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Human Rights at Work
of the International Labor Organization
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
The procedures developed by the International Labor Organization (ILO) form part of what may be the most effective and thorough international mechanism for the protection of human rights.
The ILO was established in 1919 by the Treaty of Versailles. It was the only element of the League of Nations to survive the Second World War, and it became the first specialized agency of the United Nations system in 1945.
The tripartite structure of the ILO (governments, employers, and workers) is unique among intergovernmental organizations. It is the only organization in which governments do not have all the votes. The ILO is composed of three organs: 1) the General Conference of representatives of member States (the 'International Labor Conference'); 2) the Governing Body; and 3) the International Labor Office. The Conference and the Governing Body are composed half of government representatives and half of representatives of employers and workers of member States. The presence and voting power of these non-governmental elements give the ILO a unique perspective on the problems before it and offer possibilities for dealing with practical problems facing ILO members.
The ILO and Human Rights
The ILO has a practical, day-to-day involvement in human rights in many fields, going beyond the limited impression one might have from its name. If one adopts a modern definition of human rights, which includes the subjects covered by the International Covenants on Civil and Political Rights, and on Economic, Social and Cultural Rights, the ILO's competence includes a wide range of rights in addition to those that might be considered purely 'labor' issues. The ILO focuses on the human rights that are perhaps most immediately important to most people: e.g., to form trade unions; to protection from child labor, forced labor, and discrimination; to safe and healthy working conditions; and to social security. The ILO has adopted Conventions which deal with all these subjects and others, including minimum age for work, vocational guidance and training, protection of wages, occupational safety and health, employment of women, migrant workers, indigenous and tribal peoples, and labor administration.
These rights are implemented principally through the adoption and implementation of international labor standards. The ILO adopts Conventions and Recommendations at the annual International Labor Conference, requires governments to examine whether Conventions should be ratified, and closely supervises and criticizes how countries apply the Conventions they do choose to ratify. Member States of the ILO may ratify Conventions adopted by the Conference; if they do ratify, States become legally obligated to comply with the terms of the Conventions and to report regularly to the ILO on how they are complying. By the end of 2001, there had been nearly 7,000 ratifications1 of the 184 ILO Conventions.
Recommendations are intended as guidelines for legislation and policies countries may wish to adopt on certain subjects. They are not subject to ratification, and a State can thus undertake no legal obligation to implement them. They often supplement Conventions, which are normally less detailed and lay down minimum standards of performance.
In 1998, the ILO took another important step in the protection of human rights, by adopting a Declaration of Fundamental Principles and Rights at Work and a follow-up procedure. This Declaration recognizes that all member States -- even if they have not yet ratified the relevant Conventions -- have an obligation by the very fact of membership to apply certain basic principles arising from the ILO Constitution:
- freedom of association and the effective recognition of the right to collective bargaining;
- the effective abolition of child labor;
- the elimination of all forms of all forms of forced or compulsory labor; and
- the elimination of discrimination in respect of employment and occupation.
Under this Declaration, all member States have to report annually if they have not ratified all the ILO's basic Conventions on these subjects, stating what obstacles exist to putting them into practice. The procedure also provides for an annual Global Report spelling out progress world-wide in one of these four areas.
Supervision of Ratified Conventions
It is not the existence per se of Conventions and Recommendations that makes the ILO effective, but rather the fact that their implementation is regularly and systematically monitored. This supervision is carried out mainly by two bodies, the Committee of Experts and the Conference Committee on the Application of Conventions and Recommendations, supplemented by complaints procedures. It is important to note that the ILO functions mainly on regular reporting and supervision, and that the complaints procedures are relatively little used.
The Committee of Experts on the Application of Conventions and Recommendations is composed of twenty independent experts on labor law and social problems, from all the major social and economic systems and all parts of the world. It meets annually to examine reports received from governments, which are obligated to report at intervals of between one and five years on how they are applying the Conventions they have ratified. Workers' and employers' organizations may also submit comments on how Conventions are applied in practice, thus offering a valuable supplement to governments' reports.
