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TAKING THE MEASURE OF CHANGING LABOUR MOBILIZATION AT THE INTERNATIONAL LABOUR ORGANISATION IN THE WAKE OF THE EU SOVEREIGN DEBT CRISIS

  • Claire Kilpatrick (a1)

Abstract

This analysis investigates changing mobilization at the ILO in response to the labour and social rights shock created by EU and IMF demands in the EU sovereign debt crisis (Crisis Europe or euro-crisis). Mobilization means the purposeful use of legal norms and institutions by social movements and civil society groups to advance identified policy goals. It can be contrasted with the use of legal norms and institutions by individuals or entities to settle disputes affecting them. After introducing relevant features of euro-crisis and the ILO, the article develops an analysis that measures changing mobilization at the ILO during euro-crisis. It then shows how such an analysis makes two key contributions: first, to our understanding of the ILO and, second, to how we approach mobilization. First, by viewing the ILO as a rights mobilization structure, it shows the vitality and interest of doubted or neglected ILO supervision and complaints mechanisms. Five elements are underlined: the ILO is more than existing literature assumes; it questions the depiction of the ILO as a ‘toothless tiger’; the sharp divide between unions and NGOs is overstated; certain institutional design features make the ILO a good venue for transnational mobilization; the ILO is not transparent in terms of access to documents relevant to mobilization and compares poorly in this respect with UN Human Rights Treaty Bodies. Second, by setting it against existing literature, it is shown how measuring mobilization is distinctive within the broader human rights mobilization scholarship. The most important insights it introduces are: rejecting the assumption that mobilization inevitably follows a significant rights shock such as euro-crisis; addressing the puzzles of union ‘mobilization’ and motivation; operationalizing measurement of mobilization against the backdrop of venue choices; considering how to deal with an international organization which is both a mobilization venue and an engaged actor.

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Copyright

Footnotes

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I have many debts of gratitude. I thank Ruwan Subasinghe, Global Legal Officer, ITF and other union representatives for their generous engagement with this project at an ETUI event on strategic litigation in January 2018 and Zane Rasnača for organizing the event. I thank the ILO for the opportunity to present an early version of this article in Autumn 2016 and, in particular, Konstantinos Papadakis for his insights into ILO technical assistance in Greece and Cyprus. I thank Hannah Adzakpa, Liam McHugh-Russell and Veronica Pavlou for outstanding research assistance. I thank Joanne Scott for incredibly valuable input at several stages. I thank EUI colleagues for commenting on a draft of this article at a Faculty seminar, Judy Fudge and anonymous peer reviewers for comments and encouragement on earlier versions.

Footnotes

References

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1 For the legal basis of these sovereign debt measures, see Beukers, T, De Witte, B and Kilpatrick, C, ‘Constitutional Change through Euro-Crisis Law: Taking Stock, New Perspectives and Looking Ahead’ in Beukers, T, De Witte, B and Kilpatrick, C (eds), Constitutional Change Through Euro-Crisis Law (Cambridge University Press 2017) 1.

2 See the recent report by Philip Alston as UN Special Rapporteur on Extreme Poverty and Human Rights, <https://www.ohchr.org/Documents/Issues/Poverty/EOM_GB_16Nov2018.pdf>.

3 Maupain, F, The Future of the International Labour Organisation in the Global Economy (Hart Publishing 2013) 40–2.

4 The eight fundamental Conventions are: 1. Freedom of Association and Protection of the Right to Organise Convention, 1948 (C87); 2. Right to Organise and Collective Bargaining Convention, 1949 (C98); 3. Forced Labour Convention, 1930 (C29); 4. Abolition of Forced Labour Convention, 1957 (C105); 5. Minimum Age Convention, 1973 (C138); 6. Worst Forms of Child Labour Convention, 1999 (C182); 7. Equal Remuneration Convention, 1951 (C100); 8. Discrimination (Employment and Occupation) Convention, 1958 (C111).

5 The four governance Conventions are: 1. Labour Inspection Convention, 1947 (C81); 2. Employment Policy Convention, 1964 (C122); 3. Labour Inspection (Agriculture) Convention, 1969 (C129); 4. Tripartite Consultation (International Labour Standards) Convention, 1976 (C144).

