The Development in International Law of Articles 23 and 24 of the Universal Declaration of Human Rights: The Labor Rights Articles

158 Pages·2014·0.8 MB·English

by  Lee Swepston

The Development in International Law of Articles 23 and 24 of the
Universal Declaration of Human Rights: The Labor Rights Articles
The Universal Declaration of
Human Rights
Series Editor
Professor Hurst Hannum
Human rights law has developed from the modest “common standard of achievement
for all peoples and all nations,” proclaimed by the Universal Declaration of Human
Rights in 1948, to a complex and rich substantive tapestry of international and national
law. The provisions of the Universal Declaration have been codified and interpreted by
a growing number of international bodies, most significantly by the committees created
to oversee the International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights, each of which has over 140 state par-
ties. In addition, the Declaration has served as a model for national constitutions and
statutes, many specifically designed to reflect the Declaration’s provisions.
Inspired by the fiftieth anniversary of the Declaration, the Universal Declaration of
Human Rights Series analyzes the development of the Declaration’s norms and their
status in contemporary international law. The Series consists of approximately
20 volumes, each dealing with a substantive right (or group of rights) set forth in
the Universal Declaration of Human Rights. Each volume is authored by an expert in
human rights generally and in the particular subject addressed. Each book provides a
comprehensive, legally-oriented analysis of the rights concerned, understood within
the political context in which implementation of human rights must occur. The issues
addressed include an examination of the legislative history of each right at the
time of its adoption, the right’s subsequent articulation and interpretation by interna-
tional bodies and in subsequent international instruments, and, where feasible, a sur-
vey of state practice in defining and enforcing the right. When completed, the Series
will constitute an encyclopaedic guide to the content of universally recognized human
rights in the twenty-first century.
VOLUME 5
The titles published in this series are listed at brill.com/udhr
The Development in International
Law of Articles 23 and 24
of the Universal Declaration
of Human Rights:
The Labor Rights Articles
By
Lee Swepston
LEIDEN | BOSTON
Library of Congress Cataloging-in-Publication Data
Swepston, Lee, author.
 The development in international law of Articles 23 and 24 of the Universal Declaration of Human
Rights : the labor rights articles / by Lee Swepston.
  pages cm. — (The Universal Declaration of Human Rights ; volume 5)
 Includes bibliographical references.
 ISBN 978-90-04-24454-2 (hardback : alk. paper) — ISBN 978-90-04-24455-9 (e-book) 1. Labor laws and
legislation, International. 2. United Nations. General Assembly. Universal Declaration of Human Rights.
I. Title.
 K1705.S925 2014
 344.01’01—dc23
2014007716
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isbn 978 90 04 24454 2 (hardback)
isbn 978 90 04 24455 9 (e-book)
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Contents
The Text of Articles 23 and 24  1
Introduction  2
A Note on the Impact of International Standards and
Supervision  3
1 Institutional Development of International Labor Law—
An Overview of Institutions and Instruments  7
A The International Labor Organization  7
B The United Nations  14
C International Financial Institutions  18
D Regional Organizations  22
E Trade Agreements and Labor Standards  26
2 Implementation of the Provisions of the Universal Declaration  29
Article 23  29
A Everyone has the Right to Work . . .  30
B Everyone has the Right to . . . Free Choice of Employment  40
C Everyone has the Right to . . . . Just and Favourable Conditions
of Work . . .  72
D Everyone has the Right to . . . . Protection Against
Unemployment  78
E Everyone, Without any Discrimination, has the Right to Equal
Pay for Equal Work  83
F Everyone Who Works has the Right to Just and Favourable
Remuneration  102
G Everyone has the Right to Form and to Join Trade Unions for the
Protection of His Interests  113
Article 24  132
3 Concluding Remarks  141
Bibliography  144
Index  146

