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Human Rights at Work
Justiciability of Economic, Social and Cultural Rights:
the ILO Experience
by Lee Swepston ©
Delivered at an academic conference Mexico, August 2002
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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
The ILO is the oldest and largest of the international standards-setting systems, and since it was established in 1919 it has had arrangements by which the rights contained in its standards can be adjudicated at the international level. This system has developed continuously, and now is being used very actively for a variety of matters.
In addition, significant areas of justiciability have grown up at the national level, and are being practiced in various ways in different countries.
The ILO system illustrates the potential of international justiciability. It has a number of the characteristics that should mark any such system:
- it can be invoked by well-defined actors;
- it has clear rules of accessibility and procedure;
- its conclusions are as clear as the underlying standards allow;
- it is reasonably rapid;
- it covers a wide range of rights.
It also has significant force on the national level:
- its standards are drafted by tripartite national actors;
- the standards are often translated directly into national law;
- they are drafted in such a way that they can easily be evoked in courts;
- ILO assistance reinforces their use at the national level.
In addition, it illustrates one of the major differences between national and international justiciability of the same rights: adjudicating at the international level has an effect which is positive and measurable, but the effect of international standards is truly effective only when translated into national standards and processes which can be put into effect and enforced at the national level. Ultimately, the justiciability of rights at the international level has persuasive effect, but must still be given effect by national processes. Situations in which direct effect is given to extra-national decisions are rare - e.g., some of the processes of the European system which are directly enforceable at the national level. The universal systems, principally those of the United Nations and the ILO, do not enjoy this kind of direct applicability.
The examples given below in which direct reference is made by national courts to international standards or decisions, therefore represent the most effective bridge between justiciability at the international and national levels. And it is this situation that should be the target of international standards systems in the long run.
I. Description of the ILO system and justiciability
The ILO's supervisory system is a complex one, and it is not described here in complete detail1. Nevertheless, an understanding of the different procedures is necessary to appreciate all the comments made hereafter, and an abbreviated description of them is included.
The ILO and economic, social and cultural rights
Since its establishment in 1919 at the same time as the League of Nations, the ILO has concentrated on the adoption and supervision of Conventions and Recommendations, which embody both obligations and rights in all the areas linked to work, and sometimes beyond.2 These international instruments are drafted in the International Labour Conference, with the ILO's
unique tripartite system3 lending additional credibility to its decisions.
To what extent can these be characterized as economic, social and cultural rights? They are, of course, as is shown by the fact that they underlie and develop rights contained in the International Covenant on Economic, Social and Cultural Rights. Articles 6 to 10 of the Covenant are based on ILO Conventions adopted up to the time the Covenant was adopted in 1966, and the ILO has continued to adopt (and revise) Conventions steadily since then. The ILO's regular reports to the Committee on Economic, Social and Cultural Rights (CESCR) include references to more than 110 ILO Conventions which develop more fully various provisions of the Covenant - listed in Appendix I to this paper.
The ILO has never paid any particular attention to the theoretical and artificial distinction between the categories of rights contained in the two UN Covenants. ILO standards demonstrate clearly that the division between civil and political rights, and economic, social and cultural rights, is an artificial one based simply on the drafting of the two UN Covenants. ILO standards contain both categories of rights, without distinction. And not only do the two Covenants share provisions that are also found in ILO standards, but ILO supervision has frequently reiterated that the rights contained in ILO standards can be enjoyed fully only when human rights are respected more generally in society.
The content of ILO standards is as wide as national labour codes. The ILO has adopted 184 Conventions and 195 Recommendations as of 2002, covering such subjects as fundamental human rights, employment policy, social security, labour administration, safety and health, indigenous and tribal peoples, protection of special groups of workers, maritime workers, and others. This vast body of standards is subject to revision, and bringing older standards up to date is a regular feature of ILO standard setting. In recent years, under one of the periodic reviews of the ILO's standards system, the Organization has defined some 71 of these Conventions as being fully up to date, in order to focus more closely on a smaller and more coherent
body of modern standards.4 It has also decided to prioritize certain of these instruments as indispensable to national development, and thus to be ratified and applied more rapidly than others - the fundamental human rights Conventions.
