The Right to Bargain Collectively in International Law: Workers' Right, Human Right, International Right?

Abstract

Two conceptions of the right to bargain collectively have influenced its protection in international law. In international labor law, the right historically has been conceived of as one of several workers' rights that protect domestic rights of workers from international competition. In international human rights law, the right is conceived of as a human right that protects a universal feature of what it means to be a human being. This paper examines the status of the right in both fields in light of economic globalization and transnational flexible production. Instead of a weakening of the right at the international level, both fields reveal a trend toward its enhanced protection. Economic globalization and transnational flexible production are also changing the normative relationship between international human rights law and international labor law. They have sparked a third conception of labor rights as international rights - as instruments that possess the potential to vest the international legal order with a measure of normative legitimacy by attending to state and non-state action that international law otherwise authorizes in the name of economic globalization or flexible production. Armed with this new conception, international labor law is realigning its relationship to international human rights law around a shared task of mitigating the distributional consequences of globalization and transnational flexible production - a task in which the right to bargain collectively performs a critical function.