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Chapter 1
International Labour Law and Human Rights
A. The League of Nations, the United Nations and Labour Law
The League of Nations left questions relating to labour to its partner the ILO in the period from the
creation of the League and the ILO in 1919, until the League collapsed in 1939. The architecture
envisaged by the Allied powers for the United Nations after World War II contemplated a much stronger
and more diverse international system, based largely on the concept of human rights. The International
Labour Organization was the only part of the League of Nations structure that survived World War II,
and it became a specialized agency of the UN system in 1945. When the United Nations came into
existence in 1945, it immediately began to draft what would become the Universal Declaration of
Human Rights (UDHR), which was adopted in 1948. This Declaration is a wide-ranging exploration of
what a rights-based world should be. The entire project was a radical departure from the approach of
the League of Nations, which had deliberately avoided a human rights discourse. As a recent work on
the history of the ILO noted:
The commitment of international organizations to the international human rights
movement is largely a post-Second World War phenomenon. The Covenant of the
League of Nations did not contain the commitment to human rights that is found in
the United Nations Charter. And the word “right” used in the Treaty of Versailles
refers almost entirely to territorial and other sovereign rights of states, the only
exception being a reference to the right of workers and employers to organize in the
chapter of the Treaty which established the ILO . Certainly there was no deficit of
rights notions available, including the French Declaration of the Rights of Man of
1789, and the 1776 United States Declaration of Independence and its Constitution.
The drafters of the Covenant of the League of Nations had lengthy discussions on
whether to include references to other categories of rights, including women’s
rights and minority rights, but they decided that the political risks of doing so were
too high. 1
Quest, op cit., pp. 38 and 39. See also D. Bromley: Human rights and the League of Nations: How ideas about
human rights came to be included in the Charter and work of the League of Nations, paper prepared for the annual
meeting of the Western Political Science Association, San Diego, CA , 20 Mar. 2008. See also
R. Normand and S. Zaidi: Human rights at the UN: The political history of universal justice (Bloomington,
Indiana University Press, 2007), United Nations Intellectual History Project Series, available at: http://
www.unhistory.org
1
Even though the UDHR was initially dismissed as being ineffectual and weak, over time it exerted an
enormous influence on thinking, and today is considered the basic human rights document in the
international system. Articles 23 and 24 of the Universal Declaration made very broad statements about
rights at work, and other aspects related to work were found elsewhere in the UDHR.
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 dignity, 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.
While these are the main ‘labour’ articles, others also cover rights relevant to the world of work and
protected by ILO standards:
Article 4
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited
in all their forms.
Article 7
All are equal before the law and are entitled without any discrimination to equal protection
of the law. All are entitled to equal protection against any discrimination in violation of
this Declaration and against any incitement to such discrimination
Article 22
Everyone, as a member of society, has the right to social security and is entitled to
realization, through national effort and international co-operation and in accordance with
the organization and resources of each State, of the economic, social and cultural rights
indispensable for his dignity and the free development of his personality.
Article 25
1. Everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing and medical
care and necessary social services, and the right to security in the event of
unemployment, sickness, disability, widowhood, old age or other lack of
livelihood in circumstances beyond his control.
2. Motherhood and childhood are entitled to special care and assistance. All children,
whether born in or out of wedlock, shall enjoy the same social protection.
Article 26
1. Everyone has the right to education. Education shall be free, at least in the
elementary and fundamental stages. Elementary education shall be compulsory.
Technical and professional education shall be made generally available and higher
education shall be equally accessible to all on the basis of merit.
The ILO had already adopted a number of standards before the adoption of the UDHR on such subjects
as safety and health, social security and minimum age for work, even if they were not framed as human
rights standards. The UDHR articles quoted above did not cover all the work-related human rights
discourse that would develop from this point on - especially with regard to such subjects as forced
labour 2 and child labour 3 - but there is ample language in the Universal Declaration to allow them to be
developed as time went on. And bringing as broad a field as rights at work under the Declaration as it
did was a significant leap in imagination from earlier international approaches.
