* The author thanks Charles Craver, Janelle Diller, Ronnie Goldberg, Abraham Katz, Francis Maupain, and Anne Trebilcock for their helpful comments.

1 Treaty of Peace with Germany (Treaty of Versailles), pt. XIII, pmbl., June 28, 1919, 2 Bevans 43; see also id., Art. 427 (General Principles) (including “[t]he right of association for all lawful purposes by the employed as well as by the employers”). The current ILO Constitution includes the original preambular provision but omits the provision in Article 427, which was replaced with revised general principles in the ILO Declaration of Philadelphia of 1944. That declaration reaffirms that “freedom of expression and of association are essential to sustained progress.” ILO Const., annex, para. 1(b), available at <http://www.ilo.org/ilolex/english/constq.htm>. In 1948 the U.S. Congress authorized the United States to accept the revised ILO Constitution, which includes the Declaration of Philadelphia. Act of June 30, 1948, Pub. L. No. 80-843, 62 Stat. 1151.

2 Convention Concerning Freedom of Association and Protection of the Right to Organise (No. 87), July 9, 1948, 68 UNTS 17 [hereinafter C. 87]. Several months later, in December 1948, the UN General Assembly adopted the Universal Declaration of Human Rights, which contains provisions regarding freedom of association and the right to join (or not join) labor unions. Universal Declaration of Human Rights, GA Res. 217A (III), Arts. 20(1), 23(4), UN Doc. A/810, at 71 (1948). For background on C. 87, see Harold, Dunning, The Origins of Convention No. 87 on Freedom of Association and the Right to Organize, 137 Int'l Lab. Rev. 149 (1998)Google Scholar.

3 C. 87, supra note 2, Art. 2.

4 The Convention was adopted by 127-0 (with 11 abstentions) at the ILO Conference held in San Francisco. The U.S. government, worker, and employer delegates voted for the Convention. Int'l Lab. Conf., Record of Proceedings, 31st Sess. 268 (1948)Google Scholar.

5 Message from the President of the United States Transmitting the Convention (No. 87) Concerning Freedom of Association and Protection of the Right to Organize, S. Exec. Doc. NO. 81—S (1949).

6 Letter from the Secretary of State to the President (Aug. 26, 1949), reprinted in id. at 2, 2.

7 Article 19(7)(a) states:

8 Letter from the Secretary of State to the President, supra note 6, at 2.

9 See U S. Dep't of Labor, Briefing Paper on ILO Convention 87 Concerning Freedom of Association (Oct. 1980), reprinted in The United States and the International Labor Organization: Hearing Before the S. Comm. On Labor and Human Resources, 99th Cong. 49, 52 (1985).

10 U S Dep't of State, Office of the Legal Adviser, Treaties Pending in the Senate (Updated as of July 13, 2007), available at <http://www.state.gov/s/l/treaty/pending>. The next two oldest treaties are ILO conventions transmitted in 1962 and 1966.

11 The United States is not alone in failing to join C. 87. Fully 33 ILO member countries have not ratified it, including, for example, Afghanistan, Bahrain, Brazil, China, India, Iran, Iraq, Malaysia, New Zealand, Saudi Arabia, Singapore, South Korea, and Thailand.

12 Prepared Statement of Timothy Geithner, Treasury Under Secretary, Before the Subcomm. on Asia and the Pacific of the H. Comm. on Int'l Relations (Feb. 16, 2000), available in Lexis, U.S. Congress Library, Fed. News Serv File;see also 19US.C. §262p~4p (2000) (calling on the secretary of the treasury to urge international financial institutions to encourage borrowing countries to use relevant ILO conventions in taking action to guarantee internationally recognized worker rights).

13 The ILO is organized on the tripartite principle of representation of each member state by two government delegates, one worker delegate, and one employer delegate.

14 Convention Concerning the Application of the Principles of the Right to Organise and Bargain Collectively (No. 98), July 1, 1949, 96 UNTS 257. In a nutshell, C. 98 aims at protecting workers vis-á-vis employers, while C. 87 aims at protecting workers vis-á -vis governments. Héctor Bartolomei de la, Cruz, Geraldo von, Potobsky, & Lee, Swepston, The International Labor Organization: The International Standards System and Basic Human Rights 171 (1996)Google Scholar. The ILO conventions referred to in this Editorial are available online at <http://www.ilo.org/global/What_we_do/InternationalLabourStandards/lang-en/index.htm>.

