UAE Laws and Islamic Finance

Laws of the UAE and Islamic Finance

Archive for March 24, 2010

Employment Rights as Human Rights: When do employment related transgressions rise to the level of human rights violations? What sources of law situate employment rights as human rights? What remedies are available for human rights violations in the workplace? What enforcement mechanisms exist to enforce human rights at work?

 

With this paper, I won an International Bar Association Scholarship to attend the Annual IBA Conference in Madrid (2009) and Vancouver (2010).

 

INTRODUCTION

Any employment related transgression is a human rights violation.  Employment is a fundamental societal relationship.  In 1765, Blackstone described the three great relationships in private life as: “(1) That of master and servant, which is founded in convenience, whereby a man is directed to call in the assistance of others, where his own skill and labor will not be sufficient to answer the cares incumbent upon him; (employment) (2) That of husband and wife; (3) That of parent and child.”[1]   Employment subjects one person to another’s control in a ‘master and servant’ relationship, which often is not sufficient for the employee to cover his or her expenses, and constitutes one of the pillars upon which our fragile society is based.  Thus, an employment contract, which ensures the smooth operation of this pillar of society, is just as essential as a solid and just marital contract and harmonious and secure family relations to the stability and strength of society.  The employment contract essentially regulates a relationship between the employer, or the owner of the means of production, and the employee, someone who is paid an hourly wage to utilize the means of production to assist in the production of a final product or service for the employer.  The relationship is one of exploitation, as the employee does not retain the value of his labor.  The employee is not compensated for the value, which he adds to the product or service, he or she is just paid an hourly wage for his services.  The profit of the owner of the means of production equals the price of the product minus the cost of production.  The cost of production is basically the total of the input costs.  The wage paid to the employee is an input cost similar to rent and utilities.  An input cost is basically an expendable, non-human element in the cost of production in the quest of the owner of the means of production to generate a profit and accumulate wealth for himself or herself.

Therefore, the employer exploits the employee to make a profit, which is legal and regulated by the employment law of the jurisdiction within which the employer operates.  An employee sells his services to the employer for a price, which does not reflect the value of his output in exchange for allowing him or her to utilize the means of production, owned by the employer.  This unequal power relationship endorsed by society is governed by a contract and law heavily in favor of the employer, the party that already possesses a strong advantage over the employee.  Therefore, any transgression of the employer in terms of the already unequal employment law and employment relationship governed by an employment contract , which is already strongly tilted in the favor of the employer,  is a violation of the employee’s most basic and fundamental human rights.

The employer/employee relationship dehumanizes employees into an expendable factor of production and input cost.  The employment contract should attempt to humanize the relationship but more importantly the employee.  However, in reality, the current regulation of employees by employment law and contracts leads employers and leaders in big business to view employees as mere expendable factors of production in their quest for wealth, nothing more than meaningless factors in the calculation of profit and the enrichment of their bank accounts and egos.  Therefore, the attempt to humanize employees is crucial not only to enforce human rights but also to change the direction of this invisible omnipresent industrial force de-humanizing humanity and to change the view of the owners of the means of production that human beings are expendable input costs but rather precious living investments.   Applied on a worldwide scale, where nations are increasingly forced into producing products according to the comparative advantage of an increasingly unfair global economy, the rich big business leaders and nations of the world view the poor inhabitants of their own nations and the people of poor or less strong nations as non-human.  The employee is strangled by invisible chains created and enforced by law into servicing the employer in an exploitative relationship to further the employer’s quest for wealth production and accumulation and becomes trapped into an employment system where he or she does not get re-numerated for the value of his or her output and often cannot cover the total of his or her living costs.  Furthermore, the employee is entitled to claim only the remedies for violations of employment rights which have been legislated into that employee’s particular jurisdiction. Globally, similar invisible chains are locking weaker countries into servicing stronger, richer, and more powerful countries in order for the dominant countries to accumulate even more wealth and power in the global arena.  The rich countries exploit the poor countries by locking them into a global system whereby the stronger countries do not pay the weaker countries the full value of their products and force the smaller countries into producing products which serve as the stronger nations’ input costs and factors of production in order to fuel the larger nation’s engine of growth.  Nations are becoming locked into a model of comparative advantage, unable to diversify and release themselves of the invisible stranglehold created by mechanisms such as the WTO, IMF, and World Bank, and become trapped into molding economies that service the dominant members of the system.  This unequal world system regulated by law written and geared towards the stronger member nations, in addition, allows large nations to exploit the worker’s of poor nations legally in a global capitalist system, which increasingly allows corporations to outsource production where labor is cheapest, thereby reducing their input costs and increasing their profits.  In this system, not only are nations locked into positions, however, the poorer people of these nations are exploited by both multinational corporations entering the markets of these countries and by the people of the richer countries, where the inhabitants of poorer nations must flock to in order to earn money and send back to their families in the form of remittances.  Therefore, we need more regulation of the activities of multinational corporations abroad, which are currently entering many markets of the world through WTO trade agreements and treaties, and more protection for employees which are undocumented and documented immigrants in the countries ruling this system.  As of now, all the people of the world are a vast wasteland of expendable labor to exploit for profit.  

