This memo addresses what the term “internationally recognized worker rights” means in the Trade Act of 1974

To: Liyan Yang, Professor

Guangxi Normal University

Peoples Republic of China

From: Amin Husain

Researcher, Program in International Human Rights Law

Indiana University School of Law at Indianapolis

Indianapolis, Indiana 46202 USA

Date: 9 April 2003

Re: “internationally recognized worker rights” in the Trade Act of 1974 (U.S.A.)

Pages: 2 Only

You requested research on the meaning of the term “internationally recognized worker rights,” which appears in the Trade Act of 1974. This memo addresses that issue.

The Trade Act is codified as 19 U.S.C. sections 2461-2466, with a list of definitions appearing in 19 U.S.C. 2467. About “internationally recognized worker rights” the statute’s relevant section states:

(4) Internationally recognized worker rights. The term "internationally recognized worker rights" includes--
(A) the right of association;
(B) the right to organize and bargain collectively;
(C) a prohibition on the use of any form of forced or compulsory labor;
(D) a minimum age for the employment of children, and a prohibition on the worst forms of child labor, as defined in paragraph (6); and
(E) acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health.

19 U.S.C. 2467(4)(A)-(E). In other words, the United States Congress employs the term “internationally recognized worker rights” to establish five essential labor rights: 1) freedom of association; 2) the right to organize and bargain collectively; 3) prohibitions on the use of forced or compulsory labor; 4) a minimum age for employment; and 5) acceptable conditions of work, including minimum wages and hours, and occupational safety and health. Id. The first three of these “internationally recognized worker rights” are fundamental human rights defined by the ILO.[1] The fourth and fifth rights, while not considered fundamental human rights by the ILO, are supported by various ILO Conventions.[2]

Something to keep in mind, as noted by other scholars, is that even though “internationally recognized worker rights” are derived from ILO Conventions, the GSP statutory language in the Trade Act does not provide any guidance as to how the five delineated rights are to be interpreted and which body of international jurisprudence is to be applied when evaluating a country's compliance with the labor rights mandate.[3] Additionally, Scholars have noted that the United States is viewed as imposing unilaterally developed standards that lack international consensus and legitimacy.[4] Critically, the list of “internationally recognized worker rights” does not include the principle of non-discrimination.[5]

[1] Convention Concerning Freedom of Association and Protection of Right to Organise (Convention No. 87), entered into force July 4, 1950, reprinted in INTERNATIONAL LABOUR ORGANISATION, INTERNATIONAL LABOUR CONVENTIONS AND RECOMMENDATIONS: 1919-1981, at 4 (1982) [hereinafter ILO CONVENTIONS]; Convention Concerning the Application of the Principles of the Right to Organise and to Bargain Collectively (Convention No. 98), entered into force July 18, 1950, reprinted in ILO CONVENTIONS; The Convention Concerning Forced or Compulsory Labour (Convention No. 29) entered into force May 1, 1932, reprinted in ILO CONVENTIONS; Convention Concerning the Abolition of Forced Labour (Convention No. 105) entered into force Jan. 17, 1959, reprinted in ILO CONVENTIONS; See Stephen I. Schlossberg, United States' Participation in the ILO: Redefining the Role, 11 COMP. LAB. L.J. 48, 79-80 (1989) (discussing the implementation of ILO labor standards by the United States GSP program).

[2] See id.

[3] 19 U.S. C. sec. 2462(4) (1988). While the rights embodied in the GSP statute derive from ILO Conventions, the President is not required to refer to standards adopted by the ILO in furtherance of these rights. Id; see Alston, supra note 46, at 7 (stating that the GSP statute "carefully eschews any reference to the ILO standards per se"). For example, the GSP Subcommittee refuses to recognize human rights violations against unionists as a violation of worker rights. See infra note 101 and accompanying text (discussing the GSP Subcommittee's practice of dismissing allegations of violence against Guatemalan union leaders as human rights violations). This distinction is in direct contravention of the ILO's standards regarding the freedom of association. See Alston, supra note 46, at 12 (noting that the GSP Subcommittee adopts a narrower interpretation of the freedom of association than the ILO in distinguishing between human rights and labor rights). Furthermore, the GSP statute does not require referral to any “international” standards in evaluating the respect or denial of the five “internationally recognized worker rights.”

[4] See Alston (discussing the lack of international consensus in the interpretation of the “internationally recognized worker rights”); Amato (discussing the possible implications of the United States unilateral definition of “international recognized worker rights”).

[5] See Karen F. Travis, Women in Global Production and Worker Rights Provisions in U.S. Trade Laws, 17 YALE J. INT'L L. 173, 177 (1992) (noting that there is a conspicuous absence of the fundamental right to equal opportunity and treatment); Compa (critiquing the lack of non-discrimination as an internationally recognized worker right); Alston (stating that the list of workers' rights is artificially restricted in that it does not include the principle of non-discrimination, which is necessary to combat not only gender and race discrimination, but also oppression on the basis of ethnicity or political beliefs); see also GSP Renewal Bill section 23, § 3 (1993) (proposing the inclusion of non-discrimination as a right recognized under the GSP); H.R. 5136, 98th Cong., 2d Sess. (1984).