COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTSThirty-first sessionGeneva, 10-28 November 2003Item 3 of the provisional agenda

SUBSTANTIVE ISSUES ARISING IN THE IMPLEMENTATION OF THE INTERNATIONAL COVENANT ON ECONOMIC, sOCIAL AND CULTURAL RIGHTS

Day of General Discussion on article 6 of the Covenant (the right to work)Monday, 24 November 2003

THE RIGHT TO WORK: TOWARDS A GENERAL COMMENT ON ARTICLE 6 OF THE INTERNATIONAL CoVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS*

Background paper submitted by Professor Akmal Saidov (Uzbekistan)**

Introduction

General characteristics of the right to work

1.Work is a basic human right. Work is purposeful human activity directed towards preserving, modifying and adapting the habitat, creating physical and intellectual assets and producing goods and services to satisfy personal and social needs. Everyone has the right to work, which is a prerequisite for a life of human dignity. The right to work can be realized through a series of mutually complementary approaches such as access to decent work, a defined employment policy and protection against unemployment, programmes to secure health and safety at work, guarantees of freedom of association and the effective recognition of the right to collective bargaining, elimination of all forms of forced or compulsory labour, prohibition of child labour, intolerance of discrimination in respect of employment and occupation, application of vocational and technical training programmes developed by the International Labour Organization (ILO), or the adoption of specific legal contracts. It also includes a number of elements whose implementation is guaranteed by law (labour codes), such as the principle of non-discrimination in recruitment, hiring, career development and dismissal.

2.The Committee has been able to accumulate a mass of information about the right to work. By the close of its thirtieth session, it and the sessional working group of governmental experts that predated it had examined 153 initial and 71 second periodic reports concerning rights covered by articles 6 to 9, 10 to 12 and 13 to 15 of the Covenant and 110 global reports of States parties. The reports have come from a significant number of States parties to the Covenant, which currently number 147. They represent all regions of the world, with a variety of socio-economic, cultural, political and legal systems. The reports submitted so far illustrate many of the problems that arise in implementing the Covenant and they present an exhaustive picture of the overall situation regarding the enjoyment of economic, social and cultural rights, including the right to work. Furthermore, in 1989 the Committee held a one-day general debate on the right to work. It cooperates closely with the other main United Nations treaty-monitoring bodies in upholding economic, social and cultural rights. At its sixth session, for example, it delegated one of its members to follow the work of the Committee on the Elimination of Discrimination against Women. It has joined the Committee on the Rights of the Child in stressing that States have a duty to provide at least a minimum level of economic, social and cultural rights for all children, including children with disabilities and children living in homes and institutions.

3.The right to work is an inalienable part of international human rights law. It is recognized in many international treaties. Article 55 of the Charter of the United Nations (1945) recognized the attainment of full employment as an important objective of the work of the Organization. Article 23 of the Universal Declaration of Human Rights was the first articulation in the history of international human rights law, of the fundamental, inherent and inalienable labour rights to work, to free choice of employment, to protection against unemployment, to just and favourable conditions of work, to equal pay for equal work without discrimination, to just and satisfactory remuneration affording workers and their families a decent living, and to form and join trade unions.4.The most comprehensive provisions on the right to work in international human rights law are to be found in articles 6 to 8 of the International Covenant on Economic, Social and Cultural Rights. The Covenant enshrines the right to work (art. 6); the right to just and favourable conditions of work, including fair pay without discrimination; a decent living for workers and their families; safe and healthy working conditions; equal opportunity for everyone to be promoted in their employment, subject to no considerations other than those of seniority and competence; the right to rest; and special protection for the work and interests of women (art. 7). It contains language on the prohibition of forced labour and the unfettered enjoyment of the right to join trade unions and to strike (art. 8).

5.The right to work is recognized in article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination of 1965, article 10 of the Declaration on the Elimination of Discrimination Against Women of 1967, article 11 of the Convention on the Elimination of All Forms of Discrimination against Women of 1979, principle 9 of the Declaration on the Rights of the Child of 1959, articles 32, 34 and 36 of the Convention on the Rights of the Child of 1989, and article 11 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families of 1990. It is also enshrined in a number of regional human rights treaties such as the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (art. 4), the Revised European Social Charter of 1961 (art. 1), the Charter of Fundamental Rights of the European Union of 2000 (art. 15), the African Charter on Human and People’s Rights of 1981 (art. 16), the American Convention on Human Rights of 1969 (art. 6) and its 1988 Additional Protocol in the Area of Economic, Social and Cultural Rights, and the Universal Islamic Declaration of Human Rights of 1981 (sect. VIII).

6.The largest collection of normative provisions on the right to work is found in the Charter, conventions and recommendations of the International Labour Organization, a body created specially to address labour-related challenges and the prime source of international standards on work, labour law and social partnership. Since its creation in 1919, ILO has drawn up 184 conventions and 192 recommendations that have come to be regarded as an international labour code. ILO normative instruments contain programme provisions defining the main areas where international labour standards are needed. The idea mooted by ILO of establishing an international labour code deserves wholehearted support. The right to work is the subject of numerous bilateral (sometimes trilateral) agreements (treaties) on labour migration.

