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Human Rights at Work

United States Labour Law
in the Context of International Labour Law

by Lee Swepston ©

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All the ILO Conventions mentioned in this article may be found in the ILOLEX data base, on the ILO site: http://www.ilo.org


ILO Labour Standards and general human rights

International labour law is very much a part of international human rights law. It is dealt with principally but not exclusively by the ILO. It is also dealt with under broader international human rights law, which is in turn based on the ILO standards that have been adopted over the years.

The conference at which this paper was presented took place at Cornell Universityin 2001. It was characterized by a discussion of the International Labour Organisation's 'dental characteristics': Does the ILO have teeth? Could it get teeth? Should we let someone else have teeth for our mouth?

It is an interesting discussion, and one that has been going on for a while. But in fact no international organization is likely in the near future to adopt a sanctions-based approach to violations of labour standards, unless it be in such a severe case as Myanmar. The ILO will just have to keep 'gumming' violators and letting them feel the effects more gradually, with the support of our partners in the United States and elsewhere.

Almost all the relevant United Nations human rights standards were adopted after the ILO Conventions on the four basic human rights subjects of concern to the ILO. The two principal ILO Conventions on freedom of association are the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

Freedom from forced labour is the second of the major human rights concerns of the ILO, and also concerns both general human rights and the more specific labour rights. It is embodied in the Forced Labour Convention, 1930 (No. 29) and the Abolition of Forced Labour Convention, 1957 (No.105).

The theme of equality has been the subject of a number of international human rights instruments. The ILO's principal Conventions on it are the Equal Remuneration Convention (No. 100), and Discrimination (Employment and Occupation) Convention (No.111).

Finally, the basic standards include the theme of child labour, covered principally in the Minimum Age Convention, 1973 (No. 138), and the Worst Forms of Child Labour Convention, 1999 (No.182). But these four categories are only the fundamental human rights Conventions of the ILO, forming part of a much larger body of law.

What does international labour law cover?

International labor law is a wide and interesting field, which until lately has usually been ignored by writers on international law generally and on human rights. It was in fact the first international law and human rights subject, with the campaign in the 1830s to eliminate slavery, and it is one of the fundamental subjects of international law.

These days the ILO is calling the basic content of international labour law 'Decent Work'. This is of course a new expression for the ILO's traditional rallying cry of social justice1 , with some new elements. Coined by ILO Director-General Juan Somavia in his first report after being elected to lead the ILO, it is meant to address the changing environment for labour in the broader framework of globalization, and the basic rules that should govern working life.

Why do we need a new way of looking at the requirements of international labour law? Even though globalization has resulted in some real gains in the world's economies, it has also left behind very many of the world's working people, including the small employers and entrepreneurs whose success is essential for economic development around the world. Unemployment has risen, and conditions of work have worsened especially in areas not directly caught up in export industries. So one of the ILO's goals in its legal and promotional work is to ensure that no one is left behind - or at least to reduce the negative impact of globalization on them.

The international legal context in which we are operating is that the labour law of most of the world is based on ILO standards. The standards were often incorporated directly into the labour legislation of newly independent countries that wanted to separate themselves from their colonial masters in a period beginning in the 1960s. We often find large sections of ILO Conventions forming the bulk of labour codes around the world. As these countries became more sophisticated, they again turned to the ILO for help in reforming and updating their standards, and now at any one time the ILO is usually working with 40 or 50 countries on their labour legislation. Needless to say, the ILO's advice on labour legislation is either based directly on its standards, or at least ensures that its advice is consistent with those standards.

In some cases the influence may be the other way around. When the ILO adopts new standards, its basis is the best national standards worldwide, trying not to establish international standards that are too high for developing countries to ratify them. Thus the international standards are based on the best practice and most recent trends in its member States.

International labour law is not much known in the United States, as the US system works very much in its own context. The fact that the US system is different has led to the decision of the US Government not to ratify most of the ILO's basic human rights standards, though the ILO and the US Government have been working on some of them. Among them, the Discrimination (Employment and Occupation) Convention, 1958 (No.111) has been before the Senate for advice and approval for ratification for some time now, and it will be interesting to see whether the Bush administration will renew the proposal to ratify it.

women sewing, ©ILO archives

Scholars of the ILO will go back further, but we can begin to discuss the content of international labour law with the ILO Constitution adopted in 1919. It was updated in the 1944 Declaration of Philadelphia - a fundamental source of international human rights - which was incorporated into the Constitution in 1946.

The Constitution includes the basic expressions of human rights - though the term was not in use then - which includes equal pay for work of equal value, freedom from discrimination on the basis of race, creed and sex, and of course freedom of association.

Beyond the Constitution, the ILO's traditional method of addressing social problems is through international labour standards, or Conventions and Recommendations adopted by the International Labour Conference. This body of standards is sometimes characterized as the International Labour Code, though the ILO's standard-setting is in fact much richer than any one country's labour code. These international instruments do of course lay down requirements of international law which are similar to the content of national labour codes - hours of work, minimum wages, social security systems, safety and health and the like. But they also contain guidance for larger questions of social policy that do not normally appear in labour law. These include such matters as dedicating governments to the concept of full, productive and freely-chosen employment2, the needs that should be met by statistical systems3, the virtues of good labour administration4 and the requirements for labour inspectorates5, and many other questions.


Migrant Workers]

Now a rapid look at the basic contents of ILO standards, forming international labour law.

I. Basic rights

The ILO has always seen several categories of rights as fundamental for all workers. This has been progressively formalized over the last 5 years. There are the four categories of rights mentioned above, all based on concepts to be found in the ILO Constitution. There are two Conventions considered as fundamental for each of the basic rights.

