The criticisms of the ILO’s adoption of the “Core Labour Standards” made by Philip Alston. What are Alston's criticisms, and how would you defend the ILO against them?

Introduction

The International Labour Organisation is the international forum for debates regarding labour issues.[1] Labour standards are not an abstract or academic problem that the market can deal with without any requirement of regulatory intervention; in fact, one could argue that the market can exaggerate the problems. This is evidenced by the argument that wholesale poor labour conditions within a country can give that country an unfair advantage within the global market, providing an incentive for the said company to reduce its labour conditions to make way for greater profits, eventually pressuring those countries with strong conditions to reduce them in order to remain competitive.[2] Amongst divided opinion, there was a concern by some that countries with high standards could use the “poor labour conditions” defence to invoke tariffs against more competitive countries; clearly a set of international standards was needed in order to address potential imbalances, cue the Core Labour Standards (CLS).[3]


Criticisms of the CLS

However, the CLS has not gone without criticism. Alston begins with a criticism that the standards are expressed as principles as opposed to rights.[4] Alston advances that the substitution of principles instead of rights is more than an exercise of semantics but instead is indicative of a dilution of power of the said standards. Alston further argues that the scope from which these “principles” can be obtained if difficult to ascertain due to their undefined nature. Alston argues that there is an abundance of jurisprudence created by the supervisory bodies and, as such, it is not clear what relation such jurisprudence is to bear with the said standards.[5]

It seems that Alston is at equal unease in relation to what he describes as “[…] non-binding instruments, general and determinedly soft standards, promotional means of enforcement, and ambivalence at best on the part of outside evaluators”.[6] The learned scholar argues that the use of soft enforcement mechanisms, instead of harder measures, has diluted the impact of such measures and could lead to a situation where the governments in question pay little attention to them.

The Defence

One of the problems with an international set of standards which are enforced using a hard mechanism approach is that they do not appreciate the cultural, economic, and societal differences which can impact upon the effectiveness of the said rules. As Kahn-Freund has frequently argued: a carbon-copied legal transplant that ignores such weaknesses is destined for both failure and subsequent damage.[7] As such, softer mechanisms can grant the flexibility and discretion which better respects these differences.

It can also be argued that the use of principles as opposed to rights has the same effect; it gives the states a degree of manoeuvrability to integrate the standards into their surrounding environment in a way that causes as little unnecessary disruption as is possible.


[1] Jean Michael Servais, International Labour Organization (ILO), (Kluwer Law International, 2011), 84.
[2] Ibid, 85.
[3] Ibid.
[4] Phillip Alston, ‘”Core Labour Standards” and the Transformation of the International Labour Rights Regime’, (2004) 15(3) EJIL 457, 490.
[5] Ibid, 492.
[6] Ibid, 507.  
[7] Kahn-Freund, O. (1974). “On Uses and Misuses of Comparative Law”, 37(1) M.L.Rev, 1, 2.

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