by Cher Weixia Chen. Leiden, Netherlands: Brill, Martinus Nijhoff Publishers, 2011. 208pp. Paper $103. ISBN: 9789004203075.Reviewed by Jennifer Woodward, Department of Political Science, University at Albany, SUNY. Email: jwoodward [at] albany.edu
pp.388-390
Do domestic legal systems comply with international labor law and, if so, how? Are international rules and standards not only enforceable, but well enforced? Does international law matter to international relations or domestic politics? These are the questions Cher Weixia Chen asks in Compliance and Compromise: the Jurisprudence of Gender Pay Equity. This book provides an important international perspective to our traditionally domestic focus on pay equity. Chen takes a transnational legal process approach through her focus on compliance as a process that may change over time (p.8). As such she explores the transnational legal process of “internalization” of legal norms via legislative bodies in chapter three, the “interpretation” of international legal norms via domestic courts in chapter four, and the “interactions” between institutions – horizontally and vertically – in chapter five (p.109). Yet, the book’s greatest strength is its more policy oriented and practical focus on recommendations for legislative and judicial incorporation of international human rights law.
Framing law within the context of international legal compromise, Compliance and Compromise examines how countries comply with International Labor Organization Convention No. 100 on Equal Remuneration regarding gender pay equity. Chen defines compliance “as a status of being in conformity with the established international standard” and categorizes countries into high, medium, and low levels of compliance. In general, Chen argues that the International Labor Organization has “accomplished some measure of success in promoting gender pay equity” as the law serves as a symbolic and moral constraint on state behavior (p.35).
Chapter one provides a basic introduction to the literature and the research conducted. Both quantitative and comparative qualitative methods are used and Chen draws on legal, political science, economic, sociological, anthropology, philosophy, and gender study literatures as she detects causation using process tracing (p.10). Chen hypothesizes that 1) domestic legal systems comply with International Labor Organization Convention No. 100 on Equal Remuneration and 2) compliance occurs through a transnational legal process. She argues that countries ratifying International Labor Organization Convention No. 100 on Equal Remuneration gradually comply with the law through a transnational legal process and therefore ratification of international legal treaties improves labor conditions (p.10). In the end, Chen provides an hopeful, but realistic view about international law as more than simply symbolic actions that nations [*385] make. Rather, they impose obligations on nations to comply, albeit with compromise (hence the book’s title Compliance and Compromise) (p.76).
In the second chapter, a more in-depth overview of gender pay inequality, Chen discusses the causes and international standards for resolving different rates in pay for men and women. Next, Chen explores whether states that ratified International Labor Organization Convention No. 100 on Equal Remuneration complied with international and regional treaties through their legislative and judicial systems. The third and fourth chapters focus on how legislative and judicial branches have internalized and interpreted the law. In general, Chen finds that while there is a great deal of variation in both legislative and judicial compliance between ratifying countries, commonly states pass legislation in accordance with the International Labor Organization Convention No. 100 on Equal Remuneration and high courts in these countries largely endorse the principle of equal pay, although they have failed to fully develop pay equity law in a way that fully complies with the law (pp.39, 82, 107).
In chapter five, Chen explores how the law interacts on horizontal and vertical levels before comparing the two countries with the best (Canada) and worst (Japan) levels of compliance in chapter six. The real puzzle is Japan, which is presented in chapter five as an “easy case” of a country willing to comply with the International Labor Organization in ratifying and interpreting international law. Why, then, does Japan disagree with the International Labor Organization on the issue of pay equality – so much so that it is discussed in chapter six as the highly industrial country with the lowest level of compliance with International Labor Organization Convention No. 100 on Equal Remuneration? Meanwhile, Canada is argued to have mostly achieved equal pay for equal work via its legislative and judicial actions (p.141).
The book’s primary purpose is to measure compliance with International Labor Organization Convention No. 100 on Equal Remuneration, rather than exploring the need for pay equity law or why puzzling cases like Japan exist. Chen does summarize the main causes for the disparity in pay ‒ few lawsuits in Japan, cultural factors, and a reliance on voluntary compliance are listed among the factors leading to low levels of compliance and lack of support for pay equity ‒ but her acknowledgement that she is not delving into them or other factors that effect compliance only makes the reader more interested in learning what cultural, historical, and other reasons may lead to the levels of compliance and compromises that countries make while complying with the law. While Chen’s book is filled with different examples and causes for varying levels of compliance, and case studies of Canada and Japan provide some of this context, the book opens up the possibility for future in-depth studies of how legislatures, judicial officials and judges, agencies, and other entities make decisions on how and whether to comply with international human rights law. In other words, the book leaves the reader wanting to learn more about what is happening on the ground in-depth in each of the ratifying countries she discusses. [*386]
Compliance and Compromise provides an excellent overview and examples in the variation in enforcement mechanisms that covers everything from the three main concepts of equal pay (the more common and narrower equal pay for equal work, equal pay for similar work, and finally the less frequent and more progressive, equal pay for work of equal value) to how claims can be evaluated and resolved. However, one area that could have been further developed is the analysis of the inconsistencies of domestic legislation and legal systems as they relate to these concepts as well as the problems these inconsistencies pose in compliance with international law. An explanation more grounded in scholarly literature and further engagement with how equal pay progresses or regresses from one stage to another in relation to international and domestic laws (p.63) would have made the book more appealing to academic audiences.
Compliance and Compromise would be an appropriate starting point for legal professionals and policymakers looking to place pay equity cases and policy decisions into an international context. Chen provides both specific recommendations for increasing compliance and encourages more broad solutions, such as voluntary measures to reduce the wage gap, raising awareness about international labor laws, and capacity building (pp.77-78). At times the research design and analysis feels as if it is confining Chen from providing additional insights and recommendations that her experience with policymaking and legal institutions may have provided her. Indeed, her recommendations for how to increase domestic compliance with international law (such as creating a more complete online international law library or incorporating international law into required law school curriculum and bar exams) and her insights into why different countries may have higher levels of compliance (such as Canada having an agency devoted to the issue of pay equity while Japan does not) present important implications that she could have highlighted further.
Scholars interested in international law, human rights, as well as gender and employment equity will find Compliance and Compromise a useful addition to their library as well. Those studying issues of pay equity in the context of Canada and Japan should not miss chapter six. While sections of the text might serve as a reference point for undergraduate lectures on international law, professors are more likely to find the book useful at the graduate level. The book itself is short and, at times, leaves the academic reader wanting more in-depth explanation as well as a more active engagement with the literature she cites in her bibliography. However, Chen should be commended for raising important questions regarding domestic compliance with international law, the roles of legislative and judicial branches in the process, and her recommendations for increased compliance in international law. In the end, the overview of compliance with International Labor Organization Convention No. 100 on Equal Remuneration and recommendations for increasing domestic compliance with international law make Compliance and Compromise an important resource for policymakers.
Copyright 2013 by the Author, Jennifer Woodward.
