Globalisation And Labour Rights: The Conflict Between Core Labour Rights And International Economic Law (Studies in International Trade Law)

414 Pages·2007·1.48 MB·English

by  Christine Kaufmann

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GLOBALISATION AND LABOUR RIGHTS
In a world of work that has changed dramatically over the last few years, states
are confronted with new actors and conflicting international legal obligations.
This book examines the tensions between core labour rights as defined by the
International Labour Organization, and the interests of international economic
institutions (such as the WTO, IMF, World Bank, and OECD). It provides an
analysis of the legal interactions between international regulations and state
policy with regard to potential regulatory conflicts, at both horizontal and
vertical levels. The study suggests a model of multilevel consistency as a way of
reconciling the highly specialised and fragmented legal systems of core labour
rights on the one hand, and trade liberalisation on the other, to form the
coherent framework of a consistent legal order. Its detailed analysis and recom-
mendations are designed for both academic readers and practitioners in inter-
national organisations and governments.
Studies in International Trade Law: Volume 5
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Studies in International Trade Law
Titles in this series:
Volume 1Basic Legal Instruments for the Liberalisation of Trade
Federico Ortino
Volume 2The Power to Protect: Trade Health, and Uncertainty in the WTO
Catherine Button
Volume 3TheWTO, the Internet and Trade in Digital Products
Sacha Wunsch-Vincent
Volume 4 Good Faith in the Jurisprudence of the WTO: The
Protection of Legitimate Expectations, Good Faith
Interpretation and Fair DisputeSettlement
Marion Panizzon
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Globalisation and Labour Rights
The Conflict between Core Labour Rights and
International Economic Law
Christine Breining-Kaufmann
OXFORD AND PORTLAND, OREGON
2007
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Published in North America (US and Canada) by
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© Christine Breining-Kaufmann 2007
Christine Breining-Kaufmann has asserted her right under the
Copyright, Designs and Patents Act 1988, to be identified as the author of this work.
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British Library Cataloguing in Publication Data
Data Available
ISBN-13: 978-1-84113-599-1 (hardback)
ISBN-10: 1-84113-599-2 (hardback)
Typeset by Hope Services, Abingdon
Printed and bound in Great Britain by
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Acknowledgements
The idea for this book originated from experiences and insights that I gained
while working for the Swiss central bank. Many people and institutions con-
tributed to further development of the concept and the completion of the
book: first of all, the University of Michigan Law School provided me with an
invaluable research atmosphere, inspiring discussions with colleagues and
opportunities to meet people who forced me to rethink and refine many points.
I am particularly grateful to Virginia Gordan, Robert Howse, Christopher
McCrudden, Christine Chinkin, Donald Regan, Mark Rosenbaum and Bruno
Simma. Special thanks are also due to the reviewers of my habilitation thesis at
the University of Zurich, Giovanni Biaggini and Dietrich Schindler, and to
Thomas Cottier and my colleagues at the World Trade Institute in Berne for
their valuable comments.
Friends, family and colleagues offered feedback, constructive criticism and
moral support every step of the way—this book would not have been completed
without them.
I would also like to thank the Stiefel Zangger Stiftung at the University of
Zurich for supporting my stay at the University of Michigan Law School with a
research grant.
Last but not least, I am indebted to Marianne Peter for her administrative
