International and European Protection of the Right to Strike

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ISBN: 9780198298540 | 0198298544
Cover: Hardcover
Copyright: 5/8/2003

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This book examines international and European protection of the right to strike. In particular, it focuses on the extent to which the International Labour Organisation, the Council of Europe and the European Union have set standards designed to protect those who organize or participate in industrial action.

Abbreviations

xxi

Tables of Cases

xxv

Tables of International Instruments

xxxiii

Introduction: Why Investigate Protection of the Right to Strike?

(34)

The Right to Strike: Anachronistic or Contemporary Issue?

(10)

Context and Definition

(3)

The Incidence of Industrial Action in the Twenty-first Century

(4)

The Relevance of Legal Responses to Industrial Action

(2)

Topical Issues Relating to `Good Governance'

(8)

Representative Democracy

(2)

Participatory Democracy

(2)

Deliberative Democracy

(2)

Questions of International Governance

(10)

Is There a Case for International and European Labour Standards?

(2)

What Labour Standards Should be Set and at What Level of Generality?

(1)

Who Should Set the Standards?

(2)

How Should Implementation of Standards be Monitored?

(1)

What Should be the Relative Roles of International and Regional Organizations?

(2)

Conclusion: The Aims of this Investigation

(3)

Part I: Reasons for Legal Protection and Restriction of Strikes

(54)

Introduction

(2)

The Implications of Categorizing the Right to Strike as a Civil, Political, and/or Social Right

(10)

Divergent Protection under International Law

(1)

The Case for and against Differential Treatment

(3)

The Overlap Between Categories of Rights

(1)

Conclusion

(3)

Reasons for Legal Protection of a Right to Strike

(26)

The Right to Strike as a Socio-economic Right

(7)

Determination of Fair Wages and Reasonable Working Conditions?

(1)

Compulsory Arbitration

(2)

Compulsory Mediation

(1)

The Impact of this Justificatory Basis on the Scope of the Right to Strike

(2)

The Right to Strike as a Political Right

(9)

The Right to Strike as a Facet of Industrial Democracy

(2)

Ideological Strikes Against Employer Policies

(2)

Strikes that Challenge Government Policy

(4)

The Right to Strike as a Civil Liberty

(10)

Freedom of Association

(4)

Freedom from Forced Labour

(2)

Freedom of Speech

(4)

Reasons for Restriction of Strikes

(14)

Harms to Employers

(2)

Harms to Other Workers and the Unemployed

(2)

Harms to Consumers

(1)

Harms to Public Welfare

(9)

Do Strikes Undermine Economic Efficiency and Productivity?

(3)

Can Strikes Threaten Democratic Institutions?

(1)

Public Sector Strikes

(2)

Political Impact Strikes

(2)

Conclusion: A Potentially Rich Justificatory Basis

(2)

Part II: Inclusion of the Right to Strike in International Instruments

(88)

Introduction

(4)

Standard-setting in the ILO

(30)

Constitutional Objectives

(11)

The First Stage: Post World War I

(3)

The Second Stage: Post World War II

(3)

The Third Stage: Post the Cold War

102

(4)

Tripartite Standard-setting

106

(3)

ILO Instruments on Freedom of Association and the Right to Strike

109

(14)

Post World War I: The First Worker Proposals for Protection of Freedom of Association and the Right to Strike

111

(3)

Post World War II: Renewed Trade Union Pressure

114

(6)

Post Cold War: Employer Attempts to Place `Dispute Resolution' on the International Labour Conference Agenda

120

(3)

Conclusion

123

(2)

Adoption of Human Rights Instruments in the Council of Europe

125

(24)

Constitutional Objectives

126

(3)

The Centrality of State Consent

129

(2)

Council of Europe Instruments Containing Provisions Protecting Freedom of Association and the Right to Strike

131

(15)

Exclusion of `Social Rights' from the Text of the European Convention on Human Rights (ECHR)

133

(3)

The Drafting (and Redrafting) of the European Social Charter (ESC)

136

(1)

Initial Debates Over the Adoption of a Social Complement to the ECHR

137

(3)

Inclusion of the Right to Strike and the Impact of the Tripartite Conference

140

(2)

The Content of the Right to Strike set out in the ESC

142

(2)

Subsequent Proposals, Amendments, and Recommendations

144

(2)

Conclusion

146

(3)

Setting Social Standards for and Beyond the European Union

149

(28)

The Origins of EU Constitutional Objectives

149

(3)

Finding a Treaty Base for Social Policy Measures

152

(15)

The Limitations of the Treaty of Rome 1957 and the Single European Act 1987

153

(4)

The Community Charter of the Fundamental Social Rights of Workers 1989

157

(3)

Explicit Exclusion of the `Right to Association' and the `Right to Strike' from Social Policy Post 1992

160

(3)

The EU Charter of Fundamental Rights 2000

163

(4)

Trade and Aid Conditionality

167

(3)

Conclusion

170

(7)

Conclusion: Explanations of Divergent Approaches

173

(4)

Part III: The Roles Played by Supervisory Bodies in Protection of a Right to Strike

177

(88)

Introduction

179

(6)

A Panoply of Supervisory Procedures in the ILO

185

(26)

Basic Procedures for Monitoring Implementation of ILO Standards

186

(2)

Creation of Special Machinery for Complaints Relating to `Freedom of Association'

188

(4)

Recognition of a Right to Strike in Cases Decided by the Committee on Freedom of Association (CFA)

192

(11)

The Gradual Evolution of CFA Jurisprudence

192

(4)