In this regard, the ILO has designated the basic Conventions on four subjects the fundamental human rights Conventions that should be ratified and applied in priority. They are:
- Freedom of Association and Protection of the Right to Organize, 1948 (No. 87)
- Right to Organize and Collective Bargaining, 1949 (No. 98)
- Forced Labour, 1930 (No. 29)
- Abolition of Forced Labour, 1957 (No.105)
- Equal Remuneration, 1951 (No.100)
- Discrimination (Employment and Occupation) 1958 (No.111)
- Minimum Age, 1973 (No.138)
- Worst Forms of Child Labour, 1999 (No. 182)
These standards have been taken up also in the Declaration on Fundamental Principles and Rights at Work - see below.
ILO supervision: the regular system has elements of justiciability
In the ILO's supervisory system, elements of justiciability can be found both as integral parts of the regular reports-based supervisory system, and through established complaints mechanisms.
Most ILO supervision is done on the basis of regular government reports, at intervals of between one and five years, on the application in law and practice of every Convention each country has ratified.5 This generates between 1,500 and 2,000 government reports each year, which are examined by the Committee of Experts on the Application of Conventions and Recommendations (CEACR). The CEACR is the ILO's main supervisory body, and is composed of 20 independent experts from around the world, meeting once a year in Geneva. The CEACR adopts comdistribution) and observations, which are published in the Committee's annual report, as well as
on-line and in CD-ROM version.6
It is important for the present paper that there is already an element of 'justiciability' in the basic reporting system, since under article 23 of the ILO Constitution, employers' and workers' organizations have the right to make comments on governments' reports. Governments are required under this provision to send copies of their reports on ratified Conventions to the most representative employers' and workers' organizations at the national level. The best practice is for these organizations to be consulted in drawing up the report, allowing an attempt to work out problems
before the report is actually sent,7 but this is not required; these organizations also have the right to communicate their comments separately to the ILO - either as an attachment to the Government's report, or directly.
This has evolved into a sort of 'soft' complaints mechanism, with these organizations - including from outside the country - being able to indicate that they do not agree with the way the government concerned is applying the Convention (or the way it describes its application) and implicitly asking the CEACR to pronounce on the question. The procedure is simple: a workers' or employers' organization sends a letter to the ILO saying that there is a problem with the Convention's application. If the government does not already have this communication, the ILO then sends a copy of this letter to the government and asks for any comments it may wish to make. On the basis of this exchange the Committee indicates whether it believes the comments were well-founded, and may either ask the government to provide further explanations or to take action to control the problem. (Alternatively, the workers' or employers' organization can ask the government to communicate its comments, and the Government's observations, directly in the report, speeding up the communication and avoiding the need for further correspondence.)
This is in fact the option the ILO counsels most potential complainants to take, at least in the first instance. It results in between 200 and 300 cases in a typical year, on up to 2,000 government reports. Its availability also spurs governments to undertake prior consultations rather than risk an article 23 comment which creates extra work and embarrassment for the government. It often results in positive adjustments to the situation - and even when it results simply in a clearer explanation this is important in itself.
A second element of justiciability is that governments may be called before the International Labour Conference to account for their application of Conventions.The Conference establishes a tripartite Committee at each annual session to examine that year's Committee of Experts report8. The Conference Committee makes an annual selection from the Experts' report of about 25 cases to examine more fully, and invites the governments concerned to appear before it and to provide explanations. While not falling within the way the term 'justiciability' is usually understood, it does allow workers' and employers' organizations (and potentially other governments, though other governments do not usually take an active role in the selection or discussion of cases), to call governments publicly to account and to hold a public 'hearing' on the application of the Convention in question. One of the important criteria - though not formally designated as such - for the Conference Committee to select cases is the existence of prior worker or employer comments under article 23.
This procedure is often an effective one, as it is designed to be. For instance, on the basis of comments by the ILO's supervisory bodies, Brazil was summoned before the International Labour Conference as concerns the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), to respond to accusations of forced sterilizations of women by employers and failure to provide any possibility of complaining against discrimination. ILO assistance over a five-year period helped the Government adopt new protective legislation and put into place complaints mechanisms, as well as to evaluate the effectiveness of these steps. Iran has frequently been called before the Committee to discuss the application of Convention No. 111, and since 1999 this has led to a series of visits by the Office to the country, technical assistance to reduce discrimination, and proposals for further assistance to increase women's employment. There are many other examples.
