Do jus cogens norms exist in the international labour law?

Studia z zakresu prawa pracy i polityki społecznej. 2013. P. 411–420.

Лютов Н. Л.

The clear identification of jus cogens norms is very important not only from theoretical but from practical point of view as well: this is the only source of international law that may be applied in respect of certain state on the imperative basis – without need of ratification or other consent on applicability on behalf of the state.

The article analyzes the International Labour Organization 1998 Declaration on Fundamental Principles and Rights at Work, as well as labour law and international law doctrine and international courts practice with a view to point out the jus cogens norms in the international labour law. A conclusion is made that ILO Declaration 1998 doesn’t make a clear statement about the four fundamental principles therein as having the jus cogens status.

Despite the great variety of opinions concerning the contents of jus cogens norms related to labour rights, it is suggested that only norms that have achieved a clear confirmation as being jus cogens by the international courts, may be considered jus cogens. Such norms are the prohibition of slavery (covering the extreme forms of forced labour and child labour) and prohibition of racial discrimination at work. Other rights and principles, however important they would be, up to now may only be considered as “candidates” for achieving the jus cogens status.

Ключевые слова: international labour organization, international labour law, jus cogens