We must humanize the employment relationship through re-writing employment law and contracts to protect the rights of employees and create new mechanisms to enforce employee rights domestically and internationally in order to save humankind.  However, is it possible to revise a legal system created by the rich and powerful to preserve the rights, wealth, and status of the rich and powerful?  Inevitably, whatever system is created, will be created to preserve and protect those who created it.  Perhaps this is the doom of humanity.  Only the fittest will survive, however, in the attempt to survive, humanity may destroy itself.

Sources of law which stipulate employee rights as human rights

The notion of employee rights as human rights can be derived from several sources of law varying from constitutions to international customary law to international human rights treaties to domestic legislation enacted as a result of being signatory to an international human rights treaty.

For example, the constitution[2] of the United Arab Emirates stipulates that employee rights are human rights.  Article 20 of the UAE Constitution[3] states:

 

 “Society shall esteem work as a cornerstone of its development.  It shall endeavor to ensure that employment is available for citizens and to train them so that they are prepared for it.  It shall furnish the appropriate facilities for that by providing legislations protecting the rights of the employees and the interests of the employers in the light of developing international labor legislations.[4]” 

The right of UAE citizens to employment is a right embedded in the UAE constitution[5].  Furthermore, it is a constitutional provision that the UAE shall produce legislation, which protects the rights of employees and the interests of employers.  The notion of employee rights as human rights can be derived from this clause of the UAE constitution[6], as UAE legislation concerning employment must protect the rights of employees in the light of employee interests.   This clause is also a source of protection, which UAE citizens may resort to in labor cases within the UAE or could be used when challenging unethical labor legislation, which leans too heavily in favor of the employer.

A source of law, which also connotes employee rights as human rights, can be found in the International Labor Organization or “ILO” Constitution Preamble[7].  The ILO Constitution Preamble[8] states:

 

“Whereas universal and lasting peace can be established only if it is based upon social justice; And whereas conditions of labor exist involving such injustice hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperiled; and an improvement of those conditions is urgently required; as, for example, by the regulation of the hours of work including the establishment of a maximum working day and week, the regulation of the labor supply, the prevention of unemployment, the provision of an adequate living wage, the protection of the worker against sickness, disease and injury arising out of his employment the protection of children, young persons and women, provision for old age and injury, protection of the interests of workers when employed in countries other than their own, recognition of the principle of equal remuneration for work of equal value, recognition of the principle of freedom of association, the organization of vocational and technical education and other measures; Whereas also the failure of any nation to adopt humane conditions of labor is an obstacle in the way of other nations which desire to improve the conditions in their own countries.[9]” 

In other words, the preamble[10] states that the injustices, which exist in the employer/employee contract, are a grave threat to the peace and harmony of the world and suggests that steps should be taken to improve the terms and conditions of the employment contract and relationship.   The preamble[11] equates social justice to fair employment practices and fair employment contracts with world peace and harmony.  The message is clear.  Preserve the human rights of employees through law and contract around the world and peace will have a chance on earth.  The preamble[12] clearly states that, ‘an improvement of those conditions is urgently required’.  In fact, the message in the preamble[13] is fore-telling a disaster for humanity if the improvement of employment conditions through contract and law is not implemented immediately.

Employee rights as human rights can also be found in the International Covenant on Civil and Political Rights[14] or the “ICCPR” and the International Covenant on Economic, Social, and Cultural Rights[15] or the “ICESCR.”  Due to the fact that in these two treaties employee rights are equated as human rights and both of these treaties form treaty law and international human rights law, the employee rights found in these two treaties can be said to form treaty and international human rights law.

