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86th Session
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Report VII
Consideration of a possible Declaration of principles
of the International Labour Organization
concerning fundamental rights and its appropriate follow-up mechanism
International Labour Office Geneva
ISBN 92-2-110665-9
ISSN 0074-6681
CONTENTS
Ratification and promotion of the fundamental ILO Conventions
The strengthening of the ILO's supervisory system
Towards a Declaration on fundamental rights
II. The general significance of the ILO Declaration of principles concerning fundamental rights
III. The legal scope of the Declaration and its follow-up mechanism
IV. Practical scope of the Declaration: Examination of the follow-up mechanism
A. The annual review for non-ratifying countries
Scope
The competent body to carry out the review
Methods of examination
B. The global report
Draft Declaration concerning fundamental human rights at work
Annex - Follow-up mechanism for the Declaration concerning fundamental human rights at work
This paper retraces the origins of the draft Declaration concerning fundamental human rights at work and provides, especially for those who have not been directly involved in the consultations, explanations of its general import and its legal and practical scope as an aid to understanding the proposed text and follow-up mechanism and to resolving questions which are still pending.
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I |
The question of the ILO's future activities with regard to fundamental rights was raised for the first time as a priority matter for deliberation within the more general context of the Report of the Director-General to the 81st Session of the International Labour Conference (June 1994),(1) which centred on a reaffirmation of the ILO's values and the reinforcement of its means of action within the setting of globalization of the economy.
The definition and particular significance of the fundamental rights have become increasingly clear from the discussions of the Governing Body and, thanks to the smooth cooperation between the Governing Body and the Office in the preparations for the World Summit for Social Development which took place in Copenhagen in March 1995, resulted in the adoption by the Summit of specific commitments and a Programme of Action on workers' fundamental rights, namely those relating to: the prohibition of forced labour and child labour; freedom of association, freedom to form trade unions and carry out collective bargaining; equality of pay between men and women for work of equal value; and the elimination of discrimination in employment.
With regard to the more specific question of follow-up and how to strengthen the ILO's activities in this area, some basic indications on the way of proceeding gradually emerged during two simultaneous discussions which took place in parallel in the Governing Body, one within the Working Party on the Social Dimensions of the Liberalization of International Trade from November 1994 onwards (and which will be considered later in this paper) and another within the Committee on Legal Issues and International Labour Standards (LILS). The LILS Committee for its part has set itself the goal of promoting universal implementation of the fundamental rights in two ways: through the ratification and promotion of the fundamental ILO Conventions and through what has been included on the Committee's agenda as strengthening the ILO's standards supervisory system.
Ratification and promotion of the fundamental ILO Conventions
On 25 May 1995, the Director-General, referring to the follow-up to the World Summit for Social Development, invited all those countries that had not ratified all the Conventions concerning fundamental rights to indicate whether they planned to do so and, if so, what timetable was planned and, if not, what substantive or technical difficulties delayed or prevented ratification.
Since then, the Governing Body at each of its sessions has examined the results of this ratification campaign on the basis of replies received to successive letters from the Director-General. The results of the campaign are encouraging. In 1995, 21 States had ratified the seven fundamental Conventions; that number has now grown to 34 and more than 80 ratifications of the fundamental Conventions have been registered. Universal ratification of these seven Conventions would require more than 250 new ratifications, and this is not an attainable objective, as the Director-General made clear in his Report to the 85th Session of the Conference in June 1997.(2)
In November 1995, the Governing Body likewise decided(3) to extend the system of four-yearly reports hitherto required under article 19 of the Constitution for the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), to the six other Conventions concerning fundamental rights which fall into four groups, namely: forced labour (Conventions Nos. 29 and 105), freedom of association (Conventions Nos. 87 and 98), equality of opportunity and treatment (Convention No. 100) and child labour (Convention No. 138). This decision was first implemented in 1997 with regard to the forced labour Conventions and will be examined at the 1998 session of the Conference within the context of the report submitted by the Committee of Experts on the Application of Conventions and Recommendations.(4)
The strengthening of the ILO's supervisory system
At its 262nd Session in June 1995, the Governing Body endorsed the proposal of its Chairperson to request the Director-General to submit a paper on the strengthening of the ILO's standards supervisory system.(5)
Following a review of existing procedures, the possibility of putting in place a new procedure for dealing with complaints regarding non-compliance with the principles of elimination of discrimination and forced and child labour, which in juridical terms would be based on article 10.1 of the Constitution,(6) was studied. Such complaints would be examined by one or two ad hoc committees; the alternative, of entrusting the examination of such complaints to the Committee on Freedom of Association, was not recommended by the Office, which explained that it would be better not to attempt to modify the procedure of the Committee on Freedom of Association but rather to draw lessons from it for parallel procedures of a similar nature concerning other fundamental Conventions.(7)
During this discussion, the Governing Body was unable to reach agreement on whether or not to extend the procedure similar to that used for freedom of association.(8) At the end of the discussion, and in the absence of any consensus, the Governing Body decided to transmit the question to the Committee on Legal Issues and International Labour Standards which could then continue the examination itself.(9) There was, however, unanimous agreement that the existing procedures used for freedom of association should not be changed.
