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GB.271/11/1
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ELEVENTH ITEM ON THE AGENDA
Reports of the Committee on Legal Issues
and International Labour Standards
First report: Legal issues
1. The Committee on Legal Issues and International Labour Standards met on 19 March 1998 and was chaired by Mr. J.L. Ilabaca (Government, Chile). The Employer and Worker Vice-Chairpersons were Mr. D. Funes de Rioja and Mr. J.-C. Parrot respectively.
2. The Committee had before it four papers prepared by the Office.
I. Amendment of article II, paragraph 5, of the
Statute of the Administrative Tribunal of
the International Labour Organization
3. The Office paper(1) on this item proposed an amendment to the Statute of the Administrative Tribunal of the ILO. Under the present text, "intergovernmental" organizations approved by the Governing Body may accept the jurisdiction of the Administrative Tribunal of the ILO as a means of final settlement of disputes with their staff members. According to the proposed amendment, an international organization would be entitled to make the declaration recognizing the jurisdiction of the Tribunal, as provided for in article II, paragraph 5, of the Statute, if it possessed certain characteristics even though it might not qualify as intergovernmental in the traditional sense of an organization established by treaty with government representatives in its decision-making bodies.
4. Introducing the Office paper, the Legal Adviser noted that the proposed amendment was intended to take account of a phenomenon that had already been noted in the past with respect to new forms of international organizations. In this connection, he referred to two cases in which organizations had been approved by the Governing Body although they did not fully meet the traditional intergovernmental criteria. The present proposal had been prompted by a request from the International Federation of the Red Cross and Red Crescent Societies (IFRC), which clearly did not meet those criteria. The Office was faced with a dilemma: as the vocation of the ILOAT was to offer a reliable system of justice to a category of "international workers" who did not have access to traditional juridisctions, it could not reject out of hand the request of an organization that seemed to operate in a manner similar to other international organizations that were intergovernmental. At the same time, the Office was conscious of the fact that if the Tribunal was to be opened up, criteria should be established to ensure that organizations that became parties to the Statute of the Tribunal were international in character and offered all the necessary guarantees, and particularly that the judgments of the Tribunal would be respected in order to preserve the credibility of the Tribunal. The Office had consulted the organizations which were parties to the Statute on the present proposal. In the light of the comments received, which were all positive, the Office considered that its proposed text could be improved in two ways: one was that the text should make it clear that the three conditions for eligibility were cumulative; the other was that there should be a further condition that the organization concerned should be inspired by the principles of international civil service law rather than by a national labour law. The Office therefore proposed a further amendment in order to make the text more explicit by adding: (i) at the end of the introductory part of the Annex the words "fulfil the following conditions", and (ii) at the beginning of subparagraph (b) in the Annex, the words "it shall not be required to apply any national law in its relations with its officials, and shall [...]".
5. The Employer members agreed with the proposed text, as amended, stressing the fundamental importance of the conditions relating to immunity from legal process and to the necessary guarantees for the execution of judgments in order to safeguard the status of the Tribunal.
6. The Worker members also expressed their support for the proposed text as amended.
7. The representative of the Government of France stated that the Administrative Tribunal, especially in view of the ever-increasing number of organizations that had accepted its jurisdiction, was an essential part of the Organization. While pointing out that the wording of article II, paragraph 5, could be improved, although he was aware that the Office had sought to make only the minimal amendment to it, he endorsed the proposed amendment as an attempt to keep abreast of modern developments in international law.
8. The representative of the Government of the United Kingdom expressed her agreement, considering that the Office proposal made access to the Tribunal more flexible and responsive to contemporary needs.
9. The Committee accordingly recommends that the Governing Body propose to the 86th Session (June 1998) of the International Labour Conference that it adopt a resolution to amend article II, paragraph 5, and the Annex of the Statute of the ILO Administrative Tribunal in the following terms:
The General Conference of the International Labour Organization,
Decides:
(a) to amend article II, paragraph 5, of the Statute of the Administrative Tribunal of the International Labour Organization to read as follows:
5.The Tribunal shall also be competent to hear complaints alleging non-observance, in substance or in form, of the terms of appointment of officials and of provisions of the Staff Regulations of any other international organization meeting the standards set out in the Annex hereto which has addressed to the Director-General a declaration recognizing, in accordance with its Constitution or internal administrative rules, the jurisdiction of the Tribunal for this purpose, as well as its Rules of Procedure, and which is approved by the Governing Body.
