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What's happening in Wisconsin breaches international human rights law

Issue date
Solidarity with US unions

We are one campaign

30 March 2011

As part of the TUC's support for the US trade union movement's campaign to defend collective bargaining rights for public sector workers, we are publishing information on the background to the campaign every day in the fortnight before our day of solidarity on Monday 4 April.

Lance Compa of Cornell University wrote this legal memorandum as background for Human Rights Watch's 25 February statement in support of public employees' trade union rights.

Moves by state governments in Wisconsin, Ohio, Indiana and other states to strip public sector employees of collective bargaining rights violate international human rights standards on workers' freedom of association.

Freedom of association principles apply in both the private and public workplace, not just in life outside of work. Governments are obligated to protect workers' freedom of association against abuses by private employers. When government itself is the employer, it has the same obligation to afford, respect, and protect these rights.

The International Human Rights and Labor Rights Framework

International human rights law affirms that rights to organize unions and to bargain collectively are fundamental to freedom of association.

The Universal Declaration of Human Rights says 'Everyone has the right to form and to join trade unions for the defense of his interest.'[1]

The International Covenant on Civil and Political Rights' says '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]

The International Covenant on Economic, Social and Cultural Rights confirms 'The right of everyone to form trade unions for the promotion and protection of his economic and social interests.'[3]

The United States championed the International Labor Organization's 1998 Declaration on Fundamental Principles and Rights at Work. Under the Declaration, the United States pledged 'to promote and to realize . . . the principles concerning the fundamental rights' defined in the Declaration, the first of which is 'freedom of association and the effective recognition of the right to collective bargaining.'[4]

The ILO has adopted two Conventions on freedom of association. Under ILO Convention No. 87, 'Workers ... without distinction whatsoever, shall have the right to establish and ... to join organizations of their own choosing without previous authorization.'[5] ILO Convention 98 says, 'Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.'[6]

ILO member states are bound by the two freedom of association conventions whether or not they have ratified the conventions. The ILO Committee on Freedom of Association (CFA), which examines complaints from workers' and employers' organizations against ILO members and whose jurisdiction the United States has recognized, has stated, 'When a State decides to become a Member of the Organization, it accepts the fundamental principles embodied in the Constitution and the Declaration of Philadelphia, including the principles of freedom of association.'[7] The CFA has also declared that ILO members, by virtue of their membership, are 'bound to respect a certain number of general rules which have been established for the common good.... Among these principles, freedom of association has become a customary rule above the Conventions.'[8]

Freedom of Association and Public Sector Workers

The ILO Committee on Freedom of Association has long confirmed that public sector employees are covered by these international standards. The Committee has proclaimed a 'general principle' that:

Article 2 of Convention No. 87 is designed to give expression to the principle of non-discrimination in trade union matters, and the words 'without distinction whatsoever' used in this Article mean that freedom of association should be guaranteed without discrimination of any kind based on occupation, sex, colour, race, beliefs, nationality, political opinion, etc., not only to workers in the private sector of the economy, but also to civil servants and public service employees in general.[9]

The ILO Committee has further ruled:

The standards contained in Convention No. 87 apply to all workers 'without distinction whatsoever', and are therefore applicable to employees of the State. It was indeed considered inequitable to draw any distinction in trade union matters between workers in the private sector and public servants, since workers in both categories should have the right to organize for the defence of their interests.[10]

The denial of the right of workers in the public sector to set up trade unions, where this right is enjoyed by workers in the private sector, with the result that their 'associations' do not enjoy the same advantages and privileges as 'trade unions', involves discrimination as regards government-employed workers and their organizations as compared with private sector workers and their organizations.[11]

The right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association, and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent. The public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof.[12]

Convention No. 98, and in particular Article 4 thereof concerning the encouragement and promotion of collective bargaining, applies both to the private sector and to nationalized undertakings and public bodies.[13]

[P]riority should be given to collective bargaining as the means to settle disputes arising in connection with the determination of terms and conditions of employment in the public service.[14]

Measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with Convention No. 98.[15]

A US Test Case: Collective Bargaining in North Carolina

In 2007, the ILO Committee on Freedom of Association ruled on a complaint brought by public employees in North Carolina over restrictions on their collective bargaining rights under state law. In that case, the ILO Committee said:

[P]rovisions which ban trade unions from engaging in collective bargaining unavoidably frustrate the main objective and activity for which such unions are set up, and this is contrary not only to Article 4 of Convention No. 98 but also Article 3 of Convention No. 87 which provides that trade unions shall have the right to exercise their activities and formulate their programmes in full freedom. . . . questions relating to conditions of employment should not be regarded as falling outside the scope of collective bargaining conducted in an atmosphere of mutual good faith and trust. . . . Legislative intervention is not a substitute for free and voluntary negotiations over the terms and conditions of employment of public employees.[16]

The ILO Committee concluded:

In conclusion, the Committee emphasizes that the right to bargain freely with employers, including the government in its quality of employer, with respect to conditions of work of public employees . . . constitutes an essential element in freedom of association, and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent. The public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. Any such interference would appear to infringe the principle that employers' and workers' organizations should have the right to organize their activities and to formulate their programmes.[17]


Article 23, Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 10, 1948).

Article 22, International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.

Article 8, International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3.

Article 2, Declaration on Fundamental Principles and Rights at Work (ILO 1998).

Article 2, ILO Convention No. 87 concerning Freedom of Association and Protection of the Right to Organise, adopted July 9, 1948, 68 U.N.T.S. 17, entered into force July 4, 1950.

Article 4, ILO Convention No. 98 on the Right to Organise and Collective Bargaining (1949)

ILO Committee on Freedom of Association, Digest of Decisions: Fundamental obligations of member States in respect of human and trade union rights (Procedure in respect of the Committee on Freedom of Association and the social partners: Function of the ILO and mandate of the Committee on Freedom of Association), 1996 (hereafter ILO Digest of Decisions), para. 10. The ILO Committee on Freedom of Association reviews the complaints, all of which must allege violation of the right to freedom of association, and makes determinations based on the facts and applicable legal standards and recommends measures to resolve the disputes.

ILO Committee on Freedom of Association, Fact-Finding and Conciliation Commission Report: Chile, 1975, para. 466.

ILO Digest of Decisions, para. 209.

Ibid., para. 218.

Ibid., para. 222.

Ibid., para. 881.

Ibid., para. 885.

Ibid., para. 886.

Ibid., para. 912.

Compliant Against the United States (Case No. 2460), Report of the Committee on Freedom of Association No. 344 92007), para. 991 - 993.

Ibid., para. 995.

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