15 Nicolas, Valticos, Roberto Ago (1907-1995), 89 AJIL 581, 583 (1995)Google Scholar.

16 Victor-Yves, Ghebali, The International Labour Organisation: A Case Study On The Evolution Of U.N. Specialised Agencies 77-80 (1989)Google Scholar.

17 ILO, Freedom of Association: Digest of Decisions and Principles of the Freedom of Association Committee of The Governing Body of The ILO, para. 15 (5th rev. ed. 2006)Google Scholar, available at <http://www.ilo.org/ilolex/english/23e2006.pdf>. For the Declaration of Philadelphia, see note 1 supra.

18 The Committee of Experts is an independent committee (composed of twenty eminent jurists) that examines reports by governments on the application of ratified conventions, receives comments from worker and employer nongovernmental organizations, and asks governments to take needed action to apply ratified conventions fully. For example, in the late 1970s, the committee reviewed allegations regarding violations of C. 87 by the Soviet Union. Theodor, Meron, Violations of ILO Conventions by the USSR and Czechoslovakia, 74 AJIL 206 (1980)Google Scholar.

19 ILO Const., supra note 1, Art. 19(5)(d).

20 Id., Arts. 29(2), 31-34; Francis, Maupain, Is the ILO Effective in Upholding Workers' Rights?: Reflections on the Myanmar Experience , in Labour Rights as Human Rights 85, 99 & n.45 (Philip, Alston ed., 2005)Google Scholar; Francis, Maupain, The Settlement of Disputes Within the International Labour Office, 2 J. Int'l Econ. L. 273, 278-79 (1999)Google Scholar; Budislav, Vukas, Some Remarks Concerning the Commissions of Inquiry Established Under the Constitution of the International Labour Organization , in Les Normes Internationales du Travail: Un Patrimoine Pour L'avenir. Mélanges en L'Honneur de Nicolas Valticos 75, 78-79 (Jean-Claude, Javillier & Bernard, Gernigon eds., 2004)Google Scholar. In principle, either the complainant government or the respondent government could have recourse to the ICJ to contest the findings and recommendations of the commission of inquiry. The ICJ would seem to have jurisdiction because it is specifically provided for in the treaty establishing the ILO Constitution. How the ICJ might assess its competence remains to be seen, as the judicial provisions in the ILO Constitution (which hark back to 1919) have not been used. ILO Const., supra, Art. 29(2); ICJ Statute, Art. 36(1).

21 The ILO declaration is examined in Brian Langille, The ILO and the New Economy: Recent Developments, 15 Int'l J. Comp. Lab. L. & Indus. Rel. 229 (1999)Google Scholar; Anne, Trebilcock, The ILO Declaration on Fundamental Principles and Rights at Work: A New Tool , in The ILO and The Social Challenges of The 21 st Century: The Geneva Lectures 105 (Roger, Blanpain & Christian, Engels eds., 2001)Google Scholar.

22 ILO Declaration on Fundamental Principles and Rights at Work, para. 2, June 18,1998, available at <http://www.ilo.org/dyn/declaris/DeclarationWeb.IndexPage>.

23 The key political momentum for the declaration came from U.S. employers. The declaration received considerable praise when adopted, but recently has come under criticism, most notably by Philip, Alston. Philip, Alston, ‘Core Labour Standards' and the Transformation of the International Labour Rights Regime, 15 Eur. J. Int'l L. 457 (2004)Google Scholar. Professor Alston argues that the declaration devalues the legal rights in ILO conventions, that the core standards appear to have been arbitrarily chosen, and that the vagueness of the declaration will make it convenient for use by the United States to justify trade sanctions. For a detailed defense of the declaration by one of its intellectual architects, see Francis, Maupain, Revitalization Not Retreat: The Real Potential of the 1998 LLO Declaration for the Universal Protection of Workers' Rights, 16 Eur. J. Int'l L. 439 (2005)Google Scholar. Maupain (who served for eleven years as the ILO legal adviser) claims that Alston “gets the story upside down.” Id. at 460.