Ratifying states to these two Covenants ‘commit’ themselves to implement the rights found in these two Conventions into their domestic jurisdictions as enforceable law.  Thus, if ratifying nations implement relevant legislation creating the employee rights which equate to human rights contained in these two treaties, these nations implement employee rights as human rights under the domestic law, with all rights and remedies attached. Employee rights, which can be found in these two treaties relate mainly to the freedom of association.   The right to freedom of association includes: (1) the right of security of person, or freedom from arbitrary arrest and detention; (2) freedom of opinion and expression; (3) freedom of assembly; and (4) the right to due process and a fair trial by an independent and impartial Tribunal[16].  Article 22 of the ICCPR[17] guarantees employees’ right to freedom of association and/or to join trade unions to protect member interests. 

For example, Article 22 of the ICCPR[18] states that:

“Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.  2.) No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.  This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.  3.) Nothing in this article shall authorize states parties to the ILO Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.[19]

Article 8 of the ICESCR[20] states that:

  1. “The States Parties to the present Covenant undertake to ensure:

 

(a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;

(b) The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations;

(c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;

(d) The right to strike, provided that it is exercised in conformity with the laws of the particular country.

2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State.

3. Nothing in this article shall authorize States Parties to the International Labor Organization Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention.[21]

Therefore, if ratifying parties implement domestic legislation concerning the right to freedom of association as articulated in the two Covenants, then the two Covenants spurred the ratifying nations to implement the employee right to freedom of association as an enforceable human right under their respective domestic legislation with remedies.

One of the main differences between the ICESCR[22] and the ICCPR[23], is that the ICCPR[24] contains an optional protocol[25] through which grievances can be filed according to the relevant procedural rules.  However, due to the fact that only a non-binding report is issued as a result, the rights under the ICCPR[26] like the rights attached to the ICESCR[27] are not enforceable.  Therefore, technically, it is possible for an individual, whom is the citizen of a nation-state, which has ratified both the ICCPR[28] and the optional protocol[29], to report a violation of the right to freedom of association to the ICCPR[30] according to the rules of procedure of the first optional protocol[31], however, the ICCPR[32] cannot enforce its’ findings.

Under the procedure of the ICCPR optional protocol[33], if the complaining individual has exhausted all domestic remedies, the individual can submit written communications to the UN Human Rights Committee for review. The UN Human Rights Committee then informs the State Party under investigation of the filed complaint and within six months of the initiation of the complaint, the Committee will give the state under investigation an unenforceable report regarding the matter.  The unenforceable report also appears in the annual report of the UN Human Rights Committee, possibly causing embarrassment for the nation-state, which has been investigated.

A state, which has ratified the optional protocol[34] and ICCPR[35], can also report another state, which is party to the ICCPR[36] and optional protocol[37]. However, the procedure applies only to States parties to the ICCPR[38] and optional protocol[39], which have made a declaration accepting the competence of the UN Human Rights Committee in this regard. Articles 41-43 of the ICCPR sets out a mechanism whereby once a state has reported another state, the UN Human Rights Committee orders the establishment of an ad hoc Conciliation Commission. However, once again, the outcome of this Commission has no binding force or authority.  The Conciliation Committee can only issue a report varying in length according to the amicability of the solution.  If the report is issued where no solution has been reached between the parties, then the State being investigated does not even have to accept the non-binding and unenforceable report.  Article 42(7) states that:

When the Commission has fully considered the matter, but in any event not later than twelve months after having been seized of the matter, it shall submit to the Chairman of the Committee a report for communication to the States Parties concerned:

(a) If the Commission is unable to complete its consideration of the matter within twelve months, it shall confine its report to a brief statement of the status of its consideration of the matter;

(b) If an amicable solution to the matter on the basis of respect for human rights as recognized in the present Covenant is reached, the Commission shall confine its report to a brief statement of the facts and of the solution reached;

(c) If a solution within the terms of subparagraph (b) is not reached, the Commission’s report shall embody its findings on all questions of fact relevant to the issues between the States Parties concerned, and its views on the possibilities of an amicable solution of the matter. This report shall also contain the written submissions and a record of the oral submissions made by the States Parties concerned;

(d) If the Commission’s report is submitted under subparagraph (c), the States Parties concerned shall, within three months of the receipt of the report, notify the Chairman of the Committee whether or not they accept the contents of the report of the Commission.

