The Right to Work in UN Human Rights Instruments
The UN’s Universal Declaration of Human Rights (“UDHR”) covers a range of human rights relating to work and working conditions.[1]? Article 23 of the UDHR lays out the fundamental rights to work, free choice of employment, just and favorable work conditions, just remuneration, trade union formation and participation and protection against unemployment.[2]? The UDHR also recognizes rights to freedom from slavery or servitude (slavery and the slave trade are prohibited in all forms) (Article 4); peaceful assembly and association (Article 20); rest and leisure (including reasonable limitation of working hours and periodic holidays with pay) (Article 24); and adequate living standards, including healthcare, food and housing (Article 25).[3]? The UDHR is not a treaty, and there has been debate as to whether it is a legally binding obligation on the states that comprise the membership of the UN.? However, regardless of its formal legal status, the UDHR served as the first “universal” statement of an expansive set of fundamental rights and laid the foundation for the international human rights framework that has evolved since December 1948.[4]?
The UDHR has been linked to two important UN human rights treaties, the International Covenant on Civil and Political Rights (adopted on December 16, 1966 and entered into force on March 23, 1976) (“ICCPR”)[5]?and the?International Covenant on Economic, Social and Cultural Rights (adopted on December 16, 1966 and entered into force on January 3, 1976) (“ICESCR”),[6] to form the so-called “International Bill of Human Rights.”? The ICCPR includes and expands upon almost all of the civil and political rights that had been included in the UDHR (other than rights relating to asylum, which are addressed in the Convention Relating to the Status of Refugees) and its Preamble explains that “the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights.”? Provisions in the ICCPR relevant to work include prohibitions on slavery and forced or compulsory labor (Article 8) and rights of peaceful assembly and freedom of association, including the right to form and join trade unions for the protection of a person’s interests (Articles 21 and 22).
The ICESCR is also based on principles originally outlined in the UDHR, providing additional details in many instances, and affirms the right of all peoples to self-determination and their freedom to pursue and enjoy their economic, social, and cultural rights without discrimination of any kind.? States are responsible for taking the steps necessary to the maximum of their available resources to achieve progressive, and ultimately full, realization of the rights enumerated in the ICESCR, including particularly the adoption of legislative measures.[7]? Notably for purposes of discussing rights related to work, the ICESCR covers workers’ rights, including freedom from forced labor, the rights to decide freely to accept or choose work, to fair wages and equal pay for equal work, to leisure and reasonable limitation of working hours, to safe and healthy working conditions, to join and form trade unions, and to strike; and the right to social security and social protection, including the right not to be denied social security coverage arbitrarily or unreasonably, and the right to equal enjoyment of adequate protection in the event of unemployment, sickness, old age, or other lack of livelihood in circumstances beyond one’s control.[8]
Article 6(1) of the ICESCR requires States to take appropriate steps to safeguard the right of everyone to the opportunity to gain a living by work which is freely chosen or accepted, and Article 6(2) of the ICESCR declares that the steps that should be taken by States to achieve the full realization of this right should include “technical and vocational guidance and training programs, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual”.[9]?
Article 7 of the ICESCR calls on States to recognize the right of everyone to the enjoyment of just and favorable conditions of work and then, importantly for businesses that are subject to domestic regulations to operationalize these rights, lays out specific requirements such as ensuring, in particular[10]:
·?????? Remuneration which provides all workers, as a minimum, with fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; and a decent living for themselves and their families
·?????? Safe and healthy working conditions
·?????? Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence
·?????? Rest, leisure and reasonable limitation of working hours and periodic holidays with pay (i.e., vacations), as well as remuneration for public holidays
Trade unionism and freedom of association around workplace issues is addressed in Article 8 of the ICESCR.? Article 8(1) requires States to ensure[11]:
“(a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests … ;[12]
(b) The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations;
(c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;
(d) The right to strike, provided that it is exercised in conformity with the laws of the particular country”.
