INTERNATIONAL LABOR RIGHT
The labor Right picks up the new positions of the international solidarity: when affirming the worker's social rights in their condition of human person, all the workers have, therefore, access to this rights and their effective guarantees. Neither race, neither sex, neither any other personal and social condition can impair the ownership and enjoyment of this rights; neither the nationality.
In I finish I finish, it is aspired to a normative homogeneity above you limit them national. Either with norms supranational, either with International Agreements, the Social Right of the Work spreads to be applied in areas that overflow the political frontiers of each State, to be carried out, under treatment conditions equally, in spaces supranational.
THE HOMOGENIZETION PROCESES AND THEIR TECHNIQUES:
Reception and integration
The relationships between a norm of international environment and an internal norm in a State linked to that, they can settle down according to different types; in principle, the following ones:
A) Substitution relationship, so that the norm supranational takes the place of the national norm inside its own internal juridical order;
B) Harmonization relationship, so that the national Right stays as own, but its content must modify in the necessary terms to adapt to the norm supranational, although this adaptation doesn't take place until it is approved by the national normative power;
C) Coordination relationship that supposes that the internal Right stays in its own terms, so that the international norm doesn't modify the internal rules but rather it assures its application in same terms among the national different States linked to the international norm;
D) Relationship of coexistence or, better, of complementariety that supposes that the internal Right and the international Right regulate the same object jointly, but each one at a different level, so that they are supplemented.
THE CLASSIC INTERNATIONALS NORMS
The labor treaties
In the Spanish preconstitutional Right, the Treaty, once ratified, approved, promulgated and published in the Official Bulletin of State she/he became, in norm of directly applicable internal Right to the citizens and, therefore, untouchable before the Tribunals of Justice and the Administration.
In the current Right it seems necessary to conclude that the force of forcing of the Treaty, once ratified, approved and promulgated in order having included their publication in the BOE (Oficial Boletine of State), it will be the one that suits to their approval act. Coarse with this act to understand that the international norm has been received in the internal classification.
THE OIT THE INTERNATIONAL ORGANIZATION OF WORK.
They were not neither political neither jurists those that began the creation process. It was the industrial one you sting Robert Owen and Daniel they Bequeath who they realized the necessity that uniform legislations existed to protect the worker of the abuses. The movements for their creation are truncated with the explosion of the World War I.
In the postwar period, in the conference of peace of Versalles, are the edited labor great letter, and the creation of the OIT, with the design of improving the work conditions that, for the degree of injustice, misery and privations that involve for great number of people, and for the dissatisfaction that they involve, they constitute a threat for the peace. Therefore they wait with this creation a certain stability for the world peace. In the letter (1919) they are made consist the following points:
1) The work should not be considered as a merchandise.
2) So much association right for workers as for managers.
3) Wage that guarantees a level of worthy life for the workers.
4) 8 daily working hours or 48 weekly.
5) 24 hours of rest a week.
6) Prohibition of the work to the children.
7) Same wage for same work without discriminations for sex reason.
8) Equal treatment for all the workers of the country.
9) Service of work inspection that assures the application of the labor laws.
With the time these principles were enlarged with a declaration against the poverty and in favor of the world peace.
After World War II the OIT is integrated in the UN like organism specialized in labor matter. It has its headquarters in Geneva (Switzerland).
B) Structures organic and functional
The OIT has tripartite nature: in it participates states, managers and workers. This tripartite nature breaks up with the classic diplomatic outline in which only participate the states.
Advantages of this triparte:
1) Possibility to survive the wars among the states.
2) It has a bigger contact with the alive forces of the society.
Inconveniences: When being based on that tripartite structure makes it low the principle of the freedom and the managers' independence and workers, strongly controlled by the state. For example, during the Franco rgime, there was an only union organization strongly controlled by the state.
In all ways, in this case, the advantages overcome to the inconveniences.
Integral States of the OIT:
1) The states that were already members of the same one November 1 1945.
