International Labour Standards

1. International Labour Standards Influence on international human rights law And policy 2018

2. Three kinds of influence • ILS on the written law of human rights • On how the international system takes account of international (labour) law and other human rights law • On policies and programmes at national and international levels

3. On the written law • Basic: International standards began to be adopted systematically by ILO in 1919. • ILO adopted ‘hard law’ human rights instruments before UN and others had begun • Almost all ILO basic human rights instruments adopted by 1958 • First UN human rights convention adopted 1965 (except Supplementary Convention on Slavery 1956) • Much other human rights law based on – and quoted – existing ILO standards

4. Some dates • League of Nations Slavery Convention 1926 • ILO C29 – Forced Labour 1930 • ILO Declaration of Philadelphia 1944 • ILO C87 – Freedom of Association 1947 • Universal Declaration of Human Rights 1948 • ILO C98 - Collective Bargaining 1949 • ILO C100 – Equal Remuneration 1951 • UN Supplementary Convention on Slavery 1956 • ILO - Abolition of Forced Labour 1957 • ILO C107 – Indigenous Populations 1957 • ILO C111 – Equality 1958

5. ILO C97 Migrant Workers 1949 • UN CERD 1965 • UN 2 Covenants 1966 • ILO C138 Child Labour 1973 • ILO Migrant Workers (Supplementary) C143 1975 • UN CEDAW 1979 • UN Convention on the Rights of the Child 1989 • ILO Indigenous Peoples C169 1989 • UN Migrants 1990 • UNDRIP (Indigenous) 2007

6. Some language – a few examples • ILO C87 (1948)– Art. 2: Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation. • UN UNDHR (later in 1948) – Art. 23 (4): Everyone has the right to form and to join trade unions for the protection of his interests.

7. ILO C111, Art. 1 (1958): • 1. For the purpose of this Convention the term discrimination includes-- • (a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; • (b) such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employers' and workers' organisations, where such exist, and with other appropriate bodies. • UN CERD, Art. 1 (1965): • 1. In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. 

8. Covenant on Economic, Social and Cultural Rights Articles 6 to 10 are a summary of existing ILO standards: • Art. 6 – right to work • Art. 7 – just and favourable conditions of work • Safety and health • Hours of work • Living wage • Art. 8 – right to join trade unions • Art. 9 – Social security • Art. 10 - Maternity protection

9. Influence on international policies has taken longer • Financial institutions in particular have not wanted to admit human rights considerations as influence on fiscal policy. • Also ‘normal’ inter-agency rivalry, plus arrogance of money people. • And a reluctance by ‘human rights’ advocates to admit that human rights could happen outside the UN (sad but true).

10. Kinds of Development Institutions • Development-promotion bodies such as UN, United Nations Development Programme, ILO, UNESCO, UNICEF …. • International financial institutions (World Bank et al.) • The first have a commitment to human rights as such, the latter to human rights as a development tool. Two approaches often compatible, but not always.

11. Human rights based approach to development • Early work in UN system did not incorporate human rights into development. • But in the UN Programme for Reform launched in 1997, the Secretary-General called on all entities of the UN system to mainstream human rights into their various activities and programmes within the framework of their respective mandates.

12. In 2003 arrived at a common understanding among UN agencies: • 1. All programmes of development co-operation, policies and technical assistance should further the realisation of human rights as laid down in the Universal Declaration of Human Rights and other international human rights instruments. • 2. Human rights standards contained in, and principles derived from, the Universal Declaration of Human Rights and other international human rights instruments guide all development cooperation and programming in all sectors and in all phases of the programming process. • 3. Development cooperation contributes to the development of the capacities of ‘duty-bearers’ to meet their obligations and/or of ‘rights-holders’ to claim their rights.

13. In 2009 UN agencies established the UN Development Group Human Rights Mainstreaming Mechanism (UNDG- HRM) • In principle (not always in practice) all member agencies build human rights considerations into their assistance and other programmes. • A developing process …

14. Development Goals • Millennium Development Goals (2000) had no commitment to human rights - and in particular to labour - as necessary components of sustainable development. • The 2030 Agenda for Sustainable Development is full of human rights (including labour) – big change

15. International Financial Institutionsare different • Development banks • World Bank Group • IBRD • International Finance Corporation (IFC) • Inter-American Development Bank (IADB) • Asian Development Bank (AsDB) • Asian Infrastrucure Development Bank (AIIB) (since 2015) • African Development Bank (AfDB) • European Bank for Reconstruction and Development (EBRD) • International Monetary Fund (IMF)

