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ROLE OF ILO IN THE DEVELOPMENT OF INTERNATIONAL LAW
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ROLE OF ILO IN THE DEVELOPMENT OF INTERNATIONAL LAW
AUTHORED BY
- SNEHA V. S,
LLM
Student, Government Law College, Ernakulam
ABSTRACT
International labor organization is
one of the major international legislations which address the problem of
workers at a global front. There a lot of conventions which deal with the same
concept. Apart from addressing the concern of workers another important feature
of the ILO is about other key issues such as human rights, rights against the
discrimination of people and protection of children etc. It is a not a
surprising fact that the labor laws are governed by the other international
laws. Labor laws will have a strong foundation only when the other laws are
equally strong and they have equal scope for development. The nexus between
different laws and their pattern works in this way- for example if human rights
laws are included in labor law documents then it is labor law that means the
characteristics of human rights law are enshrined in labor laws. The
international legislations of other laws have been strengthened as a result of
the formation of ILO. The main feature of nexus between all the laws arises
depending on whether it is exercised individually or collectively. The labor
laws are for a certain group of people, ILO is formed with the objective of
aiding a collective group of people, and so are the other international laws
which deal with collective freedom and collective rights of individuals. This
paper entails the significant growth that the other international laws have
undergone as a result of the formation of ILO.
INTRODUCTION
International labor law contains both
substantive and procedural laws. ILO’s main objective is to promote human
rights and labor rights in a global level. In order to sustain a healthy
economy, there is an ample need of an appropriate legislation which protects
the workforce of a nation. ILO is the main source of international labor law
formed as a result of various conventions and treaties. One of the major
features of ILO is that there are numerous conventions and recommendations
which are to be given by the member states according to article 19, member
states are supposed to report for these non-ratified conventions. According to
article 22, periodic reports are requested to be submitted by the member
states.[1] The system
of governance based on treaties and conventions are less formal. The less
formal working of ILO always ensures that the organization’s main motto and
agenda is development. There are important developmental steps that are always
discussed from time to time.
Genesis of ILO and its objectives- Formed as per the Treaty of Versailles in the year 1919. In
this same year, the British Prime minister David Lloyd opined in one of the
statements that he has addressed in one of the letters that the country of
Europe is in desperate need for a legislation which governs the working of the
labor federations and this the need of the hour. The entire Europe was filled
with nothing more than the spirit of revolution and in order to address this
problem there was a need for something which spoke for the workers, the most
vulnerable of all the groups of people. There were two main theories of
development, the reformist and the revolutionary. The reformist was primarily
focused at advantages in the form of an ideology upon which the entire system
of ILO was based. ILO followed the reformist ideology which helped the society
to follow an approach that aimed at promoting a social system with harmony and
peace. Other than that another important factor which is to be aimed at
promotion of social justice is a revolutionary system of governance were the
system is more aimed at bringing unconventional ideologies and development.
Ideologies and development that are reformatory often bring in a lot of
disadvantages as it brings a lot of oppression and hinders the harmony and
peace of the environment that people are in. Therefore, it is not a surprise if
the facts and figures that mentioned did not necessarily promote a governance
system which promotes a revolutionary upbringing. In 1946, it became the first
esoteric organization of the United Nations. ILO’s main aim when it was formulated
initially was to live up to the standards set up by the international labor
standards. The organization has over 189 globally accredited conventions and
around 202 recommendations which are not legally accredited but still can be
used to standardize the working of the labor federation. The remaining ILO
standards are for ensuring that the workers additional rights such as the
remuneration, duration of work, right to health, right to a safe and secure
environment. There are two decision making bodies in ILO, the international
labor conference and the governing body. These two are to ensure that there is
a collective improvement in the condition of the workers and all the objectives
of the ILO are fulfilled and implemented effectively. ILO has published various
articles, journals and a lot of other literature works to provide for the
research works for other organizations. Rising disparities between the rich and
poor and the correspondingly shrinking middle income groups may be viewed as
the most serious challenge of the 21st century, with negative implications also
for the ILO. The trend of increasing intra- country income inequality is most
dramatic in the United States and in fast-growing China. According to UNCTAD,
during the 1980s and 1990s, income inequality measured by the Gini- coefficient
rose in 73 of the 105 countries with adequate statistical information, whereas
it fell in only 24. In the period 2000-2010, there was a bifurcation in
inequality trends. There was a continued upward trend in income polarisation in
OECD countries, the European and Asian transition countries, South Asia, and
the Middle East and North Africa.