(b) to replace the introductory paragraph of the Annex to the said Statute by the following paragraphs:
To be entitled to recognize the jurisdiction of the Tribunal in accordance with paragraph 5 of article II of the Statute, an international organization must either be intergovernmental in character, or fulfil the following conditions:
(a) it shall be clearly international in character, having regard to its membership, structure and scope of activity;
(b) it shall not be required to apply any national law in its relations with its officials, and shall enjoy immunity from legal process as evidenced by a headquarters agreement concluded with the host country; and
(c) it shall be endowed with functions of a permanent nature at the international level and offer, in the opinion of the Governing Body, sufficient guarantees as to its institutional capacity to carry out such functions as well as guarantees of compliance with the Tribunal's judgments.
The Statute of the Administrative Tribunal of the International Labour Organization applies in its entirety to such international organizations subject to the following provisions which, in cases affecting any one of these organizations, are applicable as follows:
[...]
II. Evaluation of the reforms in the functioning of the
International Labour Conference: Legal aspects
10. The Committee considered a document prepared by the Office(2) summarizing the reforms introduced in the functioning of the International Labour Conference in 1996. These reforms had been implemented on a trial basis during the past two sessions of the Conference. The purpose of the Office paper was to examine whether the time was ripe for their formalization, where appropriate, in the Standing Orders of the Conference. The reforms related to:
(a) the shortening of the Conference by one day;
(b) the reduction in the time-limit for speeches in plenary sitting on the reports of the Chairperson of the Governing Body and the Director-General from ten to five minutes;
(c) the reduction in the duration of the plenary discussion of the reports of the Chairperson of the Governing Body and the Director-General to one calendar week;
(d) the in-session production of the Provisional Record of the Conference covering the discussion of the reports of the Chairperson of the Governing Body and the Director-General;
(e) the selective free distribution of Conference reports.
11. In the paper, the Office suggested that not all of the reforms were ripe for consolidation in the Standing Orders and that further experience on the different reforms was still necessary. It was accordingly proposed to maintain the status quo, which implied that the Conference, at its next session, would have to approve the necessary derogations to the relevant articles of its Standing Orders.
12. The Worker members, while supporting the Office's proposal, made observations on the different reforms. They stressed the negative consequences of the shortening of the Conference for the work of technical committees, in particular the Committee on the Application of Standards, which quite often could not deal with as many individual cases as it wished to, in particular the most serious ones. For this reason, they did not wish this reform to be consolidated at this stage. The fact that the Conference had at its last two sessions ended half a day earlier was not pertinent to their concerns, since it did not reflect the problem of work in committees. With respect to the in-session publication of the Provisional Record, they welcomed the decision by the Governing Body to reintroduce it (a view that was shared by the Employer members). Concerning the selective free distribution of Conference reports, they had doubts that the savings achieved by this measure justified the problems which it caused to some NGOs with limited resources which were interested in following the work of the Organization closely. They hoped that other possibilities would be explored and that some flexibility would be allowed.
13. The Employer members indicated that, although the proposal was merely to gain more experience with the reforms before consolidating the results in the Standing Orders, the various reforms had been thoroughly considered by them. While they agreed with the shortening of the Conference and the reduction in the duration of the plenary and of speeches delivered in plenary sittings, certain improvements in the organization of the work of the Conference were desirable. Although they were aware of the very tight time constraints for the secretariat, improvements could be made with regard to the time-frame for the publication and translation of Committee reports. Concerning the observation made by the Worker members about the Committee on the Application of Standards, they also felt that better organization would permit the Committee to achieve its work within the new time-frame. They mentioned in particular delays by governments in appearing before that Committee for individual cases; more cooperation by governments would no doubt allow a more rational and comprehensive consideration of the list of individual cases. On the question of the distribution of Conference reports, they were of the view that current practice had resulted in less waste. However, they had no objection to a certain degree of flexibility, which would allow exceptions to be made in appropriate cases. They considered that both the secretariat and the constituents should work together within the reduced duration of the Conference so that efficiency and productivity were ensured at all times.
14. The representatives of the Governments of China, Egypt, Finland, France and the United States supported the reforms and welcomed the decision to reinstate the in-session Provisional Record, as it was not always possible to attend plenary sittings. Only the Provisional Record permitted delegates to follow the plenary debate in full. The representatives of the Governments of Egypt and the United States expressed concern over the difficulties technical committees were already facing with the reduced duration of the Conference. In the opinion of the Government of the United States, this could have implications for the work of the Conference concerning the follow-up mechanism for the proposed Declaration on fundamental rights. Concerning the time-limit for speeches, the representative of the Government of France endorsed the pragmatic approach in the Office paper whereby the five-minute time-limit was to be kept as a matter of discipline even if it had proven unrealistic. With respect to the selective free distribution of Conference reports and in reply to the Worker members' concern, he proposed that at least one set of Conference reports be made available free of charge to NGOs invited to participate in the Conference.