2) Any state member of the UN that communicates to the OIT the formal acceptance of the obligations that emanate of the constitution of the OIT.
3) Those states that are not in the two previous cases, request the admission and be approved by the international conference. Any state is also free of abandoning the OIT, warning with a term of two anuses.
The abandonment of the OIT doesn't imply the liberation for the state of the execution of the agreements that already had ratified.
Organic structure: the OITorgans are:
1) Organ legislative that is the International Conference of the Work.
2) Executive organ that is the Council of Administration. It is equal to the government of the OIT.
3) Administrative organ that is the International Office of the Work.
4) The technical commissions
5) The regional conferences.
1) Function of technical attendance to the states members of the OIT on different labor matters.
2) It has an important service of publications, publishing a series of magazines.
3) Normative function, the but important. Function of generating norms of labor character. It is translated in the adoption of agreements and recommendations.
4) Normative Function: Agreements recommendations and resolutions.
The normative action of the OIT takes place and manifests in the Agreements and Recommendations approved in its deliverative organ that is the General Conference. The international agreements of work are the agreements of the OIT of normative vocation; they aspire, therefore, to become national Right or intern.
The Recommendation or it completes the prescriptions of an Agreement, or prepares, advancing them, the prescriptions of a future Agreement. It is, because, a very flexible rule. But also in the Agreements the rigidity is avoided: it is necessary to think that they aspire to be universal norm, applicable in very different States in their economy, society, culture, etc.; therefore, they are very general dispositions, with frequent alternative and dispensations.
Sometimes, the own text of the Agreement remits to normative acts of execution of the ratification by the State, so that it simply promotes or it impels in this the option of the suitable rules.
Elaboration and approval
The elaboration of the normative instruments of the OIT are in the practice complex and long. The initiative can come from one or several of the Governments of the States members, of the professional organizations represented before the OIT, of its commissions, of the United Nations, etc. is presented before the Council of Administration that it decides in this respect.
There are two procedures: that of double discussion and that of simple discussion. The first one is the usual one and understands the shipment of a detailed questionnaire. With the answers of the Governments, the same Office elaborates a repertoire of conclusions that they will be remitted in its day to the Conference. The group of all these works is examined in the breast of the competent Commission again, and when is considered the sufficiently debated topic it spends to the full of the Conference for the final voting. When the Conference is pronounced in favor of the consideration of a normative proposal, it will have to determine if this proposal must have the form of an agreement or of a recommendation; in both cases, so that the Conference approves in the final voting the agreement or the recommendation will be necessary a majority of two thirds of the votes emitted by the present delegates.
The approved instrument will be authenticated by the signatures of the President of the Conference and of the General Director of the Office; a copy is deposited in the Office, other it is remitted the General Secretary of the UN and, in short, transfer is also given to each one of the States members.
Obligations of the States members
The agreement and the alone recommendation will provide effect in each State member's internal spheres when these they have received it in their own Right. In this respect, the Constitution of the OIT imposes the following obligations:
A) Each one of the States members will subject the text of the Agreement in the I finish of an anus, and in exceptional cases, of eighteen months, to count of the closing of the meeting of the approbatory General Conference, to the authority or authorities to who it concerns the matter, to the effect that they give him legal form or adopt other measures.
B) If the consent of the competent authorities, the State member was obtained it communicated the formal ratification from the Agreement to the General Director and it adopted the necessary measures to make effective the dispositions of this agreement.
The agreement is a project of internal norm; its effectiveness is subordinated to that the State member incorporates it to his internal Right to the way of an international Treaty. Once produced the ratification, this obligation gravitates on the State member and, therefore, the Organization investigates its execution rigorously through two systems, that is:
A) In the first place, by means of the annual Memoirs presented by the States members that are analyzed by a committee of experts and informed by a commission of the Conference.