16. What do IFIs do? • Lend or donate money for development • One of major (public) sources for development financing • Mostly to governments • But International Finance Corporation also lends to businesses (and similar in other Dev Banks) • Different clients depending on project – e.g., NGOs

17. IFI mandates • To contribute to economic development • Tend to be staffed by economists • Part of mandate is to avoid political situations – • Which many of them have interpreted over the years to mean that they were forbidden to consider human rights • Has also kept them on the margins of UN-system human rights discussions – e.g., on apartheid • But thereisevolution in some of them

18. From May 2017 blog on Asian Development Bank Website – by the General Counsel (not yet policy) • For over 40 years, multilateral development banks (MDBs) have wrestled with the role that human rights should play in their work. The factors impacting that debate have remained the same, but the world has changed. MDBs have transformed their core missions, and legal interpretations of the relevant clauses of their foundational charters have evolved. • MDBs are under increasing pressure to respond to calls for greater engagement in human rights. The issue is the extent to which human rights could and should be included in their core agendas. • The moral imperative of including human rights in development work gained prominence four decades ago. But it was only recently that economists concluded that the advancement of human rights also contributes to economic development. • MDBs, however, remain hesitant to include human rights among the key objectives of development, and continue to rely on traditional economic measures like trade, sector efficiencies, employment, income and capacity building. • The core mission of MDBs has evolved beyond their original mandate. The Sustainable Development Goals (SDGs) reflect the shift from infrastructure-related project loans to include the financing of “human development.”

19. Rights vs Economics • World Bank uneasy about committing to apply human rights. • Real conviction amongmany staff thathumanrights and economicdevelopment are not compatible, derivingfrom Charter. • So no commitment in WB (IBRD) to implementinghumanrights, including labour rights, thoughperhaps to takethemintoaccount..

20. World Bank Charter • Article IV, Section 10 : “Political Activity Prohibited. • The Bank and its officers shall not interfere in the political affairs of any member; nor shall they be influenced in their decisions by the political character of the member or members concerned. Only economic considerations shall be relevant to their decisions, and these considerations shall be weighed impartially in order to achieve the purposes stated in Article I.” • Article III, Section 5 (b) restricts political considerations in Bank financing: The Bank shall make arrangements to ensure that the proceeds of any loan are used only for the purposes for which the loan was granted, with due attention to considerations of economy and efficiency and without regard to political or other non-economic influences or considerations.

21. WB on humanrights • “The World Bank contributes to the realization of human rights in different areas, e.g., improving poor people's access to health, education, food and water; promoting the participation of indigenous peoples in decision-making and the accountability of governments to their citizens; supporting justice reforms, fighting corruption and increasing transparency of governments. • A program has been launched to develop a more informed view among Bank staff on how human rights relates to the Bank’s core work and mission of promoting economic growth and poverty reduction,”

22. World Bank web site • See the document issued by the former Senior Vice-President and General Counsel, Roberto Dañino, entitled "Legal Opinion on Human Rights and the Work of the World Bank", dated January 27, 2006. It indicates that human rights may constitute legitimate considerations for the Bank where they have economic ramifications or impacts, and it confirms the facilitative role the Bank may play in supporting its members fulfill their human rights obligations. • Appears to be the closest thing to a policy.

23. WB Social Protection Strategy 2012-2022 • Was on the WB web site in 2013, thenremoved.

24. Philip Alston, October 2015 The existing approach taken by the World Bank to human rights is incoherent, counterproductive and unsustainable. It is based on an out-dated legal analysis and shaped by deep misperceptions of what a human rights policy would require. In its operational policies in particular, the Bank treats human rights more like an infectious disease than universal values and obligations. For most purposes, the World Bank is a human rights-free zone.  These are harsh words, but unfortunately they are warranted.

25. But progress in International Finance Corporation of the WB Group • 1998 IFC policy (now revised): • Under this policy, IFC will not support projects that use Forced or Harmful Child Labor as defined below. Projects should comply with the national laws of the host countries, including those that protect core labor standards and related treaties ratified by the host countries.