A recent book on articles 23 and 24 of the Universal Declaration introduces the subject as follows: 4
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 …
There are three basic factors in play.
2
Article 4 prohibited slavery and the slave trade, but not other forms of forced labour.
3
It is curious that the rights of children was not a subject for examination through a human rights lens until much
later. The ILO had already adopted a number of standards setting minimum ages and conditions of work for
children by 1948, though they had not been framed as human rights standards.
Swepston, The development in international law of Articles 23 and 24 of the Universal Declaration of
Human Rights: The Labor Rights articles (Brill, 2014).
4
The first is the artificial 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 was consolidated by the adoption of the two eparate human rights Covenants in 1966.
The distinctions drawn between these so-called categories of rights was based on the fact that the ‘East’
and ‘West’ each emphasized one category of rights over the other. The ‘West’ took the position that
economic, social and cultural rights would flow from political freedoms, 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 individual rights being the only ones
that can properly be called human rights. The considerations governing individual and collective rights
are explored below.
Finally, there is the more prosaic reason that some of the United Nations human rights bodies (with the
notable exception of the Committee on Economic, Social and Cultural Rights) until fairly recently
focused on civil and political rights, in part because of the existence 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. O this can be added
the long abstention of the ILO from asserting itself as a human rights organization and from taking an
active part in UN human rights bodies.
In addition, 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. The World Conference
on Human Rights held in Vienna in 1993 began this trend. The World Conference affirmed 5 that:
5. All human rights are universal, indivisible and interdependent and interrelated.
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.
A. The ILO and Human Rights
The claim of the ILO to be setting and defending human rights rests on two assumptions. The
simpler is that the United Nations and other include the subjects witin the ILO’s mandate as
human rights, as will be seen below. The second is that the ILO protects human rights in a direct
way.
5
Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna on
25 June 1993, paragraph 5.
Most of the United Nations human rights treaties address the world of work directly, if relatively
briefly for the most part, as will be explored below under each of the subjects concerned. For
instance, the two international human rights Covenants include labour subjects, as does the
Universal Declaration of Human Rights. In addition, the Convention on the Rights of the Child
discusses in general terms the need to protect children from economic exploitation; and the
Convention on the Elimination of all Forms of Discrimination against Women and the
Convention on the Elimination of All Forms of Racial Discrimination contain articles on
preventing discrimination at work. The Convention on the Rights of Persons with Disabilities
contains numerous provisions on non-discrimination in the workplace. The Convention on the
Rights of all Migrant Workers and Members of their Families is largely a workers’ rights
instrument, adopted by the United Nations for reasons explored in the relevant chapter of this
book. In all these cases the treaty bodies responsible for each instrument have developed their
understanding of these rights through their supervisory work, though they usually leave most of
the work-related questions to ILO bodies, and the ILO plays a part in the supervision by the UN
of the labour aspects of these treaties. 6 One of the important lessons from this is that workers’
rights are considered by all these bodies to be human rights, even when they are not dealt with in
great detail by United Nations bodies and instruments.
(Note that the chapters on each of the subjects dealt with in this book begin with a
discussion of how that subject is dealt with in broader international human rights
law.)
International labour law is a specialized aspect of the broader field of international law,
including international human rights.
The ILO ‘s mandate is not only ‘labour’, which some understand to mean labour relations in the
formal sector; it is in fact social affairs, and is not restricted to labour questions alone. The ILO’s
competence includes a wide range of human rights in addition to those that might be
considered purely labour issues. These include rights with both civil and political, and economic,
social and cultural dimensions.
