Michigan Journal of

Volume 34 Issue 4

2013

Shared Responsibility and the International Labour Organization

Yossi Dahan Law School, College of Law & Business, Ramat Gan

Hanna Lerner Tel Aviv University

Faina Milman-Sivan Haifa University

Follow this and additional works at: https://repository.law.umich.edu/mjil

Part of the International Law Commons, Labor and Law Commons, and the Public Law and Legal Theory Commons

Recommended Citation Yossi Dahan, Hanna Lerner & Faina Milman-Sivan, Shared Responsibility and the International Labour Organization, 34 MICH. J. INT'L L. 675 (2013). Available at: https://repository.law.umich.edu/mjil/vol34/iss4/1

This Article is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. 34040-mil_34-4 Sheet No. 5 Side A 10/10/2013 11:12:26 R R R R R R R R R R R R R R R R R R R R R R R ...... 689 ...... 719 ...... 694 ...... 690 ...... 685 ILO ...... 686 ...... 688 ...... 710 ...... 697 AND ...... 709 , ...... 714 ESPONSIBILITY ...... 718 ...... 718 R ABOR ...... 706 ...... 716 L ...... 701 675 TANDARDS ...... 680 ...... 714 S ODEL OF RAMEWORK OF THE ARTICLES M F ABOR ...... 693 , L NJUSTICE TATIST I ...... 682 ...... 693 ...... 696 ESPONSIBILITY AND R and Representations Declaration Follow-Up ...... 676 ILO: A S 4. Contribution Principle The 1. Reporting System The Regular 2. Procedures Based on Complaints Supervision 3. Tools: Technical Assistance and Additional 1. Principle The Connectedness 2. Capacity Principle The 3. Beneficiary Principle The 1. Tripartism 2. Process and ILS The Norm-Generating Shared Responsibility: An International Approach Shared Responsibility: An International and a Global Civil Society Approach Principles of The Labor Connection Model and Shared Responsibility The Gap of Labor Law The Deterritorialization Injustice The Problem of Background of Responsibility A New Conception A Historical Perspective The Statist Model: The Statist Model and the ILO’s Organizational Structure and The ILO’s Supervisory System: Sanctions Incentives Yossi Dahan, Hanna Lerner & Faina Milman-Sivan* Yossi Dahan, Hanna PPLICATION IN THE LOBALIZATION ACKGROUND HE HARED SHARED RESPONSIBILITY AND THE AND RESPONSIBILITY SHARED A S A. B. B A. B. C. D. T A. B. C. G I. * Law School, College of Law & Business, Ramat Gan; Department of Political II. INTERNATIONAL LABOUR ORGANIZATION INTERNATIONAL IV. III. NTRODUCTION M K Science, Tel Aviv University; Faculty of Law, Haifa University, respectively. The authors would like to thank Einat Albin, Mark Barenberg, Carol Gould, Judy Fudge, Anke Hassel, Alan Hyde, Brian Langille, Doreen Lustig, Guy Mundlak, Miriam Ronzoni, Prakash Sethi and Marley Weiss for their helpful comments and suggestions. Special thanks to Hila Shapira, Liat Leizer and Rafi Sabag for their research assistance and to Dana Meshulam for editorial assistance. The research for this Article was supported by a grant from the ISRAEL SCIENCE FOUNDATION (Grant No. 1340/09). I \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 1 4-OCT-13 9:22 C Y 34040-mil_34-4 Sheet No. 5 Side A 10/10/2013 11:12:26 A 10/10/2013 5 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 5 Side B 10/10/2013 11:12:26 R R R R R R R M K C Y , 16 The TAN- 34:675 This S 1 ERKELEY LOBALIZA- IGHTS AND [Vol. 457 (2004); ABOR , G L , 32 B HALLENGES OF L. R L ’ C AN 1, 1, 10 (Andreas NT ? , C ABOUR AUFMAN . J. I K L UR REEMAN ORE OLIDARITY C Core Labour Standards” and the S , 15 E ABOUR AND THE B. F ...... 723 HRISTINE L in , ...... 720 ETWEEN ICHARD ...... 734 ...... 728 B Trade, Labor and International Governance: & R 5-6 (2003); C http://www.ilo.org/declaration/thedeclaration/ Core Labour Rights – The True Story (Reply to RANSNATIONAL ? T ONFLICT LLIOTT NTRODUCTION I C E In their work, they generally neglect an analy- In their work, they generally neglect 5 (2007); Philip Alston, “ HE 2 NN available at AW A : T 409, 420-21 (2005). L LOBALIZATION ROSPECTS FOR ], L. G ...... 728 P IGHTS L Michigan Journal of International Law ’ IMBERLY NT R HAT CONOMIC . 45, 49 (2011); Andreas Bieler, Ingemar Lindberg & Devan Pillay, , K ...... 740 : W E . J. I 467, 472 (2005); Kevin Banks, ILO Declaration on Fundamental Principles and Rights at Work and Its Fol- ILO Declaration on Fundamental Principles . L 1. Borders Beyond Territorial State Responsibility 2. . Responsibility Private Actors’ 722 1. The Reporting System 2. The Complaints System Expanding the Scope of Actors Responsible for Responsible Actors Scope of the Expanding Labor Standards International Proposals for Supervisory System: The ILO’s Reform Facing up to the Complexities of the ILO’s Core Labour Standards Agenda ABOUR UR L. AB L ’ DARDS L TION AND See, e.g. A. B. NT MPROVE UNDER ILO Declaration , 16 E , June 18, 1998, 37 I.L.M. 1237, 1237-38 (1998) (annex revised June 15, 2010) [herein- , June 18, 1998, 37 I.L.M. 1237, 1237-38 (1998) . & L I How should the international labor regime be reformed in order to labor regime be reformed How should the international . J. I 2. 1. worldwide consensus elaborated on By minimum labor standards, we refer to the MP ONCLUSION LOBALIZATION UR NTERNATIONAL is the central question we address in this Article. It has been weighed and we address in this Article. It has is the central question who analyze scientists, legal scholars, and philosophers, discussed by social and legal perspectives. Yet interest- it from various economic, political, been, by and large, characterized by a ingly, the literature in this field has hand, labor law scholars typically ad- sharp disciplinary divide: on the one standards from a detailed practical dress the issue of international labor in terms of enforcement, efficacy, or perspective, defining the problems to the effective implementa- other institutional and procedural obstacles tion of existing regulations. sis of the normative aspect of the institutions they discuss. On the other sis of the normative aspect of the institutions theorists who focus on a philo- hand, the few philosophers and political textdeclaration/lang—en/index.htm. Transformation of the International Labour Rights Regime guarantee all workers around the world minimum labor standards? around the world minimum labor guarantee all workers I J. E G in the Article, which can include the four core recognized by the International in the Article, which can include the four core some level of minimum wage and health and Labour Organization (ILO) in addition to (1) “ and the effec- safety protection. The ILO four core rights include (2) “elimination of all forms of forced tive recognition of the right to ”; of ”; (4) “elimination of dis- or compulsory labour”; (3) “effective abolishment Int’l Labor Conference, 86th Sess., crimination in respect of employment and occupation.” Geneva, Switz., low Up after 676 C \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 2 4-OCT-13 9:22 Bieler et al. eds., 2008); Brian A. Langille, Alston) Philip Alston, Future of the Global Working Class: An Introduction An Inquiry into the Potential Effectiveness of the New International Labor Law E 34040-mil_34-4 Sheet No. 5 Side B 10/10/2013 11:12:26 B 10/10/2013 5 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 6 Side A 10/10/2013 11:12:26 R . 85, 677 TAN- OMP 580, 372, S OMPLI- 22, 41 OVERTY IGHTS J. C C AWS AND P L or inter- ’ YSTEM R Responsibil- L 5 RADE S ABOUR NT PPRAISAL T L A UMAN , 15 I EGAL THICS OF ABOUR International Labor 365, 371-76 (1999); H L E J. , Jan. 2006, at 102, 119. ,L Y Y 258, 264-65 (Catherine ’ ’ RITICAL THE AW : OL OL OMMITMENT AND EPPLE C L IGHTS AS 801, 810-19 (2009) (criticizing 359, 359-61 (Colin Fenwick & : A C conception of responsi- NTERNATIONAL NTERNATIONAL H R 3 in . & P I I J. note 2, at 409. , USTICE ORK OB Y ’ HIL . L. & P J IGHTS ABOUR NTERNATIONAL The Paradox of Workers’ Rights as W statist AND OL . P AB I L supra R ABOUR , 154, 154 (2009). institutional structure, OC . . L L 4 in ,S TS Is the ILO Effective in Upholding Workers’ , IGHTS UMAN OMP . L. & P . R IGHTS AT H R LOBALIZING R UTURE OF AB The Future of : Is There a Role for UM OMPLIANCE WITH 536, 536-37 (2010); Iris Marion Young, , G F Taking Social Rights Seriously? Is There a Case for Taking Social Rights Seriously? Is There a Case Testing Times for the ILO: Institutional Reform for , 20 C . L H . C ABOR ORMAS IN THE HE UMAN T Lessons from the Experience of the International Labour Lessons from the Experience of the International OMP N TUD , L H ILLER On the Confusion Between Ideal and Non-Ideal in Recent On the Confusion Between Ideal and Non-Ideal in Shared Responsibility Shared . S in , ATIONS AND , TEPS TO 30 C THICS OF OL The International Labor Organization in the Stag Hunt for The International Labor Organization in the IGHTS , N ,S INDING W. M R -B 58 P , NITED ON 229, 237-38 (1999); Langille, . The Virtuous Cycle: A New Paradigm for Democratizing Global Gov- The Virtuous Cycle: A New Paradigm for Democratizing U ICHARD UMAN N , 3 L. & E HOMANN EL H The ILO and the New Economy: Recent Developments HE T ,R . R T in 66 (2005). the reforms we suggest in this Article are based on a multidis- the reforms we suggest , ARS in 6 OLE OF , 60-62 (2010); Lea Ypi, NDUS DARDS R ANCE AND RADE See, e.g. T HE 62 (2011); Virginia A. Leary, OWER : T Our chief claim is that a very central yet seemingly unnoticed obstacle that a very central yet seemingly unnoticed Our chief claim is In this Article, we seek to bridge this interdisciplinary gap between bridge this interdisciplinary we seek to In this Article, P . L. & I 4. system, in particular, see, For a discussion of the efficacy of the ILO’s supervisory 6. For criticism regarding the sharp drop in the rate of ratification of ILO conven- 3. 5. system, see, for example, For criticism of the structure of the ILO norm-generation LOBAL AB M K nal politics, 372 (Dinah Shelton ed., 2000);Maupain, Francis (Lance A. Compa & Stephen F. Diamond eds., 1996); Francis Maupain, (Lance A. Compa & Stephen F. Diamond eds., Organization: Recommendations and Similar Instruments Organization: Recommendations and Similar Institutional Reform of the ILO? 85 (Philip Alston ed., 2005); Jill Murray, Rights?: Reflections on the Myanmar Experience 580-81 (Philip Alston ed., 1992); Virginia A. Leary, 580-81 (Philip Alston ed., 1992); Virginia Barnard et al. eds., 2004); Sean Cooney, the New International Political Economy for example, L Tonia Novitz eds., 2010). For a discussion of the efficacy of the ILO from a game theory Tonia Novitz eds., 2010). For a discussion of perspective, see Alan Hyde, Global Labor Rights ciplinary approach that draws from a philosophical analysis of theories of that draws from a philosophical analysis ciplinary approach global justice. stems from of the ILO’s goals in the era of to the realization of a the Organization’s continued espousal the philosophical-normative and empirical-legalistic analytical frameworks analytical and empirical-legalistic the philosophical-normative proposes a this Article More specifically, labor standards. of international interna- by the primary to be adopted of responsibility new understanding purpose of promot- that was established in 1919 for the tional organization on the global level—theing labor rights Labour International of corresponding re- The Article also proposes a set Organization (ILO). it is facing in the the ILO to the unique challenges forms that will adapt of the ILO, which In contrast to earlier legal studies twenty-first century. of its efficacy, have focused on questions Debates on Global Justice tions, see, for example, Breen Creighton, International Labour Standards? L G Summer 2013] the into account to take fail rights often labor of global analysis sophical law. labor legal details of international practical \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 3 4-OCT-13 9:22 Organization Brian A. Langille, ity and Global Justice: A Social Connection Model the current ILO structure’s inability to effectively represent diverse interests). For general criticism of the ineffective methods of the ILO, see B Faina Milman-Sivan, ernance Through Deliberation C Y 34040-mil_34-4 Sheet No. 6 Side A 10/10/2013 11:12:26 A 10/10/2013 6 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 6 Side B 10/10/2013 11:12:26 M K , C Y EW : N 34:675 LVAREZ [Vol. E. A ´ E OS LOBALISATION G AKE OF W xiii (2005). In the context of the ILO, responsibility, one that offers both responsibility, one AKERS ABOUR IN THE -M L shared AW L 1, 13 (Brian Bercusson & Cynthia Estlund eds., 2008). Regulating Labour in the Wake of Globalisation: New Chal- EGULATING R in This conception generally focuses on the state as the focuses on the state generally This conception Michigan Journal of International Law , 7 NSTITUTIONS I RGANIZATIONS AS EW O , N On this background, we propose and develop in this Article an inno- we propose and develop in this On this background, Our argument proceeds in four stages. In Part I, we begin by norma- Our argument proceeds in four stages. 7. For the contention that international organizations should reconsider the state- HALLENGES NTERNATIONAL key actor within the ILO in terms of generating and enforcing interna- and enforcing in terms of generating within the ILO key actor responsibility to (ILS), and thus fails to allocate tional labor standards or to relevant pri- that occur beyond their jurisdiction, states for violations political, and legal However, recent economic, vate bodies for violations. the nation-state’s the global labor market have eroded transformations in of labor standards and enforce a minimum level capability to regulate same time empower- of other states, while at the without the cooperation (TNCs). actors such as transnational corporations ing private nonstate conception of vative alternative a theoretical model and a practical foundation for reforming the ILO’s and a practical foundation for a theoretical model for remedying Under our model, responsibility structure and mechanisms. global labor market should be borne the unjust working conditions in the that take part in global produc- by a complex set of agents and institutions should assign legal responsibility for tion. It is our assertion that the ILO labor market not only to the states unjust working conditions in the global standards arise, but also to brands in whose territory violations of labor under certain circumstances, responsi- and powerful TNCs. Additionally, in whose territory these brands or bility should be assigned to the states While we are aware that these pro- the corporation headquarters reside. as pragmatic and political difficulties, posals might pose conceptual as well values are already embedded we show that the “seeds” of these underlying in existing ILO mechanisms and procedures. the structural disadvantages of tively establishing the need to address This Part draws from recent legal workers in today’s global labor market. labor law, as well as from scholarship on the problem of deterritorializing justice, particularly the problem of philosophical discussions on global global institutions. Both structural injustice characterizing contemporary lead to a similar conclusion: the legalistic and philosophical approaches states to enforce the widely-agreed- given the reduced ability of individual global labor market, a fundamental upon labor standards in a transformed labor regime is required. In taking structural reform of the international up this challenge, we point to the question of responsibility as key to such Bercusson and Estlund have recently pointed out that “most international organizations have the been formed, and continue to function, largely as -based creatures of states. So weakness of states has implications, as well, for international organisations . . . .” Brian Bercusson & Cynthia Estlund, lenges, New Institutions centric ways in which their norm-generation processes are described, see J C 678 era. the global in inadequate and to be outdated we argue which bility, this statist mechanisms, and enforcement the ILO’s structure Underlying sole or pri- to be the holds the nation-state of responsibility conception member workers within the toward bearing responsibility mary agent states’ jurisdiction. \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 4 4-OCT-13 9:22 I 34040-mil_34-4 Sheet No. 6 Side B 10/10/2013 11:12:26 B 10/10/2013 6 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 7 Side A 10/10/2013 11:12:26 R 679 ORLD : W IGHTS R Yet in contrast to UMAN 9 H . 365, 365-88 (2004); Young, 120-21 (2011); Iris Marion HIL 99-100 (2007). labor connection model of labor connection model .P AW USTICE OL L J , 12 J. P ESPONSIBILITY FOR R NTERNATIONAL and Margot Salomon. 8 I LOBAL ESPONSIBILITY FOR Shared Responsibility Shared ,G , R OUNG . This theoretical model is proposed as a regulatory . This theoretical ALOMON Y EVELOPMENT OF E. S D ARION M ARGOT RIS Responsibility and Global Labor Justice note 3. Lastly, Part IV suggests some practical measures to be taken within Lastly, Part IV suggests some practical As shown in Part II, the statist conception of responsibility has under- responsibility has conception of in Part II, the statist As shown presenting this Article is, accordingly, devoted to The rest of this 9. M 8. I OVERTY AND THE M K earlier models, our model offers a unique and more suitable response to earlier models, our model offers a faced by international labor regula- the reality of the global labor market Our model is grounded on four prin- tors and enforcement organizations. workers’ rights amongst the various ciples for allocating responsibility for in the global labor market, particu- actors and institutions that participate production chains. The four principles larly those that participate in global that is, participation is shared ac- include (1) the connectedness principle, principle, which refers to the tivity such as production, (2) the capacity to remedy unjust working condi- individual’s or the institution’s capacity in terms of financial profit, tions, (3) the beneficiary principle, understood which takes into account any conduct and (4) the contribution principle, causal relevance to the unjust condi- by individuals or institutions that has and expand on these four princi- tions of workers. In this Part, we outline in global labor law. ples and demonstrate their application ideal of the labor connection the ILO in order to implement the regulatory addressing in particular the ILO’s su- approach to shared responsibility, pervisory system. We begin by identifying the actors that could be consid- ered responsible for remedying unjust labor conditions under the four principles of shared responsibility allocation. We conclude that the ILO the should assign legal responsibility for workers’ rights to key actors that supra Young, P Summer 2013] unjust the for remedying held responsible be Who should namely: reform, age of globalization? of workers in the conditions to be and continues from its very beginning ILO structure pinned the This Part institutions. its key organizational embedded in all of strongly ILO’s basic conception in the of this in detail the manifestations analyzes its supervisory procedures, and particularly structure, its norm-generating As we argue the complaints and reporting procedures). system (including the protection of recent global economic developments, in Part I, in light of responsi- the global level mandates a new conception of labor rights on boundaries of the into account actors beyond the bility, one that takes nation-state. required and the institutional arrangements model of shared responsibility begins by laying out implement this conception. Part III within the ILO to of responsibility: a our alternative conception \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 5 4-OCT-13 9:22 shared responsibility ideal, designed to replace the statist conception of responsibility. Ours is ideal, designed to replace the statist responsibility to be proposed in the not the first general model of shared recent years. Other examples include legal and philosophical literature in those developed by Iris Young C Y 34040-mil_34-4 Sheet No. 7 Side A 10/10/2013 11:12:26 A 10/10/2013 7 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 7 Side B 10/10/2013 11:12:26 R R M K C Y ABOR 34:675 UTURE L F [Vol. The dire 14 The liberali- 745, 755 (1995). . 11 CON AND NTERNATIONAL , E I International Labor Stan- in , and Core ORLD EMOCRACY AND THE : D , 6 W In developed states, hyper- TANDARDS 12 S NJUSTICE ARADOX , at 21 (2011). I P ABOR , L Trade Liberalisation and ‘Fair Trade’ Demands: Ad- 13 LOBALIZATION ACKGROUND G B note 10, at 86-87. 86-87 (2011). HE note 10, at 86-87. , T Michigan Journal of International Law LOBALIZATION supra , 39-42 (Oct. 10, 2000); Robert J. Flanagan, supra at , ODRIK CONOMY , Economic globalization has enhanced global Economic globalization has enhanced , Jagdish Bhagwati, I. G Global Employment Trends 2011 E R 10 ODRIK R , Org. for Econ. Co-operation & Dev. [OECD], ANI 16 (Robert J. Flanagan & William B. Gould IV eds., 2003). ODRIK OF THE ORLD See See e.g. W Consequently, in the current global economy, only a minority of the Consequently, in the current global In recent years, a growing number of economists have recognized that growing number of economists have In recent years, a 13. R 11. 14. ILO, 12. 10. D TANDARDS working conditions in , particularly for women and in develop- working conditions in sweatshops, particularly zation of trade and greater global integration have translated into compet- zation of trade and greater global integration and have facilitated the entry of new itive pressure on individual states Such new actors are mainly TNCs, actors into the global labor market. in the developing world, in which utilize cheap labor forces, particularly that serve mostly members of de- order to produce products and services over foreign investment and the in- veloped states. Interstate competition have reduced the will of national ternationalization of production chains governments to enforce labor regulations. globalization has resulted in greater insecurity for working people and an globalization has resulted in greater workers, as well as between workers ever-increasing income gap among and management or investors. among states over capital and jobs and, consequentially, has generated a among states over capital and jobs chill” of labor standards in various “” or “regulatory in developing countries. sectors, mostly but not exclusively, dards and : Perspectives from the Developing World Labour Standards dressing the Environmental and Labour Standards Issues world’s working people hold jobs that are well paid, where their funda- world’s working people hold jobs that ensure them some security in the mental rights are respected, and that illness, or other crises. event of job loss, personal or family globalization—namely,of markets and goods the international integration since the 1980s—hasthat has accelerated economic insecurity increased for workers. S 680 the territorial are not that states ignores: currently system supervisory powerful occurs and labor rights violation the particular state in which then chains. The discussion global production participate in TNCs that procedures in the supervisory necessary on the specific changes elaborates bor- across national enforce labor standards in order to and mechanisms responsibil- the shared the values underlying moreover show that ders. We design, in present in the ILO’s institutional ity model are already and difficulties supervisory system. The advantages particular in its and contended proposed reforms are also considered presented by our with. \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 6 4-OCT-13 9:22 See generally 34040-mil_34-4 Sheet No. 7 Side B 10/10/2013 11:12:26 B 10/10/2013 7 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 8 Side A 10/10/2013 11:12:26 R R R , , USI- 681 221, supra ORPO- B OWER , RAVELS Q. ORKERS available , P : C T : W Every Child HE THICS ,T AUFMAN ARKETS . E The 2008 ec- (2007), http://www.ilo.org/ ILO, 19 UANDARY US ANDBOOK OF M IVOLI Q H R WEATSHOPS , 13 B S see also XFORD IETRA O available at WEATSHOP XAMINES THE ], HE S E T ONITORING The lack of labor standards is The lack of labor Child Trafficking Information Sheet HE in 18 , ,M 4 (2004); P note 14, at 71. 66-68 (Pamela Varley ed., 1998); Denis G. , at 25-26 (2002) (estimating that 1.2 million CONOMIST Human Trafficking: The Facts E supra N , NDUSTRY RONTIER I SBENSHADE : A F E Indeed, the scope of the problem is appal- the scope of the problem Indeed, , at 14. Women in Labour Markets: Measuring Progress and 16 ILL Shared Responsibility Shared 89 (2d ed., 2009); T PPAREL LOBAL CONOMY ILO 2012 Global Estimate supra A Sweatshops and Respect for Persons G , E RADE T LOBAL 2012 Global Estimate of : Results and Methodology, at 2012 Global Estimate of Forced Labour: Results LOBAL , at 5 (2010). G G ORLD W 628, 629 (George G. Brenkert & Tom L. Beauchamp eds., 2010); Denis G. 628, 629 (George G. Brenkert & Tom L. NESS RATE OF A Id. Global Employment Trends 2011 HIRT IN THE ILO Global Estimate Working Conditions: Safety and Sweatshops ESPONSIBILITY ON THE In Sub-Saharan Africa and South Asia, around four-fifths of the Africa and South Asia, around four-fifths In Sub-Saharan THICS OLITICS OF Many of these production workers are employed under devastating workers are employed these production Many of note 2, at 1, 10. Women consistently receive lower wages, as they often work in segre- R 17 T-S E P 15 18. 19. It is estimated that the majority of workers in the world today work in the informal 15. J For a few examples, see 17. 16. persons are the victims of forced Further, it is estimated that currently 20.9 million (June 1, 2012) [hereinafter http://www.unglobalcompact.org/docs/issues_doc/labour/Forced_labour/HUMAN_TRAF ONSUMERS AND THE M K onomic crisis demonstrated that sizeable economic sectors are equally vul- that sizeable economic sectors onomic crisis demonstrated most common in—but not limited to—developing regions. ling. In 2011, 30% of the world’s workforce—more 30% of the world’s ling. In 2011, work- than 910 million ers—earned poverty line, as the global day, which is defined less than $2 a world’s workforce) 456 million workers (14.8% of the and an estimated extreme poverty $1.25 a day, which is defined as the earned less than line. conditions, from the relatively mild harms of low wages and unsteady job security, to condi- tions of extreme exploitation, slavery, and abuse. Atypical or nonstandard work is prevalent, of although less salient, in developed countries as well. For example, this accounts for 25% the workforce in the . Atypical jobs are usually taken on by the most vulnerable social groups, including migrants, minorities, women, and children. Bieler, Lindberg & Pillay, supra gated sectors that are generally characterized by low pay, long hours, and oftentimes infor- mal working arrangements. ILO, Identifying Challenges note 2. Within the informal economy, atypical employment includes a wide range of working Arnold, employed are classified as “working poor.” employed are classified conditions, working unrestricted hours and lacking the most minimum lacking the most hours and working unrestricted conditions, health conditions. safety and economy, with most of those workers coming from developing countries. K Arnold & Norman E. Bowie, AND Summer 2013] stud- numerous in acknowledged and described have been ing countries, ies. C \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 7 4-OCT-13 9:22 Counts: New Global Estimates on Child Labour U.K., children are trafficked worldwide); UNICEF, both in the United Kingdom and (2006) (discussing the nature of child trafficking worldwide). for forced sexual exploitation, and 98% are About 22% of the trafficked victims are used women. 231-33 (2003). labor worldwide. ILO, 11 wcmsp5/groups/public/-ed_norm/-declaration/documents/publication/wcms_182004.pdf. As wcmsp5/groups/public/-ed_norm/-declaration/documents/publication/wcms_182004.pdf. forced labor victims are trafficked. U.N. of 2007, the U.N. estimated that about 2.5 million Global Initiative to Fight Human Trafficking, at a 2007 ILO study); FICKING_-_THE_FACTS_-_final.pdf (citing C Y 34040-mil_34-4 Sheet No. 8 Side A 10/10/2013 11:12:26 A 10/10/2013 8 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 8 Side B 10/10/2013 11:12:26 R R M K C Y 34:675 [Vol. note 22 and see also infra Wrongful Beneficence: Exploita- Globalization and Informal Jobs in level, namely, in the interac- 20 319, 319 (2004); . HIL . P The Gap OC interactional A. , 35 J. S note 3, at 60-62; Chris Meyers, This limitation often stems from the asymmetry of This limitation often stems from the 21 Michigan Journal of International Law supra , , at 10 (2009). ILLER M [WTO] & ILO, See See The fact that workers may benefit from their work arrangements, rela- From a philosophical-normative perspective, the abysmal working From a philosophical-normative perspective, Drawing from recent philosophical theories of global justice, as well as global justice, as theories of from recent philosophical Drawing 21. 20. power between workers and employers and is common in negotiations power between workers and employers than collective, basis. From this that take place on an individual, rather procedural point of view, employment contracts can be regarded as exploi- tive and, thus, unjust, even if they benefit the workers. tive to alternative options (for example, or worse working tion among various actors within global chains of production (for example, tion among various actors within global On this level, procedural philosoph- brands, subcontractors, and workers). workers to be exploited by their em- ical theories of exploitation consider voluntarily consent to terms of ployers even if they (the workers) labor conditions. Employment employment that fail to provide minimum if the workers’ ability to bar- contracts are considered to be exploitative the contract was limited during the gain and disagree with the terms of negotiations phase. Developing Countries tion and Third World Sweatshops conditions across the world are generally described as exploitative and un- conditions across the world are generally the global labor market can occur on just. The exploitation of workers in two different levels. First is the from contemporary legal discussions on the deterritorialization of labor deterritorialization on the legal discussions from contemporary in the advantages of workers the structural Part we argue that law, in this the interna- reform of require a fundamental global economy emerging on the existing gap In what follows we first elaborate tional labor regime. in today’s hand, the exploitive working conditions between, on the one international and on the other hand, the emerging global labor market labor standards. We the need to protect minimum consensus regarding aimed at explaining in current literature that then present two approaches discus- ways to minimize it: the empirical-legalistic this gap and proposed the normative-phil- of deterritorializing labor law and sion on the problem We conclude on the theories of background injustice. osophical discussion combines both the for an alternative approach that this Part by calling attention to the perspectives and pays particular legalistic and normative of labor stan- as key to addressing the erosion concept of responsibility consensus regarding their content. dards despite growing international to protect labor standards for work- Our main argument is that the failure from, among other things, the out- ers in the global labor market stems underpins the current international dated conception of responsibility that labor regime. 682 the hope for any diminishing further shock, to economic nerable work conditions. of decent implementation \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 8 4-OCT-13 9:22 accompanying text. 34040-mil_34-4 Sheet No. 8 Side B 10/10/2013 11:12:26 B 10/10/2013 8 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 9 Side A 10/10/2013 11:12:26 R R . UB , 14 683 ODERN note 3, . & P M 11 (2003); in HIL supra , , RONG Exploitation and , 8 P Introduction: What W ILLER S ’ T M I See HY W 187, 188 (2010). Transnational and International Q. S AND I T I THICS . E HAT 22 US : W Should Marxists be Interested in Exploitation? , 20 B (Kai Nielsen & Robert Ware, eds., 1997); Andrew One of the consequences of these agree- One of the consequences of these 23 (1996); Avner de-Shalit, Shared Responsibility Shared XPLOITATION 536, 537 (2010). ,E (Andrew Reeves ed., 1987); Jeremy Snyder, . XPLOITATION 693, 698 (1998); Kai Nielsen & Robert Ware, . E TUD in XPLOITATION AMPLE , TUD On the Confusion between Ideal and Non Ideal Recent Debates on . S note of exploitation, see, for example, 21. For Marxist interpretations ,E . S OL J. S 30, 31 (1985). For additional understandings of exploitation in different . level, namely, in existing regulations of the global economy level, namely, in existing OL FF XPLOITATION supra 58 P UTH The Labor Theory of Value and the Concept of Exploitation The Labor Theory of Value and the Concept , E . A , 46 P UB ERTHEIMER Thomas Hodgskin and John Bray: Free Exchange and Equal Exchange W 338, 341-42 (1979); John E, Roemer, Second, exploitation of workers in the global labor market occurs on of workers in the global labor market Second, exploitation . & P . institutional 22. of exploitation, exploitation may occur According to this procedural conception 23. For a more radical approach to structural exploitation of workers in the capitalist FF LAN HEORIES OF HIL M K ments is the deepening of the imbalance between the heightened mobility ments is the deepening of the imbalance the restricted mobility of workers allowed for capital and goods and economic and cultural constraints. caused by immigration rules and other this imbalance between the mobility As economist Prakash Sethi argues, standard trade theory, which requires of capital and that of labor violates equitable distribution of benefits maximum mobility of both to enable he asserts, only TNCs enjoy all of from free trade. In the global economy, at 66; Meyers, G.A. Cohen, A Reeve, Exploitation Labor: Perspectives and Issues an example, the Inter- by global institutions (for that have been determined Trade Organization Fund, , and World national Monetary is particularly the intergovernmental agreements. This (WTO)) or through where exploitation sector in developing states, case in the manufacturing economic globaliza- intensified by the processes of of workers has been world stems partly of workers in the developing tion. The disadvantage agreements between trade and investment framework from unequal global such an imbalance in countries. One example of developing and developed which was administered by the negotiating power is the Uruguay Round, and developing states. During WTO from 1981 to 1994 between developed of the latter’s urgent need for the negotiations, the former took advantage access to developed markets. T even if the exploited person benefits as a result of the interaction between the two parties. A even if the exploited person benefits as a result about to die of thirst, when another man common example is that of a man lost in a desert, man to lead him to a well in return for life-long on a camel appears and convinces the thirsty the thirsty man benefited from the agree- servitude in the camel rider’s household. Although man since he took advantage of the latter’s ment, the camel rider has exploited the thirsty pursue his interests. needs, benefiting from his inferior capacity to A Summer 2013] the exploitive diminish does not of employment) other places at conditions arises when the exploitation This is because the labor relations. nature of given bargaining weakness, of a worker’s takes advantage the employer economic under the existing especially desperate neediness, the latter’s of occurs regardless This exploitation of developing countries. conditions and regard- for the worker, may yield the working agreement the benefits voluntary consent. less of the worker’s \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 9 4-OCT-13 9:22 Global justice contexts, see R P Exploitation Comes To system, see Lea Ypi, C Y 34040-mil_34-4 Sheet No. 9 Side A 10/10/2013 11:12:26 A 10/10/2013 9 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 9 Side B 10/10/2013 11:12:26 R M K , C Y 34:675 101-05 LOBAL G 1 (1990). [Vol. ISMANTLING 25 : D One of the ATIONS VERYONE 28 N note 1; Universal E APITALISM LOOR F C supra NITED , there are significant ,U 26 LOBAL ELFARE G ]. W ONDITIONS FOR C OMPACT ILO Declaration C AISING THE ORLDS OF ORKING At the international level, recogni- At the international W , R 27 W LOBAL ARLE HREE OOD Such conditions, Sethi claims, “are more Sethi claims, Such conditions, E , T G 24 About Us: The Ten Principles LISON FFORD Corporate Codes of Conduct and the Success of Globalization Corporate Codes of Conduct and the Success A NDERSON T & A ’ -A Michigan Journal of International Law AN , Mar. 2002, at 89, 90 . C . SPING FF EYMANN , International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 E A H L ’ at 90-91. According to Sethi, OSTA NT ODY THE See, e.g. Id. , http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/index.html (last & I YTH THAT WE See id. While the exploitative conditions of workers around the world persist conditions of workers around While the exploitative [TNCs] use both the fact and threat of capital mobility to extract maximum pro- [TNCs] use both the fact and threat of capital The control of overseas markets ductivity gains from cheap and abundant labor. which they use on local manufac- provides the [TNCs] with monopoly-like power, thus put extreme downward pres- turers to extract the lowest prices possible and in their turn, cooperate among sure on local wage rates. Local manufacturers, the basis of higher wages—athemselves by not competing for workers on situation labor. that is easily maintained because of abundant M 27. J 28. 