B) In second place, through jurisdictional procedures that can begin with a " reclamation " in charge of the professional organizations of managers or of workers; or with a " complaint " in charge of a State against the State member that, to their view, have not given satisfactory execution to a ratified agreement. In the complaint suppositions it can be obtained, even, the intervention of the lnternational Tribunal of Justice.
It deserves special attention the control in guarantee of the union freedom, settled down by agreement of the Economic and Social Council of the UN and of the Council of Administration of the OIT.
It reaches so much to the countries that have ratified the corresponding Agreements like to those that have not ratified them. To some and others can go the complaints of the Governments and of the professional organizations. It gives place to the performance of the Commission of Investigation and Reconciliation and of the Committee of Union Freedom.
Effectiveness of the ratified Agreement, approved and published
The Agreement, once ratified and approved, has the effectiveness that she/he can obtain a subjected international Treaty to the same ones you process, to tenor of that prepared in the constitutional Right on the matter of the ratify by the State.
The Spanish norms on ratification and approval of the international agreements are incomplete; there is not anything in the effective Spanish constitutional Right that forces to give a treatment different to the international Treaties and to the projects of the Agreement of the OIT; with the result that i practices it of their reception in the Spanish Right it formulates it of style it is the same one in one and another case. Now then, the immediate or differed obligatority of the norms of the Agreement once published in the BOE it will depend on the nature of this norms, since for their own structure they can be:
A) Mandatory of immediate application;
B) Mandatory of different application;
C) Promotional or programatic.
Therefore, on one hand, it is necessary to say that in the Spanish Right it is founded to sustain that the ratified Convenio OIT, approved and published in form it is integrated in the internal Right with all their consequences; but, on the other hand, it continues in foot the respect to the nature of the own norm already integrated: their effectiveness depends on its character according to the three exposed alternatives. Because it is evident that the alone International Agreement forces in its own terms. Therefore, alone the norms of the type to) they enjoy automatic effectiveness; in the other cases, alone they would be effective when they are picked up at once normative national to the one that the Agreement is remitted.
OTHER INTERNATIONAL NORMS
It is necessary to also assist to the norms approved by other International Organisms to those that Spain this linked.
A) Of the UN: the Universal Declaration of the Man's Rights (1948); the International Pact on civil rights and Political (1966), and the International Pact on Economic, Social and Cultural Rights (1966).
B) Of the Council of Europe.
C) Of the European Communities.
The Constitutional Tribunal is making repeated application of these norms.
THE SOCIAL ACTION OF THE CONSEJO DE EUROPA
The Council of Europe is an international organization of regional base. It was constituted with the political objective of carrying out the European unit, but it also has a social purpose because it intends favor the social and economic progress by means of the adoption of a common action in the economic, social and artificial areas."
In the social order, they are significant, among other, the following Agreements:
- Agrement European on the rgimes of Social Security, of age, disability and survival.
- European agreement of Social Attendance and it Prescribes.
- European code of Social Security
- European agreement on the farmers' social protection.
- European agreement on the migrant worker's juridical statute.
The social but important texts are, with everything, both following:
European convention of Guarantees of the Man's Rights and of the Fundamental Freedoms
It was approved in Rome in 1950. The Convention refers to general Rights and freedoms you publish, but, among some and other, it declares the freedom of the work and the proscription of the obligatory work, and the same thing regarding the association freedom. Spain has ratified the Convention in l979; it has also recognized the competition of the European Tribunal of human rights.
The European Social Chapter was approved in Turin in 1961; in its elaboration, next to the representatives of the Governments, representatives of the main professional organizations participated.
The Social Chapter enumerates the socio-economic rights in complete terms, together with its guarantees and realization measures, from the right to the work, until the right of the migrant workers and of its families to the protection and the attendance. They are specially important the proclamation of the union right; the right of collective negotiation, with expressed mention of strike; the right to the Social Security, etc.
The States members must ratify a I number minimum of articles, but restrictions and limitations are accepted in the national laws if they are necessary, in a democratic society, to guarantee the respect of the rights and of the freedoms of other or to protect the order I publish, the national security, the health publishes or the good customs.