24 The declaration restates the ILO obligation to provide technical assistance to member governments.

25 The same conclusion has been expressed in policy commentary for many years. See, e.g., Louis, B. Sohn et al., The United States and the International Labor Organization 22 (26th Report of the Commission to Study the Organization of Peace, 1979)Google Scholar (noting that the United States has the worst ratification record of the eighteen ILO members that are federal states and asserting that “[i]f the United States wishes to be influential within the Organization, it must have a strong record of ratification. Only then would it be assured of being heard when complaining about non-compliance by others.”); The United States and the International Labor Organization: A Report (May 1956), reprinted in 310 Annals Am. Acad. Pol. & Soc. Sci. 182, 187 (1957)Google Scholar [hereinafter Johnson Committee Report] (“We can never effectively participate in the ILO if we continue to become enmeshed in highly formalistic exercises in which we appear to the world to oppose high principles because of an unwarranted concern about the effect of ILO on our own legislative processes.”); William, G. Rice, Book Review, 2 AM. J. Comp. L. 404, 405 (1953)Google Scholar (“[T]he United States remains a very coy ratifier of conventions…. The pressure we put on western Europe for greater collective action is somewhat deflated by our example as a member of the I.L.O….”).

26 The eight conventions are the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); the Right to Organise and Collective Bargaining Convention, 1949 (No. 98); the Forced Labour Convention, 1930 (No. 29); the Abolition of Forced Labour Convention, 1957 (No. 105); the Minimum Age Convention, 1973 (No. 138); the Worst Forms of Child Labour Convention, 1999 (No. 182); the Equal Remuneration Convention, 1951 (No. 100); and the Discrimination (Employment and Occupation) Convention, 1958 (No.111). ILO, The International Labour Organization's Fundamental Conventions (2002)Google Scholar (explicating the concept of fundamental conventions).

27 The two U.S.-ratified conventions are C. 105 and C. 182, both supra note 26. The United States shares with Myanmar the embarrassing record of having ratified only two of the eight fundamental conventions.

28 The United States and the International Labor Organization, supra note 9, at 5, 9. Shultz had served as U.S. secretary of labor from 1969 to 1970 and earlier was a professor of industrial relations.

29 Orrin, G. Hatch, Ratify International Labor Conventions, Christian Sci. Monitor, Dec. 10, 1985, at 27 Google Scholar.

30 S. Exec. Rep. NO. 101-16, app. at 12, 14 (1989) (Statement of Elizabeth Dole, secretary of labor). Dole was referring to Article 26 of the ILO Constitution, which permits a member state to file a complaint that another member state is not effectively observing an ILO convention that both states have ratified.

31 Bob, Hepple, Labour Laws and Global Trade (2005)Google Scholar; Sandra, Polaski, Protecting Labor Rights Through Trade Agreements: An Analytical Guide, 10 U.C. Davis J. Int'l L. & Pol'y 13 (2003)Google Scholar.

32 Steve, Charnovitz, Caribbean Basin Initiative: Setting Labor Standards, Monthly Lab. Rev., Nov. 1984, at 54 Google Scholar.

33 22 U.S.C. §6065(a)(6)(C) (2000). Cuba ratified C. 87 in 1952.

34 Council Regulation (EC) No. 980/2005 of 27 June 1995 Applying a Scheme of Generalized Tariff Preferences, Art. 9(1) & Annex III, pt. A, 2005 O.J. (L 169) 1.

35 United States-Singapore Free Trade Agreement, Art. 16.1, Jan. 15, 2003, available at <http://www.ustr.gov>.

36 See Rossella, Brevetti, Administration, Democrats Reach Deal on Labor Standards in Free Trade Pacts, Daily Lab. Rep. (BNA) at A-15 (May 11, 2007)Google Scholar.

37 The U.S. business community opposed having the FTAs directly reference ILO conventions. Rossella, Brevetti & Jane, Winebrenner, NAM Rejects Plan for ILO Standards for United States in Free Trade Pacts, Daily Rep. for Executives (BNA) at A-7 (Apr. 20, 2007)Google Scholar. (“NAM” is the National Association of Manufacturers.) In early 2007, the U.S. Council for International Business stated: “Since incorporating these [ILO] conventions into U.S. trade agreements would have the same effect as ratification, extensive revisions to U.S. state and federal labor laws would be necessary. The result would be radical changes to U.S. law in a manner that precluded debate or amendment in Congress or in state legislatures.” United States Council for International Business, U.S. Ratification of ILO Core Labor Standards at 2 (n.d.).