24. S. Pratash Sethi, 26. G 25. at 91. OMPACT THICS clearest expressions of this global consensus is the ILO 1998 Declaration clearest expressions of this global consensus of Work, which defined four core on Fundamental Principles and Rights of forced or compulsory labor, the basic labor rights: the right to be free to be free of in em- right of children not to work, the right similarities in their labor regulations with regard to minimal work condi- labor regulations with regard to minimal similarities in their basic norms, states currently guarantee comparable tions. Indeed, most leave, and wage of rest, paid sick leave, paid annual such as a weekly day overtime. premiums for mandatory tion of the need to ensure some minimal labor standards is manifested in ensure some minimal labor standards tion of the need to human rights law. several key documents of international characteristic of neo-mercantilism than of truly free markets.” than of truly of neo-mercantilism characteristic Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 1948). For the Global Compact, see U.N.T.S. 171, S. Treaty Doc. No. 95-20; International Covenant on Economic, Social and U.N.T.S. 171, S. Treaty Doc. No. 95-20; International Covenant on Economic, Social Cultural Rights, Dec. 16, 1966, 999 U.N.T.S. 3; (2010). Clearly not all states live up to their international legal commitments, nor do they (2010). Clearly not all states live up to their always enforce existing national labor laws. Nevertheless, the consensus regarding essential by labor standards that constitute an acceptable floor for decent working conditions is shared many societies regardless of their cultural characteristics or their level of economic develop- ment. on both the institutional and interactional levels, recent decades have seen and interactional levels, recent on both the institutional the need to legally a worldwide consensus regarding the emergence of rights for workers. level of labor norms and basic guarantee some minimal that have devel- variety of welfare and labor regimes Despite the great modern industrial democracies, oped in different visited Feb. 19, 2013) [hereinafter U.N. G C E 684 in and nations sectors different between capital of moving the advantages lack this whereas workers on investments, maximize their return order to with labor at all, to countries migrate easily, if Workers cannot mobility. ineffi- from eliminating they are prevented and consequently, shortages, the labor market. ciencies in \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 10 4-OCT-13 9:22 Id. 34040-mil_34-4 Sheet No. 9 Side B 10/10/2013 11:12:26 B 10/10/2013 9 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 10 Side A 10/10/2013 11:12:26 R , 685 at 1. The available at Id. ], New Foundation 30 Francis Maupain, See ILO Declaration on Social Justice ILO Declaration on Social Justice for a Fair Global- Shared Responsibility Shared note 1. supra , , thus implying a need for comprehensive institutional , thus implying a need for comprehensive In 2008, the ILO Declaration on Social Justice for on Social Justice the ILO Declaration In 2008, The Deterritorialization of Labor Law 29 823, 833-34 (2009). B. . This Declaration introduced the ILO Decent Work agenda. L. L ’ NT cade? The ILO and the 2008 Declaration on Social Justice for Fair Globalization ILO Declaration . J. I , at 9-11 (June 10, 2008) [hereinafter How can this gap between the broad consensus on labor standards on between the broad consensus on labor How can this gap law scholars have acknowledged a In recent years, a number of labor UR 30. Int’l Labour Conf., 97th Sess., 29. M K Fair Globalization expanded this scope of protection to include three addi- to include this scope of protection expanded Fair Globalization promoting member states: be adopted by the objectives to tional strategic of social measures employment; developing all to freely chosen access for mater- (for example, such as basic healthcare labor protection security and wage; and promoting regulations at work, and minimum nity leave), safety workers, employers, and the state. social dialogue among or New Fa¸ legal status of the Declaration is ambiguous and demonstrates varying degrees of states’ com- mitment toward this seeming consensus on labor rights. Some provisions are of a declaratory nature while others have stronger legal implications. 20 E http://www.ilo.org/wcmsp5/groups/public/-dgreports/-cabinet/documents/genericdocument/ wcms_099766.pdf ization redesign across the global labor market. Both the empirical-legalistic ex- redesign across the global labor market. for this deterioration in stan- planation and the philosophical explanation two Sections. dards will be presented in the next the one hand, and the pitiful labor conditions in the global labor market the pitiful labor conditions in the the one hand, and This puzzle is And how can this gap be closed? on the other, be explained? terms. La- in labor law scholarship in empirical-legalistic usually addressed of the global labor argued that the transformation bor law scholars have to regulate and by the state’s decreasing capability market, compounded labor law. has led to a need to deterritorialize enforce labor standards, the problem philosophical scholarship has described Alternatively, recent as the problem of labor standards in normative terms of diminished global background injustice system of national and interna- growing inadequacy between the existing the increasing obstacles to enforcing tional regulation of labor law and market. National labor regulations, labor standards in the global labor the early days of the industrial which have developed gradually since asymmetrical relations between revolution, helped balance the inherently national labor market. Yet the legal employers and employees within the guaranteed labor standards in nation- and political tools that traditionally thus emerge as limited in the global states were territorial in nature, and which was developed, by and large, as labor context. Traditional labor law, administered on a territorial basis, a domestic project and was generally between labor and capital in seems insufficient for resolving the imbalance among other factors, the interna- the global labor market, resulting from, Summer 2013] col- and of expression to freedom the right and occupation, and ployment lective bargaining. \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 11 4-OCT-13 9:22 C Y 34040-mil_34-4 Sheet No. 10 Side A 10/10/2013 11:12:26 A 10/10/2013 10 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 10 Side B 10/10/2013 11:12:26 M K C Y . 1 TS http:// 34:675 33 . R RGANIZ- OMEN IN UM [Vol. ,W & O H Migration and (Pol’y Analysis available at 29-30 (1996). THICS OF TATE LOBALIZING S .: G MP E , 3 L. & E http://www2.ohchr.org/english/bodies/ However, for the purposes of 34 ETREAT OF THE (May 17, 1999), http://www.nsi-ins.ca/wp- NFORMAL R I HE Whereas their headquarters are gen- their headquarters Whereas 32 available at ,T , OMEN IN RGANIZING ,W TRANGE International Migration and Human Rights S & O USAN De-Territorializing Labor Law The Problem of Background Injustice Office of the U.N. High Comm’nr for Hum. Rts., ,S 31 Michigan Journal of International Law LOBALIZING C. see also Garment Workers See, e.g. .: G Stephanie Grant, MP See ING E A Common Thread: Issues for Women Workers in the Garment Sector A Common Thread: Issues for Women Workers From a normative point of view, the failure to guarantee workers in From a normative point of view, the The difficulty with deterritorializing labor law relates not only to the deterritorializing labor law relates The difficulty with Transnational corporations exemplify the current inadequacy of legal inadequacy exemplify the current corporations Transnational , http://wiego.org/informal-economy/occupational-groups/garment-workers (last visited , http://wiego.org/informal-economy/occupational-groups/garment-workers 32. on labor law, and we refrain from the Our argument here concerns the constraint 33. women are required to produce sec- For example, in the apparel industry, some 34. The ILO’s International Labor Migration Survey showed that in fewer than half 31. Guy Mundlak, NFORMAL simplicity in this Article, we will not expand on these and other related simplicity in this Article, we will not issues. of labor standards and to prevent their the global labor market a minimum and institutional levels constitutes exploitation on both the interactional erally based in developed countries, the labor force that produces their force that produces countries, the labor in developed erally based From a developing world. located in the and services is usually products who produce TNCs are not connected to the workers legal point of view, through contrac- employment contracts but, rather, their products through Locally, workers in the global production chains. tual obligations within by manpower chains are often employed indirectly global production considered to be or subcontractors or else are legally agencies, contractors, the supplier. Legally, their economic dependence on self-employed despite workers and, thus, considered “employers” of these then, TNCs are not or well-being. for their labor conditions bear no legal responsibility (2009). has indeed transcended the power of the state more general debate of whether market power more generally. tions of future assembled clothing in their homes and, thus, are regarded to be self-employed tions of future assembled clothing in their homes sell the products to the brands. Julie Dela- and not employees of the subcontractors who hanty, content/uploads/2012/10/1999-A-Common-Thread-Issues-for-Women-Workers-in-the-Gar- ment-Sector.pdf; global emergence of TNCs; it also involves issues relating to, for example, of TNCs; it also involves issues relating global emergence by national who, in some cases are not fully protected migrant workers, labor law because they are not citizens. protection of labor rights globally. protection Mar. 26, 2013). the countries surveyed, national legislation provided for any protection against discrimina- and tion at work. Kuwait and Saudi Arabia exclude all migrant workers from national social labor laws. I 686 and of migrant number growing and the chains production of tionalization workers. offshoring \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 12 4-OCT-13 9:22 & Res. Programme of the Global Comm’n on Int’l Migration, Sept. 2005), www.iom.int/jahia/webdav/site/myjahiasite/shared/shared/mainsite/policy_and_research/ gcim/tp/TP7.pdf; Development: a Human Rights Approach cmw/docs/HLMigration/MigrationDevelopmentHC%27spaper.pdf (last visited Feb. 19, cmw/docs/HLMigration/MigrationDevelopmentHC%27spaper.pdf (last visited Feb. 2013). 34040-mil_34-4 Sheet No. 10 Side B 10/10/2013 11:12:26 B 10/10/2013 10 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 11 Side A 10/10/2013 11:12:26 R R R . & The In 687 35 HIL , 37 P . Background Some of these 39 41 Abizadeh reached a con- 40 42 . 318, 329 (2007); Miriam Ronzoni, background injustice background FF 265-66 (1993). . A UB argument is particularly germane to argument is particularly germane IBERALISM . & P L Shared Responsibility Shared HIL According to Ronzoni, if problems of background According to Ronzoni, Cooperation, Pervasive Impact, and Coercion: On the Scope (not , 35 P 38 note 38, at 329. OLITICAL note 38, at 230, 245. note 35, at 267. , P supra supra This may be due to social trends and historical This may be supra AWLS 37 , 36 R at 245. background injustice AWLS OHN Id. Id. Id. . 229, 230, 245 (2009). FF The Rawls limited the scope of the principles of justice to the state level, scope of the principles of justice to Rawls limited the [W]hether wage agreements are fair rests, for example, on the na- [W]hether wage agreements are fair power must be prevented ture of the labor market: excess market between employers and and fair bargaining power should obtain depends on the underlying employees. But, in addition, fairness extending backward in social conditions, such as fair opportunity, time and well beyond any limited view. . A 42. R 41. Abizadeh, 36. 37. 38. Arash Abizadeh, 40. 39. Ronzoni, 35. J UB M K the absence of a “just background,” the accumulated results of many sepa- results of the accumulated of a “just background,” the absence of time, can, over the course individuals fair agreements between rate and no free and fair agreements conditions of situation whereby lead to a longer hold. institutions may be completely new and different from the institutional institutions may be completely new structure of the nation-state, yet they arrangements that underlie the basic do not necessarily need to create a world-state. curring conclusion based on his analysis of Rawls’s notion of “fair terms of curring conclusion based on his analysis when a group of individuals are en- cooperation.” According to Abizadeh, the creation of a basic struc- gaged in a mutually advantageous enterprise, conditions. ture is required to realize just background injustice arise on the global level, we have a duty to alter the global institu- global level, we have a duty to alter injustice arise on the order to end the conditions of injustice. tional structure in contingencies. Global Order: A Case of Background Injustice? A Practice-Dependent Account Site) of Distributive Justice injustice is defined by Rawls as the absence of just rules as well as political just rules as well as the absence of is defined by Rawls injustice decisions and actions. constrain people’s institutions that and social namely, to those people who live under the same basic structure. How- people who live under the same basic namely, to those and Arash separate publications, Miriam Ronzoni ever, in recent, derive cosmopolitan Rawls’s underlying assumptions to Abizadeh drew on injustice on the that the existence of background conclusions, arguing and rules that cor- the establishment of institutions global level mandates rect the unjust reality. problems of global labor. In a brief comment, Rawls used the example of problems of global labor. In a brief regarding the role of sociopolitical in- labor contracts to support his claim conditions. stitutions in securing just background Summer 2013] termed Rawls what John of conditions \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 13 4-OCT-13 9:22 P C Y 34040-mil_34-4 Sheet No. 11 Side A 10/10/2013 11:12:26 A 10/10/2013 11 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 11 Side B 10/10/2013 11:12:26 M K , C Y 34:675 [Vol. This is so because the unjust nature because the unjust This is so 43 A New Conception of Responsibility A New Conception Corporations and Human Rights: A Theory of Legal Responsibility Michigan Journal of International Law D. In Part III, we put forth our conception of shared responsi- 44 , Steve R. Ratner, Although it is clear that labor conditions in the age of globalization that labor conditions in the age Although it is clear global consensus on the need to As discussed above, there is already to enforce labor standards in The reduced ability of individual states In a different article, we have argued that the reality of background of the reality argued that we have article, different In a 43. Yossi Dahan, Hanna Lerner & Faina Milman-Sivan, Global Labor Rights as Du- 44. This notion is recognized in the realm of the general protection of human rights. require a fundamental structural reform of the international labor regime structural reform of the international require a fundamental minimal level of workers around the world with some in order to provide above is the is missing in the discussions described labor standards, what regulation and which is key to ensuring the effective idea of responsibility, should be held re- standards. In other words, who enforcement of labor and enforcing labor unjust working conditions sponsible for remedying rights beyond the borders of the nation-state? Yet the nation-state, tradition- ensure a minimum level of labor standards. for workers’ rights, is no longer ally the central bearer of responsibility the reality of the global labor market. adequately equipped for the task in considered the primary agent responsi- Until recently, the nation-state was labor standards applied within its ble for legislating and enforcing the of production and services, the boundaries. But with the global expansion rights on the national level has state’s ability (and will) to protect workers’ of responsibility, one that been undermined. Hence, a new conception nation-state’s boundaries, must be de- takes into account actors beyond a difficulties faced by international in- veloped to address the contemporary globally. Given these obstacles, the stitutions in applying labor standards acute. question of responsibility is particularly two main challenges for international the global labor market has created a new paradigm of shared responsi- labor. The first challenge is to develop contemporary global economy. By bility that is better suited to the the responsibility to rectify unjust “shared responsibility” we mean that only one particular actor or institu- labor conditions does not reside with actors or institutions. Moreover, tion, but rather is shared by various “shared responsibility” implies that the responsibility to promote labor standards is not limited to the territory of a particular state. In other words, responsibility for a violation of workers’ rights in a particular state by can be borne by actors or institutions external to that state, or even other states. of the existing regulation of labor on the global level undermines the very level undermines labor on the global regulation of of the existing consid- law. In other words, characterize labor justifications that aims and be created and rules that new institutions justice require either erations of to correct the unjust global institutions be reinforced or else that existing labor. conditions of global injustice in the global labor market mandates the implementation of prin- the implementation market mandates in the global labor injustice sphere. justice in the global ciples of ties of Justice 28 (Feb. 2012) (unpublished manuscript) (on file with authors). See, e.g. 688 \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 14 4-OCT-13 9:22 34040-mil_34-4 Sheet No. 11 Side B 10/10/2013 11:12:26 B 10/10/2013 11 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 12 Side A 10/10/2013 11:12:26 R R UT 689 P ROPO- E W HRISTIAN : A P AN , C ABEL S TANDARDS S Responsibility and Global ABOR HARLES ESPONSIBILITY 45 L R notes 155-160 and accompanying & C OURKE See infra RADE AND ODEL OF T O’R M notes 161-171 and accompanying text. While we ARA infra , D TATIST Shared Responsibility Shared UNG NTERNATIONAL F , I 4 (2001), and by Iris Young, Young, ? RCHON EDDY ILO: A S HE note 8, at 375–82; G. R , 1, 27–29 Another proposed institutional reform has been put forth (2008). 443, 461 (2001) (“[A] system in which the state is the sole target of interna- 443, 461 (2001) (“[A] system in which the state WEATSHOPS II. T ANJAY S AN SAL FOR INKAGE L.J. L & S ALE ND TO An underlying premise of the ILO’s norm-generating and monitoring of the ILO’s norm-generating An underlying premise introduction, we present the In this Part, following a brief historical First, however, Part II will demonstrate how the ILO’s structure and, II will demonstrate how the ILO’s First, however, Part The second challenge faced by international labor is to devise institu- labor is to devise by international challenge faced The second 45. IV for reforming the ILO are not To be clear, the guidelines we propose in Part E ARRY M K procedures is that the nation-state is the basic unit of deliberation and procedures is that the nation-state below, this is reflected in all of decision-making. As will be demonstrated Under the statist model, legally, the ILO’s key organizational institutions. for and benefactors of implementing states are the key actors responsible features of the ILO—theworkers’ rights. The uniquely daring salient most and its original integrative, in- of which are its unique tripartite structure ternationalist economic vision—have done little to alter the dominance of the statist model. responsibility in the key ILO opera- manifestations of the statist model of supervisory mechanism. tional functions, with a focus on the in particular, its enforcement mechanisms are based on an archaic, statist mechanisms are based in particular, its enforcement the global economic that is no longer suited to conception of responsibility and political reality. by Margot Salomon, which is discussed in Part III. B 111 Y Summer 2013] of re- the conception than in nature cosmopolitan is more which bility, labor regime. international guiding the current sponsibility conception responsibility the shared for implementing tional arrangements labor mar- in the global to the various actors responsibility and allocating across the for all workers labor standards to guarantee basic ket so as guidelines for re- we tackle this challenge and propose world. In Part IV, mechanisms of the ILO. forms in the supervisory \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 15 4-OCT-13 9:22 text. On the interactional level, a different approach to ameliorating background injustice in text. On the interactional level, a different approach to ameliorating background injustice international labor may be prompted by pressure from civil society, as proposed by Fung, O’Rourke, and Sabel, A acknowledge that multitiered reform is necessary to effectively address injustices on both the acknowledge that multitiered reform is necessary to effectively address injustices on both new interactional and institutional levels, in this Article, we focus on the application of a concept of shared responsibility to be implemented within the ILO’s existing institutional framework. tional legal obligations may not be sufficient to protect human rights.”). tional legal obligations may not be sufficient injustice in the global labor market. A presented as a remedy for all aspects of background spectrum of existing unjust institutions and prac- comprehensive reform addressing the entire on both the institutional and interactional tices in international labor would require changes reform should include the redesign of levels. On the institutional level, a comprehensive Union, and intergovernmental labor global institutions, such as the WTO and European a reform is the Barry & Reddy proposal for agreements. One interesting example of such standards and trade agreements. C establishing a global linkage between labor Labor Justice supra C Y 34040-mil_34-4 Sheet No. 12 Side A 10/10/2013 11:12:26 A 10/10/2013 12 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 12 Side B 10/10/2013 11:12:26 R M K L ’ C Y 46 HE NT ,T 34:675 . J. I REATION AND THE had the 26 (Hent A Second, C [Vol. 50 OVEREIGNTY 49 HE S ILO in ,T (Neil Walker ed., ”, 25 G , HE ONCEPT OSKENNIEMMI C ., T K RAWFORD RANSITION ARTTI C T ONTESTED 261 (Samantha Besson & John Consequently, the statist Consequently, C 47 AW AMES A Normative Theory of Sovereignty ODGERS ET AL L R ERRY Indeed, the horrific work conditions OVEREIGNTY IN UTURE OF A 51 F The Sovereign State: A Genealogy 5-6 (2009). NTERNATIONAL note 2, at 93-109. I This enabled the forging of cross-border al- This enabled the 32–33 (2d ed. 2006); M Human Rights and State “Sovereignty 48 AW 41 (2011); S supra The creation of cross-border unified labor stan- The creation of cross-border unified , L AW RESENT AND 52 371 (2013). For a more historical perspective on the concept of 371 (2013). For a more historical perspective , ILO, http://www.ilo.org/global/about-the-ilo/history/lang—en/ L , 1919-2009 , P L. L ’ HILOSOPHY OF Michigan Journal of International Law AST REEMAN Sovereignty in the Context of Globalization: A Constitutionalist Plural- Sovereignty in the Context of Globalization: A The Statist Model: A Historical Perspective A Historical Statist Model: The NT P USTICE P J HE & F HE . J. I T NTERNATIONAL A. : T in I , TAN OCIAL NTERNATIONAL at 206-09. 31, 32 (1995-1996); Guglielmo Verdirame, I LLIOTT S OF Origins and History Id. Id. IN . L. , 49 S At its inception, the ILO aspired to promote universal values and the ILO aspired to promote universal At its inception, the The ILO was established in 1919 as part of the Treaty of Versailles, 1919 as part of the was established in The ILO TATES IN RAGMENTS OMP 48. Constitution of the International Labour Organization, art. 7, June 28, 1919, 49 49. For a recent historic overview, see G 47.international law is too vast to review The literature on the idea of sovereignty in 51. E 46. 50. 52. S F UEST FOR OLITICS OF potential to lead the ILO away from the statist model. It stressed the ob- potential to lead the ILO away from the “race to the bottom” in lowering jective of preventing unfair trade and well as the eventual aspiration to pro- labor standards to attract capital, as mote social justice and world . from the outset and through the period between the two world wars, the through the period between the from the outset and common to adopt an outlook that underscored ILO generally tended linking international economic policy global responsibility for workers by internationalist approach with social policy. This integrative and model is predominant in the ILO’s structure as a whole, as well as its su- as a whole, as well ILO’s structure predominant in the model is in this Part. which is at the heart of the discussion pervisory system, goal of “univer- norms across borders. This explicit harmonization of labor under which first in the ILO’s tripartite structure, sality” was expressed were granted for- delegates of employers and employees nongovernmental state in the ILO in the organization. Thus, each member mal voting power workers, by delegates representing three constituents: was represented employers, and government. of laborers in the period preceding , caused by fierce unregu- of laborers in the period preceding to be a significant factor in lated economic competition, were understood the outbreak of the war. liances between workers or between employee organizations. liances between workers dards via cooperation among states was suggested as an appropriate re- dards via cooperation among states 2003); Jean L. Cohen, ist Perspective Kalmo & Quentin Skinner eds., 2010). Stat. 2712, 15 U.N.T.S. 35 [hereinafter ILO Constitution]. Tasioulas eds., 2010); Louis Henkin, index.htm (last visited Feb. 19, 2013). see J here. For some recent examples of this scholarship, & C Q P 690 was of state sovereignty when the concept was drafted and its constitution international law. premise of the unchallenged \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 16 4-OCT-13 9:22 Transfer the sovereign state, see Quentin Skinner, 34040-mil_34-4 Sheet No. 12 Side B 10/10/2013 11:12:26 B 10/10/2013 12 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 13 Side A 10/10/2013 11:12:26 R R R 7 in 56 691 , In 1946, the The ILO now 59 57 at 211. Id. note 48, annex. supra The ILO increasingly began to 58 Moreover, the notion of universality was Moreover, the notion Furthermore, norm-generation and moni- Furthermore, norm-generation 55 54 The ILO thus did not merely aim to prevent merely aim did not ILO thus The Tripartism and The International Labour Organisation: A Tripartism and The International Labour Organisation: note 49, at 42. note 49, at 210-11. Shared Responsibility Shared 53 337 (1982) (arguing that the true meaning of the tripartite 337 (1982) (arguing that the true meaning of AW supra supra L , , . . Part II.B. Abdul-Karim Tikriti, NTERNATIONAL ODGERS ET AL ODGERS ET AL I See infra Id. See Yet, these universalist and internationalist ambitions were curtailed internationalist universalist and Yet, these The post-World War II period saw an entrenchment of the statist The post-World War II period saw 56. R 55. 53. 54. 57. The Declaration concerning the aims and purposes of the ILO is usually referred 58.59. R The promotion of social and labor rights was linked to the national economic TUDIES IN M K ILO became a specialized agency of the , as a component ILO became a specialized agency of and embraced the statist logic that of the Bretton Woods global order, The prevailing economic model of underlay the Bretton Woods structure. state, designed to ensure fair redis- the time was a blueprint of the welfare explicitly tied economic and social development to basic human rights. explicitly tied economic and social the now-traditional understanding The focus on human rights generated for enforcing human rights. This co- that states are to be held responsible away from an internationalist eco- incided with the ILO’s gradual shift nomic vision during the same period. engage in national planning for industrialization, as the “prevailing eco- engage in national planning for industrialization, national economy.” nomic model was concerned with the toring procedures continued, to a large extent, to follow the basic statist continued, to a large extent, to follow toring procedures below. model, as will be shown very narrow, as harmonization of norms was confined to the limited geo- of norms was confined very narrow, as harmonization constitution, the the industrialized states. In its original graphical scope of to apply or monitor from requiring member states ILO not only refrained exempted indus- their territorial borders, but also ratified norms beyond within their control, those norms to territories trial states from applying territories”—theirthat is, to “non-metropolitan for example. colonies, a race to the bottom, but explicitly strived toward enhancing social justice enhancing social strived toward the bottom, but explicitly a race to over rise in labor standards envisaging a slow race to the top, through a time. to rep- structure was limited with, the ILO’s very start. To begin from the of each state, de- employers, and the government resentatives of workers, workers and to groups such as women nying formal representation example. migrant workers, for S principle was defined in terms of Western capitalistic societies, where a clear distinction exists principle was defined in terms of Western capitalistic between employers, workers and governments). model. The Philadelphia Declaration, produced in 1944 and incorporated model. The Philadelphia Declaration, the ILO’s previous colonial orienta- in the ILO Constitution, broke from equal rights for all. tion and, for the first time, declared Study of The Legal Concept: Its Origins, Function, and Evolution in the Law Of Nations Study of The Legal Concept: Its Origins, Function, Summer 2013] conditions. to these sponse \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 17 4-OCT-13 9:22 to as the Philadelphia Declaration. The declaration now constitutes an annex to the ILO Constitution as amended in 1946. ILO Constitution, scheme for promoting national growth. The principal ILO contribution to the UN Interna- tional Development Strategy addressed national strategies for employment until the year 1976, when it addressed also proposals for international action. C Y 34040-mil_34-4 Sheet No. 13 Side A 10/10/2013 11:12:26 A 10/10/2013 13 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 13 Side B 10/10/2013 11:12:26 R R M K in C Y 309 AM- EGU- T 34:675 R note 1; in , in see gener- May-June , ., [Vol. PTIONS supra FF NTERNATIONAL O A I OLICY OREIGN P ,F A Fair Globalization: Creat- AND , EGULATION OF The first WTO ministerial The first 254, 262 (2005). R 61 HE HEORY 161, 171 (Brian Bercusson & Cynthia Standards: To Link or Not to Link?, Globalization and Development note 30; ILO Declaration, ,T , T ABOR L supra OWSE , ISTORY H LOBALIZATIONS Even these two landmark instruments, Even these two In the postwar years, the Cold War hin- the Cold years, postwar In the 65 : H LOBALIZATION 60 Cosmopolitan Justice and the Globalization of Capital- , 2 G OBERT Trade and G note 49, at 213-22. assigned the duty to promote core labor stan- assigned the duty The WTO as a Mechanism for Labour Regulation Workers and the World Economy & R 62 supra TANDARDS AKE OF , . S (Feb. 2004). W The ILO’s 1998 Declaration was created partly in re- The ILO’s 1998 Declaration Michigan Journal of International Law 63 47, 65 (David Held & Mathias Koenig-Archibugi eds., 2003); 47, 65 (David Held & Mathias Koenig-Archibugi ABOR REBILCOCK In its comprehensive 2004 Fair Globalization Report, as 2004 Fair Globalization Report, In its comprehensive , Bob Hepple, L 64 J. T Little has changed since in terms of the ILO’s governance Little has changed ODGERS ET AL 66 ING LATING See, e.g. ILO Declaration on Social Justice ABOUR IN THE L 395-463 (2d ed. 1999). ICHAEL LOBALIZATION It was not until the 1990s that the ILO invested in developing policies in developing the ILO invested until the 1990s that It was not M G 64. 66. Christien Van Den Anker, 65. 