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GB.267/LILS/5
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Committee on Legal Issues and International Labour Standards |
LILS |
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FIFTH ITEM ON THE AGENDA
The strengthening of the ILO's supervisory system
1. The Committee and the Governing Body have on several occasions discussed the possibility of adopting new supervisory procedures concerning questions of forced labour and discrimination. At the 265th Session (March 1996) of the Governing Body, the Committee agreed, with the reservations of one of its members, to continue the discussion on the basis of a document that would take into account all the points raised in the Committee. The Worker members requested in particular that the new document should take up the technical and legal points relating to the possibility of adopting a new procedure, similar to that of the Committee on Freedom of Association, to examine complaints of violations of the rights to freedom from discrimination in employment and occupation, and to freedom from forced labour.
2. In the discussions that have taken place so far on this issue, the Worker members have stated that they were in favour of a new procedure, the Employer members have stated that they were not in favour of it, and Government members have expressed a range of positions. The salient issue has been whether such a complaints procedure could cover all Members, irrespective of their ratification of the relevant Conventions, and whether the procedure could operate without the consent of a government with regard to any particular case.
3. The arguments for the adoption of a new procedure have, broadly speaking, been based on the notion that the elimination of discrimination and forced labour are fundamental principles of the ILO, akin to the principle of freedom of association; and that the existing supervisory procedures do not permit their application in cases where governments have not ratified the Conventions on these subjects. Those not in favour of a new procedure have stated, inter alia: (1) that such a new procedure would not be in accordance with the Constitution as it would add obligations to apply Conventions when they had not been ratified; and (2) that the procedure concerning freedom of association is unique and cannot be duplicated with regard to other human rights.
4. Given that the views expressed have often been quite divergent and strong, the present document, prepared in consultation with the Legal Adviser, limits itself essentially to providing further elements of clarification concerning the legal framework of the issue. Only if it is determined whether and in what circumstances new procedures could be established can there be a useful discussion on the desirability of establishing them and the exact mandates under which they could operate.
A. The precedent of the freedom of association procedures (1)
5. As it has been the presumption that any new procedure, should it be established, would closely resemble the procedure of the Committee on Freedom of Association, it is pertinent to examine how that procedure developed. In 1948, at the same session at which the International Labour Conference adopted the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), it adopted a resolution concerning international machinery for safeguarding freedom of association, on the basis of a report on this question submitted to the Conference by the Governing Body. The International Labour Office communicated this resolution, together with the other decisions concerning freedom of association taken at the 31st Session of the Conference, to the United Nations Economic and Social Council (ECOSOC) at the latter's Seventh Session (Geneva, July-August 1948). At its Eighth Session (New York, February-March 1949) ECOSOC asked the Secretary-General of the United Nations to enter into consultations with the Director-General of the ILO in order to explore jointly the possibility of establishing international machinery for supervising the effective application of the right of association.(2)
6. At its 110th Session (January 1950) the Governing Body decided to establish the Fact-Finding and Conciliation Commission on Freedom of Association (FFCC).(3) After a long discussion, the Governing Body decided that it would be necessary for the government against which a complaint was filed to give its consent to the referral of a case to the FFCC, unless that country had ratified Convention No. 87. The discussion on this point was particularly animated. At the end of the discussion, the Governing Body decided to add the following provision:
If such consent is not forthcoming, the Governing Body shall give consideration to such refusal with a view to taking any appropriate alternative action designed to safeguard rights relating to freedom of association involved in the case, including measures to give full publicity to charges made, together with any comments by the Government concerned, and to that Government's refusal to co-operate in ascertaining the facts and in measures of conciliation.(4)
It was decided at the same time that the Officers of the Governing Body would examine each complaint submitted with a view to deciding whether it presented a prima facie case of violation of the principles of freedom of association before submitting it to the FFCC.
7. At the same session of the Governing Body, in the context of a discussion as to whether the competence to establish the FFCC belonged to the ILO alone or whether the United Nations should be associated with it, it was stated that "the safeguarding of trade union rights was a matter which ... was closely bound up with the protection of other fundamental rights".(5) The Governing Body decided that the Commission should be established on behalf of the ILO alone, but that it would make the Commission's services available to the United Nations under specified circumstances. The Economic and Social Council formally approved the Governing Body's decision at its 10th Session in February 1950.
