87th Session
Geneva, June 1999
Report of the Committee on the Application of Standards |
Discussion in Plenary |
PART ONE
- Introduction
- General questions relating to international labour standards
- Reports requested under article 19 of the Constitution
- Compliance with specific obligations
1. In accordance with article 7 of the Standing Orders, the Conference set up a Committee to consider and report on item III on the agenda: "Information and reports on the application of Conventions and Recommendations". The Committee was composed of 228 members (109 Government members, 25 Employer members and 94 Worker members). It also included 17 Government deputy members, 54 Employer deputy members and 118 Worker deputy members.(1) In addition, 44 international non-governmental organizations were represented by observers.
2. The Committee elected its Officers as follows:
Chairperson: |
Ms. R. Dimapilis-Baldoz (Government member, Philippines); |
Vice-Chairpersons: |
Mr. A. Wisskirchen (Employer member, Germany); and Mr. W. Peirens (Worker member, Belgium); |
Reporter: |
Mr. W. van de Ree (Government member, Netherlands). |
3. The Committee held 18 sittings.
4. In accordance with its terms of reference, the Committee considered the following: (i) information supplied under article 19 of the Constitution on the submission to the competent authorities of Conventions and Recommendations adopted by the Conference; (ii) reports supplied under articles 22 and 35 of the Constitution on the application of ratified Conventions; and (iii) reports requested by the Governing Body under article 19 of the Constitution on the Migration for Employment Convention (Revised) (No. 97) and Recommendation (Revised) (No. 86), 1949, and the Migrant Workers (Supplementary Provisions) Convention (No. 143), and Recommendation (No. 151), 1975.(2)
5. As usual, the Committee began its work with a discussion of general aspects of the application of Conventions (particularly ratified Conventions) and Recommendations and the discharge by member States of standard-related obligations under the ILO Constitution. It then discussed the General Survey made by the Committee of Experts on the Application of Conventions and Recommendations dealing with migrant workers. As usual, the Committee finally considered various individual cases relating to the application of ratified Conventions or compliance with the obligations to supply reports and to submit Conventions and Recommendations to the competent national authorities.
6. The examination of those cases, which is the essential work of the Committee, was based principally on the observations contained in the report of the Committee of Experts and the oral and written explanations provided by governments concerned. The Committee also referred to its discussions in previous years, comments received from employers' or workers' organizations and, where appropriate, the reports of other supervisory bodies of the ILO and other international organizations. In view of the short time available, the Committee made a selection among the Committee of Experts' observations and thus discussed a limited number of cases. The Committee trusts that those governments will pay close attention to the requests of the Committee of Experts and will not fail to take the measures required to ensure fulfilment of the obligations they have undertaken. A summary of the information supplied by governments, the discussions in the present Committee and any conclusions it has drawn are set out in Part Two of this report.
7. The Worker members stated that the approval of this list and the choice of priority cases through a tripartite discussion were always difficult exercises because, on the one hand, a very large number of problems were encountered in all the regions of the world in the application of Conventions and dealt with in the report of the Committee of Experts and, on the other hand, there was a very short time available to the Committee for the examination of individual cases. Before the duration of the Conference had been changed, the cases of more than 30 countries and the application of more than 50 Conventions had been included on the list. But these were not the only constraints; the discussions had also become more in-depth and thus more complicated. The emergence of democratic systems in many countries favoured the adoption of new legislation; but this legislation was not always in conformity with international labour standards. The growing globalization of the economy also created new problems. With regard to the choice of individual cases -- an exercise in which the Committee had entire discretion -- the Workers' group had based their decisions on a number of criteria. These included the nature of observations of the Committee of Experts; the presence of a footnote in the report of the Committee of Experts requesting the Government to provide full particulars to the Conference; the quality and the scope of the responses provided by the Government and reproduced in the report or, on the other hand, the absence of a reply by the Government; the discussions and conclusions at preceding sessions of this Committee; the comments received from international workers' organizations such as the ICFTU and WCL, or from employers' and workers' organizations at the national level; the reports of other ILO supervisory bodies and other international organizations; and recent developments in the field. The final criterion was the declarations made by the Worker members concerning the adoption of the preceding year's list. These concerned countries and cases concerning which the Worker members had requested the Committee of Experts to include comments in its report so that the Conference and this Committee would be in a position to examine them if real progress had not been achieved in the meantime. On this occasion, this concerned the cases of Costa Rica (Convention No. 98), Guatemala (Convention No. 87), the Islamic Republic of Iran (Convention No. 111) and Pakistan (Convention No. 29). The priority criterion was the substance of the cases, but the Worker members also endeavoured to ensure that there was a balance between regions and the types of Conventions. The Committee did discuss not only fundamental Conventions, but also problems of application and recent developments regarding the so-called technical Conventions, such as those concerning social security.
