Global judgements and ideas.
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The ILO has not shifted its normative positioning many times, and when it has done so it reflects a specific phase of the ILO’s existence which can be broken down into phases: its founding, the interwar years, the decades following World War II, and post-Cold War globalization. Specific phrasing in key ILO documents during each period set the overall aims and objectives of the Organisation’s work and reflect international trends as well as pressures and hegemonic struggles: specific phrasing which has over time led to controversy and discussion. So the terminology and surrounding debates during the major stages of the ILO’s evolution are important to review in order to understand the most recent normative agenda for decent work, which signifies an important moment of modernisation and professionalization of the ILO. The Decent Work Agenda that was set in 1999 by the incoming Director General Juan Somavia thus reflects a distinct moment in a trajectory of deliberations and historical pressures to prioritise aspects of the employment relationship, address specific problematic labour conditions and mitigate global power relations across governments, employers and trade unions.
The term decent work did not appear in the documentation at the establishment of the ILO in the interwar and postwar periods. Organisers focussed on an overarching ideology and practical necessity for the time period and while generalizable ideals were sought, they took a different frame to what later emerged. Two visions for the future of global labour organisation were tabled in 1919 by two large labour union federations. The International Federation of Trade Unions (IFTU) was preceded by the International Secretariat and was the forerunner to the Socialist International. So not surprisingly, perhaps, the IFTU took a specific line in discussions toward setting up a labour organisation and its constitution. The other federation was the American Federation of Labour (AFL) which had been the first workers’ union in the USA and was set up in 1886 by a number of craft unions whose members elected Samuel Gompers, the Cigar Maker’s International Union, as President. Several unions later left this federation in opposition to its position on industrial unionism (a debate that continued throughout the period of industrialisation). So its less radical orientation in suggestions for the establishment of a labour organisation are on one hand, not a surprise, although one could argue would not entirely lend themselves to the tenets of craft unionism as originally understood.
Two meetings were organised to discuss the setting up of an international labour organisation, one set by the IFTU one by the AFL. The IFTU hosted one of these in Bern where, in fact, international socialism was intended. Gompers, adviser to the Paris Peace Conference, organised by the AFL and where US President Wilson’s 14 points were to be addressed, altogether boycotted the Bern meeting. While issues discussed at the Peace Conference were whether non-labour specialist diplomats were appropriate for ILO decision-making, who and how many representatives were necessary to make decisions and the importance of collective bargaining, delegates at the Bern conference created a set of its own Resolutions that were not represented in the AFL’s Labour Charter. The tenor for the ILO was set during this period: a tenor of liberalism rather than socialism.
Perhaps the most controversial discussions at the Peace Conference were on the question of unemployment and the question of distribution, because at that time, employment was closely linked to the availability of raw materials given the necessity for post-(or what turned out to be inter-)war reconstruction. Baldesi of the Italian delegation requested a fair distribution of raw materials but this was not enacted, indeed, ‘the majority of the Committee was against him… [this kind of action would] raise suspicions about the real nature of the ILO, especially producer nations… To impose a system of raw material distribution would interfere with the rights of private and national property, and would be useless if the selling prices and rates of exchange between the selling and buying nations were not also fixed’ (Alcock 1971, 45).
At the Peace Conference, the question was raised: what incentives would there be to agree to principles that could potentially hamper countries’ competitive status in post-war industry, and how could labour obligations be introduced, without having access to thorough, ongoing studies of each involved countries’ situation? The conclusion was that these tasks were insurmountable, so a better strategy would be to organize an International Commission at the Peace Conference which would review and research possibilities for international regulations of labour conditions. However, this alternative was not an absolute panacea, given the complexities that configuring any international commission would raise: who would attend as decision makers? Would attendance be required or optional? What representation powers would states have and how would a hierarchy be decided? Would representatives of both workers and employers attend? How would decisions be enforced?
Commitment to a permanent international organization was, at least for the labour section of the British delegation, unanimous, however. Barnes, Butler, Phelan and Delevinge wanted to see an organisation where representatives from employers and workers were invited, as well as state attendees. The decision to have two state representatives rather than one, as is still the format for a worker and an employer representative, was agreed on the basis that there is no reason states might be anti-labour (as was argued by Barnes) and legislation must be implemented by states, so without them there would be no way to adopt agreements. The idea to invite non-state actors as key members was seen as an original social experiment for its time (Symons 2009).
