A Comparative Analysis of Freedom of Association, Trade Unions and Labour Rights in Ireland and China

• Author: Donncha Conway
• Position: LLB IV Trinity College Dublin
• Pages: 106-118

[2011] COLR

106

A COMPARATIVE ANALYSIS OF FREEDOM OF ASSOCIATION,

TRADE UNIONS AND LABOUR RIGHTS IN IRELAND AND CHINA

Donncha Conway*

A INTRODUCTION

This work intends to compare how freedom of association is embodied in authoritarian and

libertarian regimes. Rights related to freedom of association, and the application of such rights in

the context of trade unions, provide the essay‘s main focus. Using Ireland and China as models

of libertarianism and authoritarianism respectively, the essay will draw conclusions as to how the

nature of a state affects its ability to guarantee rights, with reference to the two jurisdictions

mentioned.

Freedom of association is a right which is recognised as fundamental in liberal

democracies,

1

as well as in international legal instruments and establishments.

2

Upon it are

predicated crucial rights in the area of collective labour law, such as the right to form and join

independent unions, the converse right to refrain from joining a union and the right to partake in

union procedures. The method in which such a right is espoused – and the extent to which it is

effective – depends greatly on the state‘s approach to it. Particularly, the vitality of a freedom of

association guarantee is affected by the state‘s manifestation of its power as either libertarian or

authoritarian. This essay intends to explore the effects of a state‘s character on its capacity to

protect freedom of association, and related labour rights, at the individual level.

1 Definitions and Assumptions

An exhaustive analysis of the criteria which classify a state as being libertarian or authoritarian is

outside the scope of this work. However, certain definitional assumptions must be made as to the

characteristics of both for the purpose of this essay.

First, ‗Libertarian‘

3

will refer to the accordance of sovereignty to the individual and

protection of her personal liberty as against the state.

4

Such protections typically take the form of

a codified constitution which assumes an identity antecedent to the state, and so legitimately

* LLB IV Trinity College Dublin.

1

For example: Bunreacht na hÉireann, Article 40.6.1° (iii); First Amendment to the US Constitution, as interpreted

by the Supreme Court in NAACP v Alabama 357 US 449 (1958).

2

For example: Preamble to the Constitution of the International Labour Organisation; Freedom of Association and

Protection of the Right to Organise Convention (ILO No 87) 68 UNTS 17; Artic les 20 and 23 of t he Universal

Declaration of Human Rights.

3

As well as all cognate words.

4

As Axtmann put it: ‗liberal democracy is premised on the notion of popular sovereignty and its institutionalization

[sic] in citizenship rights‘, Roland Axtmann Liberal De mocracy into the Twenty-First Century: Globalization,

integration and the nation-state (Manchester University Press Manchester 1996 ) 10.