I. INTRODUCTION

Arguably the most important rights contained in the International Covenant on Social Economic and Cultural Rights (“ICSECR”) are those concerning availability, security and conditions of work. One does not need to travel far to see how necessary these rights have become in the modern world of globalized, technology-based, monopolized, finance capitalism. From Bangladesh to Detroit, Shenzhen to Athens, modern economic pressures squeeze working people all over the world and may result in economic insecurity or destitution at best, to death or serious injury at worst. Therefore, perhaps more than ever,  a reproachment with the history of labor rights and its lessons can yield important truths in dealing with modern forms of employment and working condition amelioration because when put into focus and understood correctly, this history can help us advance these rights beyond where they have developed. An efficient way to do so is to review the Committee on Economic and Social Rights (“the Committee”) draft general comment (“DGC”) on Article 7(a) of the ICSECR and how the Committee, as well as those who submitted comments to the draft, understand the form, nature, obligations, and reach of the right to fair remuneration for work.

Part II of this paper provides a brief background on the history of labor laws and rights and why there was a need for them in the first place. It will also review basic principles of the ICSECR including non-discrimination, minimum core obligations and progressive realization of rights. Finally, this section reviews Article 7 and discusses its contents as written in the Covenant. Part III analyzes the content of the DGC and reviews the written submissions of third party NGOs and states that specifically discuss fair remuneration. The limited breadth, depth, and tendency to veer away from the main objective of the right (seemingly to avoid international consternation) represents the decreased influence and power of the labor movement as a challenge to the now universal capitalist mode of production and the powerful interests it produces. Therefore in Part III this paper argues that the scope of understanding and reach of the right to fair remuneration must be greatly expanded, even at the peril of the aforementioned trepidation in the face of powerful forces who wish to continue to limit the effect of not just Article 7(a), but all forms of labor rights. It recommends that the Committee take a firm stance and increase, not limit, the protections by openly confronting free-market, laissez-faire capitalism with labor rights.  Finally, the paper concludes by suggesting that until all those interested in labor rights understand the inherent contradiction between such rights and capitalism, given the sheer power of profit-driven, capitalist forces, ones that can only be confronted by an institution of the UN like the Committee, the prospects for enforceable and ever widening human rights protection on the job will surely fail.

II. BACKGROUND

A.    Positive vs. Negative Rights

Human rights have traditionally been understood to fall within two forms: negative (such as those contained in the ICCPR) and positive rights (such as those contained in the ICESCR). Negative rights, sometimes referred to as first generation rights, are the traditional liberal rights that arise out of the enlightenment and the emergence of capitalism and republican forms of governance in opposition to mercantile and monarchial forms of state and economic organization. Aimed primarily at curbing the historical practice of state intervention in the private lives of citizens, negative rights aim to provide strict restrictions on such state actions and policies. Therefore the rights enshrined in the American Bill of Rights and the French Declaration of the Rights of Man and of the Citizen typify negative rights by enjoining the state from taking actions which are determined to be attacks on personal sovereignty of the individual.[1] These rights take the form of “freedom from” such as freedom from unreasonable restrictions of speech, life, and private property, violent crime, state enforced religion, arbitrary detention (habeas corpus and fair trial rights), and enforced labor (otherwise known as slavery).[2] Underlying these rights is the notion that the state is inherently ill-liberal and therefore must be constrained from interfering in the private lives and affairs of its citizens unless absolutely necessary for its continued existence, as such restrictions are antithetical to human flourishing under a mode of production based primarily on the freedom to contract and free choices in the marketplace.[3]

Conversely, positive rights, or second generation rights, come from a different notion of liberty.[4] Whereas negative rights take the form of “liberty from” some form of government action, positive rights take the form of “liberty to” realize ones full potential free from either government or private actions preventing such, or from state failure to provide a system which grants each person the ability to realize their full potential.[5] The ESCR Covenant outlines several of these rights including the right to food, housing, public education, employment, national security, military, health care, social security, internet access, and a minimum standard of living.[6] The nature of these rights means that the state has dual obligations: to refrain from taking action restricting access to or realization of these rights or, in the alternative, to take all necessary steps to ensure that these rights are open to all.[7] This represents a shift in the teleological notion of the role of the state from a force to be constrained from its inherently tyrannical nature to one that has both the ability and mandate to ensure that it provides the best possible situation for the fulfillment of the basic needs of human life and flourishing.

Positive rights are found in the Universal Declaration of Human Rights (UDHR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR), as well as through other key human rights treaties and regional mechanisms. To date, more than 160 states have ratified the ICESCR, with the notable exception of the United States.[8] Additionally, many states, notably African and Latin American nations, have articulated their commitment to ESCR through national constitutions and domestic law.[9] Under the ICESCR, a state must take steps “to the maximum of its available resources” to progressively realize ESCRs.[10] In particular, a state (including its subnational levels) has the three fold obligations: 1) to respect ESCR (refrain from any violation of ESCR); 2) to protect ESCR (prevent third parties from violating ESCR); and, 3) to fulfill ESCR (take necessary measures to realize ESCR, including through legislative, administrative, budgetary, and other processes).[11] Additionally, states must seek and provide international assistance and cooperation in the realization of ESCRs.

One of, if not the most important, rights contained in the ICESCR are the economic rights regarding employment.[12] The historical and philosophical origins of this right trace back to 19^th century France where the rising costs, inequality, and exploitation of French capitalism had reached a boiling point.[13] In response to a financial crisis in 1846, French socialists mobilized for the establishment of minimum labor laws, including a mandated twelve hour day.[14] The ultimate failure of the socialists to seize state power fortunately did not result in the repeal of those labor laws, but instead spurred a new movement for the enactment of similar laws in other capitalist countries.[15] This tangible goal, compared to the loftier goal of state power, would orient and invigorate the socialist movement until one communist party actually seized power in Russia in 1917.