8. The Worker members made several comments that they considered to be important for the Committee of Experts, the ILO, the governments concerned and this Committee, concerning three cases that had not been included on the list. The first was that of Japan (Convention No. 29) concerning women detained during the Second World War in "comfort stations". The Committee of Experts had made detailed and precise observations on this matter and insisted that the Government of Japan rapidly take concrete measures. This was a matter primarily of individual compensation by the Government itself, of the implementation of the judgement of a court in favour of South Korean women and, above all, the apologies to be made by the Government of Japan, which should expressly take responsibility for the sexual abuse of women of different nationalities. As in 1997, the Worker members considered that the report of the Committee of Experts rightly emphasized the universal and fundamental principles concerned in the case. It insisted that the Government of Japan strengthen and accelerate its activities and initiatives in this regard. Many women had not accepted the apologies that had been made to them because, according to them, these apologies did not show that the Government recognized its responsibility for the acts committed during the war. Moreover, it appeared that the letter of apology was only addressed to women who had accepted the offer of compensation. The Government of Japan should take the initiative of holding meetings with the trade unions concerned, the representative organizations of the women who had been the victims of these acts and the governments of the various countries concerned, in order to find an effective solution responding to the expectations of the majority of the victims. The Worker members urged the Government of Japan to inform the Committee of Experts rapidly of the action and initiatives that it would take in this regard. The reaction of the Government would be decisive for the follow-up of this case by the Committee of Experts and this Committee.
9. The Worker members referred also to the case of Turkey on the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). This Committee had been called upon to include this case on the list on numerous occasions (eight times over the past 11 years), because of the structural problems relating to collective bargaining in both the private and public sectors. For several years, the Government had been undertaking legislative reform, since the former legislation had essentially been adopted under the military regime in order to control and oppress trade unions and restrict collective bargaining. Unfortunately, several recent laws and draft laws were also in contravention of Convention No. 98. It was for this reason that the Worker members were requesting the Committee of Experts to examine this case once again in its report next year so that the Conference Committee could discuss it if real progress was not achieved in the meantime.
10. The Worker members stated that the final case was that of Colombia on Convention No. 87. The Worker members had proposed that this case be included on the list because it was one of the most serious of all cases. Some 2,500 trade unionists had lost their lives as a result of their trade union activities, without any indication that the authorities were taking energetic action against those responsible for their murders. The Worker members noted that the Employer members of this Committee had not denied that the application of Convention No. 87 in this case posed very significant problems, but they had referred to the discussions which had taken place in March 1999 in the Governing Body following the filing of a complaint under article 26 of the Constitution. The Worker members had also noted that the Governing Body had agreed to decide at its session in November whether or not a commission of inquiry would be set up, and had agreed that such a decision would certainly be made if progress was not achieved before then. The Worker members very much hoped that the Government of Colombia would take concrete action to implement the formal commitments that it had made last year before this Committee. On that occasion, the Government had stated that it would cooperate fully with the ILO in order to put an end to the violations of Convention No. 87. The Worker members stated that the Conference Committee could in any event return to the case, either within the context of the follow-up of the recommendations of any commission of inquiry that the Governing Body might decide to establish, or as part of its discussion of the report of the Committee of Experts. The Worker member of Germany re-emphasized that the decision to exclude the case of the application of Convention No. 87 by Colombia from the list of cases to be examined by the Committee should not be used as an argument in the Governing Body to prevent the setting up of a commission of inquiry under article 26 of the ILO Constitution.
11. The Employer members noted that for a number of years the Committee had been using the same methods for the selection of the individual cases on which Government delegates could be invited to provide it with information, and that these methods had proven their worth. It would be impossible for the Committee to examine all the individual cases referred to in the report of the Committee of Experts. However, they agreed that the list of cases set out in a document of the Committee was never entirely satisfactory and gave rise to difficult choices. No selection of cases could ever satisfy all the parties concerned and the proposed selection had been established by way of compromise by the Officers of the Committee. The Employer members regretted that at the beginning of discussions on individual cases, several Governments had not announced themselves for the discussion of their cases.
12. The Employer members referred in particular to the cases of the application of Convention No. 87 by Colombia, Convention No. 29 by Japan and Convention No. 98 by Turkey, which had not been retained in the list. With regard to the application of Convention No. 87 by Colombia, various opinions had been expressed as to whether the examination of the case might endanger the recently commenced peace process. Although the decision taken by the Governing Body in March 1999 to defer the establishment of a commission of inquiry had been interpreted in some quarters as a decision that the case would not be reviewed by any supervisory body, they confirmed that the case would be examined by the Committee next year if no commission of inquiry were to be set up. They added that the decision not to include the cases of Japan and Turkey had also been taken after much discussion.
13. The Employer members recalled that the Committee could invite any government to provide it with information. They concluded that the list of individual cases should be adopted as proposed.
B. General questions relating to international labour standards
Introduction: General aspects of the supervisory process
14. The Committee welcomed Sir William Douglas, Chair of the Committee of Experts. Sir William thanked the Committee, on behalf of the Committee of Experts, for renewing the invitation for him to attend as an observer. He stated that, in reaffirming the principles of independence, objectivity and impartiality by which it was guided, the Committee of Experts had again referred in its report to the spirit of mutual respect, cooperation and responsibility which prevailed in its relations with the Conference and with the Conference Committee on the Application of Standards. The Conference as a whole and its Committee on Application of Standards as well as the Committee of Experts would be further inspired and encouraged by the strategic objectives outlined by the Director-General, namely to promote and realize fundamental principles and rights at work; to create greater opportunities for men and women to secure decent employment and income; to enhance the coverage and effectiveness of social protection for all; and to strengthen tripartism and social dialogue.