Work agenda-
The main aim of ILO is to help the nations in proliferation of employment
opportunities and their protection. It is aimed at providing humane conditions
to the workers and treating the workers with respect and dignity. There are
about eight fundamental rights for the workers which have been addressed in the
ILO statute. It has been detailed as follows-
Fundamental principles and the rights of the workers-
a)
Freedom to form unions and associations along with the right to
collective bargaining.
b)
No compulsion on the employees to perform a task
c)
No prejudice or discrimination against any workers.
d)
Ensuring that there is minimum age for the workers and abolishing
child labor completely.
e)
Effective abolition of forced labor.[2]
Despite having a
collective work agenda, there were several times were the working and the
provisions kept on changing for the ILO over the years. It is predominantly
because of the factors that influence the working of ILO. It keeps on changing
over the years and sometimes it may not even be as good as the previous
provisions. The format of ILO has been changed for over nine years and when
they do that it significantly affects the working of the system that prevails.
It provides for a sense of confusion for the workers as to what is to be
adopted and it even rings a question of their rights being infringed or not.
In its first decade the ILO was
primarily concerned with legislative and research efforts, with defining and
promoting proper minimum standards of labour legislation for adoption by member
states, and with arranging for collaboration among workers, employers,
government delegates, and ILO professional staff. During the worldwide economic
depression of the 1930s the ILO sought ways to combat widespread unemployment.[3]
WHAT IS THE NEED FOR INTERNATIONAL
LABOR STANDARDS?
In the declaration of Philadelphia it
was mentioned that ‘labor is not a commodity’.[4]
Every person in the world deserves a free and fair environment of work, no
person should be denied of their human rights and no person can exert their
dominance on workers. Thus, the need of a legislation that addresses just the
concern of the labor force but nothing else is mandatory to the society. People
who are discriminated in a work force or those who are treated with prejudice
are protected and their right to work is granted with in this situation.
RELATIONSHIP BETWEEN INTERNATIONAL
LAWS
AND LABOR LAWS
Human rights law
It is important for the workers to be
protected at any cost. Several laws such as the human rights laws ensure than
the workers are always kept at utmost importance because workers are human
beings who are in need for treatment with dignity and respect, therefore, human
rights law has evolved tremendously and has played a pivotal role in ensuring
the success in ensuring the labor standards and vice-versa. The nexus between
labor laws and human rights laws can connected with the fact that they both are
dependent on factors such as right to freely practice any job of interest
without compulsion, right to be protected from arbitrary dismissal, right to
strike, right to be represented by a trade union. The human rights and the
labor laws intersect at the point of consideration and humane treatment of
workers. Moving on with the particulars of the rights there are several of them
which leads to the sustenance of both the laws. Universal Declaration of Human
Rights (UDHR) is the primary body which deals with labor laws. The UDHR has
several provisions that links them to labor laws and were developed as a result
of ILO-
1)
Article 4 of UDHR deals with the prohibition of slavery of
workers. Slavery has been prevalent in the system since time immemorial. It has
been built in the DNA of our countries. The hierarchal disposition of people is
the primary reason why slavery still prevails and why our economy is badly
affected. If for example in India, had there been no labor laws to govern the
treatment of workers, the practice would still prevailed causing harm to the
economy in general.
2)
Article 23 deals with the right of a person to carry out any job
of their choice, right to equal remuneration, guaranteed right to dignity and
freedom. This also includes forced labor. No worker can be forced to undertake
a work that he/she does not deem fit. The workers are supposed to be treated
with respect and dignity and when there is a hindrance to it there has to be
mechanisms which can curb the impact of such treatment of the workers.