Still, socialists, labor movements, and left-wing groups around the world continued to push for new laws restricting working hours, ending child labor, adding protections for workers on the job and from being arbitrarily dismissed, usually by means of organizing into labor unions to collectively bargain for fair remuneration against the labor exploitation which is a fundamental characteristic of capitalist production.[16] Though given rhetorical weight by the Soviet Union and other Communist nations, which likely led to the adoption of the ICESCR, the USSR was hardly the workers’ paradise it claimed to be moving towards, nor was it a harbinger of effective labor laws as it in many ways operated on the same basic economic principles of other states.[17] Partly to challenge the influence of Communist ideology, as well as the understandable concern that labor rights are antithetical to a market economy based on freedom to contract, the United States has refused to acknowledge that the labor rights contained in the ICESCR are on par with the negative rights contained in its constitution.[18] Though it has much law on the books representing its shared history with other capitalist nations of working class demands for fairness on the job, the United States remains well behind its European, African and Latin American counterparts in this regard.[19]

B.     Non Discrimination Principle

In General Comment Number 20, the Committee reiterates states’ obligation to guarantee ESCRs without discrimination on the basis of grounds specified in the ICESCR, including race, color, sex, language, religion, political or other opinion, national or social origin, property, and birth.[20] Along with these commonly enumerated identifiers, the committee also recognized that discrimination based disability, age, nationality, marital and family status, sexual orientation and gender identity, health status, place of residence, and economic and social situation are similarly prohibited.[21] While the ICESCR is based on the notion of progressive realization of the rights contained therein (to the degree at which a state is able owing to its economic and political power) the elimination of discrimination, along with minimum core obligations for each Article of the covenant, are not subject to progressive realization but are instead immediate obligations.[22]

C.    Progressive Realization of Rights

Progressive realization of rights is a core notion of ESCRs and contained in Article 2 (1) which states that each party to the covenant “undertakes to take steps … to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means….”[23] The reference to “resource availability” reflects a recognition that the realization of these rights can be hampered by a lack of resources and can therefore only hope to be achieved over a period of time.[24] Equally, it means that a State’s compliance with its obligation to take appropriate measures is assessed in the light of the resources—financial and others—available to it.[25] However, a state must do so after first and irrespective of the resources available to it, seek to ensure that everyone has access to a minimum levels of rights and target programs to protect the poor, marginalized, and disadvantaged groups in society as a matter of priority.

D.    Minimum Core Obligations

Understanding that notion of progressive realization is not absolute and that some rights are immediate is crucial to understanding the normative nature of ESCRs.[26] Governments, no matter what level of resources are at their disposal, are obligated to make sure that people living under their jurisdiction enjoy at least essential levels of protection of each of their economic, social, and cultural rights.[27] While the ICESCR recognizes the principle of progressive realization of ESCR, this does not mean that states are free to postpone undertaking their duties vis-à-vis ESCR until a later, undefined, date.[28] Protection from starvation, primary education, emergency healthcare, and basic housing are among the minimum requirements to live a dignified life and it is the duty of governments to ensure these at all times.[29] Even in cases of economic downturn or other emergency, these core requirements must be guaranteed to everyone.[30] States should use all the available resources, including international assistance, to make sure that every individual in their territory enjoys a bare minimum of ESCR.

E.     Just and Favorable Conditions of Work in the ICESCR

The right to fair remuneration is part of the right to just and favorable conditions of work. Article 7 of the Covenant states it succinctly:

“The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favorable conditions of work which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with:

(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;[31]

The Committee has attempted to enumerate several aspects of the normative content of the right to enjoyment of just and favorable conditions of work including what constitutes fair remuneration, safe conditions, and application of the principle of non-discrimination, working hours and rest. The Draft of the General Comment on Article 7 also outlines specific and general obligations under the ESCR to fulfill this right.  

In its General Comment 18, the Committee provided detailed guidance to States regarding their obligations to respect, protect and fulfil the right to work.[32] The Committee also noted that the right includes the following interrelated and essential features:

• Availability. States must ensure the existence of tailored services to help people to identify employment opportunities and find work.
• Accessibility. Access to work involves three key elements: non-discrimination, physical accessibility, and information accessibility. Discrimination in access to and continuation of employment is prohibited. States must ensure that reasonable accommodation is made so that work places are physically accessible, particularly for persons with physical disabilities. Everyone has the right to seek, obtain and impart information on employment opportunities.
• Acceptability and quality. The right to work comprises several interrelated components, including the right to choose and accept work freely, just and favorable conditions of work, safe working conditions, and the right to form trade unions.[33]

It is important to note that the right to work and related rights are further enabled and informed by the numerous international standards of the International Labor Organization (ILO).[34]

III.ANALYSIS

A.    Discussion of Draft Comment on Article 7(a)

1. Remuneration defined

Following the ILO convention the DGC defines fair remuneration broadly to encompass more than “the more restricted notion of ‘wage’ or ‘salary’ to include additional direct or indirect allowances in cash or in kind that should be of a fair and reasonable amount paid by the employer to the employee, such as grants, contributions to health insurance, housing and food allowances, and on-site affordable childcare facilities.”[35] Then the comment goes on to discuss what would constitute fair and minimum wages.

2. Defining a Fair Wage

The DGC claims that a definition of a “fair wage” is not simple but is, in general, “not static since it depends on a range of non-exhaustive objective criteria” which is based on an extensive list of factors including the output of the worker, his/her responsibilities, the level of skill and education required for the work, the potential impacts on health and safety, and any specific hardships related to the work and what impact all of these may have on the worker’s personal and family life.[36] While laudable in its intended scope, rather than continue to explain how these factors should be evaluated, the comment quickly diverts to issues of female workers being of central importance to the fair wage calculations, as any arbitrary decrease in women’s wages is an immediate sign of discrimination and unfair wages.[37] However, we have yet to be given a usable definition of fair wages for which to judge if both women and mens’ pay is adequate at the beginning. The comment further goes on to suggest that there must be an objective measure of fairness that is independent of, though highly informed by, discriminatory arbitrary distinctions in pay.[38] To that end, the value of the work is essentially evaluated by means of “comparison of rates of remuneration across organizations, enterprises and professions” as well as between workers.[39] The assumption of labor competition as a means of judging fairness appears to ignore the intent behind the extensive list firstly used and there is an understandable reason for this diversion.