38 Editorial, Deal or No Deal, Wall, J. St., May 16, 2007 Google Scholar, at A20. The editorial summarizes the new deal and explains: “This means the AFL-CIO will not be able to rewrite U.S. labor law by the back door and it should entail no new obligations for U.S. business.”

39 See, e.g., United States-Peru Trade Promotion Agreement, Art. 17.2(1), Apr. 12, 2006, with Protocol of Amendment, June 25, 2007, available at <http://www.ustr.gov>. For the United States, the term “statutes and regulations” is restricted to those at the central level of government. Id., Art. 17.8. The same template is included in the FTAs with Colombia, Panama, and South Korea.

40 Id., Art. 17.2(2).

41 Id., Art. 17.2 & n. l.

42 Id., Art. 21.16; see Office of the U.S. Trade Representative, Peru TPA Facts, Real Results on Labor Rights at 1 (July 2007), available at <http://www.ustr.gov/Trade_Agreements/Bilateral/Peru_TPA/Section_Index.html> (“Available remedies are fines and trade sanctions, based on amount of trade injury.”).

43 United States-Peru Trade Promotion Agreement, supra note 39, Art. 17.2(1) & n.2.

44 Letter from chairmanCharles, B. Rangel, House Committee on Ways and Means, and Sander, M. Levin, chairman, Subcommittee on Trade, Committee on Ways and Means, to Democratic Colleagues (Sept. 18, 2007)Google Scholar (on file with author).

45 See Nicolas, Valticos, International Labour Standards and Human Rights: Approaching the Year 2000, 137 Int'l Lab. Rev. 135, 135 & n.2 (1998)Google Scholar.

46 House Comm. on Ways and Means, Peru FTA Contains Unprecedented Tools to Enforce Strong New Labor and Environmental Standards (n.d.), available at <http://waysandmeans.house.gov/search.asp> (search “Peru FTA enforcement labor standards”; dien follow “C:\Documents_and_Settings\carrieb\My_Documents\PERU_ENFORCEMENT_ONE_PAGER.wpd” hyperlink).

47 See Hard Labour for Trade Negotiators: Trade Deals Are Not the Place to Write Employment Law, Fin. Times (London), May 18, 2007 Google ScholarPubMed, at 14; Chicago Council on Global Affairs, Poll Finds International Publics Strongly Favor Labor and Environmental Standards in Trade Agreements (Mar. 2007), available at <http://www.thechicagocouncil.org/media_press_room_detail.php?press_release_id=59> (noting strong support in developing and developed countries for minimum labor standards in trade agreements).

48 Kimberly, Ann Elliott, The ILO and Enforcement of Core Labor Standards, Int'l Econ. Pol'y Briefs, July 2000, at 6-7 Google Scholar, available at <http://www.iie.com/publications/pb/pb00-6.pdf>.

49 Rossella, Brevetti, House Approves Peru FTA Measure; Majority of Democrats Vote Against Bill, Daily Rep. for Executives (BNA), at A-12 (Nov. 9, 2007)Google Scholar; Steven, R. Weisman, Senate Votes to Approve Trade Deal with Peru, N.Y. Times, Dec. 5, 2007, at C3Google Scholar; George, W. Bush, Remarks with President Alan Garcia Perez of Peru on Signing the United States-Peru Trade Promotion Agreement Implementation Act, 43 Weekly Comp. Pres. Doc. 1588 (Dec. 17, 2007)Google Scholar; United States-Peru Trade Promotion Agreement Implementation Act, Pub. L.No. 110-138,121 Stat. 1455 (2007) (to be codified at 19 U.S.C. §3805 note). The U.S.-Peru FTA is not yet in force.

50 Lucien, O. Chauvin, Peru Congress OKs Amendments to Free Trade Pact with United States, Daily Rep. for Executives (BNA) at A-3 (June 29, 2007)Google Scholar.

51 See text at note 22 supra.

52 See text at notes 39 - 40 supra. The FTA labor provision is a classic incomplete contract. The intentional vagueness of this new labor commitment would put an FTA dispute panel in a quandary of not knowing how to delineate the substantive content of the freedom of association “right” and whether to rely upon the relevant ILO case law.