This is perhaps the most non-binding and non-committal terms of procedure in existence for human rights enforcement mechanisms today.  Employee rights as human rights can also be found in Article 20 of the Universal Declaration of Human Rights[40].  However, The Universal Declaration of Human Rights[41] is a declaration that does not form binding international human rights or treaty law in contrast to the ICCPR[42] and ICESCR[43], although some view it as customary international law.  This would entail that the rights found in the Universal Declaration[44] derive from custom and therefore the Declaration[45] is a valid source of international law enforceable in a court of law.  However, the Declaration[46] has no grievance or enforcement mechanism, making it one of the weakest sources of the already weak pool of treaty derived employee rights as human rights.  The rights found in the Declaration[47], however, could be argued as a source of international customary law from which rights and remedies could be derived, however, this ability would rest on the skill of the lawyer in question.

Article 20 of the Universal Declaration[48] states that:

  • (1) Everyone has the right to freedom of peaceful assembly and association.
  • (2) No one may be compelled to belong to an association.

 

The Universal Declaration[49] is similar to the ILO Constitution Preamble[50] in that it goes farther in promulgating employee rights as human rights than the ICCPR[51] and the ICESCR[52] in asserting the right to work and the rights of employees.  Article 23 of the Universal Declaration[53] states:

  •  (1) Everyone has the right to work, to free choice of employment, to just and favorable 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 favorable 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.

Perhaps the ICCPR[54] and ICESCR[55], as they are the strongest source of international treaty law, which contain employee rights as human rights, should be amended to include a more expansive definition of employee rights beyond the freedom to associate.  This would then in turn instigate the legislatures of ratifying states to enact legislation, which includes more comprehensive employee rights as human rights with all rights and remedies attached.

Sources of employee rights as human rights may also be found in various conventions such as the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families[56] (ICMW) and certain charters to human rights regimes such as The African Charter on Human and People’s Rights for Africa[57]; The American Convention on Human Rights for the Americas[58] and The European Convention on Human Rights for Europe.[59]  These human rights regimes come equipped with courts, which can issue binding decisions and thus are able to enforce the human rights including the employee rights which are enshrined and protected in their charters. 

The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families[60] (ICMW) has 27 articles equating employee rights as human rights in Part III entitled ‘Human Rights of All Migrant Workers and Members of their Families’ ranging from the right to freedom of movement, right not to be subject to inhuman or degrading treatment and torture, the right to be treated with dignity, the right to equality with nationals of the State concerned before courts and tribunals to the right not to be imprisoned merely on the ground of failure to fulfill a contractual obligation and the right to receive medical care that is required for preservation of their life or the avoidance of irreparable harm to their health on the basis of equality with the nationals concerned. 

The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families[61] also contains provision for allowing individual communications to be considered by the ICMW similar to the optional protocol[62] of the ICCPR[63].

An individual who claims that her or his rights under the ICMW[64] has been violated by a State party to that treaty may bring a communication before the ICMW committee, provided that the State being investigated has declared that it recognizes the competence of the committee to receive such complaints. Third parties may also file complaints on behalf of individuals provided that the individuals have given their written consent or where the individuals are incapable of giving such consent.

In addition, a state party may bring a complaint against another state under Article 74[65] of the ICMW.  Article 74[66] sets out a procedure whereby one State party can file a complaint against another State party. However, the procedure applies only to States parties who have declared that they accept that the Committee has a right to investigate the complaint. However, again, the outcome of this procedure is non-binding and unenforceable.

Furthermore, according to Article 92[67] of the ICMW, disputes between States parties specifically regarding the application or interpretation of the Convention[68] can be resolved by negotiation or by arbitration if talks fail. If the parties fail to agree on the terms of arbitration after the arbitration request is filed, a ratifying state may refer the dispute to the International Court of Justice. However, State parties can exclude themselves from this Article 92 procedure by making a declaration at the time of ratification or accession that they do not accept this procedure. In this case, the state would be barred from bringing cases against other States parties regarding the application or interpretation of the ICMW[69].

The African (Banjul) Charter on Human and Peoples’ Rights[70] contains vague provisions relating employee rights to human rights in terms of the curtailable right to the freedom to associate and the general right to work under fair and equitable terms.   Article 11[71] of the Charter states that,

 “Every individual shall have the right to assemble freely with others.  The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics, and rights and freedoms of others[72]”. 

Article 15[73] of the Charter states that,

“Every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work.”

The European Convention for the Protection of Human Rights and Fundamental Freedoms[74] equates employee rights to human rights in a more comprehensive fashion although still curtails the right to freedom of association.  Article 1[75] states that,

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”

Article 4(2)[76] states that,

“No one shall be required to perform forced or compulsory labor”. 