7.The right to work is a natural and basic human right that is not only pivotal to the whole range of social and economic rights and freedoms, but also fundamental to the entire system of human rights and freedoms. Despite this, however, the recognition, consolidation and, especially, interpretation and enjoyment of the right to work are among the most difficult of all human rights and freedoms.

8.The right to work is of fundamental importance for the enjoyment of other human rights affecting the essentials of human existence and way of life: the right to life, food, housing, human dignity, non-discrimination, equality, privacy, access to information, education, and freedom of association, assembly and movement. The human rights and freedoms recognized in international human rights law are meaningless to people deprived of the right to work and, hence, of a sufficient income and a decent living.

9.Work underpins the existence and development of human society; it supports life and satisfies basic human needs. By no means every form of work satisfies human needs and aspirations or dignifies human beings, however. What is required is not simply work or fuller employment, but decent work. Decent work is work of high productivity and quality, performed in decent conditions, that affords each worker the maximum possible satisfaction and allows him to demonstrate his capabilities and workmanship in full; work that does not infringe workers’ rights but generates a decent income and is performed with due regard for professional ethics.

10.The Committee notes that the issue of decent work is addressed directly at the level of enterprises and organizations, which are a key component in development and employment. Their activity is of the greatest importance for quality of work, further development of labour relations, vocational training and employment.

11.ILO is actively campaigning to develop further its Decent Work Agenda. It has a unique opportunity to promote the attainment of decent work, because it brings together representatives of Governments, employers and workers who together are able to tackle any problem, including the problem of decent work. It can capitalize on the potential of enterprises and business circles because they are directly represented within the Organization. The 1998 ILO Declaration on Fundamental Principles and Rights at Work and its follow-up mechanism are of paramount importance in efforts to secure decent work.

12.In the view of the Committee, there are four challenges to address.

First, access to decent work, in other words making decent work possible. Decent work demands considerable outlay. To assess the real costs and advantages of decent work, States must analyse and demonstrate in more detail the relationship between the social worth and efficiency of decent work.

Second, ILO, its tripartite partners and others must make deliberate, long-term efforts to explain the merits of decent work.

Third, Governments need to develop logically consistent political programmes. A decent work programme must be wide-ranging. It must include economic, social and political goals. A decent work programme cannot be worked out without political support from Governments.

The fourth challenge is to ascertain whether decent work is a practical goal in the new global economy. Deepening divisions in work and incomes among and within States threaten the very legitimacy of the global economy. The attempt to introduce a social dimension into globalization remains very limited in scope.

13.Despite the fact that the international community has repeatedly confirmed the importance of ensuring full respect for the right to work, there remains an alarming and significant gulf between the standards established in article 6 of the Covenant and the de facto situation in many parts of the world. In countries grappling with resource-related and other constraints, these problems are often acute. According to data from ILO, economic globalization and refugee problems have left over 1 billion people unemployed or on part-time work worldwide. Thousands and thousands of people are employed in illicit and hazardous work. According to official statistics, for every 100 workers in the world, 6 people are completely unemployed and 16 part- or full-time workers earn less than the bare minimum of US$ 1 a day. There is no sign that these numbers are shrinking. It seems clear that no State party is untroubled by significant problems of one kind or another in relation to the right to work. The Committee is aware that for millions of people all over the world the full realization of the right to work is still a distant goal. In many cases, especially for the unemployed and poverty-stricken, it is a receding one. The problem of poverty is inextricably linked with unemployment, although the categories of the poor and the unemployed are certainly not one and the same, because the former includes many people in work, especially families with many children, people with disabilities and old people. The Committee acknowledges the existence of significant structural and other obstacles created by international and other factors outside the control of Governments that make it difficult to proceed to full implementation of article 6 in many States parties.

14.ILO notes a “deterioration of employment opportunities in most industrialized and developing countries” and expresses “the conviction that poverty, unemployment and inequality of opportunity are unacceptable in terms of humanity and social justice, can provoke social tension and thus create conditions which can endanger peace and prejudice the exercise of the right to work, which includes free choice of employment, just and favourable conditions of work and protection against unemployment”. The concept of “full employment” does not mean abolishing unemployment altogether, merely containing it at a level sufficient to ensure the normal operation of the market economy. ILO instruments speak of an “acceptable” level of unemployment compatible with full employment.

15.In some of the reports considered by the Committee, States parties have admitted to and described the problems they face in realizing the right to work. However, most of the information supplied has been insufficient to enable the Committee to gain a proper insight into the situation in any specific State. Accordingly, these general comments are intended to elucidate certain basic questions which, in the Committee’s view, are material to this right. To assist States parties to implement the Covenant and abide by their reporting obligations, this general comment focuses on the normative content of article 6 (Part I), States parties’ obligations (Part II), violations (Part III), implementation at the national level (Part IV) and the obligations of actors other than States parties (Part V).

I. NORMATIVE CONTENT OF ARTICLE 6

16.Article 6, paragraph 1, of the Covenant defines the right to work and article 6, paragraph 2, provides an exhaustive list of States parties’ obligations.

17.In article 6 of the Covenant the right to work is interpreted as the right of everyone to the opportunity to gain his living by work which he freely accepts. The freedom to work and to choose a specific form of work are thereby emphasized; the duty of the State not only to recognize the right to work but also to take proper measures to uphold this right is then laid down. Freely chosen work is one of the crucial principles that determine a person’s way of life. For most people, whether working in the formal or the informal sector, work is the main source of income on which their existence, survival and life depend.