Discussions at the Paris Conference highlighted the very prescient forces of communism and the Bolshevik faction of the Marxist Russian Social Democratic Party, a revolutionary group intending to represent Russia’s working class and aimed to neutralise and steer workers away from this force. In this light, Samuel Gompers drew up the Constitution, following a preliminary draft Labour Charter he had also coordinated. The Peace Treaty principles were voted and established in this Labour Charter:
Significantly, several items that the IFTU had hoped for after its own Berne February Resolutions did not appear in the Labour Charter. This included what they had hoped would be phrased as a required eight hour day rather than an ‘aimed’ day of this length; suppression of all laws against the right of association oppressed; a thirty-six hour rest period; a minimum wage; struggle against unemployment and the complete lift of immigration restrictions. But right at the ouset, the liberal voices won. Hopes for socialism were dashed. The ILO was born.
Further key documents signifying the ILO’s original normative positioning are the Preamble to the Constitution and the Annex to the Constitution entitled the ‘Declaration concerning the aims and purposes of the International Labour Organisation’ or the ‘Declaration Of Philadelphia’. The Preamble to the Constitution in 1919 was organised around two principles, one of which is the duty to promote social justice and the second to address a ‘risk of revolutionary agitation and contagion’ (Maupain 2009, 832), indeed it has been said that that the ILO was set up through class cooperation/consensus. Alcock states that the emerging hoped concept in the formation of the ILO would be ‘class co-operation’, where no one class emerges victorious and so the ‘cause of the revolutionaries received a rebuff which they did not forget’ (1971, 36). The tone for ILO work and values was thus set, the ILO was not a socialist organisation, but endorsed a democracy of tripartism and ‘fair competition’ (Novitz 2003, 97).
Desires to prevent conflict were dashed with World War II. By 1944 the ILO announced its Declaration Concerning Aims and Purposes on May 10 in Philadelphia, listing some of the values for its mandate that foreshadowed the UN Charter but were seen as important given the circumstances. Of particular interest is the first item mentioned in the second section which was headlined with a statement about social justice and peace, stating: ‘all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity’. The term decency is not mentioned though later we see that it encompasses many of the characteristics of this phrase.
The terminology applied in the Labour Charter, Preamble and Constitution appears somewhat disjointed, leading to a ‘self-service approach’ lacking universal coherence, which was in principle hoped for in early meetings. Conventions were organised in a piecemeal fashion and lacked cross-national connectivity. This tendency began to wear thin as ‘globalisation’ became a commonly used terminology in media and international fora in the late 1990s. This was linked closely with the expansion of trade relations and intensified communications and technological developments enhancing international knowledge about labour conditions. Trade unions have advocated a ‘social clause’ in trade rules for a long period of time and finally at the GATT Marrakesh Ministerial in April 1994 the question of whether labour standards should be enforced in trade relationships that would be managed by the nascent organisation and the one to replace GATT. The formation of the World Trade Organisation (WTO) at that meeting introduced these discussions, but ILO Director General at the time Michel Hansenne warned in his annual report that ‘an unbridled liberalisation of trade can work against the social objectives of the ILO’ (ILO 1994, 58). WTO did not agree to include labour rights in the trade agreements it would procure, but rather than divide the ILO and WTO, the WTO’s statement that ‘The ILO is the competent body to set up and deal with these standards, and we affirm our support for its work in promoting them’ had a surprisingly positive effect on the ILO, ‘boosting the ILO’s prestige and moral’ (Charnovitz 2000, 158).
So at the 86th International Labour Conference 1998, published right before the economic crisis took hold, the Declaration on Fundamental Principles and Rights of Work and its Follow Up was designed to respond to the WTO discussions and were designed to acknowledge the rise in informal workers, migrants and unemployed individuals (Vosko 2001). This Declaration consolidated four categories to promote universal rights/principles regardless of a countries’ level of development:
Changing the Constitution would be a harrying task, so the ILO has used declarations over time to promote particular ideas instead. The handful of Declarations published throughout the ILO’s history however still hold weight as each one is a ‘formal and solemn instrument suitable for rare occasions when principles of lasting importance are being enunciated’ (Report VII 1998 UN Legal Counsel). The principles featured in this list of became known as core labour standards (CLS) and rely on soft promotional techniques (Alston 2004, 457). Follow-up procedures were put into place to ensure implementation of rights and the ILO became an increasingly results based organisation. So there is limited impact the ILO can have in actual enforcement. The two types of follow-up are thus promotional rather than supervisory. ‘Procedures’ are, to be precise, firstly, a requirement that governments failing to ratify a convention must report regularly ‘on the state of their law and practice and on the difficulties that were preventing or delaying ratification’ (Charnovitz 2000, 153). Secondly, the ILO Director-General is required to write an annual report about one of the four principles seen in this Declaration to be discussed by the Governing Body and at the ILO Conference (2000, 153-4). These enforcement mechanisms were seen as ‘nothing short of revolution in legal terms’, claimed in one case to attain ‘jus cogens status’ (cited in Alston 2004, 460) despite not being as forceful as the special procedures that were put into place by the ILO in 1951 to hold governments to account for contraventions to the Freedom of Association.