Article 11[77] concerning the Freedom of Assembly and Association, states,

“(1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.  (2) No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.  This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” 

Article 13[78] asserts a Right to an effective remedy,

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 

The European Convention[79] is unique in that it states that those whose rights have been violated under the Convention[80] shall have the right to an effective remedy within their domestic jurisdictions under the domestic law.  This is quite unique in that it thus requires states to implement legislation, which in effect gives remedies to employees whose rights have been violated. 

The Charter of the Organization of American States[81] goes further into detail in explaining the human rights of employees than both of the Charters of the two other existing regional human rights regimes and the right to the freedom to associate is not curtailed in the interest of the state.  The Charter[82] also recognizes the importance of relating employee rights as human rights to the wider goals of development, social harmony, dignity, and a productive state.

Article 34 (g)[83] states that,

“The member states agree that equality of opportunity, the elimination of extreme poverty, equitable distribution of wealth and income and the full participation of their peoples in decisions relating to their own development are, among others, basic objectives of integral development.  To achieve them, they likewise agree to devote their utmost efforts to accomplishing the following basic goals: (g) Fair wages, employment opportunities, and acceptable working conditions for all”. 

Article 45[84] states that,

“The Member States, convinced that man can only achieve the full realization of his aspirations within a just social order, along with economic development and true peace, agree to dedicate every effort to the application of the following principles and mechanisms: (b) Work is a right and a social duty, it gives dignity to the one who performs it, and it should be performed under conditions, including a system of fair wages, that ensure life, health, and a decent standard of living for the worker and his family, both during his working years and his old age, or when any circumstance deprives him of the possibility of working; (c) Employers and workers, both rural and urban, have the right to associate themselves freely for the defense  and promotion of their interests, including the right to collective bargaining and the workers’ right to strike, and recognition of the juridical personality of associations and the protection of their freedom and independence, all in accordance with applicable laws.” 

Furthermore, one might find employee rights as human rights stipulated in the ILO Convention Concerning Freedom of Association and Protection of the Right to Organize[85] (Convention No. 87) and the 1948 Convention Concerning the Application of the Principles of the Right to Organize and to Bargain Collectively[86] (Convention No. 98).   The ILO Convention Concerning Freedom of Association and Protection of the Right to Organize[87] comes equipped with a grievance procedure albeit a non-enforceable mechanism through which to lodge complaints and obtain unenforceable reports. 

As opposed to the ICCPR optional protocol[88] and ICMW[89], the ILO grievance mechanism under the Convention Concerning Freedom of Association and Protection of the Right to Organize[90] is available against any of it’s member states for violations of the right of association even if the country filing the complaint is not a signatory to the Freedom of Association Convention[91] or any other relevant ILO agreement.  Furthermore, the ILO permits non-sovereign entities to make complaints, but this right must be exercised on their behalf by employee or employer organizations. Unlike the ICCPR[92], the ILO grievance mechanism is not subject to prior exhaustion of national remedies, however, similar to the ICCPR, the ILO Committee can only make non-binding and unenforceable recommendations and reports.

“The grievance mechanism allows the Committee to conduct an inquiry upon receipt of a written complaint fully supported by proof of the specific allegations.  After investigating the complaint, the Committee may find a state in violation of the freedom of association.  It may then recommend steps that should be taken to restore or ensure the right’s observance by the State.[93] 

 

The ILO constitution[94] in general stipulates a general and unenforceable complaint mechanism through which complainants can lodge representations against a state allegedly violating a term or condition of an ILO convention.

“Under Article 24 of the ILO’s constitution, a kind of complaint called a “representation” may also be filed against a state alleging a violation of an ILO convention, which the state has ratified. Under this procedure, a committee is appointed by the Governing Body, which then reviews the committee’s report.” [95]

“Under Article 26 of the ILO’s constitution, an ad hoc commission of inquiry may be set up to investigate complaints against a member state which has ratified an ILO convention”.[96]

However, again, this is an unenforceable complaint mechanism and does not provide a remedy to the dispute.  At most, a non-binding report is issued.

