GB.276/10/1 |
|
TENTH ITEM ON THE AGENDA
Reports of the Committee on Legal Issues
and International Labour Standards
First report: Legal issues
Contents
(a) Annual review by the Governing Body
(b) Review of the global report by the International Labour Conference
IV. Possible improvements in the standard-setting activities of the ILO
1. The Committee on Legal Issues and International Labour
Standards met on 11 November 1999. It elected the following Officers:
Chairperson: |
Mr. V. Rodriguez Cedeño (Government, Venezuela) |
Employer Vice-Chairperson: |
Mr. D. Funes de Rioja |
Worker Vice-Chairperson: |
Mr. J.-C. Parrot |
I. Standing
Orders questions relating to the
setting in motion
of the follow-up on the ILO Declaration on Fundamental
Principles and Rights at Work
2. The Committee was asked to consider proposals(1) concerning the two remaining aspects of procedure still to be determined in order to ensure that the follow-up on the Declaration on Fundamental Principles and Rights at Work could be implemented within the time frame agreed by the Governing Body. Those aspects were the annual review by the Governing Body and the discussion by the Conference of the global report.
3. The Employer members considered that the proposals set out in the Office document reflected the consensus reached by the Governing Body following numerous discussions, both within the LILS Committee and in the Governing Body itself, and during the course of wider consultations.
4. The Worker members considered that the proposed change reflected the consensus already reached among the constituents.
5. The representatives of the Governments of the United States and the Netherlands recalled the commitment of their countries to the Declaration and its follow-up. The representative of the Government of China drew attention to the need to ensure that the follow-up would be in keeping with the promotional nature of the Declaration and that any solution should have the widest possible support. The representative of the Government of Switzerland considered that the proposals contained in the document concerning these final aspects of the implementation of the follow-up should form part of the overall follow-up system.
(a) Annual review by the Governing Body
6. As indicated in the paper prepared by the Office, under the terms of the ILO Constitution and the Standing Orders of the Governing Body, States not represented on the Governing Body may take part in its discussions only if they are parties to representation or complaint procedures under articles 24 and 26 of the Constitution or to freedom of association proceedings. The Annex to the Declaration allows States not represented on the Governing Body to provide any clarifications that might be necessary or useful for the Governing Body's discussions on the annual review. In order to allow participation of this kind and to differentiate it clearly from the type of participation allowed during representation or complaint procedures, the proposal submitted to the Committee in the form of an amendment to the Standing Orders of the Governing Body would allow participation by Members not represented on the Governing Body in the discussions concerning the annual review which would take place during a sitting of the Governing Body as a committee of the whole.
7. The Employer members supported the proposed amendment as being in keeping with the objective of helping the Governing Body and non-Governing Body members to contribute more to the annual review discussions through an informal exchange of views. The wording of the proposed amendment also gave the Governing Body the flexibility needed to adapt to different circumstances. For those reasons, they supported both the inclusion of a new provision in the Standing Orders and the wording proposed in the document.
8. The Worker members were in favour of the proposed amendment but wanted further information on two points. First, they wanted to know whether the conclusions which were supposed to be adopted during the discussions of the Committee of the whole would be presented to the Governing Body in writing or orally. Secondly, they wondered whether it was appropriate to keep the term "informal" in the proposed amendment since, in their view, it appeared redundant and might give rise to confusion.
9. The representatives of the Governments of Brazil, Canada, Chile, Ethiopia, France, Germany, Guatemala, Namibia (on behalf of the African group), Portugal, Saudi Arabia, Switzerland, United States and Venezuela unreservedly endorsed the proposed amendment to the Standing Orders of the Governing Body. According to the representative of the Government of France, although the amendment concerned an unfamiliar situation, the Governing Body had already experienced something similar during the discussions of the Working Party on the Social Dimensions of the Liberalization of International Trade and, given the innocuous nature of the proposal, the necessary changes to the Governing Body's procedures could be effected directly through an amendment to the Standing Orders.
10. As regards the meaning of the term "informal" in the proposed amendment, the representatives of the Governments of Ethiopia and Venezuela noted that the term reflected the fact that there would be no record of proceedings for the meetings of the Committee of the whole, unlike the official sittings of the Governing Body. The representative of the Government of Venezuela also drew attention to a difference between the French and Spanish versions of paragraph 6: according to the former, the Governing Body would draw (adopterait) conclusions following the annual review, while according to the latter, it would formulate (formularía) conclusions; in his view, it was the Spanish version which should be retained.
11. The representatives of the Governments of the Dominican Republic, India, Republic of Korea and United Arab Emirates, while agreeing with the proposed amendment, recalled the importance of ensuring that the compilation of the annual reports and the introduction prepared by the group of experts were made available before the Governing Body's March session. In this regard, the representative of the Government of the Republic of Korea said that sufficient time should be allowed for members to be able to prepare any statements. The representative of the Government of the United Arab Emirates hoped that the report forms used for the annual review could be translated into Arabic in order to facilitate the preparation of reports.
12. The representatives of the Governments of El Salvador, Mexico and the Netherlands expressed agreement with the proposed amendment but considered that adoption of the amendment should be subject to certain clarifications. For example, the representative of the Government of the Netherlands considered that the amendment should only serve the purpose of the annual review, while the representative of the Government of Mexico, supported by the representative of the Government of El Salvador, considered that a detailed explanation on the mandate, membership and working methods of the future committee of the whole was necessary to allow the Governing Body to adopt the amendment on an informed basis.
13. The representatives of the Governments of China and Pakistan supported the proposed amendment on condition that it was clearly stated that participation by non-Governing Body States in the annual review should be entirely voluntary and that it should be possible where necessary for countries to participate through written communications. They also emphasized that the annual review by the Governing Body should take place in accordance with the principles contained in the Declaration, without calling particular countries to account and without adopting conclusions. The representative of the Government of Pakistan also expressed concern that the annual review should not become a new supervisory mechanism.