assistance above and beyond the call of duty, to Michelle Foster, Susan Kaplan
and Lisa Gourd for their careful review of the manuscript, and finally to Richard
Hart for his encouragement and advice.
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Summary of Contents
Acknowledgements v
List of Figures xv
Abbreviations xvii
Note on Spelling xxi
Table of Cases xxiii
Table of Legislation xxxi
Introduction Setting Out the Problems 1
Chapter 1 The Legal Framework for Core Labour Rights 13
Chapter 2 International Economic Organisations and Core Labour Rights:
Conflicting Interests 87
Chapter 3 Cross-border Economic Activities: Multinational Enterprises
and the Linkage Debate 155
Chapter 4 Reconciling Conflicting Interests: The Roles of Nation States
and the International Community 243
Chapter 5 Conclusions 297
Appendix: Selected Labour Rights Provisions 301
Bibliography 317
Index 351
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Contents
Acknowledgements v
List of Figures xv
Abbreviations xvii
Note on Spelling xxi
Table of Cases xxiii
Table of Legislation xxxi
Introduction: Setting Out the Problems 1
I.1. Meanings of Work 1
I.1.1. Work, Labour and Leisure 1
I.1.2. Formal and Informal Sectors 4
I.2. Globalisation and Its Effects 6
I.2.1. The Notion of Globalisation 6
I.2.2. The Effects of Globalisation on the International Community 8
I.3. The Agenda of this Book 10
1. The Legal Framework for Core Labour Rights 13
1.1. National Economic and Social Policy 13
1.1.1. Free Market and Social Welfare 13
1.1.1.1. Theoretical Conceptions: Market versus Government
Failure 13
1.1.1.2. Protective versus Productive States 16
1.1.1.3. Conclusions 18
1.1.2. Constitutional Principles 19
1.1.2.1. Laying the Foundation: The Swiss Constitutions of
1848 and 1874 20
1.1.2.2. Attempts to Establish a Comprehensive Framework:
The New Swiss Constitution of 1999 24
1.1.2.3. Conclusions 27
1.2. International Labour Rights 28
1.2.1. Human Rights Instruments 29
1.2.1.1. The Universal Declaration of Human Rights (1948) 29
1.2.1.2. International Covenant on Economic, Social and
Cultural Rights (1966) 34
1.2.1.3. International Covenant on Civil and Political Rights
(1966) 42
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x Contents
1.2.1.4. Convention on the Elimination of all Forms of
Discrimination against Women (1979) 45
1.2.1.5. Convention on the Rights of the Child (1989) 46
1.2.1.6. Recent Developments: Protocols on Trafficking 48
1.2.2. ILO Regulations 49
1.2.2.1. The Constitutional Structure of the ILO 49
1.2.2.2. ILO Fundamental Conventions 52
1.2.2.3. The ILO Declaration on Fundamental Principles and
Rights at Work (1998) 67
1.2.2.4. Other ILO Initiatives 77
1.2.3. Excursus: Cultural Relativism and the “Asian Values” Debate 78
1.2.4. Conclusions 79
2. International Economic Organisations and Core Labour Rights:
Conflicting Interests 87
2.1. Different Approaches to Labour Rights: Economic Necessity,
Mainstreaming, and Constitutionalism 87
2.1.1. Economic Rationales to Approach Labour Issues 87
2.1.2. The Concept of Mainstreaming 90
2.1.2.1. Background 90
2.1.2.2. Mainstreaming Labour Rights? 92
2.1.3. Constitutionalism as a Process 94
2.1.3.1. Rule of Law 96
2.1.3.2. Separation of Powers 97
2.1.3.3. Fundamental Rights 98
2.1.3.4. Democratic Participation 99
2.1.3.5. Social Justice 100
2.2. Bretton Woods Institutions 100
2.2.1. The Conceptual Economic Framework of the IMF and World
Bank 100
2.2.2. Constitutionalism and Core Labour Rights 102
2.2.3. Current Policies 103
2.2.3.1. The World Bank 103
2.2.3.2. The International Monetary Fund 115
2.2.3.3. Responding to the Pressure: Collaboration with other
Organisations 119
2.2.4. Assessing Current Policies 122
2.2.4.1. The Legal Context of Bretton Woods Institutions 123
2.2.4.2. Shortcomings of the Purely Economic Approach to
Labour Rights 127
2.2.4.3. Difficulties with Mainstreaming 129
2.2.5. Member State Sovereignty and BWI Enforcement of Labour
Rights 130