The ILO has not had the same kind of human rights profile that the United Nations has had, but
this began to change in the mid-1990s. In 1998, the ILO specifically designated (in the
Declaration on Fundamenntal Principles and Rights at Work) four subjects as fundamental
human rights: the rights to freedom of association and collective bargaining; and to protection
from child labour, forced labour, and discrimination. The ILO deals with all these rights subjects
and others, including safe and healthy working conditions, social security, minimum age for
work, vocational guidance and training, protection of wages, occupational safety and health,
employment of women, migrant workers, indigenous and tribal peoples, and labour
administration. It has also set up special promotional mechanisms to deal particularly with the
fundamental human rights.
6
In a different approach, the Migrant Workers Convention requires that all government reports on its application
be submitted to the ILO, and that the ILO participate in its supervision.
The ILO has adopted the basic standards on subjects such as forced labour, freedom of
association, child labour, discrimination and others, that were incorporated into the UN
Covenants and all the regional human rights standards, and some of which were the basis for
provisions of the Universal Declaration of Human Rights.
In addition, its supervisory process (also examined below) represents a model of both
thoroughness and rigour to which others still aspire. It also practices a direct link between
rights and assistance that makes it the international archetype of the rights-based approach to
development — even if the ILO itself does not often use this language. 7 Finally, its continuing
creativity and flexibility in standard-setting, supervision, promotion and technical cooperation
set the example for all other human rights institutions.
In spite of this, many more traditional human rights activists have not taken account of the
work of the ILO when they have examined the international human rights system.
For many years many of those involved in the ILO itself were reluctant to think of ILO
instruments as anything other than ‘international labour standards’, perhaps not wanting to
appear to subordinate them to UN human rights standards. This was complicated by the Cold
War battles over whether civil and political, or economic, social and cultural rights were ‘real’
human rights, and the ILO’s quiet decision to stay away from this conflict of ideas, renforced by
the fact that ILO standards fall into both categories. Equally, professionals in academia in
particular were often simply unaware of the way in which ILO standards often predated, and in
almost all cases made more concrete, the general human rights standards adopted by the UN.
ILO standards are rarely covered more than in passing in human rights textbooks. When the
authors recently examined the textbooks used in most English-language university-level and
graduate-level courses on international human rights and international organizations, few
references to international labour standards, to the ILO, or to workers’ rights as human rights
were found, though there is a growing academic literature that debates the relationship
between labour rights and human rights. 8
It is simple to consider that ILO standards on freedom of association, forced labour, child labour
and discrimination are human rights subjects. When the ILO’s more technical standards are
On this subject generally, see Oberleitner, A Decade of Mainstreaming Human Rights in the UN: Achievements,
Failures, Challenges, 26 Neth. Q. Hum. Rts. 359, 2008, p. 364, which calls the ILO the more thorough proponent of
the rights-based approach.
7
8
There is some literature that from early on approached certain ILO Conventions as human rights conventions. See
CW Jenks, Human Rights and International Labour Standards, Steven and Sons, 1960. See also, inter alia,
Mantouvalou, Are Labour Rights Human Rights? in 2012 European Labour Law Journal (complete this citation), …
and Gross (Editor), Workers' Rights as Human Rights, 1999 ad 2003. See the counterargument in Savage, LABOUR
RIGHTS AS HUMAN RIGHTS? A RESPONSE TO ROY ADAMS, in Just Labour: A Canadian Journal of Work
and Society, Volume 12 (Spring 2008).
brought in, it becomes more difficult to consider that they represent human rights. However,
the Universal Declaration of Human Rights and the International Covenant on Economic, Social
and Cultural Rights, for instance, list the rights to health and safety, holidays and an adequate
wage among the rights protected. Other UN human rights standards overlap with ILO standards
on such subjects as disability and migrant workers overlap with ILO standards. As will be seen
below, some ILO standards are highly technical and deal with such concepts as the allowable
distance between rungs on ladders onboard merchant marine vessels, parts per million of
benzene in the working atmosphere or the certification of ships’ cooks. These may seem to
have a distant relation to human rights as this idea is usually conceived, but they are in fact very
specialized applications of the right to safety and health at work, and must be considered to be
aspects of human rights even where they do not address these subjects as manifestations of
rights.