63. linkage debate see, for exam- For a sample of the literature regarding trade-labor 60. Ethan B. Kapstein, 61. R 62. interests in a The movement to anchor labor and environmental RADE NTERNATIONAL was joined by academics, including prominent economist Joseph Stiglitz, for example, who was joined by academics, including prominent meeting in Singapore in 1996, denying the WTO’s own responsibility for in 1996, denying the WTO’s own meeting in Singapore clause, enacting a social dered any possibility of departing from statism, as the “East” now also as the “East” from statism, possibility of departing dered any of the of most aspects the state as supervisor to the notion of adhered structure. economic subject matter. cross-border that addressed structure of substantially test the underlying state-based however, failed to the ILO. dards to the ILO. sponse to this challenge, marking its deeper involvement in international marking its deeper involvement sponse to this challenge, social policy. (Kaushik Basu et al. eds., 2003). well as its 2008 Declaration, the ILO recognized the specific need to tackle the ILO recognized the specific well as its 2008 Declaration, measures on the na- globalization, proposing a mix of the challenges of levels. tional and international I structure and conception of responsibility. We will show this below, in a of responsibility. We will show structure and conception structure and its ingrained statist brief overview of the ILO’s governance of the tripartite structure and the approach. We begin with a description ILO, World Comm’n on the Social Dimension of Globalization, ing Opportunities for All ism: The UNDP and ILO Proposals Estlund eds., 2008). ally T ple, L. Alan Winters, Commentary, 692 borders. state within tribution \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 18 4-OCT-13 9:22 1996, at 16, 20. Following WWII, the international community, in particular Western Indus- 1996, at 16, 20. Following WWII, the international New Hampshire, on July 12, 1944, in order to trial Countries, gathered in Bretton Woods, The principle Bretton Woods institutions were design a new international monitory order. the International Bank for Reconstruction and the International Monetary Fund (IMF) and Articles of Agreement of the International Development (the World Bank). Bretton Woods U.N.T.S. 39; Bretton Woods Articles of Agree- Monetary Fund, July 22, 1944, 60 Stat. 1401, 2 and Development, July 22, 1944, 60 Stat. ment of the International Banks for Reconstruction 1440, 2 U.N.T.S. 134. within the WTO—burstingthe within into public consciousness in the Seattle demonstrations of 1999— other international economic institutions, such advocated incorporating ILO’s concerns into as the IMF and the World Bank. Joseph E. Stiglitz, 34040-mil_34-4 Sheet No. 13 Side B 10/10/2013 11:12:26 B 10/10/2013 13 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 14 Side A 10/10/2013 11:12:26 R R R , 693 supra , ECTURES L ENEVA ILO Constitution G This basic tripar- See HE 69 : T How the ILO Works note 5. ENTURY supra C ST 21 in Developing Countries that reflects the importance of consulting that reflects the 1. Tripartism Instead, the ILO embraced a distinctive par- Instead, the ILO 68 , ILO, http://www.ilo.org/global/about-the-ilo/how-the-ilo- 67 Shared Responsibility Shared HALLENGES OF THE C OCIAL S Most of the committees that support the work of the Gov- that support the work of Most of the committees The Statist Model and the ILO’s Organizational Structure ILO’s Organizational Model and the The Statist AND THE 70 See How the ILO Works B. ILO note 48, arts. 3(1), 4(1). However, the statist model continues to dominate the ILO’s opera- However, the statist model continues The ILO is the only international institution to depart from the con- international institution to depart The ILO is the only HE 68. beyond giving voice to and improving The advantages of the tripartite system go 67. 69. The ILO also mostly grants equal weight to each of its member states (the Gov- 70. For further information on the ILO’s structure, see T M K tite structure is replicated in each of the ILO’s component bodies, such as, in each of the ILO’s component tite structure is replicated Body, the as described below, the ILO Governing the ILO Conference, the secretariat of the ILO, as well as the ILO Office, executive organ of the ILO. ticipatory tripartite structure ticipatory tripartite with workers and employers in setting economic policy. with workers and erning Body and the Office are also tripartite committees, although expert Office are also tripartite committees, erning Body and the committees also exist. interests (namely, the inter- tion, as the participation of non-governmental channeled through the state. Take, for ests of employers and employees) is Labour Conference (the Con- example, the structure of the International the ILO’s broad policies, often re- ference), which is the body that sets Conference is comprised of four ferred to as the ILO parliament. The member states, two of whom are representatives from each of the ILO delegates, represent- governmental delegates and two nongovernmental employees of each of the member ing, respectively, the employers and works/lang—en/index.htm(noting its structure “where workers (last visited Feb. 13, 2013) with governments in its deliberations”). The and employers together have an equal voice such conventional structure of representation. United Nations is the most salient example of include considerations of efficiency, such as the treatment of the groups represented. They with practical experience on the subject, espe- the need to include in the deliberation people in part to the 1997 Asian crisis, a renewed inter- cially regarding technical work process. Due in the era of globalization seems to be est in the tripartite approach to problem-solving a “win-win situation is the ultimate objective of emerging, based on a rising recognition that the partners in the .” Tayo Fashoyin, in note 67. 31, 42 (Roger Blanpain & Chris Engels eds., 2001). Such an approach raises the following 31, 42 (Roger Blanpain & Chris Engels eds., question: If we concede to enabling representation of groups on the basis of their particular interests, why should we stop there? Would “identity representation” be more appropriate? of Exploring the parameters of the scope of the “representation debate” is beyond the scope on this Article, despite the possibility that our conception of the desirable debate may turn our view of the decision-making process. For a broad discussion of the representation debate with reference to the ILO, see generally Milman-Sivan, erning Body is a notable exception), regardless of wealth and size. supra Summer 2013] on the supervi- elaborate then ILS and adopting and of generating process compliance. that ensures ILS sory system \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 19 4-OCT-13 9:22 as members in whereby states alone can be accepted ventional structure international organizations. C Y 34040-mil_34-4 Sheet No. 14 Side A 10/10/2013 11:12:26 A 10/10/2013 14 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 14 Side B 10/10/2013 11:12:26 R R R M K C Y 72 34:675 [Vol. How Interna- note 5. ILO standards— or, as others sug- or, as others note 5, at 802–03. 76 73 supra supra when questions especially affecting for our purposes, it remains statist- for our purposes, Milman-Sivan, a woman 74 183, 286 (1997). see also Two Centuries of Participation: NGOs and Interna- Two Centuries of Participation: NGOs and L. , ILO, http://www.ilo.org/global/standards/introduction- L ’ note 48, art. 3(1). Although the basic structure of repre- note 48, art. 3(1). Although the basic structure art. 3(2). This is far from satisfactory for advocates of a art. 3(2). This is far from satisfactory for advocates NT art. 3(9). Id. Id. supra . J. I Despite its originality and uniqueness, then, the Despite its originality 75 ICH note 49, at 18; Michigan Journal of International Law of employers and working people in their countries. and working of employers 2. Process and ILS The Norm-Generating supra , Steve Charnovitz, , 18 M , . art. 3(5). “The credentials of the delegates and their advisers shall be subject to art. 3(5). “The credentials of the delegates and See, e.g. Id. Although the nongovernmental representatives are appointed by are appointed representatives nongovernmental the Although 71 are to be deliberated. The ILO’s adherence to the statist model is exemplified in the ILS- to the statist model is exemplified The ILO’s adherence Regardless of whether the tripartite structure is, as some assert, “a is, as some assert, tripartite structure of whether the Regardless This early twentieth-century model, based on the then-industrialized world, has This early twentieth-century model, based for—butdeveloped some gaps. Trade unions have searched not yet found—satis- And nationally based employ- factory global models for international membership. huge multinational corporations; ers’ organizations cannot adequately represent nor can they effectively exercise pressure upon them to conform to international labour standards. Indeed, even the concept of national sovereignty is changing with institutions such as the , weakening direct government con- trol over the workplace policies that they are bound to implement. 73. 72. 71. ILO Constitution, 75. Thus, for example, the interests of migrants, religious groups, women, or agricul- 76. For detailed portrayal of the ILO’s norm generating process, see 74.recognized the limitations of the tripar- For example, the literature on the ILO has ODGERS ET AL namely, conventions (the primary proclamations of labor standards) and namely, conventions (the primary proclamations workers and employers—in the ILO organiza- its territory. In addition, gest, a significantly limited structure, gest, a significantly based: each state nominates representatives of its functional interests—nominates representatives of its functional based: each state beyond work- all interests and functional groups tional structure excludes ers and employees. generation process and the nature of those standards. generation process and the nature tripartite structure does not, in and of itself, represent a complete diver- does not, in and of itself, represent tripartite structure approach. gence from the statist tional Governance scrutiny by the Conference, which may, by two-thirds of the votes cast by the delegates pre- scrutiny by the Conference, which may, by two-thirds whom it deems not to have been nominated in sent, refuse to admit any delegate or adviser accordance with this article.” the member states, the ILO Constitution requires that the appointments Constitution requires states, the ILO the member are the organizations, which with the industrial in conjunction be decided most representative model for participation in international civil society” international civil participation in model for sentation recognizes only the need for employee and employer representation as groups, sentation recognizes only the need for employee the ILO Constitution regarding the need for there are some beginnings of recognition in for example, under article 3(2) of the ILO representation beyond that limited scheme. Thus, agenda of the meeting, may accompany each Constitution, two advisers, for each item on the be delegate; at least one of the advisers should voice for women in the ILO. We draw attention to this fact only to emphasize the existing, voice for women in the ILO. We draw attention although slim, basis for acceptance of such arguments. tional Labour Standards are Created women 694 states. \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 20 4-OCT-13 9:22 tural workers could all be considered as candidates for receiving independent representation in the ILO. For further discussion, see generally Milman-Sivan, tite system with respect to the representativity of the ILO: tite system with respect to the representativity R 34040-mil_34-4 Sheet No. 14 Side B 10/10/2013 11:12:26 B 10/10/2013 14 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 15 Side A 10/10/2013 11:12:26 R R 695 , ILO, Further, 77 ]. art. 2(3)(j). For a , at arts. VIII(a), http://www.ilo.org/ supra Relations with NGOs 78 available at Portugal’s Report Memorandum Concerning the Obligation to Sub- Memorandum Concerning the Obligation to art. 19(5)(c). Only the most representative organi- Id. http://www.ilo.org/wcmsp5/groups/public/@ed_norm/ note 48, art. 19(5)(b). States are, however, bound to note 48, art. 19(5)(b). States are, however, , ILO, http://www.ilo.org/pardev/civil-society/index.htm Shared Responsibility Shared supra Delegates from employers’ and workers’ groups Delegates from employers’ 79 available at Engaging Civil Society ILO Constitution, See Standing Orders of the International Labour Conference arts. 39(1), 39(6) (adopted Standing Orders of the International Labour See note 48, art. 12(3), as well as Standing Orders of the ILC, note 48, art. 12(3), as well as Standing Orders The ILO norm-generation process is designed to allow considerable process is designed to allow The ILO norm-generation 78. Constitution of the ILO to Examine Comm’n Appointed under Article 26 of the 79. employers’ and workers’ At both stages of the discussions at the Conference, 77. M K the ILO adheres to the general understanding that obligations arising from the general understanding that obligations the ILO adheres to “In general the are confined to state borders: ratified ILO conventions labour Conven- from ratification of an international obligations resulting Conven- obligations arising under general international tion, like all such of the party to to matters arising within the jurisdiction tions, are limited which the obligation rests.” the Convention upon on Nov. 21, 1919) [hereinafter Standing Orders of the ILC], on Nov. 21, 1919) [hereinafter Standing Orders VIII(b), GB292-10 (2005) zations are entitled to receive copies of the information their governments communicated to zations are entitled to receive copies of the information the Office concerning such measures. ILO, the Competent Authorities mit Conventions and Recommendations to public/english/standards/relm/ilc/ilc-so.htm. The Office sometimes seeks advice from the public/english/standards/relm/ilc/ilc-so.htm. as to proposed instruments, but the scope for United Nations and other specialized agencies of NGO’s in the ILO, see ILO Constitution, NGO participation remains limited. For the role supra general explanation on the relations of the ILO with NGOs, see general explanation on the relations of the ILO submit ILO conventions for the consideration of the national authorities and report to the submit ILO conventions for the consideration and recommendations to the competent ILO as to the measures taken to submit conventions national authorities. ILO Constitution, @normes/documents/questionnaire/wcms_087324.pdf. Ghana Concerning the Observance by the Gov- the Complaint Filed by the Government of Labour Convention, 1957 (No. 105), Rep., ernment of Portugal of the Abolition of Forced [hereinafter para. 720, O.B. XLV(2), Supp. II (Apr. 1962) and consider the ultimate form of the stan- groups may propose texts, make amendments, dard. #Statutory_0 (last visited Mar. 26, 2013). http://www.ilo.org/pardev/civil-society/ngos/index.htm (last visited Mar. 26, 2013). This partly accounts for the relatively greater participation of human rights NGOs in UN activities the rather than in the ILO’s activities. NGOs may influence ILO work indirectly through international workers organizations, such as the International Confederation (ITUC), which have consultative status with the ILO, or by submitting information infor- of mally to the Office. They may further apply to the Director-General to be put on the list organizations whose objectives are in harmony with the objectives of the ILO. Such inclusion on the list, if authorized, entitles them to be notified of meetings and to apply for special oral permission to distribute documents in the ILO and to participate in meetings by making presentations. participation of governments as well as employers’ and workers’ organiza- as well as employers’ and participation of governments regarding the in large amounts of national information tions, which results and application of allow or hinder the ratification conditions that would the proposed standards. to-international-labour-standards/international-labour-standards-creation/lang—en/index .htm (last visited Feb. 13, 2013). Summer 2013] labor standards)—are (nonbinding recommendations to create formulated bearers of are the only legal States, thus, for member states. obligations only actors as they are the of labor rights for the violations responsibility each state In addition, with these standards. to ratify and comply expected bound by thereby, be legally to ratify and, discretion whether retains full by the ILO. produced and recommendations the conventions \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 21 4-OCT-13 9:22 C Y 34040-mil_34-4 Sheet No. 15 Side A 10/10/2013 11:12:26 A 10/10/2013 15 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 15 Side B 10/10/2013 11:12:26 R R R M K C Y A ILO 81 NTER- 34:675 http:// I These 83 [Vol. see also available at Only the most ELATING TO 80 R 7 (2012), GB.289/3/2(Rev.), 289th Sess. , ROCEDURES P ]. Note that the organizations that can note 79 arts. 39(1), 39(6); note 79, art. 39(1). supra supra ECOMMENDATIONS ANDBOOK OF R ROCEDURES ,H T P ’ EP note 48, art. 19(5)(e) (obligation to report on ratified con- and (2) a procedure for submitting complaints and (2) a procedure for submitting D 82 supra http://www.ilo.org/public/english/standards/relm/gb/docs/gb289/pdf/ ANDBOOK OF Michigan Journal of International Law ONVENTIONS AND TANDARDS S C The Functioning of Decision-Making Bodies arts. 24-26. The ILO’s Supervisory System: Sanctions and Incentives The ILO’s Supervisory Standing Orders of the ILC, Standing Orders of the ILC, available at ABOUR ABOUR NATIONAL L See id. See See L L ’ C. NT Compliance with ILO standards is supervised through two separate, ILO standards is supervised through Compliance with In addition to the provisions of the Standing Orders referred to under paragraphs In addition to the provisions of the Standing Consultation (International Labour 3 and 4 above, Article 5(1)(a) of the Tripartite Paragraph 5(a) of the Tripartite Con- Standards) Convention, 1976 (No. 144) and Organisation) Recommendation, sultation (Activities of the International Labour employers’ and workers’ representa- 1976 (No. 152), provide that consultations of questionnaires concerning items on tives should be held on government replies to comments on proposed texts to be the agenda of the Conference and government discussed. 83. 82. ILO Constitution, 81. 80. similar state-centric approach prevails in the ILO’s supervisory system, as approach prevails in the ILO’s supervisory similar state-centric below. will be demonstrated the statist model of systems, both of which showcase yet complementary system, based on the submission of responsibility: (1) a regular reporting as to the member state’s compliance national reports in fixed intervals with its legal obligations; two systems have diverging logics and features, and while both reflect the two systems have diverging logics and the former follows it more closely. In statist conception of responsibility, supports the implementation of the addition, a novel follow-up procedure representative organizations of each state are involved and consulted. of each state are involved representative organizations regarding particular violations, open to a wide variety of players. regarding particular violations, open ventions), art. 19(6)(d) (obligation to report on unratified conventions), art. 22 (obligation to ventions), art. 19(6)(d) (obligation to report on unratified conventions), art. 22 (obligation report on recommendations), art. 23 (obligation of the Director-General to report this infor- mation to the Conference). submit comments could include any industrial organization and are not limited to the repre- sentative organizations. Workers’ and employers’ organizations may comment on their gov- ernment’s response or send their comments directly to the Office. www.ilo.org/wcmsp5/groups/public/-ed_norm/-normes/documents/publication/wcms_192621 .pdf [hereinafter ILO H Governing Body, (Mar. 2004), 696 of stages at the different footing, on equal almost involved, are intensely propose Conference and can Labour at the International the discussions of the stan- the ultimate form deliberate on amendments, and texts, make well, as the in this context as model prevails the statist dard. Nevertheless, employ- of the workers and of the states and and information knowledge the legisla- During national representatives. through ers are incorporated member states are and recommendations, the tive stage of conventions and comments questionnaires and provide information required to fill out law and practice on the issue at hand. regarding national \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 22 4-OCT-13 9:22 gb-3-2.pdf. ILO, I 34040-mil_34-4 Sheet No. 15 Side B 10/10/2013 11:12:26 B 10/10/2013 15 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 16 Side A 10/10/2013 11:12:26 R R R R R , 697 These 86 Compare Report Workers’ and em- Although allowing Improvements in the Stan- 85 87 with Report Forms: Country Base- ILO Declaration on Social Justice Ratification and Promotion of Fun- note 30, art II. 84 supra , , para. 1, GB.306/LILS/6(& Corr.), 306th Sess. note 48, arts. 22, 35. On the move to a three-year note 48, art. 23(2). supra , GB.306/LILS/4(Rev.), 306th Sess. (Nov. 2009). The na- , GB.306/LILS/4(Rev.), 306th Sess. (Nov. 2009). note 48, art. 24. Shared Responsibility Shared supra supra , http://www.ilo.org/declaration/follow-up/annualreview/Re ILO, http://www.ilo.org/wcmsp5/groups/public/-ed_norm/-relconf/docu 1. System The Regular Reporting ILO Constitution, available at , ILO, http://www.ilo.org/declaration/follow-up/annualreview/Reportforms/ see Part IV. On the significance of the four governance Conventions, relating to Part IV. On the significance of the four governance ILO Constitution, at 14. Id. See See ILO Declaration on Social Justice note 30, where they were designated as “most significant from the viewpoint of govern- note 30, where they were designated as “most The ILO’s statist model is clearly evident in its reporting system in a its reporting system clearly evident in statist model is The ILO’s These are: the Labour Inspection Convention, 1947 (No. 81); the Employment Pol- These are: the Labour Inspection Convention, Inspection (Agriculture) Convention, icy Convention, 1964 (No. 122); the Labour (International Labour Standards) 1969 (No. 129); and the Tripartite Consultation Convention, 1976 (No. 144). During the 98th Session of the Conference (2009), the governance Conventions, along with the fundamental Conventions, were acknowl- edged as important elements in a strategy for recovering from the crisis, as indi- cated in the Global Jobs Pact. See infra 87. ILO Constitution, 85. in Articles 22 and 35 of the ILO Many of the reporting obligations are anchored 86. 84. M K associations, in turn, may submit comments to the state’s report, pointing, associations, in turn, may submit comments law and practice or any other devia- for example, to discrepancies between obligations. tion from the state’s labor standards ployers’ associations participate in the process via Article 23(2) of the ILO participate in the process via Article ployers’ associations be transmitted mandates that all governmental reports Constitution, which state. employers’ associations of their national to the workers’ and these comments can be understood as a move toward shifting responsibil- these comments can be understood variety of ways. Only states are obligated to submit reports, and the state submit reports, and are obligated to ways. Only states variety of Additionally, the monitored under the procedure. is the only legal subject provide reflects stat- that states are required to nature of the information process and are obli- are key players in the monitoring ism. Member states within differing reports on ratified conventions gated to submit periodic and a shorter five years for “regular” conventions reporting cycles: every (until re- fundamental and governance conventions reporting cycle for years but now every three years). cently, every two cycle, see ILO Comm. on Legal Issues and Int’l Labour Standards, cycle, see ILO Comm. on Legal Issues and Int’l dards-Related Activities of the ILO report is the first report, which serves as ture of these reports also varies. The most significant any progress is measured. a baseline for the particular country against which Forms: First Report Forms see tripartism, employment policy, and labour inspection, supra and labour inspection.” (the governance Con- ance covering tripartism, employment policy ventions). (Nov. 2009), damental and Governance ILO Conventions line Updates lang—en/index.htm. under Article 19 are discussed be- Reports on un-ratified conventions low. ILO Comm. on Legal Issues and Int’l Labour Standards, Constitution, portforms/lang—en/index.htm (last visited Mar. 26, 2013) ments/meetingdocument/wcms_115984.pdf. Summer 2013] modi- further and was at Work Rights of Fundamental Declaration 1998 Declaration. expanded in the 2008 fied and \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 23 4-OCT-13 9:22 C Y 34040-mil_34-4 Sheet No. 16 Side A 10/10/2013 11:12:26 A 10/10/2013 16 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 16 Side B 10/10/2013 11:12:26 R R R R M K C Y Two 34:675 The 93 [Vol. at 114. This note 4, at 109. Id. NGOs may See Committee of 88 supra http://eiop.or.at/eiop/ , Miriam Hartlapp, , ILO, http://www.ilo.org/ See This legal orientation HOMANN note 4, at 104-17. 89 . supra , 1, 10 (June 14, 2005), semi-legal HOMANN APERS P NLINE O Despite the fact that the CEACR does not have Despite the fact that the CEACR 92 Michigan Journal of International Law It should come as no surprise, then, that about two- It should come as 90 supra note 90, at 10. . , notes 245–247 and accompanying text. NTEGRATION I See infra 91 UROPEAN The statist model is similarly reflected in the nature of the CEACR’s is similarly reflected in the nature The statist model Further, the legal subject at the center of the Committee’s operations subject at the center of the Committee’s Further, the legal ,E 91.92. Hartlapp the periodical reports and evalu- The Committee of Experts’ mandate is to gather 93. After a long-lasting debate as to the CEACR’s mandate and the legal nature of its 90. as the department that is responsible for The emphasis on law is almost inevitable 89. here insofar as it indicates the use of The legal character of the CEACR is relevant 88. not directly submit information to the Committee of Experts on the Appli- of Experts on to the Committee submit information not directly of (CEACR or Committee Recommendations Conventions and cation of NGOs are, these reports. charge of analyzing the body that is in Experts), employees’ orga- to cooperate with the employers’ and therefore, obliged by the NGOs. then channel the information gathered nizations, which can be characterized as work, which can correlates with the CEACR’s composition: twenty prominent apolitical ju- CEACR’s composition: twenty prominent correlates with the manner in their to act in an objective and neutral rists who are expected common to most of from the tripartite structure evaluations, a departure the ILO bodies. the mandate of a judicial body, it nonetheless evaluates the periodical re- the mandate of a judicial body, it nonetheless as to the extent to which each indi- ports and makes its own determination obligations under the ILS. vidual state conforms to its legal thirds of the staff involved in the Committee’s preparatory work are involved in the Committee’s preparatory thirds of the staff lawyers. Variations on a Theme: Different Logics of Implementation Management in the EU and the Variations on a Theme: Different Logics of ILO ate the extent to which each state conforms to its legal obligations. It consists of twenty ate the extent to which each state conforms independent persons, from different countries, who qualify as experts in their legal or social fields and purports to maintain independence, impartiality, and objectivity. Experts on the Application of Conventions and Recommendations global/standards/applying-and-promoting-international-labour-standards/committee-of-ex- perts-on-the-application-of-conventions-and-recommendations /index.htm (last visited Feb. 20, 2013). findings, the Committee adopted a pragmatic approach whereby it does not regard its finding re- as binding judgments. However, such findings are binding unless the state in question quests a different interpretation from the International Court of Justice or a tribunal estab- lished for such purpose. Both options have never been used. T preparing the draft CEACR report is almost exclusively staffed by lawyers. preparing the draft CEACR report is almost the Committee utilizes in addition to the legal focus is also evident in the legal materials and court cases. national reports, such as collective agreements texte/2005-007a.htm is the individual state. a statist model. Compare this model with legalism as an approach to compliance, which ad- a statist model. Compare this model with legalism degree of independence of the system; (2) the dresses three dimensions of legalism: (1) the arena; and (3) the degree to which actors degree to which the judgment affects the national system. For our purposes here, we will only other than the state are able to operate the of the CEACR in light of the full theory of address the third dimension. For an analysis T legalism as an approach to compliance, see 698 are dis- such comments organizations, functional to its the state ity from a national also submitted on They are rather than mandatory. cretionary government. on its own organization comments basis: each \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 24 4-OCT-13 9:22 34040-mil_34-4 Sheet No. 16 Side B 10/10/2013 11:12:26 B 10/10/2013 16 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 17 Side A 10/10/2013 11:12:26 R R 2 94 699 Alfred See 97 http://www.ilo.org/ , at 20 n.19 (2011) [here- Committee on the Applica- http://www.ilo.org/wcmsp5/ available at , Form for Reports on the Application available at The Conference Committee 98 There are two types of comments the There are two types 253, 273 (2005). 95 . EV . R Shared Responsibility Shared AB , ILO Governing Body, L L ’ note 96, at 25. NT These refer explicitly to individual states, identifying These refer explicitly See e.g. 96 supra , , 144 I http://www.ilo.org/wcmsp5/groups/public/@ed_norm/@declaration/docu Forced Labour and Human Trafficking: Casebook of Court Decisions Part IV. This is not an exhaustive description of the functions of the Commit- Part IV. This is not an exhaustive description ILO, The Standard-Setting and Monitoring Activity of the ILO: Legal Questions and The Standard-Setting and Monitoring Activity note 92. Such Observations may be accompanied by a footnote requesting the note 92. Such Observations may be accompanied See See Committee of Experts on the Application of Conventions and Recommenda- See Committee of Experts on the Application infra , GB.313/LILS/7/1, 313th Sess. (Mar. 2012), available at Committee on the Application of ILS Standards] supra The Committee on the Application of Standards of the International Labour Conference: The Committee on the Application of Standards The CEACR’s annual report on the application of labor standards and The CEACR’s annual report on the , 98. 97. Cases of good practice acknowledge situations where a country has adopted a 94. information do include some ques- The questionnaires that are the basis of such 96. 95. a general survey, which will be The Committee of Experts’ report also includes M K Committee can issue: observations and direct requests to governments. observations and direct requests Committee can issue: Contact” procedure be distinguished from the “Direct Direct requests (to under review unpublished appeals to the government described below) are on technical information or to initiate communication to provide more cases of long-last- communication fails, or in severe matters. When direct “Observations” the Committee of Experts publishes ing noncompliance, in its annual report. each of the “violating” states name by name. Notices of good practice of states name by name. Notices each of the “violating” lines. sort of “best practices,” follow similar states, indicating a government in question to submit full information regarding the case or a request to submit government in question to submit full information at hand before the “regular” report is due. to the Conference a detailed report on the subject ILO, and Persuasion A Dynamic and Impact Built on Decades of Dialogue inafter recommendations is submitted for discussion to the Conference Commit- recommendations is submitted for discussion tripartite political body appointed by tee, a standing committee that is a the International Labour Conference. wcmsp5/groups/public/-ed_norm/-normes/documents/publication/wcms_154192.pdf. unique and notable approach to the application of a convention. A case of good practice may can consist of a new approach to achieving or improving compliance with a convention and of therefore be seen as a potential model for others. The Committee also mentions cases or progress, whether “with satisfaction,” which indicates that the case is no longer a concern, “with interest,” indicating smaller steps and actions of progress. tion of ILS Standards tions on the actual application of labor laws. However, these questions constitute only a small tions on the actual application of labor laws. part of the questionnaire. Summer 2013] a legal in engages mostly compliance, of state assessment in its CEACR, practice. violations in while neglecting legal discrepancies, analysis of the norm, application of than on the practical on law, rather This focus generators as they are the to state authorities, directs attention necessarily employees labor relations, two partners in the than to the of law, rather CEACR’s Accordingly, the on the ground. who operate and employers, directed solely at conclusions and comments, which are key products are under review. the individual state \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 25 4-OCT-13 9:22 tions (2009), Wisskirchen, Practical Experience of Ratified Convention s (Article 22 of the Constitution): Domestic Workers Convention, 2011 of Ratified Convention s (Article 22 of the Constitution): (No. 189) groups/public/-ed_norm/-relconf/documents/metingdocument/wcms_175008.pdf. discussed mostly unsuccessfully, to expand its compe- tee. Over the years, the Committee has tried, attempts include, for example, increasing its tence within the supervisory system. Such that its interpretations are binding. competence as a judicial body by asserting C Y 34040-mil_34-4 Sheet No. 17 Side A 10/10/2013 11:12:26 A 10/10/2013 17 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 17 Side B 10/10/2013 11:12:26 R R R R R R M K C Y 103 ILC 34:675 [Vol. Int’l Labour Confer- note 96, at 11–12, 19. note 96, at 83, 89. See http://www.ilo.org/wcmsp5/ supra supra , , Information and Reports on , In each case, the Confer- In each As the Conference Committee is a 99 , 3, 16 Part I (2010) [hereinafter available at See id. http://www.ilo.org/wcmsp5/groups/public/- Information and Reports on the Application of Information and Reports on the Application 102 available at note 81, at 54-55. , at 9-11 (2012), ], note 95, at 281—82.that The cases are chosen in a way The annual report may also add the Conference The annual report supra , supra 101 note 4, at 93. Michigan Journal of International Law supra , ROCEDURES at 1–3, 105–10. P Wisskirchen, HOMANN 100 note 79, art. 7. It is comprised of 200 or more members. note 79, art. 7. It is comprised of 200 or more See Id. See See Committee on the Application of ILS Standards See Committee on the Application of ILS Standards supra This Handbook describes the procedures operating within the International La- bour Organization in relation to the adoption and implementation of Conventions and Recommendations. The present edition takes account of the adjustments to the system for the supervision of international labour standards decided on by the Governing Body of the International Labour Office up to its March 2012 session. Finally, at different stages of the monitoring process, the ILO supervi- Finally, at different stages of the monitoring The names of the states where particularly harsh violations have alleg- states where particularly harsh violations The names of the 99. 