ICESCR and trade unions: defending and strengthening rights

The International Trade Union Confederation Global Rights Index 2025 has found that ‘workers’ rights are in free fall across every continent’ with 87 per cent of countries violating the right to strike and 80 per cent of countries the right to collective bargaining.[1] It is therefore important to recall and utilise all the tools available to defend the rights of trade unions and their members.

This article will explore the role that the International Covenant on Economic, Social and Cultural Rights (ICESCR) can play in the defence and progression of trade union rights. The monitoring process for its implementation will then be explained. A spotlight on the recent review of the United Kingdom’s (UK) compliance with the ICESCR will follow. Finally, consideration will be given to how ICESCR and its associated mechanisms offer trade unions the opportunity both to assert rights domestically and to take steps toward progressing and shaping those rights globally.

Trade union rights under ICESCR

ICESCR is a United Nations (UN) treaty which enshrines economic, social and cultural rights. It is the parallel covenant to the International Covenant on Civil and Political Rights. At the time of writing, it has been ratified by 173 countries.[2] Of particular interest to trade unionists may be the work-related protections contained within the Covenant. Article 6 enshrines the right to work, article 7 provides for the right to just and favourable conditions of work and article 8 contains protection of trade union rights. As has been noted by the United Nations Committee on Economic, Social and Cultural Rights (UN CESCR), ‘Articles 6, 7 and 8 of the Covenant are interdependent’[3] and they are often considered together with the right to work being developed in the ‘individual dimension’ via article 7 and the ‘collective dimension’ in article 8.[4] Trade union rights are explicitly protected under article 8 of the Covenant which provides for:

Article 8.1

‘(a) The right of everyone to form trade unions and join the trade union of his choice…’

‘(b) The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations;’

‘(c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;’

‘(d) The right to strike, provided that it is exercised in conformity with the laws of the particular country.’

Under article 8.2 a state party is not prevented under ICESCR from imposing ‘lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State.’

However, nothing in article 8 of ICESCR authorises state parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to undermine ‘guarantees provided for in that Convention.’[5]

The UN CESCR monitoring process

The United Nations Committee on Economic, Social and Cultural Rights monitors implementation of ICESCR.[6] The Committee conducts a periodic review of state parties to the Covenant approximately every 5 years. Each review cycle contains a number of stages and opportunities for civil society engagement with the process of holding state parties to account with their ICESCR obligations.

The first stage in the review cycle is the issuing of a state party report by the country in question. This report provides the state party with an opportunity to explain to the Committee how it is achieving rights in the Covenant.

Civil society groups then have an opportunity to submit a parallel report setting out how they believe rights are being achieved and where they have evidence that supports or contradicts the state party’s assessment of progress. The purpose of the submission is to inform the pre-sessional working group of the Committee and assist them in identifying areas for focus and civil society can propose questions that the Committee may wish to ask the state party.

The pre-sessional working group is comprised of a number of members from the Committee who meet in Geneva to develop a list of issues on which they want more information from the state party. The list of issues is published after the pre-sessional working group meeting.

The state party is then required to submit a written report responding to the questions raised in the list of issues. There follows a further opportunity for civil society organisations to participate in the process, as there is an opportunity to submit a further parallel report with an update to the Committee on issues raised in the list of issues and the state party response. Again, civil society organisations have the opportunity to highlight evidence that both supports or contradicts the state party’s assessment and share other information they consider relevant with the Committee. Civil society can also propose recommendations, in light of their submissions, that they encourage the Committee to make.

Following these steps the formal review takes place. This is usually a two-day process where the Committee meets in Geneva and a delegation from the state party participates. The Committee examines the evidence it has received from the state party and civil society. The Committee also questions the state party delegation on issues of concern or on areas about which they wish to receive more information. While there is no formal role for civil society in the formal review itself, there are opportunities to make representations at informal briefings of the Committee and to advocate directly with Committee members.

Following the formal review, the Committee produces concluding observations setting out a series of recommendations for the state party on how it could better achieve rights in the Covenant. Under a follow up procedure,[7] the Committee will identify three key priorities for focus by the state party and request a report on these after two years.