14. The representative of the Government of Japan, while endorsing the proposed amendment, recalled that the sole objective of the committee of the whole should be to remove obstacles to full observance of the fundamental principles and rights at work in a promotional manner; furthermore, the discussions should be organized in such a way that they served as a useful basis for the global report.
15. Replying to the legal questions raised by members, the Legal Adviser stated that the appropriate title for the new provision in the Governing Body's Standing Orders was "Committee of the whole". As regards the meaning of that term, he recalled that it was to be a Governing Body committee, whose mandate would be limited to "an exchange of views" and that, being plenary in nature, it would include all the titular and deputy members of the Governing Body.
16. The representative of the Director General, the Executive Director of the Standards and Fundamental Principles and Rights at Work Sector, clarified a number of other points that had been raised during the discussions. First, with regard to the manner in which the committee of the whole would report to the Governing Body, he recalled that, during previous discussions, it had been understood that, for practical reasons, the report could not take the same form as the traditional committee reports; what would be needed instead was a concise report that would be presented orally or, if circumstances permitted, in written form. Secondly, as regards the organization of the Governing Body's work for the annual review, it would follow the sequence set out in paragraphs 5 and 6 of the document, as a number of speakers had suggested. Thirdly, the term "informal" in the amendment was intended to show that the discussions of the committee of the whole would not give rise to a traditional report and to reflect the very nature of the discussions. That having been said, the term was not indispensable and, if the Committee preferred, it could be removed from the proposed amendment. Lastly, he recalled that participation by non-Governing Body States in the discussions concerning the annual review had never been envisaged as a constraint, but rather as an opportunity for those States to participate in the annual review discussions, if they themselves requested it. Replying to the concern that the compilation of reports and the introduction by the Committee of Experts should be made available sufficiently far in advance, he said that the Office was already preparing the compilation, which was expected to be ready by the beginning of February, when a meeting of the new group of experts was planned. The compilation and introduction would be available once the work of translation and editing was completed following the meeting of the group of experts. Although the time available between the meeting of the group of experts and the start of the plenary sittings of the Governing Body at the end of March was relatively limited, the Office would do its best to ensure that the documents were ready and available as quickly as possible.
17. The Executive Director of the Standards and Fundamental Principles and Rights at Work Sector also informed the Committee that the report forms for the annual follow-up on the Declaration would be translated into Arabic by the end of the year. This also applied to the forms used for reports under article 22 for all the fundamental Conventions, including the Worst Forms of Child Labour Convention, 1999 (No. 182).
18. In the light of these discussions, the Committee approved the new article 9bis as drafted by the Office but without the term "informal", it being understood that the removal of that term in no way altered the nature of the procedure described in paragraph 16 above by the Executive Director of the Standards and Fundamental Principles and Rights at Work Sector.
19. The Committee recommends to the Governing Body that it adopt a new article 9bis in its Standing Orders with the following wording:
Article 9bis
Committee of the whole
The Governing Body may decide to meet as a committee of the whole in order to hold an exchange of views, in which representatives of governments that are not represented on the Governing Body may, in the manner determined by it, be given an opportunity to express their views with respect to matters concerning their own situation. The committee of the whole shall report to the Governing Body.
(b) Review of the
global report by the
International Labour Conference
20. The Office document contained a number of proposals concerning possible procedures for discussing the global report on freedom of association and the recognition of the right of collective bargaining at the 88th Session of the International Labour Conference in June 2000. The purpose of those proposals was to ensure that the Conference could discuss the global report in a more flexible way than was possible under the provisions of the Conference Standing Orders concerning discussion of the Director-General's Report to the Conference. In addition to general aspects, the document deals with a number of specific practical aspects of the discussion.
(i) General aspects of the discussion
21. The Employer members considered that the proposed arrangements were in keeping with the purpose of the discussion on the global report, which was to provide a dynamic view of the general situation throughout the world with regard to each of the categories of fundamental principles and rights, which would then serve as a basis for defining technical cooperation requirements. The proposals concerning the timetabling of the discussion, practical arrangements and organization of work had not overcome the difficulty of reconciling the formalism inherent in any formal debating procedure with the need to ensure that the discussion would be an interactive dialogue. Thus, it was necessary to define certain minimum basic parameters for the conduct of discussions, while also allowing a certain flexibility, which the Conference Officers would need to adapt the discussions to particular circumstances.
22. The Worker members considered that the proposals contained in the Appendix to the Office document reflected the consensus which had emerged among constituents during previous discussions and consultations, and that consequently they could support them.
23. The representative of the Government of the United States, and the representatives of the Governments of Canada, France, Guatemala and Saudi Arabia, supported the approach proposed in the paper according to which the practical arrangements for the discussion would be determined initially on an ad hoc basis. Given that the discussion would depend largely on the content of the global report itself, such an approach would make it easier to adapt the procedure in the light of experience. The representatives of the Governments of Canada, France and the United States also considered that a degree of flexibility was essential for an interactive discussion which could identify trends and lead to useful conclusions. That flexibility had to be left to the discretion of the Conference Officers.
24. The representative of the Government of India agreed that the discussion of the global report should take place separately from the discussions on the Director-General's Report to the Conference, initially through ad hoc arrangements until such time as the need to incorporate them in the Standing Orders through appropriate amendments had been assessed. He also pointed out that the discussions should, in any event, reflect the nature of the global report, which was intended to be thematic, rather than a report structured by countries. As regards the interactive nature of the discussion, he doubted that this would be feasible, since if all the constituents from each member State were to have the right to speak, there would be barely enough time for a single statement from each delegate.