15. Sir William drew attention to several aspects of the report of the Committee of Experts. With respect to the Declaration of Fundamental Principles and Rights at Work and its Follow-up, the Committee of Experts recalled that it had always welcomed any measures which strengthened the ILO's ability to promote and to protect the fundamental human rights which lay within its mandate. The Committee had underlined the fact that the follow-up of the Declaration was not intended to be a substitute for the established supervisory procedures. The Committee of Experts would therefore continue to function within its mandate in accordance with the principles and procedures which it had followed over the years. Regarding the application of particular Conventions, the Committee of Experts had drawn attention to the application of the Forced Labour Convention, 1930 (No. 29), in respect of prison labour, concerning which it was asking governments to provide information on the law and practice governing the employment of prisoners in privatized prisons or by private contractors in prisons. The Committee of Experts had also referred to the application of the Seafarers' Identity Documents Convention, 1958 (No. 108), as to the rights and obligations consequent on the issuance of identity documents. Confusion had arisen in cases where identity documents had been treated in the same way as passports issued by the national authority. The Committee of Experts had pointed out that there was a clear distinction between an identity document under the Convention and a passport, the identity document not being governed by such considerations as security of the State or illegal emigration. The application of the Employment Policy Convention, 1964 (No. 122), continues to be the subject of extensive dialogue between the two Committees. The Job Creation in Small and Medium-Sized Enterprises Recommendation (No. 189), adopted in 1998, recognized the role of private initiative in the creation of jobs and the need for public authorities to maintain a climate that was conducive to the development and growth of enterprises. The Committee of Experts had also dealt with the application of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), because of the far-reaching consequences which attended its application in the protection in law and practice of the right of indigenous and tribal peoples to preserve their own laws and customs. Moreover, it had noted with interest the preparatory work on the draft Convention to prohibit and eliminate the worst forms of child labour. It expected that any new standards on the subject would supplement the instruments currently in force governing the minimum age for employment or work, which continued to be of fundamental importance in the work of national labour inspectorates. In respect of the application of Conventions in export processing zones and, in particular, on the application in these zones of Convention No. 87, within the context of the globalization of the world economy, the Committee of Experts hoped to continue to receive further information from governments and further observations from employers' and workers' organizations they considered useful on the subject.
16. Sir William noted that, in reviewing the special reports on Conventions Nos. 87 and 98, the Committee of Experts had been bound to note that "certain States that have been Members of the ILO for many years, including countries with large populations representing approximately half of the workers and employers of the world, still appear to be reluctant to move towards a position which would allow ratification of these two instruments".
17. More generally, the Committee of Experts regretted that only 62 per cent of reports requested from ratifying member States had been received. It was to be hoped that the assistance provided by the standards specialists in the ILO's multidisciplinary advisory teams stationed in different parts of the world would have the effect of increasing the percentage of reports received. The General Survey on migrant workers was especially timely in the light of the estimate that over 90 million people (migrant workers and their families) were currently residing, legally or illegally, in a country other than their own. Not only had the number of migrants increased, but the number of countries from which they emanated and to which they went had also increased substantially. The General Survey, which reviewed the protection and measures to ensure equality of treatment contained in the Migration for Employment Convention (Revised), 1949 (No. 97), and the other instruments under review, noted that there had only been 41 ratifications of Convention No. 97 and 18 of the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143). Even though the context in which these instruments had been adopted was vastly different from that in which migration flows currently occurred, the principles and standards established by them remained valid, and protection from exploitation and equality of treatment were as important to the host community as they were to the migrants. There was an urgent need for further mechanisms at both the international and national levels to deal with migration for employment.
18. Sir William thanked the Conference Committee for the consideration it had expressed for the work of the Committee of Experts during its general discussions, which had been of the highest standard. He would undertake to report back to the Committee of Experts on the content of the discussion and the constructive atmosphere in which it had been held. He also invited the two Vice-Chairpersons of the Conference Committee to pay a visit to the next session of the Committee of Experts at the end of the year.
19. The Committee noted the introduction by the representative of the Secretary-General to the various items before it and related developments in the Organization.
20. The Government member of France, speaking as the Chairperson of the Working Party on the Policy regarding the Revision of Standards of the Governing Body Committee on Legal Issues and International Labour Standards (LILS), as in previous years, informed the Committee members of the progress of the Working Party, as reflected in the document distributed by the secretariat of the Committee. The Working Group, whose undertaking had been to review the whole body of standards, with the exception of the fundamental standards and standards dating from after 1985, had succeeded in examining all the non-maritime Conventions except three; it began to analyse the Conventions concerning seafarers and to examine the Recommendations, which will be taken up in November 1999, during which session the Working Group will deal with the question of methods of revising international labour standards. The speaker provided indications on decisions taken by the Governing Body, and invited the members of the Committee to convey the call addressed to the authorities of their countries for the early ratification of the 1997 instrument amending the Constitution.