If the Committee of Experts notes problems in the application of ratified Conventions, it may respond in two ways. In most cases it makes 'Direct Requests,' which are sent directly to governments and to workers' and employers' organizations in the countries concerned. These are not immediately published2, and if governments furnish the information or take the measures requested, the matter goes no further. For more serious or persistent problems, the Committee of Experts makes 'Observations,' which, in addition to being sent to governments, are published as part of the Committee's annual report to the International Labor Conference3.
The comments the Committee makes are as rigorous as the information it possesses allows. As an example, its Observations, which are less frequent and often shorter than Direct Requests, filled more than 600 pages in 2000. The thoroughness of the Committee's analysis and its reputation for independence and objectivity mean that many problems are resolved at the Direct Request stage. Between 1964 and 2001, the Committee noted nearly 2,500 cases in which governments took the measures requested of them.
The Conference Committee on the Application of Conventions and Recommendations is the next level of supervision. Established each year by the International Labor Conference, it reflects the ILO's tripartite structure of governments and of workers' and employers' representatives. On the basis of the report of the Committee of Experts, the Conference Committee selects a number of especially important or persistent cases and requests the governments concerned to appear before it and explain the reasons for the situations commented on by the Committee of Experts. At the end of each session, it reports to the full Conference on the problems governments are encountering in fulfilling their obligations under the ILO Constitution or in complying with conventions they have ratified. The Conference Committee's report is published in the Proceedings of the International Labor Conference each year, along with the Conference's discussion of the Committee's report4.
The ILO also employs 'direct contacts' as an important method of supervising the application of ratified Conventions. This means simply that when a government encounters problems in applying ratified Conventions, the International Labor Office, at the request of the government or with its consent, sends an official or an individual expert, to discuss the problems with the government and to help it arrive at a solution. Supervisory activity is temporarily suspended to allow a problem to be worked out. Since its institution in 1969, this system has been highly successful and is often used by governments to resolve problems in order to avoid public criticism.
Although it is not a supervisory function as such, mention should also be made of the ILO's field structure, and particularly of the Multi-disciplinary Advisory Teams (MDTs) stationed in sixteen locations in the developing world. Almost all of them have specialists in ILO standards to advise, assist in the ratification and application of these standards, and help acquire whatever technical or financial assistance may be necessary to apply them.
The supervisory mechanism described above is generally an effective way of ensuring that ratified Conventions are implemented. However, there are also three basic procedures to consider complaints that ILO conventions or basic principles are not being adequately applied, each of which is discussed in detail below. 'Representations' under articles 24, 25, and 26(4) of the ILO Constitution and 'complaints' under articles 26 to 29 and 31 to 34 of the Constitution must concern ratified ILO Conventions. The third procedure, which deals with freedom of association, is one of the most widely used international complaint procedures for the protection of human rights. Complaints under this procedure, alleging violation of the ILO's basic principles on freedom of association, may be filed whether or not the State concerned has ratified any ILO Conventions on this subject.
Representations under article 24 of the ILO Constitution
Substantive requirements. Under article 24 of the ILO Constitution, a representation may be filed if a country 'has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party.'
A representation thus may be filed only against a State that has ratified the Convention concerned. The State must be a Member of the ILO or, if it has withdrawn, still be bound by a Convention it had ratified. Representations relating to freedom of association issues will normally be referred to the Committee on Freedom of Association (see below).
A representation may be submitted by 'an industrial association of employers or of workers' (article 24, ILO Constitution), that is, a trade union or an employers' organization. There is no restriction on which 'industrial associations' may file representations, and the determination of what constitutes an industrial association is made by the ILO. They may be local or national organizations, or regional or international confederations, and they need have no connection with the subject of the complaint. However, when the ILO Governing Body is deciding how the representation should be handled, a representation may be given more credence if it is received from an organization that has international standing or some connection with the subject of the complaint.
Formal requirements. The representation should be submitted to the Director-General of the International Labor Office in Geneva. The only restrictions as to form are that the representation must be in writing and must refer specifically to article 24 of the ILO Constitution and to a ratified ILO Convention.
