IACHR advisory opinion on freedom of association: a breath of fresh air for the international trade union movement

By Marcelo Di Stefano, leader of FATUN/Argentina and Member PSI's Executive Board

Rarely has an advisory opinion of the Inter-American Court of Human Rights (IACHR) been received by civil society with such joy. For many reasons, but there is one that stands out among them, and that is that it is undoubtedly a breath of fresh air, which, with its faint breeze, blows away a little of the suffocating and putrid stupor of the troika agreements, corporate power, and– to be clear - the connivance of a certain faltering trade unionism that dances the dance of diplomacy "in peius".

Rarely has an Advisory Opinion of the Inter-American Court of Human Rights been received by civil society with such joy.

The Advisory Opinion (AO) analysed here defends freedom of association as a fundamental human right. It expressly recognises the right to strike, redefines and updates state obligations to promote women's trade union rights, and sets out a new vision of the articulation and binding nature of international human rights treaties, the ILO's international labour standards, and the interpretation of these standards by specialised bodies.

The Court has said in its AO what we, in the progressive sector of the international trade union movement, have been saying in every forum, what workers are saying in the streets when their rights are being curtailed, what women's movements are saying in the trade union field, what academics committed to popular causes are teaching in universities. We must take this IACHR event as a tool to raise awareness and promote it as a confirmation of our postulates, and on the other hand, internalise it in our argumentation as a fundamental piece to strengthen political and legal strategy, disseminate it through seminars, trade union training and doctrinal analysis.

What is an advisory opinion of the Court?

Among other things, the IACHR has the power to issue a legal opinion, at the request of a body with the right to do so - in this case the Inter-American Commission on Human Rights - regarding the extension and protection of human rights, in accordance with the scope of any international treaty applicable in the member states of the Organization of American States - OAS.

Unlike when it has to decide on a concrete case, where it has to assess particular circumstances and arguments, and decide on the basis of the evidence produced, when the Court issues an advisory opinion, it does so by answering theoretical questions, formulations that question the scope of the norms that make up the normative plexus of human rights protection for countries that are part of the OAS.1

What are the effects of an advisory opinion?

The Court's responses to an advisory opinion constitute a doctrine of extraordinary relevance. It is an original doctrine, developed by the body that has the capacity to apply the norm. It is the primary interpretation of the content of a Treaty, or a set of treaties as in the case under analysis.

In a way, it also constitutes an anticipated jurisprudence, a precedent in the abstract, but which, due to its specific weight, will condition the interpretation of the Court itself in future cases submitted to it for analysis and decision. Similarly, the original interpretation of international human rights bodies and courts - treaties, conventions, international labour standards, etc. - is binding on national courts in accordance with the Vienna Convention, which prescribes respect for international law "as far as it is valid". Therefore, the doctrine established by the Advisory Opinion has a profound legal value for disputes before national and international courts. It is a relevant tool because it contains the assessment of the treaty, going beyond its drafting, explaining its spirit, relating a specific instrument to the rest of the normative system, and anticipating the Court's responses to future conflicts that it may be called upon to resolve.

What were the issues that the Commission asked the Court about?

Specifically, the Commission asked the Court for an opinion on the scope of States' obligations under the inter-American system, the guarantees of freedom of association, their relationship with other rights and their application from a gender perspective.

The Inter-American Commission raised various questions in its consultation, which the Court, with methodological depth, reformulated into the following three questions:

  1. What is the scope of the rights to freedom of association, collective bargaining and strike, and how do they relate to the rights to freedom of expression, freedom of association, the right to assembly and the right to just, fair and favourable conditions of work?

  2. What is the content of the right of women to be free from all forms of discrimination and violence in the exercise of their rights to freedom of association, collective bargaining and to strike?

  3. What is the scope of the State's obligation to protect the autonomy of trade unions and to ensure the effective participation of women as trade union members and leaders, and what is the scope of the State's obligation to ensure the participation of trade unions in the development of public policies and labour regulations in the context of the changing labour market through the use of new technologies?

Before making its decision, the Court opened a public hearing in which trade union organisations, academics, state representatives and civil society organisations expressed their positions on the issues that constituted the "subject of the decidendum".