21. The Employer members recalled that, under its mandate, the Conference Committee was called on to examine the information submitted orally or in written communications by member States on the measures which they had taken to fulfil their obligations deriving from the ILO Constitution. The full dimensions of this task were illustrated by the size of the report prepared by the Committee of Experts, which was the largest ever submitted to the Conference Committee. Although the report of the Committee of Experts was not the only basis for the work of the Conference Committee, it was of particular importance. One reason for this importance was the fact that the report not only provided information on the activities of the Committee of Experts, but also much information on the work of the ILO in many fields, including the deliberations of the Governing Body and its subsidiary forums.
22. The Employer members welcomed the increased collaboration between the two independent bodies within the ILO's supervisory machinery, namely the Committee of Experts and the Conference Committee. The mutual understanding between the two bodies was proven by the invitation extended to the Chairperson of the Committee of Experts, Sir William Douglas, to attend the general discussion of the Conference Committee. Although the Committee of Experts had in return invited the Vice-Chairpersons of the Conference Committee to be present at its session in December 1998, unfortunately the Employer Vice-Chairperson had been prevented from attending for reasons beyond his control. In general terms, the Employer members noted clear indications of progress in the collaboration between the two most important bodies in the ILO supervisory system. However, such collaboration should not be confined to symbolic gestures. It should be recalled that, in the final analysis, the two Committees dealt with the same issues under the terms of the same ILO standards. The Conference Committee always took due note of the findings of the Committee of Experts. Moreover, for a number of years, the Committee of Experts had stated that it took fully into consideration the discussions of the Conference Committee, not just on general issues, but also on specific matters. In this respect, the detailed records of the discussions of the Conference Committee were the best means of following its work. The Employer members accordingly welcomed the increasing number of references made by the Committee of Experts in individual cases to the discussions and conclusions of the Conference Committee. They emphasized that an accurate and precise knowledge of the positions adopted by each body, as well as issues which were controversial, was a prerequisite for improved mutual understanding. The common objective was to ascertain whether and to what extent member States were fulfilling their obligations under the ILO Constitution and ratified Conventions. While neither of the Committees fulfilled the functions of a tribunal, they had to consider legal questions in order to ascertain whether the obligations deriving from the respective international treaties were being respected. They agreed with the comments made by the Committee of Experts concerning the success of the ILO's supervisory procedures. This success was shown, not only by the figures for cases of progress, but also by the positive results derived from dialogue with governments, particularly where the two supervisory bodies were in full agreement on a subject.
23. The Employer members noted that the new structure of the Office was designed to improve the operation of the Organization in various areas. They emphasized that the new and integrated thinking which the new structure was designed to promote needed to take into account the function of the Conference Committee, which played an important role in promoting basic principles and rights at work, as set out in the seven fundamental Conventions. It also addressed appropriate social protection. A prerequisite for such protection was the promotion of full, productive and freely chosen employment, which would in turn promote the fundamental objectives of economic growth and social justice. The issues involved had to be solved through social dialogue. The Employer members were therefore of the view that the four strategic objectives would find their natural meeting point in the Conference Committee, particularly in view of the emphasis that it placed on social dialogue.
24. The Worker members thanked the Chairman of the Committee of Experts for having accepted again this year to take part in the general discussion of the Committee, and expressed satisfaction at the dialogue between the two Committees. Moreover, the report of the Committee of Experts reflected pertinently on numerous points under discussion in the Conference Committee. This was particularly clear when treating certain important themes such as the application of Conventions to export processing zones or on prison labour where this activity was under the management of private enterprises. Last November, for the first time, the Committee of Experts had invited the Employer and Worker Vice-Chairpersons of the Committee to visit the Committee. The Committee of Experts had thus been able to acquaint itself with the priorities and concerns of the Worker members. The second part of the Committee of Experts' report also bore on major elements of the Committee's discussion and conclusions regarding individual cases. These references were very useful, especially regarding follow-up of engagements which governments had undertaken before the Committee on certain specific points. Among other things, the report again dealt with observations regarding individual cases that the Worker members had stated the previous year were of sufficient importance to be covered again this year; namely the Islamic Republic of Iran, regarding the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), Guatemala for the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), Costa Rica for the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and Pakistan for the Forced Labour Convention, 1930 (No. 29). The principles and working methods of the Committee of Experts were briefly recorded in paragraph 8 of its report. The Conference Committee added analysis, points of view and the personal experience of people close to the realities of the field. The Committee of Experts studied this contribution in a context of impartial technical and legal analysis. The complementary nature of the two supervisory bodies constituted an essential element in the strengthening of the supervisory system and was one of the reasons for the system's success.