While not formally required, a representation should contain the best-documented and most complete information available to substantiate the alleged violation. A bare allegation alone will engage the procedure, but it will be slowed down unless the Governing Body has enough facts to make an initial assessment of the situation. It may even declare a representation inadmissible if there is no substantiation.
Means of investigation. After a representation has been declared receivable with regard to form, a special tripartite committee appointed by the Governing Body from among its members examines the substance of the representation (except for representations on freedom of association, which are referred to the Committee on Freedom of Association). The committee communicates with the filing organization, asking for any additional information it may wish to submit, and with the government concerned. he government is asked to comment on the allegations and to 'make such statement on the subject as it may think fit'. When all the information from both parties has been received, or if no reply is received within the time limits set, the committee makes its recommendations to the Governing Body.
The Governing Body decides whether or not it accepts the government's explanations, if any, of the allegations. If the Governing Body decides in favor of the government, the procedure is closed, and the allegations and replies may be published. If the Governing Body decides that the government's explanations are not satisfactory, it may decide to publish the representation and the government's reply, along with its own discussion of the case -- i.e., to give it wider publicity than simply including the case in its records. This was the case, for example, with respect to a 1977 representation by the International Confederation of Free Trade Unions that alleged the non-observance by Czechoslovakia of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).
Implementation of the decision. Whether or not the Governing Body decides that it is satisfied with the government's explanations, the questions raised in the representation are normally followed up by the ILO's regular supervisory machinery, i.e., the Committee of Experts and the Conference Committee on the Application of Conventions and Recommendations. Even if the Governing Body is satisfied, these committees may raise questions that they feel require further examination.
Complaints under article 26 of the ILO Constitution
Substantive requirements. As with representations, a complaint must be based on the obligations of an ILO Convention that the country concerned has ratified. A complaint may be filed against any State which has ratified the relevant Convention and which is a Member of the ILO. In fact, even if a State has withdrawn from the ILO but still has obligations under a Convention it ratified while a Member, a complaint may be filed. Complaints concerning freedom of association will normally be referred to the special procedures created for these questions (see below).
Under article 26, the complaint procedure may be instituted by Governments that have ratified the same Convention, in a classic inter-state procedure. They may also be filed by delegates to the International Labor Conference, during the Conference session, file a complaint against a state which has ratified a Convention. Finally, they may be instituted by the Governing Body on its own motion.
Formal requirements. A complaint must be submitted to the Director-General of the ILO. There are no formal requirements as to form or language, except for the substantive requirements set forth in the relevant articles of the Constitution: the complaint must originate from a government, Conference delegate, or the Governing Body; it must refer to a present or former Member of the ILO; and it must refer to a Convention ratified by the State against which it is made alleging that a country is not 'securing the effective observance' of a Convention it has ratified.
Means of investigation. When the Governing Body begins to consider a complaint, it forwards the complaint to the government for its comments. It then normally establishes a Commission of Inquiry, composed of htree prominent and independent personalities. Commissions of Inquiry are free to set their own rules and procedures, but certain practices have gradually become established. First, written submissions are requested from both parties, often at several stages in the procedure, and submissions from each party are usually communicated to the other for information and comments. A Commission may also request information from other governments (under article 27 of the Constitution) or from non-governmental organizations. Commissions of Inquiry usually hear representatives of the parties and witnesses presented by them and sometimes summon witnesses themselves. They often also conduct on?site visits to the countries concerned.
Kind of decision reached. Once the taking of evidence is complete, a Commission arrives at conclusions and may make recommendations to the parties (article 28 of the Constitution). A report of the case is communicated to the ILO Governing Body and published. A decision states whether or not the situation in a given country is in conformity with the convention. A recommendation may, for example, suggest changes in national legislation or practical measures to give effect to a convention's provisions. A recommendation may even address broader questions, such as the necessity of ending a state of emergency in order to promote civil liberties.
Implementation of the decision. A report of a Commission of Inquiry is normally communicated to the Governing Body and to each of the governments concerned and published in the ILO's Official Bulletin; it is also published on ILOLEX and made available on the Internet. In most cases, the Committee of Experts and the Conference Committee on the Application of Conventions and Recommendations will continue to examine implementation of the Conventions concerned, with reference to the findings of the Commission of Inquiry, as is done in connection with representations.
