem that legal rules often create serious obstacles to expressions of transnational labor solidarity. Labor unions are beginning to consider how they can take part in the world market and engage in actions that aid fellow workers elsewhere in the world.6 The interest in solidarity is motivated by the effects of globalization and international economic forces that perhaps affect workers more than nations. As defined by the ILO, globalization refers to the "worldwide wave of liberalization of trade, investment and capital flows and the consequent growing importance of these flows7 and of international competition in the world economy." I. LABOR AND INTERNATIONALISM Labor lawyers and unions, at least in the United States, have thus far not stressed international labor rights, and international human rights groups have not focused on ADVANTAGE: WORKERS' FREEDOM OF ASSOCIATION IN THE UNITED STATES UNDER INTERNATIONAL HUMAN RIGHTS STANDARDS 40-50 (2000).
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