Written by Professor Dr. Andreas Müller
Professor Dr. Andreas Müller, LL.M. (Yale) holds the Chair of European Law, International Law and Human Rights at the University of Basel. His research focuses, amongst others, on international and European human rights law.
The core dimensions of the right to a just wage
The right to a just wage has formed part of the post-1945 development of international human rights from the very beginning. This notably becomes manifest in Article 23 of the 1948 Universal Declaration of Human Rights (UDHR)[1] which guarantees everyone the right to work. This right specifically includes the “right to equal pay for equal work” (Article 23 para. 2 UDHR) as well as “the right to just and favourable remuneration ensuring for [everyone] and [everyone’s] family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection” (Article 23 para. 3 UDHR). This provision is remarkable inasmuch as it already enunciates the three core dimensions of the right to a just wage that are still pertinent today, i.e. a remuneration that is (1) fair, (2) non-discriminatory (“equal pay for equal work”) and (3) that allows for a decent living (“existence worthy of human dignity”).
In spite of the prominence and authority of this text, the UDHR (as a resolution adopted by the UN General Assembly) remains non-binding.[2] Its content was, however, transposed into the legally binding 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR).[3] Pursuant to its Article 7, everyone’s right “to the enjoyment of just and favourable conditions of work” expressly includes “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” as well as “a decent living for [workers] and their families”. Once again, it is not difficult to identify the three afore-mentioned core elements of the right to a just wage.
The same holds true for specialised universal human rights conventions such as the 1969 Convention on the Elimination of All Forms of Racial Discrimination,[4] the 1979 Convention on the Elimination of All Forms of Discrimination Against Women,[5] and the 2006 Convention on the Rights of Persons with Disabilities.[6] In a similar vein, regional human rights conventions such as the 1996 (Revised) European Social Charter[7] and the 1988 Additional Protocol to the American Convention on Human Rights (the so-called “Protocol of San Salvador”)[8] provide for the aforementioned elements of the human rights to a just wage.
Hence, already at the level of legally binding human rights conventions, there exists a relatively homogeneous legal landscape with regard to what it means to pay employees a “just” remuneration. This is confirmed by the work of the Committee on Economic, Social and Cultural Rights (CESCR), a UN body composed of 18 independent experts and called to monitor the implementation of the ICESCR.[9] Notably by referring to Article 7 ICESCR, the CESCR has sought to further clarify the content of the right to a just wage in its General Comment No. 23 of 2016.[10] While General Comments are not legally binding,[11] they have to be seen as authoritative statements by the Committee on the meaning of the rights in the Covenant[12]:
- When explaining its view on what Article 7 ICESCR requires in the context of the right to a just wage, General Comment No. 23 uses the same threefold structure as described before.[13] In terms of “fair wages”,[14] it is stated that this notion is “not static, since it depends on a range of non-exhaustive objective criteria, reflecting not only the output of the work but also the responsibilities of the worker, the level of skill and education required to perform the work, the impact of the work on the health and safety of the worker, specific hardships related to the work and the impact on the worker’s personal and family life.”[15]
- In the context of the requirement of “equal remuneration for work of equal value”, General Comment No. 23 emphasises that “equality applies to all workers without distinction based on race, ethnicity, nationality, migration or health status, disability, age, sexual orientation, gender identity or any other ground.”[16] Moreover, this non-discrimination obligation also covers situations of indirect or de-facto discrimination as well as intersectional discrimination; for instance, a distinction between full-time and part-time work (such as the payment of bonuses only to full-time employees) might indirectly discriminate against women employees if a higher percentage of women are part-time workers.[17]
- Regarding the third element, General Comment No. 23 states that while “fair wages and equal remuneration are determined by reference to the work performed by an individual worker, as well as in comparison with other workers, remuneration that provides a decent living must be determined by reference to outside factors such as the cost of living and other prevailing economic and social conditions”.[18] Thus, “remuneration must be sufficient to enable the worker and his or her family to enjoy other rights such as social security, health care, education and an adequate standard of living, including food, water and sanitation, housing, clothing and additional expenses such as commuting costs”.[19] This raises the issue of minimum wages which General Comment No. 23 deals with extensively.[20] In particular, the minimum wage should be recognised in legislation, fixed with reference to the requirements of a decent living, and applied consistently and systematically, protecting as much as possible the fullest range of workers, including workers in vulnerable situations.[21] It must be noted, that the minimum wage cannot be reduced under any circumstances by collective agreement or an individual contract.[22]