The committee recognizes the conflict that this right has with traditional laissez-faire capitalist principles of non-state intervention in private economic matters. It states that”

“equal remuneration for work of equal value applies across all sectors although States parties have differing responsibilities regarding the public and private sectors. Where the State has direct influence over rates of remuneration, equality should be achieved in the public sector as rapidly as possible ensuring equal remuneration for work of equal value in the civil service at central, provincial or local levels as well as for work under public contract or in enterprises either fully or partially owned by the State.”[40]

Regarding union based contracted wages such wages “should seek equality for work of equal value.”[41] The states obligation regarding the private sphere is limited to the adoption of legislation and other policies with the intent “to promote progressive realization of equal remuneration for work of equal value including in the private sphere…” [Emphasis added][42] However, one of the examples of such legislation again focuses on comparisons of men and women suggesting that states must encourage classification of jobs “without regard to sex; fixing time bound targets to achieve equality and reporting requirements to assess whether targets have been met; and requiring progressive decreases in the differentials between rates of remuneration for men and women for work of equal value.”[43]

However, the DGC does step out of its self-limiting scope when it states it clearly that “remuneration must also provide a ‘decent living’ for workers and their families.”[44] This is, however, immediately qualified when it states, “[f]air wages and equal remuneration are determined by reference to the work performed by an individual worker as well as in comparison to other workers.”[45] Yet the Committee then maintains that the notion of fairness as comparison does not discount some absolute measurements. For instance, to be considered fair “remuneration [must] provide a decent living [and] must be determined by reference to outside factors such as the cost of living and other prevailing economic and social conditions.”[46] This is the first time the DGC creates a list not primarily dependent on gender differences or comparative evaluations, but determines some objective measure of what must be afforded by wages workers receive. So to be “fair,” remuneration must be enough not just in comparison to other workers, but enough to enable the worker (and importantly his or her family) to enjoy other rights in the Covenant, including social security, health care, education, and an adequate standard of living, including access to adequate food, water and sanitation, housing and clothing.

3.     Fair Wages contra Minimum Wages

After attempting to describe fair wages, paragraphs 22-24 of the DGC discuss the role and potential of minimum wages.[47] The Committee first states that a minimum wage can provide the means of ensuring decent remuneration, but also admits it may fall short.[48] To avoid this potential the committee recommends that “states parties should prioritize the adoption of a periodically reviewed minimum wage, indexed to the cost of living, and maintain a mechanism to do this”[49] and that all stakeholders (including workers, employers and their representative organizations) should participate directly in the operation of that review mechanism.[50] This is important to maintain the purchase power of minimum wage laws when encountering periods of inflation. For instance, the US minimum wage was $0.25 when enacted in 1938 and calculating inflation and keeping the purchase power parity of that income in 2015 dollars the wage would be ~$21.72 instead of the current $7.25 level and still higher than the ongoing campaign for a $15 minimum wage.[51] Such an example is why the committee recognized that the minimum wage is often not equal to a fair wage and that only a minimum wage system that is recognized in legislation, fixed with reference to the requirements of a decent living, and applied consistently can be deemed to be sufficiently sound to achieve the rights in Article 7(a). Unless such a minimum wage takes into account, “general level of wages in the country, the cost of living, social security contributions and benefits and relative living standards”[52] it is merely ink on paper. Indeed, “the minimum wage should be above the poverty line”[53] and where it is not, it is not a sufficient system to ensure this important right.

B.     Review of Submissions

1.      AGE Platform Europe Advocates

AGE Platform Europe Advocates is a European network of more than 150 organizations that represents over 40 million older people in Europe directly.[54] Given this position, AGE advocated for adding a life-cycle approach that specifically includes old age and unemployment considerations.[55] To do so they recommended adding to paragraph 20 the following language, “the notion of remuneration that provides all workers with a decent living should take a life-cycle approach, including sufficient statutory or voluntary contributions to social security or private-sector equivalents that cover risks such as sickness, longevity, unemployment and long-term care needs.”[56] Given the community AGEPE represents, the life-cycle approach attempts to reconcile the effect of aging on securing employment and the benefits thereof.

Making it clear that AGE believes that remuneration is the main income of households across the life cycle such an approach insures that remuneration not only provides a decent standard of living at the time of the work contract, but that it should be sufficient to cover inherent risks throughout the life-cycle, such as disease, times for maternity and breastfeeding, and life beyond the age of retirement.[57] It maintains that such an approach is “crucial to ensure the implementation of Article 11 ICESCR on an adequate standard of living throughout the life-course.”[58] AGE understands that such old-age risks are often covered by social security contributions that are linked to wages a robust wage system ensures that workers currently employed are justly compensated, but also that social security systems are also well capitalized.[59] Having such a strong and stable social security system in line with article 11 of the Covenant and the UN Principles on older persons, in particular the principle of ‘independence,’ which according to the Committee’s General Comment No. 6, “includes access to adequate food, water, shelter, clothing and health care. To these basic rights are added the opportunity for remunerated work and access to education and training.” [60]

AGE rightfully points out that in General Comment 19 on the right to social protection the Committee made clear that benefits received as part of social security should be adequate in both amount and duration and accessible to all without discrimination.[61] To ensure this, AGE looks to the ILO and a number of other UN Organizations who have developed a framework for policy design known as the “social protection floor,” anchored in the rights of everyone to social security and such a right necessarily carries with it the right to a standard of living adequate for the health and well-being of themselves and their families.[62] To show an example of a system failing to do so, the US social security system though technically accounting for cost of living adjustments (COLA) provides, on average, $16,000 a year, just $4,300 over the official poverty line, a line that itself has been convincingly critiqued as too low.[63]

2.      Asian Pacific Women, Law, Development

The APWLD understandably criticizes the DGC for discussing a minimum, rather than a living wage. While first noting that “without a fixed minimum wage, workers cannot be guaranteed a decent living” the submission by APWLD criticizes a minimum wage determined by flexible elements “leaves too much scope for wages to be decreased in the context of neo-liberal economic pressures.”[64] APWLD contends that without a clear bottom for wages, workers cannot enjoy economic rights as it “leaves them vulnerable to governments who, for example, consider low wages as a source of competitive advantage in international trade or investment flows.”[65] Like AGE, APWLD criticizes the practice of minimum wages like the US’ as usually “insufficient to support a family, especially with the privatization of social services.”[66] Taking into account how, by ignoring inflationary and other pressures which decrease purchase power parity, minimum wages enshrined in law at specific points, may actually lead to a decrease in the PPP of the wage and therefore should be considered regression from its starting point. Regarding the potential for sanctions on non-state actors for violating this right, APWLD wanted clarification on this process and how it must be enacted and determined to be effective.[67]

Regarding the obligation of states APWLD noted that “while the General Comment acknowledges that retrogression can never be justified in the name of attracting investment, there is a fine line between that and what governments may claim to be ‘necessary’ given the power and mobility of international capital.”[68] This highlights the cleavage between the incentives provided by modern global capitalism in which economic advantages that may come from increased capital flows and investments come largely at the expense of labor protections, but put particular and concerted downward pressure on wages.