Towards a Declaration on fundamental rights
At the 268th Session of the Governing Body (March 1997), the LILS Committee had welcomed the recognition given to the strengthened role of the ILO with regard to the fundamental human rights by the Copenhagen World Summit for Social Development and by the WTO Ministerial Conference in Singapore in December 1996.(10) In this context, the Committee stressed the great importance to the Organization's credibility of the promotion of basic principles and rights and the strengthening of the supervisory machinery. As a result, the Committee had endorsed a proposal by the Employers' group, supported by a number of Government representatives and also supported, after initial hesitation, by the Workers' group, to make the mandate of the ILO more explicit "by means of a document, which might take the form of a Declaration, which could be adopted by the Conference. This document would not modify the Constitution, but would clarify its meaning in relation to the fundamental principles".(11)
This proposal would also figure in the Report presented by the Director-General to the International Labour Conference at its 85th Session in June 1997.(12) The discussions on this question were very lively(13) and revealed a number of misunderstandings. This prompted the Director-General in his reply to make it clear that "it is in no way a question of imposing, through such a Declaration, new obligations on member States against their will. The Declaration is a means of reaffirming the logic of the commitments and the values to which States have already freely subscribed in joining the ILO [...] nobody could reproach the Organization for inviting its Members to take seriously such commitments by making them more explicit". Many delegates emphasized that the Conference at its June 1998 session should examine and adopt such a Declaration.
Immediately after the Conference, the Governing Body added an item to the agenda of its 270th Session (November 1997) concerning follow-up on the discussions of the Report of the Director-General "in particular as regards the possibility of including on the agenda of the 86th Session (1998) of the International Labour Conference an additional item concerning a Declaration on workers' fundamental rights and follow-up arrangements".(14)
Following in-depth discussions, the Governing Body, bearing in mind all the views that had been expressed with regard to the document presented by the Office,(15) decided to place on the agenda of the 86th Session of the International Labour Conference an additional item concerning the examination of a possible Declaration of principles concerning fundamental rights and its appropriate follow-up mechanism. The Office was asked to prepare the relevant documents, taking into account all the views expressed during the discussions and close consultation with the constituents.
Following the consultation process which took place in January and February 1998, a paper containing a preliminary draft text(16) was communicated by the Director-General to the Governing Body. In general, this document was well received. Following the discussions, the Governing Body authorized the Director-General to prepare a draft of a possible Declaration of principles concerning fundamental rights and its follow-up mechanism for the 86th Session (1998) of the International Labour Conference taking into account all the views presented in the debate in the Governing Body. In order to arrive at the most acceptable solutions, these proposals should be prepared in close consultation with the tripartite constituents and the draft distributed to the constituents at the earliest possible date -- in any case no later than during the first week of May 1998.
A working paper was prepared to facilitate informal tripartite consultations on the draft Declaration and follow-up mechanism which proved to be a very useful means of narrowing the range of differences that remained and helping the Office to prepare the present report. The draft text reproduced in the present report was drawn up in the light of the comments received during and following the consultations and represents a significantly simplified version of the previous text. The follow-up mechanism has also been adapted to leave open different alternatives on issues where consultations have not identified clear choices. These alternatives are shown between square brackets.
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THE GENERAL SIGNIFICANCE
OF THE ILO DECLARATION
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II |
The basic document, which was submitted in November 1997, attempted to explain the objectives of the proposed Declaration.(17) In the light of the most recent consultations, one thing should be stated very clearly: the Declaration as such is not aimed at establishing the fundamental character of the rights in question. Their pre-eminence follows from their subject matter and from the fact that they have already been recognized as fundamental both within and outside the ILO. In other words, fundamental rights are not fundamental because the Declaration says so; the Declaration says that they are fundamental because they are. The particular objective of the Declaration is in fact to promote universal implementation, by all Members of the ILO, of those rights that are recognized as fundamental in the workplace through (among other means) additional technical assistance aimed at facilitating ratification of the seven fundamental Conventions.
Apart from the particular circumstances of the anniversary of the Universal Declaration of Human Rights, which was evoked in the Report of the Director-General to the Conference, it is clear from all the relevant documents and discussions that universal implementation of the fundamental rights by all ILO Members is subject to two fundamental considerations.
The first consideration is that of the congruence between the phenomenon of globalization of the economy and the desire for universal implementation of fundamental rights. Proposals aiming to ensure that the trend towards globalization is accompanied by "social clauses" to establish a binding link between protection of workers and liberalization of international trade, have given rise to heated debate and there would be little point in resuming the arguments here. Suffice it to recall that, even before discussions focused on this issue during the final stages of the Uruguay Round, the Report of the Director-General,(18) written for the 75th anniversary of the ILO in 1994, adopted a clear position by emphasizing that "In order to dispel these suspicions and play a truly useful role, the ILO should recognize both that its mandate requires that it be a party to this debate, and yet that it should not advocate either restrictions to trade or a compulsory equalization of social costs" (italics added). It recalled in more specific terms the premise according to which "the ILO should rely on cooperation rather than coercion in its efforts to promote social progress" by helping its Members to act on the intentions which they had declared by joining the Organization through an ongoing dialogue to remind member States of their obligations. In short, while the ILO's mission is to consider the impact of globalization on the objectives of social progress, it has neither the mandate nor the means to redress the impact of differences in levels of social protection on international trade, even if that impact could be established.
The debate on the social dimension of the liberalization of international trade which followed the discussions of this Report at the 81st Session of the Conference by the Working Party set up for that purpose in June 1994, has shed new light on this issue. After it had been decided to leave aside the discussion concerning the establishment of a binding link between liberalization of trade and respect for labour standards, it became clear that the real issue was not to impose on all ILO Members a single level of social protection, regardless of their respective levels of development and their particular historical and cultural circumstances and contrary to the Organization's philosophy. The issue was rather to ensure that those concerned would have the necessary means, taking into account the resources and particular conditions of each country, to claim an equitable remuneration for their labour. The fundamental rights have an obvious relevance in this context, since they represent a guarantee that employers and workers can freely demand, individually and collectively and without any discrimination, "a just share of the fruits of progress", to quote the Declaration of Philadelphia.