Although, there is a lack of concrete legislation marking the same, there is a
dire need for the workers to be kept within the safe-keep of the
legislation.
3)
Article 24 deals with the right to a worker to relax and leisure
and other allowances such as holidays and leaves etc. This can be explained in
this way. For example, if there is a difficulty in the nature of the works
itself like in mining or factories we have to ensure that there are ways for
the workers to take adequate intervals of break. The nature of the work can
prove detrimental to the workers due to continuous hours of shift for the
workers. Therefore, it is important for the workers to be given adequate time
for lunch breaks etc.
4)
Article 6 and 7 deals with one of the most essential rights of
workers. That is right to favorable conditions of work.
5)
Article 11 of the CDEW talks about the prohibition of
discrimination of women at the workplace.
6)
Article 32 of the CRC talks about the abolition of the rights of
the children when they are subjected to inhumane conditions of works.
Thus it can be inferred
from the above points that not just the UDHR which enumerates the rights of the
workers but various other legislations as well.
USA
Mentioning about other legislations
here are few others which talk about the aspect of human rights in the labor
legislations which are taken regionally. Articles and 7 of the San Salvador is
a system which rightfully states the conditions of just, equitable and
satisfactory conditions of work and how it is to be preserved. Apart from the
ILO there are other separate legislations in America which ensures the security
of workers. The democratic charter of America ensures that there is ‘free and
fair exercise of rights’ by the workers. This is an inter-governmental body
which is primarily aimed at ensuring the statutory validity of the labor laws
and the judicial interpretation of the same.
Europe
The essential conditions that should
be ensured for the working of the European labor system is enshrined within the European
charter in the articles 1, 2 and 3. These articles talk about the collective
right to work, right to just and humane conditions, right to remuneration and
right to collective bargaining. An important factor to be mentioned is that
these rights are supposed to be ensured in a free and fair manner and they
indirectly mean that all sorts of workers such as workers with disability,
workers who have different origin, state and other factors. Thus, it can be
concluded that various workers are included within the purview and none of the
factors pertaining to discrimination of a person such as color, race and place
of origin should not be treated within the purview of this legislation.
Labor is not a commodity or anything
which can be used when in need, it is a factor sustaining the economy in varied
ways and an important backbone of the system which is to be protected and
looked after. The ILO has several conventions pertaining to various
discrimination practices which are prevalent within the workforce such as 100
laws concerning equal remuneration, 111 regarding discrimination, 142 on human
resource development, 29 concerning forced labor, 182 regarding the abolition
of the practice of child labor, 98 concerning freedom of associations and
several other rights relating to the worker’s freedom etc. These laws are to
ensure the effective implementation of all the human rights laws which are
existing and there is a need for an effective system as impartial as the ILO to
perform this. The right to work normally contains all the legal repercussions
such as a stringent environment which can enable the workers to co-relate the
stances by making sure that there shouldn’t be any over-utilization of services
that they can avail. It also means that the workers are supposed to understand
that the minimum services that they can avail are separate from the work and
should not interfere with their performance at work. For example, the citizens
of India are guaranteed of their right to freedom of speech and expression but
still there are reasonable restrictions for the same that ensures that there is
no over-utilization of these rights.[5]
There were several case laws which
were discussed to provide for a proper analysis of the human rights and labor
laws.
1)
Karakut V Austria[6]- This case has addressed
the question of discrimination of people at the workplace and how it can affect
the balance of the entire system. Therefore, it can be interpreted at
discrimination of the basis of race, caste or sex is strictly prohibited within
the workplace.
2)
The Netherlands Bwalya V Zambia[7]- mandatory age
requirement proves it effective for the welfare for both the children and the
work environment.
3)
Aduayom T. Diasso and Yawo S. Dobou v. Togo[8]- The responsibility of
placing that there is no discrimination against the workers and therefore,
there should not be hindrance to the rights of the workers.
