ILO c190: A Radical Legal Instrument

Melissa Upreti is a human rights lawyer, a woman's rights advocate, and a senior director of program and advocacy at the Center for Women's Global Leadership at Rutgers University in the United States. This is an unedited transcript of an interview with her on ILO C190 and its implications for advocacy and activism toward ending workplace sexual harassment. To watch the video, head here. To engage with the #16DaysActivismAgainstGBV, head to http://16dayscampaign.org/.

You work in the space of women's rights and as a human rights lawyer, and we're here to speak about something that's that is significant to the 16 days of activism against gender-based violence this year, namely the ILO C190. Can you tell us a little bit about the convention, how it came about, and what inspired its adoption?

ILO C190, which focuses on violence and harassment against women and men in the world of work is indeed a milestone. There were numerous factors that contributed to it. The two that really come to mind and I think are worth noting are, first of all, the ILO’s own commitment to promoting a decent work agenda, and as the preamble of C190 notes, the recognition that violence and harassment are unacceptable and incompatible with decent work. The other factor that comes to mind is really the persistence of gender based violence and harassment in the world of work. There's absolutely no doubt that this is an issue that women and men, but more so women disproportionately, have been grappling with for years and often in silence, because speaking out against violence in the world of work can really cost women dearly. They can lose their jobs, they can face even more violence and harassment. I think the #MeToo, and similar movements that emerged during the negotiations towards the latter part really did provide an impetus for the adoption of this convention because women through these movements spoke out against what was happening and they demanded change.

What is the binding nature of an ILO convention are all state parties bunk to implement it? Is the ratification the same as it is for maybe a UN convention?

Strictly speaking, a convention is legally binding. Once it is ratified by the state, by a government and each government, each country, has its own process for that. But typically it happens when parliament votes are cast, and there's a decision to actually ratify, which reflects a commitment to implement it. In principle, once a convention is formally adopted, and in this case, the adoption took place in June, 2019 during the International Labor Conference, when governments came together and formally adopted it through a vote. There is an expectation that governments will, once they adopt a convention, go back and they will ratify it. Of course, we know reality shows otherwise. There are many conventions that have not been ratified unanimously by governments, although they have been adopted. This shows that a significant amount of awareness raising as well as social dialogue at the national level is really needed to make it happen. An ILO convention is essentially an international treaty, so yes, like other UN treaties, it does require, a formal ratification at the national level. Once that happens, it is indeed binding. However, one does not have to wait for a treaty to be formally ratified, to start talking about it and to start applying the principles.

Can you tell us a little bit about the convention itself and some of the areas that addresses?

Sure. Well, this convention, like I said earlier is indeed a milestone. Just to provide a little bit of a historical perspective, it was only in the nineties around the time of the Vienna World Conference on Human Rights, actually, that women's human rights were recognized as human rights unanimously by governments: that there was a very explicit political commitment and that violence against women was recognized as a human rights violation. And that came about as a result of a lot of advocacy. It's taken almost 30 years, nearly three decades since then, for this convention to come about. It happened during the Centennial year of the ILO. So it actually took a hundred years for the ILO to produce a convention like this. But it is really important because first of all, it recognizes the basic human rights of every worker to a world of work that is free from violence and harassment. It recognizes that many forms of violence and harassment indeed constitute human rights violations. It calls for the adoption of legal policy administrative and other measures by States, employers and workers, organizations to prevent and address gender based violence in the world of work and recognizes a collective responsibility on the part of relevant institutions. It defines workers very broadly. Workers are not defined as being limited to formal workers, but also to include informal workers, for example. Those working part-time and in the informal sector, are included, too. It defines the world of work very broadly. So the workplace is not limited to an employer provided workplace per se, but it can be your own private space, for example, your own home. If that is used as a workplace, it also includes public spaces, which many workers, for example, informal workers, street vendors use as their workplace.

