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GB.273/LILS/1
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Committee on Legal Issues and International Labour Standards |
LILS |
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FIRST ITEM ON THE AGENDA
Revision of the procedure for the examination of
representations submitted under article 24 of
the ILO Constitution
Contents
Paragraphs
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1-7 | |
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I. |
8-15 | |
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II. |
Diversification and rationalization of the form of examination |
16-32 |
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A. Identifying the right form of examination for each type of representation |
16-23 |
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17-19 | |
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20-23 | |
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B. How to determine what treatment a representation is to be given (institution of a permanent filtering mechanism)? |
24-32 |
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III. |
33-37 | |
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IV. |
Confidentiality of sittings and documents concerning representations |
38-49 |
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39-41 | |
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42-49 |
Appendix: Standing Orders concerning the procedure for the examination of representations under articles 24 and 25 of the Constitution of the International Labour Organization
1. Under the Standing Orders concerning this procedure,(1) once representations under article 24 of the Constitution have been declared receivable by the Governing Body on the basis of the criteria set out in article 2, they are automatically referred to a tripartite committee composed of members of the Governing Body for examination as to substance, except where the allegations relate to a Convention dealing with freedom of association.
2. In recent years, this automatic referral to a committee has given rise to problems when the Governing Body has been faced by a large number of representations. Such was the case in 1986-88; since the beginning of the 1990s there has again been a substantial increase in the number of representations, and this is a trend that is liable to continue. Decentralization and the active partnership policy, which have helped to focus attention on this procedure, could well have contributed to this development. Be that as it may, the consequence is it inevitably places a strain on the secretariat's resources and on the availability of Governing Body members to take part in the work of the committees concerned.
3. The Officers of the Governing Body therefore consider that the Committee on Legal Issues and International Labour Standards should be invited to consider the matter and to propose ways of improving the procedure if the present trend continues. The Governing Body was supposed to have examined the subject at its 271st Session (March 1998),(2) but in view of the complexity of the issues, consideration of this document was postponed so that it could be better prepared. This postponement has had the advantage of bringing to the fore additional questions regarding the current procedure, which can now perhaps be looked at from a broader perspective.
4. The first point, to which the Director-General promised to devote urgent attention in his reply to the discussion of his Report at the 85th Session of the Conference, concerns the effect that the institution of the representation procedure has on the regular supervisory procedures. The question was raised when the Conference Committee on the Application of Standards was called upon to examine the application by the Russian Federation of the Protection of Wages Convention, 1949 (No. 95), while a representation was already being examined by the Governing Body.
5. Another question was raised, by the Government representative of the United States at the last session of the Governing Body in June 1998, as to whether the various aspects of representations under article 24 should continue to be considered in private sittings, together with the related question of the confidentiality of the reports submitted by committees set up to examine such representations.
6. The purpose of this document is to consider, first, the constitutional and practical considerations behind the practice under which representations found receivable are always referred to a tripartite committee of the Governing Body; second, the possibility of diversifying and rationalizing the examination of representations; third, the effect of the institution of the adversarial procedure under article 24 on the regular supervisory system provided for under article 22; fourth, the public or private nature of the Governing Body sittings concerned and the confidential nature of the reports of committees set up to examine representations.
7. Since these are important questions that affect the working of the supervisory system as a whole, and which in any event relate to a long-term problem, they should be given the time needed to allow very careful thought. The amendments to the relevant Standing Orders proposed in this document are therefore intended as illustrations of a possible overall solution, rather than as texts to be necessarily approved at this session of the Governing Body. Depending on the outcome of the first discussion, they could be submitted in final form to the session in March 1999.
I. Origin of,
and need to reconsider, the practice of
referring representations to a tripartite committee
8. Article 24 of the Constitution reads as follows (emphasis added):
In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
9. The word "may" highlights the contrast between, on the one hand, the requirement that any representation emanating from an industrial association and relating to an alleged failure to observe a ratified Convention be declared receivable and, on the other, the discretionary nature of any follow-up action decided by the Governing Body.
10. This contrast is quite understandable when seen in the original context of Part XIII of the Treaty of Versailles. The above provision, which was amended in 1946, came under article 409, immediately after the provision contained in current article 22 of the ILO Constitution, with its requirement that an annual report be made on ratified Conventions. There is a certain logic to this: reports under article 22 are supposed to provide information drawing attention to any difficulties that may have come to light in the application of a Convention; these difficulties might then justify recourse to the representation or complaint procedures. In other words, the constituents had decided that the industrial associations of workers or employers should have the primary responsibility for ensuring that States took the necessary measures to comply with their commitments.