Notwithstanding the fact that right
to strike or right to form associations or unions is a fundamental and
important for the workers at all costs but these laws are secondary to the
human rights law which pertains to the freedom of the workers and various other
aspects. Freedom to choose the place of work, freedom to find necessary
arrangements in the place of work etc are of prime importance but still the
very idea of the process are enshrined within the labor laws and the statute of
ILO. In the recent times, ILO prepared a list of labor rights as human rights- Declaration
of fundamental rights and rights at work was formulated in the year 1998. It
enabled all the member states of ILO to include all the principles of ILO into
their context such as freedom to form associations and unions, eradication of
child labor, eradication of forced labor, eradication of discrimination of the
workers. Thus, these four rights were regarded as the most important rights or
the core rights which forms the basis of human rights law.[9]
Laws against racial discrimination
As mentioned before, the declaration
of Philadelphia mentions the prohibition of racial discrimination of the
workers. Though, UDHR mentions about discrimination in a very brief manner it
did not necessary answer all the specific details pertaining to the question of
racial discrimination in the system. It is to be noted that there are several
factors which are supposed to be explored with regard to this aspect. Racism is
built in the foundation of several countries; years of fighting for justice and
freedom are still leaving so many questions unanswered. The OCHR is one of the
conventions linked to ILO which deals with the question of this type of
discrimination.
OHCHR (Officer for high commissioner
for human rights)
1)
Article 1, deals with discrimination on the bases of race. No
worker shall be discriminated based on color, race, ethnicity etc. This
provision is to be taken with higher regard as they are prevalent in today’s
society. For further clarification, discrimination in this article includes
discrimination-
a)
Or separation on anything based on caste, religion, beliefs or any
individual identity of that person.
b)
If such separation allegedly tampers with the integrity of the
person, then he/she can consult the necessary authorities in dealing with the
person.
c)
Any separation on the basis of anything for the purposes of work
and not based on any individual identity of the person would not be regarded as
discrimination.
2)
Article 2 talks about the declaration that each of the states who
are party to this convention shall undertake, that they do not support any sort
of discrimination or any other conduct which offends the sentiments of any
ethnic group of people. The national declaration of this act can lead to its
success because implementations promoted just in the global level cannot make a
significant impact until and unless there is a requisite national legislation which
is governed by the same principles in each of the different states.
3)
Article 4 of this act suggests that any person who reasonably
suspects of any racial discrimination will have to file a complaint and he/she
even has the right to appeal in case of such act if that prevails.
4)
Article 5 of this act states that all the people will be entitled
to equal rights and opportunities irrespective of their origin or ethnicity.
All the rights pertaining to normal fundamental rights of a citizen are
enshrined otherwise. If any person not limited to the vulnerable class of
people is subjected to any form of discrimination, the only way in which that
can be addressed can avail the option of consulting the committee members to
seek adequate redressal for the mental torture that person has undergone.
Therefore, labor laws are also included in them.[10]
5)
Article 6 every member who ratifies this convention shall take the
necessary steps to make to enforce the said provisions in their respective
states.
6)
Article 8 this convention shall be binding only on the existing
members of ILO. In case of any non-compliance the registrar will cancel all the
requisite undertaking in the name of that country.
7)
Article 13 of this states that a convention shall not be adopted
until and unless the necessary findings are sufficient enough to prove the need
of a new convention.
a)
The ratification by a new member shall involve the immediate
denunciation of the existing act subject to necessary changes.
b)
After the new convention comes to force there shall be effective
implementation of the same and its validity ceases to exist as soon the
ratified party enters and there shall be no further ratified members within
that particular convention.
8)
Article 14 of the conventions is equally assertive in its interpretation
and there cannot be any sort of misinterpretation of the conventions and there
is a strict rule of compliance of the same.[11]
Case laws pertaining to the discussion of racial
discrimination
1)
Home office (UK border agency) Essop V Naeem V Secretary for state
of justice[12]-
These were two cases
tried together within the context of labor law. The important factor to be
regarded within the ambit of the concept of racial discrimination is that USA
and UK is the hub of discrimination based on color or caste. In the home office
case there was a selection test which was necessary to be conducted for the
employment of the workers in the office. But there was a significant lack in
the number of black people or people from a different ethnicity. This proved
that any person who are not in a special class are still discriminated.