18.The core components of the right to work are:

(a)The right of everyone to the opportunity to gain their living by work;

(b)The right of everyone to perform work that they freely choose or accept;

(c)The duty of the State to take appropriate measures of a legislative, administrative and judicial nature and economic and psychological steps to fully uphold the right to work;

(d)The duty of the State to afford everyone the opportunity to earn their living by work;

(e)The duty of the State to afford everyone the opportunity freely to choose or accept their line of work;

(f)The duty of the State to ensure vocational and technical training, social and economic development and full productive employment with a view to realizing the right to work;

(g)The duty of the State to establish conditions guaranteeing fundamental political and economic liberties.

19.Upholding the right to work, i.e. offering a legal guarantee of the attainment of universal employment, is very important. Accordingly, the Committee regards the promotion of full, productive and freely chosen employment as a means to realize the right to work in practice, and promoting such employment must be a high-priority component of States’ economic and social policies. Under the Charter of the United Nations, States have undertaken to promote an increased standard of living and “full employment”. They must promote the development of the labour market, especially in the public, “non-market” sector of the economy. The growing unemployment all over the world could lead to even greater social tension. The Committee notes that the rise in unemployment among young people is a matter of particular concern. The right to work will take on increasing importance as Governments around the world gradually cease to provide basic services to the public, transferring these functions to market and non-governmental structures instead.

20.In the view of the Committee, the right to work should not be interpreted in a narrow or restrictive sense, equating it, for example, with the provision of work, meaning simply that a specific individual performs a particular job. Rather it should be seen as the right to work with dignity, thereby enabling people, wherever possible, to gain their living by work which they freely choose or accept. This is pertinent for at least two reasons. First, the right to work is related in full measure to other human rights and the principles underlying the Covenant. The “opportunity to gain one’s living by work”, from which, as has been stated, flows the right to work as enshrined in the Covenant, requires the term “work” to be interpreted in the light of various other considerations. Second, the reference in article 6 of the Covenant should be interpreted as applying not simply to work as such, but to decent and freely chosen work.

21.Individuals must have the opportunity freely to choose their line of work. However, individual freedom and opportunities as to choice of forms and varieties of work are not absolute or unlimited. Individuals are embedded in their environment, in society and the State, where certain natural and social conditions and norms of behaviour prevail which an individual cannot discount. The Committee believes that States parties must attend to the rational distribution and regulation of labour potential and the employment of their citizens by taking measures to afford every citizen capable of working the opportunity “to gain his living by work which he freely chooses or accepts” and stimulating by legal and economic means a commitment to job creation on the part of public- and private-sector employers alike.

22.The right to work comprises three interconnected elements. First is the right of every individual to have the opportunity to gain his living by work. Second is the right of every individual to a free and non-discriminatory choice of varieties and forms of work. And third is the right to keep one’s job and be protected against arbitrary and unwarranted dismissal by an employer. Thus, only after securing and subsequently keeping a job can an individual be deemed to have exercised his right to work. Accordingly, the right to work must be upheld through effective legal, social and economic safeguards. At the same time, every individual’s right to work is matched by the State’s obligation to ensure the realization of this right.

23.Freedom of work means that individuals alone have the exclusive right to manage their capacity for productive and creative work. In realizing the right to work, an individual is free to choose from a range of activities and occupations on varying terms and of varying duration. Here the role of the State is not to obstruct the individual’s realization of his right to work. However, the individual’s right freely to decide the nature of the paid employment he wishes to perform, his employer and his terms of employment needs protecting.

24.Freedom to work and the right freely to manage one’s capacity for work imply the right not to work at all. Everything depends on the will and the wishes of the individual. The experience of countries with free market economies demonstrates that there are a host of subjective and objective factors that affect a person’s opportunities and willingness to exercise his right to freedom of work. Freely chosen work remains one of the most important determining principles in human life. Everyone must have the right freely to choose or accept a type and form of work on the basis of his physical and intellectual abilities, material and spiritual values, natural inclinations and social circumstances. Freedom to work also embraces freedom from forced labour in its different forms and manifestations. In international instruments, any work that an individual has not freely chosen is deemed to be forced labour.

25.To a great extent, the right to work and freedom to work can be effectively realized only by affording everyone just and favourable conditions of work. The right to work can be realized where there are special legal safeguards in place to stimulate and protect human work. The existence of work and employment safeguards must be complemented by just and favourable conditions of work. Indeed, articles 6 and 7 of the Covenant are not discrete provisions; the right to work necessarily incorporates efforts to ensure just and favourable conditions of work. This general comment, however, is confined to article 6 and issues arising under article 7 are not examined here.

26.The term “child labour” does not cover all work performed by children under 18. Millions of young people are engaged in lawful work, either paid or unpaid, that is appropriate to their age and level of maturity.