Forced labour:

  • Forced Labour Convention, 1930 (No. 29)
  • Abolition of Forced Labour Convention, 1958 (No. 105)

The Forced Labour Convention, adopted shortly after the League of Nations adopted the Slavery Convention of 1926, laid down the labour concerns necessary for protection against this most basic of human rights problems6. This Convention prohibits all forced or compulsory labour, with a few common-sense exceptions (compulsory military service, prison labour in most situations, emergencies, etc.). After World War II, and in the face of the horror of the concentration camps and the mass forced labour programmes of the Communist States, the ILO adopted the Abolition of Forced Labour Convention (No.105)7 in 1957, supplementing the basic protection laid down in Convention No. 29. Convention No. 105 prohibits forced labour for political or development purposes, as a punishment for expressing political opinions or participating in strikes, and in other related circumstances.

Freedom of Association and Collective Bargaining:

  • Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87)
  • Right to Organize and Collective Bargaining Convention, 1949 (No. 98)

Convention No. 87 establishes principles and guarantees concerning the right to organize vis-à-vis the State, and Convention No. 98 protects workers and their organizations especially from employers. Convention No. 98 also promotes voluntary collective bargaining to determine conditions of employment. The two instruments taken together contain the essential elements for the creation, administration and functioning of employers' and workers' organizations. These two Conventions were adopted just before and just after the adoption of the Universal Declaration of Human Rights in December 1948, and well before the United Nations had begun to adopt Conventions. Indeed, in addition to taking up the theme of freedom of association and the right to organize in terms compatible with ILO standards, there is an explicit reference to Convention No. 87 in both 1966 international human rights Covenants (article 23(2) of the Civil and Political Rights Covenant, and article 8(3) of the Economic, Social and Cultural Rights Covenant):

3. Nothing in this article shall authorize the States Parties to the International Labour Organization Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as to prejudice the guarantees provided for in that Convention.

Discrimination

  • Equal Remuneration Convention, 1951 (No.100
  • )
  • Discrimination (Employment and Occupation) Convention, 1958 (No.111)

In 1951 the International Labour Conference adopted the Equal Remuneration Convention (No.100), to protect the right of women and men to equal remuneration for work of equal value, going beyond the principle of equal pay for equal work laid down in 1948 in the Universal Declaration of Human Rights. It went on in 1958 to adopt the Discrimination (Employment and Occupation) Convention (No.111)8, which laid down the right to protection against discrimination in the world of work, on the basis of a wide range of grounds. These standards were then supplemented by the United Nations conventions which also up the theme of equality in the broader context, including labour: the International Convention on the Elimination of all Forms of Racial Discrimination (1965), the International Covenant on Economic, Social and Culltural Rights (1966), the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973), and the Convention on the Elimination of All Forms of Discrimination against Women, adopted in 1979.

Child labour

  • Minimum Age Convention, 1973 (No. 138)
  • Worst Forms of Child Labour Convention, 1999 (No. 182)

The international community, including the ILO, was slower to adopt human rights standards concerning child labour, the fourth of the ILO's principal human rights concerns. The ILO had traditionally treated child labour as a technical subject, and as of its first Conference in 1919 adopted a long series of instruments regulating the age of entry into employment and work of young people in various economic sectors. This way of dealing with the subject culminated in the Minimum Age Convention (No.138), adopted in 1973. The adoption of the UN Convention on the Right of the Child in 1989 was crucial in giving expression in a convention to the notion that the rights of children, including the right to protection against economic exploitation, fell properly into the human rights sphere. The ILO filled the gap in its own human rights standards on child labour by adopting the Worst Forms of Child Labour Convention (No.182) in 1999, and this has followed the lead of the Convention on the Rights of the Child in gathering ratifications faster than any other in ILO history.

These rights were endorsed as fundamental by the Social Summit in Copenhagen in 1995, which stated that all States should ratify these standards, and apply them if they could not yet ratify them. The ILO then launched a ratification campaign for them, and more than 350 ratifications of these 8 Conventions have been registered since then, with many more in the pipeline. Those on freedom of association, forced labour, and discrimination have [more than 133 ratifications each, with Convention No. 29 having received the most at 1559, meaning that they are approaching virtually universal ratification fairly rapidly. This also puts them among the most ratified international human rights standards. By now, 35 countries have ratified all eight, 51 have ratified seven of eight, etc. On child labour, the ILO had not earlier promoted Convention No. 138 aggressively, as there was a feeling among the constituents that its technical nature made it difficult to ratify, but since 1995 it has gone from under 40 to 103 with assiduous work on promotion by the Office and a real effort by the member States. In 1999, the ILO completed its human rights panoply with the adoption of Convention No. 182, which has already received 54 ratifications, the fastest ratifications pace of any Convention the ILO has ever adopted.

Beginning in 1994, the ILO began reflecting in its 75th year on updating and revitalizing a standards system that had grown heavy. The Governing Body and the Conference discussed a possible 'social clause'10, as well as the possibility of strengthening the supervisory system to allow complaints against countries that had not ratified Conventions11 , but neither of these proposals gathered sufficient support. But the ILO did come up with an innovative new approach, which the US government and employers especially supported enthusiastically. This became the Declaration on Fundamental Principles and Rights at Work.

The Declaration is a pledge by all Members to 'respect, promote and realize in good faith' the principles and rights relating to:

  1. Freedom of association and the effective recognition of the right to collective bargaining;
  2. The elimination of all forms of forced or compulsory labour;
  3. The effective abolition of child labour; and
  4. The elimination of discrimination in respect of employment and occupation.

Under the Declaration's follow-up mechanism, governments that have not ratified all the ILO's fundamental Conventions on each of these subjects - those listed above - must provide annual reports indicating how they are implementing the principles involved. An annual Global Report on one of the four principles concerned is to be prepared by the Director-General to examine how it is being implemented and to analyse ILO assistance. The result is to be an Action Plan adopted at each November Session of the ILO Governing Body, to serve as the basis for targeted ILO assistance to correct the problems encountered.

