labor rights as duties of justice: a cosmopolitan...

Labor Rights as Duties of Justice: A Cosmopolitan Approach

Yossi Dahan

Taub Center, New York University

Law School, Academic Center of Law and Business, Ramat Gan

Email: [email protected]

Hanna Lerner

Department of Political Science, Tel Aviv University


Faina Milman-Sivan

Faculty of Law, Haifa University


Paper presented at the research workshop on Global Justice and International Labor,

January 3-5, 2011, University of Haifa.

This is a draft paper. Please do not cite/circulate.

mailto:[email protected]



Dahan, Lerner, Milman-Sivan DRAFT Haifa workshop

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I. Introduction

In recent years, growing criticism has been voiced against the philosophical discussion of global

justice, arguing that by focusing on abstract normative argumentations most theories have failed

to provide useful insights into the moral evaluation of existing institutional arrangements and

social practices.1 The question of whether principles of justice should be extended beyond

political boundaries of a sovereign nation-state has been debated extensively by theorists.

However, practical problems that stem from increasing global economic, political,

environmental, or legal developments remained obscure in these debates.2

The aim of this article is to concretize economic and political global reality by focusing on

the field of labor as a particular sphere of global justice. While the dire conditions of sweatshop

workers, mainly in developing countries, have been described by many critics of the global

economic market, global labor has yet to be analyzed as a distinct sphere of justice. Our article

addresses this lacuna by asking whether duties of justice towards workers should extend beyond

state borders.

Issues of labor are central to questions of global justice for two main reasons. First,

contemporary debates within the field of labor touch upon core global justice concerns, such as

the nature of norm-generation, the level of decision making regarding labor rights – whether

1 Christian Barry and Thomas Pogge, ‗Introduction‘, Global Institutions and Responsibilities: Achieving Global

Justice, ed. C. Barry and T. W. Pogge (Oxford: Blackwell, 2006) pp. 1-2. See also: Chios C. Carmody, Frank J.

Garcia and John Linarelli, Introduction to 'Global Justice and International Economic Law: Opportunities and

Prospects', Boston College Law School Legal Studies Research Paper 246 (2011), Available at SSRN:

http://ssrn.com/abstract=1934864. 2 Among the notable exceptions one may count Thomas Pogge, ‗Human Rights and Global Health: a Research

Program‘, Metaphilosophy 36:1 (2005). Simon Caney, ‗Justice and the Distribution of Greenhouse Gas

Emission‘, Journal of Global Ethics 5:2 (2009). Eszter Kollar, ‗Locating Injustice in Transnational Health-

worker Migration‘, paper presented at the conference on Global Ethics: 10 years into the millennium, Bristol,

2010.


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global, regional or national – and governance structures that should apply these rights. Second,

income redistribution – one of the main concerns of global justice – is considered the raison

d’être of labor law discourse.3 Earning income through labor is the only way to rise above

poverty line for many working poor throughout the world,4

We address the question of the scope of justice towards workers by applying the

methodological approach of practice-dependent interpretation. According to the practice-

dependent conception of justice, principles of justice should be derived from the practice they

presume to regulate. This methodology has been used by some advocates of the Anti-

cosmopolitan camp, who claim that a shared practice, understood in terms of national or political

affiliation (i.e. the state), is a necessary condition for applying principles of justice.5 In contrast,

our analysis of labor as a social practice leads us to support Cosmopolitan conclusions. Our main

argument is that guaranteeing a minimal level of labor standards to workers in global production

chains should be regarded as a duty of justice and requires the development of new legal and

institutional tools that would enforce such minimal standards.

We reached this conclusion by interpreting the social practice of labor, which refers to

the rules and regulations that govern labor relations between employers and employees, as they

developed over the past two centuries since the early days of the industrial revolution. The

interpretation of the practice of labor includes three separate stages: first, we delineate the

contours of the practice of labor. Second, we explore the practice‘s aims which are supposed to

guarantee working conditions that provide workers life in dignity. Here we analyze the

3 ILO, Constitution of the ILO (1919), Preamble. 4 The role of employment and decent labor standards in poverty reduction has been recognized as one of the

Millennium Development Goals. The Millennium Development Goal Report (United Nations, 2010), pp. 8-11. 5 Andrea Sangiovanni, ‗Justice and the Priority of Politics to Morality‘, The Journal of Political Philosophy 16: 2

(2008). See also Michael Walzer, Spheres of Justice (New York: Basic Books, 1983).


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justifications for existing labor norms and regulations, with a focus on the state‘s attempt to

ameliorate the inherent power asymmetry between employers and employees. The third stage of

interpretation includes a critical analysis of the failure to realize the practice‘s aims in the current

global labor market. In this critical step of interpretation, we argue that global economic

developments have exacerbated the exploitive working conditions of workers. As we will

demonstrate below, exploitation in the context of global labor is understood in both substantive

and procedural terms and takes place on both the interactional level, namely in the interaction

between various actors within global chains of productions, and on the institutional level, namely

in regulations of global economy determined by global institutions such as the IMP, World Bank,

and WTO.

What are the normative implications of this interpretive analysis of the practice of labor?

We argue that the exploitive conditions in contemporary global labor market constitute what

John Rawls termed ―conditions of background injustice‖ and thus call for the establishment of

new institutions and regulations intended to correct this situation.6 The development of new legal

tools to regulate working conditions of workers within complex transnational chains of

productions is thus a matter of justice. In other words, assisting the working poor, who are

employed under dire conditions mostly in developing states, is not derived merely from a moral

duty of humanitarian assistance but rather should be considered a duty of justice.7

6 We follow here Miriam Ronzoni, ‗The Global Order: A Case of Background Injustice? A Practice Dependent

Account‘, Philosophy and Public Affairs 37:2 (2009). And Arash Abizadeh, ‗Cooperation, Pervasive Impact, and

Coercion: On the Scope (not Site) of Distributive Justice‘, Philosophy and Public Affairs 35:4 (2007). 7 Humanitarian duties (referred sometimes also as charity duties or duties of assistance) are less weighty than duties

of justice. Duties of justice are grounded in principles of justice that establish individuals' rights. In contrast,

humanitarian duties are not correlative to rights and no rights are violated when people do not fulfill their

humanitarian duties. In addition, by contrast to humanitarian duties, duties of justice are enforceable in the sense that

third parties may be justified in applying sanctions to those who default on them. The literature concerning the


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Before presenting our interpretation of the practice of labor (Section III) and discussing

its normative implications (Section IV), the following section will first situate our argument

within the contemporary philosophical debate on global justice and the theoretical framework of

the practice-dependence approach.

II. The Global Justice Debate and Practice-Dependence Theories

Since its inception in the 1980s, the philosophical debate on global justice centered on the

question whether principles of justice should be extended beyond state borders or should they be

limited to the political boundaries of a sovereign nation-state. At the risk of oversimplification,

one can divide positions in this debate into two main competing approaches: Cosmopolitan

versus Anti-cosmopolitan approaches, which differ mainly in the weight they assign to

obligations for one's fellow citizens versus obligations for people in other nations.8 Cosmopolitan

theories rest either on institutional arguments, claiming that the emerging supranational

institutional structure provides a sufficient common political and economic framework required

for implementing principles of justice,9 or on moral inter-personal arguments, maintaining that

the overarching moral principle that should guide us in matters of distributive justice is the

concern for each person‘s welfare and dignity irrespective of her nationality, citizenship, and

differences between these two categories of duties is large. For recent discussion in the global context see: David Miller, National Responsibility and Global Justice (Oxford: Oxford University Press, 2007) p. 248. 8 Thom Brooks, ‗introduction‘, The Global Justice Reader, ed. Thom Brooks (Oxford: Blackwell, 2008). 9 E.g. Charles R. Beitz, Political Theory and International Relations (Princeton: Princeton University Press, 1999).