Similarly in the Naeem case, the pay for Muslim prison chaplain was paid more
than the Christian prison chaplains. These two cases were brought before the
Supreme Court and it involved the significant question of racism. The
authorities in both the cases did claim that the discrimination was indirect
and there was no direct implication of the same. However, the court in this
case claimed that such a status can involve so many questions and proposed for
a legal test to address this indirect discrimination. The basis of
discrimination cannot be based on the fact that it was ‘unintended’. This
factor cannot be regarded as a pivotal factor in dealing with discrimination
since the proof the same could be fabricated. Thus, it is essential to bring
the interpretation that the court just passed a test sufficient for adequate
representation of people in all walks of employment. Even though, it might seem
intentional and purely demeaning another factor that can be attributed to the
same would be considered as the flip side of the coin. Forcing of inculcation
of a particular mandate can amount to the unintentional hiring of people with
no requisite skills and sometimes in can amount to not having a strong
workforce.
2)
Taiwo V Olaigbe and Another; Onu V Akwiwu and Another[13],
this case concerns two Nigerian women who came to UK seeking jobs. The Taiwo
case involved a woman who was serving as a domestic house-keeper was brutally
attacked in the form of actual physical attacks like being slapped on, spat on
and being paid minimum wages. All these inculcated an actual sense of
disrespect to her as a person and there was utter disregard to her in the form
of violent physical torture. This cannot be regarded as an indirect torture
neither can it be regarded as a case of unintentional torture. Therefore, the
court in both the cases passed a legislative that lead to the criminal
prosecution of the employees. Since, it did not necessarily invoke any
provisions of the ILO; it cannot really be relied on any of the said provided.
Thus, discrimination of a person based on the person’s race and gender and
these people are always subjected to such unjust treatment because of the
vulnerability that is associated with them.[14]
UNCRC
UNCRC ensures that no child is
discriminated neither denied of any rights that they are entitled to. Thus, it
can be inferred that children who are forced for child labor also comes under
the ambit of this.[15]
Recognition of the rights of the rights of the children is important because of
several reasons. Children are the foundations stone upon which the entire
society is built upon, their education, their sustenance and most importantly
their happiness has to be of prime importance and in order to fulfill that we
should be informed of their rights too. The UNCR prohibits any sort of
discrimination against children and in order to ensure that we need a proper
governance system which ensures the dignity and freedom of children. Children
should not only be ensured of their rights but they have to be given all the
requirements pertaining to their age. Bombarding them with tasks is a mechanism
to prevent their growth and development. There shall be active participation of
local people. Individuals should grow the capacity to act towards a common
perception. They are supposed to think critically and creatively in taking
action. Every individual should recognize and enact to taking power for the
outcomes. A local person has a vital act to play as they are resourceful in
taking initiatives and finding solutions.[16]
Local individuals play a pivotal role
in ensuring that discrimination of children is abolished or prevented. In order
to ensure that there were several factors and mechanisms that can be ensured
and practiced at an individual level. This shall not lead to any sort of
development in the ILO regime but these can prove good to ensure the security
of the children.
Case laws pertaining to prevention of child labor
1)
In the case of Sheela Barse V UOI[17]- In this case, children
who were being subjected to work in factories, glass furnaces etc were supposed
to be immediately given all sorts of recourse mechanism and never be made to
work in factories again.
2)
MC Mehta V State of Tamil Nadu[18]- this was a landmark
judgment in the case of child rights because it involves numerous legislation
which were passed in order to prevent the abuse of children by letting them be
in factories or other unhygienic work environments and as part of it several surveys
were taken along with other necessary arrangements taken to prevent further
exploitation of children.