The innovation is that the Declaration is a purely promotional and not a supervisory instrument. Reports under it are not a new form of complaints mechanism, but a basis for finding out what is happening in the world in these four areas, and for carrying out another new feature of the Declaration: it also contains an obligation for ILO to assist its Members in reaching these goals.

The ILO has now had three complete rounds of reporting and discussion. Countries that had not ratified some of the Conventions reported, and those reports have been published and examined by a new group of independent experts in January-February of each year since 200012. The Governing Body discuss this compilation in its March session each year, and makes comments on it. The first Global Report, on freedom of association and collective bargaining, was published in the spring of 2000, and was discussed in the Conference in June 2000, and the last part of the first cycle took place with the discussion of the Action Plan on freedom of association in the Governing Body in November 2000. The second report, which dealt with forced labour, was discussed by the Conference in June 2001, followed by reports in successive years on child labour (2002) and discrimination (2003), before starting the cycle again.

II. Other standards

The standards adopted by the ILO, and by others, cover a great number of subjects other than fundamental rights. The ILO has over time adopted 183 Convention and 191 Recommendations, on all the matters that would be covered by a national labor code, and beyond. A brief reference to most of these subjects follows.

The ILO has regularly undertaken thorough reviews of its standards, the only international organization to do so. The latest such review, completed in 2002, has identified 71 Conventions as thoroughly up to date and worth promoting, though many others remain the highest standards that developing countries have yet been able to ratify. The ILO has also recently adopted a Constitutional amendment that will allow it to abrogate out-of-date Conventions that should be removed from the books, and is awaiting sufficient ratifications for it to enter into force, but in the meantime has 'withdrawn' several older Conventions that never received sufficient ratifications to enter into force.

1. Employment

Many Conventions have been adopted in the field of employment. The most important is the Employment Policy Convention, 1964 (No. 122), under which ratifying States have to declare and pursue, as a major goal, an active policy designed to promote full, productive and freely chosen employment. Other ILO instruments deal with the maintenance of employment services (Convention No. 88 of 1948), the abolition of fee-charging employment agencies (Convention No. 96 of 1949) and private employment agencies (Convention No. 181 of 1997), vocational guidance and training (Convention No. 142 of 1975) and vocational rehabilitation and employment of the disabled (Convention No.159 of 1983). Standards relating to termination of employment by employers, originally dealt with in a Recommendation (No. 119) of 1963, are now laid down in a Convention (No.158) and a Recommendation (No.166) of 1982.

2. Wages

While the level of wages cannot be regulated internationally, various Conventions and Recommendations concerning minimum wage fixing machinery were adopted in 1928 and 1951. The most recent instruments on this question - Convention No.131 and Recommendation No. 135 of 1970 - provide for a system of minimum wages to cover all groups of wage earners whose terms of employment are such that coverage would be appropriate. Protection for the payment of wages (Convention No. 95) and the question of labour clauses in public contracts (Convention No. 94) were covered by instruments adopted in 1949.

3. General Conditions of Work

Working time. The first Convention adopted by the ILO, in 1919, was the Hours of Work (Industry) Convention (No.1), which provided that, subject to exceptions, working hours should not exceed eight in the day and 48 in the week. It was followed by a number of other standards on related subjects over the years. A Convention (No. 171) and a Recommendation (No. 178) of 1990 lay down conditions to be observed in regard to night work, including limitation of duration of such work and rest period. They replace a number of earlier Conventions which prohibited night work for women, now an outmoded concept (see below).

4. Occupational Safety and Health

safety in the workplace, ©ILO

A large number of instruments deal with safety and health at work. Some concern the general framework for policy, legislation and implementation of measures designed to secure occupational safety and health (Convention No.155 and Recommendation No. 164 of 1981), the establishment of occupational health services (Convention No. 161 and Recommendation No. 171 of 1985) and prevention of major industrial accidents (Convention No.174 and Recommendation No. 181 of 1993). Others deal with protection against risks or processes, such as radiation, benzene, carcinogenic agents or substances, asbestos, chemicals, dangerous machinery, air pollution, noise and vibration, or establishing health and safety standards for particular branches of activity, such as commerce and offices, the construction industry, dock work and work at sea. The Safety and Health in Mines Convention (No.176)13 was adopted in 1995, and a new instrument on safety and health in agriculture is likely to be adopted in 2001.

Standards have also been established to provide compensation for injury due to occupational accidents and diseases. The most recent texts on this question are Convention No. 121 and Recommendation No. 121 of 1964 (with an expanded list of occupational diseases adopted in 1980).

Under a new 'integrated approach', the totality of ILO action on occupational safety and health will be discussed in the International Labour Conference in 2003, and will include an overall review of standards on the subject and how they relate to operational activities of the ILO.

5. Social Security

Between 1919 and 1936, a series of instruments based on the concept of social insurance was adopted to protect given categories of workers against particular contingencies. Since 1944, the wider concept of social security has been adopted, aimed at providing a basic income to all in need of such protection, as well as comprehensive medical care. Comprehensive standards based on that approach were laid down in the Social Security (Minimum Standards) Convention, 1952 (No. 02). It deals with nine branches of social security: medical care, sickness benefit, unemployment benefit, old-age, invalidity and survivors' benefits, employment injury benefit, family benefit and maternity benefit. Since then, further instruments establishing more advanced standards have been adopted in respect of all these branches except family benefit (Conventions Nos. 121, 128, 130 and 168 of 1952, 1964, 1967 and 1988). The Maternity Protection Convention, 2000 (No. 183) is the most recent of these instruments. There is now a consensus in the ILO that these standards need review in the light of modern circumstances.