6 One might well ask what the total maximum number of ratified ILO conventions and protocols is in order better to gauge ‘success’ or ‘stars’. A precise answer to this question is not possible because of difficulties to abrogate obsolete Conventions. Indeed, for the first in its history, in 2017 the International Labour Conference abrogated or withdrew six obsolete Conventions, making use of a 2007 amendment to the ILO Constitution. However, analysis of the ILO's 2014 publication Rules of the Game: A Brief Introduction to International Labour Standards shows that the ILO identifies 72 Conventions and Protocols as ‘live’ today and this can be used as a useful global benchmark.

7 For broader comparison Bob Hepple noted that 60 per cent of States have ratified less than a quarter of ILO Conventions and more than 20 per cent of States less than a quarter of them, Labour Laws and Global Trade (Hart Publishing 2005) 35.

8 Although recent (ie post-1989 transition figures) analysis for Europe is not readily available and would be highly valuable, a study by Edward Weisband measuring compliance in different world regions by looking at numbers of observations per Convention between 1964 and 1995 shows at that time a better global performance by Europe (not the EU): ‘Discursive Multilateralism: Global Benchmarks, Shame and Learning in the ILO Labor Standards Monitoring System’ (2000) 44 International Studies Quarterly 643.

9 ILO Committee of Experts, Observations on Greece, C98 (2010): ‘the complexity and pervasiveness of the measures adopted in the framework of the support mechanism, which touch upon a number of ILO Conventions ratified by Greece’.

10 The basis in the ILO Constitution for supervision is art 23 which provides: ‘1. The Director-General shall lay before the next meeting of the Conference a summary of the information and reports communicated to him by Members in pursuance of articles 19 and 22. 2. Each Member shall communicate to the representative organizations recognized for the purpose of article 3 copies of the information and reports communicated to the Director-General in pursuance of articles 19 and 22.’ The early creation and subsequent elaboration of the supervision bodies over almost a century on this constitutional basis is shaped by the unfeasibility and undesirability of effective supervision being carried out solely in the plenary formation of the International Labour Conference.

11 When examining the application of international labour standards the Committee of Experts makes two kinds of comments: observations and direct requests. I focus on observations because, as the Committee states, ‘Observations are generally used in more serious or long standing cases of failure to fulfil obligations.’ (General Report, statement repeated annually). Direct requests relate to more technical questions or requests for further information. They are not published in the Committee's report but are communicated directly to the governments concerned. For that reason, I do not use them to chart mobilization. The Committee's annual report also includes a short General Report which sets out how it has done its work and matters of general interest on Member States fulfilment of their ILO obligations as well as, in a separate part, a General Survey on a series of linked ILO instruments such as, for example, working time or social security.

12 Governments are required under art 22 ILO Convention to report on ratified conventions and (differently) under art 19(5) on unratified conventions.

13 In 2009 the Governing Body agreed to increase the reporting cycle for fundamental and governance conventions from two to three years beginning in 2012.

14 See (n 10).

15 Noting that the practice of observations from workers and employers’ organizations is not clearly required by the ILO Constitution in art 23, alongside the broad understanding from 1986 of which workers organizations could make observations (ie not just the most representative referred in art 23(2) ILO Constitution), Maupain, F, ‘The ILO Regular Supervisory System: A Model in Crisis?’ (2013) 10 IOLR 117, 130. He suggests this had the effect of ‘substituting’ for the making of Representations. The latter complaint mechanism is discussed below.

16 Maupain ibid at 130 notes that in 1993 there were a few observations to the CEACR and thereafter ‘an explosion’ with 1116 in 2011. Further analysis exploring this rise more fully would be highly productive from a mobilization perspective.

17 It should be noted that the supervision system also singles States out for positive reasons noting cases of progress, satisfaction and interest. These are not the focus of my analysis.