Complaints on ratified Conventions
The practice most people would recognize as international justiciability is the ILO's set of complaints systems. The ILO has never developed an individual complaints system, and no possibility of doing so is presently contemplated. This no doubt arises from the ILO's dedication to its tripartite structure and the collective nature of its decision-making machinery. There are two kinds of complaints provided for in the constitutional framework of the ILO, and a third was added in 1951 by agreement between the ILO and the UN.
Representations are covered in articles 24 and 25 of the ILO Constitution, and Standing Orders have been adopted to regulate how they are conducted. 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.9
In practice, under the Standing Orders on this subject,10 once the representation is declared receivable the Governing Body creates a tripartite committee to examine a representation, composed of one government member, one employer member and one worker member of the Governing Body. The committee allows time for the government to make a reply to the allegations, and gives the complainant one more opportunity to send additional information, which also is forwarded to the government for its reply. The committee examines the representation on the basis of the correspondence, and does not normally ask the parties to appear or carry out an on-the-spot investigation, though it has more flexibility than it normally uses in these areas.
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 (see below), which examines them in accordance with its normal procedures.
There have been some very interesting cases of representations in recent years, invoking questions of interest well beyond technical labour matters. A representation filed in 1998 under the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) dealt with the employment-related situation of persons of Eritrean descent expelled from Ethiopia when war broke out, and a counterclaim dealt with the same facts as concerned person of Ethiopian descent in Eritrea. It found that although the facts had not been fully established, if they were as alleged both countries had violated the Convention's requirements against discrimination at work on the basis of national origin.11
Another large group of representations has dealt with the Indigenous and Tribal Peoples Convention, 1989 (No. 169). There have been representations in the last few years against Bolivia, Colombia, Denmark, Ecuador and in particular Mexico12. The majority of them have focused on the right to land, and have alleged unlawful taking of land after inadequate consultations that did not take into account the views of indigenous peoples and the impact on the. In each of these cases the ILO Committee has found that, while it was not empowered to settle individual land disputes, it could pronounce on the procedure by which the indigenous peoples lost their land - and in each case it found the procedure to have been inadequate. One representation (Denmark) explored whether a group of Inuit could be defined as a separate people under the Convention (not in the circumstances of Greenland, according to the committee) and whether compensation could be given for land taken in 1952 for an American air base, which had also resulted in loss of livelihoods. In this case the committee found that the procedures already applied had been adequate at the national level, and that earlier decisions should stand. Finally, a group of representations has been filed, and is still being dealt with, alleging that recent legal reforms in Mexico violate the Convention - at this writing this is still under consideration (and should be resolved in March or November 2003).
Complaints. Under articles 26 et seq. of the Constitution, 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 was not used successfully until 1961, but in this case as well frequency of submission of complaints has increased.
The Commission of Inquiry is composed of three independent persons appointed by the Director-General with the approval of the Governing Body. It 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 that should be adopted to meet the complaint, and indicates the time limits within which these measures should be taken. 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 provision has never been invoked.)