1. Rights and obligations
The United Nations and most other international organizations that adopt standards base their
work on the concept of the rights of individuals to protection from named ills. The ILO,
however, began adopting standards under the Treaty of Versailles, and the Treaty was not a
rights instrument. The only right it recognized was the right of workers to organize, in the
section of the Treaty that created the ILO. Indeed, the negotiations leading to the Treaty
specifically rejected the inclusion of a phrase on equal rights for all mankind, because it would
call into question the colonial regimes of the European States. ILO standards, like those few
framed by the League of Nations, have almost always spoken in terms of obligations on States
instead of the rights of those protected. States are required under ILO standards to ensure that
freedom of association and collective bargaining can take place, to suppress forced labour, child
labour and discrimination, to provide for labour inspection, etc. The following passage
illustrates the path taken from it andards up to the ILO’s adoption of its first explicitly human
rights instrument in 1998:
Certainly there was no deficit of rights notions available, including the French Declaration
of the Rights of Man of 1789, and the 1776 United States Declaration of Independence and
its Constitution. The drafters of the Covenant of the League of Nations had lengthy
discussions on whether to include references to other categories of rights, including
women’s rights and minority rights, but they decided that the political risks of doing so
were too high. 9
The situation changed with the Second World War, in reaction to the horrors of the
concentration camps and the brutalities committed against civilians and soldiers alike.
President Franklin Roosevelt in his “Four Freedoms” speech to Congress in 1941 looked
forward to a world in which human rights would be recognized and protected. The 1945
9
For a recent survey, see D. Bromley: Human rights and the League of Nations: How ideas about human rights
came to be included in the Charter and work of the League of Nations, paper prepared for the annual meeting of the
Western Political Science Association, San Diego, CA , 20 Mar. 2008. See also R. Normand and S. Zaidi: Human
rights at the UN: The political history of universal justice (Bloomington, Indiana University Press, 2007), United
Nations Intellectual History Project Series, available at: http://www.unhistory.org.
United Nations Charter followed the lead of the ILO’s 1944 Declaration of Philadelphia in
containing rights language, and the Universal Declaration of Human Rights, adopted in
1948, remains today the broadest and most fundamental international expression of human
rights.
But for nearly 50 years after the establishment of the United Nations, there were debates –
which arose with the Cold War – on classifying and interpreting human rights, based on a
politically-inspired distinction between different categories of rights. As a result, the
United Nations adopted two Covenants in 1966: the International Covenant on Economic,
Social and Cultural Rights and the International Covenant on Civil and Political Rights.
The ILO took an active part in drafting the Covenants – and both contain provisions
closely related to ILO standards.
However, they were treated in very different ways by many member States until the mid1990s, with the “western” states maintaining that only civil and political rights were really
important, and the Communist states and their allies supporting the fundamental
importance of economic, social and cultural rights. To some extent, this debate continued
even after the end of the Cold War had removed the ideological reasons for considering
them to be separate categories. The ILO, unlike the rest of the “human rights community”,
never made any such distinction. One reason for this may be that, although the labour
instruments adopted before the ILO’s establishment, and by the ILO itself after 1919,
resulted in the protection of workers’ rights, they were almost never framed in the same
rights terms as those the UN began to adopt after the Second World War. Instead they
speak in terms of governments’ obligations to ensure certain outcomes or processes. The
fact that they result in increased human rights protection is rarely expressed in the
instruments themselves, including the ILO’s fundamental Conventions on human rights. 10
The ILO itself does not distinguish between different kinds of workers’ protection standards for
most purposes. All ILO standards are set, and supervised, in the same way. While there are some
differences in the structures created internally to deal with the “rights” subjects – such as the
1998 Declaration and the Committee on Freedom of Association (see Chapter 1) – and in the
frequency of reporting on some subjects, the social security and safety and health standards in
the ILO are dealt with in the regular ILO supervisory system in the same way as those on forced
labour or discrimination.