103. For an updated description of the informal Direct Contact procedure see, ILO 100. 102. 101. ANDBOOK OF ence Committee requests that a governmental representative of the terri- representative a governmental requests that ence Committee it. This appear before violation occurred where the alleged torial state and partici- information further oral or written may provide representative the Confer- structure of case. The tripartite discussion of the pate in the a political nature, in that the discussions are of ence Committee suggests in the work of the objective, legal deliberations contrast to the more CEACR. Committee’s recommendations as to how to proceed, including recom- as to how to proceed, Committee’s recommendations complaint proce- the handling of the case to the mendations to redirect the Conference for annual report is submitted to dure. The Committee’s adoption. discussion and official H represents a balanced selection of issues and geographical areas. The considerations for iden- represents a balanced selection of issues and of the particular state with previous re- tifying appropriate cases include the cooperation discussion would assist in producing change, the quests for information, the likelihood that a discussions, and the scope and nature of severity of the situation, the occurrence of earlier Confederation of Free Trade Unions (ICTFU) the violation. In practice, the International a list, with the agreement of the employers, and and World Confederation of Labour propose upon. this is presented for the Conference to agree political body, political considerations may also play a part in the selection of the cases to be political body, political considerations may also discussed. T ed_norm/-normes/documents/publication/wcms_145220.pdf. For a recent example of Conference Committee report see, Int’l Labour Conf., 101st. Sess., For a recent example of Conference Committee Committee on the Application of Standards, Conventions and Recommendations groups/public/-ed_norm/-normes/documents/publication/wcms_190828.pdf. Comm. App. Standards Report ence, Committee on the Application of Standards, 99th. Sess. ence, Committee on the Application of Standards, the Application of Conventions and Recommendations sory bodies may use the more informal “Direct Contact” procedure, sory bodies may use the more informal edly occurred are mentioned in a special paragraph that appears in the mentioned in a special paragraph edly occurred are of “continued annual report, under the category Conference Committee’s failure to implement.” ments/publication/wcms_106143.pdf. The Conference Committee’s characteristics and duties ments/publication/wcms_106143.pdf. The Conference of the Conference. Standing Orders of the are set mainly in Article 7 of the Standing Orders ILC, 700 has the CEACR which total) on in twenty-five cases (about several selects examination. for further issued observations \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 26 4-OCT-13 9:22 34040-mil_34-4 Sheet No. 17 Side B 10/10/2013 11:12:26 B 10/10/2013 17 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 18 Side A 10/10/2013 11:12:26 R R R R , , 701 See ASIC 107 note OBIN The ´ ECTOR -J B H NTERNA- 109 infra I See HE note 48, arts. ECOMMENDA- R , T supra YSTEM AND Direct Contact HARBONNEAU 405-05 (1993). When S 106 C ´ E WEPSTON SSUES S I HLO EE TANDARDS ONVENTIONS AND & C 108 http://www.ilo.org/wcmsp5/groups/ S & L C ELECTED : S RAVEL , http://www.ilo.org/global/standards/apply AW G OTOBSKY L available at RIC P , ILO note 104, at 405-05. NTERNATIONAL PPLICATION OF ABOUR I A L supra HE , 16 (2003), Shared Responsibility Shared : T to personally conduct, often in a discreet man- conduct, often to personally and Representations ERALDO VON This procedure enables a representative of the representative of enables a This procedure ETTEN 105 , G MPACT B 104 I , ILO, http://www.ilo.org/global/standards/applying-and-promoting- RUZ See XPERTS ON THE NTERNATIONAL C E , I RGANIZATION 86 (1996). O 2. Based on Complaints Supervision Procedures note 104, at 404-05. ETTEN YNAMIC AND B TIONAL IGHTS See Complaints ABOR TIONS D supra TS , R L OMMITTEE OF : I Committee on Freedom of Association AMMY At first glance, the complaints procedures seem to be as reflective of complaints procedures seem to be At first glance, the C L 105. of the Office, an independent person with This representative is usually an official 108. The complaint procedure is governed by the ILO Constitution, 109. 104. important cases concerning the ratifi- Direct Contact is mainly used in sufficiently 106. procedure, the Committee of Experts Even in the absence of a full Direct Contact 107. a view to developing dialogue with govern- The procedure originated in 1967 “with UMAN ARTOLOMEI DE LA ETTEN HE M K has no rigid rules and has been extensively used since the late 1970s. and has been extensively used since has no rigid rules ner, such meetings and discussions as are necessary to resolve difficulties to resolve as are necessary meetings and discussions ner, such This is of ILO standards. in the application member states with individual the member state concerned. usually done by visiting ILO Director-General Direct Contact is conducted, the supervisory bodies suspend the examination of the case. Direct Contact is conducted, the supervisory select cases for further discussion. Otherwise, the Conference Committee may of the Committee of Experts. expertise on the subject, or a member 26-34. 107. and recommendations or cases before the CFA. cation or the implementation of conventions See international-labour-standards/complaints/index.htm (last visited Feb. 17, 2013). The tripar- tite Committee on Freedom of Association bases its jurisdiction on the constitutional guaran- and tee of freedom of association and therefore accepts complaints from trade unions employer organizations, regardless of whether the state in question has ratified the relevant conventions (Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98)). the statist model as the regular reporting system they supplement, for they the regular reporting system they the statist model as for uphold- on the state as the sole actor responsible are similarly focused its territory. under ratified conventions within ing legal obligations In 1968, the Committee public/-ed_norm/-normes/documents/publication/wcms_087808.pdf. and in June 1968, the Conference Com- of Experts set forth the principles of this procedure, It began to function in 1979 on an experi- mittee announced itself in favor of the procedure. of Experts noted that it may be viewed as an mental basis, and in 1972, the Committee established procedure. B may support a request of the Director-General to send a representative to the country in may support a request of the Director-General and resolve a particular issue or problem. question in order to help fully understand ments and employers’ and workers’ organizations in order to overcome difficulties encoun- ments and employers’ and workers’ organizations tered in the application of Conventions.” E B H T Id. at 1. For further details as to the establishment of this procedure in 1968, see Id. at 1. For further details as to the establishment Summer 2013] form of the takes and generally at states specifically directed is also which relevant representative and between the ILO verbal discussions detailed officials. government \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 27 4-OCT-13 9:22 C Y 34040-mil_34-4 Sheet No. 18 Side A 10/10/2013 11:12:26 A 10/10/2013 18 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 18 Side B 10/10/2013 11:12:26 R M K , C Y : A ILO, 34:675 See [Vol. REEDOM OF F SSOCIATION A 1—3 (5th rev. ed. 2006). the ILO Governing 112 ILO REEDOM OF RINCIPLES OF THE Article 24 of the ILO Con- Article 24 of the ILO P 110 http://www.ilo.org/wcmsp5/groups/pub- , ILO, F Core Labor Standards Toolkit – Step 2 ODY OF THE B URTIS C ECISIONS AND available at D http://www.ilo.org/wcmsp5/groups/public/-ed_norm/- AREN OVERNING note 48, art. 24. G Standing Orders Concerning the Procedure for the Exami- & K IGEST OF See supra The committee’s investigation is focused on re- The committee’s investigation is . In addition, member states can charge another member states . In addition, : D available at 113 AJGMAN Michigan Journal of International Law . In severe and rare cases a full-scale investigation is cases a full-scale investigation . In severe and rare T , http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTSOC ANK AVID SSOCIATION 111 OMMITTEE OF THE 57 (2000), D B C A art. 3. representation complaint Id. See UIDE ORLD G S ’ Once a representation—that an ILS viola- is, a complaint alleging W 112. Whether a representation is considered receivable depends on certain “procedu- 111. ILO Constitution, 113. 110. SSOCIATION SER HE REEDOM OF Body (GB) can establish a tripartite committee of the Governing Body, a tripartite committee of the Body (GB) can establish Body chosen in equal numbers composed of members of the Governing workers’ groups, to investigate and from the government, employers’ and report on the case. stitution, which governs the representations procedure, one of the proce- the representations procedure, stitution, which governs to the failure of a complaint system, explicitly refers dures within the “within its comply with a ratified convention member state to jurisdiction.” vealing any possible responsibility on the part of the territorial state for vealing any possible responsibility the centrality of the statist the alleged wrong, once again underscoring F ral” factors, such as whether there is a specific reference to Article 24, whether the case concerns the violation of an instrument that was ratified by the member state against which the representation is made, whether the organization can be determined to be an industrial organization in cases where the complaint originates from a functional organization, and sim- ilar procedural requirements. nation of Representations Under Articles 24 and 25 of the Constitution of the International Labour Organization, art 2. (adopted Apr. 8, 1932; modified Nov. 18, 2004) [hereinafter Standing Orders of the Governing Body], tion—has and deemed receivable, been submitted IALPROTECTION/EXTLM/0,,contentMDK:20224312~menuPK:390633~pagePK:148956~ visited Feb. 17, 2013) (“In rare cases, the Gov- piPK:216618~theSitePK:390615,00.html (last of Inquiry to conduct an independent erning Body may appoint a Commission investigation.”). lic/-ed_norm/-normes/documents/meetingdocument/wcm_041899.pdf. T normes/documents/publication/wcms_087990.pdf (“[T]he FFCC [Fact-Finding and Concilia- normes/documents/publication/wcms_087990.pdf tion Commission] is rarely used.”); Labor Markets: ing-and-promoting-international-labour-standards/committee-on-freedom-of-association/in- set forth in a digest published at regu- dex.htm (last visited Feb. 17, 2013). Its jurisprudence, decisions of the Fact-Finding and Conciliation lar intervals, is supplemented by the occasional is closely related to that of the Committee of Commission on Freedom of Association and Survey on freedom of association. Experts, which also provides a periodic General A 702 pro- complaints several for system allows representations and complaints association. to freedom of procedure relating a separate cedures, including groups, can and employees’ is, employers’ organizations, that Industrial ratified by it previously violated a convention a member state allege that filing a by a ratified convention its obligations under state with violating member filing a and Con- the Commission of Inquiry or the Fact-Finding launched through on Freedom of Association—theciliation Commission comparable body freedom of association. in cases that involve \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 28 4-OCT-13 9:22 U 34040-mil_34-4 Sheet No. 18 Side B 10/10/2013 11:12:26 B 10/10/2013 18 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 19 Side A 10/10/2013 11:12:26 R R R R R R R R R R 114 703 122 note 48, Standing See supra Unlike the 119 See Committee on Standing Orders of the Gov- note 4, at 128. Complaints regarding free- Complaints regarding see also 116 This can be explained as due to supra note 112, para. 9. 118 , 121 “industrial organization of employ- supra any HOMANN note 112, art. 3(2). The CFA is a fairly independent note 48, art. 25. note 48, arts. 25-26; Shared Responsibility Shared supra note 109. This is because neither the CFA nor the CCFF is supra supra note 4, at 127. note 4, at 119. supra , This procedure, however, has been used only rarely, a This procedure, however, has been supra supra , , 120 note 112, arts. 6-9. The Committee of Experts is often put in charge of follow- Experts is often put in charge of The Committee of supra 117 art. 26. at 120-21. in an attempt to embarrass and pressure the particular state as particular state and pressure the to embarrass in an attempt HOMANN HOMANN Id. Id. 115 Yet despite this statist orientation, several features of the representa- orientation, several features of Yet despite this statist 120. For article 2(b) of the standing orders and the guidelines to implementing them, 121. T 118. T 117. 2, of the standing orders. Such referrals follow article 3, paragraph 119. The representation procedure is anchored in the ILO Constitution, 122. 116. 115. ILO Constitution, 114. ILO Constitution, M K regular reporting system, where only Conference delegates of the national regular reporting system, where only organizations are allowed to most-representative workers’ and employers’ the right to submit a represen- comment on states’ convention compliance, tation against a state is granted to ers or workers.” dom of association violations are referred to the Committee on Freedom violations are referred to the Committee dom of association same procedures as and follow approximately the of Association (CFA) as the Commission procedure and, in appropriate cases, the representation of Inquiry. either a lack of awareness of the procedure or the limited impact of its either a lack of awareness of the procedure report published by an ad-hoc tripar- outcome, which consists merely of a more severe results of the complaint tite committee, as opposed to the 26-34 of the ILO Constitution. procedures set forth under Articles mere 107 times between 1924 and 2004. body as its chairperson is independent and the nine members, despite being chosen from the body as its chairperson is independent and the capacity. While its investigative powers three constituents, operate in their own personal of Inquiry, its reports, or points of decision, somewhat resemble those of the Commission effect in and of themselves. regularly accepted by the GB, have no legal Freedom of Association mentioned in the ILO Constitution. However, they do have de facto influence on the legal understanding of freedom of association, as their decisions are based on more than 2500 cases of legal and factual examinations. T Orders of the Governing Body, up on complaints submitted to the CFA. up on complaints arts. 24-25. see Standing Orders of the Governing Body, the only responsible agent. It can also initiate the complaints procedure agent. It can also initiate the complaints the only responsible of the ILO Constitution. under Article 26 tion procedure somewhat diverge from strict statism. For example, the diverge from strict statism. tion procedure somewhat employers’ organiza- allows the involvement of representation procedure greater numbers, workers’ organizations. tions and, in even erning Body, Summer 2013] to government state’s of the the response incorporates Its report model. might the committee any recommendations including the accusations, satis- response is not deemed government’s the state. Where the make to the state. measures against to take various GB is authorized factory, the re- and the government’s representation the original It can publish sponse \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 29 4-OCT-13 9:22 C Y 34040-mil_34-4 Sheet No. 19 Side A 10/10/2013 11:12:26 A 10/10/2013 19 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 19 Side B 10/10/2013 11:12:26 R R R R M K C Y 34:675 arts. 28-29; [Vol. See id. The Fact-Finding and Conciliation The Fact-Finding The GB may also instigate this may also instigate The GB 126 123 that conducts thorough examinations of that conducts thorough http://www.ilo.org/public/english/standards/relm/gb/ 125 note 48, art. 26. note 78, para. 11. , at para. 36, GB.288/LILS/1, 288th Sess. (Nov. 2003) GB.277/ , at para. 36, GB.288/LILS/1, 288th Sess. (Nov. supra available at note 78, at 4. note 4, at 125. supra Comm’n of Inquiry Appointed Under Article 26 of the Constitu- , Michigan Journal of International Law See Improvements in the standards-related activities of the ILO Improvements in the standards-related activities – Articles supra supra , In the most severe and persistent cases, the GB can de- cases, the severe and persistent In the most , 124 127 art. 26(4). HOMANN Id. The on-site visits, however, require the consent of the state in The on-site visits, however, require Portugal’s Report 128 As the Governing Body has not adopted any standing orders concerning the pro- As the Governing Body has not adopted any complaints filed in accordance with cedure to be followed for the consideration of article 26 of the Constitution, the Officers of the Governing Body have considered the procedure to be followed in the matter; their recommendations to the Gov- erning Body, which are unanimous, are as follows . . . . The legal subject of the Commission of Inquiry’s investigation is al- of the Commission of Inquiry’s investigation The legal subject Indeed, under Article 26 of the Constitution, a state may file a com- may a state Constitution, 26 of the Article under Indeed, 127. T 128. To give an example, the Commission of Inquiry that was established to investigate 126. strict procedural regulations, and its The Commission of Inquiry is not bound by 125. indicators of a quasi-judicial body: it is The Commission of Inquiry features several 124. 123. ILO Constitution, procedure, either autonomously or in response to a complaint filed by any to a complaint or in response either autonomously procedure, ILO delegate. comparable body of Association (FFCC) is the Commission on Freedom applies similar freedom of association and in cases that involve procedures. the law and the practice at hand. the law and the practice cide to launch a full-scale investigation by constituting a Commission of a Commission investigation by constituting a full-scale cide to launch body Inquiry, a quasi-judicial Nicaragua perceived on-the-spot interviews as particularly important, conducting extensive, on-the-spot interviews. tion to Examine the Observance by Nicaragua of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective members are free to set new rules in accordance with the Constitution and the custom estab- members are free to set new rules in accordance of Inquiry in 1962 established this lished by previous Commissions. The first Commission practice, stating that: See Portugal’s Report composed of three legal experts acting in their personal capacities; its reports do not have to composed of three legal experts acting in their submitted to the relevant state; and the be approved by the Conference and are directly of the Commission’s reports. Director-General publishes automatically all ILO Governing Body, 19, 24 and 26 of the Constitution 6, 277th Sess. (Mar. 2000), ways the individual state, again manifesting the statist model, which is ap- state, again manifesting the statist ways the individual as well. The of the Commission’s procedure parent in other features of the indi- is directed at ascertaining the responsibility Commission report recommendations matter at hand and gives detailed vidual state for the based on a substan- is obligated to fulfill. The report is that only the state visits to the site and witness hear- tial investigation, which usually includes ings. plaint alleging that a fellow member state has failed to comply with a con- failed to comply member state has that a fellow plaint alleging states. ratified by both vention docs/gb288/pdf/lils-1.pdf (stating that in the absence of any formal rules, the recommendation docs/gb288/pdf/lils-1.pdf (stating that in the absence the Governing Body during the examination of is to adopt the rules that were accepted by of a Commission of Inquiry). The first the first complaint that gave rise to the constitution legal experts as members of the commission of commission of inquiry had nominated three inquiry. 704 \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 30 4-OCT-13 9:22 34040-mil_34-4 Sheet No. 19 Side B 10/10/2013 11:12:26 B 10/10/2013 19 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 20 Side A 10/10/2013 11:12:26 R R R R R Id. 705 note , at para. supra , http://www.ilo Myanmar’s Re- ARTOLOMEI DE LA B See available at ], Myanmar’s Report note 4, at 124. Within three months of the months three Within supra 129 , Alternatively, the state can sub- the state can Alternatively, ]. The Commission of Inquiry in that case ]. The Commission of 130 HOMANN note 105, at 96. note 48, art. 29(2). Even when states accept the rec- supra , note 48, art. 34(1). There is a debate as to the legal status Shared Responsibility Shared supra Nicaragua’s Report supra WEPSTON & S Special Procedures for the Examination in the International Labour Or- Special Procedures for the Examination in the Freedom of Association Complaint Procedures 131 ILO Constitution, OTOBSKY P See VON , Following its Second Session, the Commission considered that it would be desira- Following its Second Session, the Commission the information in its possession. The ble to visit Myanmar in order to supplement in a letter dated 28 November Commission therefore requested the Government, a period of seven to ten days; it ex- 1997, to consent to a visit to Myanmar for offer its cooperation and assistance pressed the hope that the Government would in this respect. the current procedure for the examination of complaints alleging infringements of the current procedure for the examination of adopted by common consent by the trade union rights, based on the provisions Office and the Economic and Social Governing Body of the International Labour February 1950, and also on the deci- Council of the United Nations in January and Session (November 1951), 123rd sions taken by the Governing Body at its 117th 1956), 140th Session (November Session (November 1953), 132nd Session (June (May 1969), 184th Session (No- 1958), 144th Session (March 1960), 175th Session vember 1971), 202nd Session (March 1977), 209th Session (May-June 1979) and 283rd Session (March 2002) with respect to the internal procedure for the prelimi- nary examination of complaints, and lastly on certain decisions adopted by the Committee on Freedom of Association itself. ]. Note, however, that all the procedures of the Commission are fluid, and their descrip- all the procedures of the Commission are fluid, ]. Note, however, that para. 69. With respect to procedures that involve investigations of violations of freedom of para. 69. With respect to procedures that involve pmbl. 131. ILO Constitution, 129. visits, see For the refusal of Mynamar to allow such 130. RUZ M K report’s release, the state is expected to indicate whether it accepts the whether it is expected to indicate the state report’s release, on the spe- state to decide if so, it is left to the therein; recommendations them. for implementing cific measures mit a dispute to the International Court of Justice, for a final judgment on for a final judgment Court of Justice, to the International mit a dispute the matter. of a Commission of Inquiry report that was rejected by the relevant state but not referred to of a Commission of Inquiry report that was rejected by the relevant state but not referred 67 [hereinafter Id. association, see ILO, of Freedom of Association—Annexganization of Complaints Alleging Violations 1 128, para. 78. not ommendations of the Commission of Inquiry, in most cases these recommendations are implemented fully or in a timely manner. T .org/dyn/normlex/en/f?p=1000:62:0::NO:62:P62_LIST_ENTRIE_ID:2565060:NO (last visited .org/dyn/normlex/en/f?p=1000:62:0::NO:62:P62_LIST_ENTRIE_ID:2565060:NO Feb. 20, 2013), which outlines: Id. para. 57. The Myanmar case is another example where the Commission recognized and spe- case is another example where the Commission para. 57. The Myanmar a direct impression of of visiting the country in order to form cifically noted the importance of the circum- in the complaint and acquire personal knowledge the situation described Comm’n of Inquiry Ap- mass of documents submitted to them. stances described in the Labour Organization to 26 of the Constitution of the International pointed Under Article 1930 (No. 29), by Myanmar of the Forced Labour Convention, Examine the Observance LXXXI, Series B, Special Supp. (1996) [hereinafter Rep., at para78, O.B. port far in a typical case. tion is based on the procedures adopted so conducted both on-the-spot interviews and interviews conducted in ILO headquarters. interviews and interviews conducted conducted both on-the-spot C Summer 2013] conducted. is being the investigation which (International Labour 1949 (No. 98), and the Tripartite Consultation Bargaining Convention, O.B. LXXIV, Series B, 1976 (No. 144), Rep., at paras. 33, 58, 59, Standards) Convention, Supp. 2 (1991) [hereinafter \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 31 4-OCT-13 9:22 C Y 34040-mil_34-4 Sheet No. 20 Side A 10/10/2013 11:12:26 A 10/10/2013 20 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 20 Side B 10/10/2013 11:12:26 R R R M K C Y 34:675 Doe v. [Vol. eophysique Id. erale de g ´ en ´ , GB.277/6, 277th Sess. (Mar. In this context, too, the state In this context, 133 were never officially deemed a were never officially It can be assumed that had key It can be assumed 134 135 note 128, para. 452. note 48, art. 33. Article 33 of the ILO Constitution could note 48, art. 33. Article 33 of the ILO Constitution Measures, Including Action Under Article 33 of the Constitu- Measures, Including Action Under Article 33 supra note 4, at 122-23. For our purposes, it suffices to point out the supra , supra 559, 562-63 (2003). Michigan Journal of International Law . , EV http://www.ilo.org/public/english/standards/relm/gb/docs/gb277/pdf/gb-6 . L. R HOMANN R T Myanmar’s Report This authority was invoked for the first (and, thus far, only) time for the first (and, was invoked This authority See available at 132 As a supplement to its primarily legal activities, since the 1950s the As a supplement to its primarily legal Under Article 33 of the ILO Constitution, when a member state con- a member when ILO Constitution, 33 of the Article Under There was evidence before the Commission in the form of secondary statements There was evidence before the Commission for ground clearance work to pro- that forced labor had been used until May 1995 vide access to survey teams for the Yadana gas pipeline project in Yebyu township, Tanintharyi Division. In a communication addressed to the Commission, TOTAL stated that it was wrong to claim that the preparatory clearing work could have been undertaken by forced laborers for the purpose of facilitating the access of the project teams. During the years of 1993 and 1994, clearing work had been carried out under the supervision of TOTAL by the Compagnie g ´ (CGG). In view of the contradiction between the facts presented, and since the Commission was denied access to Myanmar to supplement its evidence, no finding on this matter could be made. Searching for a Corporate Liability Standard Under the Alien Tort Claims Act in Searching for a Corporate Liability Standard 132. ILO Constitution, 133. ILO Governing Body, 134. in Myanmar, see, for example, Ryan For a description of TOTAL’s involvement 135. 3.and Declaration Follow-Up Additional Tools: Technical Assistance was the primary entity assigned responsibility for workers’ rights, while assigned responsibility for workers’ was the primary entity could have been corporations that were involved and the multinational (notably TOTAL) considered culprits party to be investigated. In the face of contradictory evidence as to the In the face of contradictory party to be investigated. labor, the Commis- in profiting from the forced corporations’ involvement on the matter that it could come to no finding sion of Inquiry concluded to visit Myanmar. due to its inability private companies been officially considered potential culprits along with been officially considered potential private companies to verify the facts. efforts could have been made the state, more rigorous approach to the implementation ILO has been developing a promotional Unocal, 82 O legal power the state has over the legal status of the report. legal power the state has over the legal status to carry out within the time specified the be invoked: “In the event of any Member failing report of the Commission of Inquiry, or in the recommendations, if any, contained in the as the case may be.” decision of the International Court of Justice, in ILO history in 2000, when the GB initiated measures against Myanmar measures against the GB initiated in 2000, when in ILO history in the state. to end forced labor in order tion of the International Labour Organization, to Secure Compliance by the Government of tion of the International Labour Organization, Commission of Inquiry Established to Examine Myanmar with the Recommendations of the 1930 (No. 29) the Observance of the Forced Labour Convention, 2000), .pdf. Tiz, tinuously refuses to implement the recommendations in a Commission of in a Commission the recommendations refuses to implement tinuously compli- take action to secure the GB can or ICJ decision, Inquiry report ance. the ICJ. 706 \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 32 4-OCT-13 9:22 Id. 34040-mil_34-4 Sheet No. 20 Side B 10/10/2013 11:12:26 B 10/10/2013 20 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 21 Side A 10/10/2013 11:12:26 R R R R , 137 707 see also In accordance 136 523, 538-39 (2010); Member-state govern- J. Y ’ 140 OL activities. note 2. http://www.itcilo.it/en/the-centre/about- , supra . L. & P ILO AB note 140. “Concerning ratification of Conven- . L Alston, 139 , ILO, http://www.ilo.org/declaration/thedeclaration/ supra OMP , Mirroring the regular reporting system, each Mirroring the regular reporting system, note 49, at 182-83. Shared Responsibility Shared But see ENTER OF THE technical assistance technical , 31 C 141 C supra , note 4, at 135-136. . Imagining Post “Geneva Consensus” Labour Law for Post “Wash- Imagining Post “Geneva Consensus” Labour RAINING supra , T L ’ , ILO, http://www.ilo.org/declaration/follow-up/globalreports/lang—en/in- NT note 2, at 420-42. ,I ODGERS ET AL HOMANN See About the Declaration See About the Declaration supra Technical assistance might also take the form of seminars and advi- might also take the form of seminars Technical assistance 138 In addition to the technical assistance initiative, the follow-up proce- technical assistance initiative, the In addition to the (last visited Feb. 17, 2013). 139. Training Center in Turin, Italy. Seminars are often provided by the International 136. of the United Nations Pro- These activities were undertaken in the framework 138. T 141. 140. 137. Brian Langille, M K with its emphasis on development, this technical assistance is provided assistance this technical on development, with its emphasis the 1970s, countries. During in developing raise labor standards mainly to unem- working to eradicate missions guided comprehensive similar goals staffed scaled-down missions alongside in developing countries, ployment these ac- who claim that There are many employment teams. by regional use of the ILO’s expanded, as they reflect the optimal tivities should be its legal activities. therefore, take priority over resources and should, ments are obligated to submit annual reports detailing steps they have ments are obligated to submit annual fundamental conventions, despite taken to implement any of the eight having yet to ratify them. See About Us sory and direct contact missions. sory and direct contact dure supports the implementation of the 1998 Declaration of Fundamental implementation of the 1998 Declaration dure supports the in a manner that emphasizes the goals Rights at Work. It has been applied through dialogue and tech- of ratification of the fundamental conventions states under the regular ILO nical assistance and of uniting all member these instruments. This inclination is supervisory system with respect to reports, the first component of three mostly evident in the ILO annual system mechanisms comprising the follow-up gramme of Technical Assistance. Under this programme, the ILO has helped to develop gramme of Technical Assistance. Under this a recent historic overview of technical assis- vocational training in developing countries. For tance, see R Summer 2013] through standards of its on the statist programs are strongly grounded The technical assistance development they center mostly on national economic conception in that focus on the many technical assistance missions and progress. In addition, assistance with ILO’s goals, providing, for example, legal aspects of the the ratification of that complies with ILS and drafting national legislation ILS. \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 33 4-OCT-13 9:22 Langille, dex.htm (last visited Feb. 17, 2013). tions, although the 1998 Declaration is in principle not an instrument focused on ratification, us lang—en/index.htm (last visited Feb. 17, 2013). The two remaining interlinked components of the follow-up mechanisms are the global report and the setting of priorities for technical one assistance. The Director-General prepares a report each year on the global situation of of the four sets of principles and rights during the preceding four-year period. The report analyzes the situation of that principle or right in both ratifying and nonratifying countries, are and each of the four core rights at work is covered every four years. The global reports at submitted to the ILO Conference. The Global Report are available on the ILO website Global Reports ington Consensus” Development C Y 34040-mil_34-4 Sheet No. 21 Side A 10/10/2013 11:12:26 A 10/10/2013 21 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 21 Side B 10/10/2013 11:12:26 R R R M K C Y Re- IGHTS 34:675 R available at [Vol. General Obser- despite the A significant 146 145 RINCIPLES AND Current Compilation of P note 1, annex, pt. I, para. supra , , para. 6, GB.289/4(&Corr. 1 & 2), This Review is directed at This Review is directed 144 UNDAMENTAL F Additional comments can be sub- comments can Additional 142 ILO Declaration note 1, pt. II(B) para. 1 (referencing Article 23 of the note 1, pt. II(B) para. 1 (referencing Article http://www.ilo.org/public/english/standards/relm/gb/docs/ ECLARATION ON Review of Annual Reports under the Follow-Up to the ILO supra states: “The aim of the follow-up described below is to en- , , UP - note 4, at 78. An independent panel of experts (the ILO Declara- experts (the ILO panel of An independent , para. 16, GB.307/3(&Corr.), 307th Sess. (Mar. 2010), , para. 16, GB.307/3(&Corr.), 307th Sess. (Mar. available at Michigan Journal of International Law 143 supra OLLOW , F , ILO, http://www.ilo.org/declaration/follow-up/annualreview/countrybase- , http://www.ilo.org/wcmsp5/groups/public/-ed_norm/-declaration/documents/ 147 HOMANN AT See ILO Declaration ORK AND ITS To sum up, this Part has demonstrated how and in what form the stat- To sum up, this Part has demonstrated ,ILO id. W 145. baselines. They continue to be in the “Annual reports are in the form of country 146. The Annex to the ILO D 144. T 143. Int’l Org. of Emp’rs, For an example of a recent observation, see, 147. ILO Governing Body, 142. portion of the state’s annual report is devoted to information for evaluat- annual report is devoted to information portion of the state’s conventions and for the ratification of the fundamental ing the prospects to promote the rights afforded therein, legal instruments should be the occa- that the “the annual review ILO’s explicit statement in order to assess descriptions of legislation sion to go beyond progress.” evaluating the individual performance of each state in furthering conven- performance of each state in evaluating the individual is evaluated to ratify. The states’ respective progress tions they have yet set individually for each member state. against a baseline mitted by international organizations such as the International organizations international mitted by of International Organisation Unions or the of Free Trade Confederation (IOE). Employers tion Experts Advisors) evaluates these reports, and the GB discusses them and the GB discusses these reports, Advisors) evaluates tion Experts in the Intro- of the reports and their comments and provides a summary of Annual Reports. duction to the Review form of annual reports only in the case of new member states.” form of annual reports only in the case of Country Baselines lines/lang—en/index.htm the compilation of county baselines, (last visited Feb. 17, 2013). For see ist model dominates the supervisory system and other key operational ist model dominates the supervisory global economic, political, and legal functions of the ILO. However, recent publication/wcms_098135.pdf (last visited Feb. 17, 2013). publication/wcms_098135.pdf (last visited Feb. view of Annual Reports Under the Follow-Up to the ILO Declaration on Fundamental Princi- view of Annual Reports Under the Follow-Up ples and Rights at Work it does promote ratification by requiring member States to respect, promote and realize the it does promote ratification by requiring member Conventions.” ILO Governing Body, principles and rights contained in the fundamental 708 organiza- employees’ and workers’ to the national its report submits state comments and observations. tions for \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 34 4-OCT-13 9:22 ILO Constitution, which obligates the member states to consult with their employers’ and ILO Constitution, which obligates the member employees’ organizations). Employers (IOE) Under the 2012 Annual Re- vation by The International Organisation Of view 1. Declaration on Fundamental Principles and Rights at Work: Introduction by the ILO Declara- tion Expert-Advisers to the Compilation of Annual Reports 289th Sess. (Mar. 2004), gb289/pdf/gb-4.pdf. http://www.ilo.org/wcmsp5/groups/public/-ed_norm/-relconf/documents/meetingdocument/ wcms_123833.pdf. courage the efforts made by the Members of the Organization to promote the fundamental principles and rights enshrined in the Constitution of the ILO and the Declaration of Phila- delphia and reaffirmed in this Declaration.” 