While the term ‘core’ was not used in the 1998 Declaration, the concept of core labour standards is now essentially ubiquitous. The implementation of standards that are seen as ‘core’ demonstrates a shift in attempts to create a hierarchy of standard, which is a ‘very significant departure from the insistence within the international human rights regime on the equal importance of all human rights’ (Alston 2004, 460). Indeed the official UN position is that all ‘human rights are universal, indivisible and interdependent and interrelated’ (Vienna Declaration and Programme of Action para. 5, cited in Ibid.). The Declaration also refers to ‘principles’ which may have been influenced by the North American Agreement on Labour Cooperation (NAALC) where the 11 standards are called ‘guiding principles’. The use of this term was critiqued because principles are not identical to ‘rights’.
The following year, when Juan Somavia was elected as Director-General, the introduction of the new agenda toward decent work was well timed. Somavia’s report to the International Labour Conference (87th session, Geneva, 1999) and the following ‘Reducing the decent work deficit: a global challenge’, report of the Director-General, ILC 89th session, Geneva, 2001 demonstrate a modernisation programme that was not agreed by all officers and led to some attrition of senior officials. Somavia prioritized employment creation, rights at work, social protection and social dialogue as the four core features of a Decent Work Agenda. The Agenda was intended to provide a malleable set of principles. Decency is a relatively vague concept, but Somavia noted that ‘the invisible hand of the market needs to be guided by a caring eye… decent work is not defined in terms of any fixed standard or monetary level… But everybody, everywhere, has a sense of what decent work means in terms of their own lives, in relation to their own society’ (2000, 2-3, cited in Vosko 2001, 26). Malleability of the term demonstrates the need to mediate between global capital and specific member states of the G-77 and of course, unions. Where the term has had most impact is in the Domestic Workers Convention which was suggested in 2008, in 2010 placed on the Conference agenda with the view to set decent work standards for domestic workers, re-entered the Agenda at the 100th Session and entered into force in September 2013.
The principles and the decent work agenda do not explicitly deal with the pressing issues around whether promotional activity would be enough to ensure conventions are ratified and implemented. The problematic shift away from the concept of rights to a less encompassing terrain of principles and the ever-important but unresolved social clause question could appear to be linked to avoidance in addressing the north-south divide that was sharpened at the Marrakesh GATT trade ministerial conference, Singapore Ministerial conference and Uruguay Round of Negotiations. Who would be responsible for ensuring labour standards would be enforced and after Somavia’s election, decent work were to be made available? If not the ILO, then who? G77 representatives had been reticent to accept a role for the WTO in this process and apart from very specific cases in South America, states have not been widely known for independently implementing legislation to protect workers from the worst impacts of globalisation.
An even more deliberate approach to managing globalisation occurred in 2008 with the introduction of the Declaration on Social Justice for a Fair Globalization. The Declaration was upheld as a significant document intending to modernise the governance of the ILO by establishing better ties across members (Maupain 2009). The idea was that the ILO could update and modernise its message through a Declaration building on the emerging dynamics implied by the concept of decent work. Not all involved in this next shift in outlook agreed with the need for a review of governance or with a change to practices because these should already, anyway, be addressed through the implementation of result-based management techniques that were becoming increasingly expected and normalised in the ILO. Others endorsed a clearer system of review and reporting of fundamental rights that would ‘rationalise the work and agenda of the international labour conference’ but would not overhaul the ILO’s message or mandate (Maupin 2009, 830).
The modernisation of the ILO sees a clear shift to committed protection of informal workers and domestic workers and to recognition of the need for discussion about the potential role of labour standards in trade agreements. But the results-based tenor and question marks around the use of specific terminology once recognised as key in human rights discourses have taken centre stage in debates in the international community. The relative success of the Domestic Workers’ Convention can be a benchmark for future applications of the decent work agenda, heralding the spirit of social justice that drove the setting up of this organisation and, it is hoped, will continue.