53 153 Cong. Rec. S14,722-23 (daily ed. Dec. 4, 2007).

54 Although the commitment is bilateral to Peru, all of the U.S. labor obligations will be performed inside the United States. Whatever benefit this promised U.S. behavior confers outside the United States will not be enjoyed exclusively by Peru but, rather, will redound upon all countries.

55 This is not to imply that enhancing legal protection for American workers was the object of the trade negotiation. Almost all of the domestic debate in 2007 about the new labor provision in the Peru-U.S. FTA concerned how to broaden Peru's obligations to the United States on fundamental labor rights. Little attention was given to the new labor obligations of the United States.

56 International Covenant on Civil and Political Rights, Art. 22, Dec. 16, 1966, S. Exec. DOC. NO. 95-F (1978), 999 UNTS 171. The United States is also a party to the Racial Discrimination Convention, which commits parties to guarantee the right of everyone to equality before the law in the enjoyment of listed rights, including the “right to freedom of peaceful assembly and association.” International Convention on the Elimination of All Forms of Racial Discrimination, Art. 5(d)(ix), Dec. 21, 1965, S. Exec. DOC. NO. 95-C (1978), 660 UNTS 195.

57 Both the Covenant and the Racial Discrimination Convention, supra note 56, have optional protocols providing a process to receive communications from an individual alleging a violation of rights under the treaty. The United States, however, has not joined either optional protocol. In the ILO, no analogous optional protocols exist because labor unions may bring complaints under the regular supervisory mechanism.

58 This reservation was approved by the Senate in both 1919 and 1920. George, A. Finch, The Treaty of Peace with Germany in the United States Senate, 14 AJIL 155, 181, 195 (1920)Google Scholar.

59 S.J. Res. 43, 73d Cong., 48 Stat. 1182 (1934) (codified at 22 U.S.C. §271). Even before the United States joined the ILO, the Hoover administration had sent a tripartite delegation of observers to the annual ILO Conference. Edward, C. Lorenz, Defining Global Justice: The History of U.S. International Labor Standards Policy 97 (2001)Google Scholar.

60 Lawrence, E. Davies, Broad Guarantees in ILO Agreement, N.Y. Times, July 3, 1948, at 4 Google Scholar.

61 Bess, Furman, 2 Agencies of U.N. Assailed by D.A.R.; U.S. Participation in ITO and ILO ‘Freedom to Organize' Convention Opposed, N.Y. Times, Apr. 22, 1949 Google Scholar, at 27. The United States decided not to participate in the ITO, and that organization never came into being.

62 See, e.g., Oral History Interview with Philip Kaiser (June 8 & 11, 1987), available at <http://www.trumanlibrary.org/oralhist/kaiserp.htm>. In Senate hearings on the Bricker Amendment, three business representatives spoke against ratification of ILO conventions and particularly against C. 87. See U.S. Dep't of Labor, supra note 9, at 54. U.S. employers perceived the ILO's approval of C. 87 in 1948 as an attempt to do an end run around the Taft-Hartley Labor Management Relations Act passed over President Truman's veto in 1947. John, Bruce Tipton, Participation of The United States in The International Labor Organization 86 (1959)Google Scholar.

63 Eleanor, Roosevelt, My Day, Feb. 21, 1953 Google Scholar, available at <http://www.gwu.edu/-erpapers/myday/displaydoc.cfm?_y=1953&_f=md002464>.

64 Nevertheless, there was considerable participation by Americans. For example, Secretary of Labor William B. Wilson was the 1919 conference chairman and Manley O. Hudson served as the legal adviser. Ursula, P. Hubbard, The Cooperation of the United States with the League of Nations and with the International Labour Organization, Int'l Conciliation, No. 274, Nov. 1931, at 136 Google Scholar.

65 See Edward, C. Lorenz, The Search for Constitutional Protection of Labor Standards, 1924—1941: From Interstate Compacts to International Treaties, 23 Seattle U. L. Rev. 569, 587-594 (2000)Google Scholar. The idea of using labor treaties in this manner appears to have originated with Joseph P. Chamberlain of Columbia University. See Joseph, P. Chamberlain, Migratory Bird Treaty Decision and Its Relation to Labor Treaties, 10 Am. Lab. Legis. Rev. 133 (1920)Google Scholar. The Supreme Court decision United States v. Darby, 312 U.S. 100 (1941), upheld the Fair Labor Standards Act and overruled the prior case law in Hammer v. Dagenhart, 247 U.S. 251 (1918).