18 Below Section IIC.

19 The criteria for applying footnotes are set out by the Committee of Experts in its General Report each year as follows, with the difference in the decision to issue a single or a double footnote being one of degree:

  • the seriousness of the problem; in this respect, the Committee emphasizes that an important consideration is the necessity to view the problem in the context of a particular Convention and to take into account matters involving fundamental rights, workers’ health, safety and well-being, as well as any adverse impact, including at the international level, on workers and other categories of protected persons;

  • the persistence of the problem;

  • the urgency of the situation; the evaluation of such urgency is necessarily case specific, according to standard human rights criteria, such as life threatening situations or problems where irreversible harm is foreseeable; and

  • the quality and scope of the government's response in its reports or the absence of response to the issues raised by the Committee, including cases of clear and repeated refusal on the part of a State to comply with its obligations.

20 The Committee of Experts takes the stance, as set out in its General Report each year, ‘that it exercises restraint in its recourse to “double footnotes” in deference to the Conference Committee's decisions as to the cases it wishes to discuss.’

21 An example of a euro-crisis observation containing a double footnote serves to illustrate. A lengthy observation was addressed to Greece in 2013 on C102 (social security). The observation includes statements such as ‘the Committee observes that existing thresholds and safeguards are largely insufficient to prevent poverty in old age: the report on the Convention indicates that the rates of relative poverty and the material deprivation for people over 65 have worsened more than for the population on average, and that this phenomenon requires monitoring. The Committee hopes the Government understands that the aim of monitoring poverty is to reduce it, which cannot be achieved by new pension cuts.’ The observation concludes with a highlighted sentence in red bold font: [The Government is asked to supply full particulars to the Conference at its 103rd Session and to reply in detail to the present comments in 2014.] This is a double footnote as the Greek government has both to report earlier to the Committee of Experts (single footnote) as well as to supply full particulars to the next International Labour Conference.

22 It has over 230 members as well as deputy members. While the committee is permanent, its members and those holding its key roles are chosen each year.

23 The reduction of the list of cases from 25 to 24 in 2015 is contested and regretted by the worker members on the CAS.

24 See further ILO, The Committee on the Application of Standards of the International Labour Conference: A Dynamic and Impact Built on Decades of Dialogue and Persuasion (2011) (192 pp).

25 Swepston, L, ‘Crisis in the ILO Supervisory System: Dispute over the Right to Strike’ (2013) 29 International Journal of Comparative Labour Law and Industrial Relations 199, 202–3.

26 A further special procedure is a complaint by delegates to the ILC which will be considered by the ILO Governing Body and which can lead to its setting up a Commission of Inquiry (art 26 ILO Constitution). As this is a more exceptional avenue, and was not used in Europe since the year 2000, I do not consider it further in this analysis. Examples of recent complaints include: Qatar (2014) on forced labour (C029) and labour inspection (C081), and a series of freedom of association and/or right to organize complaints in Zimbabwe (2010), Myanmar (2010), Guatemala (2012) and Fiji (2013) and a wide series of complaints against Venezuela (2015, 2016).

27 Such as two unions representing labour and occupational health and safety inspectors and the Greek Federation of Bank Employee Unions.

28 Special circumstances may change union use of the supervision system: might it for example explain the sudden stop in 2015 of worker observations from Greece following the election of Syriza as the party of government in January that year?

29 Some answers were proposed by Irish and Hungarian union officials at an ETUI workshop in January 2018 where this data was presented. The Irish union representative stated that it was considered that other industrial strategies would be more productive in resolving labour issues than submitting observations to the ILO. She rejected the hypothesis that the failure by Ireland to fulfil its ILO reporting obligations over a long period affected union calculations. The Hungarian union representative stated that there were no workers’ observations from Hungarian unions because the practice there was for tripartite input into the government report in place of the use by employers and unions organizations of their right to submit separate observations to the ILO. At the same time, Hungarian unions had the ‘safety valve’ of turning to the ITUC to ask it to make observations and indeed the ITUC did make observations on Hungary in the crisis period.

30 See further below Section 3E.

31 Ruwan Subasinghe, Global Legal Officer, ITF, Brussels (11 January 2018) and follow-up by e-mail. I am extremely grateful to him for his insights and interest in the project.

32 On the Committee's practices in relation to footnotes see above (nn 19–21).

33 All but one of the footnotes are single. The double footnote is addressed to Greece in 2013 in relation to C102 (social security); see (n 21).

34 In the 242 observations addressed to the EU sovereign debt grouping by the CEACR in 2010–2015, there are 194 specific mentions of ‘crisis’ and 226 wider ‘crisis’ or sovereign debt references eg to Memoranda of Understanding.

