 |
INTERNATIONAL LABOUR OFFICE
Governing Body |
GB.270/3/2
270th Session Geneva, November 1997 |
THIRD ITEM ON THE AGENDA
Follow-up on the discussion of the Report of
the Director-General to the 85th Session (1997)
of the International Labour Conference
(b) Other aspects of follow-up on the discussion of
the Report of the Director-General
1. Under this item, the Governing Body has been asked to consider a first document(1) concerning the issue of fundamental rights and the possible inclusion on the agenda of the 86th Session of the International Labour Conference of a Declaration on this subject. This second document examines the other questions raised by the discussion of the Director-General's Report. It is a preliminary document which presents a list of those questions and the responses to them with a view to allowing the Governing Body to determine whether, how and when any follow-up action will be possible.
2. To assist the decision-making process, the contents of this document follow the structure of the Director-General's Report to the Conference. An outline of each proposal is followed by a brief summary of the reactions to it during the plenary session and of the various suggestions made for follow-up action.
3. Overall, most speakers emphasized the high quality and innovative character of the Report. Virtually all speakers considered that the time had come for a shift in the emphasis of the ILO's standard-setting activities in the light of the globalization of the economy. Some speakers stressed that they had been unable to address fully all the issues covered as they had not had enough time to examine the large number of proposals in the Report. Nevertheless, some speakers put forward proposals or ideas which have been grouped together at the end of the present document in order to give an accurate picture of the discussions. All in all, the contributions to the general discussion were particularly rich and varied.
I. Emulation in social progress -- Report on "social progress in the world"
[Report, pp. 19-33]
4. Although the guarantee of fundamental rights is a sine qua non for ensuring that social progress is "self-perpetuating", this will not in itself be enough. Each member State should endeavour to contribute to that progress according to the means at its disposal, in consultation with the social partners. Given the interdependency of their various efforts, a fact acknowledged in the Preamble to the ILO Constitution, the international community should have the right to oversee those efforts objectively. We must ask ourselves whether the ILO has the necessary institutional means to encourage and evaluate in a more direct and systematic way the efforts made by States to turn the benefits of globalization to good account in terms of social progress and at the same time make public opinion objectively aware of the positive repercussions of globalization in social affairs. Two proposals, differing both in conceptual and practical terms, were put forward. The first outlined a mechanism for encouraging emulation between member States which could take the form of a regular report on social progress in the world; the second envisaged a system promoting an "overall social label", contained in a Convention adopted by the Conference to which member States could adhere if they wished.
A system of emulation between States
[Report, pp. 19-33]
5. The first proposal concerned the establishment of a system of mutual encouragement between member States to attain social progress based on a set of guidelines on principles and priorities for social progress in the globalized economy (other than those relating to workers' fundamental rights, which are the subject of the first document). Promotion of those principles could be encouraged by an instrument the form of which would be determined at a later date -- and the follow-up mechanism could take the form of a regular report on "social progress in the world" submitted by the Director-General, for tripartite discussion by the International Labour Conference.
6. Many countries (Brazil, Canada, Dominican Republic, El Salvador, Equatorial Guinea, Greece, Haiti, Hungary, Italy, Kenya, Namibia, Netherlands, Senegal, Spain, Turkey, United Kingdom, Venezuela, IMEC) and some Employers' delegates (France, Haiti, India, Japan, Philippines, IOE) and Workers' delegates (Canada, Cyprus, Ghana, India, Republic of Korea, Peru, Philippines) supported the proposal. Certain governments (Bahrain, China, Libyan Arab Jamahiriya, Singapore, "non-aligned" States) expressed serious reservations and considered that social progress must be achieved in ways compatible with the sovereignty of member States and that the ILO should not dictate the nature and pace of that progress to member States. The various practical proposals put forward in the Report were not adequately discussed for any conclusion to be drawn on the practical implementation of such a system, with the notable exception of the proposal for a regular report on social progress in the world (Governments: Brazil, Ecuador, Germany, Italy, Japan, Mauritius, Namibia, Nicaragua, Spain, Tunisia, United Kingdom, Uruguay, IMEC; Workers' delegates: Canada, Colombia, Germany, Haiti, India, Italy, Republic of Korea, Russian Federation, Uruguay).