Participation and advocacy by civil society throughout the review cycle has the potential to impact the concluding observations. The concluding observations and key priorities for focus are thus both an important way of highlighting rights concerns and seeking accountability, as well as providing important findings to support subsequent advocacy regarding rights protections.

Parallel reports can be submitted by either groups and coalitions or by individual organisations. Group submissions can be impactful in demonstrating the strength and scope of concerns. Individual submissions can be useful for providing targeted detail on specific issues. The content of submissions should be objective, and evidence based. Further information regarding word limits and language requirements can be found in the United Nations guidance for NGOs and civil society.[8]

Complaints to UN CESCR

Where a state has also ratified the Optional Protocol to ICESCR this permits UN CESCR to receive complaints from individuals or groups regarding alleged violations of the Covenant.[9] Complaints may be submitted by or on behalf of individuals or groups.[10] This means that complaints could be raised by trade unions on their own behalf or on behalf of individual or groups of members in jurisdictions that have ratified the Optional Protocol. To date 31 countries have ratified the Optional Protocol.[11] This does not include the United Kingdom.

Spotlight: UN CESCR’s latest review of the UK – evidence and recommendations

The seventh periodic review of the UK has recently concluded with the Committee making over ninety recommendations to the UK governments on steps to be taken in order to progress the protection of economic, social and cultural rights for people in the UK. This spotlight will highlight key issues relating to trade union rights through each step of the monitoring process explained above.

The UK Government’s assessment of trade union rights in the UK was that it was ‘confident that… domestic law sufficiently protects the rights of workers and unions… [and] is compliant with international conventions.’[12]

Just Fair made a submission on behalf of civil society in England and Wales for the pre-sessional working group.[13] It was compiled from evidence submitted to a call for evidence from Just Fair[14] by civil society organisations, including trade unions and organisations working on workers’ rights.[15] A member of the UK Trades Union Congress sat on the steering group of the submission. The submission highlighted that the International Labour Organization (ILO) Committee of Experts have raised numerous concerns regarding outstanding violations of ILO Conventions, including ILO Convention 87 dating back to 1989. The submission also highlighted that the European Committee of Social Rights found the UK to be in breach of 10 out of 13 obligations relating to labour rights in the European Social Charter.[16]

Other issues were raised in relation to there being no legal right to be represented by a trade union in collective bargaining except by flawed statutory recognition procedure as well as concerns about restrictions on trade union freedom and the right to strike and inadequate protection for striking workers.[17] It was proposed that the Committee ask the UK Government to explain the inconsistency with the UK Government position on compliance with international conventions and the findings of non-conformity with ILO and European Social Charter standards by their supervisory bodies.[18]

In the list of issues[19] the Committee sought clarification on the impact of legislation which restricted trade union freedom and how it was said that obligations in relation to ICESCR article 8 were met. The Committee sought information about electronic balloting for industrial action and strikes in addition to seeking information on how workers could exercise their right to strike under legislation requiring minimum service levels.[20]

The UK Government response[21] to the List of Issues noted that the UK Government was committed to repealing legislation which restricted trade union freedom. A further commitment to introduce electronic balloting was also stated.[22]

Just Fair made a further submission to the Committee, on behalf of civil society in England.[23] Again, this was compiled from evidence submitted to Just Fair by civil society following a call for evidence.[24] The submission highlighted evidence[25] that despite proposals from the UK Government to repeal some restrictive legislation, concerns persist regarding UK compliance with article 8 obligations. Again non-compliance with international obligations, as highlighted by the Council of Europe’s Social Rights Committee and ILO Freedom of Association Committee, were raised.[26] Issues raised at the pre-sessional working group stage regarding the statutory recognition procedure and collective bargaining were reiterated and updated with issues that had subsequently emerged relating to worker status in the ‘gig economy’ and attempts to unionise by Amazon workers.[27] Concerns relating to breaches of collective agreements in a well-known ‘fire and rehire’ case were highlighted as being unresolved.