Thomas Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (Cambridge: Polity

Press, 2002).


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residence.10

In contrast, advocates of the Anti-cosmopolitan school claim either that a shared

national affiliation that underpins the political framework of a state is a necessary condition for

employing principles of justice, since national membership creates special moral obligations or

―common sympathies,‖ in Mill's words,11

towards our fellow countrymen,12

or, from an

institutional perspective, advocates of Anti-cosmopolitanism insist that principles of justice can

only be implemented under conditions of clear sovereignty capable of enforcing policies decided

democratically and that despite the growing reality of globalization, at present such conditions

exist only within the framework of the nation-state.13

One of the central points of controversy in the global justice discussion concerns the

concept of ―associative duties of justice‖. This concept usually refers to duties we owe to people

with whom we are associated in some way, such as family members, friends, neighbors or

compatriots.14

Advocates of the Anti-cosmopolitan position tend to rely on ―associative duties‖

arguments and restrict the scope of such duties to members in associations based on national

identity or state citizenship. Yet, interestingly, philosophical discussion of the concept of

associative duties neglects to acknowledge a different type of social association that has great

importance for individuals in the modern economy, namely associations that exist in the

workplace - among workers as well as between workers and their employers. This article‘s

10 Peter Singer, One World: The Ethics of Globalization (New Heave: Yale University Press, 2002). Darell

Molendorf, Global Inequality Matters, (Palgrave Macmillan, 2009) 11 John Stuart Mill, Considerations on Representative Government (1972) pp. 359-360. 12Avishai Margalit and Joseph Raz, ‗National Self-Determination‘, The Journal of Philosophy 9 (1990), 439-461.

David Miller, Citizenship and National Identity (Cambridge: Polity Press, 2000). Michael Sandel, ‗The Procedural

Republic and the Unecumbered Self‘, Communitarianism and Individualism, ed. Shlomo Avineri and Avner de-

Shalit (Oxford: Oxford University Press, 1992). Samuel Scheffler, Boundaries and Allegiances: Problems of Justice and Responsibility in Liberal Thought (Oxford: Oxford University Press, 2003) pp. 66-82. 13 Thomas Nagel, ‗The Problem of Social Justice‘, Philosophy and Public Affairs 2 (2005) 113-147. Jon Mandle,

Global Justice (Cambridge: Polity Press, 2006). 14

Jonathan Seglow, ‗Associative Duties and Distributive Justice‘, Journal of Moral Philosophy 7:1 (2010). Niko

Kolodny, ‗Do Associative Duties Matter?‘, The Journal of Political Philosophy 10:3 (2002), 250-266.


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contribution to the global justice debate may thus be made by means of associative duties

argument. Our main claim is that associations based on shared labor practice may imply

normative duties towards workers within the nation-state as well as beyond state borders. In

other words, in contrast to the Anti-cosmopolitan position, we aim to demonstrate that

associative duties may exist beyond the borders of nation-state on the basis of a shared practice

of labor.

Our analysis rests on a methodological approach that has been recently advanced mainly

by advocates of Anti-cosmopolitanism, namely the practice-dependent, or relational, approach to

distributive justice.15

This approach stands in opposition to the practice-independent, or non-

relational approach.16

Non-relational theories (practice independent theories) reject the idea that

principles of justice depend on practice mediated relations in which individuals stand.

Proponents argue that the existence of principles of justice are independent of shared practices,

and do not presuppose shared common institutions or involvement in certain unique cultural

interactions or participation in shared institutions. Furthermore, the non-relational approach

derives principles of justice from comprehensive moral theories that view human beings as the

source of moral concern, regarding them as subjects of justice relationships.17

These principles

apply to all human beings, per se, and are not dependent on any particular practice or institution.

15 Not all theorists who rely on practice-dependent approach hold anti-cosmopolitan views. Good examples are

Leura Valentini, ‗Global Justice and Practice-Dependence: Conventionalism, Institutionalism, Functionalism‘, The

Journal of Political Philosophy 19:4 (2011). Charles, R. Beitz, Political Theory and International Relations.

Thomas Pogge, World Poverty and Human Rights. 16 See Aron James, ‗Constructing Justice for existing Practice: Rawls and the Status Quo‘, Philosophy and Public Affairs, 33: 281-316 (2005). Andrea Sangiovanni, ‗Global Justice, Reciprocity and the State‘, Philosophy and Public

Affairs 35:1 (2007), 318-358. 17 Non relational approach is adopted by theorists who may hold different moral views. E.g. Peter Singer, ‗Famine,

Affluance and Morality‘, Philosophy and Public Affairs 1:3 (1972). G. A. Cohen ‗On the currency of egalitarian

justice‘, Ethics 99 (1989), 906-944


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In contrast, relational (practice-dependent) conceptions of justice maintain that principles

of justice cannot be articulated and justified independent of the practice they presume to

regulate.18

In Sangiovanni‘s words, "the practice mediated relations in which individuals stand

condition the content, scope, and justification of those principles. Relational accounts vary

regarding both in which relations condition the content, scope, and justification of those

principles as well as how they do so."19

Relational theories are not confined only to relationships

among people who participate in a common practice in the strict sense. Relationships between

individuals that give rise to duties of justice can also be based on other social, political, or

institutional relationships.20

All relational theories "share the idea that principles of distributed

justice cannot be formulated or justified independently of the practices that they are intended to

regulate."21

Ironically, despite the recent resurgence in writing on practice-dependent theories, social

practices themselves have been rarely analyzed. Most writings that adopt a relational or practice-

dependent approach tend to focus on relations that arise from sharing a common culture or

common identity, or participating in certain institutions. In contrast, our analysis, which concerns

the sphere of labor, centralizes the idea of social practice.22

Social practice is defined by Rawls

as a ―form of activity specified by a system of rules that defines offices, roles, moves, penalties,

defenses, and so on, and that gives the activity its structure.‖23

Our use of the term social practice

18 In Rawls words, ―the correct regulative principle for a thing depends on the nature of that thing." John Rawls, A

Theory of Justice (Oxford: Oxford University Press, 1999), p. 25. 19 Sangiovanni, ‗Global Justice, Reciprocity and the State‘, p. 5. 20 In the context of the present discussion on relational and non-relational theories of justice, we use the term "practice dependent" in a broad sense which includes all possible relationships that give rise to duties of justice. 21 Sangiovanni, Ibid. 22 An important exception is Iris Young, ‗Responsibility and Global Labor Justice‘, The Journal of Political

Philosophy 12:4 (2004), 365-388. 23 John Rawls, ‗Two Concepts of Rules‘, The Philosophical Review 64: 1 (1955), p. 3.


