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Licensed Unlicensed Requires Authentication Published by De Gruyter April 18, 2009

Beyond Soft Law? An Assessment of International Labour Organisation Freedom of Association Complaints as a Means to Protect Collective Bargaining Rights in the United States

Andrew J Ziaja
From the journal Global Jurist


This article examines the effectiveness of International Labour Organisation Complaints (ILO) as a means to protect workers' ability to bargain collectively in the United States. It focuses, as a case study, on an ILO Committee on Freedom of Association (“CFA") report that was issued in 2007. Two years prior, in 2005, The United Electrical, Radio and Machine Workers of America (“UE") filed an ILO complaint alleging that a North Carolina statute, NCGS § 95-98, which prohibits any public entity from entering into a collective bargaining agreement with a trade union, violated international law and the United States' treaty obligations under the ILO regime. The CFA agreed and recommended that the statute be repealed.Any attempt to enforce the CFA's report (UE Report) in a U.S. district court would be fraught with obstacles. This article addresses these obstacles in turn. Part I discusses the UE Report in relation to domestic precedent upholding NCGS § 95-98 under United States constitutional law. Part II examines the legal basis of the UE Report under international law, including whether the right to bargain collectively is a preemptory norm. Part III, finally, considers the domestic enforceability of ILO treaty law and the UE Report under the U.S. Supreme Court's recent ruling in Medellín v. Texas, an immediately important transnational law decision.

Published Online: 2009-04-18

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