There are nevertheless differences in the approaches taken by the ILO as compared with those
taken in general international human rights standards. While both ILO and UN standards set
obligations for goverments, ILO standards far more rarely include the setting of rights for their
subjects alongside the obligations they include. The approaches differ, but the outcome of these
international human rights standards is very comparable.
2. Individual and collective rights
Another question is the relationship between individual and collective human rights.The classic
‘western’ position has been that only individual rights are properly human rights, and that
groups as such cannot have human rights. This is not a debate which has taken a large role in
10
Quest, op cit., pp. 38 – 40.
the ILO, but it has among many writers on human rights generally. The argument is presented
succinctly in an article by Peter Jones: 11
Can a right borne by a group be a human right? For some analysts, the answer is
obviously, "No." 12 They argue that human rights are the rights of human beings
and, self-evidently, each human being is an individual being. Groups may have
rights of some sort, but, whatever those rights might be, they cannot be human
rights. Human rights must be rights borne by human individuals. Other analysts,
unimpressed by that simple logic, insist that human rights can take collective as
well as individual forms. 13 They argue that much of what is fundamentally
important to human beings relates to "goods" and "bads" that people experience
collectively rather than individually: if we insist that human rights must be rights
that people can hold only as independent individuals, our conception of human
rights will not match the social reality of the human condition.
Without going into great detail here, the ILO has consecrated both individual and collective
rights in its standards without much debate. For instance, the Freedom of Association and
Protection of the Right to Organize Convention, 1958 (No. 87) – one of the ILO’s fundamental
human rights instruments - expresses both individual and collective rights in two consecutive
articles:
Article 2
Peter Jones, Human Rights, Group Rights, and Peoples' Rights, Human Rights Quarterly, Vol. 21, No. 1 (Feb.,
1999), pp. 80-107.
11
12
See, e.g., JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE (1988); Jack Donnelly, Human
Rights, Individual Rights and Collective Rights, in HUMAN RIGHTS IN A PLURALIST WORLD: INDIVIDUALS AND
COLLECTIVITIES 39 (Jan Berting et al. eds., 1990); James A. Graff, Human Rights, Peoples, and the Right to SelfDetermination, in GROUP RIGHTS 186 (Judith Baker ed., 1994); MARLIES GALENKAMP, INDIVIDUALISM VERSUS
COLLECTIVISM: THE CONCEPT OF COLLECTIVE RIGHTS (1993); Jean-Bernard Marie, Relations Between Peoples'
Rights and Human Rights: Semantic and Methodological Distinctions, 7 HUM. RTS. L.J. 195 (1986); Johan
Nordenfelt, Human Rights - What They Are and What They Are Not, 56 NORDIC J. INT'L L. 3(1987); PAUL SIEGHART,
THE LAWFUL RIGHTS OF MANKIND: AN INTRODUCTION TO THE INTERNATIONAL LEGAL CODE OF HUMAN RIGHTS
(1985).
See, e.g., J. Herman Burgers, The Function of Human Rights as Individual and Collective Rights, in HUMAN RIGHTS
IN A PLURALIST WORLD: INDIVIDUALS AND COLLECTIVITIES, supra note 1, at 63; James Crawford, The Rights of
Peoples: Some Conclusions, in THE RIGHTS OF PEOPLES 159 (James Crawford ed., 1988); Yoram Dinstein, Collective
Human Rights of Peoples and Minorities, 25 INT'L & COMP. L.Q. 102 (1976); William F. Felice, The Case for
Collective Human Rights: The Reality of Group Suffering, 10 ETHICS & INT'L AFF. 47 (1996); Michael Freeman, Are
13
There Collective Human Rights?, 43 POL. STUD. 25 (1995).