25. The representative of the Government of Pakistan supported the view expressed by the representative of the Government of India concerning the thematic and promotional nature of the global report. The representative of the Government of Saudi Arabia considered that the discussion should contribute to the promotion of fundamental rights at work.
26. The representative of the Government of Ethiopia considered that it would be better to establish the practical arrangements for the discussion in advance, rather than leaving them largely to the discretion of the Officers of the Conference.
27. The representatives of the Governments of the Netherlands and Switzerland considered that the global report and the discussion on it during the Conference should be accompanied by an appropriate media campaign. In the view of the representative of the Government of the Netherlands, such a campaign should draw attention to the implementation of the Declaration and thus enhance the ILO's visibility as the sole competent organization in the area of fundamental rights at work.
(ii) Time allocated for the discussion
28. The Worker members emphasized their concern that the time allocated to the discussion should be sufficient to allow all who wished to do so to speak and to ensure that all the topics covered in the global report could be discussed. The discussion needed to be an interactive one if satisfactory conclusions were to be adopted, but time constraints should not mean that certain issues were neglected.
29. The representative of the Government of Denmark, supported by the representatives of the Governments of Germany, El Salvador and Portugal, wondered whether, given the existing constraints, it would not be preferable to allocate three sittings to the discussion, rather than allocating two with the possibility of a third if necessary.
30. The representative of the Government of Guatemala considered that the time proposed in the Office document was sufficient to allow an interactive discussion. If, in the light of experience, it became necessary to make adjustments, the arrangements could always be reviewed.
31. The representative of the Government of Trinidad and Tobago expressed her concern that the proposed arrangements would require additional efforts on the part of the members. She advocated holding all the sittings on the same day. That could be timetabled immediately before the start of plenary sittings or right at the end of those sittings, in order to ensure that reduced delegations would not face difficulties in participating in other Conference events. The representatives of the Governments of China and of the Republic of Korea considered that the discussion should be restricted to two sittings organized on the same day, in order not to detract from the other work of the Conference.
32. The representative of the Government of Saudi Arabia also supported arranging all the sittings on the same day. A third sitting should be arranged only if it proved really necessary.
33. The representative of the Government of Japan said that he would prefer the discussion to take place in two sittings, but was not against the idea of holding a third sitting if this proved necessary.
(iii) Right to speak and time limits
34. The Employer members pointed out that the term "spokespersons of the non-governmental groups" should be understood to refer solely to non-governmental constituents. As regards the time available for speeches, they considered that this should be shared out equitably among the different groups.
35. The representative of the Government of Denmark, supported by the representatives of the Governments of Germany and the Republic of Korea, considered that a time limit for speeches should be established in advance, even if it proved necessary to adjust it subsequently, in order to ensure that no one wishing to speak would be excluded from the discussion, as had happened at one ministerial meeting. This was especially important during the individual statements phase, since it would allow speakers to tailor their statements to a predetermined time limit. He therefore suggested that speaking time should be 15 minutes for opening statements by groups and five minutes for individual statements.
36. The representative of the Government of Germany, supported on this point by the representative of the Government of Saudi Arabia, also pointed out that it was not realistic to assume that time available for speeches would be flexible during the discussion on the global report, given that the time available would be more limited than during the plenary sitting, where the limit of five minutes left barely enough time for all the statements. Similarly, he did not think that it was justified to rule out statements by Government delegates in addition to statements by ministers, a point endorsed by the representative of the Government of the Dominican Republic.
37. The representative of the Government of India took issue with the suggestion that the right of Government delegates to speak was not compatible with the right of ministers to speak, since that would be tantamount to restricting the right of governments to express their viewpoints. As regards the speaking time, he supported the establishment of a limit which would allow the available time to be shared out equitably among all those wishing to speak.
38. The representatives of the Governments of Saudi Arabia and Guatemala considered that the interactive nature of the discussion should be such as to allow any speaker to take the floor a second time, if necessary, to make final statements.
39. The representative of the Government of Ethiopia proposed that the phases devoted respectively to opening statements by spokespersons of groups and concluding remarks should be limited to one hour each, the remaining time being shared out equitably for delegates' statements. It would also be preferable to make it explicitly clear that the term "spokespersons of the non-governmental groups" referred solely to spokespersons of the Employers and Workers.
40. The representative of the Government of China considered that, in order to safeguard the interactive nature of the discussion, it would be essential to limit speaking time and the number of statements which each speaker could make.
41. The representative of the Government of Chile expressed concern that speaking time should be shared out equitably.
42. The representative of the Government of Brazil considered that, rather than restricting time for speeches, a certain flexibility was needed. Allocation of time should be determined on the basis of common sense in the light of the progress being made in the discussion.
(iv) Organization of the discussion
43. The Employer members expressed support for the division of the discussion into three phases, the first devoted to opening statements by representatives of the groups, the second to statements by individual delegates, and the third devoted to conclusions which would serve as a basis for subsequent decisions by the Governing Body concerning action plans.
44. For reasons already indicated, the representative of the Government of India had reservations concerning the utility and feasibility of organizing the discussions in three phases. In particular, he had doubts concerning the way in which concluding remarks made in the third phase could serve as a basis for guidelines for the Governing Body, unless the Conference secretariat were to prepare a synopsis of the contributions made by all the delegates.
45. The representative of the Government of Guatemala, supported by the representative of the Government of El Salvador, expressed support for the suggestion made by the representative of the Government of India that the Conference secretariat should prepare a document which would serve as a basis for guidelines for subsequent Governing Body discussions. It might also be useful to allow an interval of one day between the first two phases and the third.
46. The representative of the Government of the Republic of Korea considered that it would be necessary to allow more time for the first phase devoted to opening statements.
47. The representative of the Government of Japan suggested that, in order to facilitate the type of interactive discussion which the Committee hoped for, the Office should prepare a document setting out points for discussion. That would facilitate discussions and improve organization within the time constraints of the Conference.