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in the sphere of labor refers to formal and informal rules and institutions that regulate labor

relations on national and supranational levels.24

According to the practice dependence approach, in order to justify a conception of justice

one needs an interpretation of the practices and institutions that the principles of justice govern

and to identify the role that the principles are intended to play within them.25

In the following

section we apply the practice-dependent methodology in the sphere of labor. We demonstrate

that an analysis of the social practice of labor leads to Cosmopolitan conclusions and extend the

scope of justice beyond state borders.

III. Interpreting Labor as a Social Practice

Our interpretation of the practice and institutions of labor draws on Dworkin‘s interpretational

framework.26

According to Dworkin, a constructive interpretation of a practice consists of three

stages. First, in the ―preinterpretive" stage the object of interpretation, ―the raw data of

interpretation‖, is identified in order to distinguish it from other practices. Note that the

delineation of the contours of a practice is often open to controversy and there could be

disagreements between different interpreters over the exact dimensions of the practice. At the

second stage the interpreter has to locate the aim, the general justification of the practice, and the

reasons why its participants believe it is worth pursuing. In this stage ―the interpreter assumes the

point of view of the participants in order to reconstruct what reason they might have for

24

See also Leura Valentini, ‗Global Justice and Practice-Dependence‘, p. 5. Our definition of social practice

resembles what Sangiovanni‘s calls ―regime.‖ Sangiovanni, ‗Justice and Priority of Politics‘, p. 142. 25

Sangiovanni, ibid, p. 141. 26 Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), Ch. 2.


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affirming its basic rules, procedures, and standards. Why and how do the participants arrange

their affairs to achieve the goals and aims of the institutions."27

The interpretation in this stage

has to meet certain criteria of fit with practice details identified in the first stage. Moreover, the

interpretation of the practice should refer to the practice as an integrated whole. The third and

last stage, the "post-interpretive stage", is the critical and reforming stage, in which the

interpreter articulates what is required from the practice to fulfill the ends identified in the

previous stage.

Our interpretation of the practice of labor presented in the next sections, too, proceeds, as

in Dworkin‘s model, in three stages. First we identify the contours of the practice of labor,

which, from an institutional point of view, refers to the rules that govern labor relationship

between employees and their employers. Ambiguities and controversies over the definition of

categories such as ‗employee‘ or ‗employer‘ are inherent to the practice of labor. Moreover, as

we show in later stages of interpretation, such ambiguities had been exacerbated in the global era

and generated new dimensions of unjust labor conditions.

In the second stage of interpretation, we present the aim and the justifications of the

practice of labor from the point of view of those who take part in this practice, as well as their

expression in national and international moral and legal norms. In other words, we present what

are the commonly perceived goals of labor norms and regulations, as well as how, historically,

they evolved during the nation-state era, mainly in developed states.28

The third, post-interpretative stage is the critical stage. Here we analyze the growing

challenges to the realization of the practice‘s aims, as identified in the second interpretive stage.

27 Sangiovanni, ‗Justice and the Priority of Politics‘, p. 148. 28

The distinction between ―the nation-state era‖ and the ―global era‖ is clearly controversial and may in interpreted

in different ways. For operative purpose of this article, we roughly draw the line around the 1970s.


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Our critical interpretation of the practice of labor at this stage focuses on transformations in the

practice of labor resulting from recent globalization processes; in particular, expansion of labor

relations beyond the nation-state borders through global chains of production, outsourcing, and

other changes in the global labor market.

(1) Pre-Interpretive Stage: The Contours of Labor

The social practice of labor encompasses relations between employers and employees and the

rules governing these relations, rules that developed over the last two centuries. Since the age of

industrialization in the 18th century, employment contracts and aspirations for freedom of

employment replaced feudalism, guilds, and servanthood as the basis for the regulation of labor

market. Labor norms and regulations developed as industrialization expanded throughout the 19th

century and evolved into the establishment of the welfare state in the mid-20th

century. As a

result, today‘s labor relations at the state level are governed by legal rules stemming from

various legal sources (e. g., constitutional provisions, legislation, executive directives, court

decisions, customs, and rules established in collective agreements that result from collective

employer and employee negotiations or contractual agreements agreed upon by individual

employers and employees). On the supranational level, various types of organizations generate

and regulate the practice of labor; these include international organizations (e.g. UN and ILO),

and more recently regional supranational entities and agreements (e.g. EU), and non-

governmental organizations (e.g. FLA and WRC). In addition, labor relations are governed by

regional and international framework agreements, reached by global and regional workers unions


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and TNCs, as well as, voluntary corporate social responsibility codes, and, multilateral, bilateral,

and unilateral arrangements linking trade and labor.29

The contours of the practice of labor are subject to various controversies among them the

historic and continuing question of who should be considered ‗employee‘ and/or ‗employer‘.30

This issue is essential as it determines who is protected by employment contract regulations. 31

As commonly defined in national labor law, typical labor relations entail subordinate contractual

relations and the exchange of a worker‘s labor in return to wages. Yet in recent decades, legal

definitions of employees/employers have become increasingly blurry due to various economic

developments such as decentralization of production, labor externalization, as well as, the growth

of new patterns of work (e.g. freelance workers) and labor intermediates (e.g. manpower

agencies, contractors and subcontractors). This ambiguity in the definition of labor relations was

tackled by labor law regulations which attempted to perfect objective classification/criteria for

ascertaining labor contracts.32

29 For an overview see, e.g., Arturo Bronstein, International and Comparative Labour Law: Current Challenges

(Palgrave Macmillan, 2009), Ch. 4. 30 Bruno Veneziani, ‗The Evolution of the Contract of Employment‘, The Making of Labour Law in Europe: A

Comparative Study of Nine Countries up to 1945 ed. Bob Hepple (Hart Publishing 2010). Other major controversies

regarding the contours of labor include for example the division between formal versus informal sectors, and the

controversy around house work as paid work. 31 We address here the main legal tools that are traditionally considered part of labor law. However, alternative

views of the scope of labor law suggest it includes additional fields of regulations, such as tariff protections and industrial policies. See for example, John Howe, ‗The Broad Idea of Labor Law: Industrial Policy, Labour Market

and Decent Work‘, The Idea of Labor Law, eds. Guy Davidov and Brian Langille (New York: Oxford University

Press, 2011) pp. 295-313. 32

Alain Supiot, Beyond Employment: Changes in Work and the Future of Labour Law in Europe (Oxford: Oxford

University Press, 2001).


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We will return to this point at the third interpretive stage below, when we discuss the way

in which the growing ―defocusing of labor relations‖ in the global era has impeded the protection

of workers‘ rights through legal means.33

(2) The Interpretive Stage: Aims, Justifications, and Methods of the Practice of Labor

The second stage of interpretation explores the aims and the justifications of the practice of

labor, and the reasons that participants in this practice might have for affirming its basic rules,

procedures, and standards. We also discuss why and how these participants arrange their affairs

to achieve the aims of the labor practice.

Aims of Labor: Life in Dignity

Norms and regulations of labor have a variety of goals in the modern capitalist state.34

However,

if we look at the practice as a whole, at the highest level of generalization, a fundamental

aspiration of labor law is to reduce the commodity nature of labor relations in order to guarantee

life in dignity for all workers. According to Sinzheimer, ―labor law is a law on a mission,

intended to uphold human dignity is the special task of labor law[…] imprinting to be a ‗real

humanity‘ that is much more than some mere ideological humanism.‖35

This idea is also

expressed in the dictum ―labor is not a commodity and not a commerce clause‖ which was part 33 Arturo Bronstein, International and Comparative Labour Law, Ch.2. 34 Our analysis ignores the practice of labor as it has developed in non-market state-centralized economies in the

Soviet Block. For elaborated discussion on the plurality of ideas of labor law, see Davidov‘s and Langille‘s book. 35

Hugo Sinzheimer Cited in: Thomas C. Kohler, ‗The Disintegration of Labor Law: Some Notes for a Comparative

Study of Legal Transformation‘, Notre Dame Law Review 73 (2005) p. 1322.