11. However, as was pointed out in the document prepared by the Office for the first draft of the Standing Orders relating to article 24,(3) such an open invitation could have serious implications for Members; that was why the right of any industrial organization to make a representation came with a corollary in the form of the very extensive discretion given to the Governing Body in respect of any representation made to it.(4)
12. The problem then is how to exercise this discretion in a way that is not arbitrary. The solution that soon came to the fore was to subject all receivable representations to an objective examination, which should not however be entrusted directly to the Governing Body. In an addendum to the document presenting the initial draft of the Standing Orders in 1932, the Office therefore proposed that a tripartite committee be set up to examine each representation. In putting forward this solution, it cited inter alia the difficulties that had arisen (prior to the establishment of the Committee of Experts) in conducting a full and impartial examination of the annual reports submitted under article 22.
13. Initially, the tripartite committee's mandate covered both the receivability and the substance of representations. It later became apparent, however, that, inasmuch as a representation's receivability was determined by simple criteria that could be applied almost automatically, it would make more sense to have the Officers of the Governing Body rule on its receivability so as to avoid having to set up a committee on a representation that might subsequently prove irreceivable. The solution of always referring representations that have been found receivable to a tripartite committee (other than those relating to freedom of association) has, for its part, never been put into question.
14. There are two reasons why this would seem to be an appropriate moment to revert to the question. The first is that the increase in the number of representations is no doubt no mere accident. It is the arithmetical result of the (perhaps initially unforeseeable) increase in the number of instruments liable to give rise to representations and in the number of ratifying States. But it is also the reflection of the political will and natural tendency of national industrial organizations that are nowadays in a better position to bring all their resources to bear in the defence of their interests.
15. The second reason is current constitutional practice, which among other things had the effect of broadening the role of the Committee of Experts and of the Conference Committee on the Application of Standards, with the result that the examination of reports under article 22 goes much further than the mere consideration of the facts referred to above. It now entails a real assessment of the compatibility of national law and practice with the provisions of the Conventions. Specifically, it must be borne in mind that the Committee of Experts may ask questions on its own initiative and that, since the introduction of article 23.2 of the Constitution in 1946, the industrial organizations may comment on the reports submitted pursuant to article 22, in particular. It would seem indispensable that this role be taken into account so as to avoid the potential overlap of the different procedures or conflicts between them, and to ensure that they are, as far as possible, complementary. This raises two issues:
- the possibility of dealing with representations differently according to their nature;
- the need to institute some means of channelling them in one direction or another so that, on the basis of these criteria, each representation can find the most appropriate solution.
II. Diversification
and rationalization of
the form of examination
A. Identifying the right form of examination
for each type of representation
16. To a small extent, the Standing Orders relating to representations actually recognize that referral to an ad hoc tripartite committee may not in some instances be the most appropriate solution, in so far as they provide that Conventions dealing with trade union rights should be referred to the Committee on Freedom of Association. But there may be other times when there might be a more appropriate procedure, depending on whether the representation raises questions of fact or of law and whether it raises questions of fact or of law and whether it raises a new problem or one that has already been dealt with by the competent bodies. Let us look at each of these questions in turn.
1. Questions of fact or questions of law
17. Given its origin, composition and permanence, the Committee of Experts is ideally suited to rule on questions of law arising in the course of its supervisory function (though it is not competent to make a definitive ruling on matters of interpretation). The tripartite committees set up by the Governing Body on an ad hoc basis do not necessarily have members with a legal background and their conclusions could therefore more easily be challenged from the legal standpoint by the States concerned, quite apart from the possibility of their conflicting with the observations of the Committee of Experts. On the other hand, tripartite committees are well adapted to examining and determining facts, specific problems or questions of general policy involving tripartism at the national level. It would therefore seem desirable that the substance of representations raising strictly legal questions should rather be examined by the Committee of Experts and that the others (subject to the considerations below) should be referred to a tripartite committee. The legal framework and conditions for the examination of such representations should, however, be very carefully identified.