It also encompasses public transportation that one would use to get to and back from work. It also encompasses methods of communication that you use in the line of work. For example, the internet is a site where we know a lot of violence and harassment occurs. The convention also recognizes the vulnerability of certain groups of workers, which is incredibly important because the majority of workers who experience the highest level of exploitation and discrimination are, for example, migrant workers and other workers who have the least social and legal protection. The convention also recognizes the critical link between domestic violence and its impact on women's performance in the workplace. It also creates some new entitlements for women. There are many reasons why C190 is pretty radical - in a good way - the foremost being that it really gets to the heart of many of the structural problems that we see in the world of work.

What mechanisms of accountability kick in if a state does not follow through on its obligations under an International Convention such as ILO C190?

There are actually many pathways. I'm going to start with the national level. Being a lawyer, and a human rights lawyer at that, I have been involved quite extensively in public interest litigation strategies. That's one strategy that comes to mind right away. In India, the Vishakha case is a prime example of public interest litigation, which actually led to legal reform. I see national human rights commissions as having a critical role as well, because they actually can be a bridge between what happens at the national level and what happens at the international level when governments report to international bodies as they're required to do so under international law. They can play a critical role in making sure that recommendations are implemented, or at least that those recommendations shape legal and policy reform and administrative measures at the national level. I think social dialogue is also incredibly important as a process because this is a process that really involves government employers and workers, and is envisioned as a process through which the perspectives of all three come together to actually create solutions to problems. I would say that in combination with national strategies, we have to think about accountability at the international level as well because although international mechanisms and processes, they seem very remote, they can be leveraged to really bring about change at the national level.

For example, international treaty monitoring bodies require States to report periodically on compliance with human rights standards. If we're talking about violence and harassment in the world of work, and since women are disproportionately impacted and other vulnerable populations, CEDAW comes to mind. Periodic reporting to the CEDAW (Committee) is very critical. That's where local organizations can raise specific issues. Based on that, the committee will engage in a dialogue with the government and make specific recommendations. There are also special procedures that have been created under the human rights council, special procedures, like special repertoires, which is how there are many of them are known. There's also the UN working group on discrimination against women and girls. These mechanisms also monitor human rights violations and they do country visits. So when they do a country visit, they often look at issues and then they make concrete recommendations, which are communicated to the government.

One can leverage those recommendations to also push for reform. The ILO also has certain reporting mechanisms and procedures. It requires States to report on conventions that have been ratified as well as conventions that have not been ratified. There are mechanisms within the ILO that can also be utilized and then whatever is generated through these processes can be integrated into advocacy at the national level to really create political pressure, and also help make the case for the need for reform. Of course, this also has to be combined with the real life experiences of workers. Documenting what's happening to workers in different spheres in different sectors is also really important. Connecting those experiences to the structural problems within the world of work is incredibly important. Seeking accountability is definitely a huge task. It requires a lot of time and resources, but there are quite a few channels that activists can use.

How does ILO C190 support the rights of people working in the unorganized sector?

This is one of the greatest strengths really of C190, because for example, it has defined worker in such a broad way and very clearly encompasses informal workers. Typically those workers who are systematically denied standard social legal protections that are provided to full-time workers are included within this definition. There are provisions in the convention that very clearly recognize the vulnerability of certain groups of workers, subgroups, certain categories. These provisions can also be used to elevate conversations around government responsibility towards those workers and to call for increased social legal protection. This convention, as well as Recommendation 206 can be used in a complimentary way to Recommendation 204, which calls for the formalization of the informal sector.

One can even go beyond that and follow the language in the preamble, which very clearly acknowledges the existence of other treaties. The mechanisms monitoring other treaties have applied provisions to workers in the informal economy in different sectors. All of those provisions can be combined to make a very clear case for increased social legal protection and other very specific measures, especially when we're talking about women. There are actually a lot of issues that are not still not yet recognized, for example, the connections between reproductive health and rights and what happens to women in the world of work. Although these have not been fully recognized yet, we can use these provisions as a basis to bring these issues to light.