27.The worst forms of child labour occur in nearly all countries, but States are still not taking appropriate action to eradicate them. Despite increasing efforts by Governments, management and labour representatives and civil society to tackle the problem of child labour, it is still widespread. According to the latest ILO estimates for the year 2000, of approximately 211 million children aged 5-14 involved in some form of economic activity, 186 million are engaged in child labour that should be abolished, including the worst forms of child labour. Of approximately 141 million children aged 15-17 involved in economic activity, 59 million are engaged in hazardous work. More than 8 million children around the world are engaged in indisputably the worst forms of child labour. The Committee believes that they are deprived of the opportunity to receive an education, their health is in danger and their fundamental freedoms have been taken away. Many are involved in the worst forms of child labour, which cause irreparable physical and psychological trauma or endanger their lives. The Committee is of the view that a competent national body should expose places that use child labour and establish appropriate mechanisms to monitor the implementation of the relevant ILO Convention, to the point of applying criminal or other sanctions if circumstances warrant. The Committee believes that the solution to the problems of child labour depends decisively on economic development and poverty reduction. This will make it possible to raise the level of family prosperity, throw open access to education and eventually eradicate child labour.

28.The prohibition of child labour and strict regulation of work performed by adolescents is an important area of activity for ILO. ILO has adopted a number of conventions and recommendations to eliminate child labour and regulate work performed by young people in relation to the following issues:

(a)Minimum age of employment;

(b)Night work by adolescents and young people;

(c)Medical examinations of children and adolescents;

(d)Vocational training and career guidance for adolescents;

(e)Terms of employment for adolescents and young people.

The 1998 Declaration on Fundamental Principles and Rights at Work and its follow-up mechanism gave a powerful impetus to efforts to combat child labour, the effective elimination of child labour was included as one of the four basic rights in the Declaration. The Convention (No. 138) concerning Minimum Age for Admission to Employment of 1973 and the Convention (No. 182) concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour of 1999 are two of the basic conventions in this field. The Committee thinks that new approaches are required for the prohibition and elimination of the worst forms of child labour as a top priority of national and international action. The effective eradication of the worst forms of child labour requires States to take immediate, comprehensive action.

29.The Committee believes that the suppression of forced labour is among the most difficult of human rights problems. Forced or compulsory labour means any work or service demanded of an individual under threat of punishment, for which this individual has not volunteered his services. Article 1 of the Convention (No. 29) concerning Forced or Compulsory Labour proclaims the duty of each member of ILO “to suppress the use of forced or compulsory labour in all its forms within the shortest possible period”. The Committee notes that the competent authorities should neither resort nor permit recourse to forced or compulsory labour benefiting private individuals, companies or firms. Unlawful enlistment in forced labour must be subject to criminal prosecution and every State party must ensure full and effective observance of the sanctions prescribed by law.

30.The Committee notes that the following main forms of forced labour still persist:

(a)Slavery and abduction;

(b)Compulsory participation in public works;

(c)Agricultural press-ganging;

(d)Domestic service under conditions of forced labour;

(e)Debt bondage;

(f)Work performed on the order of military authorities;

(g)Forced labour in connection with trafficking of human beings;

(h)Certain types of work performed by prisoners.

The groups most vulnerable to forced labour are children, women, the poor and migrants. Armed conflicts exacerbate the problem.

31.The Committee is of the opinion that forced labour, for all the opprobrium attaching to it, has not become a priority either for ILO or for other international organizations. The issue of forced labour is now being taken up by a series of international organizations, some jointly with ILO. Among the organizations dealing with this problem in the United Nations system are the United Nations Children’s Fund (UNICEF), the World Health Organization (WHO), and the United Nations Development Fund for Women (UNIFEM). The issue of forced labour demands efforts from the entire world community and all ILO’s tripartite partners at the national level.

II. STATES PARTIES’ OBLIGATIONS

General legal obligations

32.While the Covenant provides for progressive realization and acknowledges the constraints due to the limits of available resources, it also imposes on States parties various obligations which are of immediate effect. States parties have direct obligations as regards the right to work, such as the guaranteeing that the right will be exercised without discrimination of any kind (art. 2, para. 2) and taking steps (art. 2, para. 1) towards the full realization of article 6. Such steps must be deliberate, concrete and targeted as accurately as possible on the fulfilment of these obligations. States parties must use all appropriate means including, specifically, the adoption of legislation. The Committee recognizes that the existence of labour legislation conforming to international labour standards is a precondition for the full realization of the right to work. At the same time, the adoption of legislation by no means exhausts States parties’ obligations under article 6 of the Covenant. In cases where the right to work is constitutionally enshrined or the provisions of article 6 of the Covenant have been directly incorporated into national law, the Committee would wish to receive information about the extent to which this right is protected in judicial practice (i.e. can it be invoked in the courts?).

33.The full realization of the right to work cannot normally be achieved in a short space of time. The principal obligation is to take steps to ensure the progressive full realization of article 6. In the Committee’s view, gradual realization of the right to work over a defined period should be interpreted not as rendering meaningless the obligation upon the State party, but rather that States parties are under a constant, specific obligation to advance as rapidly and effectively as possible towards full implementation of article 6.

34.The Committee is of the view that each State party has a basic minimum obligation to ensure the realization of the right to work, albeit at a minimum level, and to take steps to this end as far as its available resources will permit. Limited resources are no excuse for failing to monitor the extent of implementation, and especially non-implementation, of the right to work and the obligation to develop strategies and programmes to realize this right. The Committee has already dealt with these issues in its general comments No. 1 (1989) and No. 3 (1990).