(v) The role of the spokespersons of the regional groups
48. The representative of the Government of Denmark expressed reservations with regard to the reference to regional groups in the context of the first phase of the discussion. Given that the global report would inevitably concern countries, even if it was understood that it should not focus on individual countries, the role of the regional groups was not clear.
49. The representatives of the Governments of India and Japan also expressed doubts concerning the reference to the regional groups in the context of the discussion on the global report. Those groups would not always be able to reach agreement because of the differences in development within each region.
50. The representative of the Government of Namibia, supported by the representative of the Government of Ethiopia, did not agree with the preference accorded during the first and third phases to statements by spokespersons of the groups. It would be unfair during those phases to restrict the views of governments to those of their respective regions. Furthermore, it was not always possible to adopt common positions within regional groups. To ensure a meaningful debate, the representatives of all the governments concerned by the action plans needed to have an opportunity to express their views. Consequently, the wording of the appendix needed to be changed to provide for "a third phase to allow spokespersons of the groups and other delegates to make their concluding remarks".
51. The representative of the Government of Pakistan shared the view that the Government delegates should have the opportunity to speak on specific points during the third phase, alongside the spokespersons of the groups.
52. The representative of the Government of Switzerland also expressed serious reservations with regard to the reference to regional groups. The importance of the global report was such that the exclusion of statements by Government representatives could not be justified. In addition, formulating agreed positions at regional level was likely to distort the guidelines for the Governing Body's discussion on action plans in November which the discussion of the global report was supposed to define.
53. Replying to the various concerns and questions raised during the discussion, the Executive Director of the Standards and Fundamental Principles and Rights at Work Sector said, firstly, that the idea of an interactive discussion had emerged following informal consultations in September. He was aware that such an idea was by definition almost the antithesis of a conventional discussion in a plenary sitting. The Office had attempted in the appendix to highlight the overall framework within which the Conference Officers might organize a discussion, adapting it to unforeseen circumstances, provided that there were not too many predetermined constraints. It was important to bear in mind that the proposed procedure was being introduced for the first time and consequently there would be a trial period after which changes might be made, and that explained the flexibility of the proposed arrangements. Referring to paragraph 12 of the Office document, he said that it should not be forgotten that any new arrangements which departed from standard procedures had to be agreed by the President and the three Vice-Presidents of the Conference. Secondly, a plenary sitting was not a committee and the discussion therefore did not lead to the adoption of conclusions. The Office would obviously endeavour, when preparing a report, to highlight a number of key points which might serve as a basis for discussion. As was the case with any other plenary discussion, the Director-General in his reply to the Conference would attempt to summarize the main points of the discussion. Nevertheless, as indicated in the Annex to the Declaration, the appropriate occasion to discuss the conclusions to be drawn from the Conference discussion of the global report was the November session of the Governing Body.
54. Taking into account the points of view expressed by the Committee, the Executive Director proposed that the final part of the appendix to the document should be amended to allow the necessary flexibility which would, at least during the first discussion of this kind in June 2000, allow the Conference Officers to organize the discussion in the light of prevailing circumstances.
55. The Committee recommends to the Governing Body that it invite the Conference, at its 88th Session (June 2000), to adopt the proposals concerning the arrangements for the discussion of the global report under the follow-up to the Declaration, as set out in Appendix I of this report, incorporating the amendments resulting from the discussion concerning in particular: the removal of restrictions on statements by ministers and Government delegates; the inclusion of an explicit reference to the role of the Conference Officers in the organization of work; a provision allowing individual statements during the first and third phases, in addition to statements by spokespersons of groups; and the establishment of a provisional time limit for statements by groups and individuals.
II.
Revision of the procedure for the
examination
of representations submitted under
article 24 of the Constitution
56. Introducing this agenda item, the Legal Adviser recalled that this complex question had been discussed in the Committee in November 1998. The new paper before the Committee(2) responded to questions that had been asked by it, and refined possible solutions based on the guidance given by the Committee. There were essentially three issues: the first concerned the main problem relating to how to handle representations under article 24. Although the Constitution left wide discretion to the Governing Body in this respect, the latter had traditionally followed a rigid approach, under which all representations found receivable were automatically referred either to an ad hoc tripartite committee or to the Committee on Freedom of Association. This lack of flexibility seemed to pose a serious problem as the number of representations appeared to be increasing. The situation had now eased but it seemed prudent to amend the relevant Standing Orders so that the Governing Body could choose the most effective and economic solution for dealing with each representation. The second issue related to an important detail: that of "overlapping" procedures: this was the situation where the receivability of a representation under article 24 was examined while the Committee of Experts on the Application of Conventions and Recommendations was already seized of the same question. In this regard, the Office paper sought to propose a common sense solution for a situation that was expected to occur rather rarely. The third issue related to the utility of continuing private sittings and preserving the confidentiality of documents when the Governing Body was considering reports of tripartite committees. But the purpose of the rules concerned was perhaps not so much to preserve confidentiality, but rather to distinguish the normal dissemination of the report of the tripartite committee from a possible Governing Body decision under article 25 of the Constitution to publish the representation and the statement, if any, made in reply to it -- a measure that had only been taken once in the history of the Organization. The previous discussions seemed to have shown that, while confidentiality might well be relaxed, article 25 of the Constitution should be given back the solemnity for which it was designed.
