Ruminations on the Past, Present and Future of International Labor Standards: Empowering Law in the Brave New Economic World

I. Introduction

International labor standards are among the oldest international standards pertaining to the conduct of private, as well as public, economic actors. They long predate the post-World War II body of international human rights instruments. The International Labour Organization (ILO), the international organization under whose auspices most international labor standards have been promulgated, dates back to 1919 and the era of the League of Nations.¹

Far from being settled, however, nearly every aspect of the current international labor standards regime is in flux: the role of labor standards in the international legal, economic, political, and social order, as well as in the parallel domestic orders; the modes by which standards are brought into being; the manner and means of their implementation and enforcement; the degree to which they may be binding solely on nation-state parties, and enforceable only at their behest; and the extent to which private actors, such as employer associations, trade union associations, worker rights non-governmental organizations (NGOs), and individuals, play roles in the creation and enforcement of international labor norms. Although the substantive content of international labor standards is changing at a far less blistering pace, important alterations in priorities for these standards also gradually are becoming manifest. Predicting the future of international labor standards in such a dramatically shifting environment may be a sufficiently hazardous occupation to itself require a protective labor standard.

Needless to say, these developments are not happening in a vacuum. They should be placed in the surrounding context of similar changes in the overall international legal order. The changes in standard setting, implementation and enforcement as to international labor measures are part and parcel of the rapidly shifting landscape for adoption and implementation of international instruments of all types.

The international legal regime changes are in turn influenced by and in their turn influence the massive technological change of the past few decades; accelerating economic integration and globalization; vastly expanded cross-border mobility of goods, services, direct investment capital, portfolio capital, and people; and intensified international competition in the markets for goods, services, capital and labor. The international political landscape also provides a moving target, interacting with these economic and legal factors. Varying degrees of regional political integration are shifting the locus of political authority upwards, particularly within Europe. Simultaneously, contradictory, albeit spotty pressures toward political disintegration are occurring, variously including downward devolution of authority in countries such as the United Kingdom, and threatened break-up into sub-units of nation-states composed of historically distinct ethnic or linguistic populations, including the former Yugoslavia, Spain, Belgium, and Canada. In the developing world, some nation-states are dissolving into tribal warfare or anarchy.

The international labor standards field stands at the intersection, buffeted by cross-cutting pressures, a part of, yet distinct from these developments. It is uniquely economic and social simultaneously, with aspects of human rights and trade and economic law. Labor is, after all, a factor of production, yet not a commodity; in this, the American Clayton Act of 1914² and the ILO Declaration of Philadelphia of 1944³ are in accord. Unlike typical "first generation" international human rights—civil and political rights which involve claims of individuals as against governmental action—labor rights involve claims related to conduct of private employers as well as the state. They thus pose unique problems as to implementation and enforcement. Norms set by international labor standards effectively must be transmitted through at least two layers of policy-making to reach their aim of affecting workplace conditions: first, the nation-state legal and regulatory level, and second, the employer or collective bargaining labor practice-setting level.⁴

At the same time, labor rights are quite distinct from typical "second generation" human rights—economic and social rights such as the right to health care, education, social welfare provision, or retirement income security. Second generation rights pose special issues because they involve affirmative claims upon nation-state treasuries. Labor rights, on the other hand, entail governmental budgetary allocation only to the extent of governmental labor inspectorate or enforcement...