35.The Committee considers that the full realization of article 6 of the Covenant requires States parties to take the following specific measures:

(a)Expansion of employment through the promotion of balanced, long-term economic growth combined with a sensible social and economic policy;

(b)Reduction of poverty through productive paid employment and access to basic goods and services;

(c)Equality in employment through improvements in the operation of the labour market and greater balance between supply and demand for labour;

(d)Increased productivity and better jobs in both the formal and informal sectors of the economy;

(e)Protection of particularly vulnerable groups of workers and elimination of discrimination against certain groups such as women, young people, disabled people, older workers and migrants;

(f)Greater attention to the problem of migration, which raises extremely serious issues of job-placement and integration both in countries experiencing migrant inflows and in the migrants’ countries of origin.

36.As with all the other rights guaranteed by the Covenant, it must be assumed that regressive measures as regards the right to work, especially where sackings are concerned, are not permissible. If any regressive measures are taken deliberately, the State party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are duly justified by reference to the totality of the rights provided for in the Covenant in the context of the full use of all the State party’s available resources.

37.As with all human rights, the right to work envisages three categories or levels of obligations on the State party, namely respect, protection and fulfilment. In turn, the obligation to fulfil implies the obligations to assist, provide and stimulate. The obligation to respect requires the State to refrain from interfering directly or indirectly with the right to work. The obligation to protect requires it to take steps to avoid infringements by third parties of the safeguards provided for under article 6. Finally, the obligation to fulfil requires States to take appropriate legislative, administrative, budgetary, judicial and other measures and offer incentives to ensure full realization of the right to work.

Specific legal obligations

38.The right to work, like any other human right, imposes on States parties obligations to respect, obligations to protect and obligations to fulfil.

Obligations to respect

39.The obligation to respect requires States parties to refrain from interfering directly or indirectly with the right to work. This includes refraining from any practice or activity that denies or limits equal access to decent work; abstaining from measures that would curtail or restrict equal access to work by all, including persons belonging to minorities, asylum-seekers, immigrants in voluntary detention and illegal immigrants, and reducing inequality between them and other workers; abstaining from discriminatory practice as a State policy; and eschewing discriminatory attitudes towards work performed by women and women’s needs in this area.

40.The Committee notes that during armed conflicts, emergencies and natural disasters, the right to work includes obligations by which States parties are bound under international humanitarian law.

Obligations to protect

41.The obligation to protect requires States parties to prevent third parties from interfering in any way with the enjoyment of the right to work. Third parties include individuals, corporations and other persons having legal personality, and agents acting under their authority. The obligation includes adoption of the necessary and effective legislative and other measures to restrain, for example, third parties from doing anything contrary to the principle of equal access to decent work. The obligation to protect requires States parties to bring national labour law into line with international standards on the right to work and take steps to ensure equality when enforcing it; to see to it that privatization does not lead to job cuts; to develop plans for training and refresher courses to help people obtain work; and to pursue policies to tackle unemployment.

Obligations to fulfil

42.The obligation to fulfil can be disaggregated into the obligations to facilitate, promote and provide. The obligation to facilitate requires the State to take positive steps to assist individuals and communities to enjoy this right. The obligation to promote obliges it to ensure that adequate information is made available about the exercise of the right to work. States parties are also obliged to fulfil (provide) the right when individuals or a group are unable, for reasons beyond their control, to exercise it themselves by the means at their disposal.

43.The obligation to fulfil requires States parties to do whatever is required to give full effect to the right to work. This includes according this right sufficient recognition within the national political and legal systems, preferably by enacting it into legislation; adopting a national employment strategy and plan of action; ensuring that, economically, the right to work is accessible to everyone; and facilitating fuller and more reliable access to decent work, particularly in rural and poor urban areas.

International obligations

44.Paragraph 13 of general comment No. 13 (1990) notes that States parties must “take steps, individually and through international assistance and cooperation, especially economic and technical” to realize the rights enshrined in the Covenant, and first and foremost the right to work. In accordance with Articles 55 and 56 of the Charter of the United Nations, and the requirements of article 2, paragraph 1, and articles 6, 22 and 23 of the Covenant, States parties must recognize the essential role of international cooperation and assistance and take joint and separate action to achieve the full realization of the right to work. Paragraph 3 of general comment No. 1 (1989) notes that, in its report to the Committee, a State party should indicate the “nature” and extent of any international assistance it may need.

45.To comply with their international obligations in relation to the right to work, States parties have to respect the enjoyment of the right in other countries. International cooperation requires States parties to refrain from actions that interfere, directly or indirectly, with the enjoyment of the right to work in other countries. No action taken within one State party’s jurisdiction should make it impossible for another country to give effect to the right to work for persons under its jurisdiction.

46.States parties should refrain from imposing direct or indirect restrictions on other countries or doing anything similar that would impede the free movement of labour necessary for the enjoyment of the right to work. Work should never be used as an instrument of political or economic pressure. In this regard, the Committee recalls its position, stated in its general comment No. 8 (1997), on the relationship between economic sanctions and respect for economic, social and cultural rights.

47.States parties must prevent their own citizens and companies from violating the right to work of individuals in other countries. Where they can influence third parties and thereby promote the right by legal or political means, they should do so in accordance with the Charter of the United Nations and applicable international law.