57. The Worker members considered, as illustrated by the table in the Office paper, that one could not speak of an increase in the number of representations except perhaps for a period of two years. In 1999 only one representation had been submitted. They reiterated their position that the situation was neither dramatic nor abnormal, given the number of workers to be protected, the overall number of member States and the increase in the ratification rates of Conventions. They expressed their concern for what they considered to be a "juggling" exercise on the part of the Office in order to prove that the number of representations continued in fact to increase. If there was an increase, it reflected rather an increase in the failure of certain member States to respect their obligations. It was also important that access by workers' organizations to the representation procedure was not made more difficult by the imposition of limits on receivability. They referred to the limitations of the article 22 procedure, since most Conventions were examined by the Committee of Experts on the Application of Conventions and Recommendations only every five years, and to the fact that, according to the Committee itself, few comments were received from employers' and workers' organizations. The solution proposed in paragraph 26 of the paper (referring the question to the Committee of Experts) was not satisfactory, since it would imply a waiting period of at least two years on average. On the contrary, they felt that the solution suggested in paragraph 27 of the paper (adhering closely to the procedure provided for in articles 24 and 25 for repetitive representations or those not raising any specific problems) should be explored further. As regards the issue of receivability of representations, they opposed the idea of a possible review of the receivability criteria currently in force. Concerning the confidentiality of sittings, the Worker members were of the view that sittings should be public, as was the case for the consideration of complaints under article 26 and for reports of the Committee on Freedom of Association. With regard to the reports of tripartite committees that examined representations, they should not be confidential and the solemnity of article 25 should be restored, as suggested in the Office paper. As regards the suspension of the procedure under article 22 when the procedure under article 24 was initiated, the Worker members considered that there was no legal basis for the view that a representation under article 24 took precedence over the consideration of the reports submitted under article 22 of the Constitution. They concluded that the document for the March 2000 meeting of the Committee should be limited to the specificity of the representation procedure and the practice relating to confidentiality as contained in paragraphs 30 to 35 of the Office paper.
58. The Employer members considered the Office paper did not make for easy reading. The number of representations was not in itself an adequate criterion. However, as the table indicated, the situation had changed. It was appropriate to consider the question outside a crisis period. They shared the view of the Worker members that there could be no question of devising new receivability criteria. However, the Employer members drew a distinction between the question of the criteria governing receivability -- which they did not question -- and the automatic nature of the procedure for any declaration declared receivable which the Governing Body had to examine. The issue of an automatic trigger needed to be further examined in order to avoid automatic acceptance becoming an unnecessary burden for the Governing Body or affecting the credibility of the supervisory machinery where procedures overlapped. This did not mean that possible channels for examination should be expanded, as described in paragraph 26 of the Office paper, but rather that existing channels should be improved within the current procedures. On the issue of confidentiality, the Employer members agreed with the approach contained in the Office paper. As regards the potential for the overlapping of procedures, the Employer members considered that paragraphs 36 and 37 of the Office paper contained practical ideas on ways of avoiding the undesirable inconsistency of the supervisory machinery and of ensuring its credibility.
59. The representative of the Government of Germany found the Office paper very difficult to read, and noted that the situation concerning the number of representations was not dramatic. With the exception of some years when the Governing Body had been confronted with more than ten representations, the figure normally varied from one to six representations per year. He was thus of the view that the current procedure should not be revised, as any modifications would lead to more confusion. The proposals contained in paragraph 26 of the Office paper were not practicable, as the Governing Body would not be in a position at its March 2000 session to deal with the report of the Committee of Experts on the Application of Conventions and Recommendations, as it was not always available then. He considered that the same issue should not be simultaneously considered by two different bodies, as this was detrimental to the consistency of the system, and therefore concluded that the suspension was necessary. However, the suspension of the procedure under article 22 was to the same practical effect as the suspension of article 24. Concerning the effect of the procedure under article 24 on the article 22 procedure, he had doubts regarding the solution in paragraph 37 of the Office paper. As regards the issue of private sittings and the confidentiality of the reports of tripartite committees, he considered that this practice should be abolished and brought into line with that applicable to other procedures.
60. The representatives of the Governments of Denmark and the Netherlands associated themselves with the statement by the representative of the Government of Germany, considering that the paper was indeed difficult to read and stressing that the increase in the number of representations was not a sufficient reason for revising the existing procedure. They also supported the view that no precipitate action should be taken. More information was needed before determining what could and ought to be done. In the circumstances they could not agree with the point for decision. The representatives of the Governments of Cyprus and the Netherlands considered that the revision should be undertaken in the wider framework of the debate on ILO standard-setting policy.
61. The representative of the Government of Croatia stated that none of the reasons given by the Office to justify a revision of the procedure was convincing. The revision proposed was contrary to the efficiency of the procedure and revealed a tendency to transfer the authority of the Governing Body to other bodies under the pretext of helping the Governing Body to fulfil its mandate. This was not acceptable. She could not therefore support the point for decision.
62. The representative of the Government of France concurred with the view that the paper should be set aside for the time being. The solutions proposed by the Office were more complicated than the existing ones, and therefore the status quo appeared preferable. However, the Office paper had revealed some points of detail which could be improved. As regards the private nature of sittings at which representations were examined, he agreed that the practice of private sittings did not make sense and demonstrated a lack of coherence with the practice followed for the other complaints procedures. He was therefore of the view that the sittings of the Governing Body to examine representations should be made public. As regards the difference between the publication of the reports in accordance with article 25 of the Constitution and their dissemination, he agreed with the solution proposed by the Office.
63. The representative of the Government of Ethiopia agreed that the status quo might be preferable under the circumstances, in particular as the Committee, after two discussions, remained confused about the extent of the problem and the appropriate solutions. Paragraph 27 of the document was in his view a perfect example, since the question of interpretation was confused with that of failure to comply with obligations under ILO Conventions. He was ready to support, however, the point for decision on condition that the Office undertook to provide further clarification on the specific points.