3.      Australia

Australia was one of only three states to prepare a written submission for the Committee.[69] In its submission Australia follows the Committee’s lead and focuses primarily on the principle of non-discrimination as it specifically applies to gender divisions in the labor force.[70] Furthermore it suggests that paragraph 12 of the DGC be clarified, by removing references to ‘equality’ and referring specifically to the concept of “equal remuneration for work of equal value” between all workers yet again doing so by highlighting the division between men and women.[71] Interestingly, Australia understands that States Parties may not discriminate against workers on the basis of race, color, sex, language, religion political or other opinion, national or social origin, property, birth or other status, they may however, in certain circumstances, make distinctions on the basis of such grounds without such distinctions so long as they are “aimed at a legitimate purpose, are based on reasonable and objective criteria and are proportionate.”[72] No further discussion is made of what such legitimate purposes or proportionality may be invoked to make such distinctions.

Regarding enforcement of the right for non-state actors, Australia asserts that, “while States Parties’ obligations extend to taking steps to prevent, investigate, punish and redress abuse by third parties through effective regulation, the Covenant does not place obligations on non-state actors” and simply puts obligations only on States Parties to the Covenant.[73] Echoing the submission of the APWDL, Australia suggests that, “the right to work, while including the right to the opportunity to gain a living by work which is freely chosen and accepted, is broader in scope and also includes other aspects, such as the right to vocational education and training.”[74] Though Australia made some important observations, its overall submission appears to be intended to qualify rather than expand the protections enunciated in the DGC. Human Rights Watch took the opposite approach.

4.       Human Rights Watch

Human Rights Watch’s (“HRW”) written submission to the committee attempts to clarify several vague or ambiguous provisions in both the treaty and the DGC.[75] Included in this is the need for additional factors that should be elaborated as critical components of “fair” wages.[76] Noting that “one of the most common complaints of workers across sectors in our labor rights investigations has been the delayed and partial payment of wages.”[77] Therefore, as part of fair remuneration it must be understand and specifically stated that wages should be paid in a regular, timely fashion and in full.[78]

Likewise, HRW suggest that the Committee elaborate on methods to prevent wage theft, including instituting electronic wage payment systems, penalizing employers with proven violations, and raising awareness among workers about their rights, channels for redress, and what safeguards governments can provide against exploitative practices.[79] Indeed, an important component to the “fairness” of wages is there should be no arbitrary deductions and a clearly defined legal basis for any salary cuts due to “mistakes” or disciplinary issues. Citing The ILO’s Committee of Experts interpretation of the ILO Protection of Wages Convention, HRW enunciated three main principles of which states should be mindful on the issue of fairness in wages: “1) deductions of any type need an appropriate legal basis; 2) authorized deductions be limited so received wages are sufficient to ensure a decent living income for workers and their families, and; 3) information on the grounds for wage deductions must be communicated to workers in advance.”[80] Additionally HRW notes that “provision of written contracts with the terms and conditions of employment clearly articulated—in a language the worker can understand— is a good practice for promoting just and favorable conditions of work.” [81]

5.    International Organization of Employers

The International Organization of Employers (“IOE”) represents the best example of the concerns and viewpoints of pro-business groups regarding the obligations and protections of Article 7.[82] In short, the IOE, in contrast to AGE and HRW, is concerned about the reach of the DGC’s guidance. The IOE claims that the DGC, as well as the covenant itself, contains vague or ambiguous language on, inter alia, fair wages and reasonable hours.[83] Fairness, for example, must be considered within the context; a fair wage also has to be based on productivity, the cost of living, the average wage in the sector, the capacity of the employers to pay, the desirability of attaining and maintaining a high level of employment.[84] IEO further contests that the draft confuses “remuneration” and “income” and “shift[s] the responsibility of public institutions on employers.”[85] It further takes issue with the equation between three concepts: fair wage, living wage, and minimum wage. The IEO attacks the notion of fair wage used in the DGC has not been defined by the ILO it lacks “legitimacy and certainty” and therefore should be rejected.[86]

The IEO contests the kind of minimum living wage referred to by the ITUC in its comment is not in line with ILO.[87] The IEO posits that “there is no consensus among ILO Constituents nor a discussion on what exactly constitutes a living wage.”[88] At the end of their critique, the IEO contends that “minimum wage [systems] has been referred as the solution to social problems of inequality (both in the case of income inequality and gender inequality).”[89] The IEO dismisses the focus on minimum wages to address inequality as misguided because minimum wages are designed to assure that specific workers are simply not below a socially acceptable level, but is not a system “to efficiently resolve an entire societal challenge of income inequalities, which have other more complex components.”[90] Those components are left to the reader to deduce.

6.      The International Trade Union Confederation

The International Trade Union Confederation (ITUC) represents the interests of labor unions which are usually considered to represent the interest of the workers who make up said union.[91] However, what becomes clear in the course of the ITUC submission is that rather than the workers themselves, the ITUC is primarily representing the interests of the unions themselves, and the workers take a second seat.[92] The ITUC statements on the minimum wage issue echoes the IEO but from the opposite side. Noting ILO Convention 131 and Recommendation 135 require a system of minimum wages that does not only meet procedural requirements, but also provides a minimum wage at a sufficient level to be considered a living wage, the ICTU states unequivocally that even a living wage “is not sufficient to fulfil Article 7 of the ICESR.”[93] Mirroring the AWLPD, the ITUC also takes issue with the use of “realistic” to refer to the minimum wage rates in paragraph 23 of the DGC as the term could be used to justify downward pressure on what is necessary to constitute a living wage. [94]