7. The question we should ask ourselves is whether in the long term the principles and priorities of social progress in an interdependent economy might not usefully be addressed by an international labour Recommendation. In specific terms, the simplest way of following this up would be to include this option, together with explanatory comments, as an item in the portfolio. This would allow the Governing Body to reconsider the matter at a time of its choosing.
The overall social label
[Report, pp. 27-32]
8. The purpose of this part of the Report was to draw attention to a phenomenon which the International Labour Organization can ill afford to ignore, both because it may help to propagate the principles on which the standards are based and because it may call into question the standards themselves. The hypothesis, which is still at a very early stage, of an overall social label possibly based on a Convention was put forward as a way of using the positive aspects of social labels or codes of conduct, while eliminating the negative aspects highlighted in the Report.
9. This item drew comment from many speakers. Certain countries expressed reservations on the proposal, either because they considered that it was a way of reintroducing a social clause which they categorically rejected or because they took the view that the ILO's mandate would not allow the Organization to support action by largely protectionist consumers' groups (Algeria, Australia, Bahrain, Bolivia, China, Costa Rica, Egypt, Guatemala, India, Islamic Republic of Iran, Kenya, Republic of Korea, Libyan Arab Jamahiriya, Malaysia, Morocco, Nepal, New Zealand, Singapore, Sudan, Thailand, Venezuela, Viet Nam, Zambia, Zimbabwe, "non-aligned" States). Several Employers' delegates also expressed reservations (Australia, Bangladesh, Chile, China, Cuba, Egypt, Finland, Germany, Iceland, India, Republic of Korea, Kuwait, Mexico, Morocco, Nepal, New Zealand, Pakistan, Turkey, United Arab Emirates, United Kingdom, United States, Venezuela, IOE). Other countries endorsed the proposal subject to a supplementary examination (Austria, Belgium, Denmark, Dominican Republic, Finland, France, Germany, Greece, Hungary, Lithuania, Luxembourg, Mauritius, Mexico, Mongolia, Norway, Philippines, Sweden, United States, IMEC). Lastly, many Workers' delegates expressed support for the proposal (Belgium, Brazil, Chile, Colombia, Costa Rica, Cyprus, Czech Republic, Denmark, Finland, Germany, India, Italy, Republic of Korea, Norway, Peru, Romania, Russian Federation, Slovakia, Spain, Sweden, United Kingdom, Uruguay, FIET, ICATU, ICFTU, WCL).
10. The term "overall social label" appears to have been misconstrued. The "overall" character of the proposed social label referred to the fact that the label must cover a body of interconnected fundamental rights, not that it must apply to a country's entire production. The concept concerned an entirely voluntary and multilateral system for mutual recognition of social labels between States which could cover all or some of their export products, depending on the wishes of the States themselves. Whatever the misunderstanding, it is clear and has been emphasized in the Director-General's reply to the discussions that a multilateral system of this type could not come into being without a very wide consensus which is clearly lacking at the moment. The Governing Body will have to determine if and when it would be appropriate for the ILO to resume discussions on this matter. In the meantime, the Office will continue to gather information on the labels and codes of conduct established by various consumers' or workers' associations or by NGOs, as well as information on their monitoring systems and their economic and social repercussions. Such information has already been made available to the Working Party on the Social Dimensions of the Liberalization of International Trade at the present session of the Governing Body, at its request.
II. Improving the standard-setting activity of the ILO
[Report, pp. 35-64+Annex]
11. The second part of the Director-General's Report proposed possible improvements to the ILO's standard-setting activity to ensure that standards have a greater impact and better meet constituents' needs.
12. All 117 speakers who spoke on this second part acknowledged the need to target standards more effectively in order to increase their impact. Many delegates endorsed the idea of rationalizing the entire standard-setting process, from the selection of subjects through the different phases of preparatory work and the adoption procedure in the committees, to the ratification procedure. One Employers' delegate (IOE) recalled that all these adjustments should have but one purpose: that of achieving tripartite agreement which is the best guarantee that a text once adopted can be implemented and therefore effective.