35 Both in these specific States and also when compared with broader use of this avenue over the last few decades. Maupain (n 15) at 135 notes that there are typically only one to five representations each year and attributes this marginalization to the new institutional openness to, and subsequent preference for, making workers observations to the CEACR.

36 Romania: Report of the Committee set up to examine the representation alleging non-observance by Romania of the Protection of Wages Convention, 1949 (No. 95), made under article 24 of the ILO Constitution by the Federation of Free Trade Unions of the Chemical and Petrochemical Industries (FSLCP) (GB.327/INS/6/1) (GB.330/INS/7/1); Representation alleging non-observance by Romania of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), made under article 24 of the ILO Constitution by the Federation of Trade Unions of Romanian Pathologists (FSMAPR) (GB.331/INS/19/2). The latter was not found receivable by the GB.

37 Spain: Representation of 2014 by UGT and CC.OO alleging non-observance by Spain of the Minimum Wage-Fixing Convention (C131) (Committee Report: GB.322/INS/14/8; GB.329/INS/20/4; Representation of 2014 by the Independent Judicial Forum Professional Association alleging non-observance of the Weekly Rest (Commerce and Offices) Convention (C106) (Committee Report: GB.322/INS/14/7; GB.328/INS/17/9); Representation of 2012 by CC.OO and UGT alleging non-observance of the Termination of Employment Convention (C158) (Committee Report: GB.316/INS/16/5; GB.317/INS/13/6; GB.321/INS/9/4); Representation of 2011 by the National Federation of Associations of Employment and Social Security Sub-Inspectors alleging non-observance of the Labour Inspection Convention (C147) (Committee Report: GB.312/INS/16/5; GB.321/INS/9/2).

38 Portugal: Representation of 2014 by the National Federation of Unions of Workers in the Public and Social Services alleging non-observance of the Forced Labour Convention (C029) and the Discrimination in Employment and Occupation Convention (C111) (Committee Report: GB.322/INS/14/4); Representation of 2013 by the Union of Labour Inspectors alleging non-observance of the Labour Inspection Convention (C081), the Labour Inspection (Agriculture) Convention (C129) and the OSH Convention (C155) (Committee Report: GB.319/INS/15/6; GB.324/INS/7/5); Representation of 2013 by various unions of stevedores, cargo-handlers and dockworkers alleging non-observance of the Dock Work Convention (C137) (Committee Report: GB.319/INS/15/4; GB.324/INS/7/8); Representation of 2011 by the Occupational Association of Professional Police Officers alleging non-observance of the OSH Convention (C155) (Committee Report: GB.311/10/3; GB.319/INS/14/8).

39 Cyprus and Latvia produced no complaints. While Cyprus did engage with CFA in the past, no complaints have been brought since 2000. Latvia has brought only one complaint in 1996.

40 As the allegations are currently confidential, I cannot characterize this case as crisis-related or not.

41 Five cases from Greece before the CFA in the preceding decade.

42 Only one CFA case came from Hungary in each of the two preceding decades.

43 Only two previous Irish CFA cases in 1965 and 1986.

44 Last Italian CFA case in 1979.

45 Three Portuguese CFA cases in the previous decade.

46 Five Romanian CFA cases in the preceding decade.

47 One Spanish case in 2002 and two in 2001.

48 See the exceptional focus on mobilization in ILO standard-setting in the context of the Domestic Work Convention and Recommendation: Blackett, A, ‘The Decent Work for Domestic Workers Convention and recommendation 2011’ (2012) 106 AJIL 778, 791–4; Boris, E and Fish, JN, ‘‘‘Slaves No More”: Making Global Labour Standards for Domestic Workers’ (2014) 40 Feminist Studies 411 and Leila Kawar's ethnographic work on making the ILO Domestic Workers Convention and Recommendation, Making the Machine Work: Technocratic Engineering of Rights for Domestic Workers at the International Labour Organisation’ (2014) 21 Indiana Journal of Global Studies 483.