Standards have also been adopted with a view to ensuring equality of treatment of nationals and non-nationals in social security (Convention No. 118 of 1962 in respect of workmen's compensation for industrial accidents) and the maintenance of acquired rights and rights in course of acquisition in the nine branches of social security covered by Convention No. 102 (Convention No. 157 of 1982 and Recommendation No. 167 of 1983).

6. Social Policy

Several instruments relating to social policy as a whole were adopted (in particular the Social Policy (Basic Aims and Standards) Convention, No. 117 of 1962) to encourage governments to pursue systematic action in this field.

7. Industrial Relations

In addition to the adoption of the Conventions on freedom of association, described above, the ILO has dealt - mainly in Recommendations - with various aspects of industrial relations, such as voluntary conciliation and arbitration, cooperation at the level of the undertaking, consultation at the industrial and national levels and communications and examination of grievances in the undertaking.

8. Employment of Women

International action in this regard has been guided by two main considerations. Originally, the desire to protect women against excessively arduous conditions of work was the ruling factor. Subsequently, this was supplemented and partly replaced by the concern to ensure equality of rights and of treatment between women and men. The basic ILO approach now is that women should be provided special protection only in so far as conditions of work place them specifically at risk with relation to reproduction.

One form of prohibition over the years has concerned night work for women14. In addition to a 1906 Convention adopted before the ILO was established, three ILO Conventions dealt with the subject (1919, 1934 and 1948), successive revisions rendering the standards more flexible. Nevertheless, most countries now consider these standards to be inconsistent with the principle of equality, and they have been widely denounced. A protocol to the 1948 Convention, adopted in 1990, permits more extensive derogations from the prohibition of night work by women. At the same time, the Conference adopted standards to regulate the conditions of night work for workers generally. Protective standards for women are also contained in the Conventions on maternity protection (No. 3 of 1919, No. 103 of 1952 and No. 183 of 2000) and on underground work in mines (No. 45 of 1935 - another Convention now considered as out of date by many countries), as well as in certain Conventions dealing with occupational safety and health (e.g., lead poisoning, benzene, maximum weight for the manual transport of loads).

9. Migrant Workers

The principal instruments are the Migration for Employment Convention (Revised), 1949 (No. 97), and the Migrant Workers (Supplementary Provisions) Convention. 1975 (No. 143). The former provides for assistance and information to migrants for employment, for regulation of recruitment, and for granting to lawful immigrants treatment not less favourable than that applied to nationals in respect of labour matters and social security. The latter provides for the suppression of trafficking in migrant workers and of illegal employment of such workers, and for measures to promote equality of opportunity and treatment of migrant workers lawfully within the national territory. Both Conventions are supplemented by Recommendations. Instruments relating to the protection of the rights of foreign workers in the field of social security have been referred to in section I above. In a General Survey of 1998, the Committee of Experts found that these instruments had such a great level of detail that many States could not ratify them, and those that had could not apply all their provisions. The ILO Experts found that many of the same concerns applied to the United Nations Convention on the same subject, which has not yet received sufficient ratifications to enter into force. The Experts proposed that consideration be given to revising them in the fairly near future.

10. Other Special Categories of Workers

In general, ILO Conventions apply to all workers falling within their scope, irrespective of nationality, and a number expressly state this. In other cases, however, Conventions or Recommendations have been adopted to deal with particular problems arising in various areas.

More than 50 Conventions and Recommendations deal with various aspects of employment and social security of seafarers. They are adopted through a special procedure aimed at ensuring participation of the representatives of seafarers and shipowners (as workers and employers in this sector are known in the ILO), and there are special conditions for their entry into force. One Convention adopted in 1976 (No.147)15 deals with the general question of minimum labour standards for merchant ships. Special standards have also been adopted in respect of fishermen and dockworkers.

A number of instruments deal with workers in agriculture, and extend to these workers the rules applying to industry, e.g., as regards rights of association and workmen's compensation (Conventions Nos.11 and 12 of 1921). Others take into account the special features of work in agriculture. Special standards have been adopted for plantation workers (Convention No.110 and Recommendation No. 110 of 1958 and a 1982 protocol to the Convention), and for tenants and sharecroppers (Recommendation No. 132 of 1968). A new Convention and Recommendation on safety and health in agriculture were adopted by the 2001 Session of the Conference.

Indigenous and tribal peoples are protected under the Indigenous and Tribal Peoples Convention, 1989 (No. 169), which replaced Convention No. 107 of 1957 on the same subject. These standards were adopted in collaboration with the UN and other interested specialized agencies, and deal comprehensively with the situation of these peoples. The earlier standards had an integrationist approach, which was eliminated when the Convention was revised. Convention No. 169 provides for action to protect the rights of these peoples and to guarantee respect for their integrity, based on the principles of consultation and participation. A series of earlier Conventions which sought to protect indigenous workers primarily in dependent territories in regard to recruiting, long-term contracts and penal sanctions for breaches of employment contracts and to lay down special standards for workers in non-metropolitan territories with respect to social policy, rights of association and labour inspection have now lost their pertinence and are proposed for abrogation.16

Reference may also be made to Convention No. 149 and Recommendation No.157 of 1977 relating to nursing personnel, to Convention No. 151 and Recommendation No. 159 of 1978 on labour relations in the public service, to Convention No. 175 and Recommendation No. 182 of 1994 concerning part-time workers, and to series of other instruments on particular categories of workers.