In one recent instance, however, article 33 of the Constitution has become the focus of action concerning Myanmar (Burma), though it had never been invoked before. This article provides that if a country does not abide by the findings of a Commission of Inquiry, the Governing Body may recommend to the International Labour Conference 'such action as it may deem wise and expedient to secure the observance thereof.' After many years of Committee of Experts comments and a representation, a complaint was filed by Conference delegates taking further earlier findings that there is massive forced labour in Myanmar, imposed on villagers in the most brutal conditions by the military. The Commission of Inquiry was not allowed into the country, but carried extensive investigation in camps in surrounding areas, discussions with other governments, and hearings in the field and in Geneva that included evidence from NGOs and victims. The Government, which did not cooperate in the investigation, dismissed the allegations as baseless. At that point the Governing Body recommended a series of actions to the 2000 session of the International Labour Conference consisting of the following, according to the resolution adopted on this subject during that Conference:
(a) 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, so long as this Member has not been shown to have fulfilled its obligations;
(b) to recommend to the Organization's constituents as a whole - governments, employers and workers - that they: (i) review, in the light of the conclusions of the Commission of Inquiry, the relations that they may have with the member State concerned 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 referred to by the Commission of Inquiry, and to contribute as far as possible to the implementation of its recommendations; and (ii) report back in due course and at appropriate intervals to the Governing Body;
(c) as regards international organizations, to invite the Director-General: (i) to inform the international organizations referred to in article 12, paragraph 1, of the Constitution of the Member's failure to comply; (ii) to call on the relevant bodies of these organizations 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;
(d) regarding the United Nations specifically, 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, to governments and to other specialized agencies and including requests similar to those proposed in paragraphs (b) and (c) above;
(e) to invite the Director-General to submit to the Governing Body, in the appropriate manner and at suitable intervals, a periodic report on the outcome of the measures set out in paragraphs (c) and (d) above, and to inform the international organizations concerned of any developments in the implementation by Myanmar of the recommendations of the Commission of Inquiry;
Since then the Governing Body, the Committee of Experts and the Conference have continued to follow the question, and a Liaison Officer has been established in Myanmar to monitor the implementation of the recommendations of the Commission of Inquiry.13
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 International Labour Conference adopted a resolution by which it invited the ILO 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, and this lasted 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 2002 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.14
The Committee is composed of nine titular and nine substitute members, and meets three times each year in Geneva. For some 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 that 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 andstrikes, 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 fromprison. 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.
The Declaration on Fundamental Principles and Rights at Work
In its 75th year in 1994, the ILO began reflecting on updating and revitalizing a standards system that had grown heavy. The Governing Body and the Conference discussed a possible 'social clause'15 , as well as the possibility of strengthening the supervisory system to allow complaints against countries that had not ratified Conventions16, but neither of these proposals gathered sufficient support. But the ILO did come up with an innovative newapproach, which the employers especially supported enthusiastically, and others eventually came on board. In 1998 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:
- freedom of association and the effective recognition of the right to collective bargaining;
- the elimination of all forms of forced or compulsory labour;
- the effective abolition of child labour; and
- 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 the subjects listed above, must provide annual reports indicating how they are implementing the principles involved. Workers' and employers' organizations have the right under article 23 of the Constitution to file their own comments on these reports, just as they do for reports on ratified Conventions, and do so frequently. When submitting the summary of these reports to the Governing Body, the special committee of expert-advisers created for this purpose may draw attention to cases that it considers need to be discussed more fully.
An annual Global Report on one of the four principles concerned is 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 200017. The Governing Body discusses 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), efore starting the cycle again.
The procedures described here form a complex and interactive system for defining international rights connected to the world of work, for supervising their implementation at the national level, and for resolving questions of their meaning and whether they are properly applied. Measuring accurately the effect of these processes is complex and difficult, but no one involved directly in the system is in any doubt that it is effective. Governments take their obligations seriously, for the most part. Most 'violations' occur as a result of lack of capacity or a failure of national mechanisms, not as deliberate defiance of international law. When there is such a defiance, it is for compelling reasons: for instance, ideological interpretation of the limits that should be placed on freedom of speech and association, as in the Communist countries before the end of the Cold War.
A full account of the effectiveness of justiciability, and of the standards themselves, must also take into account the way they are dealt with at the national level. As indicated hereafter, this happens in different ways in different countries.
II. Justiciability of ILO standards in national systems
This paper will not explore the more general question of justiciability of ESC rights embodied in international law. The assertion that they are directly justiciable no longer needs to be justified, though the extent to which this operates is still too little known and needs to be made more generally familiar.18
The ILO's International Training Centre in Turin (Italy) is developing a data base in which examples of national judiciary decisions using international law, and in particular international labour law, are to be gathered. The preliminary version (dated 3 May 2002) is comprised of short summaries explaining how international law was used in each specific case. An indication of the extent to which this is done may be seen from the partial index of cases cited in Appendix II to this paper.
As concerns the ILO, several areas need to be highlighted.
First, ILO standards often provide the basis for national laws and regulations dealing in particular with the rights of workers and employers, and with the legal systems surrounding them. These standards are often incorporated directly into national laws on labour and social rights, and even into national Constitutions, or are used as a basis for the drafting of legislation.
