Volume 3, Issue 2 - Labor Rights in the Era of Globalization

Freedom of association operates as an organizational "meta-norm," appreciated both as an independent value and as a touchstone for the institutional design of the International Labour Organization (ILO). Despite the renewed interest of the ILO in various aspects of the norm, its understanding of freedom of association lacks a comprehensive normative framework. This article presents such a conceptual framework and a critical in-depth analysis of current ILO freedom of association jurisprudence. Freedom of association should be understood in terms of equitable dialogue (ED), a term offered and developed herein, as an understanding that is already partly embedded in ILO jurisprudence.

The International Labor Organization (ILO) is not an effective force for raising labor standards in the developing world and could become considerably more effective by taking account of two of the most important and interrelated recent theoretical developments in understanding labor standards. First, countries derive no comparative advantage in the global trading system from most very low labor standards. The ILO should therefore concentrate its energies on lifting these, rather than (as it so often does) concentrating on labor standards that are a source of comparative advantage, the elimination of which is resisted strongly and effectively. Second, the tools of game theory may be used to identify the collective action problems that prevent countries from lifting their own labor standards, and create a role for a transnational agency that may assist them.

Labor law was traditionally a domestic project, defined on the basis of a geographic territory or a synthetic community; its norms were determined by the state and applied to employers and workers who resided within the state. Commonly, labor law is administered on a territorial basis, applies to incoming workers, and stops at the borders in respect of other states' sovereignty when capital migrates. Globalization affects the background in which labor law operates, including the increased interdependence of markets, the constitution of communities that transcend national borders, and the development of institutions outside and within the nation-state, which displace the locus of regulation from the traditional state level. De-territoriality claims that territory and sovereignty should be understated within the dominion of labor law in order to correct a deep structural imbalance in labor markets. This imbalance was not created by globalization, and as long as it appeared in a consistent yet bounded manner in each and every state, labor law's project was rendered possible by territorial arrangements. With the process of globalization, the territorial solutions previously created within labor law are no longer adequate. When territoriality is adhered to, migrating workers receive partial protection, while migrating capital can easily choose its most convenient forum as a means, inter alia, of undermining labor law's protection to workers. De-territorialization seeks to restore the original intent of labor law's project, which is to level off the distinct strategies that are available to labor and capital in a globalized labor market.

This article explores the tension between competing discourses within the European Union, as this regional trading bloc seeks to capture further gains from market integration, whilst simultaneously attempting to soften the social impact of regional competition within its borders. This article analyzes the difficulty of maintaining the European social model, or a revised version of it, in the context of increased market integration. Through a close reading of two cases decided by the European Court of Justice in 2007, the article interrogates the extent to which discourses on social rights at the EU level can be made sufficiently robust to ensure the application of international or national labor standards as a buttress against increasingly mobile capital, in order to prevent “social dumping." It concludes, however, that the terms on which the foundational texts of the EU integration project operate—elevating “market" rights to equal, fundamental, status with social and labor rights—means that the exercise of social rights such as the right to strike is ultimately contingent on their compatibility with market integration.

The weakening of mechanisms for international cooperation within the context of the right to minimum wage can be explained by the increasing power of new players, the transnational corporations on the one hand, and the waning of the power of the state, on the other hand. These processes of globalization produce various challenges to the modern welfare state, such as the ability to attain minimum wage. This right is vital particularly to weakened workers that would otherwise be remunerated at a very low wage, which could likely lead to poverty. This right poses, however, numerous challenges, in particular the ability of international labor law to define it across borders. The article describes three models for defining this right: the existential deficiency model, the welfare model, and the comfort model and analyzes the various forms regulating the right to minimum wage in international regulations, state regulations, and codes of conduct of transnational corporations examining the ramifications of globalization within the context of labor rights. Moreover, the article suggests changes to international labor law, required to ensure that it functions as an effective instrument in protecting labor rights and proposes establishing regional parliaments—a supra-governmental body—composed of states and a broad array of interested private parties in its activities to establish fundamental principles relating to various areas of life, such as the basic rights of workers, taxation principles, and principles for protecting the environment. These regional bodies would decide which of the various models used for shaping the right to minimum wage should be adopted as a fundamental principle.

This comment questions the relevance of the Stag Hunt model, employed by Alan Hyde in his contribution to this volume, to the context of international labor standards. Despite Hyde's insistence to the contrary, it is argued that in some cases child labor could create a comparative advantage to developing countries. This shows the difficulty with Hyde's reliance solely on market failures to justify international labor standards. The exclusion of other (non-economic) justifications results in an extremely diluted international labor law.