64. The representative of the Government of Guatemala, while noting that the increased number of representations was not a problem in itself, concurred with the view that discussion should be continued, as all procedures could be improved. In her view, more objective criteria for receivability had to be refined, whereas the current automatic triggering of the existing procedure also had to be revised. The same was true for the problem of overlapping procedures and the rules concerning confidentiality of sittings, which in her opinion should be the same as those followed for the examination of complaints or for the reports of the Committee on Freedom of Association. It also applied to the distinction between the dissemination of reports of tripartite committees and the solemn publication of a representation in accordance with article 25 of the Constitution. Therefore, so long as no measure of agreement could be reached on these questions within the Committee, the discussions should not deal with concrete amendments but rather with questions of principle.
65. The representative of the Government of Mexico supported the views expressed by the representative of the Government of Guatemala concerning the need to consider new criteria for receivability such as the exhaustion of internal remedies or representativity and the locus standi of the organization submitting the representation with respect to the questions raised.
66. The Legal Adviser stated that the Office could certainly prepare a paper along the lines suggested. Having noted the large measure of agreement on the questions of confidentiality, he suggested that the document should contain practical measures which could be adopted by the Governing Body at its next session. Some concrete proposals could also be submitted to the Governing Body at its next session, not for adoption but for possible consideration in the context of a future emergency situation. With respect to receivability, however, he agreed with the Employer and Worker members that it was hardly possible to introduce new criteria since the present criteria appeared to be the only ones justified by the constitutional provisions. Finally, on the question of the place of the representation procedure in relation to the regular supervisory system, he stressed the constitutional element of the former and noted that the representation procedure, in view of the constitutional implications to which it could give rise, prevailed over the regular supervisory procedure.
67. Following an exchange of views, the Executive Director of the Standards and Fundamental Principles and Rights at Work Sector agreed that the paper for the 277th Session (March 2000) would be limited to proposals on the question of confidentiality and that the other questions would be dealt with in the wider context of the debate on the standard-setting policy of the Organization.
III.
Formal confirmation of the 1986 Vienna
Convention
on the Law of Treaties between States and
International Organizations or between
International Organizations
68. The Committee had before it a document(3) prepared by the Office in response to a request by the United Nations General Assembly, in its resolution 53/100, for international organizations that have signed the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, or those entitled to do so, to formally confirm that Convention at an early date. The Convention had been signed on behalf of the ILO in 1987.
69. The Chairperson took note of the explicit agreement of the Employer members and the accord of the other Committee members with the point for decision.
70. The Committee recommends that the Governing Body request the 88th Session (June 2000) of the International Labour Conference to consider the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, with a view to the deposit of an act of formal confirmation by the ILO, and propose that the Conference adopt a resolution worded as follows:
The International Labour Conference,
Noting that the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, adopted under the aegis of the United Nations on 21 March 1986, was signed on behalf of the International Labour Organization on 31 March 1987 pursuant to article 82(c) of that Convention;
Having considered and approved the provisions of that Convention;
Authorizes the Director-General to deposit, on behalf of the International Labour Organization, an act of formal confirmation of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, pursuant to its article 83.
IV.
Possible improvements in the standard-setting
activities of the ILO
71. The Committee had before it a short document(4) informing it that the Office had considered that more time was needed to complete consultations with the constituents before being in a position to submit a series of proposed possible improvements in the standard-setting activities of the Organization as a whole.
72. The Executive Director of the Standards and Fundamental Principles and Rights at Work Sector, recalling that the process initiated in 1994 with relation to standard-setting activities had expanded to encompass the follow-up to the Director-General's Reports to the Conference in 1997 and 1999, explained that the Office had decided not to submit to the current session a document covering just one aspect of standard-setting policy, namely the questionnaire, but preferred instead to submit to the following session a document that would recapitulate the various aspects that could be addressed in a global examination of the question. Those aspects would certainly include the portfolio, and also a range of issues such as revision methods, the questionnaire, the negotiating process for standard-setting instruments, the working of the supervisory system, etc. Such an exercise required more work than the Office had been able to complete since the previous Conference, as well as consultations with constituents with a view to identifying their concerns and preferences in the area. The next stage would therefore consist of setting priorities among the various possible subjects for examination.
73. The Employer members recalled that they had already made known their position on the subject during the discussion of the Report of the Director-General to the previous session of the Conference and within the Programme, Financial and Administrative Committee during the present session of the Governing Body. They stressed the importance of the examination for the ILO. In view of certain shortcomings it was necessary to question the effectiveness of the standard-setting system and to find appropriate ways of improving the situation. It was not a question of being opposed to standards but of being sure that the instruments adopted by the Organization constituted true tools to protect workers, that they were realistic, universal standards adapted to current circumstances in order to ensure, as one of the pillars of the Organization, the institution's credibility. Shortcomings in the standard-setting system were not limited to the design of the portfolio or the question of revision. The problem was broader than that and the Employer members perceived the examination as a challenge. In their view the aspects that should govern the examination constituted -- on the one hand -- the need to achieve tripartite consensus and -- on the other -- the need for responsible analysis, free of any prejudice. In that connection, they welcomed the Office's commitment to carry out widespread consultations with all the constituents.
74. The Worker members also welcomed the spirit of consultation announced by the Office, but given that the group had not had the opportunity to discuss the question in depth, they had not at that stage reached agreement on what should be the focus of the document for the March session. They stressed the fear that a global examination of the standard-setting system could serve as a pretext for certain reforms that were neither necessary nor desirable. In their view, it was not the system itself that should be put into question, but the attitude of the member States vis-à-vis the system. The essential point was to begin with an examination at the national level. On the one hand, the discussions on the revision of the procedure for the examination of representations under article 24 and on the exercise of revising Conventions, now almost completed by the Working Party on Policy regarding the Revision of Standards, had demonstrated that the shortcomings initially advanced lacked any real foundation. Furthermore, the success of the campaign for the ratification of fundamental Conventions clearly illustrated that improvements were possible without altering the system itself. To conclude, the Worker members stated that while being ready to examine certain possible improvements, they were not prepared for the examination to have the effect of reducing workers' protection. In all events, the examination should result neither in a reduction in standard-setting activities, the elimination of existing standards nor restrictions to the access of workers' organizations to mechanisms to supervise standards.