THE EUROPEAN COMMUNITY RIGHT
Right native, derived and complementary
The community institutions, adopt different decisions, many of them of normative character that conform the one denominated community Right. In the they are integrated the Treaties, Agreements and modification Agreements, normative group that is denominated primary Right or native.
This mass of norms understands from the Treaty of Paris (MINT) and of Rome (1957) until the different Treaties of Adhesion of the States that have left incorporating to the Union, the unique Records of 1987 and, now, the modifications operated by the Treaty of Maastricht (1992). These norms can have direct effectiveness inside each State member.
The Right native sinks the derived Right that is the group of norms that, of conformity with the Treaties, they have approved the own European institutions, and in the detailed rules are picked up that affect the States members and, to the citizens of this States. In short, inside the community Right it is had a third I surrender that picks up Sources of the International Right, certain Sentences of general effectiveness of the European Community Justice Tribunal (TJCE), the general principles of the community juridical classification and certain you practice reiterated of the own institutions that, for lack of expressed norm, they have become customs. This group receives the name of Complementary Right.
When a State enters in the Communities it is forced to assume the community wealth formed until its date of adhesion. They fit clauses of application gradual, but always this rules they will have transitory character.
Measures of formalization of the derived right
The Tratado CEE, and the Tratado EURATOM establish the following enumeration of norms: the regulation; the directive one; the decision and the recommendations and the verdicts.
On the other hand, the Tratado CECA uses a different terminology, settling down this way the following equivalence (the denominations of the EEC-EURATOM they are those that are inside parenthesis): general decision (regulate); recommendation (directive); individual decision (decision); verdict (recommendation and verdict).
The regulation is the main juridical-formal instrument of the Communities; it is the equivalent of the formal Law in the internal Right. It has general reach and it is obligatory in all their elements, with direct and immediate application in each State so much member in the relationship between the State and the citizen. It doesn't accept clauses of temporary dispensation or of reservation. The necessary publication takes place with its insert in the Official Newspaper of the European Communities.
There are two types of regulations: those of base and those of execution.
The first ones develop norms of the same Treaties and they condition the norms and reach of the seconds. The regulation is of direct and immediate application and enjoys the primacy characteristic of the community Right. The regulation goes into effect in the date that settles down to the effect; to the lack of this specification, to the twenty days of its official publication. It is integrated in the state internal Right and it causes the inaplication of the national norms that contradict their rules.
The general decision of the MINT has a similar position to that of the regulation of the EEC; its approval corresponds exclusively to the Commission
The community directives
The directive one is a norm, in principle, incomplete; it works to the way of a law-square that must be completed: it forces to the State member addressee as soon as, to the result to get but it needs an added act of this State, to which trusts the election in the way and of the applicable means to such an end. It demands, therefore, an internal normative development (state) later.
In the literal tenor of the articule mentioned, the directive one seems to have as addressee a single State member. However, the directive ones directed to all the States members are the ordinary reality, for what includes them to him among the sources of the community Right. The directive one is the instrument juridical type of the Community for the approach of the national legislations.
The directive one must be notified to their addressees; if it has as addressees to all the States members it is also published in the TWELVE. With the notification, the term opens up inside which each State member will adopt the necessary measures to give execution to the directive one.
They are possible reservation clauses.
While the term, the community rule is completed it lacks direct effectiveness in this State. The delay of the State forced member, or the irregular execution, they constitute infraction, with what the Commission will intervene and, in its case, it can cause condemnatory sentence of the TJCE.
When the State has allowed to expire the term for the development of the directive one, it is possible that this it achieves, in spite of it, direct effectiveness inside this State; such it happens if it contains clear, concrete and unconditional rules that, for its own structure, they are complete and they make superfluous the state added norm. Nevertheless, the citizens of the State nonfulfiment rot to invoke such rules in front of the own State (vertical effectiveness) but not in front of other matters (doesn't have, because, horizontal effectiveness).