18. As regards the Committee of Experts it should be clear from the outset that a representation would not be referred to it as such; it would merely be asked to examine the substance of the matter as part of its mandate under article 22. From the constitutional standpoint it is for the Governing Body, and the Governing Body alone, to decide what is to become of a representation, and specifically on possible recourse to article 25 of the Constitution (discussed further below), which provides for the sanction when a government's statement or attitude is deemed by the Governing Body not to be satisfactory. Referral to the Committee of Experts would entail closure, as least provisionally, of the procedure for the representation concerned and, in any case, a decision not to apply article 25 of the Constitution.
19. It would also be understood that, if the follow-up by the Committee of Experts did not lead to any solution of the (necessarily legal) problem within a specified period of time, the complainant would be at liberty to revert to the representation and request the Governing Body to implement article 25 of the Constitution directly, under conditions discussed further on in this document.
2. New problems or problems that have already been dealt with
20. The Standing Orders relating to article 24 do not provide that representations relating to issues concerning which a representation has already been made or a similar issue are irreceivable. This is only normal as there may be developments of both a factual and a legal nature in regard to a particular Convention or State.
21. On the other hand it may happen -- as it would more and more often in future if the solution referred to above were adopted -- that a representation relates to an issue that is in the process of being examined, or has already been examined, in accordance with established procedures. It is not unusual, for example, for a representation to be made in respect of allegations that have given rise to observations by the Committee of Experts for several years already, or to a debate in the Conference Committee on the Application of Standards. To this might be added in future the case of a representation referred to the Committee of Experts under the circumstances mentioned above but on which no progress has been noted within a given period of time.
22. There would be no more reason to refer a representation to a tripartite committee in these two instances than there would in the hypothesis considered in section 1 above. Apart from the fact that the issue would in most cases be a question of law, it could only involve one of the following situations:
- The lack of progress is due to a lack of political will on the part of the State concerned to remedy a situation that has been the subject of observations by the Committee of Experts. In this case, the question would not be whether or not to re-examine the substance of the representation but rather to draw the appropriate conclusions from the lack of progress. Rather than the matter being referred to a tripartite committee, therefore, the Governing Body should simply give the country concerned one last chance to state its position; should its reply offer no immediate or very early prospect of remedying the situation, the decision should be taken to proceed with the publication of the representation, along with any reply received from the government, in accordance with article 25.
- Alternatively, the government's attitude might stem from its disagreement with the Committee of Experts on how an obligation should be understood. In this case, the matter becomes a question of interpretation of the Convention, which could not appropriately be referred to a tripartite committee, but which would rather call into play the procedure provided for in article 37 of the Constitution.
23. In both instances, the appropriate solution would simply be to follow the procedure set out in articles 24 and 25 of the Constitution, i.e. directly to invite the government concerned to make any such statement on the subject as it may think fit and, should that statement not be deemed satisfactory, to publish the representation made, together with any reply to it, along the lines discussed further on -- which should make it quite clear that such publication is to be regarded as a sanction.
B. How to determine what treatment a representation is to
be given (institution of a permanent filtering mechanism)?
24. One question that the procedure outlined above inevitably raises is what form of examination a representation that meets the conditions of receivability is most appropriate in the light of its content. It follows from the foregoing considerations that this part of the process calls for very careful study and involves a much more significant element of judgement than does the question of a representation's receivability, which is a largely mechanical process. The possibility of entrusting this responsibility to some body other than the Officers of the Governing Body must therefore be envisaged. There would seem to be two possibilities.
25. The first would be to set up a standing committee for the preliminary examination of representations whose responsibility, once the receivability of a representation has been established, would be to examine its content in order to determine the most appropriate channel for its further examination. Such a committee should be fairly small but with more than three members (as is the case with the Officers of the Governing Body), for example, two members from each group -- so as to ensure a sufficiently broad and diversified representation of the points of view. In principle its recommendations to the Governing Body should be by consensus; should there be disagreement, the Governing Body should be informed of the different positions so that it can decide between them.
26. Should there be general agreement on the creation of such a committee, it would, in the interests of streamlining and rationalizing the procedure, seem logical and desirable that it should also be entrusted with the examination of the receivability of representations and even be given the power to decide on such receivability (on the basis of the existing criteria), provided its decision is unanimous. In cases of disagreement, the question of receivability would be submitted to the Governing Body for decision. In many cases, and especially when a representation is to be referred to the Committee of Experts, this would have the advantage of considerably speeding up the examination of representations.