The ICESCR is, however, not the only legal basis for a right to a just wage in international law. In particular, the International Law Organization (ILO) in Geneva has long engaged in treaty-making in the field of labour rights which also includes the issue of just remuneration.[23] Moreover, the EU has developed the European Pillar of Social Rights (EPSR) that sets out 20 principles in three areas which commit the member States to common minimum standards, including fair wages.[24] In terms of secondary legislation, of particular interest is the recent EU Directive on adequate minimum wages in the European Union.[25]
Progressive realization
While the content of the right to a just wage has been increasingly specified over the years, its implementation is subject to the so-called “progressive realization” clause. Pursuant to Article 2(1) ICESCR, “[e]ach State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, 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, including particularly the adoption of legislative measures.”[26]
This clause applies with respect to all economic and social rights (as opposed to civil and political rights) and acknowledges that the implementation of the former type of rights requires States to make available financial and other resources that are, by definition, limited. Against this background, States enjoy a certain margin of appreciation, when, by what means and how forcefully to implement the right to a just wage.
However, General Comment No. 23 clarifies that the progressive realization clause should not be used by States to justify inaction or selective implementation, but they must take “deliberate, concrete and targeted steps towards the progressive realization” of the right in question, “using maximum available resources.”[27] States must “move as expeditiously and effectively as possible towards the full implementation of the right.”[28]
In addition, States should avoid taking any deliberately retrogressive measures without careful consideration and justification. If retrogressive measures are introduced, for example in an economic crisis, States have to “demonstrate that such measures are temporary, necessary and non-discriminatory”.[29] Finally, the measures taken must always respect minimum essential levels or “core obligations” that exist under the right to a just wage in the respective country, notably to put in place a comprehensive system to combat gender discrimination at work, including differences in remuneration, and to establish minimum wages that are non-discriminatory and non-derogable [not subject to any derogation or dilution, even in times of crisis], fixed by taking into consideration relevant economic factors and indexed to the cost of living so as to ensure a decent living for workers and their families.[30]
Implementation gaps with respect to States
As we have seen, in international law there indeed exists a binding right to a just wage with a specific content which serves as a legal benchmark for the acts (or omissions) of States. Yet, the problem often lies with the implementation and compliance mechanisms to enforce this right. In many cases, international law offers rather weak institutional arrangements to realise the rights it stipulates, especially when it comes to economic, social and cultural rights.
This particularly becomes manifest with the ICESCR: 171 out of the (almost) 200 States on the planet have ratified the treaty and thus formally promised to comply with the rights enshrined in the Covenant.[31] However, when it comes to the individual complaint procedure that is laid down in an optional (i.e. voluntary) protocol to the ICESCR[32] – and which authorises individuals or groups of individuals claiming to be victims of a violation of any of the economic, social and cultural rights set forth in the Covenant[33] – only 26 States[34] have so far committed themselves to open up this venue of implementation.
The Covenant itself solely provides for a rather weak enforcement mechanism, i.e. the duty under Article 16 ICESCR to provide regular reports to the CESCR as an independent expert body, which can, however, only issue non-binding recommendations to the State in question.[35] To be sure, by also accepting so-called “shadow reports” from the civil society, the Committee will receive a more representative picture of the situation on the ground and will be in a position to offer better advice to the affected country. Yet, the impact of the Committee’s intervention will often be limited to a “naming and shaming” exercise which will regularly not, or at least not directly, result in any change of the situation on the ground. This contrasts with General Comment No. 23’s claim that “[a]ny person who has experienced a violation of the right to just and favourable conditions of work [should] have access to effective judicial or other appropriate remedies, including adequate reparation, restitution, compensation, satisfaction or guarantees of non-repetition”.