26. Problems with such texts: • “Forced or harmful child labour” • What child labour is not harmful? • “as defined below” • Applying their own definition, and not what is in international standards • “comply with the national laws” • IFC took no responsibility unless a particular right already guaranteed in national law

27. IFC Performance Standards • Performance Standards first adopted 2006 • PS2: Labour standards conditions for loans to private sector • Conditions based on ILO standards on fundamental rights, termination of employment (retrenchment), safety and health

28. IFC reviewed the working of the PS. Findingsafter 3 years: • IFC considers the framework to be sound and effective. It does not hinder IFC's business and helps with risk management. • Recent annual client survey results show continued satisfaction with IFC on environmental and social matters. Clients did not find implementation to be excessively costly.

29. Review findings: Performance Standard 2 (Labor and Working Conditions) has been broadly appliedacross regions and sectors, though the requirements have been challenging for some clients,particularly in countries where enforcement of national laws is weak or where such laws donot exist. Requirements on collective bargaining and workers’ organizations, as well as supply chain issues have proved to be challenging. The issue of migrant workers, often hired indirectly through contractors, is another area of challenge for clients. Clarifications on working and living conditions of “nonemployee” workers might be needed. Moreover, in a time of economic crisis and shrinking labor market, the role of PS2 in the context of large-scale retrenchment should be considered.

30. New IFC Performance Standards came into force 2012 • Performance Standard 2: Labor and Working Conditions • ‘ …recognizes that the pursuit of economic growth through employment creation and income generation should be accompanied by protection of the fundamental rights of workers. .. through a constructive worker-management relationship, and by treating the workers fairly and providing them with safe and healthy working conditions, clients may create tangible benefits, such as enhancement of the efficiency and productivity of their operations. ‘

31. IFC PS 2 based on ILO standards, but does not relyentirely on them. • But itisbroadly in compliance

32. IFC Doing Business Report • Until 2009 ranked countries according to how “business friendly” they were. • “Employing workers” section had index of “Rigidity of Employment”. • 3 components: • “difficulty of hiring” • “rigidity of hours” • “difficulty of firing”.

33. Doing Business Changing • ILO pressure on World Bank on Doing Business, and pressure by global trade union federations. • ILO Governing Body Nov. 2008: ‘In September 2008, the World Bank launched its 2009 edition of Doing Business. Thereport introduces important changes that were specifically commented on by the ILO in direct exchanges with the World Bank responsible for the report.’ • Doing Business has evolved from the position that the less regulation the better, to pushing for balance regulation.

34. Has evolved: from 2017 Report – labour law now good (in moderation) • Regulation is essential for the efficient functioning of labor markets and worker protection. Labor market rules can also potentially have an impact on economic outcomes. Doing Business data show that rigid employment regulation is associated with higher levels of informality. By contrast, weak labor market rules can result in discrimination and poor treatment of workers. ƒ • The challenge for governments in developing labor policies is to strike the right balance between worker protection and flexibility. ƒ Regulation of labor markets differs significantly by income group. Low- and lower-middle-income economies tend to have stricter employment protection regulation than more developed economies. ƒ

35. One reason for more rigid employment protection legislation in low- and lower-middle-income economies is the lack of unemployment insurance. None of the low-income economies and only 23% of lower-middle-income economies have unemployment protection stipulated in the law. ƒ • Most economies do not have laws mandating gender nondiscrimination in hiring and equal remuneration for work of equal value. Such laws are most common in OECD high-income economies. ƒ • There is no blueprint for the optimal mix of employment protection rules. Regulation should be tailored to national circumstances and designed in collaboration with social partners.

36. And from 2018 report In recent years Doing Business has developed a more nuanced approach to its labor market indicators by expanding its methodological scope, going beyond the areas traditionally measured by the report. Historically, Doing Business measured flexibility in the regulation of employment as it relates to the hiring and redundancy of employees and the scheduling of working hours. However, several new components were added since Doing Business 2016, including the availability of at least five fully-paid days of sick leave a year, length of paid maternity leave, unemployment protection, gender nondiscrimination in hiring and equal remuneration for work of equal value. This methodological expansion stemmed from a collaborative dialogue with interested stakeholders and the International Labor Organization. The changes implemented were aimed at providing a more comprehensive measure by setting the right balance in labor market regulation. The Doing Business labor market indicators serve as an essential resource for academics, journalists, private sector researchers and others interested in labor market regulation.

37. Better Factories approach • In 2001 Better Factories Cambodia grew out of a trade agreement between the United States and Cambodia. Under the agreement the US promised Cambodia better access to US markets in exchange for improved working conditions in the garment sector (the only export). • The ILO was assigned task of ensuring compliance.