27. The second solution would be to replace the ad hoc tripartite committees by a standing tripartite committee that would be called upon, on the one hand, to channel each representation to the most appropriate form of examination (along the lines indicated above) and, on the other, to examine the substance of any representation that had been deemed not to call for some other form of examination.
28. At first sight, this solution would seem even more rational and simple. However, three considerations must be taken into account. First, while the exercise of directing representations calls for continuity as well as for certain determinations of a legal nature, this is not necessarily true of the examination of their substance which, in the hypothesis considered above, would be considered by the standing committee precisely because it concerned matters of fact or specific situations. The institution of a standing committee with all these responsibilities might constitute a considerable and demanding burden for its members -- which is why this solution, already mooted in the past, has not so far been taken up. Secondly, one must consider whether it is desirable, from the standpoint of the system's impartial management, that the committee called upon to decide on the most appropriate form of examination should at the same time be competent to examine the substance of a representation in one such form or another. Finally, the merging of these two functions would probably mean keeping the examination of the receivability of representations separate, with the result that the simplification of the procedure would in any case not be as great as at first might appear.
29. In any case, it is up to the LILS Committee to provide some guidance in the light of the foregoing considerations. As has already been said, however, it may be helpful to visualize the various proposals if they are presented in the form of draft amendments to the relevant Standing Orders.(5) This would call for three different types of amendment to the provisions as they now stand.
30. In the first place, the Standing Orders would have to provide for the institution of a standing tripartite committee whose mandate, depending on the option chosen, might cover:
- the examination of the receivability of representations in accordance with the criteria set out in article 2.2 of the existing text;
- the selection of the most appropriate channel for the examination of representations along the lines set out in paragraphs 16-24 above;
- the examination of the substance of any representations not deemed by the standing committee to call for another form of examination.
Article 2 of the Standing Orders might thus be amended to read as follows:
Article 2
- it must be communicated to the International Labour Office in writing;
- it must emanate from an industrial organization of employers or workers;
- it must make specific reference to article 24 of the Constitution of the Organization;
- it must concern a Member of the Organization;
- it must refer to a Convention to which the Member against which it is made is a party;
- it must indicate in what respect it is alleged that the Member against which it is made has failed to secure the effective observance within its jurisdiction of the said Convention.
1. The Director-General shall immediately transmit the representation to the appropriate Committee of the Governing Body established for such purpose, so that it can rule on its receivability and decide on the steps to be taken to examine the substance of the representation.
2. The receivability of a representation is subject to the following conditions:
3. The Committee shall reach its decisions by consensus. Should its members not unanimously agree on the question of receivability, the Committee shall refer the matter to the Governing Body with a report indicating the views that were expressed by its members. The Governing Body shall, in the light of this report, rule without further discussion on the receivability of the representation.
31. In the second place, the Standing Orders should contain provisions relating to the various forms of examination of representations. Such an amendment could read as follows:
Procedure for the prior examination of
the substance of representations
Article 3
- whether the issues raised in the representation have previously been examined under the ILO's supervisory procedures;
- to what extent the allegations made raise questions of law or of fact that relate directly to the implementation of the Convention(s).
- if the representation relates to a Convention dealing with trade union rights, refer it to the Committee on Freedom of Association for examination in accordance with articles 24 and 25 of the Constitution;
- communicate the representation directly to the government against which it is made and invite the latter to make a statement on the subject within the time fixed by the Governing Body; upon receipt of a statement from the government concerned, the Governing Body may:
- declare the procedure closed;
- proceed as indicated in subparagraph (c) or (d) below;
- order the representation to be published in accordance with article 25 of the Constitution;
- transmit the matter raised in the representation to the Committee of Experts on the Application of Conventions and Recommendations to be followed up within the framework of its mandate and, if appropriate, to request the government for a report under article 22 of the Constitution, on the understanding that, if within ... no effect is given to such observations as the Committee of Experts may make, a further representation may be submitted and examined in accordance with the procedure set out in clause (b) above;
- refer the representation to a tripartite committee appointed by the Governing Body [to the tripartite committee referred to in article 1.1 above] for further examination in accordance with the provisions of articles 4 to 6 below;
1. Once a representation has been declared receivable, the Committee referred to in article 2.1 shall make a recommendation to the Governing Body as to which of the various procedures listed in paragraph 2 below should be chosen. For this purpose, the Committee shall draw up a report on the subject after having considered in particular:
2. On the basis of the Committee's report, the Governing Body may:
[3. If the Governing Body decides to refer the representation to a committee by virtue of subparagraph 2(d) of this article, it shall designate an equal number of representatives of the Government group, the Employers' group and the Workers' group from the members of the Governing Body to sit on the committee. No representative or national of the State against which the representation is made, and no person holding office within the occupational organization that has made the representation, may sit on this committee.]
