Social Sustainability and Future Regulation of Work

The Horizon 2020-funded SMART project has sought to bring sustainability into a wide range of areas, including those where it was largely overlooked, like the labour market. This journey started with a conversation with two other SMART scholars, Beate Sjåfjell and Clair Gammage, at an event in Oslo back in 2017. The result was a workshop held in June 2018 generously hosted by the Max Planck Institute for Comparative Public Law at Heidelberg on ‘Transnational Labour Law in an Era of Rising Nationalism: A New Role of Public Institutions for Sustainable Market Practices?’ This seminar was also supported by the German Research Foundation (DFG), SMART,  and the University of Bristol.

A special issue for the ILO centenary

Thought-provoking presentations and exciting debates at the seminar led to publication in April 2020 of a special issue of the International Organizations Law Review on ‘International Institutions, Public Governance and Future Regulation of Work: Taking Stock at the International Labour Organization’s Centenary’. This collection of articles takes the ILO centenary celebrations as an occasion to examine issues of international labour governance and governance from a variety of perspectives, and in various spheres, including prominent labour lawyers, international lawyers and public lawyers. In particular, the special issue considers new challenges, including changes to the nature of work, but also trends in trade around global value chains and emergent associated forms of migration, alongside political shifts towards nationalism. Contributions to the special issue highlight the issue of justice between states, with different degrees of wealth and influence, in the so-called Global North and Global South. They take also into account the changing geopolitical context, in particular the shifting power relations between the USA and China. In the issue, the contributors seek to fathom how public and private labour governance instruments at both the domestic and the international level interrelate, thereby contributing to our understanding of transnational labour governance.

A Polanyian perspective on the ILO

The first article in this special issue deploys a Polanyian analysis to assist in investigating the ILO’s past operations and predicting what might be the Organization’s future orientation. Tonia Novitz points to the ways in which the three pillars of sustainability (environmental, social and economic), manifested in the 2015 United Nations (UN) General Assembly Resolution Transforming our world: the 2030 Agenda for Sustainable Development[1] can be mapped onto Polanyi’s three fictitious commodities (land, labour and money) to the extent that labour can be understood as emblematic of social concerns. She argues that the ILO continues to offer a corrective to the more market-driven positions by other international institutions regarding the future of work, but that ‘the ILO’s recent history, punctuated by constitutional instruments which reflect repeated resistance to economic injustice and societal destruction, also exposes the failure of global economic governance to promote and engage representative and participatory voice’.

Transnational aspects of labour governance

Janelle Diller then considers the State´s role in relation to several transnational labour governance mechanisms (public and private) and reflects on the challenges that reduce the effectiveness of these initiatives for bringing about labour standards improvements on the ground. Her analysis is complemented by that of Henner Gött who reviews dynamics between the ILO and four other international institutions to ‘extrapolate[ ] these interactions’ variety, impact and normative ambivalence’ and to lay out a research agenda for a systematic analysis of such interactions in labour governance and beyond.

International economic institutions and labour standards

Continuing on the theme of influence exercised by international institutions beyond the ILO, Franz Christian Ebert analyses how the IMF performs labour governance through its Article IV Consultations. He argues that this mechanism has sometimes fostered far-reaching (and problematic) labour law reforms and explores ways to strengthen its legal framework to address relevant legitimacy issues. Ebert suggests that this would involve framing the IMF’s Article IV consultations in terms of substantive requirements, including those reflected in the UN Sustainable Development Principles, as well as procedural requirements, revolving around the principles of transparency, participation, and review, among others.

By way of contrast, Gabriele Buchholtz offers a more positive narrative of international economic institutions’ role in promoting labour standards, exploring the potential of the implementation mechanisms of the OECD’s Multinational Enterprise Guidelines for protecting labour standards. She explores the potential of external enforcement mechanisms, notably in the area of public procurement, to increase their effectiveness.

Enhancing the implementation of ILO standards

Efficacy of ILO standards might indeed be realized by their dissemination in other contexts, beyond international organizations, although the risk remains that, without the institutional weight of the ILO behind them, such standards may then be undermined rather than enhanced. This is the note of caution sounded by Joo-Cheong Tham and Keith Ewing. They observe the significant increase of provisions dealing with labour standards in trade agreements, but doubt that these labour provisions will actually enhance protections for workers. Focusing on the ‘Labour’ chapter of the Comprehensive Progressive Trans-Pacific Partnership (CPTPP), they argue that this amounts to ‘mutually assured non-compliance’ and identify ways to go beyond what they consider ‘faux regulation’.

Reingard Zimmer examines recent developments in transnational private labour governance, reviewing the Bangladesh Accord and the Indonesian Freedom of Association Protocol. She argues that these can be seen as a new species of International Framework Agreements (IFAs) or, as they are commonly also known now, Global Framework Agreements, and can provide an important impulse for transnational collective bargaining. Petra Herzfeld Olsson analyses the extent to which ‘the monitoring bodies of the relevant ILO and UN conventions related to labour migration demand for effective monitoring and enforcement of the equal treatment principle in their comments to the state parties’. She also considers the scope of ILO influence in this regard. Finally, Antonio Garcia-Muñoz Alhambra, Beryl Ter Haar and Attila Kun explore options for integrating a transnational labour inspectorate addressing certain activities of multinational enterprises into the International Labour Organization’s institutional framework.

Outlook

Our joint aim as editors and authors of this special issue has been to contribute to a rapprochement between public international law and labour law discourses, which often unfold in relative isolation from each other.  We consider to what extent we can and should be seeking to unify the varieties of forms of public governance at play on the global stage and, if so, how such unification should be brought about. Is the fragmentation of transnational labour governance only detrimental for the protection of labour standards or could it turn out to be advantageous in certain respects? We acknowledge that these are very different questions to those that were being asked in 1919, and such questions may not easily be answered one century later. However, we suspect that they are likely to dominate the years ahead.   

Note: This blog is based on the authors’ introduction to this special issues, available at: https://brill.com/view/journals/iolr/17/1/article-p1_1.xml.