25. The Government member of Switzerland, recalling that the standard-setting system of the ILO did not apply sanctions in cases of violations, stressed that the ILO had an even better tool available, namely technical cooperation, to assist States which encountered difficulties of application. The Government member of Romania noted that if international law, including labour law, was based on the sovereign will of States to assume international commitments, the question of using sanctions did not arise, but good examples could be put to good use. At a time when emphasis was being placed on the low number of ratifications of the fundamental Conventions and the growing number of complaints about the application of Conventions, the efforts made by governments to bring their legislation into compliance should be highlighted to a greater extent in the report. The Government member of the United Kingdom considered that the Committee of Experts could play a role in identification and promotion of best practice in the application of Conventions from the reports submitted by member States, in addition to the cases of improvement mentioned in its report. In this context dissemination of best practice would be of particular use to governments which encountered problems in the application of ILO standards.
26. Several Government members expressed support for the work of the Committee of Experts and praised the quality of its report (Belgium, China, Cuba, France, India, Kenya, Lebanon, Libyan Arab Jamahiriya, Portugal, Spain, Swaziland, United Kingdom). The Government member of Belgium stated that the report of the Committee of Experts constituted the best basis for a discussion on the development of international social standards. The Government member of China considered that the report makes possible the comprehensive examination and review of standards activities. The Government member of Cuba appreciated the balanced manner in which information had been presented in the general part of the report, and recalled the importance of the principles of independence, objectivity and impartiality. According to the Government member of Spain, the report was an essential document for finding out about the activities of the ILO and the situation of international labour standards. The Government member of Portugal considered the report to be a valuable source of information not only on problems related to standards but also on the positive influence of such standards. The Government member of the United Kingdom stated that the report provided a detailed overview of the application of labour standards worldwide, and the Government members of India and Swaziland noted its comprehensive nature. The Government member of France regretted that the report was not better known outside the ILO.
27. Several Worker members including those of Brazil, France and the Netherlands praised the quality and clarity of the report and the essential role played by the Committee of Experts. The Worker member of Pakistan pointed out the objectivity and impartiality of the work of the Committee of Experts, which was considered by the Worker member of Italy to be a good basis for analysis and reflection. The Worker member of France considered that the supervision of the application of standards inevitably implied their interpretation and the need to take into account the diversity of national situations and practices. This meant that methods adapted to such situations and practices could be used without jeopardizing the effectiveness of the results. The strength of the supervisory procedures used by the ILO was their tripartite and non-coercive nature. Recourse to general international law as contained in the 1969 Vienna Convention on the Law of Treaties, which was solely inter-Statal would weaken the ILO's supervisory procedures and resorting to an interpretation by the International Court of Justice would mean rejecting the constructive dialogue within the supervisory bodies. ILO Conventions were international treaties, but they were drafted and followed up in a tripartite manner and in this respect had always been in advance of the purely inter-Statal general international law.
28. The Worker members considered that the general discussion had been rich and interesting. They hoped that the dialogue with the Employer members would continue in a constructive vein, and that the support of governments for standards and the supervisory machinery would lead to an increasing number of ratifications, a wider application of standards, and the submission of reports of good quality within the stipulated time limits.
29. Several Government members (Germany, Netherlands, Sweden (speaking on behalf of the Nordic countries), United States) proposed that the general discussion be shortened, leaving more time for discussion of individual cases. The Worker members supported this suggestion. The Office should study this proposal in greater detail to be able to clarify possibilities and constraints in this respect.
30. The representative of the Secretary-General mentioned the time constraints under which the work of the Committee was being carried out, and praised the value of the general discussions and those on the General Survey. He said the Standards Department would nevertheless examine the question further.
Policy regarding ILO standards
31. The Employer members stated that, without wishing to be too optimistic, they believed that the rule of law was being extended in many parts of the world. However, this did not mean that laws were standardized. Unlike medicine or mathematics, law was imbued with national characteristics. While they had many similarities, the legal systems of member States varied in important areas. This fact, and the differences in social and economic development and traditions, meant that it was not possible for the ILO to adopt standards which were too detailed. Indeed, it was important that these standards be limited to fundamental principles and general rules which could be applied worldwide. It was necessary for the Conference Committee to be aware of this, particularly when interpreting and considering the implementation of specific standards. Nor could whole national legal structures and doctrines be transferred to international standards or used for the interpretation of Conventions. Instead, it was necessary to apply the basic rule of in dubio mitius, or in other words, that in cases of doubt the least far-reaching interpretation should be applied.
32. The Employer members noted that the Director-General had stated recently at the General Assembly of the International Organization of Employers that the problems of today were interlinked, but that the solutions sought were often only sectoral. This statement contained an implicit plea for integrated thinking and action, which was supported by the Employer members. Integrated action was more important than ever in a globalized world in order to achieve effective and appropriate solutions. In this respect it was necessary, in all ILO action, whether in the field of standards or other areas, to take into account the fact that the ILO addressed the full range of industrialized societies, developing societies and countries in transition. The common objective was to create a balance between the economically feasible and the socially desirable. For solutions to be found through common standards, the standards needed to be general, basic, simple and clear. Common principles could be more easily agreed to than detailed provisions, which were rarely ratified or applied. Care was also required at the national and international levels to foresee the consequences of putting measures into practice. Draft national legislation frequently did not take into account the costs of its implementation, since it often implied no costs for the State, the treasury or the administration. Only on rare occasions were the advantages and burdens on the addressees of the various provisions given due weight. There was a need to change the approach adopted in this respect. This also applied to the standards formulated by the ILO. In this respect, the Employer members recalled that questions such as whether an ever-increasing number of new standards were needed, how detailed new standards should be and the approach to be adopted for the revision or denunciation of obsolete standards, had been discussed for several years and their views on these matters were well known. In general terms, they were in favour of a more restrictive interpretation of the existing standards.