13. Some of these proposals can be implemented rapidly: they require a decision by the Office which can be taken once the Office is sure of obtaining the consent of the Members. Others will require a decision by the Governing Body following on from the work carried out by the Committee on Legal Issues and International Labour Standards. Other proposals that have been widely supported will require a supplementary examination by the Committee before the Governing Body can decide whether or not to adopt them, and in some cases implementation of those proposals will require amendments to the Standing Orders of the Conference.
The content of standards
[Report, pp. 37-48]
The range and criteria of choices
[Report, pp. 38-43]
14. Standard setting needs to be more selective to ensure that standards have greater relevance and impact. Measures have already been taken in this respect and the Governing Body will be examining the content and form of a regularly updated "portfolio" of proposals for standard-setting items. This should give the Governing Body a wider overall view of possible standard-setting actions when setting the Conference agenda and allow it to make strategic choices rather than choosing a subject which is neither ready nor acceptable to anyone -- a situation bound to lead to disagreement and frustration during discussions at the Conference and disappointment at the ratification or implementation stages. However, to ensure that this portfolio is not simply an extended list of standard-setting items, we need to ensure greater involvement by all the constituents, using the technical departments and the Office's decentralized structures. Another question is whether the criteria for including subjects in the future portfolio should include (in addition to those retained in the first in-depth review on standards such as the number of workers affected, the extent to which the subject would affect workers in the lower economic stratum, and the severity of the problem) a precise evaluation in the case of each subject envisaged for standard setting of the qualitative input ("added value") which would be made by the new instrument to the existing ILO instruments and to the internal legal systems of ILO member States.
15. There were numerous references to the need for measures in this area (57 in all). Furthermore, some Employers' delegates (Japan, Malta, Peru, Spain, United States) recalled that the choice of international labour standards must respect the subordinate nature of international regulation in relation to domestic law. This concern was matched by that of a number of governments who recalled that Conventions should deal only with essentials and allow national legislators room for manoeuvre in applying them (Kuwait, IMEC).
16. The discussion of the draft portfolio at the present session of the Conference will no doubt help us to decide whether information on the added value of future standards should be included in the portfolio or made available to the Governing Body only when it comes to select the items suitable for inclusion on the agenda of a particular session of the International Labour Conference.
Overlapping or consolidation of instruments?
[Report, pp. 43-45]
17. The adoption of standards by the Conference has over time created an overlap between instruments dealing with similar subjects. Many Conventions and Recommendations have a common approach and contain identical or parallel provisions. This overlap, quite apart from the risk of differences or even contradictions, dilutes the impact of the provisions that are common to all the instruments. The process of revising standards which, following the exercises of 1977 and 1987, has been set in motion once again by the Working Party on Policy regarding the Revision of Standards, is at the stage of identifying instruments in need of revision. That process will take some time to complete. For that reason, it was proposed that for each subject area (employment, social policy, industrial relations, etc.) a preliminary survey of existing instruments should be undertaken to provide an overall view and, for example, allow differentiation between the general principles applicable to all workers or sectors and provisions specific to a particular sector or category of workers.
18. Some governments (Australia, France, Gabon, Mauritius, Mexico, Poland, Romania) and Employers' delegates (Australia, India, Kuwait) supported this idea. One Government delegate (Canada) expressed the wish for a proposal setting out precise figures. Another Government delegate (France) proposed that consideration should be given a consolidation of standards according to major areas. One Employers' delegate (Malta) interpreted the proposal as aiming to establish an International Labour Code and opposed it on the grounds that the ILO should acknowledge the sovereign right of nations to pass legislation appropriate to their own national conditions and economic development. One Government delegate (Islamic Republic of Iran) considered that any classification of standards might reduce their impact by giving greater emphasis to some standards than to others.