32. In the third place, these amendments would entail some additional amendments to the headings of the various sections (Examination of the representation by a tripartite committee, Final examination of the representation by the Governing Body, etc.), along with amendments to the last section concerning the final examination of the representation by the Governing Body, as follows:
Article 7
1. When the Governing Body considers the report of the committee on the issue of receivability, or when it has before it the response of the government against which the representation is made or the report of the tripartite committee requested under the provisions of article 3.2 above, the Government concerned ...
III. Effect of the adversarial
procedure under article 24 on
the regular supervisory machinery under article 22
33. It has always been accepted that the examination of reports under article 22 by the Committee of Experts, and consequently by the Conference Committee on the Application of Standards, should be suspended in the event of a representation or complaint being made, inasmuch as these come under procedures that have been specifically provided for in the Constitution to resolve disputes over the observance of obligations deriving from ratified Conventions. An exception is, however, made to this practice where the matter concerns freedom of association; this will be discussed further on.
34. Prior to the June 1997 session of the International Labour Conference, the suspension of the examination of reports under article 22 by the Committee of Experts had entailed the suspension of the discussion of the case by the Conference Committee on the Application of Standards. In so far as the Committee of Experts has suspended its examination of a given case, its report contains no observation for discussion by the Conference Committee. At the 1997 session of the Conference, however, the report that the Committee of Experts adopted in December 1996 contained an observation on the application by the Russian Federation of the Protection of Wages Convention, 1949 (No. 95), in which it called on the Government to submit full details to the Conference at its 85th Session (1997). At its March 1997 session, the Governing Body had declared a representation concerning the application of Convention No. 95 by the Russian Federation to be receivable and had referred it to a tripartite committee. The Conference was therefore, for the first time, confronted with the question whether the effect of that decision was to suspend further examination of the case by the Conference Committee; since there was no specific provision on the subject, this situation gave rise to some controversy.(6)
35. For reasons that flow from the considerations set out above, it would seem perfectly legitimate to maintain a practice under which the constitutional procedures prevail: the representation procedure must take precedence for the simple reason that, together with a complaint under article 26, it is the only procedure that gives rise to a "conclusion" having constitutional force (in the form of a decision to sanction the government concerned by publishing the representation or complaint).
36. For practical reasons it should also be stressed that, if the proposals above are accepted, the extent of the problem (i.e. of possible overlapping) is considerably reduced in terms of both time and substance. On the one hand, the proposal that legal issues raised by a representation be referred to the Committee of Experts would, as we have seen, entail closing the representation procedure at least provisionally. The period of time during which the representation would be examined by the tripartite committee would therefore be short, and it would only be during that period that the Committee of Experts would need to refrain from making observations in its report to the Conference on the issue raised by the representation. Furthermore, the scope of the suspension would also be limited in terms of the subject-matter since it would only relate to the specific issue raised by the representation. In some cases, of course, it may not be easy to establish a clear distinction between the issues raised in a representation and other aspects of the application of the same Convention. However, it should be possible to rely on the wisdom and expertise of the Committee of Experts to draw the appropriate distinction.
37. In fact, the only difficulty of applying the principle of suspending examination of a representation is that there is no legal reason why it should not also apply to representations relating to freedom of association. From the practical standpoint, however, this would mean that the Conference Committee on the Application of Standards might find itself prevented from dealing with a case for an extended period. Of course, this difficulty concerns representations as such and not "complaints" with respect to freedom of association in so far as, since there is no provision for such complaints in the Constitution, the same reasoning does not apply to them. Besides, it can be fairly easily resolved, as there is no reason why, in the case of representations as such, the Governing Body should not be entitled to set a limit on the period of time during which further examination would be suspended -- for example, if it receives an interim report from the Committee on Freedom of Association proposing that the regular procedures be resumed -- since the Constitution gives the Governing Body full discretion to decide on the procedure to be followed. A general provision, in the form of the addition of a new paragraph to article 3 of the Standing Orders, could read as follows:
4. If a representation has been declared receivable and is being examined in accordance with paragraph 2 above, the examination by the regular supervisory bodies of reports on the Convention(s) concerned under article 22 of the Constitution shall, in so far as the report relates to the issues raised in a representation, be suspended until the procedure has been declared closed by the Governing Body, unless the latter decides otherwise.