Interestingly the ICTU also makes a point that while the articles discuss “informal sectors” of the economy, may be better termed an “informal economy,” and asks the committee to take note that the ILO is in the process of elaborating a recommendation on the informal economy which should be adopted at the 2015 International Labour Conference.[95] It would be important for this Draft to reflect the approach of that Recommendation on each of the issues relevant to Article 7 of the ICESCR and to refer to it directly.[96]

7.    International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF)

The IUF written submission focused first on the importance of the Article 8 freedom of association and that it needs “greater emphasis, as collective bargaining has been the primary vehicle by which, historically, workers have been able to achieve progress towards just and favourable conditions of work.”[97] The IUF is particularly concerned about many governments’ use of austerity programs to undermine attacks on collective bargaining and thereby limiting the enjoyment of favorable conditions of work.[98] It expressed regret that collective bargaining, however, tends to drop out of specific recommendations as the Comment advances. Likewise IUF wishes to see more emphasis given to the “erosion of permanent, direct employment in undermining just and favourable conditions of work.”[99] It applauds the discussion in Paragraph 4 of the DGC on the “increasing complexity of work contracts”[100] as one of the factors resulting in insufficient protection of just and favorable conditions of work, but makes firm that there is nothing particularly complex about what the ILO terms ‘non-standard forms of employment’ including temporary contracts, agency work, and the disguising of an employment relationship as self-employment.[101] The IUF contends that various references to equality and freedom from distinctions of any kind in 7(a) (i) and 7(c) need to fully take into account the global erosion of direct, permanent employment and integrate it into the recommendations.[102] On that issue, the IUF suggested adding to the list of discriminatory characteristics (race, ethnicity, nationality, migrant, or health status) that may be used to disallow labor security specifically the nature of the employment relationship (or contractual status).[103]

C.    The View of the Committee and most Commentators Suggests this Right is Primarily a Version of Non-Discrimination in Article 2(2) Applied to the Field of Employment.

The DGC does a great deal to further elaborate the right to work and define fair remuneration. While it understandably attempts to navigate a politically sensitive issue, the end result is that the teeth in the DGC comes in the form of recommendations to combat discrimination, particularly against women. Needless to say this is understandable given the state of women and discrimination in the workplace around the world. However, as the DGC repeatedly refers, the principle of non-discrimination pervades the ICESCR and has been roundly accepted by previous General Comments. Therefore, the rather continuous repetition of the principle of non-discrimination contained in the DGC serves to siphon attention from the real crux of the principles that make up the right to enjoy favorable conditions including (and most importantly) fair remuneration. Indeed, under the Article 7(a) explanatory section of the DGC there are nineteen paragraphs, seven of which specifically mention or operatively mention non-discrimination principles. Granted, the principle of non-discrimination is crucial when discussing fair wages between the sexes, but having been discussed and established by General Comment 20, the notion demands but a reference to those obligations to avoid distracting from the larger, more universal goals to which the right is said to aspire.

After the DGC attempts, but ultimately fails, to provide a usable definition of a fair wage, it again diverts the attention of the reader to by suggesting that “[a]ny assessment of fairness should also take into account the position of women workers, particularly where their work and pay has traditionally been undervalued.”[104] While there is no doubt that traditional female occupations are usually undervalued, using a comparison of men to women only helps drive down the wage that may be considered fair. Instead if the DGC had made the assertion that any discrimination used to create an arbitrary distinction between workers’ pay violates the right to fair remuneration it wouldn’t need to use the comparative notion of fairness. This would serve to rise all boats rather than lower the sea to meet in the middle.

In the specific obligations section, the first obligation listed deals primarily (perhaps only) with state enterprises creating discriminatory pay scales for women workers, or that maintain a promotion system in the public sector “that favors, directly or indirectly, the over-represented gender at higher levels.”[105] Again rather than create a unified pay scale, despite the trait in question as determined by General Comment Number 3, the attention is diverted from workers in general to the division between men and women. While not suggesting that there does not exists pay scales between these groups, it is not the only one of its kind. Therefore eliminating all forms of discrimination, rather and focusing on one form, serves the whole working class community, rather than highlighting only one method of doing so which is already outlined in previous General Comments and serves only to distract from the force by which an objective measure could provide to all workers regardless of their immutable qualities.

D.    The Commentaries and Written Submissions Do Not Sufficiently Incorporate Worker Organizations and Workers Perspectives Partially Because None Exist.

Only two of the over twenty written submissions to the Committee were from international labor unions or organizations who ostensibly represent the workers of the world whom this right directly effects. Though the contribution of both groups is important and provide the best suggestions available for workers, there is a serious lack of worker representation in both the Committee and the suggestions. There are understandable reasons for this absence, namely that since the end of the Cold War and the decrease of (at minimum) the propaganda of “Communist” states, the power, prestige, and influence of workers, or the working class generally, has decreased. Continued campaigns by employers and states to limit the growth of labor unions has led to an ultimate decline in worker pay, while productivity continues to rise, making inequality even deeper and further limiting workers ability to organize.

The written submission of both the UIF and ITUC represent the most worker proactive submissions as they do not attempt to bridge gaps as does Australia (owing to its need to balance worker/employer interests) or outright call into question several basic notions such as the IOE. Yet still, there remains no organization who represents the interest of all workers, whether unionized or not. Though not perfect, the Marxism promoted primarily by the Soviet Union and China provided an ideology that mandated other international actors to do all they can to promote, establish, and enforce worker’s rights. In many respects that notion, in the value of human labor and the laborer, underpins the entire ICESCR and gives it its normative background. The absence of a movement generated by that same ideology has meant that the burden has been left to international organizations that, though perhaps not motivated by Marxist philosophy, are still seeking to continue the work of labor rights establishment and enforcement in the post-Soviet era.