75. The representative of the Government of the Philippines recalled, on behalf of the Asia and Pacific group, her group's request for the standard-setting system to be re-examined and improved as a whole and welcomed in that connection the commitment made by the Director-General to the Programme, Financial and Administrative Committee. The reform should cover the choice of standard-setting questions, the form and structure of instruments and the revision of the supervisory system. The relevance of the standard-setting system for all Members and for the Organization itself in the new global context should be ensured. The reform should therefore aim to withdraw all outdated instruments, to introduce new much more flexible instruments, and to concentrate standard-setting efforts on the fundamental principles, in the form of framework Conventions as mentioned in the report Decent work. As far as the supervisory system was concerned, improvements should focus on the following criteria: objectivity, transparency and the need to avoid duplication and to strengthen the system's contribution to achieving the Organization's objectives. Transparency was particularly necessary in respect of the selection criteria for members of supervisory bodies and for individual cases to be dealt with by the Conference Committee on the Application of Standards. Lastly, the supervisory system should be reformed to render it more promotional, taking into account the level of development of individual States. The same should apply with regard to the criteria for assessing respect for obligations under Conventions by the supervisory bodies.
76. The representative of the Government of Pakistan associated himself fully with the statement of the Asia and Pacific group and stressed the elements that should be included in any examination of the standard-setting system and the revision of the supervisory system.
77. The representative of the Government of India also associated himself with the position of the Asia and Pacific group and welcomed the work done by the Working Party on Policy regarding the Revision of Standards. The time had come to translate that work into concrete measures to revise or withdraw instruments that were outdated or poorly adapted to current circumstances. He also emphasized that ratification was a voluntary process for each State and did not constitute an end in itself. Referring to the proliferation of instruments, he recalled that the low ratification rate for recent Conventions illustrated the lack of adaptation of standards. In his view, the Organization should wait for the results of the examination of the relevance of the standard-setting system before embarking on any new Conventions.
78. The representative of the Government of Japan, while associating himself with the statement made on behalf of the Asia and Pacific group, insisted that the document to be put before the Committee should include the question of the revision of the supervisory system. He expressed his approval of the Office's commitment for the examination to go hand in hand with widespread consultation.
79. The representative of the Government of Canada, speaking on behalf of the IMEC group, voiced their agreement with the Director-General's view, as outlined in his Report to the previous session of the Conference and in his statement to the Programme, Financial and Administrative Committee, on the need for a comprehensive review aimed at improving standard-setting activities. The debate should cover all aspects relating to normative activities and should aim to achieve a clear, global standard-setting policy. The key principles on which the examination should be based included the following: the need not to restrict the standard-setting system but instead to adapt it; the need for a coherent, meaningful and up-to-date set of standards, the need for this set of standards to be widely ratified and applied; the relationship between and the roles of Conventions and Recommendations within the system; the need to have a system to evaluate standards to ensure their relevance; and the need to enhance the effectiveness and efficiency of the supervisory system. Lastly, while welcoming the Office's commitment to carry out consultations, she suggested that a progress report including a possible timetable for work to be carried out should be submitted to the March session of the Governing Body.
V.
Cooperation Agreement between the
International Labour
Organization and the Andean Community of Nations
80. The Committee examined the first draft of a proposed Agreement between the International Labour Organization and the Andean Community of Nations.(5)
81. The Employer and Worker members agreed with the proposed Agreement but the latter wished for further information on whether the Business and Labour Advisory Councils for which provision is made in the Cartagena Agreement were actually operational.
82. The representative of the Government of Venezuela, also on behalf of the representative of the Government of Peru, expressed his full agreement with the proposals contained in the draft Cooperation Agreement as, in addition to the exchange of information, mutual participation and joint project execution, better cooperation between the two institutions would help to achieve the ILO's strategic objectives in the subregion.
83. After having confirmed the existence of the Advisory Councils referred to by the Worker members, the Chairperson noted the Committee's approval of the proposed Agreement.
84. The Committee recommends that the Governing Body approve the text of the Cooperation Agreement between the International Labour Organization and the Andean Community of Nations, contained in Appendix II to this report, and authorizes the Director-General (or his representative) to sign it on behalf of the ILO.
Geneva, 12 November 1999.
Points for decision:
Paragraph 19;
Paragraph 55;
Paragraph 70;
Paragraph 84.
Ad hoc arrangements for the discussion
of the global report
under the follow-up to the Declaration at the
88th Session of the International Labour Conference
Principle of the discussion
Having regard to the various options referred to in the Annex to the Declaration, the Governing Body recommends that the global report submitted to the Conference by the Director-General should be dealt with separately from the Director-General's reports under article 12 of the Conference Standing Orders and should be discussed during plenary sittings devoted entirely to it.
Timing of the discussion
Two sittings on the same day should be convened for the discussion of the global report, with the possibility, if necessary, of extending the sitting or convening a further sitting on the same day or on a different day, as appropriate.
In order to take account of the programme of work of the Conference and of the fact that a number of ministers who usually are present during the second week of the Conference may wish to take the floor, the discussion of the global report should be held during the second week of the Conference.
Procedure for the discussion
The separate discussion of the global report recommended above implies in particular that the statements made during the discussion of the global report should not fall under the limitation concerning the number of statements by each speaker in plenary provided for in article 12, paragraph 3, of the Standing Orders, and that the discussion should not be governed by the provisions of article 14, paragraph 6, concerning the time limit for speeches. These provisions should accordingly be suspended under the procedure provided for in article 76 of the Standing Orders to the extent necessary for the discussion of the global report.