15. In reply to the comments by the Employer and Worker members concerning the organization of work in the Committee on the Application of Standards, the representative of the Government of Germany recalled that the delay experienced was mainly due to the fact that the list of individual cases was established very late in the first week of the Conference, which did not give Governments sufficient time to prepare themselves for these cases. Governments needed to consult their capitals or even to call experts to travel to Geneva to appear before the Committee. This resulted in treatment of individual cases being concentrated in the second half of the second week of the Conference. The situation could however be modified if the Committee decided on the list of individual cases at the beginning of its work, as this would permit the necessary consultations and arrangements to be made sufficiently in advance.
16. The representatives of the Governments of Finland and France supported the proposal that solutions be explored so as to accelerate the establishment of the list of individual cases to be dealt with by the Committee on the Application of Standards and to streamline the organization of its work.
17. In reply to the proposal by the Government representatives concerning the work of the Committee on the Application of Standards, a Worker member, while agreeing that the early establishment of the list of individual cases would be beneficial to all, stressed the importance of the general debate within that Committee, which took place during the first week of the Conference. This general debate was indeed very useful as an information tool for delegates who were not very familiar with the ILO supervisory system, as well as a desirable transition towards the treatment of individual cases during the second week.
18. As regards the various comments on the work of Conference committees, the representative of the Director-General referred to plans being made by the Office to train the secretariats and officers of the different committees. Regarding the selective free distribution of Conference reports, which affected not only NGOs but also national delegations in that the number of free copies was limited to one set for each participant, there had been no complaints recently. The measure had, rather, been well received. While this had only represented $1,500 in savings, there had been other indirect savings as well as a beneficial effect of a reduction in waste. The Office would however have no difficulty in implementing this policy in a more flexible manner in appropriate cases. He recalled that the programme and budget had been elaborated on the basis of these reforms.
19. The Committee accordingly recommends that the Governing Body --
(a) confirm that all the measures adopted at its 267th Session (November 1996), with the exception of that relating to the in-session publication of the Provisional Record, be maintained at the 86th Session (June 1998) of the Conference;
(b) propose that the Conference again make the necessary derogations from articles 4, paragraph 2; 9(a); 14, paragraph 6; and 56, paragraph 9, of the Conference Standing Orders, so as to implement the above measures at that session;
(c) request the Office to revert to the matter on the basis of further experience.
III. Revision of the procedure for the examination of
representations submitted under article 24
of the ILO Constitution
20. The Committee had before it a document(3) submitted for information. Having regard to the numerous ramifications that a revision of the present procedure for article 24 representations could have in relation to other aspects of the supervisory system, the Office had considered it preferable to postpone examination of the matter to the 273rd Session in November 1998.
21. The Chairperson indicated that the Officers of the Governing Body, who had proposed the review of the procedure, had also been consulted. While stressing the importance of the matter, the Officers agreed to the deferral of the question on the understanding that it would permit informal consultations to be held in the meantime.
22. The Employer members stressed the sensitive nature of the issue. Although it mainly concerned questions of procedure, it had potential substantive implications for other aspects of the supervisory system. They supported the view that the matter should be examined in the broader context of the whole system of application of international labour standards, and hoped that various possible alternatives would be put forward to the Committee on that occasion.
23. The Committee took note of the Office paper.
IV. Proposed amendment of the Standing Orders
of the Governing Body concerning the
publication of documents in advance
of Governing Body sessions
24. The Committee had before it a document prepared by the Office(4) proposing an amendment to article 14, paragraph 5, of the Standing Orders of the Governing Body. The purpose of the amendment was to make non-confidential Governing Body documents publicly available before the opening of the Governing Body sessions unless the Director-General decided otherwise. Under the present rules the situation was the opposite: documents were accessible only to members of the Governing Body; they were not accessible to the general public until after the Governing Body has considered them. The text proposed by the Office read as follows:(5)
5. Documents prepared by the International Labour Office and dealing with the items on the agenda of the Governing Body shall be circulated to members of the Governing Body before the opening of each session. They may be made public unless the Director-General decides to make them available only after the question with which they deal has been discussed by the Governing Body and subject to any relevant directions by the latter. The Director-General shall, however, have authority to circulate to the Press those documents which he had decided not to make available prior to discussion by the Governing Body, subject to an embargo date before which they should not be published or utilized. In fixing this date the Director-General shall endeavour to secure, as far as may be practicable, that the publication of such documents does not take place before members of the Governing Body have received them. Documents marked "confidential" by their author in communicating them to the Office or by the Office in communicating them to the members of the Governing Body shall not be made public or circulated to the Press. The documents relating to private sittings shall be confidential and shall neither be made public nor circulated to the Press.
25. The Worker members considered that the Officers of the Governing Body should be consulted before a decision was taken by the Director-General not to make certain documents publicly available. They proposed an amendment to the Office text which consisted in adding the words "after consultation with the Officers of the Governing Body", after the words "unless the Director-General ...".