While some positive developments were acknowledged regarding an intention to repeal minimum service requirements, additional concerns were highlighted regarding Council of Europe Social Rights Committee findings of non-conformity with European Social Charter obligations relating to strike action as well as the ongoing prohibition on sympathy/ solidarity or secondary action.[28] It was proposed that the Committee recommend that the UK Government take urgent steps to ensure compliance with trade union rights given the findings of non-conformity by multiple different international supervisory bodies.[29]

Following the formal review in Geneva the Committee issued its concluding observations.[30] The Committee expressed concern about undue restrictions on trade union rights, ‘particularly with respect to collective bargaining and the right to strike’[31] and made recommendations that the UK Government should:

• review legislation which restricts trade union freedom in order to ensure compliance article 8 and ‘safeguard trade union rights without undue restrictions’
• ensure effectively enforcement legislation to prevent the blacklisting of trade union members and to ensure access to remedy and compensation to those affected
• ensure prompt implementation of electronic balloting for industrial action.[32]

It is welcome that the Committee persists with making the recommendations above requiring action be meaning fully taken, and that they did not simply accept an expressed commitment from the UK Government to repeal legislation and implement electronic balloting as demonstrating compliance. However, it is also true that this section of the UK concluding observations could perhaps have been stronger.

To the knowledge of Just Fair no trade union was present in Geneva for the formal review and only one trade union was represented at the online informal briefing of the Committee. This is perhaps unfortunate and a missed opportunity because the Committee raised the issue of labour rights and would surely have benefitted from the specific expertise that a more significant trade union presence could have offered.

An important role for trade unions in the UN CESCR process

ICESCR and the review process by UN CESCR provide further tools for trade unions to use to fight for labour and collective rights in their jurisdictions. The review process presents an important opportunity to document potential violations and seek accountability. The concluding observations following a review can be useful for advocacy and campaigning work, bringing the weight of an independent United Nations treaty body assessment. Where applicable, the Optional Protocol is another accountability mechanism giving the possibility of raising complaints with UN CESCR directly.

A further potential area for trade union mobilisation and participation relates to the development of a general comment on article 8 trade union rights. There is a clear opportunity for advocacy for this outstanding work to be developed and articulated for the benefit of trade unions and their members globally. General comments are important because they are produced by UN CESCR and provide authoritative guidance on the meaning of ICESCR rights and how they ought to be interpreted and implemented by parties to the treaty. In the ambit of labour protections, general comments have been produced in relation to article 6 and 7 of ICESCR. General Comment 18 (2006) on the right to work (article 6) indicates an intention to develop a general comment in respect of article 8.[33]

General comments are adopted by treaty bodies usually following a three-stage process of consultation, drafting and adoption.[34] This involves participation from experts, NGOs and civil society groups.[35] As the ISHR Academy note, ‘providing input into general comments is a useful way for human rights defenders to contribute to the formulation of policy and jurisprudence based on their own context, work and practice.’[36]

A recent example of this in the UN CESCR context is the proposed general comment on the environmental dimension of sustainable development.[37] A public consultation was launched in January 2025 for input on a draft general comment.[38] Inputs received included a joint submission from the International Trade Union Confederation, the International Transport Workers’ Federation and the International Lawyers Assisting Workers Network.[39] The general comment is expected to be discussed at the next session of UN CESCR, which is anticipated to take place in the autumn of 2025, and where the Committee will decide if it will adopt the general comment.[40]

Given the stated intention to develop a general comment on article 8 trade union rights in General Comment 18 (2006) on the right to work, there is an opportunity for trade unions globally to work together on the development of that. The next annual meeting of UN CESCR with civil society may provide a potential advocacy opportunity to explore the possibility of starting that work with Committee. That meeting is expected to take place at the seventy-ninth session of the Committee in February or March 2026, although this is subject to confirmation due to the United Nations regular budget liquidity situation.[41]

Working towards the development of a general comment would mean trade unions could shape the meaning and implementation of trade union rights in the ICESCR context in order to seek better protection of those rights, and to ensure more effective implementation and compliance in delivering rights protections. This would be in addition to engaging with the existing mechanism of the UN CESCR review process, and potentially the Optional Protocol where applicable, to seek accountability as well as supporting campaign and advocacy work.