33. The Worker members noted a series of major developments in respect of the acceptance, spread and application of international labour standards. They recalled the harshness of the criticisms made shortly following the fall of the Berlin Wall in 1989 by those who preached a liberal economy. This doctrine which was, to the Worker members' regret, initially widely followed within the Bretton Woods institutions, held that the free market in itself could ensure social, economic and political efficacy and stability. In the view of the same doctrine, national and international labour standards were by definition harmful to economic development and an impediment to the globalization of the economy. This vision was less dominant today, in particular as a result of experience gained and developments observed in the field and also due to initiatives such as those instigated by the ILO and by the World Summit for Social Development. The work of the Committee had also contributed to this change. Indeed, long discussions had been devoted to such subjects as the application and knowledge of fundamental and priority labour standards, the strengthening of the supervisory system and the revision of standards. Little by little, consensus on a series of important aspects of international labour standards had become firmer. The search for the widest possible agreement among the three groups was essential if concrete form was to be given to this new movement which had sprung up regarding labour standards. Experience in the field had demonstrated that international labour standards and social policy were indispensable in ensuring economic development and political, financial, economic and social stability. The Worker members agreed with the proposals of the Director-General contained in his Report to the Conference, Decent work, that the world economy would lack stability and political credibility in the absence of a solid social basis.
34. The Worker members stated that the profound crisis in Asia and in other parts of the world had shown that it was important that the whole economy and the political system should be based on a generalized and universally accepted framework of standards, applied at national and international levels and within enterprises, no matter what their size. The reports of the ILO and various recent Governing Body documents on the Asian crisis, and studies by countries on the social impact of globalization, showed to what point a clearly thought out policy, supported by a good social dialogue between workers' and employers' organizations, was fundamental to economic progress, stability and social peace. The ILO study on the social impact of globalization advocated action by governments and the social partners in the fields of education and training, social protection, labour legislation and industrial relations as well as on fundamental labour standards.
35. The Worker members further noted that certain international institutions such as the World Bank had finally decided to include promotion and integration of international labour standards and social policy in their programmes and activities. Thus, the World Bank had drawn up a sort of code of principles of good social policy for its own programmes and activities. World Bank action came within the framework of execution of the Declaration and Programme of Action of the World Summit for Social Development. Its aim was to develop an integrated approach taking account of financial, economic and social considerations. The truth was that traditional ideas had failed to provide an answer to the grave social and economic crises in Asia and in the Russian Federation and to their consequences in Latin America and other regions. The World Bank seemed to wish to play a role in following up engagements made at the World Summit for Social Development at the special session of the United Nations General Assembly to be held in June 2000 in Geneva.
36. The Worker members noted that in the code of principles and of good practice, as discussed within the Joint Ministerial Development Committee of the World Bank and the International Monetary Fund (IMF), there were four major fields which directly or indirectly concerned labour standards: universal access to fundamental social services such as basic education and health care; a durable income and decent working conditions for all men and all women; in this context the World Bank recognized the need for full employment and the protection of fundamental labour standards; and the promotion of systems of social protection and encouragement of social integration. The Worker members expressed the hope that this code would be fully adopted and applied in the field, including in the activities of the IMF. This was a new direction confirmed by the declaration of the G8 Labour Ministers in February 1999. The ILO must continue to follow these developments closely and be involved in the implementation of the code of principles. However, it was not certain that those responsible for the activities of the IMF and the World Bank in the field were actually convinced of the importance of international labour standards. The interventions and advice of the IMF and the World Bank had direct negative consequences for freedom of association and working conditions in Bangladesh, Pakistan, Kenya and the countries of West Africa and Latin America. According to recent information, the IMF intended to carry out a study to analyse the possible economic impact of fundamental rights. This measure was in the view of the Worker members totally unacceptable following the studies carried out by the Organization for Economic Cooperation and Development (OECD) and many other organizations and the adoption of the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up.
37. The Worker members noted that the Committee of Experts attached a great deal of importance to the integration of labour standards in operational activities and in the discussions on the social dimension of globalization. The discussions on the social dimension of globalization and international commerce should continue to be followed, including at the WTO, and should result in concrete action to promote the practical application of international labour standards. International investments should also favour the application of international labour standards. The Worker members concurred with the Committee of Experts that international labour standards and the observations of all the various ILO supervisory bodies should be used as basic points of reference in implementing programmes of the ILO and those of other international institutions, not only with respect to fundamental labour standards but over the whole range of international labour standards. In effect, it did not make sense that the supervisory bodies should be confronted with violations of labour standards that were a result of decisions of programmes of international financial institutions, of the WTO and of other organizations.