India is one among the few countries
to have a proper legislative system which protects the children from unjust
practices because the other legislations do not necessarily protect the
children or have a separate article governing them like in India which is
article 25 of the Indian constitution.[19]
SUGGESTIONS AND CONCLUSIONS
The foundation upon which the entire
labor legislation is built is adherence to other laws such as human rights
laws, rights pertaining to welfare of children etc. This is one of the reasons
why labor laws still prevail over other legislations. There are numerous
conventions and equivalent efforts being undertaken on a day-to-day basis just
to ensure human dignity and honor. There have been significant contributions by
the ILO in ensuring that the basic rights of human beings are not being
hindered with. While, the whole regime of ILO is governed by several other laws
such as the UDHR, UNRC and other laws. It is a pertinent fact that such kind of
interpretations can actually evolve and there is always room for development if
all of the laws are implemented and exercised effectively. Every other rule
mentioned in the ILO conventions are in furtherance to all the other
international laws such as the human rights laws, children’s rights laws etc.
These other laws have developed significantly because of the impact that ILO
has created on them. Complying with the norms of ILO has led to the steady
development of these laws and hence they play a significant role in ensuring
the key legislative system of the development of international law. The
important suggestion that can be incorporated into the legislations is a
mandatory guideline to follow the orders mentioned in the conventions which was
done in the case of UDHR. Thus, it can be inferred that all the legislative
systems are linked to one another.
[1] Labour
law (international), (September 10th
2020, 08:12 am)
[2] Werner Sengenberger, The International labour organization,(30th September
2020, 09:00 am) https://library.fes.de/pdf-files/iez/10279.pdf
[3] Karen Mingst, International Labour Organization, (30th September,
2020, 12:00 pm) https://www.britannica.com/topic/International-Labour-Organization
[4] The
benefits of International Labour Standards, (10th September
2020, 08:49 am)
[5] THE
RIGHTS RELATED TO LABOUR, (30th September 2020, 01:00 pm) http://www.humanrights.is/en/human-rights-education-project/human-rights-concepts-ideas-and-fora/substantive-human-rights/the-rights-related-to-labour#:~:text=Article%2023%20UDHR%20sets%20out,as%20periodic%20holidays%20with%20pay.
[6] Karakut V Austria, CCPR/C/74/D/965/2000
[7] The Netherlands Bwalya V Zambia, (429/90)
[8] Aduayom T. Diasso and Yawo S. Dobou v.
Togo, 422/1990, 423/1990
[9] Virginia Mantouvalou, Are Labour Rights Human Rights?(10th
September 2020, 10:18 am) https://www.researchgate.net/publication/256013033_Are_Labour_Rights_Human_Rights
[10] International
Convention on the Elimination of All Forms of Racial Discrimination, (10th
September 2020, 10:44 am)
[11] Discrimination
(Employment and Occupation) Convention, 1958, (30th September,
2020, 01:30 pm) https://www.ohchr.org/EN/ProfessionalInterest/Pages/EmploymentAndOccupation.aspx
[12] Home office (UK border agency) V Essop
and Naeem V Secretary for state of justice, [2017] UKSC 27
[13] Taiwo V Olaigbe and Another; Onu V Akwiwu
and Another [2016] UKSC 31 22 June 2016,
SC
[14] Case law on race discrimination, (30th
September 2020, 03:30 pm) https://www.cipd.co.uk/knowledge/fundamentals/emp-law/race-discrimination/cases
[15] Child
Labour, (10th September 2020, 10:53 am)
[16] Diva Rai, Judicial View on Child labour, (30th September 2020,
04:30 pm)
[17] Sheela Barse V UOI, JT 1986 136
[18] MC Mehta V State of Tamil Nadu, 1991 AIR
417
[19] Dushyant Chautala, Child Labour in India: A Judicial Perspective, (30th
September 2020, 05:00 pm) http://www.clraindia.org/view_post.php?article=child-labour-in-india-a-judicial-perspective#:~:text=In%20the%20case%20of%20Sheela,Mehta%20v.
Article Information
ROLE OF ILO IN THE DEVELOPMENT OF INTERNATIONAL LAW
Authors: SNEHA V. S
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/23
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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