48.Depending on the availability of resources, States should facilitate realization of the right to work in other countries, for example by supplying financial and technical assistance, and providing aid when required. In disaster relief and emergency assistance, including assistance to refugees and displaced persons, priority should be given to Covenant rights, including access to decent work. International assistance should be provided in a manner that is consistent with the Covenant or other labour rights standards and in a way that is sustainable and culturally appropriate. The economically developed States parties have a special responsibility and interest in offering assistance to the poorer developing States.

49.States parties should ensure that, in realizing the right to work, due attention is given to international agreements and should draft further legal instruments to that end. They should take steps to ensure that other international and regional agreements do not adversely affect the right to work. Agreements to liberalize trade should not restrict or inhibit any country’s capacity to ensure the full realization of the right to work.

50.States parties should ensure that their actions as members of international organizations take due account of the right to work. Accordingly, those that are members of international financial institutions, notably the International Monetary Fund (IMF), the World Bank, and regional development banks, should take steps to ensure that the right to work is taken into account in the relevant institutions’ lending policies, credit agreements and other international measures.

Core obligations

51.In general comment No. 3 (1990), the Committee reaffirms that States parties have a core obligation to ensure the enjoyment of each right, if only at a minimum level. In the Committee’s view, at least the following core obligations relating to the right to work require immediate fulfilment:

(a)To ensure access to enough accessible work to support normal levels of subsistence;

(b)To prevent discrimination in the sphere of work and employment and uphold the right of access to decent work on a non-discriminatory basis, especially for disadvantaged and marginalized groups;

(c)To ensure safe and healthy working conditions (freedom from air pollution, noise and vibrations) and take preventive measures to protect the workforce from specified industrial diseases;

(d)To promote conditions in keeping with each individual’s physical and intellectual abilities and foster a safe and healthy working environment which embraces the application of economic principles to the design of equipment, the organization of work and the prevention of excessive workloads and fatigue;

(e)To ensure that physical access to decent work does not entail risks to personal safety;

(f)To establish a network of free employment centres (labour exchanges) and make organizational changes to help reduce unemployment;

(g)To ensure equal access to employment and equality for all in the labour market, and to facilitate employment for the most vulnerable groups of the population;

(h)To support and develop productive capacity;

(i)To introduce more flexible non-standard forms of employment to boost total demand for labour;

(j)To stigmatize and abolish forced or compulsory labour within the shortest possible time;

(k)To ban child labour and strictly regulate work performed by adolescents, and protect children and adolescents against unfavourable working conditions;

(l)To adopt and implement a national employment strategy and relevant plans of action covering the whole population. The strategies and plans should be developed and periodically reviewed subject to the principles of participation and transparency. The development process and the substance of the strategy and plans must accord special attention to disadvantaged and marginalized groups;

(m)To monitor the extent of realization or non-realization of the right to work;

(n)To institute a competent and free service to assist migrant workers;

(o)To ensure equal access for all to vocational training and employment without discrimination on any grounds;

(p)To implement a national vocational training policy and programmes in cooperation with employers’ and workers’ organizations;

(q)To afford legal or other effective protection of the right to work.

52.To avoid any doubt, the Committee wishes to stress that States parties and other entities with the capacity to provide assistance have a special responsibility to furnish international assistance and pursue cooperation, particularly of an economic and technical nature, so as to enable developing countries to fulfil the core obligations listed in paragraph 51.

II. VIOLATIONS

53.When the normative content of the right to work (Part I) is applied to the obligations of States parties (Part II), a process is set in motion which facilitates identification of violations of the right to work. The paragraphs below give examples of such violations.

54.In determining which actions or omissions amount to a violation of the right to work, it is important to distinguish the inability from the unwillingness of a State party to comply with its obligations under article 6. This follows from article 6, paragraph 1, which speaks of a State party’s recognition of the right to work, and from article 2, paragraph 1, of the Covenant, which obliges each State party to take the necessary steps to the maximum of its available resources. A State which is unwilling to use the maximum of its available resources to give effect to the right to work is in violation of its obligations under article 6. If resource constraints render it impossible for a State to comply fully with its Covenant obligations, it must show that every effort has nevertheless been made to use all available resources at its disposal in order to satisfy, as a matter of priority, the obligations outlined above. It should also be stressed that no circumstances can justify a State party’s failure to comply with the core obligations set out in paragraph 49 above, which are non-derogable.

55.Violations of the right to work can occur through the direct action of States or other entities insufficiently regulated by States. The adoption of any regressive measures incompatible with the core obligations under the right to work, outlined in paragraph 51 above, constitutes a violation of the right to work. Violations through acts of commission include the formal repeal or suspension of legislation necessary for the continued enjoyment of the right to work or the adoption of legislation or policies which are manifestly incompatible with pre-existing domestic or international legal obligations in relation to the right to work.

56.Violations of the right to work can also occur through the omission or failure of States to take necessary measures arising from legal obligations. Violations through acts of omission include the failure to take appropriate steps towards the full realization of the right to work, the failure to have a national policy on employment and decent work or to establish safe and healthy working conditions, and the failure to comply with relevant labour laws.