38. The Worker members recalled that since the beginning of the campaign for the ratification of the seven fundamental Conventions, more than 120 ratifications had been registered and others were expected. While these results were encouraging, many countries did not appear to have the political will to proceed towards ratification. Some highly industrialized countries such as Australia and New Zealand stated quite simply that their legislation was not in conformity and for this reason they had not ratified the Minimum Age Convention, 1973 (No. 138). Australia meanwhile was planning to ratify the Convention on the elimination of the worst forms of child labour presently being discussed. However, some developing countries and newly industrialized countries such as Thailand, were prepared to ratify Convention No. 138 or at least to modify their legislation. Furthermore, for some Conventions, such as the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), progress had been less significant than for others. Finally, while most governments had informed the ILO in one manner or the other of their intentions concerning ratification, there were still 17 countries that had not yet sent a response, in particular countries engaged in conflicts or with weak resources. In such cases, ILO technical assistance would be very useful.
39. The Worker members recalled that, with respect to the revision, ratification and the eventual denunciation of Conventions, the Committee had always given much attention to the very important work of the Working Group on the policy regarding the revision of standards. They had stated since the beginning of the reflections that the decision should be supported by a thorough analysis of problems of application and by a consensus among the three groups. They considered that the results of the Working Group met these criteria. There was also a good interaction between the Working Group and the Conference. They also underlined that the activities of the Working Group members had not been limited to revision. Their objective was also to promote the ratification of existing Conventions and not only the fundamental Conventions.
40. Several Government members (Ethiopia, Indonesia, Morocco) referred to the social repercussions of economic changes and their implications for the ILO, in particular regarding its priorities for action. The Government member of India noted the commitment of the Director-General to giving the ILO's policies and programmes a new direction and orientation, taking into account the economic, employment and social manifestations of globalization, liberalization of trade and rapid technological changes. Noting the negative implications of globalization in particular on employment, he considered that the need for the creation of greater opportunities for women and men to secure decent employment and income was one of the most important strategic objectives of the Organization in the coming years, and that the progress of all other objectives was contingent upon the attainment of the core objective of employment.
41. The Employer member of South Africa, referring to the Report by the Director-General to the Conference Decent work which outlined an integrated approach to the ILO's activities, emphasized the need also to adopt an integrated approach to the supervisory machinery of the ILO. He observed that the Committee of Experts sat at the crossroads of where such an integrated, non-sectoralized approach needed to be synthesized so as to continue to underscore the authority of their observations and requests to member States. The common purpose of ILO Members was to uphold its values and specifically those relating to the core Conventions which represented enduring principles of labour rights. The challenge was how best to apply these principles in the present context of change. As highlighted by the Director-General in his Report, the traditional cornerstones of the ILO's activities had been shifted by the transformation of the economic and social environment brought about by the emerging global economy. In this global economy, policies of economic liberalization had altered the relationship among the nation State, labour and business. Economic outcomes were now more influenced by market forces than by mediation through social actions, legal norms or state intervention. After describing the changes that had taken place, and noting their impact on the organizations of employers and workers, in such a context of change, it was clear how critical it was to conserve the principles contained in Conventions Nos. 87 and 98. It had also become vital to adapt their application to these changed circumstances. He emphasized that it was clear that "one size fits all" templates to collective bargaining and collective bargaining structures could hardly bring optimum results, as bargaining at all levels needed to be capable of coping with such fast-changing circumstances. In this context it was relevant to refer to the implicit flexibility contained in Article 4 of Convention No. 98 which would merit further reflection.
42. The Worker member of France emphasized that the rapid development of technology, working methods and conditions, and globalization called for the further development of existing standards and the establishment of new general and sectoral standards. Globalization also raised the acute question of the link between standards and international trade. At the WTO Ministerial Conference in Singapore, the ILO's exclusive competence for labour standards had been clearly stated. However, there had been no cooperation between the WTO and the ILO in order to consider together positive ways of ensuring the effective promotion of fundamental standards, notably through technical and scientific support, trade preferences or a moratorium on the external debt of countries which respected the fundamental rights of workers. The violation of human rights could not be described as a comparative advantage; on the contrary, it was an unacceptable form of dumping prohibited by the rules of the WTO which had nothing to do with protectionism. Furthermore, countries which sought to derive benefits from their refusal to discuss the question were in the medium to long term vulnerable to unilateral reaction, for example, by consumers' organizations which could affect their exports. It would be paradoxical if social standards were the only standards excluded from the regulation of international trade, particularly since the next round of negotiations at the WTO would focus in particular on the environment and technical standards for product safety, which could have a significant impact on the opportunities for developing countries to export to markets in the industrialized countries. The Worker member of Pakistan considered that the ILO should strengthen its relations with the IMF and the World Bank.
43. Several Government members (China, Dominican Republic, Egypt, Ethiopia, India, Indonesia, Libyan Arab Jamahiriya, Morocco, Nepal, Sri Lanka) referred to the progress in the number of ratifications achieved under the campaign of ratifications of the fundamental Conventions launched in 1995, mentioning in particular the fundamental Conventions ratified by their countries.
