Who owns whom?

The distinction between human resource management, human rights, and labor issues is not at all clean and perhaps it is not even necessary. This fact is becoming increasingly apparent as the world’s economy becomes nationally and culturally integrated and “first-world” nations are confronted with many of the problems they dealt with and made decisions on a century or more ago, such as child labor.
Read the following excerpt from an article by Diller, J. M. & Levy, D.A. (1997). The American Journal of International Law, 91(4), 663-696. “Well-established rules of international law compel the harmonization of international trade rules with fundamental human rights and labor norms that prohibit the most exploitative, or extreme, forms of child labor. Prohibitions against certain forms of child labor are rooted in peremptory norms that permit no derogation by treaty. These jus cogens prohibitions apply to protect children as well as adults, and involve slavery, slavery-like practices, the sale of children, trafficking in children, forced or compulsory labor (including debt bondage) and labor under certain conditions that constitute torture. Other forms of child labor that constitute cruel, inhuman, or degrading treatment or arbitrary detention arguably also come within the scope of jus cogens. Where instances of child labor implicate these fundamental norms, international law requires that treaty obligations, such as trade undertakings, be maintained only to the extent of consistency with these norms.
Certain extreme forms of child labor, which are not necessarily performed under threat or coercion, may not be prohibited by peremptory norms. These forms include employment likely to be hazardous, to interfere with the child's education, or to be harmful to the child's health or development. Prohibitions on such conduct are based in obligations under international human rights and labor conventions, including the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and ILO Conventions dealing with the employment of children in particular labor sectors and under certain conditions. Various regional treaties in the African, European and interAmerican systems stipulate obligations consistent with those at the universal level. The prohibitions apply whether the offensive conduct is performed by an act or omission of state officials or agents, or by private actors who are not deterred or punished by the state.
There is parity among states on two bases as regards most of these prohibitions. Firstly, many states hold common commitments under the multilateral regime of GATT/WTO agreements and under multilateral lawmaking treaties that either explicitly or implicitly prohibit such extreme forms of child labor. Secondly, nearly complete parity exists at the level of charter memberships; that is, nearly all member states of the WTO also share commitments as members of the ILO and the United Nations. For all three international organizations, improvement in the standard of living is a raison d'etre, and to that end they have entered into cooperative agreements with each other.
The extent to which GATT/WTO parties also share commitments under the international human rights and labor systems calls for harmonization of the two spheres of law. Trade rules, which partake of both international contract law and treaty law, should be interpreted and implemented consistently with the treaties that create fundamental norms on human rights and labor standards. Such harmonization can be justified on two grounds. Firstly, the "ordinary meaning" of the GATT regime in light of its object and purpose reveals that the treaty is not intended to override fundamental human rights protections like those involved in international prohibitions of extreme forms of child labor. Secondly, as an elaboration of Articles 55 and 56 of the UN Charter, the customary and Charter-based law of human rights and fundamental labor standards, supplemented by treaty law, can be read into the obligations of UN members for purposes of Article 103 of the Charter. Under Article 103, the Charter obligations of UN members prevail in the event of a conflict with obligations under any other international agreement. Maintenance of the international trade regime to the extent of consistency with international obligations respecting extreme forms of child labor may require WTO contracting parties to ensure that specific products imported for their domestic markets, or exported from their territory, are not produced with such child labor. Such restrictions, if applied in a standardized fashion, need not interfere with adherence to the fundamental principles of the GATT/WTO framework: nondiscrimination in imports between contracting parties, and between imports and domestic production, and national treatment. Two of the exceptions under Article XX can be interpreted in context to permit such restrictions: Article XX(b), so long as the restriction is found to be "necessary to protect human. . . life or health" and is not a means of "arbitrary or unjustifiable discrimination" or a "disguised restriction on international trade"; and, by its terms, Article XX(h), which exempts otherwise inconsistent obligations deriving from labor-related provisions in intergovernmental commodity agreements, including child labor prohibitions. As a practical matter, Article XIII on accession of new members has proved useful as a negotiating lever in advancing certain labor laws in countries seeking to join the WTO. However, little support exists for interpretations permitting such restrictions on imports within the antidumping framework of Article VI of the GATT, the 1994 Subsidies Agreement, the escape clause of Article XIX, or the exception for restrictions "relating to the products of prison labor" under Article XX(e) . Even the prospects for claims of nullification or impairment of benefits under Article XXIII appear problematic, in view of the new WTO Dispute Settlement Understanding. In addition to case-by-case interpretation of a harmonization principle, the adoption of a collective interpretation under Article XX could promote standardization of implementation. With respect to unilateral acts under U.S. law, prohibitions on the use of extreme forms of child labor as a condition for the extension of benefits under a GSP program appear consistent with international trade rules. A similarly grounded ban on imports of products under section 307 of the Tariff Act of 1930, however, would face challenge as an inconsistent "disguised restriction on international trade," as would the use of U.S. trade remedies. In the investment arena, regional trade and bilateral investment agreements may contribute to the development of a binding international treaty governing investment. In that regard, further attention should be paid to formulating and interpreting such agreements consistently with international prohibitions on extreme forms of child labor. The treatment-of-labor laws, specifically child labor prohibitions, have yet to appear consistently, or become standardized, in commercial treaty practice or the investment laws of the host or home state. The United States is virtually alone in imposing obligations based on human and labor rights in regulating aspects of the behavior of its nationals who invest in foreign markets.
International peremptory and treaty prohibitions of extreme forms of child labor are being incorporated, with increasing standardization, in nonlegislative and private sector initiatives. Such initiatives, which serve as an important indicator of the will of the international community, can contribute, in the long run, to the development of international investment law. Notable efforts include the U.S. Government's nonbinding Model Business Principles, codes of conduct promulgated by investor corporations, model business codes introduced by private organizations, and labeling programs sponsored by private interests, often in cooperation with exporting industries and governments.
As specialized treaty regimes grow in number in response to the rapid growth in international relations in many areas, the flexibility and application of rules requiring harmonization of treaty obligations must also be expanded. The aim of these rules should be to facilitate the international regulation of specialized activity, such as trade and investment, consistently with general principles and fundamental norms of international law. In the end, harmonization will achieve the common aim of international trade, human rights, and labor law: improvement in the standard of living and wellbeing of the human race.”
As you can see from the above passage, the World Trade Organization (WTO), and the General Agreement on Taxes and Tariffs (GATT), as well the United Nations, the World Bank and the International Monetary Fund, are all important to the future of Human Resources and Human Rights around the globe. Sorry folks, we are no longer living in a world where the only thing that matters is what happens to members of just our family, friends and community. We are (all human kind) increasingly interdependent and whether our collective lives get better or worse is for us to determine.