34040-mil_34-4 Sheet No. 21 Side B 10/10/2013 11:12:26 B 10/10/2013 21 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 22 Side A 10/10/2013 11:12:26 R R R , , E- 709 R and respon- AVE H 1, 85 (Toni OELLENDORF OELLENDORF 98 (2007). remedial M As described The two types retrospective 152 ELATIONS USTICE 148 ARREL J R NSTITUTIONS and I ABOR AN L C LOBAL Assigning Responsibility to Insti- in G , prospective NTERNATIONAL I Toni Erskine, ESPONSIBILITY AND GENCY AND ESPONSIBILITY AND see also R A . Miller distinguishes between . Miller distinguishes R Shared Responsibility Shared ORAL 143 (2009). M note 3, at 84-85. ATIONAL HARED ,N The starting point of any consideration of remedial The starting point of any consideration note 3, ch. 4; ATTERS supra In the context of labor, when the goal is defined in In the context of labor, when the 150 , M In discussing global justice and labor, remedial responsi- In discussing global justice and labor, ILLER supra 151 III. S OLLECTIVE , 149 M ILLER ?: C M ILLER AVID SPONSIBILITIES responsibility. The latter determines whether an agent produced latter determines whether an agent responsibility. The See NEQUALITY remedial responsibility I note 148, at 146. Thus, for example, the current legal distribution of benefits and bur- When we use the term “shared responsibility,” we mean that the re- term “shared responsibility,” we mean When we use the David Miller has responsibility corresponds to what Our conception of 152. Remedial responsibility may be allocated to individuals or to collectives. What 151. Our understanding of remedial responsibility is broader than Miller’s. We accept 149. 150. D 148. M LOBAL M K of responsibility are not completely detached. One of the factors taken of responsibility are not completely responsibility is who bears outcome into account in allocating remedial responsibility. responsibility, then, is an unjust state of affairs requiring some kind of responsibility, then, is an unjust state of whose responsibility it is to make correction, which raises the question this correction. rights and standards, considerations terms of ensuring a minimum of basic question of who bears the responsi- of remedial responsibility focus on the rights and standards. bility to ensure workers these basic supra dens between employers and workers should not necessarily be considered a just distribution. the types of collectives are capable of acting as moral agents is a question much debated in Erskine ed., 2003) (making a similar distinction between Erskine ed., 2003) (making a similar distinction of responsibility, see D sibility). For a different classification of types bility is our main concern, since, as Miller explains, “the idea of remedial bility is our main concern, since, as we encounter a situation in responsibility potentially applies whenever need of remedy.” Moellendorf’s criticism of Miller, asserting, “Miller focuses on simple interactional problems in which the assignment of costs for remediating an event should be guided by the assump- us tion that before the tort-like events holdings were just. That assumption cannot guide when the background institutions, which establish holdings, are in question.” M outcome compensate for the damage it caused, an outcome and thus is required to an agent bears an obligation to whereas the former determines whether by the agent itself. remedy harm not necessarily caused tutional Moral Agents: The Case of States and Quasi-States tutional Moral Agents: The Case of States and sponsibility to remedy the unjust conditions suffered by workers anywhere the unjust conditions suffered by sponsibility to remedy state or one not necessarily rest with only one particular in the world does various actors and but rather, could be shared by particular actor, institutions. termed Summer 2013] to By contrast of responsibility. a new conception mandate developments currently that, by and large, of responsibility conception the state-centered of shared that a conception law, we argue international labor governs challenges the contemporary to contend with is better suited responsibly conception an alternative we present such ILO. In the next Part, faced by of responsibility. \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 35 4-OCT-13 9:22 G C Y 34040-mil_34-4 Sheet No. 22 Side A 10/10/2013 11:12:26 A 10/10/2013 22 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 22 Side B 10/10/2013 11:12:26 R R R M K C Y , 23 , ch. 34:675 [Vol. LURALISM P EGAL L This conception of Global Justice, Labor Stan- 154 LOBAL G 117 (2011). L. , Margot Salomon develops a Collective Responsibility in Tort Law note 148, at 69-74. Such entities may in- supra NQUIRIES I ENSITIVITY AND S Erskine, See HEORETICAL COLOGICAL , E , 12 T note 9, at 64; Ariel Porat, Michigan Journal of International Law and a Global Civil Society Approach EREZ Global Responsibility for Human Rights: World Poverty Global Responsibility for Human Rights: A growing number of political philosophers and legal A growing number , supra note 9, at 64-65. P supra 311, 322-25 (2004) (regarding the doctrines of “market share liability” ] , Shared Responsibility: An International Approach Shared Responsibility: An International 153 REN Our conception of shared responsibility rests on the assump- responsibility rests of shared Our conception . AW S O A. ALOMON [L In contrast to the existing outdated conceptions of international In contrast to the existing outdated See ALOMON S 155 In her book The idea of shared responsibility is increasingly arising in both legal arising in both is increasingly of shared responsibility The idea ISHPATIM 153. 155. S 154. Yossi Dahan, Hanna Lerner & Faina Milman-Sivan, and the Development of International Law and the Development of International among states toward the world’s novel conception of shared responsibility existing international conven- poor in developing countries. Analyzing the Right to Development, Salomon tions, particularly the Declaration on implementing the right to devel- argues that sustainable progress toward adopt effective policies, but also ele- opment requires not only that states and shared responsibility among vated levels of international cooperation states. shared responsibility offers, in our view, not only a theoretical basis, but shared responsibility offers, in our the idea in the ILO. also the practical foundation for implementing 6 (2004) (regarding the doctrine of “direct liability” introduced by the UK Supreme Court); see also scholars are attempting to develop new conceptions of shared responsibil- to develop new conceptions of scholars are attempting from economic, of background injustice stemming ity to address problems we discuss two such global changes. In what follows, political, and legal by Margot Salomon responsibility, one proposed conceptions of shared their limitations in terms of ap- and the other by Iris Young, and analyze faced by the ILO. We then propose a plicability to the current challenges that elaborates on the “labor connec- new model of shared responsibility article. tion model” we developed in a previous tion that in the contemporary global economy this remedial responsibility global economy in the contemporary tion that actor. one particular shared by more than could be the need to address contexts. From a legal perspective, and philosophical the scope of economic and social realities by extending the new complex court decisions at been recognized recently in several responsibility has decisions have transnational levels of litigation. These both national and understanding of doctrines that rest on a legal introduced innovative law, and in the areas of tort law, environmental shared responsibility human rights. M philosophical literature. For the purpose of this discussion, we consider entities that may bear philosophical literature. For the purpose of this to deliberate morally and to decide col- collective responsibility those that have the capacity lectively on a purposive action. clude identity groups such as nations or organized religious groups, as well as institutions such as corporations, political parties, and international institutions. 710 such a need of desperate are in today in the world workers many above, for of who is responsible a reassessment hardship demands remedy. Their this remedy \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 36 4-OCT-13 9:22 dards, and Responsibility and “enterprise liability” in US tort litigation) (Isr.). 34040-mil_34-4 Sheet No. 22 Side B 10/10/2013 11:12:26 B 10/10/2013 22 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 23 Side A 10/10/2013 11:12:26 711 interac- 160 Moreover, in circumstances where Moreover, in circumstances at 192. Id. 158 if basic rights have already been violated in a global Shared Responsibility Shared One of the main justifications for such a duty One of the main justifications for such While Salomon recognizes the primary responsi- recognizes While Salomon 159 156 Salomon writes: “However, at 192. at 184. at 98-101. This suggests a need for a reform of the global economic system for a reform of the global economic This suggests a need Id. Id. Id. Id. Id. 157 , and, for example, people are starving, then the obligation imposed is also positive— While Salomon has taken an important step forward in demonstrating While Salomon has taken an important theory of shared responsibility By contrast to Salomon and her legal 160. 158. 159. 157. 156. M K that is, every state, to a greater or lesser degree, is under obligation to take action to remedy basic human rights have been violated in the global context, states that are have been violated in the global context, basic human rights especially have a shared responsibil- the beneficiaries of the global order action to remedy the violation and ity, namely, a positive duty, to take prevent its continuation. is that states that benefit from the existing global order have greater ca- is that states that benefit from the of affairs. pacity to rectify the wrongful state bility of developing states for promoting human and social rights within states for promoting human and bility of developing social, health, and and remedying the deteriorated their own territories what is essen- she argues that this “does not weaken economic conditions, to remedy the duty of the international community tially a complementary social and cultural essential levels of economic, violation of minimum rights.” as a whole. She calls for the implementation of the due diligence standard, for the implementation of the due as a whole. She calls on the part of the of negative effects proves fault where the existence differently or fore- that states should have acted states and demonstrates of their activities. seen the outcome that violation and prevent its continuation.” context the need to enhance global cooperation among states to achieve develop- the need to enhance global cooperation the legalities of international relations ment goals, her analysis centers on account actual global economic and among states and neglects to take into labor market. These would include social processes that affect the global production chains and that of the increasing role played by transnational power, often greater than that private actors wielding enormous economic responsibility shared by states alone, of many countries. By focusing on the particular problem of worker Salomon’s conception does not address and thereby fails to assign responsi- exploitation on the interactional level a profound capacity to remedy unjust bility to many effective actors with working conditions—foremployers and other private actors who example, production chains. are participants in the transnational Iris Young has proposed a political that addresses interstate relations, contends with injustice on the model of shared responsibility that Summer 2013] bear states territorial that the assumption rest on law, which rights human effective claims that the human rights, Salomon responsibility for principal certain responsibilities social rights imposes of economic and realization act col- entails that states own state and other than the victims’ on states their shared responsibilities steps to discharge and take proactive lectively economy. in the global \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 37 4-OCT-13 9:22 C Y 34040-mil_34-4 Sheet No. 23 Side A 10/10/2013 11:12:26 A 10/10/2013 23 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 23 Side B 10/10/2013 11:12:26 R R R R R M K C Y : A 34:675 IRTUE ELATIONS V [Vol. R She explicitly She note 3, at 105. In 161 supra USTICE AND , J NTERNATIONAL I note 3, at 112. note 3, at 112, 113, 116. note 8, at 123-51. OWARDS note 3, at 119. Social connections supra supra , , , T supra ch. 4 (1996), Young argues that politi- , 166 supra , actual or potential, to influence HEORY AND , EILL T USTICE O’N J power EASONING R NORA OLITICAL (1) ,P “Our responsibility derives from belonging “Our responsibility 167 Responsibility and Global Justice 162 The responsibility to remedy the structurally The responsibility to remedy the EITZ RACTICAL 164 P R. B ESPONSIBILITY FOR Michigan Journal of International Law Responsibility and Global Justice Responsibility and Global Justice , R In Young’s words, “the point is not to blame, punish, or In Young’s words, “the point is not HARLES 165 Responsibility and Global Justice CCOUNT OF OUNG A Y Young, at 125-30. at 122. at 123-25. ; Young, at 105. 163 Id. Id. Id. See Id. See Id. level and includes private actors and civil society. and civil actors private and includes level According to Young, this responsibility is not shared equally. She sug- According to Young, this responsibility Young’s model of shared responsibility is political, rather than legal. It shared responsibility is political, rather Young’s model of 167. 166. 162. 165. 163. Young, 164. 161. ONSTRUCTIVE formulated her model to address existing exploitative working conditions working existing exploitative her model to address formulated indus- in the apparel particularly in sweatshops labor market, in the global responsibil- model of “the social connection model, termed try. Young’s in what those who take part that all on the presupposition ity,” is based to remedy responsibility share a moral “the social structure” she calls workers’ unjust conditions. together with others in a system of interdependent processes of coopera- in a system of interdependent processes together with others in the aim to realize through which we seek benefits tion and competition projects.” unjust working conditions in sweatshops is shared by all these agents. This unjust working conditions in sweatshops through collective action, defined in responsibility can be discharged only political terms. seek redress from those who did [wrong], but rather to enjoin those who seek redress from those who did [wrong], of collective action to change” participate by their actions in the process the injustice produced through structures. are viewed by Young as prior to political institutions both ontologically and morally. Simi- are viewed by Young as prior to political institutions as well as more modern theorists like larly to Locke and other social contract philosophers, Charles Beitz, see C this sense, the nationalist global position “makes prior what is posterior from a moral point of view.” cal institutions arise because people need them to regulate their social connections. Accord- ing to Young, “the moral status of political institutions arises from the obligations of justice generated by social connection: such institutions are instruments through which these obliga- tions can be discharged.” Young, gests four parameters for allocating responsibility based on the actor’s po- gests four parameters for allocating sition in the social structure: does not seek to identify the particular agents that violated workers’ labor the particular agents that violated does not seek to identify that harm case. Instead, it rests on the understanding rights in a specific the actions of mil- injustice is a consequence of resulting from structural to the process contribute, through their participation, lions of agents who These agents in- outcomes in the apparel industry. that produces unjust potential workers, as Young, unskilled, immigrant, and clude, according to exporting firms, executives in mul- well as entrepreneurs, investors in large city governments, consumers, uni- tinational corporations, factory owners, industry such as designers and versities, and members of the fashion fashion journal editors. C 78-79 (1979), and Onora O’Neill, see O 712 tional \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 38 4-OCT-13 9:22 34040-mil_34-4 Sheet No. 23 Side B 10/10/2013 11:12:26 B 10/10/2013 23 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 24 Side A 10/10/2013 11:12:26 R R R 713 labor EGOVERN- , R , that is, the STLUND 97-103 (2010). E 173 note 3, at 123. YNTHIA C EGULATION collective ability collective supra -R See , O C Political collective action can be collective action can Political 172 , that is, the level of benefit from of benefit is, the level , that note 154, at 451-56. 168 supra in the transformation of the structural of the in the transformation privilege EGULATION TO -R interest Shared Responsibility Shared ELF note 154, at 449-51. S 169 supra ROM Responsibility and Global Justice : F Young, , which is defined either in legal terms of employer-employee , which is defined either in legal terms at 107-11. ORKPLACE ING THE whereas the conception of shared responsibility required for the whereas the conception of shared See Id. Id. However, we argue that greater responsibility to remedy the un- However, we argue that greater responsibility W 170 171 Moreover, according to Young, all actors that partake in the social Moreover, according to Young, all In the next Section, we lay out our conception of shared responsibility, In the next Section, we lay out our conception Young’s political conception of shared moral responsibility toward conception of shared moral responsibility Young’s political 173. Dahan, Lerner & Milman-Sivan, 172. This is especially true in the case of what has recently been termed “super employ- 170. 171. 168. 169. For a more detailed and thorough criticism of Iris Young’s approach, see Dahan, M K achieved by pressuring state institutions to change this reality, but the goal state institutions to change this achieved by pressuring the case of the antis- through global interaction like in can also be attained weatshop movement. just conditions of workers is borne by actors who partake in the just conditions of workers is borne relative ability to remedy the situation by joining others in taking collec- others in taking situation by joining to remedy the relative ability structures. to change unjust tive action striving to expand the scope ILO should be more legalistically conceived, a specific violation of labor standards of actors that bear responsibility for as they are defined under ILO conventions. for workers’ rights. These include ac- connection bear some responsibility that do not play a role in the chain of tors, whether agents or institutions, municipalities, and fashion design- production (for example, consumers, ers). connection is, actors who contribute to the pro- relations or in substantial terms, that a product to the marketplace (in- duction chain and participate in bringing cluding manufacturers and distributors). which better fits the realities of international labor and could apply to ex- which better fits the realities of international such as the ILO. This conception isting international labor institutions responsibility for international labor, draws from our model of shared model.” which we have termed the “labor connection sweatshop workers could justify some practical solutions to the problem of could justify some practical solutions sweatshop workers in the realm of labor standards, particularly compliance with international is broad enough to her social connection model civil society. Moreover, unjust background spheres that are characterized by encompass additional environment, for current global economy, such as the conditions in the is not compati- the political nature of Young’s theory example. However, of shared responsi- goal, namely, to develop a theory ble with our present and procedures of the ILO. Young’s bility that can guide the practices by millions of agents around the model calls for collective political action world the structural injustice; (3) injustice; (3) the structural minimal to coincide with unfortunately tends which, as she notes, injustice, and (4) effect such a transformation; power to ers,” such as Wal-Mart, which is a prominent example. Lerner & Milman-Sivan, Summer 2013] (2) at hand; process the unjust \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 39 4-OCT-13 9:22 C Y 34040-mil_34-4 Sheet No. 24 Side A 10/10/2013 11:12:26 A 10/10/2013 24 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 24 Side B 10/10/2013 11:12:26 R R M K C Y . & . L. OC MP 34:675 USTICE J Under , 9 S . & E [Vol. 176 NSTITUTIONS AB I AN C . J. L 177 A ROBLEMS OF in : P , , 8 U. P LLEGIANCES A 48-65 (2001). OUNDARIES AND HOUGHT , B T note 148, at 218, 227-31. Contracting Worlds and Essential Contract Theory of Shared Responsibility of Shared Employment as a Relational Contract On both levels, assigning responsibility for workers’ On both levels, assigning supra IBERAL , 1. Principle The Connectedness note 3, at 62. CHEFFLER ? L Michigan Journal of International Law 174 S The Labor Connection Model and Principles Model and Labor Connection The 175 supra , AMUEL B. 431, 432-33 (2000). S . ILLER AND Global Justice: Aims, Arrangements, and Responsibilities See TUD ESPONSIBILITIES S ESPONSIBILITY IN R The principle of connectedness has special significance in the sphere The principle of connectedness has Under the proposed labor connection model, responsibility for reme- responsibility for connection model, proposed labor Under the R 175. 177. Robert. C. Bird, 174. M 176. AVE EGAL Christian Barry’s definition, the principle of connectedness can be con- Christian Barry’s definition, the principle terms of shared identity, for example, strued in two different ways: first, in or tribe; and second, in terms of par- membership in a community, nation, working in a factory. When this ticipating in a joint activity, for example, the joint activity meaning be- principle is applied in the labor context, how responsibility toward workers is comes a key factor in determining by an intricate web of mu- distributed. Labor relations are characterized workers enjoy special protection tual responsibilities and rights, in which expressed in the legal sphere by treat- and status. This unique character is as distinguished from transac- ing labor contracts as relational contracts, is of short duration, describes a tional contracts. A transactional contract usually a onetime-only exchange precise transaction of money and goods, cash, and includes no element of altru- of an easily commoditized good for Parties to relational contracts, in ism and little or no future cooperation. that are based on trust and soli- contrast, develop long-term relationships darity and far exceed the terms of the original document. welfare is an intricate and complex task. The responsibility for working and complex task. The responsibility welfare is an intricate of employee- on conventional legal definitions conditions is not contingent guide the alloca- but instead on a set of principles that employer relations production chain as among all the participants in the tion of responsibility market. In this that impact the global labor well as political institutions from the work of four such principles drawn heavily Section, we outline Christian Barry. of labor. Connectedness—thatthe existence of a special relationship is, between people—creates obligations. In contrast to obliga- unique moral obligations that arise from connected- tions toward anonymous others, the carry extra moral weight. ness, also termed “associative duties,” dying the unjust conditions of workers in the global era does not rest with global era does not of workers in the unjust conditions dying the amongst albeit unequally, rather, is shared, or institution, but, one agent on the These include actors labor market. actors in the global the various companies, and con- (for example, employers, private interactional level states and interna- institutional level (for example, sumers) and on the tional institutions). L H 714 \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 40 4-OCT-13 9:22 149, 151 (2005); Ian R. Macneil, 34040-mil_34-4 Sheet No. 24 Side B 10/10/2013 11:12:26 B 10/10/2013 24 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 25 Side A 10/10/2013 11:12:26 R R 715 note 8, at 374–83 (dis- Guiding Principles on Busi- supra , Responsibility and Global Jus- 179 According to Ruggie, the core on which we will elaborate below. Thus, a home country where the 182 180 181 . In the labor connection, the actors that we . In the labor connection, Shared Responsibility Shared Responsibility and Global Labor Justice ]. labor connection Young, para. 13, cmt. para. 2. , para. 19, U.N. Doc. A/HRC/17/31 (Mar. 21, 2011) (by John Ruggie) [hereinafter See Id. Id. note 3, at 107, 127. While we agree with Young that such actors should bear some de- Young that such actors should While we agree with Under the principle of connectedness, within the production chain di- Under the principle of connectedness, expressed in the Guiding Princi- The principle of connectedness is also The expansion of the chain of production beyond state borders and state beyond production chain of of the expansion The 178 supra , 178. 182. 179. Determining the level of connectedness requires an elaborated theory, which will 180. Special Representative of the Secretary-General on the Issue of Human Rights 181. M K According to the Guiding Principles and Ruggie’s commentary to the According to the Guiding Principles the expectation that all business Principles, “States should set out clearly and/or jurisdiction respect human enterprises domiciled in their territory rights throughout their operations.” refrain from “causing or contributing companies are expected not only to headquarters of the involved company resides has the responsibility to ad- headquarters of the involved company activities in terms of treatment of dress the company’s international responsibility to respect human rights, human rights. Regarding corporate human rights impacts [of corpo- Ruggie’s commentary refers to “adverse activities or as a result of their busi- ration] . . . either through their own ness relationships with other parties.” gree of responsibility for remedying the unjust labor conditions, their for remedying the unjust labor gree of responsibility we define as tak- a lesser degree relative to actors that responsibility is of ing part in the because ‘labor connection’ have greater responsibility define as part of the among them. of the greater connectedness rect employers bear greater responsibility toward workers than the brands. rect employers bear greater responsibility government in whose jurisdiction the Similarly, in the ILO context, the under the principle of con- violation occurred bears greater responsibility whose jurisdiction the brand resides. nectedness than the government in ples on Business and Human Rights, the emergence of new modes of production have led to a new reality, have led to a of production of new modes the emergence can relations definition of employer-employee traditional legal where the of connect- the degree criterion for determining serve as the sole no longer be regarded actors should question of which parties. The edness between connec- termed “the labor that we have in the joint activity as partaking today. For example, central dilemmas of global labor tion” is one of the investors could be manufacturers, subcontractors, and one may argue that as Young, argue in the labor connection. Some, such considered actors should include such the “joint activity” of sweatshops that participants in local municipali- as consumers, fashion designers, and additional actors ties. Summer 2013] \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 41 4-OCT-13 9:22 cussing political responsibility as opposed to liability); Young, cussing political responsibility as opposed to tice include criteria for measuring proximities and interconnections between actors both inside and outside the labor chain. and Transnational Corporations and Other Business Enterprises, ness and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework Guiding Principles C Y 34040-mil_34-4 Sheet No. 25 Side A 10/10/2013 11:12:26 A 10/10/2013 25 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 25 Side B 10/10/2013 11:12:26 M K C Y UMAN 34:675 H [Vol. Clarifying the USINESS AND , paras. 7-8, 14-15, U.N. B Actors on the interactional 185 Thus, core companies are re- companies are Thus, core RINCIPLES ON 183 P 169, 178 (Radu Mares ed., 2012). UIDING Promotion and Protection of All Human Rights, UN G HE T MPLEMENTATION 2. The Capacity Principle I in , Responsibility to Respect: Why the Core Company Should Act When Michigan Journal of International Law para. 13(a)-(b). OUNDATIONS AND Id. ]. 184 : F Capacity can also be measured by the extent of political and economic Capacity can also be measured by the There are various factors that determine the capacity of agents to rec- factors that determine the capacity There are various 185. This use of the term “influence” is different from John Ruggie’s use. Special Rep- 184. For a detailed and illuminating analysis of the Guiding Principles approach to this 183. IGHTS sponsible for what happens in their affiliate operations, not only when operations, not in their affiliate for what happens sponsible parties, but also to the harm suffered by third their decisions contributed and were merely as- did not make any such decision when the companies that violated human affiliate companies or contractors sociated with the rights. level could generally have a lesser scope of influence than powerful actors level could generally have a lesser scope owner who has the capacity to on the institutional level. A local factory of several workers at one textile remedy the unjust working conditions of influence than an international factory in Indonesia has a smaller scope link trade benefits to working condi- entity such as the WTO, which could thus has the capacity to ameliorate the tions in the particular industry and industry. Accordingly, as discussed in conditions of many workers in that states to be the primary agents bear- Part II, the ILO regards its member work conditions of each of their ing remedial responsibility for the citizens. on both the institutional and interac- power an actor wields to operate influence the rules of global trade or tional levels. Actors may be able to so as to remedy unjust working impact the structure of global institutions this are the power each of the conditions around the world. Exemplifying the structure and rules of the global G8 (now G20) states has to determine states to determine the rules and economy and the ability of certain select Fund, WTO, or World Bank policies by which the International Monetary impose unilateral sanctions linked to operate. Strong economies could also tify the unjust conditions of workers. One factor is scope of influence, that of workers. One factor is scope tify the unjust conditions be improved by workers whose labor conditions could is, the number of given agent or institution. the actions of the resentative of the Secretary-General on the Issue of Human Rights and Transnational Corpo- rations and Other Business Enterprises, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development: Clarifying the Concepts of “Sphere of Influence” and “Complicity” Doc. A/HRC/8/16 (May 15, 2008) (by John Ruggie) [hereinafter Ruggie, Concepts issue, see Radu Mares, Affiliates Infringe Rights R 716 [to] ad- and activities, their own through impacts rights human to adverse prevent or to “[s]eek to occur,” but also impacts when they dress such to their op- directly linked impacts that are human rights mitigate adverse even if they relationships, by their business products or services erations, impacts.” contributed to those have not \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 42 4-OCT-13 9:22 34040-mil_34-4 Sheet No. 25 Side B 10/10/2013 11:12:26 B 10/10/2013 25 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 26 Side A 10/10/2013 11:12:26 R 717 Child Labor: 195, 218, 225-37 Child Labor: A Normative TANDARDS S ABOR L note 5, at 89-105. States, as opposed to TNCs, are gen- States, as opposed 297, 303-06 (2003). 