The custom of the country

Wednesday at the law school, a panel discussion was held in advance of Thursday night's hearing in Raleigh focusing on the state law that prohibits collective bargaining by public employees. TV vans were parked outside. But they were there for something else. The room where the four members of the International Commission for Labor Rights was meeting was practically empty. Best I could tell, the people there were labor law students, some public workers from Durham, and a few local labor activists (of which I count myself one).

Enacted in 1959, when the custom of the country was still racial apartheid, N.C.G.S. sec. 95-98 says,

Any agreement, or contract, between the governing authority of any city, town, county, or other municipality, or between any agency, unit, or instrumentality thereof, or between any agency, instrumentality, or institution of the State of North Carolina, and any labor union, trade union, or labor organization, as bargaining agent for any public employees of such city, town, county or other municipality, or agency or instrumentality of government, is hereby declared to be against the public policy of the State, illegal, unlawful, void and of no effect.

Although a number of states states in fact do not honor public-sector bargaining rights, North Carolina shares with Virginia the distinction of being the only states with an explicit statutory ban. In this regard, we are way out of step with international law. That is the message that these distinguished fact-finders had to bring, while aiming also to gather testimony that will help North Carolina workers plead their cause in an international forum. The hearings were arranged by the Durham-based Local 150 of the United Electrical, Radio and Machine Workers of America. The union plans to incorporate the panel's findings into a complaint against North Carolina in the International Court of Justice.

The Commisison members were representing the International Labour Organization. Founded in 1919, the ILO was a product of the negotiations of the Treaty of Versailles. Its purpose was to set minimum international labor standards for member nations. The United States joined in 1934 but has not ratified many of the basic conventions. According to one scholar, Edward E. Potter, "The Growing Significance of International Labor Standards on the Global Economy," 28 Suffolk Transnational Law Review 243 (2004):

Even for the most widely ratified conventions, primarily concerning fundamental worker rights-freedom of association, right to organize, collective bargaining, forced and child labor, and equal opportunity-it remains the case that over half of the world's workers do not work in countries that have ratified these conventions. This is because three large countries, China, India and the United States, have ratified few of the fundamental labor standards.

Nevertheless, according to our panelists, so many civilized countries have ratified the right to public-sector collective bargaining that an argument can be made that this is a right that has achieved the status of "customary international law" and thus is enforceable in an American court as a matter of common law. Looking at the two ILO conventions that grant the rights to organize and bargain collectively, a federal district court in Alabama held in 2003 in a case involving the Alien Tort Claims Act, Rodriquez v. Drummond, 245 F. Supp. 1250 (N. D. Ala.), that such rights were enforceable fundamental rights:

Although this court recognizes that the United States has not ratified ILO Conventions 87 and 98, the ratification of these conventions is not necessary to make the rights to associate and organize norms of customary international law. As stated above, norms of international law are established by general state practice and the understanding that the practice is required by law.

That seems enlightened, especially given the horrible facts of this case (scroll down to no. 4): three Colombian union organizers were killed by paramilitary agents of an American company. All the same, it raises a larger question. Just what is, or ought to be, the relationship between law and social norms? Is this a particularly European way to think? (I ask because I once heard a British commentator on the radio say, The social policies of today are the laws of tomorrow, as if it were a truism and a good thing.) When I tell you that I've spent much of my time lately immersed in the history of the "massive resistance" to Brown v. Board of Education, you might understand why the notion that laws should follow customary practices sounds to me, at the least, problematic.