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EXTRACT FROM DRAFT TEXT BOOK – NOT FOR QUOTATION OR DIFFUSION COPYRIGHT LEE SWEPSTON AND CONSTANCE THOMAS 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: - 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. - 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 - 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.