188 . supra Yet in certain circumstances, the nonem- Yet in certain circumstances, , EV 189 187 NTERNATIONAL . R I Shared Responsibility Shared EPPLE in CON , E ANK In this context, it could be concluded that under the that under be concluded it could context, In this B 186 ORLD at 303. , Drusilla K. Brown, Allan V. Deardorff & Robert M. Stern, , 17 W See id. See, e.g. Further, the capacity of agents or institutions depends on the defini- depends on the or institutions the capacity of agents Further, Lastly, the relative degree of capacity would be taken into account in Lastly, the relative degree of capacity 187. Another option is part-time employment of children, which affords them some 186. For an overview, see H 189. The question of which policies are effective for combating child labor is hotly de- 188. M K erally considered the main agents able to undertake the responsibility of erally considered the main agents able Under certain conditions, states rectifying conditions in these contexts. social and economic poli- may have the capacity to adopt comprehensive schooling system and other so- cies, such as establishing a comprehensive access to credit, etc.), which cial services (child allowances, pensions, and thereby free them from the would give children access to education need to work for subsistence. ployment of children in factories might worsen their situation, such as in factories might worsen their ployment of children sector, where condi- is to work in the informal where their only alternative worse. tions might be substantially principle of capacity, the world’s powerful states bear greater responsibil- bear greater powerful states of capacity, the world’s principle should conditions. TNCs remedy unjust work weaker states to ity than the to bear in they can bring of the leverage examined in terms be similarly these forums. And, moreo- standards and norms to be implemented. tion of the desired to the nature of implement a standard varies according ver, the capacity to labor conditions. responsible for remedying the unjust the agent that is to eliminate child the capacity of TNCs and states Compare, for example, safety regulations have the ability to enforce health and labor. TNCs could regard to child labor production chains; and with throughout their global refrain from employ- and most salient ability is to standards, their primary factories. ing children in their (Kaushik Basu et al. eds., 2003)(discussing limits on child labor, improvements in educational infrastructure, financial incentives, etc.). income but also frees them to attend school part-time. Debra Satz, Perspective determining each actor’s responsibility, and in some cases, one actor’s ca- determining each actor’s responsibility, of other actors. In certain in- pacity will be determined by the capacity should not be applied in the sense stances, however, the capacity principle individual actor, but, rather, to take of a measure of the capacity of each more than one actor. Indeed, there into account the joint capacities of responsibility based on the combined could be cases in which assigning has less capacity than an individual action of two actors, each of whom than assigning responsibility to the third actor, could be more effective capacity. actor with the highest level of individual Summer 2013] standards. labor \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 43 4-OCT-13 9:22 Theory, Evidence, and Policy bated. C Y 34040-mil_34-4 Sheet No. 26 Side A 10/10/2013 11:12:26 A 10/10/2013 26 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 26 Side B 10/10/2013 11:12:26 M K C Y 210, 34:675 Cor- 190 [Vol. In the labor 192 ETAPHILOSOPHY , 36 M 58-59 (2003). TANDARDS S In this sense, if responsibility is dis- In this sense, if responsibility 191 LOBAL G ETTING , S Applying the Contribution Principle 3. Principle The Beneficiary 4. Contribution Principle The ETHI Michigan Journal of International Law S RAKASH Id. Benefit can be understood not only in economic terms but also in po- Benefit can be understood not only application of the principle of con- Christian Barry provides a possible In the context of global labor, benefit primarily refers to economic benefit primarily of global labor, In the context 191. 192. Christian Barry, 190. S. P porations such as Nike and Reebok earn a gross profit margin of nearly Nike and Reebok earn a gross profit porations such as is thirteen U.S. cost of making a pair of Reebok shoes forty percent. The shoes typically sell one dollar paid for labor, while the dollars, with only dollars a pair. for sixty to seventy context, this translates into agents’ responsibility for remedying unjust la- context, this translates into agents’ responsibility for remedying unjust bor conditions that they are contributing, or have contributed, to bringing about. Barry proposes a detailed and complex methodology for measuring the degree of the contribution of agents or institutions to unjust situations. tributed solely according to the principle of benefit, the TNC has a greater to the principle of benefit, the tributed solely according than to the subcon- the unjust labor conditions responsibility to remedy Whereas TNCs benefit can be direct and indirect. tractors. Yet economic the govern- cheap labor under unjust conditions, benefit directly from by the TNCs whose states, as recipients of taxes paid ments of developed can be considered indirect management is located in their territories, beneficiaries. of association as an example, litical terms. Taking the right of freedom from an un-unionized labor mar- nondemocratic regimes stand to benefit to their political dominance and ket, since unions may present a threat treat unions as obstacles to authority. Similarly, neoliberal governments market and regard their actions the economic efficiency of the laissez-fair and contractual freedoms. In the con- as interfering with property rights would suggest focusing on eco- text of the ILO, pragmatic considerations those actors who benefit nomic gain, however, and identifying unjust conditions. Economic benefit economically from production under of the benefit extracted by can serve as a relatively exact measurement a particular private or public actor each actor. In other words, the more greater its responsibility toward the benefits from the violation, the workers. definition, mandates that “agents [be] tribution. This principle, under his when they have contributed, responsible for addressing acute deprivations or are contributing, to bringing [those situations] about.” gain. For example, in the international chain of production, TNCs, more so of production, TNCs, chain example, in the international gain. For states, in developing of local factories or managers than subcontractors conditions. under unjust that is carried out production benefit from of different on the earnings illuminating data has gathered Prakash Sethi countries. to workers’ pay in developing corporations as compared 211 (2005). 718 \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 44 4-OCT-13 9:22 34040-mil_34-4 Sheet No. 26 Side B 10/10/2013 11:12:26 B 10/10/2013 26 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 27 Side A 10/10/2013 11:12:26 R to 719 relevant initiated, facili- initiated, ILO In the following Part, 195 RAMEWORK OF THE note 150, at 81-109. F supra , ILLER Shared Responsibility Shared 194 193 note 192; M it.” PPLICATION IN THE supra IV. A Id. The shared responsibility model presented in the previous Part should The shared responsibility model presented Realizing this goal would require significant reforms in the ILO’s op- This Part presented the four principles for allocating shared responsi- This Part presented the four principles A complete application of the principle of contribution to unjust work of the principle of contribution A complete application as a guide- of shared responsibility could serve These four principles 195. The allocation of shared responsibility depends not only on the circumstances 193. 194. Barry, M K we will outline the way in which these principles can guide reforms within we will outline the way in which these the replacement of the tradi- the ILO’s supervisory system and facilitate underpinning the ILO with a new tional statist conception of responsibility conception of shared responsibility. under which labor standards are violated and on the relationship betwee the various actors involved, but also on the nature of the labor standards and policy goals sought. be understood as a regulatory ideal in that it is clearly impractical to ex- be understood as a regulatory ideal in the near future. At the same pect that it could be fully implemented toward which the ILO should time, it could also represent an objective the discrepancy between the actors aspire. The goal would be to narrow for providing workers core labor that should be held morally responsible legal responsibility by the ILO. rights and the actual assignment of eration, the specifics of which should be worked out internally. In this but Part, we will offer several preliminary suggestions for such reforms, they will not amount to a complete blueprint for all the necessary changes. bility as abstract principles; it must be noted that their concrete application bility as abstract principles; it must be are applied. depends on the context in which they conditions would require a detailed empirical investigation of activities require a detailed empirical investigation conditions would market and their actors within the global labor and interactions between for example, where of unjust situations. Thus, influence on the creation determine whether are involved, the ILO could networks of production to violate the the other members of the network brands have pressured or indirectly. law, either directly responsibility among actors—publicline for allocating or private—for the globe. One labor conditions of workers across remedying the unjust is how much relative weight to give to question that has yet to be answered divided on whether greater signifi- each of these principles. Scholars are principles, such as the contribution cance should be given to one of the principle, for example. Summer 2013] we of workers conditions unjust to by contributing analysis, his Following was causally an agent or institution the conduct of mean that in a set of necessary condition words, it was a situation. In other the unjust “A’s for its occurrence. that was sufficient conditions actual antecedent put that had antecedently a causal sequence not merely allow conduct did but rather to play out, threat of acute deprivation B under tated or sustained \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 45 4-OCT-13 9:22 C Y 34040-mil_34-4 Sheet No. 27 Side A 10/10/2013 11:12:26 A 10/10/2013 27 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 27 Side B 10/10/2013 11:12:26 M K C Y 34:675 [Vol. The ILO: An Agency By relying on the institutions and on the institutions By relying 196 355, 380 (2008). (Econ. Pol’y Institute, Washington, D.C.), Oct. 9, 2009, HANGE . 246 Sustaining Workers’ Bargaining Power in an Age of Global- O N . & C International Labor Standards EV APER Michigan Journal of International Law P Expanding the Scope of Actors Responsible for Expanding the Scope of Actors Responsible , 39 D http://www.epi.org/publication/bp246/; Guy Standing, RIEFING Mark Barenberg, A. See , EPI B available at What might the supervisory system look like under the ideal of shared system look like under the What might the supervisory The ILO identifies two types of violations of labor standards. One The ILO identifies two types of violations actors, the four principles of In addition to identifying the responsible 196. procedures already implanted in the ILO, we hope to offer the necessary implanted in the ILO, we hope to procedures already a move. inspiration for such The first stage is to proposal proceeds in two stages. responsibility? Our responsible for rem- actors that should be considered identify the potential principles of shared conditions according to the four edying unjust labor this process defined in Part III. As we demonstrate, responsibility just among key ac- of responsibility for workers’ rights leads to the allocation systems: (1) states by the existing supervisory tors that are overlooked are violated and (2) in whose territory the labor rights other than the state In the second participate in global production chains. powerful TNCs that procedures within the supervisory stage, we elaborate on the particular trans-border enforcement of labor system that should be reformed for the regular reporting procedure and standards, both in the framework of in the special complaints procedure. type is legislative in nature, which we accordingly term “legal violations,” type is legislative in nature, which we scheme in a given country. In such namely, an inadequacy in the legal responsibility for the violation and cases, the territorial state clearly bears a second type of violation, which we its amendment. There is, however, rights are violated in practice. term “practice violations,” where workers’ state may bear responsibility In such cases, actors other than the territorial state always bears some degree of for the violation. While the territorial its borders, the ILO should not auto- responsibility for violations within or private employers are without re- matically assume that other states cases, the ILO should identify sponsibility. Indeed, in practice violation actors according to procedures that and assign legal responsibility to key reformed supervisory system. we propose, shortly, as part of the be responsibility can assist in determining how the responsibility should the allocated among them. The principle of capacity would be applied by of ILO in a way that resembles the operation of the traditional notion responsibility; however, the application of the other three principles (ben- In efit, connectedness, and contribution) would challenge this conception. ization 720 already the ILO is that below, explicated as assumption, underlying Our especially responsibility ideal, to the shared values that are close embodies need to Thus, there is little organizations. other international relative to conscious design. A to its current institutional radical changes introduce will that is entails political responsibility an ideal of shared move toward the ILO. not discernible in currently \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 46 4-OCT-13 9:22 at 19, for Globalization? 34040-mil_34-4 Sheet No. 27 Side B 10/10/2013 11:12:26 B 10/10/2013 27 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 28 Side A 10/10/2013 11:12:26 R R R 201 721 (e) the state note 154, at 118 This could be 197 198 200 supra note 185, at 5. Thus, the ILO could set a guideline Thus, the ILO could supra 199 , Shared Responsibility Shared note 196. Clarifying the Concepts See supra The shared responsibility model implies assigning responsibility to The shared responsibility model implies Pragmatic considerations seem to imply that the ILO should focus on seem to imply that the ILO Pragmatic considerations 197. of employer-employee relations or in These may be identified either in legal terms 198. are included in the “thick labor connec- “Indeed, the line that separates those who 199.200. Ruggie, While this should be a general guideline, under specific circumstances, other actors 201. M K in whose territory the highest level of management (brand) resides; and (f) the highest level of management (brand) in whose territory rights were violated, when organized. the workers whose the brands that underlining assumption that it is usually rationalized by an principles of responsibility. It is also will be held responsible under all four shared responsibility model does not important to note however, that the state, which would remain the “reduce” the responsibility of the territorial within its territory. Others could, in key actor responsible for any violation responsibility. appropriate cases, merely share this for labor standards under the groups of actors that bear no responsibility system: first, to state actors other than current, statist-oriented supervisory occur outside of their jurisdiction and, the territorial state for actions that TNCs). This expansion of the scope second, to private actors (for example, for labor standards raises a set of of actors that could bear responsibility there is the threshold question of practical problems. To begin with, will to implement such reforms. This whether there would be the political suffice it to say that it has been issue is beyond the scope of this Article; suffers from political impasse. clearly noted in the past that the ILO whereby for each production chain, it assigns responsibility only to the production chain, it assigns responsibility whereby for each other smaller identifiable players. brand and sets aside several main candidates for sharing responsibility. For example, once a for sharing responsibility. For several main candidates engage with the chain is identified, the ILO should supply or distribution in the chain. most powerful player Moreover, the ILO would likely encounter legal and conceptual difficul- Moreover, the ILO would likely encounter substantial terms, as discussed above—those in the production network. who participate from those who are part of the broader tion” and thus bear special duties and commitments de- ‘social connection’ is not clear-cut. For example, one may debate to what extent fashion signers are part of the apparel industry ‘labor connection’ and therefore have greater respon- sibility toward workers’ conditions.” Dahan, Lerner & Milman-Sivan, the n.60. Our theoretical framework could, of course, be further refined and negotiated. In ILO context, however, pragmatic considerations would have to be weighed as well in drawing the line between actors who are deemed responsible and those who are not. on may be identified as bearers of responsibility for international labor standards, depending the specific context in which the violation occurred. Summer 2013] factory a manufacturing in rights violation a labor case of the paradigmatic where the network, is part of a production country that in a developing ac- country, the following in a developed are located TNC headquarters the unjust for remedying deemed responsible in principle, be tors could, the state in model: (a) shared responsibility under the labor conditions that vio- the direct employer occurred; (b) the violation whose territory or TNC; (d) addi- his or her employees; (c) the brand lated the rights of partake in the specific labor connection; tional actors who \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 47 4-OCT-13 9:22 C Y 34040-mil_34-4 Sheet No. 28 Side A 10/10/2013 11:12:26 A 10/10/2013 28 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 28 Side B 10/10/2013 11:12:26 M K C Y 204 BLI- Con- 34:675 : O Thus, it [Vol. IGHTS 203 R UMAN H , 1936, art. 24, C050, 20th Sess. (June 72 (2011). NTERPRISES AND AW E L art. 19, June 27, 1939, 40 U.N.T.S. 281 (shelved), . Dev. L.J. 177, 194-201 (2008). . & ULTINATIONAL 205 TS NTERNATIONAL I , M . R UM ATTO Home State Responsibility and Local Communities: The Case of H Michigan Journal of International Law AW AND G In the past, the ILO has explicitly requested that gov- In the past, the ILO ALE 202 EU L , 11 Y 1. Territorial Borders State Responsibility Beyond LEXANDRA GATIONS NDER Recruiting of Indigenous Workers Convention U Recently, international law scholars have made similar proposals to Recently, international law scholars Moreover, assigning responsibility to states for violations occurring Moreover, assigning responsibility The notion of states taking responsibility for labor standard violations taking responsibility for labor standard The notion of states 202. Convention Concerning Indigenous and Tribal Peoples in Independent Countries 203. Examples are the ILO Convention Concerning the Regulation of Written 205. A 204. Sara L. Seck, seems that the notion of holding states responsible for violations outside seems that the notion of holding states out of hand, bearing in mind, of their territory should not be dismissed preclude assigning responsibility course, that the capacity principle would in a meaningful manner. to any state unable to assist workers by TNCs to the state where the assign responsibility for rights violations state” or “state of origin”). TNC’s management resides (its “home ernments extend their jurisdiction beyond their territorial boundaries to ernments extend their jurisdiction nationals acting abroad. ensure compliance by even those beyond their territorial jurisdiction has the advantage of helping offset the beyond their territorial jurisdiction developed states that prevails in the inequality between developing and setting. Notwithstanding the for- ILO. This inequality begins with standard membership, and other proce- mal equality in voting rights, committee with respect to standard setting is dures, decision making in the ILO preliminary stage of replying to pre- unequal in several ways. Even at the tracts of Employment of Indigenous Workers and ILO, art. 32, June 27, 1989, 28 I.L.M. 1382. Some have suggested, for example, that the state of origin be held respon- Some have suggested, for example, cases where the corporation involved sible for human rights violations in performs governmental roles—with or without authorization—or when standard of due diligence toward the home state fails to apply the required the acts of the corporation. that occur outside their jurisdiction is not unprecedented in the ILO legal their jurisdiction is not unprecedented that occur outside obligations to co- has incorporated, for example, states’ scheme. The ILO Peoples Conven- in its 1989 Indigenous and Tribal operate across borders measures, including the obligation to take appropriate tion, which includes social, and agreements, to facilitate economic, by means of international and tribal peoples cooperation between indigenous other contacts and across borders. 722 wary of be States would of responsibility. model this implementing ties in jurisdiction outside their labor rights violations responsibility for accepting as the dis- Nevertheless, to private bodies. responsibility and of attributing problems is these the path to overcoming will illustrate, cussion below interna- in the existing already prevalent notions and practices through regime. tional labor \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 48 4-OCT-13 9:22 20, 1936) (shelved). Global Mining 34040-mil_34-4 Sheet No. 28 Side B 10/10/2013 11:12:26 B 10/10/2013 28 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 29 Side A 10/10/2013 11:12:26 R R . M . I. 723 Fol- A , 125 , Clyde 97 A Moreo- See , 22 U. P 206 The current sys- , at paras. 4-5, 16, Doc. 208 , 70th Sess. (1984), and ILO, Extending responsibility to Extending responsibility 209 Norms on the Responsibilities of Trans- note 206, at 194-97, 194 n.3 (citing the Int’l supra Shared Responsibility Shared Servais, Developing countries lack the capacity for inde- Developing countries See Report of the Director General Flexibility and Rigidity in International Labour Standards Flexibility and Rigidity in International Labour 207 2. Actors’ Responsibility Private note 47 and accompanying text. 193, 194 (1986). . , 61, 74-76 (2001). J.M. Servais, David Weissbrodt and Muria Kruger, In recent years, however, we have been witness to several seri- In recent years, however, we have been EV . L. , 901, 901 (2003). Thus, for example, child labor is most prevalent in Asia, and The Battle in Seattle: Free Trade, Labor Rights, and Societal Values . R See See supra Id. See 210 L. CON AB L ’ E L Imposing responsibility on private entities could prove to be even Imposing responsibility on private L L ’ ’ NT 206. 210. 207. 208. of improving the equality of par- The ILO has considered over the years methods 209. NT NT M K ver, at the norm-generation stage, there is great inequality in the capacity inequality in stage, there is great norm-generation ver, at the re- analyze the information member states to from different of delegates and and timely responses, draft appropriate the questionnaires, ceived in coun- In addition, developing of advisory staff. the assistance benefit from Conference is not size of their delegations to the annual tries find that the committees that to have an impact on the various large enough for them formulate standards. tem of supervisory mechanisms—wherebytem of supervisory assigns responsibility the ILO on whose territory violations occur—intensifiesonly to those states this because so many of developing and developed states inequality between in developing countries. the violations occur states that could assist in remedying these violations—forstates that could assist example, to the brands reside—wouldstates in which the balanced representa- be a more conditions. In this respect, our pro- tion of general responsibility for labor conforms better with the complex posed model of shared responsibility interdependence than the ILO’s reality of global economic and political current statist model of responsibility. have been unheard of in the tradi- more controversial. Indeed, this would in the first decades of the twentieth tional international law that evolved century. pendent, professional research and other means of gathering information research and other means of gathering pendent, professional the standard-setting process. and thereby influencing I J. I Summer 2013] countries in developing administrations the labor questionnaires, paratory responses. to provide detailed sufficient personnel do not have \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 49 4-OCT-13 9:22 I Summers, Lab. Conf., June 6-26, 1984, ticipation of member states in the standard-setting process. For example, it has considered ticipation of member states in the standard-setting to countries that cannot afford to send large proposals aimed at providing financial assistance the preparatory consultation on new instru- delegations to the Conference and at expanding ments at the regional level. developing countries are adamant in their opposition to freedom of association. No. GB.228/4/2 (1984)). The obstacles to egalitarian, inclusive participation are enormously No. GB.228/4/2 (1984)). The obstacles to egalitarian, compounded by the absence of representation for such groups as migrant workers, informal are workers, women, and rural workers. The most vulnerable workers, those whose interests of not spoken for by national workers’ organizations, have no voice in the legislative process ILO standards. national Corporations and Other Business Enterprises with Regard to Human Rights, low-Up of Conference Discussion on International Labour Standards low-Up of Conference Discussion on International C Y 34040-mil_34-4 Sheet No. 29 Side A 10/10/2013 11:12:26 A 10/10/2013 29 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 29 Side B 10/10/2013 11:12:26 R R M K , C Y 211 34:675 outlines In 2011, [Vol. 287 (2005). . 215 213 Working Group EV . L. R TS . R UM . H The Norms were approved The Norms were 212 OLUM 549 (2011). Press Release, U.N. Off. High Comm’nr for , 37 C see THICS note 28. . E US This document, which seeks to guide trans- This document, which supra note 180; , 214 Re-thinking “Spheres of Responsibility”: Business, Human , 99 J. B Because of the governance gap, states are unable Because of the governance gap, states supra , Multinational Corporations, Transnational Law: The United Na- Multinational Corporations, Transnational Law: OMPACT 216 101 (2012). C Michigan Journal of International Law Guiding Principles on Business and Human Rights: Implications for Guiding Principles on Business and Human . L. O . C LOBAL UR Sub-Comm. on the Promotion and Protection of Hum. Rts., Comm. on Hum. Sub-Comm. on the Promotion and Protection Kate Macdonald, , 9 E See See Guiding Principles , UNHCHR, http://www.ohchr.org/EN/Issues/Business/Pages/WGHRandtransnational Economic, Social and Cultural Rights: Norms on the Responsibilities of Transnational Economic, Social and Cultural Rights: Norms 212. 211. U.N. G 215. The Human Rights Council established a five-member Working Group for a pe- 214. 213. UN’s position on transnational corpora- For a detailed historical description of the 216. however, the Human Rights Council endorsed The Guiding Principles on Rights Council endorsed The Guiding however, the Human the former U.N. Sec- Rights drafted by John Ruggie, Business and Human of human rights and Representative on the issue retary General’s Special transnational corporations. rights, corporations’ responsibility the duty of the state to protect human access to remedies. The violation of to respect human rights, and victims’ to the limits of the state to protect human rights by TNCs is attributed termed the “governance gap,” namely, human rights due to what has been to follow, regulate, and con- the declining ability of national governments who have the capacity to move strain the activities of corporate actors the expansive power of mul- from one jurisdiction to another, alongside capabilities of the nation-state tinational corporations and the weakened in a globalized world. by the Sub-commission on the Promotion and Protection of Human on the Promotion and Protection by the Sub-commission states led to the opposition from businesses and several Rights, but strong Council. in 2004 by the Human Rights document’s rejection national corporations on their responsibilities for human rights, on their responsibilities for human national corporations U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (Aug. 26, 2003). For an extensive analysis of the U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (Aug. of transnational corporations by international Norms and their importance for the regulation law, see Larry Cata Backer, Corporations as a Harbinger of Corpo- tions’ Norms of the Responsibilities of Transnational rate Social Responsibility in International Law Rts., with Regard to Human Rights, Commission Corporations and Other Business Enterprises 724 respon- social corporate of the regulation to internationalize ous attempts in the the United Nations been made by efforts have sibility. These specifies Global Compact in 2001. The of the Global Compact framework in transnational companies responsibilities of regarding the ten principles and anticorruption. labor, the environment, of human rights, the areas the working Group on U.N. Working in 2003, a five-member In addition, its Norms of transnational corporations formulated methods and activities and Other Business of Transnational Corporation on the Responsibilities to Human Rights. Enterprises with Regard \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 50 4-OCT-13 9:22 Rights and Institutional Action tions, see Deva Surya, Companies Hum. Rts. [UNHCHR], New Guiding Principles on Business and Human Rights endorsed by Hum. Rts. [UNHCHR], New Guiding Principles on Business and Human Rights endorsed the UN Human Rights Council, http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews .aspx?NewsID=11164 (last visited Feb. 21, 2013). riod of three years to promote the implementation of the Guiding Principles. on the Issue of Human Rights and Transnational Corporations and Other Business Enter- prises corporationsandotherbusiness.aspx (last visited Feb. 18, 2013). 34040-mil_34-4 Sheet No. 29 Side B 10/10/2013 11:12:26 B 10/10/2013 29 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 30 Side A 10/10/2013 11:12:26 R R , Id. 725 Connie see 217 ; Guiding Principles 3 (2011) [hereinafter para. 17. In the commentary Id. para. 13. “‘[B]usiness are relationships’ Under this provision, the out- Under this provision, pt. III. While the Guiding Principles are Id. Holding Business Accountable for Human 220 Id. note 218. (Friedrich Ebert Stiftung Int’l Pol’y Analysis, Berlin, Shared Responsibility Shared supra It requires that corporations act with due diligence and ad- It requires that corporations act with due diligence , IGHTS http://library.fes.de/pdf-files/iez/08264.pdf. Id. para. 11 cmt. To respect human rights essentially means not to para. 11 cmt. To respect human rights essentially R Id. para. 13 cmt. . The third pillar is access for victims of human rights para. 13 cmt. . The third pillar is access for victims Id. available at http://www.oecd.org/daf/inv/mne/48004323.pdf UMAN UIDELINES Signatory states commit to promoting these ethics among Signatory states commit OECD Guidelines for Multinational Enterprises ], available at ,H 219 These guidelines cover business ethics on employment, human cover business ethics on employment, These guidelines 218 note 180, pt. I. The second pillar is the corporate responsibility to respect human rights, note 180, pt. I. The second pillar is the corporate The trend of increasing recognition of corporate responsibility for recognition of corporate responsibility The trend of increasing In addition to these mechanisms developed by the United Nations, developed to these mechanisms In addition Where a business enterprise cause or may cause an adverse human rights impact, it Where a business enterprise cause or may cause the impact, it should take the should take the necessary steps to cease or prevent Where a business enterprise con- necessary steps to cease or prevent the impact. rights impact, it should take the tributes or may contribute to an adverse human and use its leverage to mitigate necessary steps to cease or prevent contribution possible. any remaining impact to the greatest extent . at para. 19, cmt. Corporate responsibility to respect human rights refers to the “adverse . at para. 19, cmt. Corporate responsibility to 218. OECD, 220. Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111- 219. OECD G 217. pillars for protecting human The Guiding Principles rest on three constitutive M K multinational corporations operating in or from their territories. operating in or from their multinational corporations law guiding princi- not been limited to international soft human rights has legal systems. One expression in national domestic ples, but has also found provision of the adoption of the conflict minerals example is the 2010 Street Reform Act. Dodd-Frank Wall De-La Vega, Amol Mehra & Alexandra Wong, Rights Violations rights, the environment, information disclosure, combating corruption, information disclosure, combating rights, the environment, and taxation. Ger.), July 2011, violations to judicial and nonjudicial remedies. violations to judicial and nonjudicial remedies. not intended to create binding legal obligations, they can be considered soft law that, over time, can create customary international legal obligations or serve as a basis for . OECD Guidelines 203, § 1502, 124 Stat. 1376, 2213 (2010). other voluntary codes and systems have been introduced over the years, introduced over systems have been codes and other voluntary Guidelines for Multinational being the OECD most prominent one of the in May governments adopted by forty-two which were Enterprises, 2011. understood to include relationships with business partners, entities in [the corporation’s] understood to include relationships with business entity directly linked to its business operations, value chain, and any other non-State or State products, or services.” rights. The first pillar is a states’ duty to protect against human rights abuses by third parties, rights. The first pillar is a states’ duty to protect obligation to ensure that all entities within a including business enterprises. It includes the rights norms, which requires taking steps to state’s territory or control comply with human human right abuses. prevent, investigate, punish, and redress corporate Summer 2013] cases unwilling, in some and human rights, violate TNCs that against to act foreign investment. would discourage such a policy for fear that supra \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 51 4-OCT-13 9:22 independently of the state’s ability or willingness to fulfill its duty to protect human rights. independently of the state’s ability or willingness law that may govern a corporation’s conduct in pt. II. This responsibility supersedes national relation to human rights. infringe on rights of others. they do occur. dress adverse impacts on human rights when of principle 19 of the GP, Ruggie states, Id “through their own activities” or as a result human rights impacts” corporations exert either of their business relationships with other parties. C Y 34040-mil_34-4 Sheet No. 30 Side A 10/10/2013 11:12:26 A 10/10/2013 30 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 30 Side B 10/10/2013 11:12:26 R M K C- C Y 222 . J. . A 34:675 Enforc- ORP OLUM 4 (2011), ? C [Vol. L ’ It reflects The ILO The MNE The volun- NT , 33 C 225 223 226 ,I 227 ORKERS W T FOR I SIN ’ at 3-4. Id. HAT : W Defining Compliance: Why Recent Developments in Defining Compliance: Why Recent Developments ECLARATION The MNE Declaration sets forth principles to The MNE Declaration D S 224 , http://accountabilityroundtable.org/analysis-and-updates/de- note 44, that the rights of at 443, 478-79 (“This global recognition Michigan Journal of International Law ILO MNE supra OUNDTABLE , Convention Concerning Occupational Safety and Health and the Working , Convention Concerning Occupational Safety HE 221 Tripartite Declaration of Principles Concerning Multinational Enterprises and Tripartite Declaration of Principles Concerning 663 (1995). R http://www.ilo.org/wcmsp5/groups/public/-ed_dialogue/-actrav/documents/publi- For a discussion of this example and recent developments in the realm of cor- For a discussion of this example and recent (3d ed. 2001). L. COUNTABILITY L ’ See, e.g. Id. International labor law is often regarded as a prime example of a legal law is often regarded as a prime example International labor 222. Ratner, 223. 226. ILO, T 225. The MNE Declaration further encourages all relevant actors to respect national 224. ILO, 221. 227. For criticism of the assumption that corporate social responsibility should be ap- RANSNAT adopted this approach mainly through the Tripartite Declaration of Princi- mainly through the Tripartite Declaration adopted this approach Policy Declaration Enterprises and Social ples Concerning Multinational (the MNE Declaration). of the ILO that “although agreement among the tripartite constituents to governments, the principles under- ILO standards are intended to apply to business as well.” lying these instruments can be applied Declaration thus represents an initial starting point for a more stringent Declaration thus represents an initial private bodies. Similarly to our pro- scheme for assigning responsibility to has universal application, namely posed reform, the MNE Declaration or otherwise formally commit to the that companies do not have to sign be subject to scrutiny. Declaration before their actions can which governments, employers, workers’ organizations, and multinational employers, workers’ organizations, which governments, of employment, to voluntarily adhere in the fields enterprises are expected life conditions, and industrial relations. training, work and fining-compliance-why-recent-developments-in-law-and-policy-should-matter-to-the- Feb. 18, 2013). corporate-accountability-movement (last visited a stepping stone to an acceptance by employees create duties for corporations represent other duties for corporations.”). states that their rights of the citizenry can create regime that imposes legal and moral responsibilities on corporations. legal and moral responsibilities regime that imposes porate responsibility, see Mark Taylor, Law and Policy Should Matter to the Corporate Accountability Movement Law and Policy Should Matter to the Corporate Social Policy laws and regulations, to “give due consideration to local practices,” development priorities, and social aims of host countries, and to respect international obligations including interna- tional standards concerning human and labor rights. Environment, art. 16.1, June 22, 1981, 1331 U.N.T.S. 279. Environment, art. 16.1, June 22, 1981, 1331 T 726 Dem- in the violations rights human against of campaigning of years come rely on whose products (DRC), companies of Congo ocratic Republic of origin of of the country to file disclosures are required certain minerals origin of the SEC; where the reporting to in their annual those minerals to file will be required unknown, the company is the DRC or the minerals on its it has exercised what due diligence report explaining an additional supply chain. some ILO conven- for example, in the manner in which This is expressed, placing direct duties on corporations. tions are worded, \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 52 4-OCT-13 9:22 available at cation/wcms_152797.pdf. plied voluntarily, see, for example, Lance Compa & Tashia Hinchliffe-Darricarrere, ing International Labor Rights Through Corporate Codes of Conduct 34040-mil_34-4 Sheet No. 30 Side B 10/10/2013 11:12:26 B 10/10/2013 30 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 31 Side A 10/10/2013 11:12:26 R , N- 727 E OECD REEMAN F ESSONS FROM : L OLLEEN ULTINATIONAL Update on Strategic C UIDE FOR THE M See ,G ROCEDURE In sum, the allocation P ATCH 232 ONDUCT FOR note 227, at 667. C The once widely-prevalent re- The once widely-prevalent OMPLAINT 231 , OECD W supra Accordingly, the ILO recently de- the ILO recently Accordingly, ’ C http://germanwatch.org/tw/oecd-gui06.pdf. ODES OF 228 ere, C The Trade Union View on the Implementation of The Trade Union View on the Implementation ILLYWHITE NTERPRISES available at L E Shared Responsibility Shared , GB.310/MNE/2, 310th Sess. (Mar. 2011). ROBLEMS OF ERENA P & S 23 (2006), EGAL L The OECD’s experience with its own voluntary guide- The OECD’s experience ULTINATIONAL in , Stephen K. Pursey, , 230 M OMPLAINTS 229 Compa & Hinchliffe-Darricarr ` EYDENREICH http://www.ilo.org/wcmsp5/groups/public/-ed_norm/-relconf/documents/meet- C TERPRISES S 277 (Norbert Horn ed., 1980). H See, e.g. See Sub-Comm. on Multinational Enterprise, Governing Body, Sub-Comm. on Multinational Enterprise, Governing See Proponents of strengthening corporate social responsibility and hold- responsibility and corporate social of strengthening Proponents NGO 232. 229. decided to further concentrate the work In November 2009, the Governing Body 230. 231. An example of such a complaint that was resolved to the satisfaction of all parties 228.a periodic survey. The Office invites gov- The MNE Declaration is monitored by UIDELINES FOR ORNELIA AST M K of responsibility to new actors in a manner that is more in line with the new actors in a manner that is more of responsibility to and practices is a novel idea, yet relies on notions global labor market sistance to linking human rights with MNE business practices has become human rights with MNE business practices sistance to linking conduct such as the with the increase in codes of a thing of the past, and the U.N. Global Compact. OECD guidelines cided to bolster its supervision of the operations of multinational of the bolster its supervision cided to enterprises. lines exemplifies this potential: its complaints procedure has on several this potential: its complaints procedure lines exemplifies disputes through successful resolution of human rights occasions led to the with the involved. voluntary deliberation ing multinational enterprises more accountable have long argued that cor- have long argued more accountable enterprises ing multinational into legally codes should be transformed porate social responsibility in protecting and that corporations could participate binding standards human rights. Priorities for 2010-11: Supplement Codes of Conduct involved is the 2005 complaint against Global Solutions Limited (Australia) Pty Ltd (GSL). The complaint alleged that the company had breached the Human Rights and Consumer as Interest Provisions of the OECD Guidelines. The agreed mediation resulted in agreement to ways to keep operations within the framework of human rights. C G P ernments to answer a detailed questionnaire on the effects of the instrument in their coun- ernments to answer a detailed questionnaire their national most-representative employers’ tries. About a third of the member states and In the 2000-2003 survey, only sixty- and workers’ organizations provide partial information. are analyzed and examined by the Governing two states responded. The responses received on the findings are adopted by a decision of the Body, and recommendations for action based to reconsider the follow up mechanisms of the ILO Governing Body. An Ad Hoc Committee mechanism in the form of a periodic survey MNE Declaration concluded that: “the follow-up of becoming an operative tool. . . .” ILO Gov- had not been viewed as a success in terms Working Group on the Follow-up Mechanism erning Body, Report of the Tripartite Ad Hoc GB.313/POL/9(Rev.), 313th Sess. (Mar. 2004), of the MNE Declaration, app. at para. 7, available at ingdocument/wcms_173721.pdf. enterprises and their conformity with the of the Office on the operations of multinational Body, moreover, decided that following principles of the MNE Declaration. The Governing its 1979 decision to report periodically on the completion of this exercise, it would review light of the experience gained. More recently, effect given to the MNE Declaration, in the submitted a supplement to the update of the Subcommittee on Multinational Enterprises on initiatives to promote the MNE Declara- strategic priorities, outlining specific examples tions. Summer 2013] has mechanisms its supervisory and Declaration the MNE nature of tary at best. partially successful been only \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 53 4-OCT-13 9:22 C Y 34040-mil_34-4 Sheet No. 31 Side A 10/10/2013 11:12:26 A 10/10/2013 31 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 31 Side B 10/10/2013 11:12:26 M K C Y 34:675 [Vol. Responsibility Model 1. The Reporting System Michigan Journal of International Law The ILO’s Supervisory System: Proposals for Reform Proposals for Supervisory System: The ILO’s a. The Reporting System: Initial Signs of a Shared B. Elements of the ILO reporting system reflect a push toward harmoni- Incorporating shared responsibility into the ILO’s reporting system responsibility into the ILO’s reporting Incorporating shared already be detected in the current Traces of these two approaches can We now proceed to some initial concrete proposals for legal reforms for legal initial concrete proposals proceed to some We now zation of the Organization’s norms among its member states that shifts a away from the statist model in several respects. One such element is re- unique reporting requirement whereby member states are required to port on the degree of their compliance with obligations set forth in con- ventions they have yet to ratify. This reporting requirement departs from de- the international law principle that states have absolute discretion in a termining the standards that bind them. The authority to impose such would entail a radical change in how the Committee of Experts operates. change in how the Committee would entail a radical two general measures with respect to Such a reform would be advanced by the ILO would have to further har- the ILO’s supervisory process. First, (or even with some other basic monize compliance with its core standards states. This would require au- minimum of standards) among its member supervision of its core standards thorizing the Organization to intensify has ratified the relevant standards, regardless of whether a member state which standards legally bind thus narrowing states’ discretion regarding Second, the shared responsibility them to some agreed-upon minimum. the involvement of workers’ model would entail expanding and deepening supervisory process. This enhanced and employees’ organizations in the of the type of information re- participation could require modification reports. quested of the states in their ILO annual of Experts’ mode of operation. These reporting system and the Committee responsibility model seem to indicate initial manifestations of the shared that we suggest. We begin, then, that reform is imminent in the direction system that already exhibit as- by examining the features of the reporting by a discussion of our proposed pects of shared responsibility, followed reforms. that would enable the incorporation of private bodies and nonterritorial the incorporation of private bodies that would enable existing governance framework—itsstates into the ILO’s reporting system the existing features We begin by pointing to and complaints procedures. of the shared re- groundwork for the implementation that already lay the reforming the two We then offer specific proposals for sponsibility model. model in the ILO. toward the implementation of the systems, each in turn, 728 ILO including regime, labor law international in the prevalent already arrangements. \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 54 4-OCT-13 9:22 34040-mil_34-4 Sheet No. 31 Side B 10/10/2013 11:12:26 B 10/10/2013 31 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 32 Side A 10/10/2013 11:12:26 R R R R R R 233 729 The first 236 This authority 234 235 note 30. Every year, the GB Every year, the note 233, at 201. 237 supra Under the ILO Constitu- 238 supra , Maupain, Helfer, See See, e.g. note 48, art. 19(7)iv. note 233. Shared Responsibility Shared supra ., Winter 2008, at 193, 195. The extent to which this authority ., Winter 2008, at 193, 195. The extent to which supra Monitoring Compliance with Unratified Treaties: The ILO Ex- Monitoring Compliance with Unratified Treaties: notes 249–255 and accompanying text. ROBS . P Helfer, See infra note 4, at 76. However, this procedure has pressured at least some supra ONTEMP , ILO Constitution, See generally See , L. & C HOMANN Secondly, the ILO reporting duties impose certain procedures on Secondly, the ILO reporting duties This deviation from the principle of state sovereignty is manifested in the principle of state sovereignty This deviation from T 235. 236. There are in fact three exceptions, the third being the procedures for monitoring 237. The General Survey is an “[e]xamination of law and practice in a particular subject 238. Until about 1990, this obligation was complied with at a rate of about 80%. How- 234. 233. Laurence R. Helfer, M K exceptional procedure is the General Survey. exceptional procedure can be understood as undermining states’ sovereignty for the purpose of for the states’ sovereignty as undermining can be understood and and coordination, of interstate cooperation with problems contending of shared responsibility. with the model thus in line chooses an issue on which all member states are obligated to report, on which all member states are chooses an issue address the subject have ratified the conventions that whether or not they to elaborate on their reports, the states are called upon matter at hand. In at hand and on the their jurisdiction regarding the issue current practice in Survey creates a of the conventions. The General obstacles to ratification the General Survey of the issue, which is published in worldwide overview of Experts’ annual report. as a part of the Committee process that may indicate movement member states’ internal ratification norms. toward the greater harmonization of tion, member states must submit any new instrument adopted by the Inter- tion, member states must submit any relevant national political bodies for national Labor Conference to their and/or implementation of the stan- serious consideration of ratification is exceptional is part of a long-standing debate over whether the nature of ILO conventions is exceptional is part of a long-standing debate resembles treaties or legal regulations. the 1998 declaration. area,” of all member States, regardless of their ratification of the conventions that address subject at hand, published in Report III (Part 1B) of the Committee of Experts on the Appli- cation of Conventions and Recommendations. All the general surveys conducted from 1985 are available at General Surveys Since 1985, ILO, http://www.ilo.org/global/standards/infor- mation-resources-and-publications/WCMS_164145/ index.htm (last visited Feb. 18, 2013). ever, this rate has since dropped sharply, partly in relation to the new members in the ILO. See the reporting system in two central exceptions to the general rule that in two central exceptions to the the reporting system ratified. only by standards they have states are legally bound countries to seriously consider ratification. perience Summer 2013] legal system, the international in extraordinary rather obligation, legal the ILO which empowers ILO Constitution, Article 19 of the derives from and recommendations. unratified conventions to monitor \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 55 4-OCT-13 9:22 C Y 34040-mil_34-4 Sheet No. 32 Side A 10/10/2013 11:12:26 A 10/10/2013 32 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 32 Side B 10/10/2013 11:12:26 R R R R M K L ’ C Y NT I 34:675 , at 3, 268-69 available available See ], [Vol. ECADE represents a D 244 Moreover, the IRST 245 to report that this that to report F This reporting obli- HE 240 243 : T Possible Improvements note 48, art. 19(5)(b), (6)(b). In addition, if the national legis- if the national In addition, This is an extraordinary and un- extraordinary and This is an RGANISATION 241 242 supra O note 243, at 270-71. ]. The submission of the instrument, however, does , at 4, GB.292/10, 292d Sess. (Mar. 1, 2005), note 239, pt. III(b). note 48, art. 23(2). ABOUR supra L , supra ECADE supra , The states have one year one states have The D 239 ECADE IRST D F Michigan Journal of International Law HE IRST NTERNATIONAL F , I HE Memorandum Concerning the Obligation to Submit Conventions and Recom- Memorandum Concerning the Obligation to Submit ILO Constitution, art. 19(5)(e), 6(d). art. 19(5)(c), 6(c). FFICE Id. Id. See Possible Improvements O Possible Improvements in the Standards Related Activities of the ILO: Proposals Re- Possible Improvements in the Standards Related Several aspects of the reporting system also embody the aspiration to the reporting system also embody Several aspects of 243. At its inception this procedure was described as innovative and bold. 242. 241. 245. 240. could extend this period to a maxi- In extenuating circumstances, member states 244. See T 239. ILO, http://www.ilo.org/wcmsp5/groups/public/@ed_norm/@normes/documents/questionnaire/ http://www.ilo.org/public/english/standards/relm/gb/docs/gb292/pdf/lils-1.pdf. ABOUR further shift away from full and complete state sovereignty, toward the from full and complete state sovereignty, further shift away as such, from the of norms and a departure, international harmonization statist model. system. There is of actors involved in the supervisory expand the scope (II) of the ILO Con- from the statist model in Article 23 explicit deviation reports to be communicated to stitution, which requires all governmental which in turn make their own the national representative organizations, on the ground. observations as to the factual situation of its functional organizations ILO has recently deepened the involvement weight to their reports. In 2006, in its reporting system by assigning greater for the proper treatment of the Governing Body established guidelines and workers’ organizations concern- comments received from employers’ in a nonreporting year. These ing the application of a ratified convention the Committee of Experts will be guidelines are aimed at ensuring that legal obligations, even in nonreporting able to address serious violations of may request states to report years. They provide that the Committee duty has been met and that the convention was brought before the compe- brought before the convention was been met and that duty has approval. authority for tent legislative gation, which raised legal difficulties when first introduced, gation, which raised precedented procedure, for states are requested to submit to their for states are requested precedented procedure, endorsed by their that were not necessarily legislature legal instruments could have voted (it is even plausible that a state own relevant authorities of the instrument by the ILO). against the adoption lature has refused to ratify, the states are required to justify this refusal to justify the states are required refused to ratify, lature has for imple- alternative means intends to use whether the state and indicate standards. the relevant labor menting (1931) [hereinafter T not mean that it should be recommended: “The obligation to submit the instruments does not not mean that it should be recommended: “The obligation to submit the instruments does imply any obligation to propose the ratification of Conventions or to accept the Recommen- dations.” at mum of eighteen months. ILO Constitution, at and International Labor Standards, Governing wcms_087324.pdf; Comm. on Legal Issues Body, and the Representation Procedure garding Submission to the Competent Authorities [hereinafter GB292/LILS/1(Rev.), 291st Sess. (Mar. 2005), L mendations to the Competent Authorities 730 within. set forth dards \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 56 4-OCT-13 9:22 34040-mil_34-4 Sheet No. 32 Side B 10/10/2013 11:12:26 B 10/10/2013 32 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 33 Side A 10/10/2013 11:12:26 R 247 731 http://www.ilo.org/ at para. 72. Id. note 96, at 27-29. available at supra , This promotional focus follows an im- 248 , para. 77, (2010), Report of the Committee of Experts on the Application Shared Responsibility Shared thereby enhancing the significance of comments pro- of comments enhancing the significance thereby 246 Committee on the Application of ILS Standards The Committee recalls that at its 77th Session (November-December 2006), it gave The Committee recalls that at its 77th Session be followed in determining the treat- guidance to the Office as to the procedure to and workers organizations concerning ment of comments received from employers a nonreporting year. This year, the the application of a ratified Convention in of the decision of the Governing Committee examined this procedure in light Body at its 306th Session (November 2009) to extend the cycle for the submission of reports from two to three years for the fundamental and governance Conventions. Certain elements of the functioning of both the CEACR and Confer- of the functioning of both the CEACR Certain elements Committee has stressed the link Moreover, since 2005, the Conference 247. There has been a recent rise in the number of reports by trade and employers’ 248. 246. Int’l Lab. Conf., 99th Sess., M K plicit understanding that individual states should not always be held fully plicit understanding that individual vided by the functional organizations on nonreporting years, which now years, on nonreporting the functional organizations vided by work. inform a larger percentage of the Committee’s would most likely ence Committee can be described as conforming to the shared responsibil- be described as conforming to the ence Committee can the CEACR’s Committee, which receives ity model. The Conference regarding conducts comprehensive deliberations comments and reports, model in reflect elements of the shared responsibility these reports, which of the Conference relevant parties. The determination that they engage all is consistent with broadly inclusive deliberations Committee to conduct responsibil- model and its emphasis on remedial the shared responsibility by an inclusive Problem solving is best served ity and rectifying violations. for a particular the key actors that bear responsibility process, since when can be “named and shamed,” but, situation are present, they not only progress toward remedying the sit- more importantly, can assist in making of the Conference Commit- uation. Currently, however, the deliberations fully, and amount to a naming-and- tee do not materialize their potential shaming process. standards-related activities of the su- between technical assistance and the is aligned with the notion of shared pervisory bodies, in a manner that the supervisory system will highlight responsibility. Thus, for example, be particularly helpful in ensuring cases where technical assistance will compliance with labor standards. wcmsp5/groups/public/@ed_norm/@relconf/documents/meetingdocument/wcms_123424.pdf. Id. organizations, as evidenced in the 2010 Committee of Experts’ report. In 2010, “the Commit- in tee received 705 comments (compared to 630 in the preceding year), 115 (compared to 57 the preceding year) of which were communicated by employers’ organizations and 590 (com- pared to 573 in the preceding year) by workers’ organizations.” of Conventions and Recommendations Summer 2013] organizations workers’ or employers’ cycle when regular their outside of a to severe violations via their comments, its attention, have directed the Body extended in 2009, the Governing In fact, ratified convention. from two conventions and governing cycle on the fundamental reporting years, to three \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 57 4-OCT-13 9:22 C Y 34040-mil_34-4 Sheet No. 33 Side A 10/10/2013 11:12:26 A 10/10/2013 33 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 33 Side B 10/10/2013 11:12:26 R R R M K C Y Sec- 34:675 availa- ], 253 252 [Vol. Declaration on Third, it es- , paras. 32–36, and thus may 254 250 note 30, at pt. II(A)(v). paras. 30, 33. supra , Id. 2008 Implementation Plan 255 note 1. and, thus, their universal status. It is also and, thus, their universal status. It 251 Responsibility Model supra , note 30, at 842. ILO Declaration on Social Justice Put differently, the follow-up was intended as a was intended the follow-up Put differently, supra Michigan Journal of International Law 249 para. 30. at 834-35. Maupain, See id. See See id. See ILO Declaration http://www.ilo.org/wcmsp5/groups/public/-ed_norm/-relconf/documents/meetingdocu b. Reporting System: Proposed Reforms Toward a Shared The How can the ILO progress beyond these initial stages toward a more How can the ILO progress beyond Initial signs of shared responsibility values can also be found in the Initial signs of shared responsibility Lastly, beyond the regular reporting system, the follow-up to the 1998 the follow-up to the reporting system, the regular Lastly, beyond 255. The Plan proposes a pilot project in four countries as part of the incremental appli- 254. 253. See, for example, the emphasis on research, information collection and sharing in, 250. in the Preamble, as the ILO The role of multinational enterprises is recognized 251. 252. 249. ond, it calls for the creation of a partnership with nonstate entities, such as ond, it calls for the creation of a partnership trade union networks. multinational enterprises and global tablishes tools for assessing the implementation of labor standards, such as tablishes tools for assessing the implementation those constituting Decent Work. be interpreted as implicitly encouraging assigning responsibility to private implicitly encouraging assigning responsibility be interpreted as bolstered the four governmental ones. In addition, it has entities as well as as a precondition for the first time their position core rights, establishing for economic development unique in its proactive rather than reactive and corrective focus. unique in its proactive rather than means of identifying ways to assist governments in applying the core rights ways to assist governments in applying means of identifying departure from the of core conventions. This regardless of the ratification the implementation ratification in order to monitor requirement for state and transnational a move toward a more universal of norms demonstrates has several fea- Similarly, the 2008 Declaration model of responsibility. It is the first with the notion of shared responsibility. tures that are aligned governmental enti- the role of both private and declaration to emphasize and achieving the decent work agenda ties in promoting cation of the labor standards, mainstreaming decent work. ble at ment/wcms_099851.pdf. Steering Grp. on the Follow-up to the Declaration (2008), Governing Body, Social Justice for a Fair Globalization: Preliminary Implementation Plan GB.303/SG/DECL/2, 303rd Sess. (Nov. 2008) [hereinafter comprehensive model of shared responsibility? Most significantly, the comprehensive model of shared responsibility? Implementation Plan of the 2008 Declaration. First, the Implementation Implementation Plan of the 2008 Declaration. system that would allow for the Plan calls for revisions in the reporting labor rights violations. collection of more detailed data regarding acknowledges the role of these enterprises in the interdependent economy and calls for de- acknowledges the role of these enterprises in II A (v) of the text of the 2008 Declaration, this veloping new partnerships with them. In Part call is even more concrete. 732 need of external are in in fact comply and to their failure for responsible their legal obligations. in accordance with help to act was de- and Rights at Work Principles on Fundamental ILO Declaration strictly pro- procedures in a ILO’s supervisory complement the signed to manner. motional \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 58 4-OCT-13 9:22 34040-mil_34-4 Sheet No. 33 Side B 10/10/2013 11:12:26 B 10/10/2013 33 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 34 Side A 10/10/2013 11:12:26 R 733 Id. and making 256 Shared Responsibility Shared note 4, at 69. Despite the general declining trend, the rate of and expanding the scope of required information could and expanding the scope of required supra After concluding its assessment, the Committee could After concluding its assessment, , 257 Part III. 258 HOMANN See supra In addition, the CEACR should expand the information it gathers by should expand the information In addition, the CEACR Naturally, such a change to the operation of the CEACR would yield Naturally, such a change to the operation 258. Again, the ability of the CEACR to examine such information should be consid- 256. 257. T M K an initial assessment of each actor’s degree of responsibility. Where states of each actor’s degree of responsibility. an initial assessment of their re- state are involved, the assessment other than the territorial such as direct con- proceed through regular procedures, sponsibility could be instituted to while analogous procedures could tact or observations, private bodies. in making a final assessment regarding assist the CEACR goes significantly to request information that revising its questionnaires (or also) pro- of the state’s legal reality and instead beyond a description reasons, such labor rights protection. For practical vides a picture of actual be embarked on reporting procedures should a reform to the Committee’s the rate of reports has been a general decline in with caution, as there being submitted exacerbate the problem. It is our view, however, that it is paramount that exacerbate the problem. It is our view, description of the actual the Committee receive a more comprehensive states. The ILO should thus con- labor rights conditions in the member reports directly from civic organiza- sider allowing the CEACR to receive necessarily the most representative tions and workers’ unions that are not organizations. summarize its initial findings in a report to the Conference Committee, summarize its initial findings in a similarly to current practice. of the Conference Committee, as parallel modifications to the functioning such as TNCs. The proceedings of they would have to address new actors, directly all the actors identified the Conference Committee should address The Conference Committee’s con- by the CEACR in every particular case. and follow-up should thus be siderations for choosing cases for discussion to its discussion procedures transformed accordingly. Some amendments in cases where one of the actors is a will be indispensable, particularly the ILO could contemplate devel- private body. As noted, for such cases, currently applied to states. For exam- oping parallel proceedings to those could also be published with regard to ple, observations, when warranted, states. Allowing observations against private entities, as in the case of TNCs or other private employers would incentivize workers’ organizations and civic organizations to include relevant information about violations that targets particular employers. reports received is rather decent compared with other international organizations. ered. This suggestion should be implemented incrementally, as civil society often lacks the ered. This suggestion should be implemented incrementally, as civil society often lacks accountability mechanisms needed to ensure the accuracy of the information. Summer 2013] responsibil- it assigns to which of actors the scope expand should CEACR it should no rights violations, practical labor when it detects ity. Namely, the viola- responsible for that the sole actor automatically longer assume it should occurred. Rather, the violation state in whose territory tion is the bodies, as well as to private to other states responsibility weigh assigning allocation of responsibility the four principles by applying \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 59 4-OCT-13 9:22 C Y 34040-mil_34-4 Sheet No. 34 Side A 10/10/2013 11:12:26 A 10/10/2013 34 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 34 Side B 10/10/2013 11:12:26 R R M K C Y 34:675 OWARDS [Vol. 1T in , 106 (Niels Blokker & The shared responsibil- 259 RGANIZATIONS O NTERNATIONAL I Responsibility Model 2. The Complaints System Once More about the ILO System of Supervision note 4, at 92. 