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of post WWI Versailles Treaty and the 1946 ILO declaration.36

In contrast to other types of

economic exchanges, the exchange that characterizes the labor market is unique in that the object

sold (labor skills) cannot be separated from the subject selling her skills (the worker). If the body

and the personality of workers are inseparable from the skills she is selling in return for a wage

income, and if the idea that every person deserves dignity is commonly shared, then every

worker should be treated with dignity.

What constitutes life in dignity is a question intensely disputed by moral philosophers,37

and is controversial in the particular context of labor as well.38

Nevertheless, the 20th century

has witnessed the emergence of a world-wide consensus regarding a minimal standard of labor

rights intended to satisfy this aim. Despite great variety between the ways welfare and labor

regimes have developed in different modern industrial democracies,39

the majority of states in

the world today recognize the need to legally establish fundamental norms and rights in the area

of labor. This recognition is manifested in several key documents of international human rights

law (e.g. The Universal Declaration of Human Rights, The International Convention on Civil

and Political Rights, The International Covenant on Economic, Social and Cultural Rights, the

International Labor Organization Declaration of Fundamental Rights, the UN‘s Global

Compact), as well as, in growing similarities between normative commitments regulated on the

national level. One of the clear expressions of the global consensus on minimal labor standards

36 International Labor Organization’s Declaration Concerning The Aims And Purposes of the International Labour

Organisation (Philadelphia Declaration) (1946). 37 For recent analysis on the meaning of life with dignity see: George Kateb, Human Dignity (Cambridge: Harvard

University Press, 2011). 38 Nien-he Hsieh, ‗Survey Article: Justice in Production‘, The Journal of Political Philosophy 16:1 (2008), 72-100. Russell Muirhead, Just Work (Cambridge: Harvard University Press, 2004). Jon Elster, ‗Self-Realization in Work

and Politics‘, Alternatives to Capitalism, eds. Jon Elster and Karl Moene (New York: Cambridge University Press,

1989). Richard Arneson, ‗Meaningful Work and Market Socialism‘, Ethics 97 (1987), 517-545. Michael Walzer,

Spheres of Justice. Adina Schwartz, ‗Meaningful Work‘, Ethics, 92 (1982), 634-646. 39 Gosta Esping-Anderson, Three Worlds of Welfare Capitalism (Princeton University Press, 1990).


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that guarantee workers life in dignity was the ILO 1998 Declaration on Fundamental Principles

and Rights of Work, that defined four core basic labor rights, including elimination of all forms

of forced or compulsory labor, effective abolishment of child labor, elimination of

discrimination in respect of employment and occupation, and ensuring freedom of association

and the right to collective bargaining. In 2008, the ILO Declaration on Social Justice for Fair

Globalization expanded this to include three additional strategic objectives to be adopted by the

states: promoting access for all to freely chosen employment; developing measures of social

security and labor protection such as basic healthcare (e.g. maternity leave), safety regulation at

work and minimum wage; and promoting social dialogue between workers, employers, and the

state.40

On the national level, such a consensus is reflected in that a significant majority of the

labor standards legislated in 190 countries in the world guarantee comparable basic norms, such

as for example, weekly day of rest, paid sick leave, paid annual leave, and wage premium for

mandatory overtime.41

Clearly not all states live up to their international legal commitments,

and do not always enforce existing national labor laws. Nevertheless, the overlap in basic labor

regulations represents a cross-cultural and cross-economic-developmental consensus regarding

the essential labor standards that constitute an acceptable floor for decent working conditions.

It is important to note that in spite of the international declarative consensus regarding

universal labor standards even in developed states existing labor laws often do not guarantee life

40 This Declaration introduces the ILO Decent Work agenda. The legal status of the Declaration is ambiguous and

States demonstrate varying degrees of commitment towards this consensus of labor rights. Some are of declaratory nature while others have stronger legal implications. See: Francis Maupain ―New Foundation or New Façade? The

ILO and the 2008 Declaration on Social Justice for Fair Globalization‖ European Journal of International Law 20

(2009). 41

Jody Heymann and Alison Earle, Raising the Global Floor (Stanford CA: Stanford University Press 2010), pp.

89-120.


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in dignity. This is the case for a large number of workers who are defined as ―working poor,‖

namely those who are deprived of minimal income that would have allowed them life in

dignity.42

While we do not identify the international consensus of labor standards as sufficient

guarantee for life in dignity, for the purpose of this article we regard international labor norms

as a necessary condition for such a life.

Balancing Asymmetrical Power Relations and Preventing Exploitation

The labor market in a capitalist system, where scarcity of jobs is a common condition, is

characterized by asymmetry in bargaining power between employers and employees.43

Under

such conditions, an individual worker is often compelled to accept the terms of employment

contract dictated by the employer, since any objection may lead to his unemployment. From the

worker‘s perspective, unemployment means lack of means of subsistence. It also means a failure

to achieve other advantages usually associated with work, such as social status and a source of

identity and other psychological benefits. The power asymmetry between employers and

employees extends beyond the pre-contractual stage and is manifested throughout the period of

work relations. For example, workplaces are typically organized hierarchically, featuring

unequal distribution of knowledge, expertise, and power between employers and employees.

In an unregulated labor market, this structural asymmetry in bargaining power between

employers and employees generates labor contracts that are inherently exploitive. Exploitation in

42 David K. Shipler, The Working Poor: Invisible in America (Knop, 2004). Barbara Ehrenreich, Nickel and Dimed: On (Not) Getting By in America (Holt Paperbacks, 2008). ILO, Unemployment, Working Poor and Vulnerable

Employment to Increase Dramatically Due to Global Economic Crisis (2009), http://www.ilo.org/global/about-the-

ilo/press-and-media-centre/news/WCMS_101462/lang--en/index.htm#1. 43

This asymmetry in bargaining power may be overcome if the worker has unique/rare capabilities that strengthen

his bargaining position vis-à-vis his employer. These cases, however, are not common.

http://www.ilo.org/global/about-the-ilo/press-and-media-centre/news/WCMS_101462/lang--en/index.htm#1

http://www.ilo.org/global/about-the-ilo/press-and-media-centre/news/WCMS_101462/lang--en/index.htm#1


17

labor relations occurs on both a substantive and a procedural level. Thus, preventing the

emergence of exploitive labor relations requires both substantive and procedural regulatory

measures.

A substantive definition of exploitation usually addresses the gap between the return one

receives for the contribution of labor and the value the laborer adds to the end product or service.