66 PresidentFranklin, D. Roosevelt began submitting ILO conventions to the Senate in 1936 Google Scholar. The Officers' Competency Certificates Convention, 1936 (No. 53), the Holidays with Pay (Sea) Convention, 1936 (No. 54), the Shipowners' Liability (Sick and Injured Seamen) Convention, 1936 (No. 55), the Hours of Work and Manning (Sea) Convention, 1936 (No. 57), and the Minimum Age (Sea) Convention (Revised), 1936 (No. 58) were all ratified by the United States in 1938. ILO, Ratifications (Jan. 8, 2008), available at <http://www.ilo.org/ilolex/english/newratframeE.htm>. When Senator, Elbert D. Thomas proposed the adoption of the five ILO conventions in 1938 Google Scholar, he told the Senate that “American standards are so much higher than any of these conventions recommend,” and that with the conventions universally adopted, “our own ships may compete on a better level with the ships of other countries which have lower standards.” 83 Cong. Rec. 9023-24 (1938). Two additional ILO conventions sent to the Senate in 1938 were not ratified.

67 The Final Articles Revision Convention, 1946 (No. 80) was ratified by the United States in 1948. The Certification of Able Seamen Convention, 1946 (No. 74) was ratified by the United States in 1953. ILO, supra note 66.

68 See, e.g., Stephen, M. Schwebel, The United States Assaults the I.L.O., 65 AJIL 136 (1971)Google Scholar.

69 Stephen, I. Schlossberg, United States' Participation in the ILO: Redefining the Role, 11 Comp. Lab. L. 48, 70-72 (1989)Google Scholar (discussing the grounds for U.S. withdrawal and reentry).

70 ILO, supra note 66.

71 Exec. Order No. 12,216,45 Fed. Reg. 41,619 (June20,1980), reprinted in 22 U.S.C. §271 note (2000) [hereinafter President's Committee on the ILO].

72 The absence of and need for “an advisory policy committee composed of government, employer and worker representatives” had been pointed out by the Johnson Committee in 1956. Johnson Committee Report, supra note 25, at 184. The Johnson Committee was appointed by the U.S. Departments of State, Commerce, and Labor to conduct an independent review of U.S. policies toward the ILO. (The committee was headed by Joseph E. Johnson, the president of the Carnegie Endowment for International Peace.) The committee's recommendations for better coordinating machinery were not acted upon until 1980, and this long delay undermined U.S. policy coherence. More than two decades before the Johnson Committee Report, Manley O. Hudson had advised that U.S. opportunities in the ILO “will be grasped, however, only if the various departments of the government are organized to that end and if the Government of the United States shows itself, from the beginning, determined to make its membership more than a matter of routine.” Manley, O. Hudson, The Membership of the United States in the International Labor Organization, 28 AJIL 669, 682 (1934)Google Scholar.

73 Besides C. 87, the other fundamental ILO convention now before the U.S. Senate is the Discrimination Convention (No. 111). It was transmitted to the Senate by PresidentWilliam, J. Clinton in May 1998 Google Scholar. Nearly ten years later, the Senate Foreign Relations Committee has yet to hold a public hearing on C. 111.

74 As Professor Henkin noted in 1995, U.S. ratification of human rights conventions has sometimes been predicated on the principle that “adherence to a convention will not change, or require change, in U.S. laws, policies or practices, even where they fall below international standards.” Louis, Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89 AJIL 341, 342 (1995)Google Scholar. Henkin criticizes Senate-imposed reservations designed to reject any obligation above existing U.S. law and practice.

75 Warren v. United States, 340 U.S. 523 (1951). The central issue in the case was the meaning of the Shipowners' Liability Convention (No. 55) in U.S. law. On Warren and the ILO, see Virginia, A. Leary, International Labour Conventions and National Law 77-82 (1982)Google Scholar; Nicolas, Valticos, The International Labour Organization , in The Effectiveness of International Decisions: Papers of a Conference of the American Society of International Law, and The Proceedings of the Conference 134, 141-42 (Stephen, M. Schwebel ed., 1971)Google Scholar.

