Author(s)
Jeffrey Vogt
Ruwan Subasinghe
Posted
16 December 2024
OBLB categories
Commercial Law ESG
OBLB types
OBLB types
Research
OBLB keywords
OBLB keywords
Climate changeESGInternational labour standards
More From: J effrey Vogt Ruwan Subasinghe
In our article for the forthcoming special issue of the International Labour Organization’s (ILO) International Labour Review, ‘Turning Up the Heat: The Right to Strike and the Climate Crisis’ (available on SSRN), we aim to underscore the fundamental importance of the right to strike in the promotion and defense of workplace democracy, and indeed democracy writ large, as well as to show why the protection of a robust right is ever more important in the context of the climate crisis. Further, we argue that the climate crisis could serve as an opportunity to reimagine the right to strike in order to guarantee the strike’s collective, liberatory potential for all workers—many of whom have been excluded from legal protections by, inter alia, the way employers have re-arranged work in order to evade legal protections founded on a binary employer-employee relationships. These exclusions have of course impacted women, racial and ethnic groups, migrants and others disproportionately, despite the greater threat faced by climate change.
The need for a robust right to strike in the climate context is clear. With COP 29 ending in what the International Trade Union Confederation (ITUC) called ‘an insult to working people and the countries of the Global South’ and with the 1.5 C limit set by the Paris Agreement on the cusp of being breached this year, the impact on workers will only worsen. According to a report published by the ILO on Earth Day 2024, Ensuring Safety and Health at Work in a Changing Climate, ‘at least 2.41 billion workers are exposed to excessive heat’ each year. The ILO estimates that this is leading to ‘an estimated 22.85 million workplace injuries per year and an estimated 18,970 deaths.’ It is important to keep in mind that heat is only one of the workplace risks associated with global warming, with floods, droughts, damaging storms, and diseases, among others risks, also on the rise.
In order to address the impacts of climate change through mitigation and adaptation measures, trade unions have promoted the concept of a ‘just transition.’ Enshrined in the preamble of the 2016 Paris Agreement, a just transition means, as we explain, ‘the marshalling of both public and private resources on a massive scale to invest in decarbonizing our energy infrastructure, transportation, manufacturing, etc, and to do so while guaranteeing “decent work” for all.’ In 2015, the ILO adopted the Guidelines for a just transition towards environmentally sustainable economies and societies, which recognize that the respect, promotion and realization of the fundamental principles and rights at work, including the right to freedom of association and to collective bargaining, are essential. The UN Special Rapporteur on Freedom of Peaceful Assembly and Association echoed the ILO, recommending that states ‘ensure that all workers are guaranteed the right to associate, including the right to strike, and to bargain collectively at all levels, including over matters related to climate change and just transitions.’
As our article notes, however, the regulation of the right to strike at the national level as it pertains to questions of climate change is uneven and limiting (at best)—even though it would appear from the previous conclusions and recommendations from the ILO’s supervisory system that such a robust right as we advocate for could be protected. In particular, we review national legislation as it relates to collective bargaining over a firm’s climate impacts inside and outside of the workplace and the ability of unions to strike to compel negotiations over these issues or to enforce bargained-for commitments once agreed. We also survey the ability of unions to engage regulators through strike action over public policy, including over the state’s regulation or enforcement of climate commitments affecting workers. And we also look at the extent to which occupational safety and health laws are sufficient to protect workers from climate related harms. Our findings, based on a limited survey, find a wide disparity of laws and practices on these questions, which means that, in our view, workers currently do not have the tools necessary to meaningfully engage employers or governments over climate policy, in particular as it relates to the rights and interests of workers and their communities.
We also look to see whether developments in international and regional human rights law could serve as a foundation for rooting the right to association, and thereby the right to strike, in the climate context. In 2022, the UN General Assembly resolved that all people have a right to a clean, healthy and sustainable environment and, in doing so, implicitly recognized the critical importance of workers being able to associate freely in order to help give full effect to the Resolution. The Inter-American Human Rights System, through a 2017 advisory opinion and a 2021 Resolution, already links labour rights and climate change. A new advisory opinion from the Inter-American Court on Human Rights, due in 2025, will hopefully elaborate further on this matter. Further, we argue that the decision of the European Court of Human Rights, in Verein KlimaSeniorinnen Schweiz and Others v Switzerland, could form the basis of a right to bargain and to strike in order to prevent further climate harms. Finally, it remains to be seen what the International Court of Justice will decide in the request for an advisory opinion before it now. The ITUC and the International Transport Workers’ Federation (ITF) filed an amicus with the ICJ underscoring the importance of Just Transition and decent work in shaping states’ obligations related to climate action.
As we conclude, there is no time to waste, and action needs to be taken now at all levels. A robust right to strike in the face of the climate crisis will in our view enable workers and their representatives to hasten the transformation needed while ensuring that the rights of interests of workers and their communities are protected.
The authors’ article is available here.
Jeffrey Vogt is the Rule of Law director of the Solidarity Center.