Violations of the obligation to respect

57.Violations of the obligation to respect include acts, policies or laws of a State that run counter to the standards set forth in article 6 of the Covenant and could lead to discrimination in the sphere of work and employment, breaches of safe and healthy working conditions, or the use of forced or compulsory or child labour. Examples are refusal to grant access to decent work to individuals or groups owing to de facto or de jure discrimination; deliberate withholding or distortion of information of vital importance for the enjoyment of the right to work; suspension of legislation or the adoption of laws or policies preventing the enjoyment of any element of the right to work; and failure by the State to take account of its legal obligations in relation to the right to work when concluding bilateral or multilateral agreements with other States, international organizations and other entities such as transnational companies.

Violations of the obligation to protect

58.Violations of the obligation to protect follow from the failure of a State to take all necessary measures to safeguard persons within its jurisdiction from infringements of the right to work by third parties. This category includes such omissions as the failure to regulate the activities of individuals, groups or corporations so as to prevent them from violating the right to work of others; the failure to protect workers from practices that allow discrimination in work and employment, used for example by employers; the failure to take measures to prevent forced or compulsory labour or the use of child labour; the failure to protect women against violence or to prosecute perpetrators; and the failure to enact or enforce laws to prevent discrimination by employers in the sphere of work or employment.

Violations of the obligation to fulfil

59.Violations of the obligation to fulfil occur through the failure of States parties to take all necessary steps to ensure the realization of the right to work. Examples include the failure to adopt or implement a national employment policy designed to ensure that everyone enjoys the right to work; insufficient expenditure or misallocation of public resources denying individuals or groups, particularly the vulnerable or marginalized, the opportunity to exercise the right to work; the failure to monitor the realization of the right to work at the national level, for example by identifying right-to-work indicators and benchmarks; the failure to adopt a gender-sensitive approach to the right to work; and the failure to take measures to prevent forced or compulsory labour or the use of child labour.

III. IMPLEMENTATION AT THE NATIONAL LEVEL

Framework legislation

60.The most appropriate possible ways to implement the right to work will vary significantly from one State to another. Every State has a margin of discretion in assessing which measures are most suitable to meet its specific circumstances. The Covenant, however, clearly imposes a duty on each State to take whatever steps are necessary to ensure that everyone has access to decent work. This requires the adoption of a national strategy to ensure that all may enjoy the right to work, based on human rights principles which define the objectives of that strategy, and the formulation of policies and corresponding right-to-work indicators and benchmarks. The national employment strategy should also identify the resources available to attain defined objectives, and the most cost-effective way of using those resources.

61.The formulation and implementation of national employment strategies and plans of action should respect, inter alia, the principles of non-discrimination and public participation. The right of individuals and groups to participate in decision-making processes, which may affect their development must be an integral component of any policy, programme or strategy developed to discharge governmental obligations under article 6. Promoting the right to work must involve effective community action in setting priorities, making decisions, planning, implementing and evaluating strategies to secure employment. Effective realization of the right to work can only be assured if States involve the public in this endeavour.

62.The national employment strategy and plan of action should also be based on the principles of accountability, transparency and independence of the judiciary, since good governance is extremely important in the effective implementation of all human rights, including the right to work. In order to create a favourable climate for the realization of this right, States parties should take appropriate steps to ensure that the private business sector and civil society are aware of, and consider the importance of, the right to work in their activities.

63.States should consider adopting framework labour legislation to operationalize their national strategy on the right to work. The framework laws should establish national mechanisms for monitoring the implementation of national employment strategies and plans of action. They should set targets and deadlines for their achievement; establish the means by which right-to-work benchmarks are to be achieved; cover collaboration with civil society, including labour experts, the private sector and international organizations; define institutional responsibility for the implementation of national strategy on the right to work and plans of action; and provide for possible recourse procedures. In monitoring progress towards the realization of the right to work, States parties should identify factors and difficulties affecting implementation of their obligations.

Right-to-work indicators and benchmarks

64.National employment strategies should identify appropriate right-to-work indicators and benchmarks. The indicators should be designed to monitor, at the national and international levels, the State party’s compliance with its obligations under article 6. States may obtain guidance on appropriate right-to-work indicators, which should address different aspects of the right to work, from ILO, which remains active in this field. Right-to-work indicators require data disaggregated by the various prohibited grounds for discrimination.

65.To define right-to-work indicators, States parties are invited to set appropriate national benchmarks in relation to each. During the examination of their periodic reports, the Committee will, together with the State party concerned, look at the indicators and national benchmarks and use them to set targets for the next reporting period. Over the following five years, the State party will use the national benchmarks to help monitor its implementation of article 6. When the next report falls due, the State party and the Committee will consider whether the benchmarks have been achieved, and the reasons for any difficulties encountered.

Remedies and accountability

66.Any person or group whose right to work is violated must have access to effective judicial or other appropriate remedies at both national and international levels. All victims of such violations should be entitled to adequate reparation in the form of restitution, compensation, satisfaction or guarantees of non-repetition. National ombudsmen, human rights commissions, trade unions, industrial disputes boards and civil-society or similar institutions should be involved in combating violations of the right to work.

67.The incorporation in the domestic legal order of international instruments recognizing the right to work can significantly enhance the scope and effectiveness of remedial measures and should invariably be encouraged. Incorporation enables courts to adjudicate violations of the right to work, or at least of the basic principle, by direct reference to Covenant obligations.