260 Michigan Journal of International Law note 1, para. 2. supra , UPERVISION BY supra S a.a Shared The Complaints System: Initial Signs of HOMANN FFECTIVE E The ILO complaints process, like its reporting system, reflects the two The ILO complaints process, like its of violating core stan- The need to broaden the legal consequences all Members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact of membership in the Organization to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions. Yet the ratification status of freedom of association conventions is not Yet the ratification status of freedom In addition, one expected outcome of the application of the shared of the application of outcome expected one In addition, ORE 260. Nicolas Valticus, 259. T ity model would reduce the need to arbitrarily choose industrialized coun- the need to arbitrarily choose ity model would reduce model, bear more would, under the new tries, as these countries violations in which they are involved. responsibility for objectives described above: first, the need to broaden the legal conse- objectives described above: first, the regardless of whether the particular quences of violating core standards the aspiration to expand and deepen state has ratified them; and second, in the ILO’s supervisory process. In so the participation of nonstate actors the beginnings of a shared responsi- doing, this system, too, incorporates bility model. of the ILO’s freedom of association dards is advanced in the framework procedure that provides that norm. This is manifested in the exceptional freedom of association can be filed allegations of an infringement of the relevant convention. This proce- against states that have not ratified underscored at the time the unique dure was introduced in the 1950s and enshrined in the ILO Constitution and nature of freedom of association as as a customary norm. Sam Muller eds., 1994). The ILO Constitution is the legal basis for this understanding of the Sam Muller eds., 1994). The ILO Constitution is the legal basis for this understanding of norm. The Preamble to the 1998 Declaration explicitly declares that: ILO Declaration, without significance. In allegations of a severe violation by a member state without significance. In allegations of responsibility model would be that industrialized states would presumably states would be that industrialized model would responsibility as origin do, particularly than they currently more responsibility shoulder Conference operation of the would impact the a development states. Such follow-up for discussion and it chooses cases in terms of how Committee compiles currently The Conference Committee system. by the supervisory randomly chosen. cases that seem to be rather a list of about twenty-five the list, but because not based on the cases left off of This observation is distribution the list are selected based on geographic those that do make include more cases This has been in an effort to and other considerations. in industrialized countries. relating to violations M 734 \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 60 4-OCT-13 9:22 34040-mil_34-4 Sheet No. 34 Side B 10/10/2013 11:12:26 B 10/10/2013 34 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 35 Side A 10/10/2013 11:12:26 R R R AW 735 L Represen- ABOUR L and interna- The principle 267 265 In contrast, when In contrast, note 129, para. 3. The note 129, paras. 31–35; note 129, paras. 32-35. 262 supra supra supra NTERNATIONAL , , , , I paras. 1-2. id. OTOBSKY para. 7. P ON See id. V 263 ERALDO This rather inclusive procedure opens up the This rather inclusive procedure opens Shared Responsibility Shared to investigate the claim. to investigate 266 261 & G http://www.ilo.org/dyn/normlex/en/f?p=1000:50010:0::NO::P50010_AR industrial organization (usually workers’ organizations) industrial organization ALTICOS V any , ILO, , ILO, http://www.ilo.org/global/standards/applying-and-promoting-interna (last visited Feb. 18, 2013). para. 31. ICOLAS The only requirement for qualifying as a complainant is that the for qualifying as a complainant The only requirement Id. See Freedom of Association Complaint Procedures See Freedom of Association Complaint Procedures See Freedom of Association Complaint Procedures 264 The second objective—the second the su- actors in need to include nonstate The 267. These organizations cooperated and alleged together a nonobservance by Vene- 263. N 262.see For the legal basis for inception of FFCC, 266. 265. 261. 264. M K tional organizations, such as the International Confederation of Free tional organizations, such as the several representations. Trade Unions, which has in fact filed of inclusive participation is further served by allowing international orga- of inclusive participation is further direct interest in the alleged violation nizations that have affiliates with a to serve as complainants. the alleged violation is by a nonratifying state, the state’s participation in the state’s participation a nonratifying state, violation is by the alleged the matter is necessary for its explicit consent is voluntary, for the inquiry to the FFCC. to be referred possibility of representations being submitted by regional organizations, possibility of representations being of Workers (CLAT) and the Latin such as the Latin American Central (FETRALCOS), American Federation of Trade Workers TICLE_NO:24 GB determines it to be an “industrial organization.” In order to prevent to be an “industrial organization.” GB determines it involved, the ILO of the definition by the national state any manipulation eligibility, the that in determining an organization’s specifically provides by the national au- not bound by definitions endorsed Governing Body is but rather should where the organization resides, thorities of the state evaluation according to its own rules. make an objective tations (Art. 24) zuela of the ILO Employment Policy Convention, 1964. The Latin American Central of zuela of the ILO Employment Policy Convention, rep- Workers (CLAT) had also filed representations alone, for example, submitting in 1997 a resentation alleging nonobservance by Uruguay of the ILO Occupational Safety and Health the Convention, 1981, and, in 1996, a representation alleging nonobservance by Costa Rica of ILO Employment Policy Convention, 1964. In 1995, it filed a representation alleging nonob- a servance by Peru of the ILO Social Security (Minimum Standards) Convention, 1952, and Ma- representation alleging nonobservance by Paraguay of the ILO Minimum Wage-Fixing chinery Convention, 1928. It also filed a representation alleging nonobservance by Nicaragua and of the ILO Protection of Wages Convention, 1949, the ILO Social Policy (Basic Aims Standards) Convention, 1962, and the ILO Employment Policy Convention, 1964. pervisory process—already proce- finds expression in the representations dure. Indeed, size or na- regardless of the organization’s can submit a representation, international organi- whether it is a local, national, or tional affiliation or zation. FFCC is composed of nine independent persons, who work in panels of three, similarly to the FFCC is composed of nine independent persons, composition of the Commission of Inquiry. Representations tional-labour-standards/representations/lang—en/index.htm (last visited Feb. 18, 2013). 297 (Kluwer Law & Taxation Publishers, 2d ed. 1995). 297 (Kluwer Law & Taxation Publishers, 2d Summer 2013] refer Body can the Governing conventions, the relevant has ratified that to the FFCC the matter \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 61 4-OCT-13 9:22 C Y 34040-mil_34-4 Sheet No. 35 Side A 10/10/2013 11:12:26 A 10/10/2013 35 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 35 Side B 10/10/2013 11:12:26 R R M K C Y ; in note id. 34:675 Repre- supra [Vol. , Id. Thus, for exam- 269 Comm’n of Inquiry Ap- See Representations (Art. 24) In addition, industrial organizations are not re- are not industrial organizations In addition, 268 note 267. In addition, among the cases that were not withdrawn or note 267. In addition, among the cases that Michigan Journal of International Law supra , A further indication of the acceptance of the shared responsibility of the the acceptance of indication A further 269.filed a representation against several coun- The two cases in which an organization 268. significantly of Trade Unions, for example, has participated The World Federation stricted to submitting representations only regarding violations that have violations only regarding submitting representations stricted to any state; violations in but rather regarding in their own states, occurred in conjunc- several states regarding even submit representations they can has already been done in practice. tion, something that model is that it is possible for several organizations to coordinate and file a to coordinate several organizations that it is possible for model is joint representation. deemed nonreceivable, several cases involved an industrial organization that filed represen- deemed nonreceivable, several cases involved not reside. Thus, for example, in 1991, the tations against a state in whose territory it does a representation against Iraq alleging nonob- Federation of Egyptian F12Trade Unions filed 1949 (No. 95), the Abolition of Forced servance of the Protection of Wages Convention, Labour Convention, 1957 (No. 105), the Discrimination (Employment and Occupation) Con- vention, 1958 (No. 111), and the Equality of Treatment (Social Security) Convention, 1962 (No. 118). In 1990, the National Confederation of Workers of Senegal filed a representation against Mauritania alleging nonobservance by Mauritania of International Labour Conven- tions Nos. 95, 102, 111, 118 and 122; in 2006, the Confederation of Turkish Trade Unions the (TURK-IS) filed a representation against the Netherlands alleging nonobservance by In Netherlands of the Equality of Treatment (Social Security) Convention, 1962 (No. 118). 1998, the General Confederation of Labour of Argentina (CGT) filed a representation against Spain alleging nonobservance by Spain of the Migration for Employment Convention (Revised), 1949 (No. 97), the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and the Employment Policy Convention, 1964 (No. 122). pointed Under Article 26 of the Constitution of the ILO to Examine the Observance of the pointed Under Article 26 of the Constitution Convention, 1958 (No. 111), by the Federal Discrimination (Employment and Occupation) Republic of Germany, Rep., In 1991, the Confederation O.B. LXX, Series B, Supp. 1 (1987). ILO Discrimination (Employment and Occupa- alleged nonobservance by Yugoslavia of the by Myanmar of the ILO Forced tion) Convention, 1958; in 1994, it alleged nonobservance nonobservance by France of the ILO Labour Labour Convention, 1930; in 1996, it alleged Policy (Non-Metropolitan Territories) Con- Inspection Convention, 1947, and the ILO Social Confederation of Free Trade Unions vention, 1947. In 1983 and 1993, the International (LO) and the Swedish Confederation of Pro- joined the Swedish Trade Union Confederation alleging nonobservance by Sweden of the fessional Employees (TCO) to file representations 1964. ILO Employment Injury Benefits Convention, 267. 1975, the Swedish Dockworkers’ Union filed a tries involved international transportation: in and Poland alleging nonobservance by all representation against France, the Netherlands, by Vessels) Convention, 1929 (No. three of the Marking of Weight (Packages Transported Employees in the Air Transportation Business 27); in 1996, the Association of Danish Sa Denmark, Finland, France, Germany, filed a representation against Austria, Belgium, Norway, Portugal, Spain, Sweden, and the Greece, Iceland, Ireland, Italy, the Netherlands, Employment Policy Convention, 1964. United Kingdom for the nonobservance of the sentations (Art. 24) 1984, it again alleged failure by the Federal Republic of Germany to implement the ILO failure by the Federal Republic of Germany 1984, it again alleged a complaint that resulted and Occupation) Convention, 1958, Discrimination (Employment for the examination of of article 10 of the Standing Orders in a GB decision, in application of inquiry. representations, to refer the matter to a commission 736 in 1976 alleging non- systems. For example, it filed a representation in the ILO’s supervisory Convention, 1958, by Discrimination (Employment and Occupation) observance of the ILO in 1978, it alleged of Germany, Italy, the Netherlands, and Denmark; the Federal Republic Convention, 1958, ILO Discrimination (Employment and Occupation) nonobservance of the Federal Republic of Ger- in 1979, it alleged nonobservance by the by Czechoslovakia (CGT); Convention, 1958, (Employment and Occupation) many of the ILO Discrimination \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 62 4-OCT-13 9:22 34040-mil_34-4 Sheet No. 35 Side B 10/10/2013 11:12:26 B 10/10/2013 35 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 36 Side A 10/10/2013 11:12:26 R R , 737 UPERVI- S ECOMMEN- ROTECTING P R in NNIVERSARY OF , A TH 80 NTERNATIONAL http://www.ilo.org/wcmsp5/ I See Possible Improvements ONVENTIONS AND C UTURE OF F available at To fully integrate the shared re- OLLOQUIUM ON THE 271 C PPLICATION OF A Past experience suggests that a lack of Past experience suggests that a lack note 263, at 108 (discussing how the representation RESENT AND 270 274 : P supra Shared Responsibility Shared , Responsibility Model IGHTS NTERNATIONAL The CFA’s current mandate to investigate cases The CFA’s current mandate to investigate R I XPERTS ON THE 272 OTOBSKY E Does Law Matter? The Future of Binding Norms UMAN H & P Part II. Part II. From a practical perspective, the CFA’s and FFCC’s ex- From a practical perspective, the CFA’s 273 ALTICOS IGHTS AS OMMITTEE OF SION DATIONS See supra See supra THE 221, 229 (George P. Politakis ed., 2007), R ROCEEDINGS OF THE , note 239. In sum, then, much in the same way as the reporting system, the com- in the same way as the reporting In sum, then, much ILO complaints and nonterritorial states into the Incorporating TNCs b. Proposed Reforms Toward a Shared The Complaints System: :P ILO C 271. 272. 273. Bob Hepple, 270. V 274. See the GB’s decision to accept the procedural rules that apply to cases of freedom ABOUR M K sponsibility model, where a state has not yet ratified core conventions, the sponsibility model, where a state has of state consent currently nec- ILO would need to waive the requirement an investigation, as is the case with essary before the FFCC may initiate the CFA procedure. without the involved states’ consent, even if they have not ratified the rele- without the involved states’ consent, to the other three core rights—thevant conventions, should be extended right to equality at work, and the right right to be free of forced labor, the to be free of child labor—a has been advocated by Bob Hepple, move that for example. isting procedures, with the necessary modifications, could serve as a model isting procedures, with the necessary and could also inform new in adapting the representations procedure for initiating investigations regardless Commission of Inquiry procedures procedure already bor- of ratification status. In fact, the representations legislative bodies that supervise the rowed procedural rules from the ILO freedom of association norm. procedure evolved in more recent years). plaints system exhibits distinct signs of a shift toward a shared responsibil- distinct signs of a shift toward plaints system exhibits below, can be of this shift, we will show ity model. The implications supervisory system. mechanisms of the ILO standard extended to other require adapting the subjects of investigation would system as potential and, for cases of freedom of associa- Commission of Inquiry’s procedures tion, those of the ad hoc committee. L Summer 2013] to union workers’ for a Turkish allows procedure the representation ple, who toward Turkish workers government by the Dutch allege a violation proce- of the representation These features the Netherlands. worked in labor rights ILO to address enable the usually go unnoticed, dure, which activity. economic framework of cross-border that occur in the violations in the witnessed an increase recent years have coincidence that It seems no submission of representations. \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 63 4-OCT-13 9:22 groups/public/@ed_norm/@normes/documents/publication/wcms_087817.pdf. of association as guidelines that would assist in resolving disputes as to procedural quandaries that relate to the procedure of representations under Article 24. supra C Y 34040-mil_34-4 Sheet No. 36 Side A 10/10/2013 11:12:26 A 10/10/2013 36 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 36 Side B 10/10/2013 11:12:26 R R R R M K C Y See 34:675 [Vol. note 129, para. 40. supra , note 129, para. 38. Other bodies have The failure of the ILO to make the ILO failure of The It is required to determine com- 275 supra 279 , note 4, at 132. Michigan Journal of International Law Similar initial rules of receivability could be instituted Similar initial rules of receivability supra , note 112. 276 280 This procedure, too, however, should be modified to allow however, should be modified to This procedure, too, supra 277 at 131-32. para. 31. Similar discretion could be applied to determine the could be applied to determine Similar discretion HOMANN Id. See Freedom of Association Complaint Procedures Id. 278 A possible starting point for procedural reforms to further deepen the to further deepen procedural reforms starting point for A possible 276. 277. the observance by the Domini- Examples are the complaints submitted concerning 278. The CFA, for example, may reject a complaint on several bases, including that the 279. 280. 275. T plicated preliminary questions, such as whether the industrial organization plicated preliminary questions, such to do so. Accordingly, the CFA that submitted the complaint was qualified the complainant has a “direct interest” is authorized to determine whether where the international organizations in the case; in cases of complainants the CFA must determine whether lack consultative status with the ILO, organization are directly affected by the national affiliates of the particular the allegations. use of the ad-hoc procedure instituted in 1973 that allows investigations of that allows investigations instituted in 1973 ad-hoc procedure use of the status convention ratification regardless of of the equality norm violations the re- resolve to implement to lack the that the ILO continues suggests quired reforms. the initiation of a complaint regardless of ratification status. One concern complaint regardless of ratification the initiation of a of the procedure. course, is the possibility of abuse that could arise, of complaint against a ensure that the ability to file a How can the ILO increase of politi- will not be abused or lead to a sharp nonterritorial state involved against states that are not significantly cally motivated complaints problem could be A possible solution to this in labor rights violations? bodies. These bod- mandates of the ILO supervisory found in the current or reject com- discretion as to whether to receive ies have been accorded plaints. preliminary question of the responsibility of nonterritorial states according preliminary question of the responsibility The supervisory bodies also to the four principles of shared responsibility. complex matters. The CFA, for exam- have ample experience dealing with submitted in writing with evidence to ple, requires that all complaints be support the allegations made therein. can Republic and Haiti of the Forced Labour Convention, 1930 (No. 29), the Abolition of can Republic and Haiti of the Forced Labour the Freedom of Association and Protection of Forced Labour Convention, 1957 (No. 105), 87), and the Right to Organise and Collective the Right to Organise Convention, 1948 (No. by several workers’ delegates at the 67th Ses- Bargaining Convention, 1949 (No. 98), made Appointed Under Article 26 of the Constitution sion of the Conference. Comm’n of Inquiry International Labour Conventions by the of the ILO to Examine the Observance of Certain the Dominican Republic and Haiti with Respect to the Employment of Haitian Workers on Sugar Plantations of the Dominican Republic, Rep., O.B. LXVI, Series B Special Supp. (1983). complaining organization does not fall under any of the appropriate categories described above, or that the case has already been decided and could also reopen a previous case. Freedom of Association Complaint Procedures dis- also adopted rules of receivability. See, for example the receivability of representations, cussed above, participation of nonstate actors is the existing multiple party complaints actors is the existing multiple participation of nonstate procedure. 738 however. be expected, will can political \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 64 4-OCT-13 9:22 34040-mil_34-4 Sheet No. 36 Side B 10/10/2013 11:12:26 B 10/10/2013 36 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 37 Side A 10/10/2013 11:12:26 R R 739 The paras. id. 284 The com- 285 note 48, art. 27. This is one instance of supra 281 287 In the case of most of the com- 286 note 78, paras. 25, 720. Shared Responsibility Shared supra In this case, the Witwatersrand Native Labour Associa- In this case, the Further, the complainants had pointed to particular private Further, the complainants had pointed 282 283 paras. 61-62, 64-77. para. 23. para. 25. Id. Id. Id. Id. Implementing the shared responsibility model would also require that Implementing the shared responsibility The Commission of Inquiry has also had experience with investigating has also had experience of Inquiry The Commission 286. 287. 285. The general managers of the private companies concerned were invited and gave 284. 283. 282. Portugal’s Report, 281. Such authority is anchored in the ILO Constitution, M K Commission of Inquiry established appropriate procedures for investigat- Commission of Inquiry established with the investigation. ing the companies, which cooperated panies provided information and sent representatives to the Commission’s panies provided information and sent sessions to present relevant statements. actual ILO experience that exemplifies the Organization’s ability to de- actual ILO experience that exemplifies entities as well as nonterritorial velop procedures for investigating private states. rights violations be subject to the all actors deemed responsible for labor bodies and nonterritorial states ILO’s sanction scheme, including private wording of Article 33 of the ILO in the appropriate circumstances. The severe sanctions the Organization Constitution, which sets forth the most the ILO from making such re- can impose, does not necessarily preclude GB may recommend to the Interna- forms. The article provides that the panies deemed relevant to the investigation, the Commission also visited panies deemed relevant to the investigation, workers. the work sites and met and interviewed tion Ltd. was involved in recruiting workers from Mozambique to work in in recruiting workers from Mozambique tion Ltd. was involved the Commission “to and thus was called upon by mines in at its second session representative to give evidence send a duly accredited of the labour of recruitment and employment concerning the conditions concerned.” Diamond Company of Angola was ac- enterprises in their allegations: the workers under forced labor, while the cused of employing a quarter of its of being partly maintained by Benguela Railway Company was accused European-owned plantations. forced labor, as were various other 43-44. evidence before the commission, as can be evidenced by the list of witnesses, see allegations made against private bodies, even though such bodies have though such bodies bodies, even made against private allegations the Commission has subjects of investigation. When never been official regard to the case, it to be “of a special position” with found a corporation in investigating a to investigate it. Thus, for example, has not hesitated violation of the 1957 Ghana against Portugal claiming a complaint filed by Commission of In- Labour Convention (No. 105), the Abolition of Forced against concerned with and investigated allegations quiry communicated corporations. Summer 2013] ap- prima facie are in question states nonterritorial whether to determine has also of Inquiry The Commission parties for investigation. propriate from nonterritorial to request information applied its authority routinely under investigation. were not directly states that \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 65 4-OCT-13 9:22 C Y 34040-mil_34-4 Sheet No. 37 Side A 10/10/2013 11:12:26 A 10/10/2013 37 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 37 Side B 10/10/2013 11:12:26 R R M K C Y 290 34:675 [Vol. The Settlement of Disputes within 273, 284 (1999). Similarly, one could . L. CON E L ’ ONCLUSION Francis Maupain, NT C See note 48, art. 33. There is nothing in this wording that rules out that rules nothing in this wording There is , 2 J. I supra 288 note 4, at 85. 291 Michigan Journal of International Law supra , HOMANN On the one occasion that the ILO did invoke Article 33, in its Article 33, in the ILO did invoke one occasion that On the 289 In this Article, we have argued that the ILO should assign legal re- have argued that the ILO should In this Article, we on a detailed analysis of ILO The central claim of our Article draws and procedures rest on an As demonstrated, the current ILO structure at 87-90. 291. Only the European Union and the United States have imposed economic sanctions 289. 1946, with the particular reference to The wording of Article 33 was amended in 288. ILO Constitution, 290. The 2000 resolution regarding Myanmar called upon the member states to review sanctions against private bodies or sanctioning several countries in tan- several countries or sanctioning against private bodies sanctions dem. against Myanmar, and these were mostly offset by the increased economic activities with countries such as China and Thailand, who opposed the imposition of sanctions on Myanmar. Id. 2000 resolution regarding Myanmar, it allowed the member states discre- the member states it allowed regarding Myanmar, 2000 resolution taken against Myanmar. measures to be the nature of the tion as to the International Labour Office sponsibility to remedy the unjust conditions of workers in the global labor the unjust conditions of workers sponsibility to remedy rights violations oc- states in whose territory the labor market not only to private, should also actors, both public and curred. Rather, additional remedying these conditions. Two such share in the legal responsibility for as dominant in the global econ- actors in particular are generally viewed the particular violation transpired omy: first, states in whose jurisdiction brand or TNCs management resides) (for example, states in which the corporations. and, second, powerful transnational as well as a normative examination of internal mechanisms and structures, be applied in international labor law. the principles of justice that should approach, which combines norma- Taking an innovative interdisciplinary perspectives on international la- tive-philosophical and empirical-legalistic a proposed reform of the ILO, bor standards, this Article has outlined particularly its supervisory structure. for the protection of workers’ outdated statist conception of responsibility which nation-states are the sole rights in the global labor market, under a minimal level of labor standards actors held responsible for enforcing economic sanctions deleted. In addition, the authority to recommend sanctions was trans- economic sanctions deleted. In addition, the Inquiry to the political GB. Economic sanctions, ferred from the independent Commission of however, are not ruled out as such. 740 and expedient deem wise it may action as “such Conference Labour tional compliance.” to secure a more centralized Myanmar experience demonstrates, Moreover, as the should take against particular steps members states approach, where the than leaving it to are specified, is called for, rather the responsible actors the states’ discretion. \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 66 4-OCT-13 9:22 argue that the wording of the article does not preclude sanctions against private bodies. “the relations that they may have with the member State concerned and take appropriate measures to ensure that the said Member cannot take advantage of such relations to perpetu- of ate or extend the system of forced or compulsory labour referred to by the Commission Inquiry.” T 34040-mil_34-4 Sheet No. 37 Side B 10/10/2013 11:12:26 B 10/10/2013 37 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 38 Side A 10/10/2013 11:12:26 R 741 given its particular signifi- 292 Shared Responsibility Shared note 192, at 36. supra Barry, it is clear that in order to assign an agent responsibility for recti- , See Although the new global conditions and normative considerations of Although the new global conditions shared responsibility for labor Under our proposed conception of the weight of each of the There is no simple algorithm for ranking 292. M K cance in the legal context. In this Article, however, we espoused no partic- fying an unjust situation, the agent must have the capacity to realize that the responsibility. In line with the notion that “ought” is implied by “is,” principle of capacity is a necessary precondition for assigning responsibil- of ity. There are others who assign special added weight to the principle contribution relative to the other principles, Summer 2013] embed- been has of responsibility model statist This their territory. within its ear- structure from functions and tripartite ILO’s operational ded in the procedures norm-generating evident in its among other things, liest days, and re- its complaints system, including the supervisory and, in particular, political de- legal, and a variety of economic, Due to porting procedures. emergence of transnational era, including the in the global velopments flow of mi- liberalization of trade, and the increased production chains, over capital and jobs global competition between states grant workers, the protect labor rights and the state’s ability to has dramatically intensified scholars, recogniz- diminished. International labor law within its territory labor law sys- of the existing national and international ing the inadequacy of enforcing labor with the emerging difficulties tems for contending a deterritorialization labor market, have called for standards in the global have underscored same time, political philosophers of labor law. At the in the global unjust nature of existing labor relations the exploitive and and rules to argue for the creation of new institutions labor market and correct these injustices. a new set of institutional arrange- global justice could, indeed, mandate on possible reforms to the ILO as ments, in this Article, we have focused explicitly striving to establish and the central international institution We have shown that the nation- guarantee international labor standards. primary responsibility for worker’s state, which traditionally bears the of generating and enforcing labor rights, is no longer suited to the task the global market. Accordingly, the standards by itself in the reality of should broaden the scope of actors crux of our argument is that the ILO rights beyond the state in whose ter- held responsible for upholding labor ritory labor rights are violated. unjust conditions of workers across rights, responsibility for remedying the actors and institutions. We presented the globe is shared amongst various that should aid in determining four principles of responsibility allocation responsible for rectifying these con- which additional actors should be held (2) the capacity principle; (3) the ditions: (1) the connectedness principle; principle. beneficiary principle; and (4) the contribution for the unjust state of affairs. For principles in determining responsibility example \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 67 4-OCT-13 9:22 C Y 34040-mil_34-4 Sheet No. 38 Side A 10/10/2013 11:12:26 A 10/10/2013 38 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 38 Side B 10/10/2013 11:12:26 M K C Y 34:675 [Vol. for we believe such an a priori ranking a priori such an we believe for 293 Michigan Journal of International Law As we demonstrated, the ILO bodies already have both the inherent the ILO bodies already have both As we demonstrated, for reforming particular proce- Accordingly, we outlined proposals private actors as bearers of re- The inclusion of additional public and 293. We recognize the additional work that is essential for aligning a conception of to be impossible. Determining the relative weight of the four principles is of the four the relative weight Determining to be impossible. considera- under on the actual circumstances task, contingent a practical to those circumstances. agents connected the role of the different tion and in unjust labor conditions for remedying of responsibility In the context and using the principles responsibility labor market, allocating the global by the specific rele- relative weight is a task to be borne determining their empirical in- discussed. This should rest on detailed vant ILO bodies we best way to sustain judgments that consider the vestigations and practical minimum labor standards. daunting task, and necessary for performing this capacity and experience structure reforms to the Organization’s supervisory we suggested specific could be most effec- this. These reforms, we showed, to further facilitate of the shared re- by building on the early foundations tively implemented and complaints already existing in the ILO’s reporting sponsibility model systems. principles for responsibility allo- dures in these two systems. Our proposed actors can potentially be held cation led us to conclude that additional in addition to the territorial state responsible for protecting labor rights, the state within whose territory where the violation occurred, particularly resides and private actors such as the highest level of management (brand) powerful transnational corporations. would likely be met with conceptual sponsibility for labor rights violations However, as this Article illus- objections as well as political resistance. not be inconsistent with the ILO’s trated, this proposed expansion would our shared responsibility legal scheme. Moreover, since implementing it is intended as more of a regula- model in its entirety is clearly infeasible, implementation would likely tory ideal. Indeed, full and comprehensive operational and institutional struc- necessitate reform to the entire ILO and its norm-generation procedures, ture, including its tripartite structure Our model could thus represent an and not just its supervisory system. between the actors that aspiration: toward decreasing the inconsistency core labor rights for workers and are morally responsible for ensuring responsibility to do so under the ILO’s those actors who shoulder the legal model of shared responsibil- current approach. And finally, the proposed ity for remedying the dire conditions of workers around the world could serve not only as a regulatory ideal and the basis for reform in the ILO. Indeed, it is our hope that it can inspire other international and transna- responsibility that is not purely based on the principle of contribution with the normative conception of responsibility. Such discussion, however, is beyond the scope of this Article. 742 of the principles, ordering ular \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 68 4-OCT-13 9:22 34040-mil_34-4 Sheet No. 38 Side B 10/10/2013 11:12:26 B 10/10/2013 38 Side Sheet No. 34040-mil_34-4 34040-mil_34-4 Sheet No. 39 Side A 10/10/2013 11:12:26 R 743 294 note 7. supra , LVAREZ ,A See, e.g. Shared Responsibility Shared We acknowledge that additional conceptual and empirical study is and empirical conceptual that additional We acknowledge 294. In general, the need to replace a statist, or state-centric, approach to international M K necessary, for example, with regard to the relative weight to be assigned to weight to be regard to the relative for example, with necessary, consid- Further practical allocation. principles of responsibility each of the political to counter the into account in order should be taken erations private actors such likely be brought to bear by powerful pressure that will for a new concep- we maintain that our proposal as TNCs. Nevertheless, model is both based on the labor connection tion of shared responsibility Such a novel ap- and ultimately practically plausible. morally justified between the global in order to overcome the gap proach is critical today a minimum level of right of workers everywhere to consensus over the of both national the one hand, and the limited ability labor standards, on that right in present institutions to regulate and enforce and transnational times. institutions is recognized by various scholars. Summer 2013] as the such standards, labor cross-border promote that institutions tional Union. and the European Area of the Americas Free Trade \\jciprod01\productn\M\MIL\34-4\MIL401.txt unknown Seq: 69 4-OCT-13 9:22 C Y 34040-mil_34-4 Sheet No. 39 Side A 10/10/2013 11:12:26 A 10/10/2013 39 Side Sheet No. 34040-mil_34-4