8. The Governing Body's decision was reported to the International Labour Conference at its 33rd Session in 1950, where this point formed part of the discussion in the Selection Committee. During the discussion in plenary of the report of that Committee, the Government delegate of South Africa challenged the decision to establish the Fact-Finding and Conciliation Commission as being "outside the provisions of the Constitution".(6) The main grounds for this view were, he stated: (1) that the Constitution makes no specific provision for action of this nature; (2) that a procedure of this nature had not been contemplated when the Constitution was revised (in 1946); and (3) that decisions of the Permanent Court of International Justice on the interpretation of the ILO Constitution "appear to be against the action now taken while the Constitution remains in its present form". He went on to say "the proposal appears to us to seek to draw from the aims and objects of the Organisation obligations capable of non-observance and rights capable of violation in the absence of any ratification of an appropriate Convention. ... it is most unfortunate that this question of constitutionality should have arisen on a matter so vital as freedom of association. It will arise on other matters, such as forced labour. If accepted as a system, this procedure of commissions and subsequent action by the Governing Body must logically be capable of application to any other general aim and object of the Organisation such as, for example, equal pay for equal work, collective bargaining ...". Other Government delegates (Argentina, Australia and Portugal) supported in general the points made by the Government of South Africa, while -- like South Africa -- not opposing the establishment of the Commission; other delegates stated explicitly that the action was in conformity with the Constitution.
9. In reply to these objections, in the discussion in the Subcommittee of the Selection Committee set up to examine this question, the Legal Adviser (Mr. Jenks) introduced two elements that were probably of decisive importance. First, he stressed that article 10 of the ILO Constitution empowered the Governing Body and the Conference to request the Office to conduct such special investigations as may be ordered by the Conference or by the Governing Body. Secondly, in reply to the objection by the Government delegate of South Africa, he drew a very important distinction: "If the aims and objectives of the Organisation can only be enforced by way of ratified Conventions, they can be promoted in other ways, and the establishment of a Fact-Finding Commission according to the procedure adopted by the Governing Body constituted a legitimate way of promoting the aims of the Organisation."(7) It should be noted that it followed logically from this distinction that consideration was then given to the nature of the measures that the Governing Body can take in the absence of consent. It was stressed that the measures foreseen merely concerned bringing these issues to public attention and had nothing in common with "jurisdictional" measures relating to specific obligations.(8) The Conference adopted the report of the Selection Committee and approved the Governing Body's establishment of the FFCC.(9)
10. At its 117th Session in November 1951, the Governing Body established the Committee on Freedom of Association from among its members to carry out preliminary examinations of the cases for submission to the Fact-Finding and Conciliation Commission. The mandate of that Committee was to inform the Governing Body as to whether: (a) a case did not require more detailed examination, as the allegations were too vague or the facts alleged did not constitute a violation of freedom of association, or that the complaint was essentially political in nature; or (b) that certain cases needed further examination so that the Governing Body could decide whether to attempt to obtain the consent of the government concerned for referral to the Fact-Finding and Conciliation Commission.
11. The way in which the Committee on Freedom of Association dealt with the cases before it began to evolve quite early in its existence, taking on its present functions and working methods over time.(10) In many cases, although noting that a complaint did not merit more detailed examination, the Committee began expressing the opinion that the trade union situation (in fact or in law) required it to express certain reservations. It therefore began to recommend to the Governing Body that it bring to the attention of governments the anomalies that it had noted so that they could be corrected. It also began to recommend that a complaint did not merit further examination on the facts. Very rarely has it recommended that a complaint be examined by the Fact-Finding and Conciliation Commission. Thus, while its discussion of the issues -- and of conformity between the conduct cited and ILO principles concerning freedom of association -- has grown out of its initial role of reviewing complaints for submission to the FFCC, the Committee's functions in this regard have evolved into its being a self-contained complaints body. The evolution of the CFA's procedure has been approved by the Governing Body at each step, and the Committee's present working methods are the result of more than 45 years of development.
