Author: Kevin Kolben

by Kevin Kolben

I would first like to thank Professor Guy Mundlak for generously taking the time to respond to my Article, and Opinio Juris for hosting this forum.

Professor Mundlak is very correct to note that over time civil liberties and socioeconomic matters have become more intertwined. What’s more, the overlapping identities and realms in which workers function mean that to be protected and empowered in the sphere of work, they must also be protected in other spheres of human functioning. The same holds true in the inverse. Accordingly, the study of labor and labor law is no longer relegated solely to the workplace, and the study and protection of human rights is no longer only about civil liberties and the relationship to the state. With this I agree.

Professor Mundlak also suggests that the differences that I highlight between labor and human rights movements are perhaps somewhat overstated. And in fact I agree that they probably are—but not by much. Human rights, such as privacy rights, or the rights to water and education that Professor Mundlak mentions, no doubt penetrate into the private sphere. And indeed, as I mention in the Article, there are increasing efforts to try and apply international human rights regimes to non-state actors by scholars and practitioners. But the fact that there is overlap does not mean that there are not still fundamental differences in the conceptualization of these rights. I would be interested, for example, in thinking about what would constitute a democratic, or citizenship approach to privacy in the workplace—notions that I believe are intrinsic to labor rights.

Professor Mundlak in fact draws on the notion of citizenship to propose a very interesting way to think about a traditional cleavage between labor and human rights—that labor rights were traditionally thought of as the power to have rights, while human rights were the rights to have power. What has occurred, he suggests, is that scholars and activists from both arenas have come to understand that both sides of the coin are needed. But I wonder if this is in fact somewhat overstated; and I do believe that the nature of power—who wields it to what ends—remains very different for these two groups. For example, power in human rights discourse tends to mean legal power and rule of law: social movements are fine, but only to the extent that they stay within certain bounds, and help institutionalize desirable legal regimes. In other words, human rights discourse and activists (at least in the United States) tend to underemphasize the power to have rights, in favor of the right to have power. I believe this under-emphasis is particularly notable in the case of groups such as workers and the poor, whom human rights elites might be wary of acquiring “too much power.”

I would very much like to see more of a convergence, but I have yet to see it in practice, culture, or ideology.

by Kevin Kolben

[Kevin Kolben is an Assistant Professor at Rutgers Business School]

This Article argues that the move to human rights discourse and international legal institutions by labor scholars and labor movements, particularly American scholars and movements, deserves more reflection, debate, and perhaps reconsideration.

Its thesis is grounded primarily in an intuition borne of personal experience. After graduating from college, I worked for several years as a labor organizer for several American unions. When I later entered law school, my attentions turned to transnational labor issues and I spent my summers with labor rights NGOs in India and Cambodia. Then upon graduation, I joined a well-known human rights organization, which at the time was called the Lawyers Committee for Human Rights (LCHR), and which has since changed its name to Human Rights First (HRF).

HRF’s entry into labor issues was representative of what I argue is a general convergence of human rights and labor rights movements and discourse. First, human rights groups such as HRF, Amnesty International, and Human Rights Watch are increasingly entering the realm of labor rights, particularly (although not exclusively) in the international sphere, where they perhaps have a comparative advantage. Second, there has at the same time been an increase in the number of non-union organizations, such as the International Labor Rights Forum, the Workers Rights Consortium, and the Fair Labor Association to name but a few U.S. examples, that address labor issues using human rights tools and language.

The third example of convergence, and the one that forms the main subject of the Article, is the adoption by labor unions of human rights discourse, institutions, and methods to support their primarily domestic labor agendas. Their aim is to advance the formula that “labor rights are human rights.” Many academic commentators have been major advocates of such an approach, seeking to bring international human rights law to bear on the United States in an effort to change its legal regime and create stronger protections for freedom of association and collective bargaining rights.

The deployment by the U.S. labor movement of human rights discourse is thus a highly pragmatic strategy to reverse the declines in union membership, and to bolster its intellectual and political support. By aggressively promoting the notion that labor rights are human rights, labor unions and labor rights groups have attempted to take advantage of the hegemonic status of human rights discourse to achieve several goals: First, to reform U.S. labor law, particularly in the area of freedom of association; second, to effectively target multinational corporations that are susceptible to accusations of being human rights abusers; third, to bolster public support for labor campaigns and to help encourage grassroots organizing through legitimizing labor rights as fundamental human rights issue; and finally, to address labor rights violations in global supply chains.

Yet while there are compelling strategic reasons to deploy human rights discourse, methods, and institutions towards labor issues, I believe that it is vitally important to parse the ways in which labor rights and labor rights movements have properties and normative commitments that differ from those of the broader corpus of human rights law and human rights movements, and to ask how these differences could be problematic.

The first set of differences is more conceptual in nature. The first important difference is that while labor rights primarily affect private actors, human rights primarily affect states. That is, labor rights require the entry of the state to intervene in the private sphere in a way that the bulk of human rights do not. Second, the key labor rights that are of concern to U.S. labor unions and labor movements—freedom of association and collective bargaining—are collective in nature, emphasizing solidarity over individualism. Human rights, however, by and large privilege the individual as the central unit of analysis. Third, human rights, specifically social and economic rights, tend to focus on guaranteeing the provision of basic materials goods to individuals. I call this a “rights as outcomes” approach. Freedom of association and collective bargaining rights, however, tend to emphasize processes, and I refer to them as “mobilization rights.” That is, there is something central in the core of labor rights thinking about worker agency and democratic participation in the workplace. They say something central about workplace power and economic ordering that human rights tend not to.

In addition to these conceptual differences, there are vitally important institutional, cultural, and political differences between human and labor rights movements, and between the people who constitute them. One difference is in the importance of law in social change. While law is highly privileged and is the central mechanisms of change for human rights movements (hence the number of human rights scholars and clinical teachers in top law schools), law for labor movements is secondary—an instrument to help facilitate grassroots action.

Second, labor movements tend to understand history and social change as results of collective action. Human rights movements, on the other hand, tend to privilege individuals as agents of social change—very often middle class and educated human rights activists like themselves.

This reflects a third difference, which is that human rights movements tend to approach labor issues from a philanthropic perspective—”helping those in a less privileged position.” Labor movements tend to conceptualize the solution to labor issues as facilitating worker agency.

Fourth, all of these differences reflect a very material difference between the composition of these two movements, which might not be determinative, but is at least informative. Labor movements and their professional staff tend to be composed and led largely, although certainly not entirely, by rank and file staff. Human rights movements, on the other hand, tend to be staffed and led by elites who often come from financially and educationally privileged backgrounds. Indeed, it is very difficult to get a job at the human rights organizations without having graduated from an elite university and, often, coming from independent wealth to subsidize your relatively low pay.

All these foregoing points are related, I believe, to the final cleavage, which is the difference in emphasis that human rights movements and human rights activists tend to place on freedom of association and collective bargaining rights, at least compared to labor movements. While there are notable exceptions to this, such as in the seminal reports of human rights watch, my own experience reflected a basic discomfort among human rights organizations with trade unions, and more generally with the concept of workplace democracy or industrial citizenship.

Despite these cleavages and differences, which I discuss more expansively in the Article, my major point is not to boldly claim that “labor rights are not human rights,” which is not particularly enlightening or helpful. Rather, I wish to emphasize that despite the strategic appeal for labor scholars and activists in making labor rights and human rights synonymous, there are in fact important conceptual and practical differences that need to be highlighted and recognized in order to better understand a) the differences and similarities between these two discourses and movements, and b) the pitfalls that might lie ahead.