38. In 2007, the IFC and ILO began working together on a more global version: Better Work. • Aims to improve both compliance with labour standards and competitiveness in global supply chains. • Better Work supports enterprises in implementing the ILO core international labour standards and national labour law, and focuses on individual enterprises.

39. Compliance assessment in Better Work • Two categories of reference: • Core labour standards: The categories of international standards are those indicated in the ILO Declaration on Fundamental Principles and Rights at Work. • National labour law: Standards set in national legislation: compensation, contracts and human resources, health and safety at work and working time.

40. Standardized Procurement Guidelines: All IFIs • Since 2010, under pressure from trade unions in particular, all development banks now apply Procurement Guidelines for major infrastructure projects. • Apply only to large construction works, that cost more than $10 million. • This is around 35% of what the WB currently funds, but the figures for other development banks are not known.

41. section 6.21 on Child Labour:  • ‘The Contractor shall not employ children in a manner that is economically exploitative, or is likely to be hazardous, or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral, or social development. Where the relevant labour laws of the Country have provisions for employment of minors, the Contractor shall follow those laws applicable to the Contractor. Children below the age of 18 years shall not be employed in dangerous work.’

42. section 6.5:  • ‘The Contractor shall comply with all the relevant labour Laws applicable to the Contractor’s Personnel, including Laws relating to their employment, health, safety, welfare, immigration and emigration, and shall allow them all their legal rights. The Contractor shall require his employees to obey all applicable Laws, including those concerning safety at work.’

43. Regional Development Banks Asian Development Bank • Social Protection Strategy 2001 • Commits ADB to taking account of fundamental workers’ rights in all ADB operations • Core Labor Standards Handbook 2006 • But no practical implementation

44. Asian Infrastructure Investment Bank • New actor (2015), not yet into implementation stage. • Statement on Environmental and Social Framework: • 15. Treatment of Labor. The Bank recognizes the important role played by workers and their representatives in the development process and their contribution to sustainable economic growth. It believes that the following measures contribute to the quality of the Project: providing workers with living wages, safe and healthy working conditions and putting measures in place to prevent accidents, injuries and disease; avoiding activities involving forced labor and harmful or exploitative forms of child labor; having good human resources management; and having a sound labor management relationship based on equal opportunity, fair treatment, non-discrimination, freedom of association, right to collective bargaining and access to grievance mechanisms, consistent with the national law (including international agreements adopted by the member) governing the Project.

45. European Bank (EBRD) Environmental Policy 2003: • “In line with its mandate to promote environmentally sound and sustainable development, the term “environment” is used in this Policy in a broad sense to incorporate not only ecological aspects but also worker protection issues …” • Was revised to “catch up” with IFC and add labour rights.

46. EBRD Social Policy 2008 • EBRD will seek to support, though its operations, the initiatives of other institutions such as the ILO and the EU to promote the decent work agenda. At a minimum, the client’s human resources policies, procedures and standards shall be designed to: • • Establish and maintain a sound worker-management relationship; • • Promote the fair treatment, non-discrimination and equal opportunity of workers; • • Promote compliance with any collective agreements to which the client is a party, national labour and employment laws, and the fundamental principles and key regulatory standards embodied in the ILO conventions that are central to this relationship1; • • Protect and promote the health of workers, especially by promoting safe and healthy working conditions.

47. 7. Projects are required to comply, at a minimum, with: • national labour, social security and occupational health and safety laws, and the principles and standards embodied in the ILO conventions related to: • a) the abolition of child labour; • b) the elimination of forced labour; • c) the elimination of non-discrimination related to employment; • d) the freedom of association and collective bargaining.

48. The Inter-American Development Bank • In February 2006 the IADB adopted guidelines on “Managing Labor Issues In Infrastructure Projects”, applicable to the private sector, that include extensive references to ILO standards. • No overall policy located.

49. Inter-American Investment Corporation • ‘The Corporation will not invest in projects that use Forced Labor or Harmful Child Labor practices. Projects should comply with national laws of the host countries, including those that protect core labor standards2 and related treaties ratified by said countries. • "Forced Labor" consists of all work or service, not voluntarily performed, that is extracted from an individual under threat of force or penalty. • "Harmful Child Labor" consists of the employment of children that is economically exploitive, or is likely to be hazardous to, or interfere with the child’s education, or to be harmful to the child’s health, or physical, mental, spiritual, or social development.’

50. Bilateral finance –EquatorPrinciples • A financial industry benchmark for private banks to manage social & environmental risk in project financing. • Updated in accordance with IFC principles 2006, revised 2013.