12. An early attempt was made to deny the Committee's right to examine the cases submitted to it concerning countries that had not ratified the relevant instruments, on the grounds that no State was obliged to apply a Convention which it had not ratified. The Committee examined this argument and rejected it, referring to the basic constitutional principles of the ILO, which should be respected by all member States. The Committee cited among these the principles on trade union rights laid down in the Declaration of Philadelphia, and stated that in order to meet the responsibility for applying these principles, "it should be guided in its task, among others, by the provisions relating thereto, approved by the Conference and embodied in Conventions Nos. 87 and 98". These standards were taken as a basis for comparison in examining specific complaints, bearing in mind that Members of the Organization are obliged, under article 19(5)(e) of the Constitution, to report to the Director-General at appropriate intervals as requested by the Governing Body, the position of law and practice in regard to matters dealt with in unratified Conventions. The Committee therefore considered that, while recognizing that the provisions of the Conventions were not binding on countries which had not ratified them, it should examine the allegations relating to them in the cases before it with a view to ascertaining the facts and reporting them to the Governing Body.(11)
13. Two cases may be cited in particular in which the Governing Body has found, by approving reports of bodies established by it, that the basis of the procedure of the Fact-Finding and Conciliation Commission and the Committee on Freedom of Association is still solid. A Fact-Finding and Conciliation Commission found in 1975, in a case concerning a country that had not ratified Convention No. 87, that by its membership in the ILO, the country was "bound to respect a certain number of general rules which have been established for the common good of peoples of the twentieth century. Among these rules, freedom of association has become a customary rule above the Conventions."(12) In a case before the Committee on Freedom of Association in 1989(13) in which the relevant Convention had not been ratified, the Committee found that complaints to it do not constitute interference in internal affairs because "the matters dealt with by the Organization in this connection no longer fall within the exclusive sphere of States and the action taken by the Organization for the purpose cannot be considered to be interference in internal affairs since it falls within the terms of reference that the ILO has received from its Members with a view to attaining the aims assigned to it."
14. It is apparent from the discussion above that the Organization is not limited to using Conventions and Recommendations alone, in order to promote the objectives of the Constitution in the law and practice of its Members. While only ratified Conventions can give rise to obligations that can be dealt with under the complaints procedures laid down in articles 24 and 26 of the Constitution, the Organization has the power to promote the Constitution's objectives and principles by a procedure which brings to light the degree to which the practice of the Members may vary from the principles to which they have voluntarily subscribed in becoming Members of the Organization. As was decided when the freedom of association procedures were created, this can be done through a complaints procedure based on the Constitution, whether or not the country concerned has ratified the Conventions that have been adopted on that subject.
B. The effect of this precedent in relation to
other fundamental rights
15. There is no reason, in strict legal terms, not to apply the reasoning that was followed in relation to freedom of association to fundamental rights other than freedom of association, in so far as those rights are set out in the Constitution and the Declaration of Philadelphia, and this view was upheld in the discussions that led to the establishment of the Fact-Finding and Conciliation Commission on Freedom of Association. It must therefore be determined whether this possibility can be invoked in the case of other rights or constitutional principles that are now recognized as fundamental. It seems useful in this context briefly to review the attempts that have in fact been made in relation to those rights.
16. There has been informal agreement on the question of what are the fundamental rights to which reference is made since at least the 1960s.(14) Recent decisions of the Governing Body have confirmed this understanding, building on the conclusions of the World Social Summit of 1995. This list of fundamental principles has been underscored in the response of ILO Members to the Director-General's initiative concerning the ratification and implementation of basic ILO standards, (15) and reaffirmed on many occasions as recently as the 83rd Session of the Conference in June 1996.(16)
17. As regards forced labour, it was already stated in document GB.264/6 that this question had been the subject of special studies and fact-finding missions, carried out on an ad hoc but exclusively voluntary basis in the 1950s. Clearly, the possibility of instituting a procedure like that for freedom of association in this field runs into difficulties, as neither the Constitution nor the Declaration of Philadelphia specifically refers to forced labour.
18. Does this constitute an unsurmountable obstacle? It would not seem so: while the concept of forced labour does not appear as such in the Constitution, the principles underlying its prohibition are stated quite boldly in the Declaration of Philadelphia. First, there is naturally the fundamental principle set out in section I(a) that labour is not a commodity. There is also, and perhaps more importantly, the affirmation in section II(a) of freedom and dignity as essential conditions that workers, as human beings, must enjoy to pursue their material well-being and their spiritual development, as well as the solemn and specific obligation that the Conference places on itself in section III(b) to further among its Members programmes which will achieve the employment of workers in the occupations in which they can have the satisfaction of giving the fullest measure of their skill and attainments, and in III(j) to assure "equality of educational and vocational opportunity".