11. Labour Administration

General provisions on the organization and functions of labour administration are laid down in the Labour Administration Convention (No.150) and Recommendation (No. 158) of 1978. Standards relating to labour inspection are contained in Convention No. 81 of 1947 (for industry and commerce, with a protocol of 1995 to permit extension to the non-commercial services sector) and Convention No. 129 of 1969 (for agriculture) and their supplementary Recommendations. Labor statistics are dealt with in instruments of 1985 (Convention No. 160 and Recommendation No. 170), which revised earlier Conventions on the same subject

Arrangements for tripartite consultations at the national level with respect to ILO standards, and regarding ILO activities more generally, are provided for in Convention No. 144 and Recommendation No. 152 of 1976.

III. The Implementation of International Labour Standards

All these standards are of course of limited use if there is no way of supervising their implementation. The ILO has an extensive scheme for doing this.

Obligations in respect of standards. The ILO Constitution requires Member States to submit all ILO Conventions and Recommendations to their competent authorities (normally the legislature) within a year to 18 months of adoption, for consideration of implementing action and, in the case of Conventions, of ratification. This obligation - unique to the ILO - means that there is an opportunity for new ILO standards to be taken into account by national legislatures even if they are not in a position to ratify a Convention.

Under article 22 of the Constitution, all States must submit reports on the Conventions they have ratified, and also must send copies of those reports to the national employers' and workers' organizations. This is a very important provision, as it gives these other ILO constituents the possibility of supplementing or contradicting the governments' reports, and gives the ILO other sources of information it is allowed to take officially into account.

Governments must also supply reports not only on Conventions which they have ratified but also, when requested by the Governing Body, on unratified Conventions and on Recommendations, to indicate the position of their law and practice, the difficulties encountered and future prospects. The latter reports yield a 'General Survey' by the Committee of Experts.17

Supervisory system for ratified Conventions

The ILO has provided since its very beginning that there should be a system for supervising the manner in which governments apply the Conventions they have ratified. The principal bodies are the Committee of Experts on the Application of Conventions and Recommendations, and the Conference Committee on the Application of Standards. There are in addition various complaints mechanisms, as well as a special system for examining freedom of association even when the countries concerned have not ratified the Conventions.

Regular supervision. The Committee of Experts carries out the first part of the regular supervisory procedure. Originally, this was done directly by the Conference, but with the increasing complexity of the task the Conference adopted a resolution in 1926 under which the Governing Body established the Committee in time for it to begin its work in 1927.

The Committee has twenty members, from all parts of the world, to allow the Committee to apply the experience of different political, economic and social systems. The members are jurists and are appointed by the Governing Body on the proposal of the Director-General, in their personal capacities, regard being had to their expertise in the relevant fields. They are appointed for three?year terms, subject to renewal.

In accordance with the 1926 resolution, the Committee was created for the purpose of 'making the best and fullest use' of the reports submitted on ratified Conventions, and for 'securing such additional data as may be provided for in the forms approved by the Governing Body and found desirable to supplement that already available'.

When the Constitution was amended in 1946 to add new reporting obligations, the terms of reference of the Committee were also expanded by the Governing Body at its 103rd session (1947). Since then, they cover the examination of reports on ratified Conventions (art. 22 of the Constitution); reports on unratified Conventions and on Recommendations (art.19); information on submission of instruments to the competent national authorities (art.19); and reports and information on the application of Conventions in non?metropolitan territories (arts. 22 and 35).

The Committee is required to examine, with complete impartiality and objectivity, whether States comply with their obligations under the Constitution on standards?related matters, and in particular to examine the degree to which the legal and factual situation complies with the terms of ratified Conventions. The Committee has stated that in evaluating the application of Conventions:

'... its function is to determine whether the requirements of a given Convention are being met, whatever the economic and social conditions existing in a given country. Subject only to any derogations which are expressly permitted by the Convention itself, these requirements remain constant and uniform for all countries. In carrying out this work the Committee is guided by the standards laid down in the Convention alone, mindful, however, of the fact that the modes of their implementation may be different in different countries. These are international standards, and the manner in which their implementation is evaluated must be uniform and must not be affected by concepts derived from any particular social or economic system.'

The Committee of Experts examines some 2,000 government reports each year. It makes comments on these reports in two forms. Observations are used for the most serious or persistent cases of non-compliance, and are published in the Committee's report. The Committee may add a footnote inviting the government to 'supply full particulars to the Conference' at its next Session, or to send a detailed report before it would otherwise be due, or both. Direct requests are used to request information, clarify questions, or deal with technical points or questions of minor importance. They are not published18, but are sent directly to governments. They are, however, available on request.

The Committee's report, containing the observations and general comments, is submitted to each Session of the International Labor Conference.19

The Conference creates each year a Committee on the Application of Standards. Like most ILO bodies, it is tripartite. It examines the report of the Committee of Experts, and selects about 30 cases each year in which it requests the government concerned to appear before it and discuss the situation. The dialogue is reproduced, in slightly condensed form, in the report of the Conference Committee. In 1957, the Committee decided that in some cases the discrepancies noted were so fundamental or had been discussed for so long a time, that it should call the attention of the Conference to them. Since then the Committee has pointed out in its report the cases it considers most important, or other special cases of non-compliance.

The report is submitted to the Conference for adoption. Important cases of non-compliance are pointed out in the general part of the report, according to various criteria. One category of these findings covers failure to comply with formal obligations, concerning for instance reporting or submission of Conventions and Recommendations to the competent national authorities. The report also deals with cases of failure to apply ratified Conventions. Some special cases, which are considered by the Committee to be sufficiently serious for it to express special concern, are summarized in special paragraphs, along with a conclusion or recommendation by the Committee. Other cases may be mentioned under the severest criterion of continued failure to apply, when serious deficiencies have been encountered in the application of a Convention for a given country. Cases are mentioned under this criterion only on rare occasions.