19. Implementation of this suggestion is above all a matter of mobilizing the resources and the technical competencies needed to carry out a preliminary overview of existing standards, possibly starting on a trial basis with one of the major standard-setting areas referred to above. The Governing Body could therefore, if there is enough interest, be asked during the discussion of the programme and budget for the next biennium to consider a proposal for a preliminary review of this kind.
Selection procedures
[Report, pp. 47-48]
20. The definitive inclusion of an item on the Conference agenda with a view to standard setting should be the culmination of a process leading to a clearer view of the possible content of the instrument under consideration and thus of its "added value" as a standard-setting instrument. Compiling a portfolio would improve the situation by helping, after a number of successive examinations, to define the outline of the instrument on the subject envisaged. Those subjects that are thought to raise complex technical or political issues should be considered in a preliminary discussion at the Conference with a view to assessing the viability of the subject intended for the new instrument and to formulating specific guidelines on the drafting of the questionnaire.
21. These proposals were supported by some governments (France, Turkey, IMEC), Employers' delegates (Iceland, United States) and Workers' delegates (France, Philippines).
22. In principle, it should not be necessary to amend the Standing Orders of the Conference in order to give effect to these ideas. The Governing Body could simply decide on a case-by-case basis, to include, first, the item under consideration for standard setting on the Conference agenda for general discussion. However, it should be made clear that this general discussion would in fact be a "targeted" preliminary standard-setting discussion aimed at providing a clear framework for the preparation of the questionnaire used for future instruments. Therefore, rather than defining a new procedure at this stage, it would be useful to test this idea in specific cases, drawing on the experience acquired from the revision of Convention No. 96. The Office could therefore propose this solution whenever the subject considered for inclusion in the portfolio appeared to lend itself to it. The Office also proposes, during the discussion regarding the inclusion of a standard-setting subject on the Conference agenda, to draw the attention of the Governing Body to those complex technical and political issues which could be considered in a preliminary discussion at the Conference.
Choosing the form of the instruments
[Report, pp. 49-58]
23. The proposals contained in this part of the Report are aimed at making more efficient use of all the standard-setting means available to the Organization in the form of Conventions and Recommendations. With regard to the Conventions, many governments agree to vote for a Convention without any serious intention of supporting its ratification before the competent authority. One possible proposal would therefore be that, pursuant to article 19(5) of the Constitution, one of the questions to which governments would be required to reply after voting for a Convention at the Conference would concern the particular measures taken to promote ratification of that Convention. At the same time, the proposal to increase the number of ratifications required for Conventions to enter into force, which has already been examined by the Committee on Legal Issues and International Labour Standards, could be re-examined. Finally, if Recommendations are to regain their rightful place, they should once again become autonomous instruments unrelated to a Convention and should be followed up on a regular basis as provided for by the Constitution to verify both their application and their relevance so that only those which meet with present-day needs are retained.
24. Overall, the proposals met with the broad approval of the Government delegates (Australia, Denmark, Germany, Lithuania, Luxembourg, Poland, Romania, Turkey, Zambia, IMEC) and Employers' delegates (Austria, Benin, Denmark, France, Iceland, India, Japan, Luxembourg, Malta, Morocco, Peru, Portugal, Spain, Switzerland, United Kingdom). The Workers' delegates (France, Germany, Netherlands, Romania, Sweden, ICFTU, WCL) expressed serious reservations regarding the idea of giving greater priority to international labour Recommendations. One Workers' delegate (Netherlands) considered that a follow-up mechanism for the implementation of Recommendations would create an unnecessary extra workload for the Committee of Experts on the Application of Conventions and Recommendations. A number of Workers' delegates (Finland, Romania, Sweden) recalled that the value of Recommendations depended on the way in which they were implemented in the member States and monitored by the competent bodies of the ILO.
25. The question whether or not to increase the number of ratifications required for a Convention to enter into force must ultimately be decided by the International Labour Conference. Nevertheless, in order to clarify the nature of the choice facing the Conference with regard to the appropriateness of raising the threshold for entry into force, the Committee on Legal Issues and International Labour Standards could be invited to reconsider the question at a future session of the Governing Body.