Under article 29(2) of the ILO Constitution, any government concerned in a complaint may refer the complaint to the International Court of Justice if it does not accept the Commission's recommendations. Although this has never occurred, it remains a possibility. The decision of the International Court of Justice in such cases is final, and the Court may affirm, vary, or reverse the findings or recommendations of the Commission of Inquiry. (See articles 31 and 32 of the ILO Constitution.) This procedure has never been used.
In a striking recent development, the ILO has made use for the first time of article 33 of the ILO Constitution. This provides that, if a government does not implement the recommendations of a Commission of Inquiry (or the International Court of Justice) within the time specified, 'the Governing Body may recommend to the Conference such action as it may deem wise and expedient to secure compliance therewith.' There are no restrictions in the Constitution on the measures that might be adopted under this provision. This was invoked in the case of violations by Myanmar of the Forced Labour Convention, 1930 (No. 29), and has led to the Conference calling on all member States, employers' and workers' organizations and other international organizations to review their relations with Myanmar to ensure that they are not supporting forced labour in that country - and this has in turn led to responses by the Government to allow the ILO to investigate and to help the country eliminate the massive forced labour that exists there.
Special procedures for complaints concerning freedom of association
The most widely used ILO petition procedure is the special procedure established for complaints concerning violations of freedom of association. These procedures are not specifically provided for in the ILO Constitution but were established in the early 1950s by agreement between the ILO and the UN Economic and Social Council. By 2001, the Committee on Freedom of Association had considered more than 2,000 cases.
There are two bodies that consider complaints in this area: the Governing Body's Committee on Freedom of Association (CFA), and the Fact-Finding and Conciliation Commission on Freedom of Association (FFCC).
The Committee on Freedom of Association
Substantive requirements. Special complaint procedures were created to protect the rights of freedom of association, which are codified by ILO Conventions such as 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), as well as a number of others on specific questions. However, there is no requirement that a State must have ratified any of these Conventions for a complaint to be filed, since the basic authority for the examination of complaints lies in the ILO Constitution itself, which consecrates the principle of freedom of association. A complaint may therefore be made against any Member of the ILO.
The CFA has gradually developed a set of principles supplementing the Conventions and the ILO Constitution, which have been summarized in a publication entitled Freedom of Association: Digest of Decisions of the Freedom of Association Committee of the Governing Body of the ILO, most recently published by the International Labor Office in 1996.
A government may submit complaints to the CFA alleging violations by another government, but no government has ever done so. Three categories of employers' and workers' organizations may file complaints:
- national organizations directly concerned with the matter;
- international organizations which have consultative status with the ILO; and
- other international organizations without consultative status, if the allegations relate to matters directly affecting their affiliated organizations.
The CFA reserves the right to determine whether an organization filing a complaint is, in fact, an 'organization of employers or workers.' It has, for instance, decided that a complaint may be receivable even if a government has dissolved the complainant organization, or if the organization making the complaint had not been registered or recognized by the government concerned. However, a complaint will not be accepted from bodies with which it is impossible to correspond, either because they have only a temporary address or because the complaint does not contain an address.
Formal requirements. Complaints must be submitted to the Director-General of the ILO in writing, duly signed by a representative of a body entitled to present them, and with the address of the complainant organization. A complaint will be receivable if it is from a proper organization of employers or workers, concerns an ILO member, and alleges a violation of the right of freedom of association. Substantiation of an organization's status should be included, as well as all available proof of the violations alleged.
Means of investigation. Once a complaint is received, the Director-General may allow the complainant time to furnish additional evidence of the allegations. The complaint is communicated to the government concerned, which is asked to comment on the substance of the allegations. It is normally on the basis of the documentation received from both parties that the CFA makes its decisions.
Kind of decision reached. If the CFA finds that no violation has been committed or that the alleged violation has ceased, it will simply halt further examination. If it finds that violations have occurred, it will make recommendations to the parties to correct the situation. It may, for instance, recommend to governments that they institute or refrain from certain actions or that they amend existing legislation. It may also make recommendations to the organization which filed the complaint, if it finds that its activities have contributed to the problem.