The absence of the loudest (though most hypocritical) member of the international community on worker’s rights (the USSR) and the comparative lack of power, influence, and gusto of the UIF and ICTU has the cumulative effect of limiting the push that workers could give to the Committee to determine (while maintaining understandable notions of non-discrimination) the largest possible scope for the right to favorable conditions of work by establishing objective measurements. An organization that came into force at the turn of the 20^th century gives some background on what such an organization that could provide to this efforts. That organization is the International Workers of the World, also known as the Wobblies.[106] The IWW was intended to be a massive, worldwide, non-trade-specific, labor union which individual workers could join and therefore be represented by the large union in negotiations with employers.[107] The idea of “One Big Union” was itself motivated by the Marxist ideology, but rather than focusing on state mechanisms for worker control of their work lives, it would instead represent workers in negotiations, strikes, and other collective actions. At its peak the IWW contained 150,000 Wobblies, but had the wind taken out of its sails but the Russian revolution in 1917, the subsequent red scare in the United States, and then conflict both within its ranks and with the American Federation of Labor regarding labor unionist tactics.[108]

It is the absence of an organization like the IWW that undercuts the full breadth of the protections that could be found in Article 7(a). The committee’s draft articles and much of the written response is simply conservative in approach, diverting in nature, and is, unfortunately, not as robust as it could be. Since the economic rights in the ESCR are arguably the most important of the entire covenant (without which most other rights would impossible to attain) it is left to the committee to make up this disparity in power and influence between workers and employers.

E.     The Critique of Vague or Ambiguous Language Regarding “Fair” and “Minimum” Wages As a Key Component of Remuneration.

The need for the Wobblies is no more apparent than in the language used when discussing “fair” and “minimum” wages in the DGC and submissions. For instance, under the fair wages section of the DGC, a fair wage is determined by a “non-exhaustive objective criteria” which includes the straightforward, “output of the work” but then adds such esoteric notions as the “responsibilities of the worker, the level of skill and education required to perform the work, the impact of the work on health and safety of the worker, specific hardships related to the work and impact on the worker’s personal and family life.”[109] The DGC then goes on to make clear how important providing pay is during periods of difficulty (including bankruptcy), but remains silent on any kind of further elaboration of what constitutes a fair wage until the last sentence of the single paragraph regarding the normative content of fair wage as defined in the covenant.[110]  The claim that the minimum wage might represent a fair wage for some workers; but for a majority of workers, fair wages are above the minimum wage is a rather conclusory statement, yet no more is provided by means of justifying what exactly would be a fair wage, and why should there be a difference in the minimum wage and a fair wage. Failing to do so takes all the bite out of the recommendations contained in the DGC.

F.     The Inherent Conflict between Capitalism and Fair Wages.

The final blow to the effectiveness of the DGC and committee’s position on the nature and obligations that flow from Article 7(a) comes in the “Obligations” section. After reiterating the core obligations of every state regarding each right contained in the Covenant[111] the DGC mentions the role of non-state actors (meaning private employers (the majority) and worker organizations) and the role of the state in creating favorable conditions for such organizations.[112] However, as evidenced by a relatively constant struggle between employers and trade unions, creating a situation favorable to one of these groups usually comes at the expense of the other. No guidance is given regarding how to effectively support both without tipping the scales to one or the other.

Indeed, rather than make a clear cut stance against regressive economic measures, the DGC actually anticipates such measures and give a green light to them so long as the state gives “careful consideration and justification.”[113] This is a particularly weak standard given that all that is needed is a plausible assurance that the measures are “temporary, necessary, non-discriminatory and that they respect at least the core obligations.”[114] However, as the example of Greece provides, regressive measures instituted during periods of economic crises tend to exacerbate the crisis, thereby inevitably infringing on the assurance that, at minimum, the regressive measures were temporary and instead may be all but permanent. That inevitably calls into question when, if ever, a regressive measure in times of economic crisis could be deemed “necessary.”  Greece also gives the example of the potential dangers of the obligation to “seek international cooperation and assistance.” This assistance largely comes in the form of central bank or international banking organizations. These organizations have had a history of creating favorable conditions for some at the expense of others.[115] The DGC fails to provide guidance on when fulfilling the obligation to seek assistance may conflict with the obligation to justify regressive measures while still not running afoul of the general obligation to create favorable conditions.

In the specific obligations the DGC comment does effectively state the different ways that states can enforce and implement this right. It provides that the states are obligated to ensure private enterprises comply with the right through a number of enforcement measures, including a national minimum wage. The obligations of non-state actors including “[b]usiness enterprises, irrespective of size, sector, ownership and structure”[116] are to comply with the laws and avoid infringing on the right. The DGC is again acknowledging the inherent disparity between favorable conditions of work and the tendency of business enterprises to violate these obligations. Though it demands the state enforces the obligation, it implies that the most likely perpetrator of violations of this right are private business enterprises. This is an unfortunate economic fact in a capitalist mode of production.

IV. RECOMMENDATIONS

The conflict between capitalism and fair wages demands a resolution of the weight of the labor rights contained in the ICESCR. Unfortunately, given the inevitable and unending conflict between capitalism and workers’ rights, a decision favoring one side must simply be taken. These options are 1) to capitulate on the normative content behind the rights or 2) to advocate that state curtail or minimize the free working of laissez-faire capitalism if not moving towards its abolition. Though difficult, these options are the only way for the Committee to make recommendations that can be effective at fulfilling them, or limit them to allow for the functioning of capitalist production and distribution. It appears from the DGC that the Committee has chosen option number one.

If the Committee took the second option, it would be moving in the direction of creating the conditions for states to be sufficiently able to fully realize the right. Failing to do so will consistently leave the entire working class behind. Granted the ICESCR only provides obligations to states and is very limited, if not inapplicable to, even the largest multi-national private enterprise who may yield power akin to government, states remain the sole entities that can adjust their internal legal structures to reign in the excess of these non-state actors. If states, normally under great influence be these enterprises, are unwilling to take concerted action, the labor rights in the ICESCR will simply never be able to compete with the power of the most successful capitalist enterprises.

The concerns of those organizations so clearly represented by the IOE are simply invalid and must be rejected as overly technical and not rooted in either fact or law. Employers have the tendency to find such loopholes when faced with failure to support their workers and have the resources to allocate to legal and political professionals who can seek out, or indeed create, such loopholes and making cracks in the pavement where no such crack would appear without such activity. State action to curb these activities if not remove them from list of possibilities for non-state actors, while understandably difficult, is the only way to ensure that labor rights are actually protected and strengthened.