26. Similarly, the LILS Committee could be invited to examine whether and how additions could be made to the report forms used for reporting pursuant to article 19(5) of the Constitution to request governments, when submitting the Convention to the competent authority (article 19(5)(b) and (c)) and later when requested to do so by the Governing Body (article 19(5)(e)), to indicate why a Convention which it had supported has not been ratified.
27. With regard to the form of the instruments, implementation of the suggestion presupposes the adoption of autonomous Recommendations. The reforms referred to above should help bring this about. Nevertheless, autonomous Recommendations will have little real attraction without an appropriate follow-up mechanism. Merely referring to article 19(6)(d) of the Constitution may well not provide any adequate guarantee of this. For that reason, consideration could be given to the incorporation in the Recommendation itself of a specific follow-up clause adapted to that particular instrument (there are certain precedents for this). The model for such a clause could be studied by the LILS Committee at one of its next sessions (possibly March 1999).
The content of standards
[Report, pp. 58-60 + Annex]
28. In addition to the expected impact of the measures proposed above on the general content of standards, two aspects of the standard-setting procedure could be re-examined in greater detail with a view to improving the content and wording of the standards, namely:
- the questionnaire which serves as a basis for preparing instruments and fixes the structure and even the content of the instruments, often at a stage before the Office has enough information at its disposal; and
- the role of drafting committees in maintaining the desired degree of uniformity and consistency in the drafting of these instruments.
29. A number of governments referred to these proposals (Canada, Cyprus, France, Greece, Luxembourg, Mauritius, Saudi Arabia, Sweden, IMEC), as did a number of Employers' delegates (Australia, France, Japan, Malta, Peru, Portugal, Senegal) and Workers' delegates (Brazil, Poland, South Africa), all of whom supported the idea. One Employers' delegate (Germany) suggested that the discussion regarding the Conventions should be spread over several sessions of Conference.
30. Drawing up a "code of good drafting practices" is an undertaking which requires very meticulous preparatory work but which could be recommended to the Conference without any need for amendments to the Standing Orders of the Conference. The Committee on Legal Issues and International Labour Standards could be asked to consider at one of its future sessions (March 1999) a draft code of this kind covering such aspects as the drafting of preambles, the appropriate way of referring to other instruments, how to avoid needless repetitions between a Convention and its supplementary Recommendation, or between various instruments, the status of final clauses, etc.
31. On the other hand, the reform of the questionnaire could require amendments to the Standing Orders, all implications of which would need to be carefully examined. For this reason, the Office proposes to carry out a full survey of those implications and to submit to the LILS Committee at the 274th Session of the Governing Body (also in March 1999) a document presenting the possible options and, as appropriate, a revision of the current questionnaire procedure and the relevant provisions of the Standing Orders of the Conference.
Overall evaluation after the fact
[Report, pp. 60-64]
32. The aim of this proposal was to permit an overall evaluation of the impact of instruments in legal terms as well as in economic and social terms, with a view to measuring the progress made with respect to the objectives of the instruments and identify any indirect or adverse repercussions with respect to other ILO objectives, as provided for under articles 19(5)(e) and 19(6)(d) of the Constitution, and drawing appropriate conclusions for future standard-setting action. This overall evaluation would differ from the exercise of revising international labour Conventions undertaken for the Governing Body by the Working Party on Policy Regarding the Revision of Standards of the LILS Committee. It would also go beyond the General Surveys prepared by the Committee of Experts on the Application of Conventions and Recommendations based on the provisions referred to above and would require greater resources.
33. Many governments (Australia, Botswana, Canada, Cyprus, Egypt, Finland, Greece, Luxembourg, Mauritius, Saudi Arabia, Sweden, IMEC), Employers' delegates (Australia, Denmark, Dominican Republic, Italy, Japan, Senegal) and Workers' delegates (Chile, South Africa) endorsed these proposals without indicating the form in which they should be implemented. One government (Australia) suggested that the evaluation of instruments should be undertaken by a new standing committee of the Conference.