The second consideration concerns the expectations of the international community and the credibility of the ILO itself. The particular significance of the fundamental rights of workers has, as we have already seen, been confirmed outside the ILO, firstly by the Copenhagen World Summit for Social Development in 1995 and its follow-up activities; by the OECD's Trade, employment and labour standards: A study of core workers' rights and international trade; and by the WTO Ministerial Conference which took place in Singapore in 1996.
It is useful in this context to consider the wording of Commitment 3(i) adopted by Heads of State and Government at the World Summit for Social Development:
We commit ourselves to promoting the goal of full employment as a basic priority of our economic and social policies, and to enabling all men and women to attain secure and sustainable livelihoods through freely chosen productive employment and work.
To this end, at the national level, we will:
[...]
(i) pursue the goal of ensuring quality jobs, and safeguard the basic rights and interests of workers and to this end freely promote respect for relevant International Labour Organization Conventions,(19) including those on the prohibition of forced and child labour, freedom of association, the right to organize and bargain collectively, and the principle of non-discrimination.
According to paragraph 54(b) of the Programme of Action adopted by the World Summit, governments should enhance the quality of work and employment by:
(b) Safeguarding and promoting respect for basic workers' rights, including the prohibition of forced labour and child labour, freedom of association and the right to organize and bargain collectively, equal remuneration for men and women for work of equal value, and non-discrimination in employment, fully implementing the Conventions of the International Labour Organization (ILO) in the case of States parties to those Conventions, and taking into account the principles embodied in those Conventions in the case of those countries that are not States parties to thus achieve truly sustained economic growth and sustainable development;
One year later, trade ministers meeting in Singapore at the first WTO Ministerial Conference also affirmed in paragraph 4 of their Declaration that:
4. We renew our commitment to the observance of internationally recognized core labour standards. The International Labour Organization (ILO) is the competent body to set and deal with these standards, and we affirm our support for its work in promoting them. We believe that economic growth and development fostered by increased trade and further trade liberalization contribute to the promotion of these standards. We reject the use of labour standards for protectionist purposes, and agree that the comparative advantage of countries, particularly low-wage developing countries, must in no way be put into question. In this regard, we note that the WTO and ILO Secretariats will continue their existing collaboration.
It is true that, as many speakers rightly observed during the informal and official discussions, neither the Copenhagen Summit nor the Singapore Ministerial Conference entrusted any particular mandate to the ILO to take new forms of action in order to promote workers' fundamental rights. That would in fact have been inappropriate, given that the ILO can derive its mandate only from its own Constitution. Nevertheless, the fact remains that, unless the conclusions of the Copenhagen Summit are regarded as mere words, the ILO could hardly believe that it was expected only to go on as before ("business as usual"(20)). It was now for the ILO to consider seriously how it could contribute effectively, within its mandate and the resources available to it, to giving effect to the double recommendation which concerned it directly and according to which States that had ratified the Conventions should apply them fully and those who had not should apply the principles of those Conventions. It is precisely this, as we shall see, that is the purpose of the Declaration and its follow-up mechanism: its aim is to remind ILO member States that even if they have not ratified particular Conventions and are thus not legally accountable for their implementation, they still have a duty, both towards themselves and with regard to the commitments which they have undertaken, to apply the principles of those Conventions which are the expression of values which they freely accepted by adhering to the ILO Constitution. More generally, it is also important to mobilize the ILO's information and assistance resources to encourage all States, whether they have ratified these Conventions or not, to move towards implementation. Finally, it should be stressed that the emphasis on the fundamental rights in the draft Declaration does not mean that the ILO has neglected other aspects of follow-up to the Copenhagen Summit, a fact shown by the leading role it assumes in the area of employment.
Apart from the moral obligation of the ILO to endeavour to give effect to the conclusions of the Copenhagen Summit, there is no doubt, if we consider the general picture, that the discussions on the draft Declaration and the inclusion of this item on the Conference agenda have aroused considerable interest in the Organization and its standard-setting activity, and that its credibility depends on the success of this enterprise. It should be emphasized that all the member States, and especially those who want it clearly recognized that the ILO is the sole organization which should deal with the question of fundamental rights, have an interest in the success of the project. Failure of the project to bear fruit will inevitably be perceived as a failure of the philosophy and methodology of voluntary action which the Organization has stated to be the most effective and appropriate, even in the current economic climate, for achieving its objectives of progress and social justice.
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THE LEGAL SCOPE
OF THE DECLARATION
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III |
The legal nature and scope of the Declaration have given rise to numerous discussions since the question of its inclusion on the Conference agenda was first envisaged and then decided. In particular, a concern was expressed that the purpose or the effect of the Declaration would be to extend, by legally questionable means, the constitutional obligations binding on member States and that it could serve as a pretext for trade measures of a protectionist kind. The Office has on several occasions endeavoured to dissipate these fears. The following paragraphs summarize the essential considerations already developed in the document prepared for the April consultations.
The concerns most frequently voiced refer to two questions: firstly, whether or not the Declaration is legally binding, or, to use more precise and exact terms, whether it is legally binding per se; and secondly, to what use the Declaration might be put outside the context of the ILO. Before recalling the three main elements of the reply, it seems useful to add a word of clarification concerning the meaning and scope of this instrument at the procedural level.