The international standards of the inter-American human rights system that, in principle, should be analysed to provide answers to the questions are the OAS Charter2 , the American Declaration of Human Rights and Duties3 , the American Convention on Human Rights (Pact of San José, Costa Rica)4 and its Additional Protocol on Economic, Social and Cultural Rights (Protocol of San Salvador)5 , and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (Convention of Belem do Pará)6.

What are the most relevant conclusions of the Advisory Opinion?

The A0 is systemic, i.e. it maintains a line of legal analysis based on the normative content of each of the applicable instruments, links them together and then answers the questions posed. In order to facilitate an initial exploration of the content of the CA and to highlight the importance of the conclusions, we will briefly describe its most relevant points:

a) Labour rights must be considered as fundamental human rights.

The Court conducts an integrated review of the standards protecting freedom of association contained in the instruments of the inter-American human rights system, and makes unprecedented advances in its articulation with international labour standards - Conventions and Recommendations of the International Labour Organization - and the positions of its supervisory bodies - the Committee on Freedom of Association and the Committee of Experts on Conventions and Recommendations. Similarly, and consistently, it proposes a global interpretation of regional instruments with the labour standards contained in international human rights treaties7 , and goes further by incorporating the opinions of the European Court in relation to the European Social Charter.

We can conclude, following the Court's reasoning, that there is a body of international standards protecting human rights at work, which are integrated into a system, forming an indivisible legal core. Freedom of association, including its dimensions of free organisation of trade union activity, collective bargaining and the right to strike, therefore enjoy the highest protection as fundamental human rights, and States must ensure the full enjoyment of these rights.

b) Freedom of association covers workers in the private and public sectors.

The Court recognises that the extension of the right to freedom of association, as a fundamental human right, does not entail any restriction for public sector workers. This implies the exercise of the right in all its dimensions, including the formation of trade unions, collective bargaining and strike action.

Recognition is not abstract and even less declarative, it is a concrete right, which is why States must guarantee the effective exercise of the right to freedom of association, indeed, the Court recalls that they must promote it, and remove the legislative and/or administrative obstacles that could hinder or impede it.

c) Freedom of association must be broad, and is directly related to all human rights.

The Court has provided a comprehensive description of the different activities that constitute the organisational aspect of freedom of association - the right to form trade unions, establishment without prior authorisation by the State, protection of trade union activity, free election of representatives, etc. - and has also provided a detailed description of the rights and obligations of trade unions. - This systematic contribution of the A0 strengthens the concept and gives protection to the instrumental elements that are a necessary condition for the exercise of the right to organise.

In the area of organisation, the Court, in line with ILO doctrine, has also endorsed the compatibility of freedom of association with collective bargaining systems that grant exclusive ownership to the most representative union, as well as with those in which plural representations of different unions are integrated.

The CA also raises the importance of protecting freedom of association as a tool for building and generating new rights. Considered as a conquest, the recognition of human rights often arises from social conflicts through the classical stages of prohibition-acceptance-recognition. The protection of freedom of association thus allows the exercise of other human rights, as well as the struggle for the conquest - the creation - of new rights.

d) The consecration of the right to strike as a human and social right.

This is perhaps the most pleasing point for the international trade union movement in the Advisory Opinion, which dismantles all the arguments that the employers' group has maintained since 2012 at the ILO, when they blocked the debates of the Committee on the Application of Standards by arguing with disingenuous and mean-spirited rhetoric that Convention C87 did not contain recognition of the right to strike.

The Court is very clear that the right to strike is one of the fundamental human rights at work, admits that it is not exhaustively recognised in the ILO Conventions, but maintains that Article 3 of Convention 87 recognises the right of trade unions to organise their activities in complete freedom and to formulate their programme of action, linking this point to the argument of the Committee on Freedom of Association, which has described the right to strike as an "inseparable corollary of the right to organise protected by Convention 87".