49 See Section IV.

50 See for example the symposium of reviews of Maupain (n 3): Blackett, A, ‘Beyond the “Rules of the Game’” (2015) 154 IntlLabRev 73; Rittich, K, ‘The ILO: Challenges in Times of Crisis’ (2015) 154 IntlLabRev 85; Charnovitz, S, ‘Reinventing the ILO’ (2015) 154 IntlLabRev 91; Langille, B, ‘Persuading the Prisoners’ (2015) 154 IntlLabRev (2015) 97 and Maupain's response: ‘Revisiting the Future’ (2015) 154 IntlLabRev 103; also Marx, A, Wouters, J, Rayp, G and Beke, L (eds), Global Governance of Labour Rights: Assessing the Effectiveness of Transnational Public and Private Policy Initiatives (Edward Elgar 2015).

51 Campling, L et al. , ‘Can Labour Provisions Work Beyond the Border? Evaluating the Effects of EU Free Trade Agreements’ (2016) 155 IntlLabRev 357; E Gravel, ‘Is the Appropriation of International Labour Standards by New Actors Replacing or Complementing the ILO's Standards-Related Work?’ in Governance, International Law and Corporate Social Responsibility (2008) ILO Research Series No 116.

52 A further recurrent element of analysis of the ILO supervisory system, especially the CEACR, is that it is a victim of its own success, collapsing under the weight of reports to examine, observations to prepare and other tasks such as monitoring the follow-up of Representations with the Committee meeting for only three weeks annually to carry out its work: Maupain (n 15); E Gravel, ‘Les mécanismes de contrôle de l'OIT: bilan de leur efficacité et perspectives d'avenir’ and Simpson, WR, ‘Standard Setting and Supervision: A System in Difficulty’ both in Javillier, J-C, Gernigon, B and Politakis, G (eds), Les Normes Internationales du Travail: Un Patrimoine pour L'avenir — Mélanges en L'honneur de Nicolas Valticos (ILO 2004) 3, 47.

53 See eg Swepston (n 25); La Hovary, C, ‘The ILO's Employers’ Group and the Right to Strike’ (2016) 22 Transfer 401; Ewing, K, ‘Myth and Reality of the Right to Strike as a ‘‘Fundamental Labour Right’” (2013) 29 International Journal of Comparative Labour Law and Industrial Relations 145.

54 See above Section IID.

55 Noting that the CEACR's role is similar to that of UN IHR Treaty bodies, La Hovary, C, ‘The ILO's Supervision bodies’ ‘‘Soft Law Jurisprudence’’’ in Blackett, A and Trebilcock, A (eds), Research Handbook of Transnational Labour Law (Edward Elgar 2015) 316; Swepston (n 25) looking at the CESCR's Concluding Observations and the CEDAW Committee; Maupain (n 15).

56 See Vogt, JS, ‘The Right to Strike and the International Labour Organisation (ILO)’ (2016) 27 King's Law Journal 110. Objecting strongly to the Canadian Supreme Court's reliance on the ILO CFA for its wrongful ‘elevation’ into a judicial source, with extensive reliance on Langille (n 60) Heenan, RL, ’Saskatchewan Federation of Labor and Strikes in the Public Sector: Confusing Social Rights with Fundamental Ones’ (2016) 19 CanLab&EmpLJ 399. For Canada/EU comparison see Fudge, J, ‘Constitutionalizing Labour Rights in Canada and Europe: Freedom of Association, Collective Bargaining, and Strikes’ (2015) 68 CLP 267.

57 The ‘Laval’ quartet: see, linking the right to strike in these cases to ILO developments, Novitz, T, ‘The Internationally Recognized Right to Strike: A Past, Present and Future Basis Upon which to Evaluate Remedies for Unlawful Collective Action?’ (2014) 30 International Journal of Comparative Labour Law and Industrial Relations 357; on public procurement conflicts between this case law and ILO standards see Bruun, N, Jacobs, A and Schmidt, M, ‘ILO Convention No 94 in the Aftermath of the Rüffert case’ (2010) 16 Transfer 473.

58 See in particular Alston, P, ‘Core Labour Standards’ and the Transformation of the International Labour Rights Regime’ (2004) 15 EJIL 457.