34. If the Governing Body confirms the interest shown in strengthening the evaluation process, the LILS Committee could be invited to identify a very limited number of instruments for a pilot study involving the decentralized multidisciplinary teams and the employers' and workers' organizations, as well as governments. Such a pilot study could subsequently provide the frame of reference for future evaluation exercises. Proposals for a pilot study could be presented to the LILS Committee at one of its future sessions.
III. Other subjects referred to by speakers
35. Many speakers referred to the work undertaken by the Governing Body in the standard-setting field, in particular the revision of international labour standards, which needs to be taken to completion. These questions are a matter for the Committee on Legal Issues and International Labour Standards and is not dealt with in the present document. Apart from the proposals contained in the Director-General's Report, many suggestions were made by Conference delegates regarding possible improvements to the ILO's standard-setting activity.
Re-examination of the monitoring mechanisms
36. A number of governments and Employers' and Workers' delegates brought up the question of the re-examination of the monitoring and supervisory mechanisms available to the ILO in relation to ratified Conventions under article 22 of the Constitution. A specific question was also raised concerning the representation procedure. The Director-General in his reply stated his intention to submit to the competent committee draft amendments to the rule governing the procedure for examining such representations under articles 24 and 25 of the ILO Constitution.
Technical cooperation in standard setting
37. Many speakers considered that technical cooperation should play a greater role in the ratification and implementation of international labour Conventions (Governments: Chad, Côte d'Ivoire, Egypt, India, Kuwait, Malaysia, Namibia, Netherlands, Oman, Saudi Arabia, Sudan, Uganda, "non-aligned" States; Employers' delegates: Argentina, France, Spain; Workers' delegate: Thailand). The question was examined by the Governing Body, which requested an evaluation of the activities of the multidisciplinary teams in setting international labour standards. The question could be considered later on a regional basis at future Regional Meetings.
The link between international trade and international labour standards
38. Many speakers ("non-aligned" countries, as well as some Asian countries, Arab countries, many countries in Africa, certain countries in South and Central America), with certain discernible differences, rejected any link between international trade and international labour standards. By contrast, some Workers' delegates (Czech Republic, Germany, WCL, ICFTU) expressed support for a social clause based on the ILO core Conventions and considered that the measures proposed by the Director-General in his Report would not be an adequate substitute.
The link between the WTO and the ILO
39. Some speakers (Governments: Bahamas, Botswana, Luxembourg, United Kingdom; Workers' delegates of Denmark, Germany, Czech Republic, TUAC) expressed support for the idea of continuing or even strengthening collaboration between the WTO Secretariat and the ILO in the area of standard setting. It was suggested that the outcome of Conference discussions should be made available to the WTO. One Government delegate (Luxembourg) recalled in this connection that any initiative to reform standard setting was not an end in itself but must be seen in the wider context of the collaboration between the ILO and the WTO. The Singapore Ministerial Declaration calls on the Secretariats of the two organizations to continue their collaboration.
Tripartite declaration of principle concerning multinationals
40. Bearing in mind the role played by multinational enterprises in the globalization of the economy, one government (Belgium) and a number of Workers' delegates (FIET) called for adequate resources to be made available to make this instrument more effective in practical terms.
An instrument concerning the reduction of working time
41. Two governments (Argentina and Greece) expressed the wish for an item concerning a binding instrument on the coordinated reduction of working time by all countries to be included on the agenda of a future session of the International Labour Conference (88th Session, 2000).
System for monitoring child labour
42. One government (Netherlands) referred to the consensus achieved at the Amsterdam Conference on Child Labour and called for the examination and rapid implementation of an international system for monitoring child labour.
Problems of the micro-States
43. Several Government delegates from the micro-States (Bahamas, Barbados, Fiji) described the difficulties they had encountered in applying international labour standards. They called for the mechanisms available for applying United Nations conventions to be made applicable to ILO Conventions. One Government delegate (Barbados) also suggested that transitional provisions should be included in the Conventions to allow progressive implementation of the Conventions, especially by the micro-States.
Geneva, 15 October 1997.