In modern complex economies, such an outcome-based conception of exploitation is difficult to

measure, partly because the total output of labor is usually the result of various types of

contributions made by many members of society. National legal norms do not adopt a

comprehensive outcome-based conception of exploitation. Rather, the practice of labor rests on a

sufficientarian definition of exploitation. Namely, it institutes a threshold of employment

conditions, expressed in protective labor regulations. According to this minimal perspective,

employment relations that fail to achieve the protective threshold would be considered

exploitive.44

The state played a central role in undermining substantive exploitation and promoting

justice in the labor market by enacting and enforcing minimum standards of working conditions

that employers are required to satisfy (e.g., limits of working hours, safety standards, minimum

wages, holidays and sick leaves).45

By doing so the state in fact adopted a stance of legal

paternalism towards workers and recognized workers as a status, imposing limitations on their

44 We set aside for the moment the vast critical discussion regarding the inadequacy of such minimal standards to

secure human dignity and whether this sufficientarian minimalist approach is morally justified. 45 In the context of labor relations, the state is wearing two hats: first, it plays the role of a sovereign authority that

legislates and enforces labor rules. Second, the state also functions as an employer, usually the major employer in

every modern state.


18

freedom of contract in order to guarantee them minimum of inalienable labor rights.46

This

process began with the first English Factory Act (1802) which set the workday of pauper

apprentices at twelve hours and forbid night work.47

Since then legislatures in industrialized

countries have gradually expanded the coverage and requirements of labor standards.

Another central legal tool developed in most western countries in order to tackle the

inherent problem of substantive exploitation in labor relations is the recognition of labor

contracts as belonging to a unique category termed ―relational contracts‖. In contrast to neo-

classical contracts whose aim is to advance the self-interests of the parties, relational contracts

seek to promote cooperative social behavior. Relational contracts regulate long-term relations

rather than insular interactions and are characterized by a heightened level of mutual

responsibility between employers and employees. Accordingly, labor contracts in most countries

delineate relations between employer and employee in a manner in which they are expected to

behave in good faith and to treat each other fairly. Moreover, the long term nature of labor

relations means that the full terms of labor contracts cannot be defined in advance, and therefore

it may well be the case that certain changes will be made in the contract without dissolving it all

together.

From a normative perspective, the legal category of ―relational contracts‖ acknowledges

a specific type of relations that exists between employers and employees beyond the

commitments that portray a one-time-interaction involving an exchange of goods and services

for money. Labor law thus recognizes labor relations as instituting a type of association which

46 An analogous group that is recognized as a status is the group of children, who enjoy protection of special rights

in return for limitations on their basic freedoms. S. Simitis, ―The Juridification of Labor Relations‖ Comparative

Labor Law Journal 7:2 (1986), 93-142. 47

Stanley L. Engerman, ‗The History and Political Economy of International Labor Standards‘, International Labor

Standards: History, Theory and Policy Options eds. K. Basu, H. Horn, L. Román, J. Shapiro (Blackwell, 2003).


19

generates mutual commitments and normative duties between its participants. From this

perspective, associations based on shared practice of labor may imply ―associative duties‖

belonging to the same category of duties that are usually mentioned in the context of nation or

state membership. In other words, labor relations institute ―associative duties‖ between

participants in the labor practice. To clarify, we are not referring here necessarily to labor unions,

where membership in the association requires formal act of registration. Rather, by association

based on shared practice of labor we refer to those workers and employers who are associated

through a joint project that involves work.

From a procedural perspective, exploitive relations exist when one person takes

advantage of another person‘s bargaining weakness, due to the person‘s condition of desperate

neediness. Taking such an advantage is considered exploitation because the exploiter derives a

benefit from the weak person‘s ―difficulty in advancing her interests in interactions in which

both participate, in a process that shows inadequate regard for the equal moral importance of her

interests and her capacity for choice.‖48

According to this conception, exploitation may occur

even if the exploited person benefits as a result of interaction between the two parties.49

Thus,

employment contracts are considered to be exploitive if the worker‘s ability to bargain and

disagree with the terms of the contract was limited during the negotiation phase. This limitation

often stems from the asymmetry of power between workers and employees and is common in

48 Richard Miller, Globalizing Justice: The Ethics of Poverty and Power (Oxford: Oxford University Press, 2010), p.

60. In this article we do not distinguish between exploitation and wrongful exploitation, which was emphasized, for

example, by Allen W. Wood, ‗Exploitation’, Social Philosophy and Policy 12:2 (1995), 136-158. Joel Feinberg,

Harmless Wrongdoing (Oxford: Oxford University Press, 1988). 49 A common example is that of a man lost in a desert, about to die of thirst, when another man on a camel appears and convinces the thirsty man to lead him to a well in return for life-long servitude in the camel rider‘s household.

Although the thirsty man benefited from the agreement, the camel rider has exploited the thirsty man since he took

advantage of the latter‘s needs, benefiting from his inferior capacity to pursue his interests. See for example Richard

Miller, Globalizing Justice, pp. 60-62. See also: Chris Meyers, ‗Wrongful Beneficence: Exploitation and Third

World Sweatshops‘, Journal of Social Philosophy 35:3 (2004), pp. 319-333.

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negotiations that occur on an individual rather than collective basis. From this procedural point

of view, employment contracts may be regarded exploitive even if they benefit the workers.

Regulations that guarantee freedom of association, freedom to collective agreements and

rights to strike are among the instruments that aim at correcting the unequal balance of power

between employers and workers, and in this sense attempt to constitute a protection from

exploitive relationship in the procedural sense.50

The presence of labor unions in the work place

is instrumental to enforcement of worker‘s rights, as empirical evidence supports the claim that

collective agreements tend to guarantee better working conditions than individual labor

contracts.51

In sum, in contrast to Marxist approach that perceives employer-employee relations as

structurally exploitive and seeks the total elimination of the capitalist system, modern labor law

attempts to balance the inherent asymmetry in employer and employee power relations as well as

guaranteeing a minimum standard of life in dignity. In doing so, the legal norms and regulations

within the practice of labor rest on the assumption that state intervention could balance this

asymmetry and avoid unacceptable conditions of work through various legal and political tools.52

The practice of labor described above evolved by and large during the nation-state era,

and addressed a labor market that generally functions within state boundaries. However,

economic globalization in the past three decades generated new conditions of exploitation that

cannot be addressed by the traditional practice of labor described above. In the next, third, stage

of interpretation we illustrate the effect of increasing economic globalization on the practice of

50 Janice R. Bellace, ‗The Role of the State in Industrial Relations‘, The Future of Industrial Relations: Global

Change and Challenges ed. J R Milend, R. D. Lansbury and C. Verevis (London: Sage 1994) pp. 19-40. 51 Roy. J. Adams, ‗Regulating Unions and Collective Bargaining: A Global Historical Analysis of Determinants and

Consequences‘, Comparative Labor Law Journal 14 (1992/93) pp. 272-301. 52 Paul Davies and Mark Freedman, Kahn-Freund’s Labour and the Law, (Stevens, 1983).


21

labor. We argue that under the current global reality, the existing state-based institutional and

regulatory arrangements cannot achieve the aims and purposes of the practice of labor as defined

in the first and second stages of interpretation.

(3) Post-Interpretive Stage: Critical Analysis of Labor in the Global Era

Two of the global transformations that most significantly intensified the challenges faced by the

practice of labor are the emergence and growth of new actors in the global labor market – the

Transnational Corporations (TNCs) – and the increasing complexity of production chains. The

term ‗production chain‘ usually refers to a network of businesses collectively cooperating to

achieve the procurement, manufacturing, and distribution of a family of related products.53

It

encompasses all actors that participate in the endeavor to bring a product to the marketplace,

including manufacturers and distributors. Global production chains are most common in the

apparel and toys industries, but have become increasingly more prevalent in other industries,

such as electronics.