Organization of the discussion
Special arrangements will be made by the Officers of the Conference for the organization of the discussion.
The time available would be divided into three phases: a first phase devoted to opening statements by the spokespersons of the Employers and Workers and, if appropriate, by other delegates; a second phase for statements by individual delegates; and a third phase to allow spokespersons of the groups and other delegates to make their concluding remarks in the discussion.
The speaking time would be set, subject to adjustments decided by the Officers of the Conference, at ten minutes for speeches by group spokespersons and at five minutes for delegates' speeches.
Cooperation Agreement between the Andean
Community of Nations
and the International Labour Organization
Whereas the Andean Community of Nations is a subregional organization that promotes the economic and social integration of its member States;
Whereas the International Labour Organization is a specialized agency of the United Nations which promotes social justice and universally recognized human and social rights, for which it has a tripartite structure in which workers and employers participate jointly with governments in the work of all its representative bodies;
Recognizing that both institutions undertake activities concerned with the integration of peoples and the improvement of their living and working conditions;
THE ANDEAN COMMUNITY OF NATIONS, represented by the General Secretariat, AND THE INTERNATIONAL LABOUR ORGANIZATION (hereinafter referred to as the Parties),
HAVE AGREED to sign this Agreement of Cooperation:
Article I
Cooperation
1.1 The Parties shall cooperate on a reciprocal basis in those matters of joint interest within their spheres of competence and mandate, and in their respective programmes of activities and, in particular, in the following areas:
(a) the establishment of mechanisms of participation of the civil society in the institutions of the Andean Community of Nations and the promotion of social dialogue in the countries of the Community;
(b) support to the Andean Business and Labour Advisory Councils;
(c) occupational safety and health;
(d) social security;
(e) training and skills development for work;
(f) labour aspects linked to the setting up of the Andean Common Market;
(g) dissemination of the instruments of the International Labour Organization and standardization of Andean labour standards;
(h) advice to governments so that they might comply with international labour standards, with special attention being paid to those concerning fundamental rights at work;
(i) other subjects that the Parties shall jointly agree upon.
Article II
Exchange of information
The Parties shall inform each other on the development and progress of those activities which are of joint interest and shall exchange, on a permanent basis, information and documents on these activities, provided that these are not subject to restrictions of confidentiality.
Article III
Mutual consultations
The Parties shall communicate to each other their plans of action in the subject areas and countries to which this Cooperation Agreement refers and shall take into account the proposals made in connection with these plans of action, with a view to guaranteeing effective coordination and avoiding unnecessary overlapping of efforts, thus promoting a better use of the available resources of both institutions.
Article IV
Joint project execution
4.1 When the activities or projects programmed by the Parties in the countries and subject areas to which Article 1 of this Agreement refers are of common interest, the possibility might be explored of carrying out such activities or projects jointly or in a coordinated way.
4.2 The Parties may also finance those activities or projects carried out by one or other of the Parties, without detriment to the contribution or participation of other organizations or institutions.
4.3 The Parties shall undertake to formulate, execute and raise funds for joint projects in subject areas to which Article 1 of this Agreement refers and in the countries making up the Andean Community of Nations.
Article V
Mutual invitations
The Parties shall send each other invitations to appoint representatives at meetings and conferences of common interest, the regulations of which provide for the participation of these representatives. To this end, respective timetables of the events and the nature of these events shall be exchanged sufficiently in advance.
Article VI
Technical meetings
The Parties shall agree to hold technical meetings on those matters which are of joint interest and in accordance with the guidelines established for each case in particular.
Article VII
Implementation of the Agreement
7.1 The General Secretariat of the Andean Community of Nations and the ILO shall jointly draw up the projects and programmes of activities they consider necessary to develop the issues stipulated in Article 1.1 of this Agreement.
7.2 The Parties may sign complementary agreements in accordance with the guidelines established in this Agreement.
7.3 The Parties may, by mutual agreement, or on their own initiative subject to the agreement of the other Party, count upon the collaboration of other organizations or institutions to develop activities that might be carried out jointly.
7.4 The funding of the cooperation provided for in this Agreement or in complementary agreements concluded, shall be carried out with the Parties' own resources or with cooperation funds.
Article VIII
Settlement of disputes
Any dispute that might arise with respect to the interpretation, application or fulfilment of this Agreement, shall be settled by means of direct negotiations between the Parties.
Article IX
Entry into force, amendment and termination
9.1 This Agreement, having been approved by the competent bodies of the Parties, shall enter into force on the date of its signature by the duly authorized representatives of each Party and shall last for an indefinite period.
9.2 Amendments to this Agreement may only be made by joint agreement, in writing, by the Parties. The instruments in which the amendments are contained will be added as appendices to this Agreement and become an integral part of the Agreement.
9.3 This Agreement may be terminated by mutual consent or terminated by either of the Parties upon giving no less than six months advance notice in writing. The termination of the Agreement shall be without prejudice to joint activities in the process of being implemented which shall be completed in accordance with the Agreement and the respective operational programme.
IN WITNESS THEREOF, the Secretary-General of the Andean Community
of Nations, Ambassador Sebastián Alegrett, and the Director-General
of the International Labour Office, Mr. Juan Somavia, being duly authorized,
sign this Agreement of Cooperation in the city of ..., on the ... of ... 1999,
in two copies in Spanish, both equally authentic, with one of the copies for
each of the Parties.
For the Andean Community of Nations: |
For the International Labour Organization: |
Sebastián Alegrett |
Juan Somavia |
Secretary-General |
Director-General |
The Andean Community of Nations |
International Labour Office |
1. GB.276/LILS/1.
2. GB.276/LILS/2.
3. GB.276/LILS/3.
4. GB.276/LILS/4.
5. GB.276/LILS/10/2.
Updated by SA. Approved by NdW. Last update: 6 March 2000.