The Court does not stop at formalisms, and moves forward with a conceptual interpretation by considering that "the strike constitutes a legitimate means of defending economic, social and professional interests. It is a recourse exercised by workers as a means of putting pressure on the employer in order to correct an injustice, or to seek solutions to questions of economic and social policy and to problems arising in undertakings which are of direct interest to the workers". With regard to the guarantee of its exercise, it states that "States must respect and ensure that it can be effectively exercised by all workers without discrimination. To this end, they must adopt the necessary measures to ensure that the conditions and prerequisites for strike action do not constitute an obstacle to its effective exercise".

e) States must guarantee the exercise of freedom of association by protecting trade union leaders.

The Court insists on the obligation of States to guarantee the human right par excellence, the right to life, and must therefore adopt special measures for the protection of the lives of trade unionists, particularly when they are carrying out their representative work in contexts of violence, so that they can exercise their right to freedom of association.

f) States must promote trade union participation of women and LGBT+ groups.

The A0 begins with the classic prohibition of "any conduct that may be considered discriminatory with regard to the exercise of trade union rights by women" and then takes a proactive stance by stating that "States must adopt the necessary positive measures to reverse or modify discriminatory situations, which requires the State to move towards the existence of substantive equality between men and women in the exercise of trade union rights.

In addition to setting out generic principles, the Court puts forward concrete concepts such as the need to adopt measures to achieve balanced and proportional participation of men and women in the workplace, to eliminate obstacles that prevent women from actively participating in trade unions and in their leadership positions, and to protect women trade union leaders from acts of violence, and any other form of discrimination, occurring within or outside trade union life.

The Court also warns that the gender perspective with which human rights instruments must be interpreted must include other groups of persons in vulnerable situations, such as LGBT+ persons, and that therefore "no norm, decision or practice of domestic law, whether emanating from State authorities or private individuals, may diminish or restrict in any way the rights of a person on the basis of his or her sexual orientation, gender identity and/or gender expression".

g) It is not possible to derogate "in peius" from the protections established by labour law through collective bargaining.

The Court recognises "the protective nature of labour law", and it is clear that allowing derogation from labour law in peius, through collective bargaining, would place workers at a greater disadvantage and violate the protection established in national and international standards.

h) States should extend freedom of association protection to workers operating through digital platforms.

The A0 not only covers the traditional aspects of freedom of association, but also incorporates dimensions that challenge the scope of the protection system and force it to seek new responses in order to maintain its validity. For this reason, the Court considers that workers who carry out their tasks through telework, or through the use of digital platforms, or in work contexts with the application of new technologies, must be recognised the protection of their data, their privacy, their working conditions, and above all, the full exercise of their labour and trade union rights, rights that must be guaranteed by the States.

In conclusion:

The Inter-American Court of Human Rights has taken up in its advisory opinion many of the elements that we in the international trade union movement have defended and that have been denied to us by the corporate lobbyists who have co-opted and directed the employers' strategy at the ILO. We must act courageously and use this confirmation of our truth to strengthen the strategy and go on the offensive.

In this decade of diplomatic relations since the 2012 Standards Implementation Committee crisis - the employers' blockade - we have made no progress, on the contrary, we see an offensive to dismantle the regulatory system, weaken the role of supervisory bodies and muzzle trade unionism.

Since 2020, we are facing the Covid pandemic that has worsened inequality and poverty in the world, it is necessary for trade unionism to strengthen itself to put people above profit, to generate a new social model centred on people, and to confront capitalism - always resilient - from a sustainable and progressive political proposal based on real equality, respect for minorities, and environmental sustainability, which is only possible in a world where freedom of association is fully respected.

1 MEMBER STATES: Antigua and Barbuda, Argentina, Bahamas (Commonwealth of the), Barbados, Bolivia, Brazil, Colombia, Costa Rica, Cuba, Chile, Dominica (Commonwealth of the), Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname, Trinidad and Tobago, United States, Uruguay, Venezuela.

2 http://www.oas.org/es/sla/ddi/docs/tratadosmultilateralesinteramericanosA-41carta_OEA.pdf

3 http://www.oas.org/es/cidh/mandato/Basicos/declaracion.asp

4 https://www.oas.org/dil/esp/tratadosb-32convencionamericanasobrederechoshumanos.htm

5 https://www.oas.org/juridico/spanish/tratados/a-52.html

6 https://www.oas.org/juridico/spanish/tratados/a-61.html

7 These include the UN Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social and Cultural Rights (1966).