Ruwan Subasinghe is the Head of the Legal Services team at the International Transport Workers' Federation (ITF).
More From: J effrey Vogt Ruwan Subasinghe
In our article for the forthcoming special issue of the International Labour Organization’s (ILO) International Labour Review, ‘Turning Up the Heat: The Right to Strike and the Climate Crisis’ (available on SSRN), we aim to underscore the fundamental importance of the right to strike in the promotion and defense of workplace democracy, and indeed democracy writ large, as well as to show why the protection of a robust right is ever more important in the context of the climate crisis. Further, we argue that the climate crisis could serve as an opportunity to reimagine the right to strike in order to guarantee the strike’s collective, liberatory potential for all workers—many of whom have been excluded from legal protections by, inter alia, the way employers have re-arranged work in order to evade legal protections founded on a binary employer-employee relationships. These exclusions have of course impacted women, racial and ethnic groups, migrants and others disproportionately, despite the greater threat faced by climate change.
The need for a robust right to strike in the climate context is clear. With COP 29 ending in what the International Trade Union Confederation (ITUC) called ‘an insult to working people and the countries of the Global South’ and with the 1.5 C limit set by the Paris Agreement on the cusp of being breached this year, the impact on workers will only worsen. According to a report published by the ILO on Earth Day 2024, Ensuring Safety and Health at Work in a Changing Climate, ‘at least 2.41 billion workers are exposed to excessive heat’ each year. The ILO estimates that this is leading to ‘an estimated 22.85 million workplace injuries per year and an estimated 18,970 deaths.’ It is important to keep in mind that heat is only one of the workplace risks associated with global warming, with floods, droughts, damaging storms, and diseases, among others risks, also on the rise.
In order to address the impacts of climate change through mitigation and adaptation measures, trade unions have promoted the concept of a ‘just transition.’ Enshrined in the preamble of the 2016 Paris Agreement, a just transition means, as we explain, ‘the marshalling of both public and private resources on a massive scale to invest in decarbonizing our energy infrastructure, transportation, manufacturing, etc, and to do so while guaranteeing “decent work” for all.’ In 2015, the ILO adopted the Guidelines for a just transition towards environmentally sustainable economies and societies, which recognize that the respect, promotion and realization of the fundamental principles and rights at work, including the right to freedom of association and to collective bargaining, are essential. The UN Special Rapporteur on Freedom of Peaceful Assembly and Association echoed the ILO, recommending that states ‘ensure that all workers are guaranteed the right to associate, including the right to strike, and to bargain collectively at all levels, including over matters related to climate change and just transitions.’
As our article notes, however, the regulation of the right to strike at the national level as it pertains to questions of climate change is uneven and limiting (at best)—even though it would appear from the previous conclusions and recommendations from the ILO’s supervisory system that such a robust right as we advocate for could be protected. In particular, we review national legislation as it relates to collective bargaining over a firm’s climate impacts inside and outside of the workplace and the ability of unions to strike to compel negotiations over these issues or to enforce bargained-for commitments once agreed. We also survey the ability of unions to engage regulators through strike action over public policy, including over the state’s regulation or enforcement of climate commitments affecting workers. And we also look at the extent to which occupational safety and health laws are sufficient to protect workers from climate related harms. Our findings, based on a limited survey, find a wide disparity of laws and practices on these questions, which means that, in our view, workers currently do not have the tools necessary to meaningfully engage employers or governments over climate policy, in particular as it relates to the rights and interests of workers and their communities.
We also look to see whether developments in international and regional human rights law could serve as a foundation for rooting the right to association, and thereby the right to strike, in the climate context. In 2022, the UN General Assembly resolved that all people have a right to a clean, healthy and sustainable environment and, in doing so, implicitly recognized the critical importance of workers being able to associate freely in order to help give full effect to the Resolution. The Inter-American Human Rights System, through a 2017 advisory opinion and a 2021 Resolution, already links labour rights and climate change. A new advisory opinion from the Inter-American Court on Human Rights, due in 2025, will hopefully elaborate further on this matter. Further, we argue that the decision of the European Court of Human Rights, in Verein KlimaSeniorinnen Schweiz and Others v Switzerland, could form the basis of a right to bargain and to strike in order to prevent further climate harms. Finally, it remains to be seen what the International Court of Justice will decide in the request for an advisory opinion before it now. The ITUC and the International Transport Workers’ Federation (ITF) filed an amicus with the ICJ underscoring the importance of Just Transition and decent work in shaping states’ obligations related to climate action.
As we conclude, there is no time to waste, and action needs to be taken now at all levels. A robust right to strike in the face of the climate crisis will in our view enable workers and their representatives to hasten the transformation needed while ensuring that the rights of interests of workers and their communities are protected.
The authors’ article is available here.
Jeffrey Vogt is the Rule of Law director of the Solidarity Center.
Ruwan Subasinghe is the Head of the Legal Services team at the International Transport Workers' Federation (ITF).
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