In the general practice of the organizations of the United Nations system, a declaration may be defined as a "formal and solemn instrument suitable for rare occasions when principles of lasting importance are being enunciated".(21) In ILO practice, this kind of act appeared with the Declaration of Philadelphia,(22) which, however, constitutes a special case, since two years later it was incorporated into the Constitution on the occasion of the constitutional amendments of 1946. A second interesting example was the Declaration concerning the Policy of Apartheid of the Republic of South Africa, adopted in 1964, updated in 1988 and abrogated in 1991 when it became superfluous. This last mentioned precedent shows that a declaration, even though it clearly does not have the scope of a standard-setting instrument, has certain characteristics which give it a broader scope than that of a simple resolution under article 17 of the Standing Orders of the Conference. Such a declaration, over and above its solemn form, is adopted within the framework of an item placed specifically on the Conference agenda by the Governing Body. As a result, in practice the special report of the Director-General which was intended to monitor the situation was considered as a kind of standing item on the Conference agenda. And this explains in particular why instead of being discussed in the plenary, as is the case with the Report of the Director-General, it could be sent to an ad hoc select committee.
Effects vis-à-vis the Organization
As regards its effects vis-à-vis the Organization, the Declaration is clearly an act which commits the Organization as a whole and has legal effects with regard to all its bodies, the Conference, the Governing Body and the Director-General, at least equal to those of a resolution for the reasons indicated above. In the present case, these bodies will in particular have to ensure the implementation of the "concomitant obligation", placed upon the Organization, to provide all appropriate assistance to support the efforts of its Members. However, this obligation placed on the Organization does not imply, for reasons which will be examined below, an increase in the legal obligations of its Members.
As regards the legal effect of the Declaration vis-à-vis Members, the question is in fact whether or not the Declaration adds any further obligations to those that already exist under the Constitution and under constitutional practice. When examining the text of the Declaration and its follow-up mechanism, the answer to this question must be negative.
It should first of all be pointed out that, basically, the Declaration does not set out to establish or extrapolate a new or more detailed charter of fundamental labour rights; its aim is to underscore the renewed relevance and importance, in the context described in the Preamble, of fundamental rights, the principle of which is already enshrined in the Constitution and the Declaration of Philadelphia. Freedom of association, the protection of children, equality of treatment and opportunity are, indeed, already upheld in the Constitution or the Declaration of Philadelphia. Thus the only point on which the Declaration extrapolates to any extent is forced labour, a term which does not actually appear in the text, but the prohibition of which appears inherent to the principles proclaimed in the Constitution and the Declaration of Philadelphia which establish that labour is not a commodity and that workers are entitled to have their freedom of association, dignity and equality of opportunity respected. The Declaration would without any doubt be tantamount to a political and moral recognition by ILO Members of this logic. Strictly speaking, however, the Declaration does not constitute an interpretation of the Constitution which is legally binding for the member States because only the International Court of Justice is competent to give an interpretation of this nature, in accordance with article 37.1 of the Constitution. In any event, nobody as yet has tried to argue that adherence to the Constitution and its underlying principles would leave Members entirely free to practise forced labour if they had not ratified the corresponding Conventions (and, what is more, all constitutions or national legislations exclude the practice of forced labour).
In short, the Declaration requires nothing more of ILO Members than to be consistent and to comply with the commitment they have already undertaken, and serves to encourage them in their endeavours; it certainly does not seek to impose further commitments on them. Contrary to what may have been said, there is definitely no question of subjecting Members to specific provisions of Conventions that they have not ratified.
The same conclusions apply in respect of the follow-up mechanism, which will be further examined below, especially given the fact that this mechanism might be implemented even in the absence of a Declaration. The mechanism is based on article 19(5)(e) of the Constitution, which the Governing Body is, in any event, entitled to implement according to procedures that it might see fit to establish, and -- depending on what is decided -- on a report or general overview based on all available information that would simply involve the functions that might be assigned to the International Labour Office by the Conference or the Governing Body as provided for under article 10 of the ILO Constitution.
What has been said above regarding the legal scope of the Declaration has an important corollary with regard to its effects outside the ILO: the Declaration, just as it does not create any new constitutional obligations for member States, does not release them from any legal obligations they may have under international law. This applies particularly to obligations arising from other multilateral treaties to which ILO Members may be party and which they can only renounce in accordance with the conditions provided in those treaties or constituent charters, or in accordance with the general conditions provided in the Vienna Convention on the Law of Treaties (article 41). It is clear that the Declaration, given that it is not even a treaty, would not provide any legal basis for derogations from these treaties inter se. Neither would it allow the ILO to issue any sort of instructions on a matter that does not fall within its competence. From this point of view, it could be said that the final "understanding", which in the preliminary draft submitted to the informal consultations appeared after the asterisks, is redundant from a legal point of view. Its significance is in fact mainly political. During the consultations, many participants expressed the view that if it were to be retained, the wording should be simplified and its place in the text modified. In the light of the preceding explanations which will be part of the preparatory work, the paragraph which was intended to emphasize the legal aspect of the problem could be deleted. Since there is still no agreement on its inclusion and the Workers' group as well as some governments have expressed their opposition to the very principle of such a clause, it seemed preferable to leave the paragraph where it was. It may be appropriate, as proposed by some governments, to place it in the Preamble after the last "Whereas" and in order to link up with the previous paragraph, it might be worded as follows: "Whereas the Organization is not competent in the sphere of trade and nothing in the present Declaration may be seen as authorizing any Member of the ILO to adopt measures of a protectionist kind or ... etc. ...".
Another formula, also proposed during the last consultations, would consist of placing the paragraph -- possibly in its simplified form -- immediately before the paragraph which begins with the word "Decides".