V.CONCLUSION

In its Draft General Comment on Article 7(a) the ESCR Committee represents just how difficult the enforcement of labor rights is under current conditions of international law, politics and economics. In both the comment, and submissions themselves, the void of an organization or ideology that has working people or the working class as the center as opposed to accepting a more or less laissez-faire capitalism is rather apparent. The timidity at which the DGC approaches fair remuneration represents is apprehension to make any claims or recommendations that may upset the current status quo, even if, as the DGC does, there is an obvious conflict between the capitalist mode of production and worker’s rights. Therefore, the Committee has accepted that the brunt of rights regarding work, particularly fair wages and pay, simply must take a back seat to a necessary challenge to the system writ large. Doing so takes away from the Committee’s great work on the ESCRs in the past, because it shows it impotence when it is forced to confront an inherent contradiction of the current historical epoch and capitulates on the right thereby favoring capitalist power over worker’s rights.

[1] U.S. Const. amend. 1-10; France: Declaration of the Right of Man and the Citizen, August 26, 1789.

[2] Id.

[3] See generally Jean-Jacques Rousseau, The Social Contract 59 (1762) (“First, when the prince ceases to administer the State in accordance with the laws, and usurps the Sovereign power. A remarkable change then occurs: not the government, but the State, undergoes contraction; I mean that the great State is dissolved, and another is formed within it, composed solely of the members of the government, which becomes for the rest of the people merely master and tyrant. So that the moment the government usurps the Sovereignty, the social compact is broken, and all private citizens recover by right their natural liberty, and are forced, but not bound, to obey”).

[4] UN Chronicle, International Human Rights Law: A Short History, 2009, available at: http://unchronicle.un.org/article/international-human-rights-law-short-history/

[5] Id. (“The traditional categorization of three generations of human rights, used in both national and international human rights discourse, traces the chronological evolution of human rights as an echo to the cry of the French revolution: Liberté (freedoms, “civil and political” or “first generation” rights), Egalité (equality, “socio-economic” or “second generation” rights), and Fraternité (solidarity, “collective” or “third generation” rights). In the eighteenth and nineteenth centuries, the struggle for rights focused on the liberation from authoritarian oppression and the corresponding rights of free speech, association and religion and the right to vote. With the changed view of the State role in an industrializing world, and against the background of growing inequalities, the importance of socio-economic rights became more clearly articulated.”)

[6] UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3 (hereinafter ICESCR).

[7] Id.

[8] See ICESCR Signatories available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en

[9] See Constitution of the Republic of South Africa,  10 December 1996, available at: http://www.refworld.org/docid/3ae6b5de4.html [accessed 29 April 2016]

[10] See UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant), 14 December 1990, E/1991/23.

[11] Id.

[12] Art. 6-7, ICESCR.

[13] See Stéphane Sirot, Michel Cordillot, René Lemarquis & Claude Pennetier, Chronology of the French Workers’ Movement, available at: https://www.marxists.org/history/france/1839-1850.htm.

[14] Id.

[15] See Howard Zinn, A People’s History of the United States, Chapter 13, (1980).

[16] Horace L. Fairlamb, Adam Smith’s Other Hand: A Capitalist Theory of Exploitation, 22 Social Theory and Practice 2 193-223 (1996) (outlining the agreement of classical economists, including Adam Smith and David Riccardo as well as Karl Marx, all agreed on the basic principle of profit by means of labor exploitation in capitalist production).

[17] Katerina P. Lewinbuk, Russia’s Labor Pains: The Slow Creation of a Culture of Enforcement, 32 Fordham International Law Journal 3 (2008).

[18] See generally, Daniel J. Whelan, The United States and economic and social rights: past, present…and future?, Presented at the 2005 International Studies Association Convention (2005).

[19] Id.

[20] Committee On Economic, Social And Cultural Rights, General comment No. 20: Non-discrimination in economic, social and cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights), E/C.12/GC/20 (2009).

[21] Id.

[22] Id.

[23] ICESCR.

[24] See General Comment No. 3 at Note 10.

[25] Id.

[26] See generally, Katharine G. Young, The Minimum Core of Economic and Social Rights: A Concept in Search of Content, 33 The Yale Journal Of International Law 113 (2008).

[27] See General Comment No. 3 at Note 10.

[28] Id.

[29] Id.

[30] Id.

[31] ICESCR.

[32] UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 18: The Right to Work (Art. 6 of the Covenant), 6 February 2006, E/C.12/GC/18.

[33]

[34] See ILO, Rules of the Game: a brief introduction to International Labour Standards (Revised edition 2014), November 6, 2014.

[35] DGC at ¶ 8.

[36] DGC at ¶ 11

[37] DGC at ¶ 12-19.

[38] DGC at ¶ 12.

[39] DGC at ¶ 13.

[40] DGC at ¶15.

[41] DGC at ¶16.

[42] Id.

[43] Id.

[44] DGC at ¶20.

[45] DGC at ¶20.

[46] Id.

[47] DGC at ¶22-24.

[48] Id.

[49] Id. At ¶22.

[50] Id.

[51] Caroline Fairchild, Minimum Wage Would Be $21.72 If It Kept Pace With Increases In Productivity: Study, Huffington Post,  Feb. 13 2013, http://www.huffingtonpost.com/2013/02/13/minimum-wage-productivity_n_2680639.html

[52] DGC at ¶23.

[53] Id. at ¶ 24.

[54] About AGE, Age-Platform.eu, available at: http://www.age-platform.eu/about-age

[55] Written Submissions on the Draft General Comment on Article 7, AGE Platform Europe, http://www.ohchr.org/Documents/HRBodies/CESCR/Discussions/2015/AGEPlatformEurope.pdf (AGE submission).

[56] See Id. at 1.

[57] (AGE submission).

[58] Id. at 2.

[59] Id.

[60] UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 6: The Economic, Social and Cultural Rights of Older Persons, 8 December 1995, E/1996/22.

[61] UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 19: The right to social security (Art. 9 of the Covenant), 4 February 2008, E/C.12/GC/19.

[62] AGE Submission.