Workers and employers, without distinction whatsoever, shall have the right to
establish and, subject only to the rules of the organisation concerned, to join
organisations of their own choosing without previous authorisation.
Article 3
1. Workers' and employers' organisations shall have the right to draw up their
constitutions and rules, to elect their representatives in full freedom, to organise their
administration and activities and to formulate their programmes.
2. The public authorities shall refrain from any interference which would restrict
this right or impede the lawful exercise thereof.
Other ILO instruments that simply ignore any supposed distinction between individual and
collective rights include the Indigenous and Tribal Peoples Convention, 1989 (No. 169), which
protects the rights of members of indigenous peoples as well as the rights of these peoples in
their collective identity. It may be noted that the titles of the two ILO Conventions on this
subject – the 1957 instrument referring to populations and the 1989 one to peoples – never
followed the long practice in the UN of referring to its work on this subject as covering
indigenous people, implying that only individual rather than collective rights were covered (a
distinction that was eliminated with the adoption of the UN Declaration on the Rights of
Indigenous Peoples in 2007).
Chapter 2
History of International Labour Law
Much of the history of international labour law is connected to the history of the International Labour
Organization, but there was an international approach to labour law before the ILO was established in
1919.
A. Before the creation of the ILO.
Trade unionism originated as an organized movement in the 19th century in Great Britain, continental
Europe, and the United States. The formation of guilds in the Middle Ages was a sort of precursor of
organized labour, though it also had many differences. Organized labour began appearing with the
industrial revolution, as the European and American economies changed, and an ever larger number of
people became wage-earning employees for the first time. Smaller associations of workers started
appearing in Britain in the 18th century, but they remained sporadic and short-lived through most of the
19th century, in part because of the hostility they encountered from employers and government groups
that resented this new form of political and economic activism. At that time unions and unionists were
regularly prosecuted under various restraint-of-trade and conspiracy statutes in both Britain and the
United States. This movement did not become more generalized until the harshness of working conditions
during the industrial revolution gave rise to demands for international regulation to decrease the poverty
in which workers lived and to raise their conditions of life and work. 14
The growing international movement of workers was abruptly suspended with the outbreak of World War
I, as nationalism took center stage. At the end of the First World War, after the Russian Revolution in 1917
and the formation of what then appeared to be a workers’ government, the victorious powers found that
it was necessary to address the concerns of labour that had been submerged during the War, but had
nevertheless survived. This led, among other things, to the creation of the ILO with its tripartite
mechanisms.
The demands to which governments were responding had a humanitarian foundation, but as a
countervailing pressure industrialists and governments feared that they would lose out to competitors if
they took unilateral protective action which would raise the costs of production in their own countries.
This led to calls from several sides for international social regulation through which such measures could
be adopted simultaneously by many different countries – concerns that persist today in relation to
international trade and workers’ rights.
1414
Some references to the history of the workers’ movement include: Clegg, H.A. (1970): The System of
Industrial Relations in Britain, Blackwell; Harvie, C. (ed) (1970): Industrialisation and Culture 1830 – 1914,
Macmillan for the Open University: Hobsbawm, E. (1962): The Age of Revolution, Pelican; Hobsbawm E (1968):
Industry and Empire, Pelican; Hooberman, B (1974): An Introduction to British Trade Unions, Pelican; MacIvor,
A.J. (2001): A History of Work in Britain, 1880 – 1950, Palgrave; Perkins, Anne: A Very British General Strike,
Macmillan 2006: Thompson, E.P. (1963): The Making of the English Working Classes, Penguin.
The Welsh industrialist Robert Owen had been among the first to raise the idea of international action,
proposing the creation of a Labour Commission in the Holy Alliance Congress in 1818. 15 The initial
proposals for international legislation were made by Charles Hindley of England, the Belgian Edouard
Ducpétiaux, the Frenchmen J. A. Blanqui, Louis René Villarmé and the industrialist Daniel Le Grand. Le
Grand issued a series of appeals beginning in 1844, and drafted proposals which he sent to various
governments in order to "protect the working class from early and heavy labour", and to protect workers
from exploitation while preserving the commercial strength of their countries.