Reasons for the Adoption of this Principle

196

(3)

Acceptance of this Principle by other ILO Supervisory Bodies

199

(4)

The Follow-up to the ILO Declaration on Fundamental Principles and Rights of Workers 1998

203

(3)

Conclusion: Global Effectiveness of Standards

206

(5)

Divergent Remedial Mechanisms in the Council of Europe

211

(34)

The Contrast between the European Convention on Human Rights and the European Social Charter

211

(13)

The European Court and Commission of Human Rights under the ECHR

212

(3)

Reporting and Collective Complaints under the ESC

215

(1)

Initial Decisions on Supervisory Machinery Appropriate to a Social Charter

215

(2)

The Procedure Instigated by the ESC 1961

217

(2)

Recent Reforms to Charter Supervisory Machinery

219

(1)

The Operation of the Collective Complaints Procedure

220

(4)

Cases Decided by the European Commission and Court of Human Rights relating to Freedom of Association

224

(16)

Reluctance to Protect Trade Union Rights under Article 11 of the ECHR?

225

(4)

Partial Recognition of a Right to Strike

229

(3)

Protection of Negative Freedom of Association and its Implications

232

(5)

Reasons for Adoption of these Principles

237

(3)

Conclusion: Implications for Effectiveness of `Social Rights'

240

(5)

Judicial Circumspection in the EU

245

(20)

Jurisdiction of the European Court of Justice

246

(2)

Staff Cases

248

(2)

The `Fundamental Rights' Jurisprudence of the ECJ

250

(8)

Potential Conflict between Free Movement of Goods and Protection of a Right to Strike

253

(2)

Potential Conflict between Competition Rules and Industrial Action

255

(2)

Speculation on the Impact of the EU Charter of Fundamental Rights 2001

257

(1)

Conclusion: Influence via the Back Door?

258

(7)

Conclusion: Structural Constraints on Supervisory Initiatives

261

(4)

Part IV: Jurisprudence Relating to the Scope of the Right to Strike

265

(104)

Introduction

267

(4)

Existence and Exercise of the Right to Strike

271

(14)

Definition of a Strike

273

(2)

An Individual or a Collective Right?

275

(3)

The Potential for Abrogation of the Right: Is Compulsory Arbitration an Acceptable Alternative to Industrial Action?

278

(3)

Preconditions for Exercise of the Right

281

(4)

Permissible Objectives of a Strike

285

(18)

Conclusion of a Collective Agreement

286

(1)

Collective Bargaining

287

(3)

Economic and Social Interests

290

(4)

Prohibition of `Purely Political Strikes'

294

(9)

Ideological Strikes Against Employer Policies

295

(2)

Strikes that Challenge Government Policy in Repressive Regimes

297

(6)

Responses to Public Welfare Considerations

303

(14)

Public Sector Strikes

304

(6)

Public Employees Exercising the `Authority of the State' or Engaged in the `Administration of the State'

305

(2)

An Example: German Treatment of the `Beamte'

307

(3)

Strikes in Essential Services

310

(3)

States of Emergency and Economic Crises

313

(4)

Sanctions for Industrial Action

317

(12)

Constraints on Employer Powers

318

(3)

Civil Liability and Injunctions

321

(1)

Constraints on the Exercise of State Powers and Imposition of Criminal Penalties

322

(7)

Conclusion: Textual and Contextual Limitations on the Scope of the Right to Strike

325

(4)

Conclusion: Past Sources of Divergence and Prospects for Future Developments

329

(40)

A Summary of the Differences between Protection of the Right to Strike in International and European Organizations

331

(3)

Sources of Difference

334

(6)

Theoretical: Rights and Their Place within a `Democratic' Framework

334

(1)

Structural: Forms of International and European Governance

335

(1)

Standard-setting Mechanisms

336

(1)

Supervisory Mechanisms

337

(2)

Contextual: Balance of Power between States, Capital, and Labour

339

(1)

How is the Context Changing?

340

(27)

Changes in Work

341

(3)

Post-Cold War Democratization and Globalization

344

(4)

Codes of Conduct and Corporate Social Governance

348

(1)

Codes Initiated by International Organizations

349

(3)

Unilateral Action by Private Corporations

352

(3)

Issues Facing the ILO

355

(1)

Arguments for Reform

355

(2)

The ILO Response

357

(3)

Implications for Protection of the Right to Strike

360

(1)

Issues Facing European Organizations

361

(1)

Policy Avenues Contemplated by the European Union

362

(3)

Potential for Reform within the Council of Europe

365

(2)

The Outlook

367

(2)

Appendix 1 ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organise 1948

369

(3)

Appendix 2 ILO Convention No. 98 on the Right to Organise and Collective Bargaining 1949

372

(2)

Appendix 3 International Covenant on Civil and Political Rights 1966, Article 22 and International Covenant on Economic, Social and Cultural Rights 1966, Article 8

374

(2)

Appendix 4 European Convention on Human Rights 1950, Article 11

376

(1)

Appendix 5 European Social Charter 1961, Articles 5, 6, 31, and Appendix

377

(2)

Appendix 6 Community Charter of the Fundamental Social Rights of Workers 1989, Articles 11--14

379

(1)

Appendix 7 EU Charter of Fundamental Rights 2000, Articles 12, 28, 51, and 52

380

(2)

Appendix 8 Supervisory Cycles of the European Social Charter

382

(3)

Bibliography

385

(30)

Index

415

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International and European Protection of the Right to Strike

Summary

Table of Contents

Supplemental Materials