Special procedures on freedom of association. In 1947, as the result of initiatives taken by the Economic and Social Council of the United Nations and on the basis of discussions concerning the principles leading to the adoption of the basic Conventions on freedom of association (Nos. 87 and 98), the Conference adopted a resolution by which it invited the Governing Body to examine the possibility of creating a special body for the protection of trade union rights. This was based on the fact that, on the one hand, the procedures contemplated in the ILO Constitution were only applicable for ratified Conventions, and on the other, that the question of freedom of association was so important and often so specific (since the problems that arose were often more of fact than of law), that it was necessary to create a special procedure that could be applied independently of the ratification of the Conventions on the subject.

The Governing Body decided in January 1950 to create the Fact-Finding and Conciliation Commission on Freedom of Association, and adopted its terms of reference, the basis for its procedures and the criteria for its composition. The Commission's mandate was to examine complaints submitted to the ILO Governing Body, whenever it considered an inquiry justified and the government concerned had consented (if it had not ratified the Conventions on freedom of association). The latter requirement prevented the Commission from functioning for many years. The Governing Body therefore decided in November 1951, to create a special committee from among its own members to carry out prior examinations of the cases submitted.

The Committee on Freedom of Association was originally conceived as a 'filtering body' for the Fact-Finding and Conciliation Commission, but in practice it shortly began to recommend to the Governing Body that it bring to the attention of governments the anomalies that it had noted. In fact, in turned into a specialized body that regularly examines complaints, without the consent of the government concerned being required. It has developed its procedures over the years, with the approval of the Governing Body. Up to the end of 2001 the Committee had examined well over 2,000 cases, and it has developed a 'jurisprudence' which clarifies and develops the principles and standards of the freedom of association Conventions.

The Committee is composed of nine titular and nine substitute members, and meets three times each year in Geneva. For several years, it has had an independent chairman designated by the Governing Body. Complaints may be presented only by governments or by employers' and workers' organizations. These organizations may be international organizations which have consultative status with the ILO (International Confederation of Free Trade Unions, World Confederation of Labor, World Confederation of Trade Unions, and International Organization of Employers); or other international organizations when the questions concerned directly affect national organizations affiliated to them.

The Committee examines cases related to trade union legislation, collective bargaining and strikes, but the most frequent questions concern practical measures which affect trade unions and, in particular, trade unionists. Apart from these questions, the problems most frequently examined by the Committee refer to the right to strike and to bargain collectively, the dissolution or suspension of organizations, and measures of anti-union discrimination.

The Committee's action has often led, directly or indirectly, to the release of trade unionists from prison. Its activities also have a preventive impact.The mere presentation of complaints often leads governments to resolve a trade union problem or to refrain from measures that violate principles of freedom of association, in order to avoid the case being ventilated publicly at the international level.

At the same time, governments are interested in cooperating with the Committee in order to defend themselves against accusations made against them, and to demonstrate in certain cases that they are unfounded, or to explain the reasons that have led them to take certain measures. The way in which the procedure has functioned for more than 40 years demonstrates that governments have understood it in this way, and in the great majority of cases they cooperate with the Committee.

The Fact-Finding and Conciliation Commission. The Commission is composed of independent personalities appointed by the Governing Body.The Commission may convene between three and five of its members to examine a complaint. Complaints may be submitted to it by the Governing Body under the procedure described earlier, by the Conference (on the recommendation of its Credentials Committee) or by a government that complains against another government. Only governments and organizations of employers or of workers may submit complaints.

If the United Nations receives a complaint against one of its Members which is not a Member of the ILO, the complaint will be transmitted to the Commission if the UN Economic and Social Council (ECOSOC) considers it appropriate to do so and if it has obtained the prior consent of the government concerned. If the complaint is received by the ILO, the Governing Body will first submit it to ECOSOC so that the same procedure may be followed. It is interesting to note that in three cases, complaints concerned non-Member States of the ILO (Lesotho in 1975, the United States in 1979 - it had briefly withdrawn from the ILO but returned in 1980 - and South Africa in 1992).

Complaints systems

The ILO Constitution provides two systems for complaints of violations of ratified Conventions.

Representations are covered in articles 24 and 25. This procedure may only be initiated by an organization of employers or of workers that alleges that a country has not taken measures to ensure the satisfactory observance of a Convention it has ratified. The Governing Body decides, on receiving a representation, whether to forward it to the government concerned and invite the government to make a statement on it. If the representation is sent to the government, and the government does not make a statement 'within a reasonable time', or if the Governing Body does not consider the statement to be satisfactory, it may publish the representation and the statement, if any, received in reply to it. This procedure was used only rarely until the end of the 1970s, but since that time representations have been received far more frequently.20

If the representation alleges violation of a Convention on freedom of association, it is usually transmitted to the Governing Body Committee on Freedom of Association, which examines them in accordance with its normal procedures. However, the rules of article 24 apply as concerns the kind of complaint (more restrictive than the rules of that committee for other complaints, as will be seen below).

The procedure also provides that the Governing Body may decide at any time that the representation shall be examined under the complaints procedure laid down by articles 26 et seq. of the Constitution.

Articles 26 et seq. of the Constitution lay down the procedures for the complaints procedure. This procedure was not used successfully until 1961, but in this case as well frequency of submission of complaints has increased.

A complaint may be submitted by one country against another alleging that the latter has not taken measures for the effective observance of a Convention, if both countries have ratified the Convention. The Governing Body may also follow this procedure 'on its own motion', in the words of article 26, or on a complaint from a Conference delegate (the method used most frequently in recent years). The Governing Body may communicate the complaint to the government against which the allegations are made, so that it may make any comments it wishes. If the Governing Body does not consider this communication necessary, or if it does not receive a satisfactory answer within a reasonable time, it may appoint a Commission of Inquiry to consider the complaint and to report on it.

