Revitalization not retreat: The real potential of the 1998 ILO Declaration for the Universal Protection of Workers' Rights

Abstract

The thesis presented by Philip Alston, according to which the ILO 1998 Declaration on Fundamental Principles and Rights at Work may undermine what he calls the 'International Labour Regime' (ILR), lacks a clear and coherent methodological framework. This article thus tries to assess more systematically the concrete impact of the Declaration (a) on the achievement of fundamental rights themselves and (b) on other workers' rights. As regards (a), Alston's claim that the Declaration's reliance on 'principles' rather than on specific provisions of ILO instruments has an undesirable impact on the realization of fundamental workers' rights ignores contrary evidence, particularly: (i) more states have ratified the relevant ILO conventions since the Declaration, and compliance therewith has been improved; (ii) for those states which have still not ratified, the process of dialogue and technical cooperation inherent to the follow-up mechanism has generated some tangible progress - though it is recognized that this mechanism may still be improved in the light of experience. As regards (b), the ILO's capacity to make effective other workers' rights is subject to obvious constraints. However these limitations are inherent to the ILR; they have nothing to do with the Declaration. On the contrary, the Declaration and its follow-up represent an added-value for their promotion, particularly because fundamental rights are enabling rights and their increased application gives greater possibilities for workers all over the world to 'claim' other workers' rights, and because the follow-up to the Declaration provides a model and a precedent for a possible use of Article 19 of the ILO Constitution for the universal promotion of rights dealt with in relevant conventions and recommendations, even in the absence of ratification. Some recent developments, in connection with the 'decent work' agenda, suggest that this possibility may no longer be a matter for mere speculation. © EJIL 2005; all rights reserved.