[63] John Light, Why is the Federal Poverty Line So Far Off?, Moyers and Company, September 18, 2013, http://billmoyers.com/2013/09/18/why-is-the-federal-poverty-line-so-low/

[64] Written Submissions, Asia Pacific Forums on Women, Law and Development, available at:http://www.ohchr.org/Documents/HRBodies/CESCR/Discussions/2015/APWLD.docx (APWLD Submission); see also UN Women Report of the Expert Group Meeting on Structural and Policy Constraints in Achieving the MDGs for Women and Girls, p 17 http://www.unwomen.org/~/media/headquarters/attachments/sections/csw/58/csw58-2013-egm-report-en.pdf.

[65] APWLD Submission at Id.

[66] APWLD Submission.

[67] Id.

[68] Id.

[69] Written Submissions, Australia, available at:http://www.ohchr.org/Documents/HRBodies/CESCR/Discussions/2015/Australia.docx (Hereinafter “Australia Submission”).

[70] Id.

[71] Australia Submission.

[72] Id.

[73] Id.

[74] Id.

[75] Written Submissions, Human Rights Watch, available at:http://www.ohchr.org/Documents/HRBodies/CESCR/Discussions/2015/HRW.pdf (Hereinafter “HRW Submission”).

[76] Id.

[77] Id.

[78] Id.

[79] Id.

[80] HRW Submission.

[81] Id. (citing ILO Convention No. 189 concerning Decent Work for Domestic Workers, article 7 “This includes information on the amount and type of remuneration, including the frequency and mode of payment and the parameters for any legally permissible salary deductions. When workers cannot read, governments should take measures to ensure workers are informed of their terms and conditions of employment in an appropriate, verifiable and easily understandable manner.”

[82] Written Submissions, International Organization of Employers (IOE), available at:http://www.ohchr.org/Documents/HRBodies/CESCR/Discussions/2015/IOESpecificComments.pdf (hereinafter IOE submission).

[83] Id. (“The terms of the Covenant such as “just and fair”, “fair wage”, “reasonable hours”, remain ambiguous in this draft. These concepts contain important subjective components which tend to confuse rather than provide more clarity. Given that the draft seeks to be practical in recommending ways in which “just and fair” working conditions can be achieved, it is important to refer to existing minimum wages or existing working time regulations and to provide better clarity on these concepts with a realistic and pragmatic approach”).

[84] ILO, Convention concerning Minimum Wage Fixing, with Special Reference to Developing Countries, Geneva, 54th ILC session, 22 June 22, 1970.

[85] IEO Submission.

[86] Id. (“is based on a Committee of Experts General Survey on “Minimum Wage Systems” (2014), which in itself, quotes from another study by Vaughan-Whitehead (2010; Paragraph 58). None of these studies have been discussed in the only tripartite agency of the United Nations, the International Labour Organisation, which would have provided them with the necessary legitimacy and certainty”

[87] ILO, Convention 131.

[88] IEO Submission at ¶ 25.

[89] Id..

[90] Id.

[91] See ITUC, “About Us,” http://www.ituc-csi.org/about-us.

[92] Written Submissions, International Trade Union Confederation, available at:http://www.ohchr.org/Documents/HRBodies/CESCR/Discussions/2015/ITUC.doc (hereinafter “ITUC Submission”)

[93] Id.

[94] Id.(“Indeed, governments around the world often invoke “realism” to tamp down minimum wage demands, even when evidence demonstrates that current wage rates do not provide workers an income above the poverty line. Instead, reference should be made to an appropriate wage, being one which is set in reference to ILO conventions and recommendations”).

[95] See ILO, Recommendation No. 204 concerning the Transition from the Informal to the Formal Economy, June 12, 2015, http://www.ilo.org/ilc/ILCSessions/104/texts-adopted/WCMS_377774/lang–en/index.htm (containing a number of recommendations to escape the informal economy).

[96] ILO, Recommendation No. 204 concerning the Transition from the Informal to the Formal Economy, Text of the Recommendation adopted by the Conference at its 104th Session in Geneva, June 12, 2015 available at: http://www.ilo.org/wcmsp5/groups/public/—ed_norm/—relconf/documents/meetingdocument/wcms_377774.pdf (stating that the term “informal economy” refers to (a) refers to all economic activities by workers and economic units that are – in law or in practice – not covered or insufficiently covered by formal arrangements; and (b) does not cover illicit activities, in particular the provision of services or the production, sale, possession or use of goods forbidden by law, including the illicit production and trafficking of drugs, the illicit manufacturing of and trafficking in firearms, trafficking in persons, and money laundering, as defined in the relevant international treaties.

[97] Written Submissions, International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF), available at:http://www.ohchr.org/Documents/HRBodies/CESCR/Discussions/2015/IUF.pdf (hereinafter IUF submission).

[98] Id.

[99] Id.

[100] Id.

[101] (Stating that “for the past several decades at least, employers, with the encouragement or acquiescence of governments, have been substituting indirect, non-permanent contractual arrangements for direct permanent employment, and this has been an important contributing factor to the undermining of the rights set out in the Covenant. The ILO, in its World Employment and Social Outlook published in 2015, links this transformation in employment relations to the rising incidence of global poverty, insecurity, exclusion and inequality. The enormous rise in precarious work bears directly on the rights discussed in the Draft General Comment and deserves greater emphasis in the recommendations to States.)

[102] IUF Submission.

[103] “Since inequality of treatment is, as the ILO report again points out, increasingly the norm, we feel that de facto inequality of treatment based on contractual grounds must be brought into the observations and recommendations on remuneration, job evaluation (paragraph 14 currently emphasizes gender discrimination only), workplace safety (precarious workers have been documented to suffer from higher rates of death and injury and unequal access to training) and equal opportunity for promotion.”

[104] DGC at ¶11.

[105] Id. at ¶57.

[106] See Zinn at Note 15.

[107] Id.

[108] Staughton Lynd, Wobblies Past and Present, Jacobin, December 2014.

[109] GDC.

[110] (“The minimum wage might represent a fair wage for some workers; however, for the clear majority of workers, fair wages are above the minimum wage”).

[111] CESCR General Comment No.3 (“must comply with their core obligations and take deliberate, concrete and targeted steps towards the progressive realization of the right to just and favourable conditions of work;” and “must move as expeditiously and effectively as possible towards the full implementation of the right with a level of flexibility to choose the appropriate means”)

[112] GDC at __.

[113] GDC.

[114] Id.

[115] French and German banks over Greece.

[116] Guiding Principles on Business and Human Rights, principle 14.