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PRACTICAL SCOPE
OF THE DECLARATION: EXAMINATION
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IV |
As is clear from the wording of the item on the agenda of this session, the Declaration is not intended to stand alone. It would be meaningless without the follow-up mechanism that should accompany it. Throughout the official and informal discussions, the Workers recalled again and again that there would be no point in a Declaration that was merely a list of good intentions, however well expressed. The Workers' demand -- supported by the Employers and largely shared by governments -- was that the Declaration be accompanied by a follow-up mechanism that was truly effective, credible and meaningful to put it into practice. There appears to be no easy way of reconciling this legitimate desire for effectiveness with the concern, emphasized repeatedly by many speakers, that the Declaration and its follow-up mechanism be strictly promotional in nature, and not involve any punitive aspect, duplication of existing procedures or new obligations. The underlying principle of such a synthesis, however, emerged fairly clearly in the course of discussions: it is not a matter of establishing new procedures, but of applying in as consistent a manner as possible the rich and varied constitutional or practical means and procedures already at the ILO's disposal. This general intention is reflected in the two elements of the follow-up mechanism: the annual review for non-ratifying countries and the four-yearly global report for all countries.
A. THE ANNUAL REVIEW FOR NON-RATIFYING COUNTRIES
This is a key element of the follow-up mechanism in the light of the general objective of the Declaration recalled above, i.e. the promotion of the universal application of fundamental rights, even by non-ratifying States, in accordance with point 54(b) of the Copenhagen Programme of Action.
The solution initially envisaged as a means of achieving this objective, by analogy with the freedom of association procedure, would have involved a complaints system. It was discarded because it became clear that it would not gain the necessary wide support (see historical background above).
Consideration was then given to the option of applying an original provision of the ILO Constitution introduced in 1946, which allows the Organization to request non-ratifying States to report "at appropriate intervals as requested by the Governing Body, the position of its law and practice in regard to the matters dealt with in the Convention, showing the extent to which effect has been given, or is proposed to be given, to any of the provisions of the Convention by legislation, administrative action, collective agreement or otherwise and stating the difficulties which prevent or delay ratification of such Convention" (article 19(5)(e), of the Constitution).
It follows from the wording of this provision that the Governing Body has a very wide discretion as to the manner of implementing this provision through the formulation of questionnaires. It is free to determine their frequency, and is under no obligation to request full reports every time on all of the points covered in this provision.
As pointed out above, the Governing Body had already decided to use this provision in 1995 to promote each of the four categories of fundamental rights. This decision was put into effect for the first time in 1998 in the form of special reports on the Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105), presented by non-ratifying countries, which were analysed in Part III of the General Report of the Committee of Experts to this session of the Conference. Ultimately, the adoption of the Declaration and its follow-up mechanism would only mean making the following adjustments to this decision:
- the decision taken in 1995 would be applied to each of the remaining categories of fundamental rights (child labour, freedom of association and collective bargaining, and non-discrimination). This would enable a full review to be undertaken of the overall situation in countries with regard to law and practice, as well as difficulties preventing ratification. In accordance with established practice, this review would be carried out by the Committee of Experts and transmitted to the Conference Committee on the Application of Standards;
- instead of repeating this review every four years for each of the categories of rights in question, as was recommended in 1995, the follow-up mechanism provides that this initial full review would be followed every year by a simplified review in which Members would merely be requested to indicate any relevant change in their legislation or practice concerning all of the rights. Employers' and workers' organizations would continue to be able to communicate their observations under the same conditions as those currently applicable.
This systematic use of article 19 is not contestable as such, neither has it been contested. Some questions, however, have been raised as to the scope of the review, the body competent to conduct it and the procedures for carrying it out. These will be examined below.
It has been made clear in this respect that the existing machinery applied with regard to freedom of association is to be kept intact. This does not, however, rule out the possibility of an annual review that would have a very different purpose, which would be much more general (the point would be not to identify individual shortcomings but to gain a general overview of changes that have occurred). Concern was expressed that concurrent use of both mechanisms would create a risk of double jeopardy. These misgivings could be easily dispelled by specifying in the procedure that no particular case being examined by the Committee on Freedom of Association can be included in the annual review. Even more fundamental, perhaps, is the question whether in the case of freedom of association, given that there is already a permanent procedure in place, it would suffice to request a report on changes only every four years instead of every year, timed to coincide with the overview which will be discussed below. This solution would make it possible to gather information more systematically on changes in law and practice which the complaints procedure only reveals incidentally or if there is a problem.
The competent body to carry out the review
While some governments felt that there was no reason to vary the established procedure in the case of the annual reviews, the Employers' and Workers' groups, as well as a large number of governments, considered that the Governing Body was the most appropriate body to carry them out. The purpose of the review is not to undertake an annual legal exercise of examining obstacles to ratification, which would no doubt be pointless at such short intervals, but to monitor (and encourage) in a more general manner, in line with the intention of the Declaration and the Copenhagen recommendations, progress towards applying the principles of the relevant Conventions.
The question arose, however, whether the Governing Body could compile the reports "in the rough" or whether they should be filtered or put into perspective so as to enable a more useful and coherent discussion of the report to take place. Obviously, it is difficult to take a decision on this question without some knowledge of the volume of replies. The above-mentioned special report on forced labour might give a rough idea of this. Given the fact that this is to be an annual exercise, it is likely that the volume will not be considerable. Whatever the case, various options have been discussed. Given the objections raised against the option of entrusting the task to the Committee of Experts, both on grounds of principle and in view of practical considerations (including the additional workload this would represent for the Committee), other solutions were considered: having the Office assisted by an expert or a panel of experts selected for the purpose, or entrusting the task of presenting the compilation to a rapporteur (to be appointed for each of the rights). The Governing Body could select the latter from among its members or outside (including from among the Committee of Experts). It should be pointed out that the latter is a well-known practice in the field of human rights in other international bodies.