All in all, therefore, the extension of the principle of suspension to representations relating to freedom of association should under these circumstances have only limited implications, other than perhaps encouraging potential complainants to make their complaints within the context of freedom of association rather than in the form of a representation under article 24.(7)
IV. Confidentiality of sittings
and documents
concerning representations
38. At the 272nd Session (June1998) of the Governing Body, the Government representative of the United States questioned the purpose of holding private sittings to examine issues relating to representations. He questioned the genuinely confidential nature of the documents distributed in connection with representations, and asked that the question should be considered in an appropriate context. The Governing Body was informed on that occasion that the point raised could be considered in the context of the review of the procedure for the examination of representations being undertaken by this Committee
39. The question of the private character of Governing Body sittings was examined when the Standing Orders concerning the procedure for the examination of representations were last revised in 1980. The draft revised text submitted to the Committee on Standing Orders and the Application of Conventions and Recommendations at the 211th Session (November 1979) proposed deleting the provision requiring private sittings. The explanation for this proposal was as follows: "In line with practice relating to complaints under article 26 of the Constitution and cases considered by the Committee on Freedom of Association, the report of the tripartite committee would not be a confidential document and would be considered by the Governing Body in public sitting." The representative of the Director-General pointed out, moreover, that it was in reality very difficult to maintain the confidential nature of a report which existed in several hundred copies. However, during the discussions in the Committee several Government members expressed the view that the confidential nature of the procedure should be retained. They pointed out in particular that the only sanction provided for in the Constitution was publication, and that this sanction would be weakened if the proceedings were made public before being closed. The Committee asked that a revised text be prepared for the next session of the Governing Body.
40. The text submitted to the Committee at the 212th Session (February-March 1980) therefore included a provision corresponding to paragraph 3 of article 7 of the present text which reads as follows:
3. The meetings of the Governing Body at which questions relating to a representation are considered shall be held in private.
At that session, there was general agreement in the Committee that the confidentiality rule should be retained. The Worker members pointed out that the sanction provided for by article 25 of the Constitution was publication, and that if the report of the Committee had already been examined in public sitting much of the force of a decision to publish it would be lost. Certain Government members expressed the view that the only private sittings should be those at which the Governing Body considered the report of the Committee on the substance of a representation, not those at which it considered the matter or receivability. In the event, however, the text adopted and still in force covers all meetings at which questions relating to a representation are considered.
41. As already indicated, the Committee on Freedom of Association's reports on representations referred to it pursuant to article 3, paragraph 2, of the Standing Orders are considered by the Governing Body in public sitting. Moreover, if it was in future to be the rule that sittings should be public, it would still be possible under article 8 of its Standing Orders of the Governing Body to sit in private at the request of one Government delegate or of the majority of the Employers' or the Workers' group. Finally, the point should be made that the Worker members' argument that the abolition of private sittings could lessen the impact of the possible publication of a representation raises a more general question as to the procedure to be followed so as to maintain a genuine distinction between the "dissemination" of a report and the "publication" stricto sensu of a representation. This point will be considered in greater detail in section B below.
B. Publication of reports of committees
42. As indicated above, the debate on whether or not to maintain the private character of the sittings for the consideration of article 24 representations was largely influenced by a misunderstanding on the question of publication under article 25 and the difficulty of protecting the confidentiality of the documents examined at those sittings. If the Governing Body were to decide that matters relating to representations should no longer by examined in private sitting, the documents concerning them, including the committee reports, would no longer be confidential. Accordingly, under article 14, paragraph 5, of the Standing Orders of the Governing Body, as amended at its 271st Session, they might be made public, including on the Internet, unless decided otherwise. It would however seem undesirable for these reports, even if they were to be examined in public sitting, to be made public before the Governing Body had taken a decision on them. Article 14, paragraph 5, provides two possible means of avoiding this. Either the committees, as the authors of the reports, could mark them "Confidential", or the Officers of the Governing Body could give directions that these reports should not be made public until they had been discussed by the Governing Body.