This procedure does not require the consent of the government concerned, and may take place even when the government of the country against which the allegations are made decides not to participate in it.

The Commission of Inquiry examines the case, often holding hearings and making on-the-spot visits. It submits a report in which it sets out its findings, makes recommendations on the steps which should be adopted to meet the complaint, and indicates the time limits within which these measures should be taken (art. 28).

The report is communicated to the Governing Body and to the governments concerned, and is published. The governments concerned should indicate, within three months, whether or not they accept the recommendations of the Commission of Inquiry and, in case they do not, whether they desire to submit the case to the International Court of Justice. The Court may confirm, modify or annul the conclusions or recommendations of a Commission of Inquiry, and the Court's decision is not subject to appeal. This, however, has never happened.

If a country does not comply with the recommendations or conclusions of the Court within a defined period of time, article 33 of the Constitution provides that the Governing Body may propose to the Conference the measures it considers necessary to secure compliance. Until recently this provision was entirely theoretical, but in an exciting new development it is now being applied to Myanmar for the first time.

The Commission of Inquiry appointed for this case found in 1998 that - as was already well known - there is massive and systematic forced labour in the country, violating the Forced Labour Convention, 1930 (No. 29). When the Government refused to accept that this was true, and failed to take measures to correct it, the Governing Body began to consider the application of article 33 in 1999, and in June 2000 the Conference adopted a set of measures which were to go into force on 30 November 2000 unless the Governing Body declared itself satisfied that the measures taken complied with the recommendations of the Commission of Inquiry. However, the Governing Body did not find that the Government had complied, and the measures went into force. They involve to decide that the question of the implementation of the Commission of Inquiry's recommendations and of the application of Convention No. 29 by Myanmar should be discussed at future sessions of the International Labour Conference, at a sitting of the Committee on the Application of Standards specially set aside for the purpose, and recommending to the Organization's constituents as a whole - governments, employers and workers - that they 'review, in the light of the conclusions of the Commission of Inquiry, the relations that they may have with (Myanmar) and take appropriate measures to ensure that the said Member cannot take advantage of such relations to perpetuate or extend the system of forced or compulsory labour'; as regards international organizations, to call on them to 'reconsider, within their terms of reference and in the light of the conclusions of the Commission of Inquiry, any cooperation they may be engaged in with the Member concerned and, if appropriate, to cease as soon as possible any activity that could have the effect of directly or indirectly abetting the practice of forced or compulsory labour'; and finally 'to invite the Director-General to request the Economic and Social Council (ECOSOC) to place an item on the agenda of its July 2001 session concerning the failure of Myanmar to implement the recommendations contained in the report of the Commission of Inquiry and seeking the adoption of recommendations directed by ECOSOC or by the General Assembly, or by both'.

The Governing Body and Conference have continued to examine the application of Convention No. 29 in Myanmar since then, and as of the time this paper was completed in the first half of 2002 the Office had made several visits to the country to attempt to ascertain whether forced labour was continuing and to assess the measures taken. The Governing Body and Conference have been informed that while some measures appeared to have been taken, they remained insufficient, and action by the ILO continues in parallel with an initiative by the UN Secretary-General on more general problems in the country.

After a complaint procedure is completed, the government may inform the Governing Body that it has taken the measures necessary to apply the recommendations of the Commission of Inquiry or the Court's decision, and may request that another Commission of Inquiry be convened to verify these assertions. If this report is favourable, the Governing Body may recommend to the Conference that it cease whatever measures were taken under its earlier proposals. Normally the results of Commissions of Inquiry are simply followed up through the regular supervisory procedures for the application of ratified Conventions.

Does the ILO system work?

The ILO has been seriously remiss in not paying sufficient attention to analysing how well this system works, in terms of the effect its supervision has, and we are now carrying out such detailed analyses 21. Why did we not do so before? In large part this was because for many years the system itself was its own justification, especially during Cold War. It was set up and maintained as a bulwark against the Communist system, especially for its insistence that freedom of association required the possibility of trade union pluralism, and that such fundamental rights as freedom from discrimination applied also to political opinion.

‘... one of the reasons we want to serve the international system is we've grown up in societies which need the international system to work well.'

Shashi Taroor, Under-Secretary-General of the U.N., speaking about himself and Director-General Kofi Annan.
The New Yorker, 3 March 2003, ‘The Optimist' by Philip Gourevitch

Because of this attitude, no one was asking how well it worked. In this atmosphere, the ILO got lazy. It continued to fight against violations of rights in the same way it always had, but was slow to respond to a changing world. But concerns with budgets, allied with a renewed concern for greater integration among the UN system organizations, have changed this. The ILO started looking at its effect, in a series of discussions carried out in the ILO Governing Body beginning in November 2000. These have resulted in an affirmation of the basic validity of the system, but also in some changes to make reporting slightly lighter, to reinforce connections between the supervision of the application of standards and their implementation at the national level, and in a few other adjustments. The consensus was that the system basically worked, and needed to be lightened to allow concentration on the most important problems.

From the viewpoint of a practitioner, this author can say that it works - not always, but certainly more frequently than any other international supervisory system. I base this on having spent more than 25 years working in this area, in Headquarters Geneva, and in what we call 'the field', that is on the ground working directly with the constituents.