In monist systems, international Conventions are incorporated directly into national legislation once ratified, or become superior to that legislation, and can made directly justiciable in the national system. There are many instances of such cases, some of which are indicated below. In dualist systems, international Conventions, even when ratified, cannot normally be relied on directly and some legislative action must be taken to translate them into national law. This inclusion in national law tends to happen frequently and fairly rapidly with ILO standards, as most labour law in the world is based on them. This in turn has two aspects. First, the relative specificity of ILO standards makes them fairly simple to enact as legislation, even where they are not self-executing in their original form. Most ILO standards contain explicit instructions on how they are to be applied, while at the same time leaving flexibility to the ratifying State. They often provide, for instance, that they are to be applied through legislation, administrative regulations or collective bargaining - all of which are justiciable at the national level - or 'by any other means appropriate to the national situation'.19
Beyond the requirement to adopt measures to implement these standards, it is rare to find a labour law drafted in a developing country that was not framed with some degree of ILO assistance. That assistance always takes ILO standards as a starting point, resulting in a high degree of uniformity of national labour law, and great resemblance to ILO standards.20 This includes such efforts as regional harmonization of labour legislation, including in the Caribbean, which takes conformity with ILO standards as a basic principle.
The tendency to make national labour law conform to ILO standards is reinforced by the regular and persistent system of ILO supervision. Any lack of conformity with a ratified Convention will provoke a question or a suggestion from the ILO Committee of Experts or another supervisory body, and each year over 150 cases of improvements in national law or practice to conform more closely to ILO standards are noted by the Committee of Experts.21 The supervisory bodies are serviced by a large staff, including standards specialists in most of the 14 multidisciplinary teams in developing countries - all of whom have as a major task to assist governments to apply the Conventions they have ratified, or would like to ratify.
In addition to direct incorporation into national law, which naturally results in their being given effect by national courts, ILO standards are often invoked directly in national courts, especially in those dealing with labour (administrative law, labour courts, and even courts of general jurisdiction dealing with labour-related questions). This can be either because they are incorporated directly into national law once ratified, in virtue of national constitutions, or because courts have assumed the authority to do so.
Third, ILO research and teaching sessions tell us that judges often rely on ILO standards for their interpretations of national law, even without a direct citation.
There are many instances in which ILO standards have been used, directly and indirectly, in national judicial proceedings. This may be easier than is the case for other international standards, such as the International Covenant on Economic, Social and Cultural Rights, which are drafted in less detail. It is also facilitated by the more specialized nature of labour law in national systems, as well as the specialized nature of labour courts.
This process is assisted by the fact that the ILO regularly conducts training of national judges who deal with labour questions, either in specific labour tribunals or in courts of general jurisdiction that deal with labour-related matters among others. Cases are often cited in such workshops where judges rely directly or indirectly on international standards. This can happen in several ways. In cases cited in the report of a training seminar in 2001, it was stated that a dualistic system existed in Uganda whereby international standards were not applicable unless incorporated in domestic law. However, industrial courts had adopted the principle of presumption that domestic law conformed to signed or ratified international treaties or Conventions, and had relied upon international standards for guidance. In a case referring to the ILO's Discrimination (Employment and Occupation) Convention, 1958 (No. 111) and to the Maternity Protection Convention (Revised), 1952 (No. 103), the industrial court had relied on the Conventions to accord 12 weeks maternity leave while the national legislation, which was not formally in conformity, was under review. When employers would not retrain workers with needed skills but preferred to engage prisoners for the same work, the industrial courts had referred to ILO Convention No. 105 to criticize this action. Industrial courts frequently referred to international labour standards to interpret national legislation that was ambiguous or unclear. Other judges in the same seminar indicated that even if they had not been able to cite the Conventions directly, they often relied on the reasoning in them to interpret national law, in large part because they were based on intensive research by the International Labour Office, were negotiated by the social partners in intensive discussions in the ILO, and represented the international consensus for best practice in the areas they cover.
The indications given here that international expressions of economic, social and cultural rights are justiciable, and that frequent recourse is had to them in both national and international instances, should contribute to dispelling impressions that there is any real difficulty in invoking them directly to resolve issues. It should also indicate that neither national nor international bodies have found practical obstacles in the idea that economic, social and cultural rights are less precise than civil and political rights, or that they are to be implemented progressively. The current discussions as to whether an additional protocol should be adopted to allow individual complaints to be submitted for violations of the Covenant can build on the demonstrated fact that this would simply be providing additional mechanisms, and not breaking entirely new ground. Nor would it go contrary to the nature of these rights. They are already adjudicated in many ways both in national and in international systems.
