The Right to Work: Linking Human Rights and Employment Policy

Article excerpt

Abstract:

This article outlines various explanations for singling out the right to work from the roster of human rights, and emphasizes the dilemmas associated with regulating the labour market as a barrier to the development of the right. It compares two frameworks that address these concerns from the contrasted perspectives of human rights and employment policy - namely, the General Comment of the Committee on Economic, Social and Cultural Rights, and the European Employment Strategy. While these approaches are not natural allies, they can complement each other and construct an institutional system guided by the right to work as a superordinate norm.

Work and human rights seem to be a perfect match. Such a relationship can be identified, albeit with some difficulty, in the context of the freedom of association (Macklem, 2005). Arguably, the broad list of labour standards contained in the Conventions and Recommendations of the International Labour Organization (ILO) is also related to human rights. The subject of work also appears in numerous international documents on human rights, as well as in state constitutions and regional instruments such as the European Social Charter. Together these examples seem to confirm an intuition about the centrality of work in the individual and collective experiences of people. Work is about income, about individual fulfilment, about the constitution of one's identity, about social inclusion (Arendt, 1958; Murphy, 1993; Phelps, 1997; Solow, 1998; Schultz, 2000; Beck, 2000; Muirhead, 2004). It surely should be recognized as belonging to the sphere of human rights.

Yet the implementation of the right to work is weak, almost non-existent. A few indirect examples can be found in some States, but none of them suggests a consistently solid agenda. Some practice of review has been established in various international forums, such as the ILO, the United Nations Committee on Economic, Social and Cultural Rights, and the Council of Europe. Beyond the freedom of association, however, there is hesitation - not to say outright criticism - about the inclusion of work in human rights, suggesting that work and human rights may be more alien to each other than one might expect.

A closer look reveals that although the spheres of labour and human rights are not foreign to each other, they do remain separate: slavery is more of a concern for human rights activists; fair wages, for trade unions. Discrimination in employment is a major concern for human rights groups, but from the point of view of actors engaged in collective bargaining it is sometimes seen as a constraint. Temporary work agencies and subcontracting arrangements that deny workers a sense of security are a matter for employment regulation but not really part of the human rights discourse. If there is any logic in this division of labour, it is not rooted in an analytical distinction of relevant content. As the definition of slavery is expanded, the borderline between various forms of servitude and subcontracting blur. When slavery is viewed as the denial of choice, it may encompass a broad list of labour market practices. When one takes into account the low wages paid in such arrangements, the absence of protection from dismissal, and the de facto barriers to workers' access to justice, the border between human rights and employment issues continues to dissolve. The over-representation of women, migrants, minorities, older persons and the young in atypical forms of employment is a further indication that human rights and employment issues are difficult to separate.

The distinction that has evolved between human rights and employment issues can perhaps best be explained from a sociological perspective. There is no internal contradiction between the two spheres, but they are not natural allies either. Despite the fact that both labour and human rights are considered to be on the "social side" of law, they have developed along separate paths and do not necessarily intersect. …