59 See for a pithy analysis reflecting on the view that the ILO has ‘been around forever, but … also has done nothing forever, so … is not terribly interesting’ and a counterargument for the ongoing relevance of the ILO in IO studies: Helfer, L, ‘Understanding Change in International Organisations: Globalization and Innovation in the ILO’ (2009) 59 VandLRev 649, 655.

60 Langille, B, ‘“Hard Law Makes Bad Cases”: The ILO (Nervously) Confronts New Governance Institutions’ (2016) 32 International Journal of Comparative Labour Law and Industrial Relations 402, 416. Brian Langille's scholarship over the last 15 or so years, as summarized and referenced in this publication, is heavily oriented around the ILO hard–soft axis. His particular angle is that ILO norms should be soft. This implies, in his view, that ‘hardening’ of ILO norms via constitutional or human rights court use is unacceptable and even ILO monitoring is undesirably hard compared to preferred softer alternatives of education and advice.

61 See, for instance, S Engle-Merry commenting on CEDAW, ‘This is a form of global legality that depends deeply on its texts, not for enforcement but for the production of cultural meanings associated with modernity and the international. It is ultimately dependent on generating political pressure on States from the CEDAW Committee, from sympathetic leaders within a country, and from international and national nongovernmental organizations’: Human Rights and Gender Violence: Translating International Law into Local Justice (University of Chicago Press 2006) 86. See further Section IV.

62 For analysis see Baccaro, L and Mele, V, ‘Pathology of Path Dependence? The ILO and the Challenge of New Governance’ (2012) 65 ILR Review 195.

63 Decent Work: Report of the Director-General (ILO 1999) 39–40.

64 Psychogiopoulou, E, ‘Welfare Rights in Crisis in Greece: The Role of Fundamental Rights Challenges’ in Kilpatrick, C and de Witte, B (eds), Social Rights in Times of Crisis in the Eurozone: The Role of Fundamental Rights Challenges (EUI 2014) 5.

65 The ILO established a special list of NGOs in 1956 <http://www.ilo.org/pardev/partnerships/civil-society/ngos/ilo-special-list-of-ngos/lang--en/index.htm>. Inclusion on the list is subject to: ‘The aims of organizations requesting admission to the ILO Special List should be in harmony with the spirit, aims and principles of the ILO Constitution and the Declaration of Philadelphia. The length of existence, membership, geographical coverage of the organization, its practical achievements and the international nature of its activities constitute the main criteria for such admission. A further requirement is that the organization have an evident interest in at least one of the fields of activity of the ILO.’ It includes NGOs such as the European Disability Forum, FIDH and Women in Informal Employment: Globalising and Organising. Each year, NGOs on this list request access to the various committees of that year's conference and decisions are taken by the Conference Selection Committee.

66 It should, however, be noted that most of the ‘INGOs’ attending the CAS are international or regional union confederations eg in 2011 the European Confederation of Independent Trade Unions, European Trade Union Confederation, General Confederation of Trade Unions and International Transport Workers’ Federation.

67 For an example of this kind of study with regard to UN human rights supervision see Türkelli, GE and Vandenhole, W, ‘The Convention on the Rights of the Child: Repertoires of NGO Participation’ (2012) 12 HRLRev 33 in which NGO influence is assessed by examining the extent to which their recommendations were taken up by the Committee. Such a study could not currently be undertaken for the ILO supervision system.

68 See above Section IC. However, given that the human rights supervisory bodies’ practices in relation to civil society participation were also largely developed by the Committees themselves, this seems like a weak argument for non-publication: see for example the CESCR which began developing its policy on NGO participation in 1993. In the Committee's own words, ‘In an effort to secure the most effective and widest possible participation of NGOs in its activities, the Committee adopted, at its eighth session, in 1993 a procedure relating to NGO participation in activities of the Committee (See Official Records of the Economic and Social Council, 1994, Supplement No. 3 (E/1994/23-E/C.12/1993/19) Ch. VII, para 354.) which explains in a concise manner the modalities of NGO participation in the Committee's work. The basic principles set out in that document have since been supplemented, as the Committee's practice evolved.’

69 Simmons, B, Mobilizing for Human Rights: International Law in Domestic Politics (Cambridge University Press 2009).

70 de Búrca, G, ‘Human Rights Experimentalism’ (2017) 111 AJIL 217.