Furthermore, the ILO has a regular reporting structure through which each member nation is required to regularly report the extent to which its national law complies with ILO conventions and recommendations.  The reports are evaluated by the Committee of Experts on the Application of Conventions and Recommendations and then this Committee’s annual report is reviewed by the Conference’s Committee on the Application of Standards.  This committee then makes a non-binding recommendation to the annual conference, which may or may not act to pressure the governments in question to re-align their laws to comply with ILO conventions and standards.[97]

In reality, none of the complaint mechanisms mentioned above are enforcement mechanisms, these methods just constitute conduits through which to lodge complaints to organizations or committees formed under the rules of treaties that cannot enforce their own findings and cannot make binding decisions. 


Remedies available for human rights violations in the workplace

A violation of the rights of an employee by an employer is a human rights violation due to the fact that the employment relationship is one of the three necessary pillars holding up society and is already heavily unequal and unbalanced in favor of the employer.  If the employee/employer relationship is so basic and fundamental to the fabric of society, why don’t employees have more enforceable rights and remedies or avenues through which to correct violations of these rights?  Currently, employees are cemented into a master/servant relationship with and subjugated to the will and whims of the employer.  Employees are weaved in so tightly into this fabric of inequality that any transgression of the employee’s right is a violation of the employee’s human right as employment is necessary for the employee’s survival.  Basically, an employee can only resort to a domestic or regional human rights court to obtain an enforceable remedy.  Therefore, in order for the employee right to be considered a human right, the domestic jurisdiction in which the employee is located must have legislated these rights as human rights or the regional human rights regime to which the employee is subject must have a charter which contains employee rights as human rights.  Either a giant shift in thinking is required by legislators in regards to the employee/employer contract and relationship and/or we must find a way to incorporate enforceable employee rights as human rights in domestic jurisdictions worldwide and into the charters of the regional human rights regimes with readily available remedies for violations of these newfound rights.

Therefore, incorporating employee rights as human rights in international treaties which states are compelled to incorporate into their domestic laws is an effective way to help push employee rights as human rights into enforceable domestic law.  In addition, the charters of the existing human rights regimes should be amended to incorporate more comprehensive and enforceable employee rights including the right to enforceable remedies. 


Enforcement mechanisms, which exist to enforce human rights at work

The only true enforcement mechanism, which exists to enforce human rights at work are domestic courts and the European Court of Human Rights, the Inter-American Court, and the Organization of African Unity Court.  The grievance procedures attached to various conventions such as the Committee on the Freedom of Association[98] (ILO), the ICMW[99], and the ICCPR optional protocol[100] only offer unenforceable reports.


CONCLUSION


Human rights and employment law have one thing in common.  Both sets of law are written in the favor of a dominant party and have few avenues of enforcement.  Human Rights Law is largely written and promulgated by the West and tilts towards Western values as the creation and enactment of Employment Law is largely influenced by the owners of the means of production or the employers.  The law is inherently biased as it will unequivocally favor those who wrote it or who have influence over how the law is written.    It is only if parliaments around the world are pressured into producing more just legislation concerning employees or if lawmakers experience a sudden burst of consciousness concerning employee rights will more equal legislation come into existence. Creating more international treaties concerning employee rights which compel ratifying states to incorporate employee rights into their domestic legislation is one way to accomplish this goal.  Furthermore, amending the Charters of the International Human Rights Regimes to include more employee rights would give employees in the jurisdiction of that particular regime who have found their rights violated another avenue to obtain an enforceable remedy.  Another option may be to create an international employment court attached to the ILO and/or the UN to which employees can submit cases to if their country has ratified the treaty creating the Court, similar to the International Criminal Court.  This international employment court would have its’ own rules and procedures and enforce all international treaties and customary law concerning employment. 

Overall, we need more linkage of employment rights as human rights and more international human rights enforcement mechanisms.  We could start with creating an Asian Human Rights Regime such as one linked to ASEAN with an associated court.  Then, the whole world would be covered with regional human rights regimes with charters, enforceable rights and remedies, and courts.  Perhaps then all of the courts of the regional human rights regimes could send appeals to one High Human Rights Court, which acted as the Court of Appeal for the entire system of linked regional human rights regime.

Next, we could improve the ILO and UN complaint mechanisms/grievance procedures by making them enforceable. From there we can create new structures and linkages to uphold and enforce human rights and employee rights such as an international employment court.  The domino effect would be that nation states around the world would make their employment contracts more fair and just, thus increasing the chances for stabilizing society and creating peace on earth in line with the ILO Constitution preamble[101].  It is only if the fabric holding together society is strong and stable will humanity extend successfully into the future.  A solid foundation makes it more likely that the structure will stand.