The decisions, the same as the regulations, are vinculatives in all their elements, but they differ of these in that the addressee this personalized in one or several States members, or in an or several people. It has, because, individualized character and not general. The decisions are notified, but they are not always published in the TWELVE. The decision directed to the matters is a complete juridical act; but when it goes to the States it is frequent that it accepts that these they adopt later acts for its best application.
The TJCE has also accepted that the decisions can even have direct effectiveness in this second aspect. The theory of the useful effect, allows to conclude that serious incompatible with the vinculative effect e if the addressees of the decision can be excluded of the obligation that are imposed with her.
Recommendations and verdicts
The recommendations and the verdicts are not linking; they lack, therefore, of normative character. The addressees that can be as much the States as the companies, are free to continue or not the indications that control in them. For lack of artificial effectiveness, they have certain moral authority. The recommendations have been defined as community acts that invite to a certain behavior, while the verdict offers an opinion.
Other community juridical acts
The Treaties make reference to other acts whose realization trusts to the Institutions and community organs, without more precision in their denominations.
It is spoken of " proposal ", " approvals ", " authorizations ", " resolution ", etc.
EFFECTIVENESS OF THE COMMUNITY RIGHT
The community Right, so much primary as having derived, once published in the TWELVE, or once notified, is integrated in the Classification Juridical intern of the States members; and it reaches application in the national Tribunals as long as soon as their rules enjoy direct effectiveness.
For Spain, the Treaties provide full effects starting from the entrance in vigor of the Treaty of Adhesion, and in the terms of this, to you are of the publication in the BOE. The different sources of the derived Right have the effectiveness that corresponds to their different character, as it is norms of direct application or of norms of indirect effect. The community norms of direct effect have primacy on the national, such norms and like it has maintained with stability the TJCE and they have ended up to accept the superior Tribunals of the different States members.
In consequence, in the Spanish case the community norms of direct and immediate application are already part of the internal Right from January 1 1986. The other ones will be developed by the Spanish State according to the terms of each one of them, to count from the resulting date of the Records of Adhesion. The possible conflicts between the Spanish Right and the applicable community Right will undergo at the beginning of primacy; therefore, the national norm, whichever it is its range, will be unaplicate in benefit of the community norm that is incompatible with her. The Spanish judge will be, the judge in charge of guaranteeing the execution of the community norm.
Articulation of the international norms
The own TC (Constitutional Tribunal) settles down that the Agreements of the OIT -a ratified time - they are norms that incorporate to the internal classification of Spain and, therefore, they are invocables norms like ordinary Right before the Tribunals of justice.
But the application of the own Agreements of the OIT demands an analysis of its content, because the effectiveness artificial predicable can vary from a precept to another inside the same Agreement, since its articles sometimes contain precepts of direct and immediate application, but other articles, for its own writing, they are of differed application; they have as addressees to the States and not to the citizens of each State-part of the OIT. To be effective before the Tribunals will demand the reception of their content in a later act of this State. In consequence it is forced to manage the international texts of the UN and of the Council of agreement Europe with the following rules:
First rule: the Universal Declaration of the Man's Rights is a political text of maximum moral value, but it is not a juridical instrument with law force.
Second rule: the International Pact of the UN, on civil rights and Politicians is a norm supranational. It is imposed to the Spanish internal Right, even to the norms with law force.
Third rule: the same doctrine is been worth for the European Convention about Protection of the human rights and Freedoms you Publish.
Fourth rule: it can be said that in the International Pact on Economic, Social and Cultural Rights and in the Letter Social European the character of mandatory norm of application differed on that of mandatory norm of automatic application prevails. Many of their articles force the States members to adopt different guarantee measures regarding the fundamental rights and freedoms you publish, but they don't generate rights in the citizens' of this States favor in front of other citizens.
In short, the properly this European community norms, are incorporate to the Spanish Right since they are published regularly (in the TWELVE). They are worth as internal Right and they are invocables before the Spanish Tribunals.