The growth of global trade and the increased global competition over capital and jobs that

has ensued in certain sectors had generated a reality of a ―race to the bottom‖ or a ―regulatory

chill‖ of labor standards in various sectors, mostly in developing countries. This reality provided

the background whereby workers that reside in developing countries sell their labor power very

cheaply in order to produce products and services for TNCs mostly located in developed states.

53Vincent A. Mabert, ‗Special Research Focus on Supply Chain Linkages: Challenges for Design and Management

in the 21st Century‘, Decision Sciences 29:3 (1998), 537-552. Jeffrey Henderson, ‗Global production networks and

the analysis of economic development‘, Review of International Political Economy 9:3 (2002) pp. 436 – 464, 446.

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22

While TNCs are the main benefactors of this type of labor practice,54

many production workers

are employed in sweatshops under devastating conditions, working unlimited hours, and lacking

minimum safety and health standards. The horrifying labor conditions of workers, particularly

women, in sweatshops in developing countries, have been described and acknowledged in the

literature.55

Legal protections of these workers are often minimal or nonexistent. In many cases,

even full compliance with the low labor standards prevailing in developing states does not

provide workers adequate living conditions. Moreover, it is common for local producers and

factory owners to disregard these inadequate legal protections provided by developing countries

as their enforcement mechanisms are often ineffective.

The exploitive nature inherent to labor relations re-emerges in the global era due to the

limited scope of national regulations which do not apply beyond state borders.56

As mentioned

above, in an unregulated labor market, labor relations may be exploitive because of the inherent

asymmetry in bargaining power between employers and employees. The power asymmetry

between employers and employees in the global labor market is exacerbated by the inability of

existing legal means to adequately capture and effectively regulate transnational production

chains. This deficiency of international and national labor law allows TNCs, based in developed

54 Gross profit margins earned by TNCs such as Nike and Reebok reach around 40%. At the same time, direct labor

costs typically range between 2 to 5 percent of all costs involved with manufacturing branded products in

developing countries. ‗Global Labor: A World of Sweatshops‘, Business Week (November 6, 2000). S. Pratash

Sethi, ‗Corporate Codes of Conduct and the Success of Globalization‘, Ethics and International Affairs 16:2 (2002)

p. 95. 55 Denis Arnold and Norman Bowie, ‗Sweatshops and Respect for Persons‘, Business Ethics Quarterly 13:2 (2003),

221-242. Pierta Rivoli, The Travels of a T-Shirt in the Global Economy: an economist examines the markets, power

and politics of world trade (Hoboken NJ: Wiley, 2006) Ch. 6. Pamela Varley, ed, The Sweatshop Quandary:

Corporate Responsibility on the Global Frontier (Washington DC: Investor Responsibility Research Center 1998). Jill Esbenshade, Monitoring Sweatshops: Workers, Consumers and the Global Apparel Industry (Philadelphia:

Temple University Press, 2004). Denis G. Arnold ‗Working Conditions: Safety and Sweatshops‘, The Oxford

Handbook of Business Ethics eds. George G. Brenkert and Tom L. Beauchamp (Oxford University Press, 2010). 56

This problem was termed the de-teritorialization of labor law. See: Guy Mundlak, ‗De-Territorializing Labor

Law‘, Journal of Law and Ethics of Human Rights 3:2 (2009).

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states, to utilize cheap labor force in developing countries without directly employing these

workers. From a legal point of view, TNCs are connected to workers that produce their products

through contractual obligations within the global production chains rather than thorough

employment contracts. Legally, TNCs are not considered these workers‘ ―employers‖, and are

thus not considered responsible, in the eyes of the law, for the workers‘ labor conditions or well

being. Locally, workers in global production chains are often employed indirectly by manpower

agencies or are legally considered to be self-employed despite their economic dependence on the

supplier. For example, in the apparel industry women are required to produce sections of future

assembled clothing in their homes and, thus, are regarded to be self-employed and not employees

of the sub-contractors who sell the products to the brands.

Nevertheless, although legally TNCs are not considered as formal ―employers‖ of the

production workers within the global production chains, they portray ―employer-like‖ features

that are often used to legally define ―employers‖ in national labor markets. For example, a

criterion commonly used in well regulated national labor market to determine employment

relations is the degree to which employer may exert substantial control in regulating the

production process. TNCs exerts control over the quality of products produced for their brand.

This suggests that TNCs have the capacity to regulate additional aspects of the terms under

which such workers operate. Moreover, by controlling the price paid for the products produced

by workers, they in fact exercise considerable control over the wages and much of the working

conditions of these workers and marginalized subcontractors.

Some supporters of the existing global labor arrangements recognize the severity of labor

conditions of many workers in developing countries but refrain from assigning actors outside


24

these countries any moral duty to relieve these dire conditions. Two common claims are usually

raised in defense of the lack of such actions: First, workers who work under sweatshop‘s

demeaning terms of employment have agreed to do so voluntarily; no one has forced them to

accept these conditions.57

Moreover, given the poor alternatives available to workers in their

countries, they do in fact benefit from the employment opportunities provided by the global

expansion of manufacturing. Second, many supporters of globalization argue that the dire

working conditions in developing countries are unfortunate yet unavoidable consequences of free

market economy and any attempt to control it would result in lower growth rates in the

developing world, reduced business investments, and greater unemployment in the these

countries.58

The problem with these two arguments is that they tell only part of the story. Most

importantly for our purposes, they ignore the fact that globalization processes exacerbated

potential exploitation of workers in both procedural and substantive senses, particularly in the

manufacturing sector in developing states. Exploitation in both senses occurs on two levels:

First, on the interactional level, global labor involves exploitive relationships between the

various actors of the transnational production chains.59

Second, on the institutional level,

globalization gave rise to exploitive relationships in which developing countries exploit

developed countries through an international institutional framework and inter-governmental

agreements regulated by the WTO, GATT, IMF, and others.

57 Ian Maitland, ‗The Great Non-Debate Over International Sweatshops‘, British Academy of Management Annual

Conference Proceedings (1997) 240-265. 58 Jadishe Bhagwati, In Defense of Globalization (Oxford University Press, 2004). 59

Some point to consumers as additional participants in such exploitation. See for example Young ‗Responsibility

and Global Labor Justice‘.


25

On the interactional level, exploitation may occur despite what seems to be voluntary

consent of workers to terms of employment that fail to provide them with a life in dignity.60

As

discussed above, the fact that employees may benefit from their work arrangements, compared to

alternative options (e.g. unemployment or worse working conditions offered by local employers)

does not diminish the exploitive nature of the labor relations. This is because exploitation, in the

procedural sense, occurs when the employer takes advantage of the worker‘s bargaining

weakness, given the latter‘s desperate neediness under the existing economic conditions of

developing countries, regardless of the benefits the employee may obtain as a result of the

working agreement. As Richard Miller contends, ―to derive benefits from another‘s bargaining

weakness through an arrangement that is stultifying is only compatible with adequate respect for

her interests and capacity for choice on account of special, exclusionary reasons.‖61

These

reasons do not include ―voluntary consent by employees and her improvements as compared

with opportunities available to her.‖62

This procedural exploitation of workers in the global labor market is further exacerbated

when the asymmetry in negotiation power between employers and employees has a geographic

dimension. The disadvantage of workers in the developing world is structural. As economist

Prakash Sethi argued, standard trade theory requires that both capital and labor have maximum

mobility to allow equitable distribution of benefits from free trade, so that each side can

maximize the reward from its efforts. While TNCs currently enjoy all of the advantages of

moving capital between different sectors and nations in order to maximize their return on

60 One may argue that given the circumstances in developing countries and the existing alternatives (which are much

worse) employees‘ acceptance of sweatshop‘s demeaning labor conditions is not truly voluntary but rather forced

upon them. 61

Richard Miller, Globalizing Justice, p 66. 62 Ibid.


