The Right to Strike or the Freedom to Strike: Can Either Interpretation Improve Working Conditions in China?
Nham, Mayoung, The George Washington International Law Review
"Citizens of the People's Republic of China have the right as well as the duty to work. . . . Work is a matter of honor for every citizen who is able to work."1 The Chinese Constitution describes work as a "matter of honor" for its citizens, but there is nothing honorable about the way many workers in China are treated. The plight of some Chinese workers is desperate-many work long hours, at low wages, and in sweatshop conditions.2 Although the language of Chinese labor laws provides similar protections for workers as in many industrialized nations,3 labor rights violations continue to occur on a frequent basis.4 The treatment of many Chinese workers rises beyond the level of a labor rights violation; they are also human rights violations. "Leaders of worker or peasant protests calling for worker rights can expect to be detained and sentenced to prison by the Communist Party. Those attempting to actually organize workers into trade unions independent of the [All-China Federation of Trade Unions] will be arrested and sentenced to prison, committed to an insane asylum, or even executed."5 Thus, Chinese workers are not only subjected to difficult working conditions, they are also punished if they try to speak out against these conditions.
Why do violations of workers' rights seem to be ignored or committed by the Chinese government? One reason may be that the Chinese government is more interested in maintaining low-cost labor in an effort to attract foreign direct investment than protecting the rights of workers.6 Professor Stephen Diamond argues that "[t]he globalization process that has done so much to integrate the Chinese economy into the world economy has only encouraged [the Chinese government to ignore workers' rights violations]."7 Toby Merchant argues that China's refusal to adopt the International Labor Organization's core convention of freedom of association has hindered the ability of workers to effectively organize in order to protect their rights.8 He further attributes the failure to enforce workers rights to the impotence of the All-China Federation of Trade Unions (ACFTU).9 While the absence of trade unions that are independent of government influence is an important reason behind why unions have failed to enforce Chinese labor laws, it is not the only cause.
This Note suggests that the key factor behind the lack of labor law enforcement and workers' rights violations in China is the failure to legally recognize and to protect strikes as a means for workers to fight for better working conditions. This Note begins by defining what activities constitute a "strike" in section I.A.1. In section I.A.2, two different interpretations of how to legally protect strikes are presented. The difference between these two interpretations of strikes, as either a right or a freedom, is illustrated by how strikes have been protected in France and in the United States. This Note then continues in section LB by exploring the labor situation in China. section LB. 1 discusses the right to strike in China and the role of the All-China Federation of Trade Unions. Then section I.B.2 provides background information about major economic and social reforms implemented by Deng Xiaoping, which led to China's rapid economic development in the latter part of the twentieth century. Finally, section I.B.3 explores how these changes have affected workers. In section II of this Note, there is an analysis of how working conditions in China could be improved by permitting workers to legally strike, whether recognizing a right to strike or a freedom to strike would be more feasible in China, and what problems are associated with both interpretations.
I. WORKERS ON STRIKE
A. What is a Strike?
The power to strike has been interpreted as an equalizing force in the relationship between an employer and his employees.10 "The economic strike against the employer is the ultimate weapon in labor's arsenal for achieving agreement upon its terms . …