Psychological ownership and real ownership
Psychological ownership has recently been discussed in the organizational (Pierce, Kostova and Dirks, (2001) literature. The ownership this article refers to is the sense of “ownership” gradually developed by individuals for the company at which they work. What the article does not explore is the opposite notion, that is, the tendency for those in control of organizations to see the employees of that organization as "their property".
When an organization hires a person to perform a job, that person signs away a large percentage of his or her time, expertise and energy. The individual, in a sense, becomes the property of the organization, a human resource equivalent of other items of inventory. When a chemical scientist invents a new pill, he or she usually does so for a giant corporation, giving the distinction of inventor to the organization itself (Mueller & Dyerson, 1999).
How can an organization own a person’s ideas, unless it owns the person? And how can an organization own a person? Organizations have long owned the people who work for them. The association has variously been described as employer-employee, principal-agent, boss-hired hand, supervisor-subordinate. If we are referring to mill towns in the mining and textile industries, it could be argued that the company’s owned not just those who worked for them, but their entire families, even their unborn children. In modern society, it is a myth that human beings are free-standing entities. On the continuum from slave to free agent, most people in democratic, capitalistic societies are clearly somewhere in the middle, at times closer to slave and at others, closer to free agent (Pescosolido & Rubin, 2000).
But, you say, people are paid for their services, for their commitment to the organization. How is that different from saying that they have sold part or in some cases almost all of themselves to the company? It is only a matter of semantics. As long as the organization to which a person has sold him or herself in part or in whole, operates in that person’s best interest, there is no problem, but in the case where the organization buys part of the person and proceeds to violate that part of the person, we most definitely have a moral issue, if not a legal one.
Am I more concerned with the organization’s violation of the individual employee than I am the individual employee’s tendency to be disloyal or disruptive to the offices of the organization? I am, and it is because of the relative power distance between the two. When entire families were owned by mining companies or by textile mills, who was more likely to exploit and who most likely to be exploited? The situation only changes by a matter of a few degrees when you consider the unbalanced nature of loyalty expectations, indeed of employment-at-will arrangements. People who worked in company towns did not even have discursive control over their own perceptions of their relationship to the company (Steinberg, 1999). That is, the company could always trump their claims of injustice by reminding them, and anyone else interested, that if it were not for the company, the employee would not have a place to live or a place to buy their groceries and so on.
When we are relatively free, as in the case of say a twenty-something female, living on her own, employed at the mall dispensing yogurt and soft drinks in the food court, our freedom also comes at a price. The organization compensates us for giving up some of our freedom to them, but we pay in other ways when we choose not to take, or cannot find, employment with another company. On the other hand, she may actually have more freedom (say flexibility of schedule, dress code, attitude, and the like), than she might have if she were employed by a larger, more demanding, bureaucratic organization. Her wages are lower at the soda shop, but even at that, the company that employs her, defies her to leave, asking her to prove any claim she might have that she is worth more on the open market. Until she overcomes inertia and a certain type of fear, she will remain there, operating under the assumption that the company is right about her lack of viable employment options. When jobs are in short supply, the company looks “more right” than when jobs are easily obtained. If she gets trained in a skill, say manicuring, her opportunities may well improve. She is thus, you might say, able to more easily “buy herself back” from the company that owns her.