19. No lengthy argumentation is needed to demonstrate that forced labour -- in the case of labour performed under threat or duress -- is in principle the very denial of all freedom and dignity to workers; in practice it is also clear that those made to perform it are by definition unable to give the fullest measure of their skill or to enjoy "equality of educational and vocational opportunity". It can hence be stated that even though the Constitution does not specifically mention forced labour, the Conference has -- by virtue in particular of the link between workers' equality of opportunity and their freedom of choice -- a sufficiently precise mandate to establish a procedure with the aim of furthering the efforts of member States to attack forms of labour exacted by the threat of sanctions whose purpose would seem to be intrinsically incompatible with the objectives of dignity and equality of opportunity enshrined in the Constitution.
20. As regards discrimination, the Constitution rejects it specifically in its positive "recognition of the principle of equal remuneration for work of equal value" and, in the Declaration of Philadelphia, its recognition of the principle of equal opportunity. It is thus not necessary to explore further the constitutional basis for this subject, as it is explicitly recognized in the Constitution.
21. Document GB.264/6 recalled the decision to adopt a special procedure on discrimination and that the procedure has not been successful. This procedure is not similar to the freedom of association procedure. It is based on a system of special studies, which can be carried out concerning countries that have not ratified Convention No. 111, but which requires their consent. These surveys were to be "based on criteria such as those laid down in the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) and the standards relating to migrant workers", and could concern the situation of groups defined according to a wide range of criteria.(17) This wide mandate, and the reference to Conventions as the basis of the examination, made it impossible to adopt such a procedure without providing for the consent of the countries concerned. It is thus distinguished from the procedures being examined here.
22. It appears from this discussion that a constitutional basis exists for the creation of a procedure to promote the fundamental rights dealt with in this paper, in addition to the supervisory procedures for the implementation of member States' obligations under ratified international labour Conventions. The following questions, inter alia, remain to be examined by the Governing Body:
- the specific content of the fundamental rights to be promoted through such a procedure;
- the mechanics of such a procedure;
- its financing.
23. It would seem that before submitting further proposals on such a procedure it would be necessary to assess whether a sufficiently large degree of consensus may be reached on the remaining issues. Subject to the views that the Committee may express, it is thus suggested that consultations be carried out before returning to the matter with more specific proposals, as appropriate.
Geneva, 9 October 1996.
1 A summary version of the following history appears in the First Report of the Committee on Freedom of Association, ILO, CFA Reports 1-14, 1952-54, paras. 6-25.
2 International Labour Conference, 32nd Session, 1949, Record of Proceedings, p. 127.
3 Minutes of the Governing Body, 110th Session, pp. 62 et seq.
4 ibid., p. 92.
5 ibid., pp. 78 and 79.
6 International Labour Conference, 33rd Session, 1950, Record of Proceedings, p. 255.
7 Report of the Subcommittee of the Selection Committee on the Fact-Finding and Conciliation Commission, para. 9.
8 Minutes of the sitting of the Subcommittee at 3.15 p.m. on 20 June 1950.
9 International Labour Conference, 33rd Session, 1950, Record of Proceedings, p. 274.
10 References to the various adaptations of the procedure appear in ILO: Procedures for the examination of complaints alleging infringements of trade union rights, June 1985, in ILO law on freedom of association: Standards and procedures, Geneva, 1995; and in Freedom of Association: Digest of the decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, 4th (Rev.) ed., 1996, pp. 207 to 218.
11 15th report of the Committee, Case No. 102 (South Africa), paras. 130 and 131.
12 The Trade Union Situation in Chile, Report of the Fact-Finding and Conciliation Commission on Freedom of Association, 1975, para. 466.
13 268th report, Case No. 1500, paras. 691-693, Official Bulletin. Vol. LXXII, 1989, Series B, No. 3, para. 692.
14 See, for example, GB.148/9/8 (March 1961), by which the examination of possible special procedures on discrimination was launched after the adoption of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). In that paper a clear understanding was expressed that the three principal human rights with which the ILO was concerned were freedom of association, discrimination and forced labour (cf. para. 16).
15 GB.265/LILS/6.
16 See, for example, International Labour Conference, 83rd Session, Report of the Committee on the Application of Conventions and Recommendations, Provisional Record No. 14, paras. 61 to 66.
17 Procedure for the examination of requests for "special surveys" on situations connected with the elimination of discrimination in employment, paras. 3 and 4.