The Text of Articles 23 and 24
Articles 23 and 24 of the Universal Declaration of Human Rights
Rights at Work
Article 23
(1) Everyone has the right to work, to free choice of employment, to just and
favourable conditions of work and to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for equal
work.
(3) Everyone who works has the right to just and favourable remuneration
ensuring for himself and his family an existence worthy of human dig-
nity, and supplemented, if necessary, by other means of social protection.
(4) Everyone has the right to form and to join trade unions for the protection
of his interests.
Article 24
Everyone has the right to rest and leisure, including reasonable limitation of
working hours and periodic holidays with pay.
© koninklijke brill nv, leiden, ���4 | doi ��.��63/9789004�44559_���
Introduction
The human rights enunciated in these two articles of the UDHR concern
aspects of rights related to work. This part of international human rights law is
often neglected in human rights textbooks and teaching, and indeed is often
omitted from the work done by national human rights institutes and by non-
governmental organizations concerned with human rights, as though it were a
separate discipline that did not fall properly into the human rights field. This is
a commonly held, but erroneous, misconception based on three factors,
The first is the politically-driven division of human rights into civil and
political rights (CP) on the one hand, and economic, social and cultural rights
(ESC) on the other. This was founded in the ideological conflicts of the Cold
War, and consolidated by the adoption of the two major—but separate—
human rights Covenants in 1966. There were superficially credible reasons for
the distinctions drawn between these so-called categories of rights, based in
the emphasis given to one or other set by the ‘East’ and ‘West’ because each
side privileged one category of rights over the other. The ‘West’ took the posi-
tion that economic, social and cultural rights would flow from political free-
doms, while the ‘East’—unwilling to accord civil and political liberties to their
citizens—took the position that it was most important to ensure economic
stability and wellbeing before venturing into the dangerous waters of
democracy.
The second, though related, reason is based in the Western notion of indi-
vidual rights being the only ones that can properly be called human rights.
Collective rights—which are characteristic of many ESC rights—cannot in
this view properly be called human rights. This is still today the more or less
official position of the United States, the United Kingdom and a few others in
international discussions. Another aspect of this same question is the notion
that ESC rights could not be achieved without economic development, while
CP rights are accessible for every nation without financial cost—another
flawed assumption, discussed in more detail below.
Finally, there is the more prosaic reason that United Nations human rights
bodies (except the Committee on Economic, Social and Cultural Rights) have
traditionally focused on civil and political rights, in part because of the exist-
ence of the International Labor Organization (ILO) and other organizations,
such as the United Nations Educational, Scientific and Cultural Organization
(UNESCO), whose mandates cover many of the ESC rights; combined with the
long abstention of the ILO from asserting itself as a human rights organization
© koninklijke brill nv, leiden, ���4 | doi ��.��63/9789004�44559_��3
Introduction 3
and from taking an active part in the UN Commission on Human Rights (later
the Human Rights Council) and related bodies.
There is also an under-analyzed factor, which is that national representation
in the parts of the UN system dealing with human rights has normally been
assured by ministries of foreign affairs, and not by national ministries that
actually deal with economic, social and cultural rights. Foreign ministries have
a tendency to act in a defensive posture to ensure that they are not branded as
violating human rights, as well as the political imperative of maintaining good
relations with other States.
The first three of these factors began to fade away with the end of the Cold
War. One major contributing factor to the reunification of human rights as an
integrated discipline was the series of major conferences convened by the UN
in the 1990s, with for our purposes the World Conference on Human Rights
held in Vienna in 1993 being the main precipitating event. The World
Conference affirmed1 that:
5. All human rights are universal, indivisible and interdependent and inter-
related. The international community must treat human rights globally in a
fair and equal manner, on the same footing, and with the same emphasis.
This was a major contribution to the equal treatment of ESC rights, which has
progressed steadily since then. Nevertheless, both national and international
human rights bodies tend, in general, to regard economic, social and cultural
rights as less important, less urgent and less newsworthy that civil and political
rights.
A Note on the Impact of International Standards and Supervision
The standards adopted at the international level have an impact at the national
level, but that impact varies by kind of standard, the quality of supervision,
and national circumstances. So, while a global evaluation of impact is hard to
make, the factors governing the kind of impact can be spelled out.
Economic, social and cultural rights are sometimes thought to demand
more expensive and difficult implementation measures than do civil and polit-
ical rights, and therefore are said to be less simple to implement. This is too
1 Vienna Declaration and Programme of Action, adopted by the World Conference on Human
Rights in Vienna on 25 June 1993, paragraph 5.