If the CFA finds that there are problems in guaranteeing freedom of association, it may ask the government concerned to continue reporting to it, or it may refer the case to the Committee of Experts on the Application of Conventions and Recommendations (if the relevant Conventions have been ratified). In exceptional cases, the CFA may recommend referral of the case to the FFCC.
The Fact-Finding and Conciliation Commission
The FFCC is an ad hoc body of independent experts appointed by the Governing Body to examine allegations of infringement of freedom of association. It was established in 1951 at the same time as the CFA, and became a forum for the examination of the more serious cases of violations of freedom of association. Although it has been convened only rarely, it has been utilized in cases of particular political delicacy.
Substantive requirements. As in the case of complaints before the CFA, cases before the FFCC deal with freedom of association. A complaint may be submitted against any State, whether or not it has ratified the freedom of association Conventions or is a Member of the ILO. If a State is not a member of the ILO but is a Member of the United Nations, a complaint concerning it may be referred to the FFCC by ECOSOC. In all cases, however, the State concerned must consent to the referral of the case to the FFCC. The only exception to this rule is when a complaint under article 26 of the ILO Constitution concerns ratified freedom of association Conventions and is referred to the special procedures on this subject.
Cases may be referred to the FFCC in four ways, each of which requires the participation of a government or international body:
- By the Governing Body, on the recommendation of the CFA.
- By the Governing Body, on the recommendation of the International Labor Conference.
- At the request of the government concerned.
- By the UN Economic and Social Council. With the consent of the government concerned, ECOSOC can refer allegations against states that are members of the United Nations but not of the ILO. This has been done in cases concerning Lesotho and the United States, both of which had been ILO members but which had withdrawn at the time of the complaint. This process was used most recently with respect to South Africa. In all three cases, examination of a case by the FFCC preceded the country's return to the ILO.
Means of investigation. FFCCs are free to work out their own procedures, but they usually base their investigations on documentary evidence furnished by the parties, the testimony of witnesses, and visits to the countries concerned. Representatives of the complainant organizations and the governments against which complaints are made are allowed to be represented in proceedings before the FFCC.
Kind of decision reached. The mandate of a Commission is to ascertain the facts and to discuss the situation with the governments concerned, with a view to resolving the difficulties by agreement or friendly settlement. ln its dual role of investigator and conciliator, it makes a thorough examination of the facts and formulates recommendations designed to provide a common ground for the resolution of a dispute. Once a decision is reached, it is published in a special report on the case.
Recommendations of the FFCC have concerned the direction in which the trade union movement in a country should be allowed or encouraged to develop, legislative proposals, calls for the ratification of ILO conventions, and even recommendations for the restoration of civil liberties that are essential to the exercise of trade union rights. It may also make recommendations to other parties, such as the trade unions concerned, as it did in a case concerning Japan.
Implementation of the decision. Like all international complaints procedures, a commission's recommendations have no enforcement measures to ensure that its recommendations are implemented. Since a commission is convened to examine a particular case, it does not itself monitor the effect of its recommendations. However, compliance with the FFCC's recommendations is monitored by other ILO bodies. If the country concerned has ratified the ILO Conventions on freedom of association, the regular supervisory bodies continue to examine the effect given to FFCC recommendations and may refer to the FFCC's conclusions in subsequent comments on implementation of the convention in question.The situation also may be followed by the Conference Committee on the Application of Conventions and Recommendations, by the International Labor Conference in plenary session, and by the Governing Body. If the relevant Conventions have not been ratified, FFCC recommendations are followed up by the CFA.
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Footnotes: Clicking on the number will take you back to your place in the report.
16,992 ratifications at close of business on 21 December 2001.
2They are made public about a year later in the ILO's data base on standards and supervision, ILOLEX, which is available on-line at http://www.ilo.org under 'International Labour Standards and Human Rights'. All other supervisory comments are also published in this manner.
3Report II (Part 1A) at each session of the Conference.
4Also available on ILOLEX.
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