The Office papers envisaged the possibility for member States not represented on the Governing Body to express their views when a part of the report which concerns them is being discussed. Some felt that this confirmed the adversarial nature of the exercise, to which they were firmly opposed, since the entire follow-up mechanism was to be promotional in nature. Suffice it to point out that this idea was intended merely to allow States which so wished to express their views. While it is true that the current Standing Orders of the Governing Body are very strict in this regard and allow representation of States which are non-members only in adversarial situations (see article 5bis), this does not mean that the same approach should be taken when introducing a new possibility for States to express their views. Providing an opportunity to hear the explanations of the members concerned regarding their efforts and experience could prove very fruitful from a promotional standpoint: it would serve to highlight "recipes" for success. The amendment which the Governing Body would have to introduce in its Standing Orders could be drafted so as to reflect this approach. It should also be recalled that if the normal procedure of discussions at the Conference were to be followed, as was generally advocated by the same speakers, the States concerned would in any case be in a position to reply to any questions, and it is difficult to see why this possibility would appear to be more adversarial in one case than in the other.
During the consultations in April a number of speakers emphasized the need for the outcome of the review carried out in the Governing Body to be brought to the attention of the Conference, as initially envisaged in the March paper. Clearly, if the review is to take place in the Governing Body, it will represent an important aspect of its work and as such will have to be given due weight in the annual report of the Chairperson of the Governing Body. Depending on the procedures selected, certain changes will have to be made to the Standing Orders of the Governing Body and those of the Conference.(23)
If concern about promoting the universal application of fundamental rights initially led to the focus being placed on countries which had not ratified the corresponding Conventions, the November 1997 discussion made it clear that a logical consequence of the desire for universality was to carry out a general overview of the situation in all the member States, irrespective of whether they had ratified the Conventions. Of course, for countries that have ratified them, the presence of a highly developed supervisory system for the application of specific provisions of the Conventions offers the best possible guarantee that the principles underlying these Conventions will be fully respected. Nevertheless, it was generally felt that it would be difficult to achieve an overview that would be both dynamic and yet still realistic using this system.
It was in this way that the Governing Body came to the idea of a global report to cover both ratifying and non-ratifying countries. Every year this report would review each of the four categories of fundamental rights in turn. Its main purpose would be to establish the most important trends and developments to have occurred during the period under review.
The Governing Body's idea met with a number of objections and questions from other Members as to its underlying principle. On the one hand, the coverage of ratifying States appeared to involve the risk of double examination and double censure for the same facts, in disregard of the principle of double jeopardy. On the other hand, there was a fear that the report was not in keeping with the promotional aims of the Declaration and its follow-up mechanism.
These concerns merit examination. The best way of dispelling these concerns is to make a clear distinction between the aim of the report and that of the established procedures. It is plain that from a legal point of view it is entirely out of the question for the global report to replace the procedures established to assess the level of application of the specific provisions of Conventions in countries that have ratified them. In support of this legal fact, it is important that the aim of the report is defined in such a way as to rule out any possible overlap. This will be relatively easy to do. The Declaration consists of two interrelated parts: on the one hand, the Members' renewed commitment to their acknowledged duty to promote fundamental rights to the best of their ability; and on the other, the Organization's concomitant obligation to draw upon its resources to support their efforts. This being the case, it should be clear that it is not the purpose of the global report to judge the attitude of States. It should be used to appraise, with the requisite hindsight, the effectiveness and relevance of the assistance provided by the Organization. This means that it should not only be used to carry out a retrospective examination, but also to define an action plan consisting of certain objectives and priorities. This is the intention of the revised version which can be found in the annex to the Declaration.
While specifying the objective in this way satisfies concerns expressed about the underlying principle, a number of problems remain concerning the body competent to examine the report and the examination procedure itself.
It seems to be an accepted fact that this report should be established under the responsibility of the Director-General, on the basis of reliable information, the majority of which would be compiled using the relevant procedures (including the annual review mentioned above). It appeared from the discussion that other reliable information should not necessarily be ruled out, as long as the source is indicated.
The question remains, however, as to which body should discuss the report and the manner in which it should do so. This issue was not resolved. Three main possibilities were discussed:
- the examination to be carried out by the Governing Body;
- the examination to be carried out by the Conference;
- a combination of the two.
Choosing between these three options should be a matter of more than just subjective preference. The desired objective should govern the body and procedure which are best placed to achieve it. If, as indicated above, the global report is used not only to review the trends and developments observed in respect of the right under consideration, but also to establish an action plan for the subsequent period, this examination will take a certain time and will involve looking into matters of resources and priorities. The Governing Body would undoubtedly be the appropriate body from this point of view, but may not have sufficient time at its disposal.
There would be no point in the Conference carrying out this examination unless the conditions were propitious. From a procedural point of view, this would be impossible if the global report were considered to be part of the Director-General's Report. If this were the case, the examination could not culminate in the adoption of conclusions or other decisions by the Conference. It would be different if the issue of follow-up were considered to be a recurrent item on the Conference agenda, like the follow-up to the Declaration concerning apartheid. In that case, the Conference would be entitled to refer the report to a committee which would then have time to enter into an in-depth discussion and to submit a report and conclusions.
An intermediate solution suggested during the discussions was to hold a special sitting. Subject to reviewing the terminology and developing an appropriate regulatory framework, this solution is clearly an option. In order for this sitting to be able to adopt conclusions or an action plan, it would, however, be necessary for the question of the global report to be considered as a recurrent item on the agenda and not as part of the Director-General's Report. Otherwise, the special sitting could not exchange views on the Director-General's Report and, if appropriate, on the decisions taken by the Governing Body.
This report has tried to reflect as accurately as possible the issues still pending. It will now be up to the Conference to resolve these matters through the committee that it will no doubt set up.
While the issues are few in number, their difficulties should not be underestimated. Three considerations should, however, help the Conference to approach the task with a certain degree of confidence:
- First, much ground has been covered since the discussion at its last session, which was not always easy. The draft Declaration has aroused considerable interest even among those who previously had strong reservations. This interest has enabled the Office to carry out extremely frank and far-reaching consultations, extending well beyond the Governing Body itself. In turn, these consultations have cleared up many misunderstandings which affected last year's discussion; so much so that the principle of a Declaration no longer appears to be in question.
