I want to explore what a ‘fundamental’ right really is. In
order to exist, do fundamental rights need to be codified? What is the opposite
of a fundamental right? What implications can be drawn for how fundamental worker
rights are vulgarised, policed and enforced?
As defined by the Oxford English Dictionary, the word ‘fundamental’
means to form a necessary base, the essential nature of something
that is so basic as to be hard to alter.
Fundamental rights are not necessarily codified as indicated
by the Nuremberg Trials where members of the Nazi regime were retroactively convicted
of moral crimes that did not and, surprisingly, do not exist in statutory form.
Offenders were held accountable on an individual basis for the morally
repugnant acts that were committed collectively and were unable to claim defence
based on the absence of a relevant law. The presumption was established that
some acts are so inherently wrong that people don’t even need to be told – it’s
that obvious.
The opposite of ‘fundamental’ rights might be defined as rights
that are ‘auxiliary’ – ones that are both secondary and changeable at will. The
distinction between the poles of ‘fundamental’ and ‘auxiliary’ rights revolves
around values – the social processes through which meaning is constructed. This
suggests that an analysis of ‘fundamental’ rights needs to explore the systems
within which they are anchored and associated degrees of complexity.
In 1998, the ILO declared four categories of worker rights as
fundamental [1], namely:
- The elimination of forced or compulsory labour,
- The abolition of child labour,
- The elimination of discrimination in respect of employment and occupation, and
- Freedom of association and the effective recognition of the right to collective bargaining.
These rights have been recognised as universal, meaning that
as far as the world is concerned, they apply to all people everywhere, regardless
of the country’s level of economic development, or if the Convention has been
ratified. Furthermore, people with special needs, including the unemployed and
migrant workers, are specifically included. Equity, social progress and the
eradication of poverty cannot be achieved through economic growth alone, but
requires the adoption of additional measures. Put another way, and to
paraphrase the Nobel Prize winning economist Amartya Sen, ‘fundamental’ worker
rights represent both the means and the ends of development.
The ILO’s Declaration on Fundamental Principles and Rights
at Work thus applies a similar moral presumption to that established at
Nuremberg. Because it destroys people, the violation of any one of the four categories
of fundamental worker right is automatically considered to be a morally reprehensible
act, something that is so self-evident that the perpetuators ‘know’ they have
done wrong and where collective wrongdoing does not excuse individual
culpability. And yet, while global condemnation of the acts that led up to
Nuremberg was universal and long-lasting, acts that violate fundamental ILO
worker rights are only ever condemned sporadically and in abbreviated form.
In my next blog I want to take this analysis further and
examine some methods and models that might allow further exploration.
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