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Constitutionalising Labour Rights In Canada and Europe : Freedom of Association, Collective Bargaining, and Strikes

Fudge, Judy (2015) Constitutionalising Labour Rights In Canada and Europe : Freedom of Association, Collective Bargaining, and Strikes. Current Legal Problems, 68 (1). pp. 267-305. ISSN 0070-1998. E-ISSN 2044-8422. (doi:10.1093/clp/cuv003) (KAR id:49044)


Why are unions in Canada and the European Union going to court to claim that the rights to bargain collectively and to strike are fundamental human rights and thus constitutionally protected? My approach to this question is socio-legal; I am interested in what this form of claims making reveals about how political power is legitimated in the contemporary global world. I argue that the goal of constitutionalizing labour rights is a specific example of the broader and much more pervasive global constitutionalization that involves a shift in law’s legitimacy from constituent power, the will of the people, and democracy to rights in which courts are the key institutions in a complex transnational constitutionalism. I situate a sociological account of global constitutionalism in relation to the legal literature on multiple constitutions in Canada and Europe. I then turn to examine how international human rights are invoked by trade unions in Canada and the EU to constitutionalize the rights to bargain collectively and to strike, and my specific focus is on how courts deploy these rights in their reasoning and the circulation of international human rights through different adjudicative sites. After recounting how unions’ attempts to constitutionalize labour rights in Canada and at the European level have fared, I discuss the controversy over the right to strike that has engulfed the International Labour Organization’s supervisory bodies. To conclude, I consider whether the use of international human rights by courts to interpret the scope of freedom of association exacerbates or ameliorates the displacement of democracy and constituent power as a basis of political legitimacy in global constitutionalism.

Item Type: Article
DOI/Identification number: 10.1093/clp/cuv003
Uncontrolled keywords: strike action, collective bargaining, trade unions, human rights
Subjects: K Law
Divisions: Divisions > Division for the Study of Law, Society and Social Justice > Kent Law School
Depositing User: Sarah Slowe
Date Deposited: 17 Jun 2015 09:56 UTC
Last Modified: 09 Dec 2022 04:12 UTC
Resource URI: (The current URI for this page, for reference purposes)

University of Kent Author Information

Fudge, Judy.

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