26. The Employer members supported the proposal by the Worker members but expressed another concern: they considered it important that the Director-General should not make available to the Press the documents in question before they had been received by members of the Governing Body. Such distribution would influence public opinion before the question had been discussed by the Governing Body. It would be necessary to adopt a strategy to deal with the distribution of the documents in question to the Press. The amendment proposed by the Worker members should therefore also apply to the distribution of documents to the Press.
27. The representative of the Government of Germany agreed with the text proposed by the Office as amended by the Worker members. He considered that the problem raised by the Employer members was purely hypothetical. He did not remember having read in the Press in recent years anything concerning Governing Body documents before arriving in Geneva for the sessions.
28. The representative of the Government of Bangladesh drew attention to the fact that the documents were not received early enough to allow for familiarization with them before arriving in Geneva. He proposed an amendment to the first sentence of article 14, paragraph 5, whereby the words "at least one month" would be added before the words "before the opening of each session".
29. The representative of the Government of Finland raised the question of whether the Governing Body should fear public opinion. On the contrary, the interest of the Press was a good thing, but he doubted whether Governing Body documents provoked such an interest.
30. The representative of the Government of the United States raised the question of the implications of the proposal for those documents which would not be available on the Internet if the password system was abandoned. He felt that it was important that the documents should be accessible via the Internet, as in some cases this was the only method to ensure that they were received in time.
31. The representative of the Government of the United Kingdom supported the comments by the representatives of the Governments of Finland and the United States. She supported the Office proposal concerning article 14, paragraph 5, as amended by the Worker members. In her experience, the longer an embargo, the more likely it was that it would be broken.
32. The Legal Adviser, referring to the concerns expressed by the Employer members, explained the purpose of the amendment. Under the present provision, the documents could not be made publicly available before they had been discussed by the Governing Body. However, the Director-General already had the authority to distribute to the Press documents other than those relating to private sittings or marked "confidential" with a safeguard, namely an embargo date. This was fixed by the Director-General in order to avoid as far as possible that such documents were published before members of the Governing Body had received them. The authority of the Director-General would remain unchanged with the amendment, but its application would be narrowed, since the principle from now on would be for all documents to be made available to the public unless decided otherwise. As a result, the documents which were not made available to the public could continue to be made available to the Press, subject to an embargo date. This should take account of the concerns of the Employer members. The amendment proposed by the Worker members, requiring consultation with the Officers of the Governing Body before a decision was taken by the Director-General not to make certain documents publicly available, did not pose any problems. Concerning the question raised by the representative of the Government of the United States, documents which were not made publicly available would continue to be transmitted to the Members concerned in hard copy. The possibility of making them available to those Members via the Internet by means of the password system could also be considered. Concerning the amendment proposed by the representative of the Government of Bangladesh, it related to the question of the delay in the despatch of documents to members of the Governing Body rather than to the availability of these documents to the public, which was the question on the agenda.
33. In response to the question by the representative of the Government of Germany concerning the availability on the Internet of direct requests addressed to governments by the Committee of Experts on the Application of Conventions and Recommendations, a representative of the Director-General explained that the ILOLEX database, developed by the Office, contained the texts of Conventions and Recommendations and the reports of the supervisory bodies, including those of the Committee of Experts. ILOLEX existed in three versions: the first, only available internally on the Intranet, was complete and contained the direct requests of the Committee of Experts. The second, a CD-ROM version, and the third, available on-line on the Internet, were intended for the general public and did not contain the direct requests.
34. The Committee recommends that the Governing Body adopt the following amendment to article 14, paragraph 5, of its Standing Orders:(6)
5. Documents prepared by the International Labour Office and dealing with the items on the agenda of the Governing Body shall be circulated to members of the Governing Body before the opening of each session. They may be made public unless the Director-General, after consultation with the Officers of the Governing Body, decides to make them available only after the question with which they deal has been discussed by the Governing Body and subject to any relevant directions by the latter. The Director-General shall, however, have authority to circulate to the Press those documents which he had decided not to make available prior to discussion by the Governing Body, subject to an embargo date before which they should not be published or utilized. In fixing this date the Director-General shall endeavour to secure, as far as may be practicable, that the publication of such documents does not take place before members of the Governing Body have received them. Documents marked "confidential" by their author in communicating them to the Office or by the Office in communicating them to the members of the Governing Body shall not be made public or circulated to the Press. The documents relating to private sittings shall be confidential and shall neither be made public nor circulated to the Press.
Geneva, 24 March 1998.
Points for decision:
Paragraph 9;
Paragraph 19;
Paragraph 34.
1. GB.271/LILS/1.
5. The changes proposed have been highlighted.
6. The changes proposed are in italics.