26

investment, workers lack such mobility. Workers cannot migrate easily, if at all, to countries

with labor shortages and consequentially they are prevented from eliminating inefficiencies in

the labor market.63

According to Sethi, ―the imbalance between the mobility of capital and goods

and the immobility of labor are more characteristic of neo-mercantilism than of truly free

markets. TNCs use both the fact and threat of capital mobility to extract maximum productivity

gains from cheap and abundant labor. The control of overseas markets provides the TNCs with

monopoly - like power, which they use on local manufacturers to extract the lowest prices

possible and thus put extreme downward pressure on local wage rates. Local manufacturers, in

their turn, cooperate among themselves by not competing for workers on the basis of higher

wages—a situation that is easily maintained because of abundant labor.‖64

Sethi‘s focus on the international structure that prevents workers mobility suggests that a

complete picture of the exploitive nature of labor relations in the global era must take into

account not only exploitation of workers that occurs on the interactional level but also the

exploitive conditions of workers in developing countries that occurs on the institutional level;

namely the exploitation that stems from unequal global trade and investment framework

agreements shaped by inter-governmental negotiations between developing and developed

countries. The Uruguay Round administered by the World Trade Organization between 1981-

1994 is a prime example. During these negotiations, major developing countries took advantage

of developing states‘ urgent need for access to developed markets, and used threats of exclusion

63 S. Pratash Sethi, ‗Corporate Codes of Conduct and the Success of Globalization‘, Ethics and International Affairs

16:2 (2002) p. 90. 64

Sethi. Ibid. p. 90-91. MNCs, meaning Multinational Corporations, is a synonym to TNCs (Transnational

Corporations).


27

and discrimination among other ―bullying‖ methods to achieve a trade regime that benefited the

developed states‘ markets.65

In sum, the three stages of interpretation discussed above reveal how various legal and

political means that helped balance the power asymmetry between employers and employee in

the nation state era have been eroded in the era of globalization. As the practice of labor

expanded beyond the borders of the state, labor norms and regulations that constituted the

practice of labor in the pre-globalization era failed to achieve its central aim; namely to secure

workers with life in dignity. In the next section we present the normative implications of this

failure to realize the aims of the practice of labor in the global economy and argue that advancing

worker‘s rights outside state borders should be regarded as a duty of justice.

IV. New Institutional Arrangements as a Duty of Justice

The failure to realize the aims of the practice of labor in the global era, on both interactional and

institutional levels, can be described as constituting conditions of ―background injustice,‖ which

is a term first coined by John Rawls, and has recently emerged in the discussion of global justice.

By background injustice Rawls meant the absence of just rules as well as political and social

institutions which constrain people's decisions and actions. In the absence of ―just background‖,

the accumulated results of many separate and fair agreements between individuals can over the

course of time lead to a situation whereby conditions of free and fair agreements no longer

65

For a more radical approach to structural exploitation towards workers in the capitalist system see: Lea Ypi, ‗On

the Confusion between Ideal and Non-ideal in Recent Debates on Global Justice‘, Political Studies 58 (2010).


28

hold.66

This may be due to social trends and historical contingencies. Rawls limited the scope of

principles of justice only to the state level, namely to those people who live under the same basic

structure. However, in recent separate publications, Miriam Ronzoni and Arash Abizadeh relied

on Rawls‘ underlying assumptions to derive Cosmopolitan conclusions, and argued that the

existence of background injustice on the global level calls for the establishment of institutions

and rules that correct the unjust reality. According to Ronzoni, if problems of background

injustice arise at the global level, we have a duty to alter the global institutional structure in order

to end the conditions of injustice. Some of these institutions may be completely new and

different from institutional arrangements that characterized the basic structure of the nation-

state, yet they do not necessarily need to create a world-state.67

Similarly, Abizadeh reached a

concurring conclusion based on his analysis of Rawls‘ notion of ―fair terms of cooperation‖.

According to Abizadeh, when a group of individuals are engaged in a mutually advantageous

enterprise, the creation of a basic structure is required to realize just background conditions.68

The background injustice argument has particular relevance to problems of global labor.

In a brief comment, Rawls used the example of labor contracts to support his claim regarding the

role of sociopolitical institutions in preserving certain patterns and thus securing just background

conditions. He wrote: "whether wage agreements are fair rests, for example, on the nature of the

labor market: excess market power must be prevented and fair bargaining power should obtain

between employers and employees. But, in addition, fairness depends on the underlying social

66 John Rawls, Political Liberalism (New York: Columbia University Press, 1993), p. 265-66. 67

Ronzoni, ‗The Global Order‘, p. 230, 245. 68 Abizadeh, ‗Cooperation, Pervasive Impact, and Coercion‘.


29

conditions, such as fair opportunity, extending backward in time and well beyond any limited

view."69

As demonstrated in the previous section, the global labor market is characterized by

background injustice. This reality demands implementation of principles of justice on the global

sphere, since the unjustness of the practice of labor on the global level undermines the very aims

and justifications that characterize the practice of labor. In other words, the unjust conditions of

global labor require, as a matter of justice, the establishment of new institutions and rules or the

strengthening of the existing global institutions to correct such exiting injustices.

Outlining the particular rules and institutions that should govern the practice of labor on

the global level or practical details regarding the way they should be designed goes beyond the

purpose of this article. Yet, in the remaining of this section we present two general guidelines

that we deem to be crucial for designing just rules and institutions for a global practice of labor.

The first concerns the question of uniformity. In our view, the rules and institutions that

should govern the practice of labor on the global level may differ from those operating on the

national level as their nature depends on the kinds of problems they are supposed to ameliorate.

The extension of the practice of labor to the global sphere might require supranational

institutions or international rules different in their nature from the labor rules and institutions that

secure just background conditions for workers on the national level.70

Furthermore, the

regulation and enforcement of global labor standards does not necessitate a uniform content of

all labor norms, rules, and regulations across the world. For example, the norm of minimum

69 John Rawls, Political Liberalism, p. 267. 70 Here we follow the main lines of Ronzoni's argument, although our argument differs from hers as we regard

chains of production as constituting a practice in need of a creation of new institutions and rules for achieving the

goals of the practice of labor, while in her terminology background injustice requires the establishment of new

practices.


30

wage could vary across states depending on various factors such as productivity, standards of

living, and the welfare regime in the different states. However, some minimal level of labor

standards should be uniform (e. g., elimination of worst forms of child labor). The level of this

minimum is a subject for political and legal debate.