It is offensive to compare modern employment to slavery, just as it would be offensive to compare the “plight” of the heir of a great fortune to that of the offspring of a homeless couple. But it does not seem entirely wrong to claim that even free-agency employment is in the same sphere of life as slavery or conscription. They both have to do with one’s relinquishment of self in whole or part to what is most often a more powerful, external force, the institution that employs them. To varying degrees we all become agents to principals, and in some instances we are able to serve as both agent and principal at the same time. If I own a Wendy’s franchise, I obligate myself as agent to the principal Wendy’s corporation, while at the same time I may be the principal to a number of employees, who are “agents of mine”.
The reason I am framing this matter of one person being somehow owned by another, is to argue that when the “owner” is relatively powerful over the life outcomes of the person he or she “owns”, their relationship becomes fertile ground for exploitation and abuse. Does it always happen? No. Is it always avoidable? Clearly not.
To tie this argument to our discussion of various forms of rights, the individual who is playing the role of agent is, all other things being equal, more likely to give up rights than he or she is apt to limit the rights of the principal. [It occurs to me that I should remind us all at this point that principal is a term used in economics to mean the entity whose interests are being served by the agent.] The agent gives up power (rights?) over his or her life in terms of time, energy, expertise, alternative means of income, in exchange for remuneration.
Mayer (2000) argues that individual agents have no right to workplace democracy. The only right the agent has is to sufficient power to maintain a balanced relationship with the principal, in terms of being able to demand that the remuneration he or she gets from the principal will be commensurate with the value of his or her efforts as an agent. Notice though that in the absence of labor market forces, unions, or a clear inbalance in favor of the agent in the relationship (such as a labor market where suitable qualified employees are difficult to find), the principal will always be at a distinct advantage.
We have seen an economy where real wages have declined for thirty years, while employment levels have been up and down like a yo yo, which seems to indicate that in the current economy, wages are only loosely connected to employment levels, if they are at all. Individual agents have always suffered from the fact that some if not most of their “employment alternatives” were mythical, that is, their mobility is often effectively blocked (by geography, transportation, information about the jobs, etc) from finding and applying for every job for which they might be qualified. In an economy where wages appear to not be tied to employment levels, it is not just individual agents who are at a disadvantage, but it could be argued that all or almost all agents are in a position to be exploited by principals.
The types of potential exploitation to which I am referring includes: limited commitment from the employer to the individual’s career, abandonment of entire communities of employees for “cheaper” communities (e.g. Michigan for Mexico or Mexico for Thailand), or simply wages too low for people to actually live on. While it may be argued that workers do not have a right to workplace democracy, can it also be argued that they do not have a right to fair remuneration for the parts of themselves they are “selling” to the employer, or a right to consider the employment contract to be at least in part based on their ability, good will and good effort?

References

Mayer, R. (2000). Is there a moral right to workplace democracy? Social Theory and Practice, 26(2), 301-325.

Mueller, F. & Dyerson, R. (1999). Expert humans or expert organizations? Organization Studies, 20(2), 225-256.

Pierce, J.L., Kostova, T. & Dirks, K.T. (2001). Toward a theory of psychological ownership in organization. Management Review, 26(2), 298-310.

Pescosolido, B.A. & Rubin, B.A. (2000). The web of group affiliations revisited: Social life, postmodernism, and sociology, American Sociological Review, 52-76.

Steinberg, M.W. (1999). The talk and back talk of collective action: A dialogic analysis of repertoires of discourse among nineteenth-century English cotton spinners. The American Journal of Sociology, 105(3), 736-790.