[1] W. Blackstone Commentaries 410 (1765). 

[2] Constitution of the United Arab Emirates, (December 2, 1971).

[3] Constitution of the United Arab Emirates, (December 2, 1971), Article 20.

[4] Ibid.

[5] Constitution of the United Arab Emirates, (December 2, 1971).

[6] Ibid.

[7] Constitution of the International Labor Organization, June 28, 1919, Preamble, 49 STAT 2712, 15 U.N.T.S. 35. 

[8] Ibid.

[9] Simpson, Steven, ‘Enforcement of Human Rights Through ILO Machinery,’ The Human Rights Brief (1995), http://www.wcl.american.edu/hrbrief/v3il/ilo31.htm.  Retrieved on 02/19/2009.

[10] Constitution of the International Labor Organization, June 28, 1919, Preamble, 49 STAT 2712, 15 U.N.T.S. 35. 

[11] Ibid.

[12] Ibid. 

[13] Ibid.

[14] International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, (entered into force Mar. 23, 1976).

[15] International Covenant on Economic, Social, and Cultural Rights, (entered into force 3 January, 1976) http://www.unhchr.ch.html/menu3/b/a_cescr.htm.

[16] Simpson, Steven, ‘Enforcement of Human Rights Through ILO Machinery,’ The Human Rights Brief (1995), http://www.wcl.american.edu/hrbrief/v3il/ilo31.htm .  Retrieved on 02/19/2009.

[17] International Covenant on Civil and Political Rights, International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, (entered into force Mar. 23, 1976), Article 22.

[18] Ibid.

[19] International Covenant on Civil and Political Rights, International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, (entered into force Mar. 23, 1976), Article 22.

[20] International Covenant on Economic, Social, and Cultural Rights (entered into force 3 January, 1976) http://www.unhchr.ch.html/menu3/b/a_cescr.htm, Article 8.

[21] International Covenant on Economic, Social, and Cultural Rights (entered into force 3 January, 1976) http://www.unhchr.ch.html/menu3/b/a_cescr.htm, Article 8.

[22]International Covenant on Economic, Social, and Cultural Rights (entered into force 3 January, 1976) http://www.unhchr.ch.html/menu3/b/a_cescr.htm.

[23] International Covenant on Civil and Political Rights International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, (entered into force Mar. 23, 1976).

[24] Ibid.

[25] Optional Protocol to the International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 59, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 302, (entered into force March 23, 1976).

[26] International Covenant on Civil and Political Rights International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, (entered into force Mar. 23, 1976).

[27] International Covenant on Economic, Social, and Cultural Rights (entered into force 3 January, 1976) http://www.unhchr.ch.html/menu3/b/a_cescr.htm.

[28] International Covenant on Civil and Political Rights International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, (entered into force Mar. 23, 1976).

[29] Optional Protocol to the International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 59, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 302, (entered into force March 23, 1976).

[30] International Covenant on Civil and Political Rights International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, (entered into force Mar. 23, 1976).

[31] Optional Protocol to the International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 59, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 302, (entered into force March 23, 1976).

[32] Ibid.

[33]      Optional Protocol to the International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 59, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 302, (entered into force March 23, 1976).

[34] Ibid.

[35] International Covenant on Civil and Political Rights, International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, (entered into force Mar. 23, 1976).

[36] Ibid.

[37] Ibid.

[38] Ibid.

[39]      Optional Protocol to the International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 59, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 302, (entered into force March 23, 1976).

[40] Universal Declaration of Human Rights (entered into force on December 10, 1948), Article 20.

[41] Universal Declaration of Human Rights, (entered into force on December 10, 1948), Article 38.

[42] International Covenant on Civil and Political Rights, International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, (entered into force Mar. 23, 1976).

[43] Ibid.

[44] Universal Declaration of Human Rights (entered into force on December 10, 1948).

[45] Ibid.

[46] Ibid.

[47] Ibid.

[48] Universal Declaration of Human Rights, (entered into force on December 10, 1948), Article 20.

[49] Universal Declaration of Human Rights (entered into force on December 10, 1948).

[50] Constitution of the International Labor Organization, June 28, 1919, Preamble, 49 STAT 2712, 15 U.N.T.S. 35. 

[51] International Covenant on Civil and Political Rights G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, (entered into force Mar. 23, 1976).

[52] International Covenant on Economic, Social, and Cultural Rights (entered into force 3 January, 1976) http://www.unhchr.ch.html/menu3/b/a_cescr.htm.