- Next, the issues that remain pending, while thorny, do not relate to entirely uncharted areas. The question of the use of the Declaration for protectionist purposes, for instance, has parallels with issues discussed and successfully resolved at the Singapore Ministerial Conference. The same holds true for matters relating to the follow-up which, once its promotional role has been clearly established, it should also be possible to resolve objectively. This would involve an initial appraisal of the practical requirements for its implementation and then, on the basis of the Organization's very rich constitutional practice, an examination of the bodies best suited to implement it.
- Lastly, the fact that the Conference does not have to settle all the procedural details, but only to establish the major guidelines; most of the procedural questions which could arise from the options chosen will in fact come under the competence of the Governing Body and will be settled by the Governing Body at its November 1998 session.
Using the momentum thus established, the points of reference on which it may depend and the assistance it can expect from the Governing Body to finalize the whole undertaking, the Conference should not find it too difficult to achieve the wide level of support befitting a project which is anchored in the ILO's raison d'être and its constituents' reason for membership.
DRAFT DECLARATION
CONCERNING FUNDAMENTAL
HUMAN RIGHTS AT WORK
1.1. Whereas the ILO was founded in the conviction that social justice is essential to lasting and universal peace;
1.2. Whereas the continued existence of many situations of injustice and poverty, despite growing general prosperity and unprecedented technological development, confirms that economic growth, albeit a prerequisite for social progress, is not in itself enough to guarantee that progress;
1.3. Whereas the ILO should, now more than ever, draw upon all its standard-setting, technical cooperation and research resources in all its areas of competence, in particular employment, vocational training and working conditions, to ensure that, in the context of a global strategy for social development, social progress goes hand in hand with economic growth and helps towards making this growth sustainable;
1.4. Whereas, in seeking to maintain this link, the guarantee of fundamental human rights at work -- freedom of association, the prohibition of forced labour and discrimination, the abolition of child labour -- is of particular significance in that it enables the persons concerned to claim freely and on the basis of equality of opportunity their fair share of the wealth which they have helped to generate, and to achieve fully their human potential;
1.5. Whereas the ILO, under its exclusive mandate to establish and implement international labour standards, is universally acknowledged as the competent organization to promote these fundamental rights as the expression of its constitutional principles and values;
1.6. Whereas it is urgent, in a situation of growing economic interdependence, to reaffirm the immutable nature of these principles and values upon which the Organization is founded and to promote the universal application of the rights which derive therefrom,
The International Labour Conference,
2. Recalls:
2.1. that in freely joining the ILO, all Members have endorsed the values and principles set out in its Constitution and in the Declaration of Philadelphia and have undertaken to work towards attaining the objectives of the Organization, to the best of their resources and fully in line with their specific circumstances;
2.2. that these values and principles have been expressed and developed in the form of specific rights and obligations in Conventions recognized as fundamental both inside and outside the Organization;
3. Declares that all Members, even if they have not ratified the Conventions in question, have a duty arising from the very fact of membership in the Organization and their acceptance of its values and principles to work in good faith and to the best of their abilities towards the realization of the fundamental rights contained therein, namely:
3.1. freedom of association and the effective recognition of the right to collective bargaining;
3.2. the elimination of all forms of forced or compulsory labour;
3.3. the effective abolition of child labour;
3.4. the elimination of discrimination in respect of employment and occupation in all its forms;
4. Recognizes the concomitant obligation on the Organization to make effective use of its constitutional and operational resources to support the efforts of its Members to attain these objectives:
4.1. by offering assistance and advice to promote the ratification and implementation of the fundamental Conventions, thereby helping to create a climate for economic and social development;
4.2. by assisting those Members not yet in a position to ratify all or some of these Conventions in their efforts to achieve the realization of the fundamental rights contained therein;
4.3. by encouraging the competent multilateral and other organizations to support these efforts through their own assistance programmes.
5. Decides that, to give full effect to this Declaration, a promotional follow-up mechanism, meaningful and effective, containing a review of annual reports under article 19(5)(e) of the Constitution and a global report, shall be implemented in accordance with the measures specified in the annex hereto, which shall be considered as an integral part of the Declaration.
* * *
6. Stresses that no ILO Member may rely on this Declaration to adopt trade measures that are of a protectionist nature or measures that would call into question the comparative advantage of other countries.
Follow-up mechanism for the Declaration
concerning fundamental human rights at work
1. Annual review concerning non-ratified core Conventions
1.1. Purpose and scope
1.1.1. The aim is to provide an opportunity to review annually efforts made by Members which have not yet ratified the corresponding core Conventions, with a view to observing the rights, values and principles enshrined in the Constitution and the Declaration of Philadelphia.
1.1.2. The review will cover the four areas of fundamental rights specified in the Declaration. The existing procedures on freedom of association will not be affected by this annual review, which will not repeat issues taken up in that procedure.
1.2. Legal basis and examination
1.2.1. The review will be based on reports by Members under article 19(5)(e) of the Constitution for each of the core Conventions which they have not ratified. The report forms will aim at obtaining information from governments on any changes in their law and practice, to be supplemented by any observations employers' and workers' organizations may wish to submit in accordance with article 23 of the Constitution and established practice.
1.2.2. These reports, as compiled by the Office, will be reviewed by the Governing Body.
1.2.3. [In presenting an introduction to the report and drawing attention to aspects which might call for a more in-depth discussion, the Office may be assisted by [members of the Committee of Experts appointed for this purpose] [a group of experts appointed for this purpose by the Governing Body] [a rapporteur or rapporteurs selected by the Governing Body for this purpose from among its members].]