The first official action towards adopting multijurisdictional labour regulation was taken within
Switzerland, when two cantons met in 1855 to conclude an inter-cantonal agreement on night work and
working hours. In 1881 the Swiss Federal Council initiated a diplomatic campaign to promote this idea on
a broader scale, but it was unsuccessful. Finally, Germany convened the first intergovernmental
conference, in Berlin in 1890, where the possibility of adopting and applying international labour
legislation was first explored in an official forum.
A first International Congress on Labour Legislation was held in Brussels in 1897 under the leadership of
Professor Ernest Mahaim, and a second was held in Paris in 1900, organized by the French Director of
Labour Arthur Fontaine, and by Charles Gide. This Congress adopted the statutes of the International
Association for the Legal Protection of Workers, and created the first International Labour Office as its
secretariat, with its seat in Basel.
Acting on a proposal by this Association, the Swiss Government convened two international conferences
in Bern, in 1905 and 1906, which adopted the first two international labour conventions. These
instruments, which dealt with the prohibition of the use of white phosphorous in making matches, and
with night work for women in industry, were ratified by a number of governments. In 1912 the Association
proposed holding another Conference to adopt two more conventions, to prohibit night work for young
workers in industry and to set a maximum working day of ten hours for women and children. A first
technical meeting was held in 1913, but the diplomatic conference to adopt the conventions could not be
held because of the outbreak of the First World War in 1914.
During the First World War trade union organizations from several countries, both belligerents and
neutrals, met in a number of conferences and congresses and agreed that a mechanism for international
legislation should be created, and that clauses guaranteeing certain fundamental rights for workers should
be included in the Peace Treaty. The first of these conferences took place in Leeds in 1916, with the
participation of British, French, Belgian and Italian trade unionists. The international nature of the trade
unions’ commitment is shown by a conference in Bern in 1917, with trade union delegates from both
belligerent and neutral nations; while others were held in London in 1918 and Bern in 1919.
These meetings called for the participation of workers' representatives in the Peace Conference, and
inspired a number of proposals by governments, especially France and Great Britain, for international
labour legislation to be adopted at the Peace Conference at the end of World War I.
The interest of the workers’ movement was fuelled not only by concern over conditions, but also by a
sense that the War – the first really industrial war – had been enabled by their efforts and their agreement
15
This account is taken from Bartolomei and von Potobsky, GET CITATION.
to support their governments. It was compounded by the Russian Revolution in 1917, bringing workers’
issues to the fore, not to mention frightening many governments in the west. 16
When World War I broke out both workers and employers in the countries at war became embroiled in
the war effort – the employers as indispensable furnishers of materiel and services for the war, and the
workers in production and keeping economies functioning. And throughout this period they were
developing their presence in the economies of their countries.
In 1917 a fundamental development occurred: the Russian Revolution challenged the capitalist system
and representatives of the workers took over the government of Russia. The chaos that followed
frightened the capitalist countries, and suddenly made it more urgent for the interests of the workers’
movement to be taken into account in the construction of the post-war peace.
B. The Treaty of Versailles and the establishment of the ILO 17
During the negotiations for the Peace Treaty intended to bring the First World War to a formal end, in
1919, a Commission on International Labour Legislation was created, composed of representatives of
governments, trade unionists and academics. The chairman was Samuel Gompers, the president of the
American Federation of Labor, which in 1914 had already proposed at its annual convention in
Philadelphia that a Workers' Congress be convened at the Peace Conference when the fighting stopped.
The Commission presented to the plenary Conference a draft agreement on the creation of the
International Labour Organization, the main duty of which would be the establishment of an international
standard-setting mechanism, and it included "workers' clauses" to form the basic principles of
international labour legislation18. This draft, in the form finally adopted by the Peace Conference, became
Part XIII of the Treaty of Versailles concluded in 1919, and was the first Constitution of the International
Labor Organization.