Targeting EU businesses
In recent years, the systemic problems that exist with respect to assuring compliance of States with economic and social rights have helped to prompt initiatives that seek to focus more on a different set of actors that is equally crucial to the realisation of labour-related rights, i.e. business enterprises. Acknowledging that such rights cannot be realised without the involvement of the private sector, General Comment No. 23 expressly recognises the role of “non-State actors”, notably business enterprises in the implementation of the right to a just wage.[36]
Moreover, the last two decades have seen the emergence of various remarkable initiatives in this field. Arguably the most prominent among these initiatives are the UN Guiding Principles on Business and Human Rights,[37] the so-called “Ruggie Principles”, named after John Ruggie, a former Harvard University Professor, as the leading person behind them. These Principles (which are not legally binding[38]) emphasise business actors’ responsibility to respect human rights, including the right to a just wage, and to provide for compliance mechanisms adapted to the business world, notably due diligence obligations and human rights impact assessments.[39]
It is interesting to see that more recent initiatives build upon this approach by seeking to impose (legally binding) due diligence obligations on corporations along the value chain, e.g. the French “loi de vigilance”,[40] the German Supply Chain Act,[41] the Irish Labour Exploitation and Trafficking Bill 2021[42] as well as the EU Commission’s 2022 proposal for a Corporate Sustainability Due Diligence Directive (CSDDD).[43] The idea behind these legal acts is that – in order to internalise certain externalities of corporate action – the responsibility for the respect of human rights (as well as sustainability goals) should not only rest with the host-states of subsidiaries (typically in the Global South with sometimes deficient bureaucratic and enforcement structures), but also and in particular with the host-state of transnational corporations, typically headquartered in the Global North.[44] Accordingly, the latter States should use their economic power to promote the respect of human rights along the whole value chain. Since all these legal acts and initiatives also cover the right to a just wage,[45] they may make a significant contribution to foster the respect of that right.
Yet, there exists a critical discourse with respect to such legal initiatives which should not be overlooked. While subscribing to their human rights agenda, notably Third World Approaches to International Law (TWAIL) criticise the CSDDD project for its insensitivity with respect to colonial legacies and the perils of delocalised justice.[46] First, laws such as the CSDDD are made in the Global North, arguably for the benefit of the Global South, but with little input therefrom. Moreover, the EU’s engagement in its own corporate human rights’ due diligence project does not go hand in hand with EU support for the ongoing multilateral process for the adoption of a binding treaty on business and human rights,[47] but rather substitutes for it. Finally, the EU’s CSDDD takes litigation away from where the damage occurred in value chains and transfers it to courts in the Global North, thus “delocalizing” justice.
Conclusion
As has been shown, the right to a just wage as well as its core elements (i.e. fair, non-discriminatory remuneration that allows for a decent living) are solidly entrenched in universal and regional human rights law. In particular, CESCR General Comment No. 23 of 2016 specifies the normative content of Article 7 ICESCR. While the right to a just wage as an economic and social right is subject to the progressive realisation clause and while States enjoy a certain margin of appreciation in implementing this right, the CESCR has clarified that this should not be used to justify inaction or selective implementation, but that States must take deliberate, concreted and targeted steps, using maximum available resources.
The situation is more fragile at the level of implementation and compliance mechanisms. The ICESCR solely offers weak institutional arrangements, mostly resulting in “naming and shaming” exercises, but not allowing to actually sanction States. Recent initiatives that focus more on (notably transnational) business enterprises which are equally crucial to the realisation of labour-related rights look more promising in this regard. By imposing legally binding due diligence obligations on corporations along the value chain they seek to internalise harmful externalities of corporate action. The EU Commission’s CSDDD proposal is at the forefront of these initiatives. While welcomed by many, it is also criticised for being insensitive to colonial legacies and the perils of delocalised justice. The human right to a just wage thus remains in a precarious state.