43. If it were decided to maintain the rule providing for private sittings, the relevant provision of article 14, paragraph 5, would be that "The documents relating to private sittings shall not be made public nor circulated to the press." The current practice is that only the conclusions of the committees, as officially adopted by the Governing Body in public sitting, are published in the Official Bulletin once they have been approved by the Governing Body. However, the same solution should apply to the Committee on Freedom of Association's reports on representations referred to it. The problem here is that the Committee's reports as a whole are made public as soon as they are submitted to the Governing Body.
44. It is felt that the reports of committees appointed under article 24 of the Constitution should be made available in full once they have been approved by the Governing Body, the provisions of article 1 of the Standing Orders prior to its amendment in 1980 could re reinstated. This provision reads as follows:
1. All the steps in the procedure concerning a representation received by the Office in accordance with article 24 of the Constitution of the Organization shall be confidential until such time as the matter is finally disposed of by the Governing Body.
45. At the same time, the publication of the report of a committee appointed under article 24 (or making such a report available in other ways) would need to be clearly distinguished from a publication of the representation, pursuant to a formal decision made under article 25 of the Constitution. The latter publication may be considered a form of sanction, whereas the purpose of "publishing" (disseminating) the reports of committees is to make available to the ILO's constituents material which may cast light on the manner in which a Convention is or should be applied and to provide guidance on the interpretation given to it by the Governing Body, which may thus be of assistance to governments in deciding on a possible ratification or on the manner of giving effect to the Convention.
46. It seems important that the concept of publication should be kept for a formal decision by the Governing Body under article 25 "to publish the representation and the statement, if any, made in reply to it". It is clear from the context that the decision to publish in that case comes as the result of a determination by the Governing Body that the statement made in reply by the government concerned is not satisfactory. Dissemination of the report for information purposes should therefore not carry any possible implication that it constitutes a publication under article 25. In fact, there has only been one publication under that article; in that case (Czechoslovakia, Convention No. 111, in 1978) the report was published in a special supplement of the Official Bulletin indicating that the publication was pursuant to a decision under article 25, rather than in the appropriate section of the Bulletin.
47. To emphasize the distinction, the currently applicable procedure could be clarified on one point. According to article 8 of the relevant Standing Orders: "if the Governing Body decides to publish the representation and the statement, if any, made in reply to it, it shall decide the form and date of publication". This provision should be understood as meaning that the Governing Body's decision to publish should be taken in all solemnity. Consequently, any such decision to publish should come under a specific item on the agenda of the Governing Body rather than be treated under a general heading. This should suffice to focus media attention on the Governing Body's discussion of the matter, even if (perhaps especially if) it sits in private, and to give added publicity to the subsequent outcome.
48. It should be emphasized that this would have the advantage of offering an intermediate solution, if not an alternative, to the complaints procedure, which is costly and not really appropriate when it concerns a legal issue, since under article 28 of the Constitution the mandate of Commissions of Inquiry is to prepare a report "embodying its findings on all questions of fact relevant to determining the issue between the parties and containing such recommendations as it may think proper ..."
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49. In the light of the foregoing analysis, the Committee may wish to request the Office to submit to it at its next session specific draft amendments to the Standing Orders concerning the procedure for the examination of representations under articles 24 and 25 of the Constitution, due account being taken of the options and guidance formulated in respect of:
- the replacement of the automatic referral of receivable representations to a tripartite committee by a system affording a variety of procedures for examining representations according to their nature and purpose (paragraphs 16-23);
- in the event of a positive response to subparagraph (a) above, the need to set up some kind of machinery for channelling representations in the appropriate direction (paragraphs 24-32);
- the confirmation of the suspensive effect of representations on the regular supervisory procedures (paragraphs 33-37);
- the desirability of Governing Body sittings at which issues raised by representations are examined no longer automatically being private (paragraphs 39-41);
- the desirability of maintaining the confidential nature of the examination of representations and its implications for the application of article 25 of the Constitution (paragraphs 42-48).
Geneva, 15 October 1998.
Point for decision: Paragraph 49.
1. See Appendix.
2. GB.271/LILS/3.
3. See the Memorandum submitted by the Office to the Standing Orders Committee at the 56th Session of the Governing Body (January 1932).
4. ibid.
5. In the draft amendments proposed below, differences of substance with the current wording are indicated in italics.
6. The question was not raised within the Conference Committee on the Application of Standards but during the discussion of its report in plenary session, by the Workers' delegate of the Russian Federation.
7. Inasmuch as the possible outcome of the latter as opposed to that of a complaint would no longer necessarily be to its advantage.