[53] Universal Declaration of Human Rights (entered into force on December 10, 1948).

[54] International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, (entered into force Mar. 23, 1976).

[55] International Covenant on Economic, Social, and Cultural Rights (entered into force 3 January, 1976) http://www.unhchr.ch.html/menu3/b/a_cescr.htm.

[56] International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICMW) (adopted 1990).

[57] The African (Banjul) Charter on Human and Peoples’ Rights, OAU Doc.CAB/LEG/67/2rev.5, 21 I.L.M. 58 (1982), (entered into force 21 October, 1986).

[58] The American Convention on Human Rights for the Americas (1969, in force since 1978).

[59] The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950, in force since 1953).

[60] International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICMW) (adopted 1990).

[61] Ibid.

[62]      Optional Protocol to the International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 59, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 302, (entered into force March 23, 1976).

[63] International Covenant on Civil and Political Rights International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, (entered into force Mar. 23, 1976).

[64] International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICMW) (adopted 1990).

[65] International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICMW) (adopted 1990) Article 74.

[66] Ibid.

[67] International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICMW) (adopted 1990), Article 92.

[68] International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICMW) (adopted 1990).

[69] Ibid.

[70] The African (Banjul) Charter on Human and Peoples’ Rights, OAU Doc.CAB/LEG/67/2rev.5, 21 I.L.M. 58(1982), (entered into force 21 October, 1986). 

[71] The African (Banjul) Charter on Human and Peoples’ Rights (Adopted 27 June 1981, OAU Doc.CAB/LEG/67/2rev.5, 21 I.L.M. 58(1982), entered into force 21 October 1986), Article 11.

[72] Ibid.

[73] The African (Banjul) Charter on Human and Peoples’ Rights (Adopted 27 June 1981, OAU Doc.CAB/LEG/67/2rev.5, 21 I.L.M. 58(1982), entered into force 21 October 1986), Article 15.

[74] The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950, in force since 1953).

[75] The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950, in force since 1953), Article 1.

[76] The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950, in force since 1953), Article 4(2).

[77] The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950, in force since 1953), Article 11.

[78] The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950, in force since 1953), Article 13.

[79] The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950, in force since 1953).

[80] Ibid.

[81] The American Convention on Human Rights for the Americas (1969, in force since 1978).

[82] Ibid.

[83] The American Convention on Human Rights for the Americas (1969, in force since 1978), Article 34(g).

[84] The American Convention on Human Rights for the Americas (1969, in force since 1978) Article 45. 

[85]Freedom of Association and Protection of the Right to Organize Convention, (July 24, 1950), ILO Convention No. 87.

[86] Right to Organize and Collective Bargaining Convention, (July 18, 1951), ILO Convention No. 98.

[87] Freedom of Association and Protection of the Right to Organize Convention, (July 24, 1950), ILO Convention No. 87.

[88]      Optional Protocol to the International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 59, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 302, (entered into force March 23, 1976).

[89] International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICMW) (adopted 1990).

[90] Freedom of Association and Protection of the Right to Organize Convention, (July 24, 1950), ILO Convention No. 87.

[91] Ibid.

[92] International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, (entered into force Mar. 23, 1976) .

[93] Simpson, Steven, ‘Enforcement of Human Rights Through ILO Machinery’ The Human Rights Brief (1995) http://www.wcl.american.edu/hrbrief/v3il/ilo31.htm.  Retrieved on 02/19/2009.

[94] Constitution of the International Labor Organization, June 28, 1919, 49 STAT 2712, 15 U.N.T.S 35. 

[95] Bynum, Charlotte, ILO Research Guide, http://library.lawschool.cornell.edu/WhatWeDo/ResearchGuides/ILO.cfm.   Retrieved April 1, 2009.

[96]  Ibid.

[97] Bynum, Charlotte, ILO Research Guide, http://library.lawschool.cornell.edu/WhatWeDo/ResearchGuides/ILO.cfm.  Retrieved April 1, 2009.

[98] Freedom of Association and Protection of the Right to Organize Convention, July 24, 1950, ILO Convention No. 87.  ILO Committee on the Freedom of Association.

[99] International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICMW) (adopted 1990).

[100] International Covenant on Civil and Political Rights International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, (entered into force Mar. 23, 1976).

[101] Constitution of the International Labor Organization, June 28, 1919, Preamble, 49 STAT 2712, 15 U.N.T.S. 35.

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