Wednesday, August 6, 2008

Charnovitz on the ILO Convention on Freedom of Association and its Future in the United States

Charnovitz Steve Charnovitz (George Washington) has posted on SSRN his article in the American Journal of International Law: The ILO Convention on Freedom of Association and its Future in the United States.

Here is the abstract:    

This paper addresses the status of the international law convention on freedom of association in the United States. Although the United States supported the adoption of the Convention on Freedom of Association (#87) in the International Labour Organization in 1948, the U.S. government has not ratified that Convention. Instead, the Convention has sat on the shelf in the United States Senate since 1949, the longest unratified convention on the treaty calendar of the Senate Foreign Relations Committee.

The paper analyzes the disadvantages for the United States in failing to become a party to this important treaty. The paper notes that in 2007, the United States did move forward to support freedom of association as an international right by incorporating a commitment toward freedom of association in four free trade agreements involving Peru, Colombia, Panama, and South Korea. So far, only the Peru treaty has been approved by the U.S. Congress. As a result, U.S. conduct within the trading system is inconsistent than U.S. conduct in the labor regime. Oddly, U.S. government seems willing to make international commitments on freedom of association as part of a trade treaty, but not as part of a labor treaty. This is a counterintuitive result for those who see international organizations as being specialized and international law as being compartmentalized. The paper reflects on how this situation came about and makes suggestions for how the next Administration and the Congress might proceed to strengthen commitments to international law labor within the United States.

Two thoughts on this paper: I can almost hear my friend Dennis Nolan exclaim that the ILO and international labor law does not matter in the United States.  I tend to disagree and believe there is at least an indirect process of sharing between foreign and American labor and employment law.

The second thought is that with a potential Obama administration and a sizeable majority in the Senate, ILO Convention #87 may not be on the "yet-to-be-acted-on" list much longer. Anyway, here's hoping.


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You presume too much, Paul. Isn't that stereotyping?

Of course international law "matters" in the US --- more, in fact, than in many other countries. The more immediate question is which ILO conventions "matter" so much that the benefits of ratification outweigh the detriments. With regard to 87 specifically, the issue isn't freedom of association in general. The US already has widespread protections for association, not least of which is the First Amendment.

The difficulty in the labor context is not association per se. Any workers can join any organization that will have them. The ILO expects more --- not the freedom to associate, but specific collective bargaining rights. Reasonable people, including legislators, can disagree about many of those specifics. The issue involving possible ratification is whether a convention should supersede our normal lawmaking judgments on such matters.

There are good arguments for and against extending the Wagner Act to supervisors, for example. (The relevant parts of the Taft-Hartley legislative history are enlightening on that point.) Similarly, there are good arguments for and against public sector collective bargaining. State and federal legislatures have drawn lines after extended and often repeated debates. Those who think the lines are in the wrong places should make their arguments in the usual legislative process. If they convince Congress or state legislatures to change, fine. If they don't, tough luck.

From the ILO perspective, however, reasonable people can't differ. There is only one right answer. Anyone who disagrees is simply wrong. Once we were to ratify 87, therefore, all those annoying legislative issues --- federalism, economic consequences, productivity, and all the rest --- would disappear. You may think that making major domestic legislative changes through the treaty power is a good idea, but I'll place my money on the normal lawmaking process.

I look forward to reading Charnovitz's paper, but I'd be surprised to find that our failure to ratify 87 has cost us anything tangible, or that ratifying it would bring us any significant benefits. The excerpt you include is not promising, with its implicit equation of the labor protection provisions in our trade agreements with those of 87. It accuses the US of inconsistency in adopting the former but not the latter. In fact, the two categories are radically different, so adopting one does not logically require adopting the second. Nothing in the trade agreements' labor provisions, so far as I know (perhaps Lance Compa can enlighten us), requires any amendment of the NLRA or any federalization of public sector labor law. Convention 87, at least as interpreted by the ILO, would.

Posted by: Dennis Nolan | Aug 6, 2008 10:53:43 AM

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