To date, nine core international human rights treaties have been adopted, all the UN Member States have ratified at least one of them, and 80% of the Member States have ratified four or more.[13]? In addition to the ICCPR and the ICESCR, the right to work is specifically mentioned in several of them with respect to various vulnerable groups.? For example, Articles 11, 13 and 14 of the Convention on the Elimination of All Forms of Discrimination against Women (adopted 1979 and in force 1981) provide[14]:
"States Parties shall take all appropriate measures ... to ensure, on a basis of equality of men and women, ... the right to work as an inalienable right of all human beings; the right to the same employment opportunities...; the right to free choice of profession and employment, the right to promotion, job security and ... training; the right to equal remuneration ... and to equal treatment in respect of work of equal value...; the right to social security...; the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall ... prohibit ... dismissal on the grounds of pregnancy or of maternity leave and discrimination ... on the basis of marital status; ... introduce maternity leave with pay or with comparable social benefits without loss of former employment.... States Parties shall ensure, on a basis of equality of men and women, the same rights, in particular ... the right to bank loans, mortgages and other forms of financial credit.... States Parties shall ... eliminate discrimination against women in rural areas ... to ensure ... the right ... to obtain all types of training and education ... in order to increase their technical proficiency ...; to have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform ...."
Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (adopted 1965 and in force 1969) provides[15]:
"States Parties undertake to prohibit and to eliminate racial discrimination ... and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law ... in the enjoyment of ... the right to freedom of peaceful assembly and association...; the rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration; the right to form and join trade unions...."
Articles 15, 27, 32, and 34 of the Convention on the Rights of the Child (adopted 1989 and in force 1990) provide[16]:
"States Parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly.... the right ... to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.... the right ... to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development.... States Parties shall ... provide for a minimum age ... for admissions to employment.... provide for appropriate regulation of the hours and conditions of employment.... States Parties undertake to protect the child from all forms of sexual exploitation...."
Article 27 of the Convention on the Rights of Persons with Disabilities (adopted 2006 and in force 2008) provides[17]:
“States Parties recognize the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities. States Parties shall safeguard and promote the realization of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps… [list of steps included in Article omitted]”
The right to work is a fundamental human right recognized by international human rights instruments. However, the Icelandic Human Rights Centre has identified certain groups that are particularly vulnerable and require special protection to ensure equal and effective enjoyment of the right to work[18]:
·?????? Women and Girls: Women have historically faced discrimination in the workplace. Ensuring their right to work involves addressing gender-based disparities, promoting equal pay, and preventing workplace harassment.
·?????? Children: Child labor remains a significant issue globally. Protecting children’s right to work involves enforcing age-appropriate labor laws and ensuring access to education.
·?????? Refugees: Refugees often face challenges in accessing employment due to their displaced status. Efforts should focus on providing vocational training, language skills, and pathways to employment.
·?????? Internally Displaced Persons (IDPs): IDPs, who have been forced to flee their homes within their own country, need support to rebuild their lives. Access to work opportunities is crucial for their integration and stability.
·?????? Stateless Persons: Stateless individuals lack citizenship and face barriers to employment. Ensuring their right to work involves addressing legal status and providing equal opportunities.
·?????? National Minorities: Minority groups may experience discrimination in employment. Efforts should focus on combating prejudice and promoting diversity in the workplace.
·?????? Indigenous Peoples: Indigenous communities often face economic marginalization. Their right to work includes preserving traditional livelihoods and addressing land rights.
·?????? Migrant Workers: Migrants face unique challenges, including exploitation and unsafe working conditions. Protecting their right to work involves fair labor practices and social integration.
·?????? Persons with Disabilities: Ensuring equal employment opportunities for people with disabilities requires reasonable accommodation, anti-discrimination measures, and accessible workplaces.
·?????? Older Persons: Older individuals may face age-related discrimination. Promoting their right to work involves combating stereotypes and ensuring retirement-age flexibility.[19]
·?????? HIV-Positive Persons and AIDS Victims: These individuals often face stigma and discrimination. Protecting their right to work involves confidentiality and non-discrimination policies.
·?????? Roma/Gypsies/Sinti: These ethnic minority groups often face exclusion. Efforts should focus on combating prejudice and promoting social inclusion.
·?????? Lesbian, Gay, and Transgender People: LGBTQ+ individuals may face discrimination in the workplace. Ensuring their right to work involves promoting diversity and inclusion.
This article is an excerpt from my recently updated article on Rights at Work: Labor Practices and Human Rights . To learn more, see my book Assessing, Managing and Remediating Business’ Impacts on Human Rights: A Guide for Sustainable Entrepreneurs .
Notes
[1] For discussion of the various UN instruments referred to herein, see A. Gutterman, Human Rights of Older Persons (Oakland CA: Older Persons’ Rights Project, 2021) .
[2] Article 23 includes an extensive list of rights relating to work and working conditions including (i) the rights to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment; the right to equal pay for equal work, without discrimination; (iii) the right to just and favorable remuneration ensuring for himself and his family an existence worth of human dignity, and supplemented, if necessary, by other means of social protection; and (iv) the right to form and to join trade unions for the protection of his interests.