76 137 Cong. Rec. S10,790-91 (daily ed. May 14, 1991).

77 Article 3(d) of ILO Convention No. 182, supra note 26, concerns work that, “by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.”

78 145 Cong. Rec. S28.858 (daily ed. Nov. 5, 1999).

79 146 Cong. Rec. S18.766 (daily ed. Sept. 20, 2000).

80 Laurence, R. Heifer, Understanding Change in International Organizations: Globalization and Innovation in the ILO, 59 Vand. L. Rev. 649, 686 (2006)Google Scholar.

81 Articles 2 and 5(l)(b), (c) of the Convention Concerning Tripartite Consultation to Promote the Implementation of International Labour Standards (No. 144) require a government to conduct domestic consultations with employer and worker organizations regarding the ratification of ILO conventions. In my view, these provisions do not apply to C. 87 because it has already been submitted to the U.S. Senate.

82 134 Cong. Rec. S473, 474 (daily ed. Feb. 1, 1988).

83 Id. at S479.

84 U.S. Dep't of Labor, Bureau of International Labor Affairs, International Labor Organization (ILO), available at <http://www.dol.gov/ilab/programs/oir/ILO.htm>.

85 U.S. Council for International Business, Issue Analysis: U.S. Ratification of ILO Core Labor Standards 4 (Apr. 2007), available at <http://www.uscib.org/index.asp?documentID=1926>.

86 U.S. Dep't of Labor, supra note 9, at 49. The briefing paper was based on a 1976 study that was not published. The briefing paper and the study focused on the potential inconsistencies between the Convention, on the one hand, and the Labor-Management Reporting and Disclosure Act of 1949,29 U.S.C. §89 (Landrum-Griffin Act), and the Labor Management Relations Act of 1947,29 U.S.C. §141 (Taft-Hartley Act), on the other. Back in 1971, a U.S. interagency report (overseen by the U.S. Department of Labor) had urged ratification of C. 87. Walter, Galenson, The International Labor Organization: An American View 116-17, & 318 n.14 (1981)Google Scholar.

87 U.S. Dep't of Labor, supra note 9, at 49. The suggested declaration was to state that C. 87 is non-self-executing.

88 Edward, E. Potter, Freedom of Association, the Right to Organize and Collective Bargaining: the Impact on U.S. Law and Practice of Ratification of ILO Conventions No. 87 and No. 98 (1984)Google Scholar.

89 For example, Potter found that ratification would “[a]lter a fundamental principle of U.S. labor law, which makes union rights derivative from those of employees, by subordinating employee rights to those of labor organizations.” Id. at 44. In a recent article, Potter remarked that his 1984 study remains valid and then stated:

90 The requirement for reporting in the general survey is found in the Constitution of the ILO, supra note 1, Art. 19(5)(e).

91 ILO, General Survey, 1994, Freedom of Association and Collective Bargaining: Ratification of Conventions: Difficulties and Prospects, Convention No. 87 Google Scholar, para. 292, available at <http://www.ilo.org/ilolex/english/surveyq.htm>.

92 Compilation of Annual Reports by the International Labour Office, 2000, Freedom of Association and the Effective Recognition of the Right to Collective Bargaining: United States, available at <http://www.ilo.org/dyn/declaris/DECLARATIONWEB.ANNUALREVIEWDATABASE?var_language=EN>.

93 Complaint Against the Government of the United States Presented by the United Electrical, Radio and Machine Workers of America (UE), supported by Public Services International (PSI), Report No. 344, Case No. 2460, para. 991, available at <http://www.ilo.org/ilolex/english/caseframeE.htm>. Close observers of CFA jurisprudence perceive a harsher tone in this decision, as compared to previous U.S. cases, in applying C. 87 requirements to the United States.

94 Janice, R. Bellace, The Future of Employee Representation in America: Establishing Freedom of Association in the Workplace in Changing Times Through Statutory Reform, 5 U. Pa. J. Lab. & Emp. L. 1, 30 (2002)Google Scholar.

95 James, A. Gross, A Human Rights Perspective on United States Labor Relations Law: A Violation of the Right of Freedom of Association, 3 Employee Rts. & Emp. Pol'y J. 65, 103 (1999)Google Scholar.