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End notes: Clicking on the number will take you back to your place in the report.
1See 'Handbook of Procedures on International Labour Standards, ILO' - also found on the ILO website http://www.ilo.org and on the ILOLEX CD-ROM.
2The 'world of work' is a convenient shorthand, and clearly forms the core of the ILO's mandate. Nevertheless, the ILO's concerns necessarily extend beyond a strict definition of this term. To cite only two examples, the ILO Committee on Freedom of Association has consistently taken the position that strikes may target wider economic policies than those only of direct relevance to the industry concerned. And the ILO has twice (in 1957 and 1989) adopted standards on indigenous and tribal peoples on behalf of the entire UN system, which go well beyond the economic activities of the peoples concerned.
3All ILO meetings and consultations are tripartite, meaning that they involve workers' and employers' organizations as well as governments. At the ILO Conference, voting and negotiating power at the committee level (where the basic work is done) is equally divided among the government, workers' and employers' groups; while in the plenary of the Conference governments have half the votes and employers' and workers' representatives 25% each. This tripartism is reproduced to a large extent in national settings.
4ILO documents GB.283/10/2 and GB.283/LILS/5 (Rev.), 283rd Session of the Governing Body, March, 2002.
5A group of 12 'priority' Conventions is to be reported on every two years - these are the primary ILO instruments on freedom of association and collective bargaining, forced labour, child labour and discrimination; two Conventions on labour inspection (Nos. 81 and 129), and those on employment policy (No. 122) and tripartite consultations for international labour standards (No. 144). Reports on other Conventions are due at five-year intervals. More frequent reports can be requested by the ILO supervisory bodies. See generally Handbook of Procedures in ILOLEX, accessible at the ILO web site - see below.
6See the ILO web site at http://www.ilo.org. All the ILO-generated documentation referred to here is reproduced on ILOLEX. Direct requests are also published here, though only at a slightly later date.
7This procedure is contemplated more directly in Art. 5 of theTripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), now ratified by well over 100 countries.
8The Committee of Experts and the Conference Committee were created in 1926 as two elements of the same supervisory procedure. The reports of the Conference Committee, like those of the Committee of Experts, are published in three languages on the ILO website.
9Only fourteen representations were submitted between the end of World War II and 1978, but since then they have been arriving with far greater frequency.
10Standing Orders concerning the procedure for the examination of representations, ILO, Official Bulletin, Vol. LXIV, Series A, No. 1, pp. 93-95 - see also Handbookof Procedures, op. cit.
11ILO document GB.282/14/5, found in ILOLEX.
12All final reports reproduced in ILOLEX.
13For latest developments as this paper was being finalized, see ILO document GB.285/4 (ILO Governing Body, 285th Session, November 2002) on the ILO web site, op. cit.
14See Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body, Fourth (Revised) Edition, ILO, 1996; available in updated version on the ILO web site under ILOLEX.
15The social clause usually means a measure that would link trading privileges with demonstrated respect for fundamental labour standards.
16In addition to the procedure of the Committee on Freedom ofAssociation, created in 1951 for precisely this purpose.
17ILO: Review of Annual Reports 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).
18In this regard see, however, the index in Appendix II, which refers both to ILO standards and to other international conventions.
19The examples cited in the appendix indicate, however, that courts have ways of ignoring the strict implementation of monist and dualist systems when they need sources to assist them in interpretation of national law.
20This assistance can take several forms. The most heavily reliant on the ILO is to ask the ILO to make specific recommendations based on the work of an ILO official or consultant who studies the national situation and then proposes a text after discussions with the social partners in the country. A second method is to prepare a draft in the country, and then send it to the ILO for comments. At any one time there may be up to twenty national labour laws - including everything from a national labour code to a regulation on a particular question - submitted to the ILO for advice of some kind. One organizational unit of the Office does nothing but this work, and it is heavily burdened.
21Report of he Committee of Experts, International Labour Conference, 90th Session, 2002, paras. 111 to 114 - available on the ILO web site.
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