[3] PDHRE prepared the following compilation of relevant rights from the actual language used in Articles 4, 20, 23, 24 and 25 of the UDHR: "No one shall be held in slavery or servitude.... Everyone has the right to freedom of peaceful assembly and association.... Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. Everyone, without any discrimination, has the right to equal pay for equal work. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. Everyone has the right to form and to join trade unions for the protection of his interests. Everyone has the right to rest and leisure, including reasonable limitation of working hours.... Everyone has the right to a standard of living adequate for the health and well-being of himself and his family ... and the right to security in the event of unemployment, sickness, disability ... or other lack of livelihood ...."
[5] International Covenant on Civil and Political Rights . Two supplementary Optional Protocols have been adopted with respect to the ICCPR.? The first one gives individuals the right to petition the HRC and the second one is intended to promote the abolition of the death penalty by requiring states parties to ensure that no capital punishment is ever imposed on anyone anywhere in their territory.? For further information on the ICCPR, see OHCHR Fact Sheet No 15: Civil and Political Rights: The Human Rights Committee .
[6] International Covenant on Economic, Social and Cultural Rights .? For further information on the ICESCR, see OHCHR, Fact Sheet No 16: The Committee on Economic, Social and Cultural Rights (Rev 1) and UN Committee for Economic, Social and Cultural Rights homepage .
[7] Recognizing that the path to full enjoyment of many of the rights included in the ICESCR can be lengthy and dependent upon the available resources of a particular state, the ICESCR makes allowances for progressive development, consistent with the ideas in the UDHR.? In contrast, no such allowance is made in the ICCPR for realization of civil and political rights.? This distinction has sometimes led to the suggestion that the economic, social and cultural rights in instruments such as the ICESCR, which are largely dependent on political processes and economic resources as opposed to judicial activity, should be considered “goals or aims” that do not clearly resemble the traditional characteristics of “rights”.? See D. Rodríguez-Pinzón and C. Martin. "The International Human Rights Status of Elderly Persons", American University International Law Review, 18 (4) (2003), 915 , 918.
[9] International Covenant on Economic, Social and Cultural Rights , Article 6.? For further information on the ICESCR, see OHCHR, Fact Sheet No 16: The Committee on Economic, Social and Cultural Rights (Rev 1) and UN Committee for Economic, Social and Cultural Rights homepage .
[10] International Covenant on Economic, Social and Cultural Rights , Article 7.?
[11] International Covenant on Economic, Social and Cultural Rights , Article 8(1).? Article 8 of the ICESCR was drafted to align with the ILO Convention on Freedom of Association and Protection of the Right to Organize and Article 8(3) of the ICESCR specifically provides: “Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention.”?
[12] No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others.
[13] The Foundation of International Human Rights Law .? The Office of the High Commissioner for Human Rights (“OHCHR”) website lists all international treaties and instruments relating to human rights.? The two other core treaties not mentioned below are the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (adopted 1990 and in force 2003) and the International Convention for the Protection of All Persons from Enforced Disappearance (adopted 2006 and in force December 2010).
[14] Convention on the Elimination of All Forms of Discrimination against Women .? See also paragraphs 26 and 35 of the Beijing Platform for Action, which is the outcome document of the UN Fourth World Conference on Women held in Beijing in 1995: "We are determined to ... promote women's economic independence, including employment, by ... ensuring equal access for all women ... to productive resources, opportunities and public services;... ensure women's equal access to economic resources, including land, credit, science and technology, vocational training, information, communication and markets, as a means to further the advancement and ... empowerment of women and girls...."? For discussion of older women and the human right to work, see A. Gutterman, Ageism and Older Women (Oakland CA: Older Persons’ Rights Project, 2023) .
[15] International Convention on the Elimination of All Forms of Racial Discrimination .? For discussion of the duties of businesses relating to the right to work for racial minorities, see A. Gutterman, Responsibilities of Business for Racial Justice (Oakland CA: Sustainable Entrepreneurship Project, 2024) .
[17] A/RES/61/106 .? For discussion of the duties of businesses relating to the right to work for persons with disabilities, see A. Gutterman, Businesses and Human Rights of Persons with Disabilities (Oakland CA: Sustainable Entrepreneurship Project, 2023) .
[19] For further discussion, see A. Gutterman, Older Persons’ Right to Work and Productive Resources (Oakland CA: Older Persons’ Rights Project, 2023) .