The second guideline concerns the question of responsibility. In recent years scholarly

attempts have been made to tackle the problem of background injustice in the area of global

labor by proposing new institutional arrangements for generating and enforcing labor standards

on the international level. For example, Archon Fung, Dara O‘Rourke and Charles Sabel

proposed to advance labor standards in sweatshops by incentivizing corporations through

coordinated actions of consumers, monitor agencies and nongovernmental organizations.71

Another leading example is Christian Barry and Sanjay G. Reddy, who call for world-wide

system of linkage between trade agreements and labor standards.72

These proposals assign

responsibility for the welfare of workers by either emphasizing the interactional perspective,

focusing on individual actors in global production chains (e.g. Fung et al) or underscoring the

institutional perspective by concentrating on reforms of global and international rules and

institutions (e.g. Barry and Reddy).

In contrast, we propose a multi-level approach.73

As demonstrated in this article,

problems of background injustice in the area of labor global exist on both interactional and

institutional levels. Therefore, proposed arrangements for guaranteeing workers‘ rights should

71 Archon Fang, Dara O‘Rourke and Charles Sabel, Can We Put and End to Sweatshops? (Boston: Beacon Press, 2001). 72 Christian Barry and Sanjay G. Reddy, International Trade and Labor Standards: A Proposal for Linkage (New

York: Columbia University Press, 2008). 73

For a good example of multi-level proposal to reform international labor law see: Mark Barenberg, ‗Sustaining

Workers‘ Bargaining Power in an Age of Globalization‘, EPI Briefing Paper 246 (2009).


31

address the exploitive conditions and assign responsibility to ameliorate them on both

interactional and institutional levels.74

A new legal and political concept of shared responsibility is thus required in order to

assign responsibility not only to individual actors and TNCs who participate in global labor, but

also to governance architectures of international institutions (i. e., WTO, ILO, World Bank,

IMF), and especially to those governments that have the greatest influence in the institutions that

affect the way labor is regulated on the global level.75

Such governance structure should satisfy

the conditions of background justice.

In order to prevent the exploitive nature of labor relations on the interactional level, such

arrangements should strengthen the right of freedom of association and bargaining power of

workers on the global level. One possible direction is to strengthen framework agreements

signed between supranational labor organizations and European based TNCs.76

Furthermore,

new legal tools should be developed in order to assign TNCs with responsibility towards

production workers at the end of their global production chains.

V. Conclusion

In this article, we drew on the empirical reality of global labor in order to contribute to the

normative discussion of global justice. Our analysis of the practice of labor has demonstrated

74 Yossi Dahan, Hanna Lerner and Faina,Milman-Sivan, ‗Global Justice, Labor Standards and Responsibility‘,

Theoretical Inquiries in Law 12:2 (2010), 117-142. 75 Iris Young has developed a new concept of social connection model of responsibility, which is similar in some ways yet we disagree with her emphasize on civil society and political activity as the only remedy to the unjust

conditions of labor around the world today. See: Young ‗Responsibility and Global Labor Justice‘. 76 Tonya A. Novitz, ‗Promoting Sustainable Development through Transnational Collective Bargaining: The Local

Implications of International Framework Agreements‘, Studies in Labour Law and Social Policy (2009), pp. 403-

416.


32

that moral obligations towards workers do not depend only on geographical location,

membership in a particular nation/culture, or participation in effective political institutions.

Rather, they depend on participation in the practice of labor itself, which in the past two

centuries have been increasingly regulated mainly on the national level. These regulations rested

on the normative perception of labor relations as constituting a type of association which implies

moral commitments among its participants. The fact that labor relations extend state-borders in

today's economy does not reduce the moral obligations among the parties in such relations. In

other words, if TNCs and other actors within the global production chain (e.g. sub-contractors

and vendors) demonstrate ―employer-like‖ characteristics such as influencing the working

conditions of all production workers within their chain and gaining benefit from their work, there

is no reason to exempt them from their duties towards workers who take part in their shared

practice of labor.

Our argument thus extends the meaning of ―associative duties of justice‖ beyond the

standard scope of this term. Obligations to ameliorate the dire conditions of workers outside the

state borders, we claim, should be regarded as ―associative duties.‖ Thus, normative obligations

towards exploited workers in developing countries should not be viewed as humanitarian

assistance to poor people, but rather as a matter of justice to guarantee these workers labor

standards that fulfill the aims of the practice.

By extending the concept of associative duties to labor relations, our argument

overcomes one of the main points of criticism usually raised against the Anti-cosmopolitan

camp. According to what is known as the voluntarist objection,77

being in a relationship with

others is insufficient to create associative duties towards them, since moral duties are acquired

77 Samuel Schefler Boundaries and Allegiances, Ch. 1


33

only by voluntary acts (e. g., by entering into contractual agreements). While the voluntarist

objection may be considered a persuasive argument against nationalist and statist conceptions of

associative duties, it is not applicable as an argument against associative duties of actors who

voluntarily enter into the labor practice since their duties towards workers are created

voluntarily.

A critical interpretation of the practice of labor in the global era leads not only to

normative conclusions regarding global justice theory but also has some practical implications.

First, our analysis reveals that the current legal framework that defines employers-employees

relationship is anachronistic and does not correspond to the actual exploitive conditions of such

relationships in contemporary global labor market. Thus, our argument call for development of

new legal framework that reallocates moral and legal responsibilities to actors in global labor

market and reflects just labor relations in the age of globalization. In doing so, international labor

law should redefine the terms ‗employees‘ and ‗employers‘ within global production chains. For

example, an employer should be considered as such legallyto the extent that such employer

controls the working conditions of workers in the chain of production, benefits from the product

of their work, participates with the workers in joint activities, or has the capacity to change

existing work conditions.

One possible counter-argument to our claim that may be offered is that it is restricted to

global chains of production and thus implies that the duties of justice to guarantee labor

standards do not extend to workers who work outside global production chains (e.g. those who

provide local services or work in local agriculture). This is, indeed, an important limitation of our

analysis of labor relations on the interactional level (i.e., between various actors in the global


34

labor market who take part in the practice of labor). However, this criticism does not apply to the

analysis of exploitation of workers on the institutional level, as such analysis refers to the

dominance and privileged positions that developed states enjoy in global economic institutions

such as IMF, World Bank and WTO. The second practical implication of this article is that new

institutional arrangements are needed in order to ameliorate the current conditions of background

injustice in the sphere of global labor. Since global economic institutions such as the IMF and

WTO shape the global economic reality and influence the way the global labor market is

regulated, their reform would potentially affect all workers in the developing and developed

world. Guaranteeing just working conditions for workers, within and beyond global production

chains, requires establishing new forms of global governance that will replace the existing unjust

institutional reality.78

Finally, by highlighting the need to address labor standards as a matter of justice, our

approach has significant practical implications in regards to the general global goal of poverty

reduction. By shifting the practical discussion of global justice from directly addressing

questions of poverty reduction to issues of labor rights and wages, our approach makes it

possible to overcome one of the main criticisms usually raised against proposals for direct

financial assistance to the world‘s poor; namely, that direct assistance requires intermediary

institutions which reduce the actual resources that eventually reach those people most in need of

assistance in the developing world. Such intermediary institutions include corrupt governments

or other forms of administrative expenses (many of which recycle resources back to the

developed world). In our view, focusing on normative duties towards workers rather than


35

towards poor people in general and seeking a re-design of global institutions that enforce labor

standards by law would indirectly and perhaps more efficiently contribute to the general goal of

facilitating global justice and reducing economic inequality across the globe.

labor rights as duties of justice: a cosmopolitan...

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