1.2.4. Measures should be taken to enable Members not represented on the Governing Body to express their views when issues directly concerning them are being discussed.
2. Global report
2.1. Purpose and scope
2.1.1. This report will provide a global dynamic picture of the most significant developments relating to each category of fundamental rights noted during a four-year period, will assess the effectiveness of ILO assistance and will define priorities and an action plan for the following period.
2.1.2. The report will cover, every year, each of the four categories of fundamental rights in turn.
2.2. Methods of examination
2.2.1. The report will be compiled under the responsibility of the Director-General, based on the information gathered and assessed in accordance with the established procedures of the ILO. This includes the annual review on non-ratified core Conventions under article 19(5)(e) of the Constitution. In the case of States which have ratified the corresponding Conventions, this information will be based on reports submitted under article 22 of the Constitution and subsequent deliberations on them. [The Director-General may also draw upon other relevant information which has been gathered and deliberated on a tripartite basis or on other reliable international sources.]
2.2.2. This report will be submitted for tripartite discussion in [the Governing Body and] [a special sitting of] the International Labour Conference.
1. ILO: Defending values, promoting change. Social justice in a global economy: An ILO agenda, Report of the Director-General, International Labour Conference, 81st Session, Geneva, 1994.
2. ILO: The ILO, standard setting and globalization, Report of the Director-General, International Labour Conference, 85th Session, Geneva, 1997.
3. GB.264/9/2 (Nov. 1995).
4. ILO: Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 4), International Labour Conference, 86th Session, Geneva, 1998, paras. 94-125.
5. GB.262/205 (Mar.-Apr. 1995), para. 40.
6. According to article 10.1 of the Constitution, "The functions of the International Labour Office shall include ... the conduct of such special investigations as may be ordered by the Conference or the Governing Body." This article has already been invoked at the time of the establishment of the procedure of the Fact-Finding and Conciliation Commission with regard to freedom of association in 1950, as authorizing the Governing Body such inquiries for the promotion (as opposed to the implementation) of the aims and objectives of the Organization.
7. GB.264/6 (Nov. 1995), para. 25.
8. GB.265/8/2 (Mar. 1996), paras. 46-76; GB.267/9/2 (Nov. 1996), paras. 15-80.
9. GB.264/205 (Nov. 1995), para. 11.
10. Para. 4 of the Final Declaration of the WTO 1996 Ministerial Conference reads as follows: "We renew our commitment to the observance of internationally recognized core labour standards. The International Labour Organization (ILO) is the competent body to set and deal with these standards, and we affirm our support for its work in promoting them. We believe that economic growth and development fostered by increased trade and further trade liberalization contribute to the promotion of these standards. We reject the use of labour standards for protectionist purposes, and agree that the comparative advantage of countries, particularly low-wage, developing countries, must in no way be put into question."
11. GB.268/8/2, para. 54. As regards the origin of these proposals see also GB.268/PV(Rev.)
12. The ILO, standard setting and globalization, op. cit., pp. 16-19 and 69.
13. See GB.270/3/1(Add.) for extracts of statements made at the 85th Session of the International Labour Conference during the discussion of the Director-General's Report, concerning means of ensuring a universal guarantee of workers' fundamental rights and the possible adoption of a solemn Declaration.
14. GB.269/205, para. 2.
15. GB.270/3/1.
16. GB.271/3/1.
17. GB.270/3/1, paras. 6-24.
18. ILO: Defending values, promoting change, op. cit., pp. 58-59.
19. Freedom of association: Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); Right to Organise and Collective Bargaining Convention, 1949 (No. 98);
Forced labour: Forced Labour Convention, 1930 (No. 29); Abolition of Forced Labour Convention, 1957 (No. 105);
Discrimination: Equal Remuneration Convention, 1951 (No. 100); Discrimination (Employment and Occupation) Convention, 1958 (No. 111);
Minimum age: Minimum Age Convention, 1973 (No. 138).
20. That the ILO was not expected to pursue business as usual is even more the case in view of the reference of the General Assembly, in its endorsement of the Copenhagen Programme of Action, which "Invites the International Labour Organization, which, because of its mandate, tripartite structure and expertise, has a special role to play in social development in the field of employment, to continue to contribute to the implementation of the Programme of Action" (UN Doc. A/RES/50/161, para. 38). In general, the General Assembly pledged to give highest priority to international actions for the promotion of social progress and justice by, among other means, regular assessments of national progress, and the mobilization of financial resources at international levels (see General Assembly Res. 50/161, paras. 4, 12 and 14).
21. Memorandum of the United Nations Office of Legal Affairs, E/CN.4/L.610 (1962), 2 Apr. 1962.
22. It is interesting to quote from Report I placed before the 26th Session of the International Labour Conference (Montreal, 1944): "In the context of [...] evolving policies it has clearly become desirable that the [...] Organisation should reformulate the aims and purposes which it will pursue in the period into which the world is now moving. All that has happened since 1919 has given added force to the basic philosophy of international affairs proclaimed by the Constitution of the Organisation, [...] But the world having moved forward, the Organisation can now move forward with it, or preferably somewhat in advance of it, and the time would accordingly appear to have come for the adoption of a new statement of general principles [...] which would constitute [...] a social mandate setting certain goals before the Organisation and representing a pledge by the Members of the Organisation to co-operate for the attainment of those goals. [...] The adoption of such a declaration would serve to mark a turning point in the history of the Organisation by reformulating its objectives in the new perspective of a changed world situation."
23. As indicated in the paper presented to the Governing Body in March 1998 (GB.271/3/1), consideration should be given if necessary to the question of amending article 7(1)(b) of the Standing Orders of the Conference.