Participating in the development of a general comment would provide trade unions with an opportunity for international solidarity and to work together to develop the scope of article 8 rights that pertain to them and the ongoing struggle to protect workers’ rights across the world. Given the evolving global context that would appear more pressing than ever.

Join the UK Economic, Social and Cultural Rights Network to get involved: UK ESCR Network | Just Fair

This article previously appeared in the International Union Rights journal, volume 32 issue 2, 2025. It is republished here with the kind permission of Daniel Blackburn, Director of ICTUR and Editor of the International Union Rights journal.

Notes

[1] International Trade Union Confederation (2025) ‘Workers’ rights collapse across the world: ITUC Global Rights Index 2025, 2 June 2025. Available at: Workers’ rights collapse across the world: ITUC Global Rights Index 2025 – International Trade Union Confederation (accessed 2 June 2025)

[2] United Nations Treat Collection. Status as at: 28-05-2025 09:15:36 EDT. Chapter IV Human Rights. 3 International on Economic, Social and Cultural Rights. Available at: UNTC (accessed 28 May 2025)

[3] UN CESCR ‘General Comment 18’ on the right to work (2006) UN Doc GE.06-40313 (E), paragraph 8. Available at: tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=E%2FC.12%2FGC%2F18&Lang=en (accessed 28 May 2025)

[4] Ibid, paragraph 2

[5] Article 8.3

[6] United Nations Human Rights Office of the High Commissioner (undated) Introduction to the Committee. Available at: Introduction to the Committee | OHCHR (accessed 28 May 2025)

[7] United Nations Human Rights Office of the High Commissioner (undated) Follow-Up to Concluding Observations. Available at: Follow-Up to Concluding Observations | OHCHR (accessed 28 May 2025)

[8] United Nations Human Rights Office of the High Commissioner (undated) Guidelines for civil society, NGOs and NHRIs. Available at: Guidelines for civil society, NGOs and NHRIs | OHCHR (accessed 28 May 2025)

[9] Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (2008). Available at: Optional Protocol to the International Covenant on Economic, Social and Cultural Rights | OHCHR (accessed 28 May 2025)

[10] Ibid, article 2

[11] United Nations Treaty Collection. Status as at: 28-05-2025 09:15:36 EDT. Chapter IV Human Rights. 3 a Optional Protocol to the International on Economic, Social and Cultural Rights. Available at: UNTC (accessed 28 May 2025)

[12]UN CESCR’ Seventh periodic report submitted by the United Kingdom of Great Britain and Northern Ireland under articles 16 and 17 of the Covenant, due in 2021’ (2022) UN Doc E/C 12/GBR/7, paragraph 78. Available at: tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=E%2FC.12%2FGBR%2F7&Lang=en (accessed 28 May 2025)

[13] Just Fair (undated) Submission to UN Committee on Economic, Social and Cultural Rights, CESCR 7^th Review of UK. Pre-sessional Working Group submission on behalf of civil society in England and Wales. Available at: Submission to UN Committee on Economic, Social & Cultural Rights (accessed 28 May 2025)

[14] Just Fair (undated) Call for written evidence. Civil Society Shadow Report of England and Wales for the Pre-Sessional Working Group Report to the United Nations Committee on Economic, Social and Cultural Rights. Available at: https://justfair.org.uk/wp-content/uploads/2022/08/Call-for-written-evidence.pdf (accessed 28 May 2025)

[15] Evidence received by Just Fair available at: Written submissions from civil society to Just Fair’s call for evidence on ICESCR | Just Fair (accessed 28 May 2025)