The Preamble to the ILO Constitution stated three basic reasons for which the ILO was created:
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16
lasting universal peace can be established only if it is based upon social justice;
See also The ILO and the Quest for Social Justice, 1919 – 2009, ILO, 2009, p. 4.
17
On the origins of the ILO, see inter alia, J.T. Shotwell (ed.): The origins of the International Labor Organisation
(New York, Columbia University Press, 1934); J.W. follows: Antecedents of the International Labour Organisation
(London, Oxford University Press, 1951); and R. Gregarek: “une législation protectrice: les congrès des assurances
sociales, l’association pour la protection légale des travailleurs, l’association pour la lutte contre le chômage, 1889–
1914”, in C. Topalov (ed.): Laboratoires du nouveaux siècle: La nébuleuse réformatrice et ses réseaux en France,
1880–1914 (Paris, éditions de l’eHeSS, 1999), pp. 317–333.
18These
principles, which the High Contracting Parties considered to be of special and urgent importance, are briefly: labour
is not simply a commodity; freedom of association for employers and workers; payment of wages which ensure a decent living
wage; eight-hour work day or 48-hour work week; weekly rest; elimination of child labor and regulation of the work of young
persons; equal pay for work of equal value; equivalent economic treatment for foreign workers; and organization of inspection
services.
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it was urgent to improve the working conditions of large numbers of people, as
injustice, hardship and privation produced such unrest that the peace and harmony
of the world were imperilled; and
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the failure by any nation to adopt humane conditions of labor was an obstacle in the
way of other nations which desired to improve conditions in their own countries.
From these premises appeared the need for international regulation of conditions of work. The Preamble
contained a list of labour questions which required urgent action, representing a programme of action for
the Organization.
It is important to recall from the outset, as indicated above, that neither the League of Nations nor the
ILO proclaimed the protection of human rights as part of its mandate. Thus the instruments adopted
before World War II, though some of them were later considered to be human rights instruments, were
not so considered by the Organizations that adopted them. This would have to await the approaching end
of the Second World War.
The programme and the aims of the ILO were brought up to date as the end of World War II approached,
in the Declaration of Philadelphia, adopted in 1944 and incorporated into the Constitution. During World
War II the International Labour Office had moved to Montreal to continue its research and prepare for
the post-war period, and the Declaration reflected the beginnings of a post-colonial awareness and a
dedication to the interaction of human rights and active intervention from international organizations.
President Roosevelt and Prime Minister Churchill began to announce that the protection of human rights
would be one of their aims after the War. The Declaration of Philadelphia rode this wave and expanded
the field of action of the ILO, based on the relationship between labor and social, economic and financial
problems. This concept was the most important contribution of the Declaration, which stated its goals in
terms of human values and aspirations: "all human beings, irrespective of race, creed or sex, have the
right to pursue both their material well-being and their spiritual development in conditions of freedom
and dignity, of economic security and equal opportunity". This is the first official statement by an
international organization of human rights as its aim, as well as being the first statement of a link between
rights and development. This was henceforth the principal objective of the ILO, and not only as concerns
its own activities; the Declaration requires it to examine all other international economic and financial
programmes from the same point of view. This mandate has taken on a wider importance in recent years
with regard to joint action (and sometimes disagreement) between the ILO and the international financial
institutions -- in particular the World Bank and the International Monetary Fund -- concerning the social
impact of economic readjustment programmes.
The ILO is an intergovernmental body – but with a difference from all others that non-governmental
partners are an integral part of the decision-making structure (see below under tripartism). The Treaty of
Versailles stipulated that the Members of the League of Nations would also be Members of the ILO (article
387), a provision reproduced in Article 1 of the ILO Constitution as regards Members of the United
Nations.