96 See text at note 8 supra.

97 ILO Const., supra note 1, Art. 19(8). This provision was proposed by the United States in 1919. David, Hunter Miller, Some Results of the Labor Clauses of the Treaty of Versailles, 6 Cornell L.Q. 133, 153 (1921)Google Scholar.

98 The only recent pro-ratification statement that I am aware of occurred in 2000, when Human Rights Watch issued a report on freedom of association suggesting that the United States ratify C. 87 and C. 98. Human Rights Watch, Unfair Advantage: Workers' Freedom of Association in The United States Under International Human Rights Standards 24 (2002)Google Scholar, available at <http://hrw.org/reports/pdfs/u/us/uslbr008.pdf>. In 1995 the American Bar Association House of Delegates approved a more cautious recommendation urging “accelerated progress” toward “ratification of those ILO conventions on human rights which are consistent with U.S. law and practice.” A.B.A., Section of International Law and Practice, Report to die House of Delegates, International Labor Organization, 30 Int'l Law. 653, 653-54 (1996)Google Scholar (emphasis added).

99 See, e.g., 19 U.S.C. §3512(a) (2000).

100 U.S. fast-track authority for new trade agreements expired on July 1, 2007.

101 The United States and the International Labor Organization, supra note 9, at 5, 14.

102 Note that the International Labour Office recognizes that some countries “ratify ILO conventions fairly quickly and then work to bring their national law and practice into line; the comments of the ILO's supervisory bodies and technical assistance … can guide them in this process.” ILO, Rules of the Game: A Brief Introduction to International Labour Standards 18 (2005)Google Scholar, available at <http://www.ilo.org/public/english/standards/norm/index.htm>.

103 Since 1995, WTO panels have found U.S. violations in thirty-three separate cases. Other WTO members besides the United States are also regularly found to be out of compliance. Numerous WTO cases have been about measures adopted after the WTO went into force, yet many others have been about measures in place when the country joined the WTO. The WTO dispute system makes no distinction between those two temporal categories.

104 If changes at the subnational level would be needed to achieve conformity, then Congress ought to consider requiring such changes. In other words, Congress should revisit the position in the current ground rules, see text at notes 81-82 supra, that U.S. ratification of an ILO convention should not change state labor law and practice. In that regard, one might recall a U.S. government position expressed to the ILO in 1975 that the “United States could not assume a treaty obligation for a Convention whose partial jurisdiction lies in the states. Such an action would alter the distribution of powers between the states and die federal Government.” ILO Governing Body, Analysis of Replies to the Questionnaire on International Labour Standards, Doc. GB.198/PFA/11/22, at 67 (Nov. 1975).

105 See Cynthia, L. Estlund, An American Perspective on Fundamental Labour Rights , in Social and Labour Rights in A Global Context 192, 201 (Bob, Hepple ed., 2002)Google Scholar (noting that “there has been no major labour law reform—that is, reform of collective labour rights and labour-management relations—since 1947, when the Taft-Hartley amendments added a rash of anti-labour provisions”).

106 Moreover, Senate consent to the Convention will require a two-thirds vote, which would seem difficult to obtain if the business community opposes that action. Reportedly, there is also concern among American sovereigntists because the ILO Constitution provides for possible referrals to the ICJ. See ILO Const., supra note 1, Arts. 29(2), 37(1); see also note 20 supra. No such referrals to the ICJ have occurred, however, and the possibility that a state could be brought to the ICJ against its will seems remote. If a state were the object of an Article 29 commission of inquiry and were found to be in violation of an ILO convention it had ratified, the state could decide against referring the matter to the ICJ. The other provision for ICJ referral is Article 37(1) of the ILO Constitution, which states that “[a]ny question or dispute relating to the interpretation of this Constitution or of any subsequent Convention concluded by the Members… shall be referred for decision to the International Court of Justice.” Yet by its terms, Article 37(1) seems to be about questions of interpretation, rather than questions of implementation by a particular state. Moreover, Article 37(1) is not preconditioned on whether a member state has ratified a particular ILO convention. Hence, ratification of C. 87 does not trigger a new possibility of an ICJ referral.

107 Lawrence, J. Leblanc, The United States And The Genocide Convention 6 (1991)Google Scholar. And Proxmire began his campaign many years before the invention of C-SPAN!