71 Engle Merry (n 61).

72 Keck, ME and Sikkink, K, Activists beyond Borders: Advocacy Networks in International Politics (Cornell University Press 1998) especially Ch 5. See also Sarah Snyder's historical account of the Helsinki network: Snyder, SB, Human Rights Activism and the End of the Cold War (Cambridge University Press 2011).

73 For some early initial mapping see Kilpatrick and de Witte (n 64).

74 It means that, unlike the in some ways assumed (in Simmons’ account (n 69) or ever-increasing through iterative learning and feedback (in de Búrca's (n 70) experimental governance account), mobilization for human rights can wax and wane around issues, across venues and over time. Why these variations in mobilization occur is worth exploring and understanding.

75 See Novitz, T, ‘The EU and the Right to Strike: Regulation through the Back Door and Its Impact on Social Dialogue’ (2016) 27 Kings Law Journal 46, 64 stating in relation to euro-crisis, ‘the ILO supervisory organs do not want to seem too critical of ‘‘emergency measures’’’. It should be noted this is in the nature of a brief remark in the context of an analysis with a different goal. A more systematic analysis of ILO euro-crisis outputs has not been undertaken.

76 Simmons (n 69).

77 Keck and Sikkink (n 72).

78 Engle-Merry (n 61), de Búrca (n 70).

79 See, for example, in Crisis Europe, the doubts raised by the ECtHR of the ‘victim’ status of the union challenging measures in the first Greek sovereign debt programme, Koufaki and ADEDY v Greece, App Nos 57665/12 and 57657/12, judgment of 7 May 2013, at para 30.

80 See eg ECtHR Prison Officers Association v UK, App No 59253/11, Decision of 21 May 2013 where the Court found a complaint inadmissible by applying art 35 ECHR which provides that the Court shall not deal with a matter that ‘has already been submitted to another procedure of international investigation or settlement’. Cases will be allowed to proceed where an individual complaint to the ECtHR is sufficiently differentiated from a collective complaint to a judicial or quasi-judicial international body such as a CFA complaint or a Collective Complaint to the European Committee of Social Rights.

81 Report on the High Level Mission to Greece, Athens, 19–23 September 2011 (71pp, ILO 2012).

82 The High-Level Mission to Greece illustrates this perfectly. The Greek Confederation of Trade Unions (the GSEE) made observations about an exceptionally wide-ranging number of Conventions. As a result the CEACR in December 2010, in light of the complexity and pervasiveness of the measures adopted in the framework of the support mechanism, invited the Government of Greece to avail itself of the technical assistance of the ILO and to accept a high-level mission to facilitate a comprehensive understanding of the issues before its examination of the impact of the measures in question on the application of the ratified Conventions. In June 2011 the CAS discussed the application of Convention No. 98 by Greece. It welcomed the Government's indication that it was working on arrangements with the ILO for the visit of the High-Level Mission proposed by the Committee of Experts. It considered that contact with the IMF and the EU would also assist the Mission in its understanding of the situation. The mandate of the Mission, as defined by the Committee of Experts and the request made by the CAS, was twofold. On the one hand, the High-Level Mission aimed to collect information on the application of the Conventions that the GSEE brought to the attention of the supervisory bodies in the areas of freedom of association and collective bargaining, protection of wages, employment policy, social security, non-discrimination and labour inspection. On the other hand, it aimed at facilitating a comprehensive understanding of the exceptional situation facing the country and of the impact of the policies of international organizations in this context, with a view to making constructive proposals on a possible way forward.

I have many debts of gratitude. I thank Ruwan Subasinghe, Global Legal Officer, ITF and other union representatives for their generous engagement with this project at an ETUI event on strategic litigation in January 2018 and Zane Rasnača for organizing the event. I thank the ILO for the opportunity to present an early version of this article in Autumn 2016 and, in particular, Konstantinos Papadakis for his insights into ILO technical assistance in Greece and Cyprus. I thank Hannah Adzakpa, Liam McHugh-Russell and Veronica Pavlou for outstanding research assistance. I thank Joanne Scott for incredibly valuable input at several stages. I thank EUI colleagues for commenting on a draft of this article at a Faculty seminar, Judy Fudge and anonymous peer reviewers for comments and encouragement on earlier versions.

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