First, as a source for law: most countries in the world - and the US and China are the two big exceptions - have ratified most of the fundamental instruments. They form a common basis of law throughout the world, and are rarely challenged openly these days. Myanmar is the only State challenging the forced labour paradigm, and they are simply denying that they are practicing forced labour instead of trying to justify the practice. On child labour, the boom in commitment to the elimination of this terrible practice - and the money being made available to the ILO and others to fight it - is incredible, with the 1999 Convention No.182 gathering ratifications at a record rate, and the International Programme for the Elimination of Child Labour being given so much money that it is often difficult to spend it wisely, as fast as the donors want. Is it going away? Not yet, not everywhere, but it is being fought, and hard. Discrimination is still rife everywhere in the world, far too many of the world's trouble spots are fuelled by racial and ethnic hatred, and sex discrimination is too deeply ingrained, for it to disappear quickly. But laws and mechanisms are gradually being put into place, with the ILO's help.

Freedom of association is the other principal question for the ILO. As the recent Human Rights Watch study demonstrates very well, this is a difficult subject and there are problems with its implementation everywhere. The United States has found that it cannot ratify the international standards on the subject - as it has said in its communications to the ILO, it is committed to the principles of Conventions Nos. 87 and 98, but is unable to ratify them because of some technical differences. I am not evaluating that statement here, but it is not the opinion of everyone that these differences with international law are minor.

Nevertheless, there is constant vigilance by the ILO, and the Committee on Freedom of Association has been able to document hundreds of releases of trade unionists from prison, and returns from exile, among its accomplishments. The ILO has established a body of law and a reference point for freedom of association throughout the world, and there have been some significant gains, such as Indonesia and Korea, in recent years.

And the work we are doing in promoting the Declaration and its underlying standards is having a real effect, even if this is as yet too small. There is nevertheless every sign that this trend will continue to accelerate. The growing number of ratifications is the first encouraging sign, and the improvements noted by the Committee of Experts at each session, though still not nearly sufficient, are a second.

On the basis of the signs the ILO is getting we are conducting studies and training sessions around the world on labour standards and human rights. We have concrete projects building on the financial support especially of the US and some others, for eliminating forced and bonded labour in Nepal - for a major effort in the trafficking of women and child in the Mekong Delta (the only major human rights project in which China is cooperating) - for setting up mechanisms in Brazil and Namibia under which workers can make effective complaints of discrimination and have a way to protect themselves. The very large amount of work, with US and other funding, on eliminating child labour throughout the world, through the IPEC programme, is one of the brightest spots in international human rights work. On others, my own office has been carrying out a series of meetings around China to discuss ratifying the Discrimination (Employment and Occupation) Convention, 1958 (No.111), and I hope they don't beat the US to it. In early 2001 the ILO visited Iran to conduct the only international seminar on international human rights held there since 1979, and our work with that country continues. There are many other instances in which countries are asking the ILO to come and help improve workers' rights.


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End notes: Clicking on the number will take you back to your place in the report.

1 The Constitution of the ILO proclaimed, at the end of World War I, that 'there can be no lasting peace without social justice.'

2The Employment Policy Convention, 1964 (No. 122).

3The Labour Statistics Convention, 1985 (No. 160).

4The Labour Administration Convention, 1978 (No. 150)

5The Labour Inspection Convention, 1947 (No. 81) and the Labour Inspection (Agriculture) Convention, 1969 (No. 129).

6ILO Convention No. 29 was adopted at the suggestion of the League in order to lend a labor aspect to this question. The United Nations has not created a supervisory machinery for the Slavery Convention, nor for the Supplementary Convention on the same subject adopted in 1953.

7Ratified by the United States in 1991.

8Submitted to the US Senate for advice and consent for ratification, in 1998. Not yet approved.

9All ratification figures here as of 1 March 2002.

10The social clause usually means a measure which would link trading privileges with demonstrated respect for fundamental labour standards.

11In addition to the procedure of the Committee on Freedom of Association, created in 1951 for precisely this purpose.

12ILO: Review of Annual Report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, Part II: Compilation of annual reports (ILO, Geneva, each year as of 2000).

13One of only 13 Conventions the US has ratified. Five concern seafarers' working conditions (Nos. 53, 55, 58, 74 and 147), one is a procedural instrument on revision of the final articles of older ILO standards (No. 80), and 2 are fundamental human rights Conventions (Nos. 105 and 182). In addition the US has ratified Convention No. 144 on tripartite consultations, No. 150 on Labour Administration and No. 160 on Labour Statistics. Two older seafarers' Conventions (Nos. 54 and 57) were ratified, but were 'automatically' denounced on the ratification of a revising Convention.

14The General Survey carried out by the ILO Committee of Experts in 2000, published in 2001 and discussed in the Conference that year, contains a review of the standards on night work. It concluded that while prohibitions on women working at night are discriminatory, they may be some very special circumstances that justify their retention, on condition of consultations with the women concerned and other factors.

15As indicated above, most of the Conventions the United States has ratified in fact relate to conditions of work of seafarers, one of the few labor law subjects covered entirely by federal law.

16This may appear to be an unusual Convention for the ILO to have adopted, but in fact these are the only international standards applying specifically to these peoples, and was adopted on behalf of the entire United Nations system. These peoples are, in the end, workers in the informal sector when they follow their traditional economic activities.

17General Surveys are carried out to set out the current way in which all member States are applying a certain set of Conventions and Recommendations, to explain their provisions, and to examine difficulties in the application and in ratifying them. In recent years they have concerned night work for women (for the November 2000 session), tripartite consultations (1999), and migrant workers (1998).

18They may however be found in the ILOLEX data base, distributed annually on CD-ROM. The on-line version published by the ILO on its web site, http://www.ilo.org, does not contain the direct requests.

19Report III (Part IA).

20Only fourteen representations were submitted between the end of World War II and 1978, but since then they have been arriving with far greater frequency.

21See a recent article on just this subject: Weisband, Edward: Discursive Multilateralism: Global Benchmarks, Shame, and Learning in the ILO Labor Standards Monitoring Regime, 44 International Studies Quarterly (2000), pp. 643-666.



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