68.Judges and members of the legal profession should be encouraged by States parties to pay greater attention to violations of the right to work in the exercise of their functions. Machinery for mediation, conciliation and arbitration needs to be established under government auspices to enable industrial disputes to be resolved amicably.

69.States parties must respect, protect, facilitate and promote the work of human rights advocates and other members of civil-society institutions with a view to assisting vulnerable or marginalized groups in the realization of their right to work. In paragraph 5 of its general comment No. 1 (1989), the Committee encouraged facilitating public scrutiny of government policy on economic, social and cultural rights and involving the various economic, social and cultural sectors of society in the formulation, implementation and review of the relevant policies.

IV. OBLIGATIONS OF ACTORS OTHER THAN STATES PARTIES

70.The United Nations specialized agencies and programmes, in particular ILO, which has been assigned the key function in realizing the right to work at the international, regional and country levels, have an especially important part to play. When formulating and implementing their national employment strategies, States parties should avail themselves of technical assistance and cooperation from ILO. Further, when preparing their reports, States parties should utilize the extensive information and advisory services available from ILO during the process of data collection and disaggregation, and the development of right-to-work indicators and benchmarks.

71.Constant, coordinated efforts are needed to give effect to the right to work and strengthen the links among all concerned, including the various components of civil society. In conformity with articles 22 and 23 of the Covenant, ILO, WHO, the United Nations Development Programme (UNDP), UNICEF, the United Nations Population Fund (UNFPA), the World Bank, regional development banks, IMF, the World Trade Organization (WTO) and other relevant bodies within the United Nations system should cooperate effectively with States parties in giving effect to the right to work at the national level, building on their respective expertise and with due respect to their individual mandates. International financial institutions, notably the World Bank and IMF, should pay greater attention to the protection of the right to work in their lending policies, credit agreements and structural adjustment programmes. When examining States parties’ reports and ability to meet their obligations under article 6, the Committee will consider the effects of the technical assistance provided by all other parties. The adoption of a human-rights-based approach by United Nations specialized agencies, programmes and bodies will greatly facilitate implementation of the right to work. In the course of its examination of States parties’ reports, the Committee will also consider the role played by trade unions and other non-governmental organizations in States’ compliance with their obligations under article 6.

72.The role of ILO, the Office of the United Nations High Commissioner for Refugees (UNHCR), the International Committee of the Red Cross/Red Crescent, UNICEF, non‑governmental organizations and national trade unions, in providing disaster relief and humanitarian assistance in times of emergency, including assistance to refugees and internally displaced persons, is of particular importance. Paragraph 6 of general comment No. 2 (1990) notes that “the international agencies should scrupulously avoid involvement in projects which, for example, involve the use of forced labour in contravention of international standards, or promote or reinforce discrimination against individuals or groups contrary to the provisions of the Covenant, or involve large-scale evictions or displacement of persons without the provision of all appropriate protection and compensation. In positive terms, it means that, wherever possible, the agencies should act as advocates of projects and approaches which contribute not only to economic growth or other broadly defined objectives, but also to enhanced enjoyment of the full range of human rights.”

73.The private sector has an important role in realizing the right to work. Where State, private and transnational companies are not bound by the Covenant, the private sector has a special role to play in job creation and policy on employment, dismissal and non-discriminatory access to decent work. The private sector is a dynamic force in the economy of any State and plays a vital role not only in the sound allocation of resources, but also in the stimulation of individual initiative, adding to managerial skills, improving vocational training and helping to shape national economic and social policy. At the same time, social dialogue can take place only when States parties give extensive freedom of action to employers and workers without deciding everything in advance. The principle of tripartite representation (tripartism), i.e. the representation of the Government, trade unions and employers, as expressed in the work of ILO means the application of the principles of political democracy: freedom, pluralism and participation by those concerned in the settlement of social and labour disputes.

74.Trade unions are the mainstay of tripartite representation and act as a counterweight to employers’ organizations. To enable trade unions to play a positive and constructive role and ensure that trade union involvement is useful and meaningful, they must be allowed to operate in a climate of freedom and responsibility. Trade unions must act as independent partners in complex economic and social conditions and negotiate with employers’ organizations and Governments on behalf of workers’ interests and in accordance with the principle of worker participation. The development of tripartite agreement and tripartite cooperation is an important precondition for a stronger civil society.

75.ILO has expounded the theory, need, essence and ways of ensuring decent work. The essence of the notion of decent work was fairly solidly defined in the Declaration of Philadelphia, adopted by the General Conference at its 26th session on 10 May 1944. See also Report of the Director-General: Reducing the decent work deficit - a global challenge (International Labour Office, Geneva 2001, pp. 7-8): “The primary purpose of the Organization today is to promote opportunities for women and men to obtain decent and productive work, in conditions of freedom, equity, security and human dignity”. See also: Report of the Director‑General: Decent work (International Labour Office, Geneva 1999, p. 4). The concept of decent work is already garnering significant support. At its special session in 2000, further to the World Summit for Social Development, the United Nations General Assembly expressed its direct support for the ILO decent work agenda as a key component of necessary social initiatives. See also: We the peoples: the role of the United Nations in the twenty-first century. Report of the Secretary-General (New York, 2000).

Notes