[16] Just Fair (undated) Submission to UN Committee on Economic, Social and Cultural Rights, CESCR 7^th Review of UK. Pre-sessional Working Group submission on behalf of civil society in England and Wales, paragraph 14 a. Available at: Submission to UN Committee on Economic, Social & Cultural Rights (accessed 28 May 2025). See also Institute of Employment Rights (2022) Submission on ICESCR Article 8: Trade Union Rights. Available at: Microsoft Word – IER ICESCR 2022 (accessed 28 May 2025)

[17] Ibid, paragraph 14 b-d

[18] Ibid, proposed question (F), page 8

[19] UN CESCR ‘List of issues in relation to the seventh periodic report of United Kingdom of Great Britain and Northern Ireland’ (2023) UN Doc E/C.12/GBR/Q/7. Available at: tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=E%2FC.12%2FGBR%2FQ%2F7&Lang=en (accessed 28 May 2025)

[20] Ibid, paragraph 21

[21] UN CESCR ‘Replies of the United Kingdom of Great Britain and Northern Ireland to the list of issues in relation to its seventh periodic report’ (2024) UN Doc E/C.12/GBR/RQ/7. Available at: tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=E%2FC.12%2FGBR%2FRQ%2F7&Lang=en (accessed 28 May 2025)

[22] Ibid, paragraphs 137-142

[23] Just Fair (undated) Submission to UN Committee on Economic, Social and Cultural Rights, CESCR seventh review of the UK. Submission on behalf of civil society in England. Available at: Submission to UN Committee on Economic, Social & Cultural Rights 2025 (accessed 28 May 2025)

[24] Just Fair (2024) Call for written evidence: Just Fair report to the United Nations Committee on Economic, Social and Cultural Rights. Available at: Call for Evidence – Sep 2024 (accessed 28 May 2025)

[25] Evidence received by Just Fair available at: Evidence received to inform our 2025 report to CESCR | Just Fair (accessed 28 May 2025)

[26] Just Fair (undated) Submission to UN Committee on Economic, Social and Cultural Rights, CESCR seventh review of the UK. Submission on behalf of civil society in England, paragraph 18

[27] Ibid, paragraph 16 a

[28] Ibid, paragraphs 16 c and d

[29] Ibid, question c, page 10

[30] UN CESCR ‘Concluding observations on the seventh periodic review of the United Kingdom of Great Britain and Northern Ireland’ (2025) UN Doc E/C.12/GBR/CO/7. Available at: tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=E%2FC.12%2FGBR%2FCO%2F7&Lang=en (accessed 28 May 2025)

[31] Ibid, paragraph 38

[32] Ibid, paragraph 39

[33] Paragraph 8.

[34] ISHR Academy (undated) ‘Understanding the Treaty Bodies’ Available at: Understanding the Treaty Bodies – General comments – What do the Treaty Bodies do? (accessed 28 May 2025)

[35] ISHR Academy (undated) ‘Opportunities for You to Engage’ Available at: Opportunities for You to Engage – Providing input to general comments (accessed 28 May 2025)

[36] Ibid

[37] United Nations Human Rights Office of the High Commissioner (undated) ‘General Comment on Sustainable Development and the International Covenant on Economic, Social and Cultural Rights’ Available at: General Comment on Sustainable Development and the International Covenant on Economic, Social and Cultural Rights | OHCHR (accessed 28 May 2025)

[38] United Nations Human Rights Office of the High Commissioner (2025) ‘CESCR calls for written contributions to the draft general comment on Economic, Social and Cultural Rights and the Environmental Dimension of Sustainable Development’ Available at: OHCHR | CESCR calls for written contributions to the draft general comment on Economic, Social and Cultural Rights and the Environmental Dimension of Sustainable Development (accessed 28 May 2025)

[39] ITUC, ITF and ILAW (2024) ‘Draft general comment on Economic, Social and Cultural Rights and the Economic Dimension of Sustainable Development’ Submission to CESCR. Available at: subm-cescr-written-cso-6-ituc-itf-ilaw-en.docx (accessed 28 May 2025).

[40] Correspondence between Just Fair and the CESCR Secretariat, 28 May 2025

[41] Correspondence between Just Fair and the CESCR Secretariat, 20 May 2025