44. A Worker member of Germany pointed out that Conventions on technical issues had received fewer ratifications than the core Conventions. The campaign should therefore be extended to such instruments as the Labour Inspection Convention, 1947 (No. 81), the Employment Policy Convention, 1964 (No. 122), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), as well as Conventions on occupational safety and health and migrant workers. The Worker member of the United States considered that the Declaration was not a substitute for the ratification of ILO Conventions. The Worker member of Finland (speaking on behalf of the Worker members of the Nordic countries) expressed the hope that the follow-up mechanism of the Declaration would facilitate the process of ratification of fundamental Conventions. The Worker member of India expressed the view that further ILO assistance would be needed to ensure implementation of Conventions, and the Worker member of Pakistan called for assistance to workers' organizations in this respect.
45. Several Government members (Canada, France, Germany, India, Kenya, Lebanon, Morocco, Portugal, Sri Lanka, Sweden (speaking on behalf of the Nordic countries), Switzerland, United Kingdom, United States) spoke of the policy concerning standards, some specifically referring to the work of the Working Party on the Policy regarding the Revision of Standards, or to the proposals contained in the Report of the Director-General, Decent work. The Government member of France referred to the causes for the low level of ratification of Conventions and the ways to overcome it, in particular by the choice of subjects and the content of the standards adopted. There was a certain discrepancy between the very favourable positions expressed concerning revision and the present situation of little enthusiasm to include those revisions in the agenda of the Conference. In this respect, the Government member of the United States considered that priority should be given to the recommendations of the Working Party. The Government member of Germany noted that the decisions on the choice of items to place on the agenda did not always reflect a choice of the most urgent or important issues of concern. Several Government members (Canada, Sweden (speaking on behalf of the Nordic countries), Switzerland, United Kingdom) expressed interest in the attention devoted by the Director-General to the developments relating to standards. The Government member of Switzerland paid tribute to the Working Party and called for reflection on improving the process of the adoption of standards and the supervisory system, without losing any of its relevance and good characteristics.
46. The Government members of France and Japan stressed the universal character of standards, and stated that the ILO as a universal institution should continue to adopt universal standards. The Government member of Japan emphasized also the importance of maintaining the objectivity and impartiality of the supervisory procedures.
47. The Worker member of Italy mentioned the elaboration of a code of conduct for enterprises and a social label for goods, and the Government member of Germany considered that the ILO should play an active role in this regard.
48. The Worker members stated, with regard to codes of conduct and best practices on the social policies of enterprises, more and more enterprises were developing such codes of conduct, and the ILO had devoted many publications to this. These codes were seeing the light of day under pressure from public opinion, trade unions and other organizations such as consumer organizations and NGOs. Enterprises were increasingly aware of their social image. This was in itself a positive development. The ILO should follow this question for many reasons. The various codes of conduct and their follow-up were of different qualities. Only a limited number of these codes mentioned all the fundamental labour standards or the 1977 Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy. The ILO also had the necessary expertise to advise enterprises on the matter. Thus enterprises could directly contribute to the promotion of the application of fundamental labour standards, safety and health at the workplace, and the implementation of appropriate conditions of work and wages.
49. The Worker members were pleased to note that most of the interventions laid particular stress on the importance of international labour standards and the supervisory machinery. They observed that the Employer members supported an integrated approach in which emphasis was laid on international standards, social justice and social dialogue. Within this context, employment and economic activity should go hand in hand with international standards and, especially, with the seven fundamental Conventions, social protection and social dialogue. The Worker members endorsed this overall and integrated approach. They further noted that a number of governments had also advocated a parallel approach to international standards on the one hand and economic development on the other. In their opinion, this consensus in respect of the ILO's strategic objectives was encouraging. It was indeed indispensable if good intentions were to be transformed into concrete measures at both the national and international levels. The Worker members noted that several Government members (in particular, the Government member of the United Kingdom) had stressed the growing importance of the supervisory machinery in a world undergoing profound changes. In this respect, the Worker members urged that the globalization of the economy should be accompanied by a strengthening of the application of Conventions for all workers, including those working in export processing zones, and they noted that several Governments (Germany, Kenya and the United States) had also stressed this last point. Moreover, with the globalization of the economy, the ratification by the whole of the international community of Conventions Nos. 87 and 98 had become indispensable. The Worker members went on to highlight the universal vocation of the ILO and its standards. The ILO and its bodies should make every effort to ensure that universally ratifiable standards of quality should be adopted where the political will was present. They opposed the introduction of regional divergencies within the standards.
50. The Employer members stated that the general discussion had provided for a number of approaches, and new elements as well as new approaches. In this context, they recalled the Director-General's Report which contained a new approach with respect to standard setting, which needed to become more flexible. Another positive element was the work of the Working Party on the Revision of Standards. They also noted that the Committee of Experts had reviewed its position on several issues. In this regard, they considered that flexibility was indispensable in order not to lose touch with reality. They also mentioned that it had taken decades for the ILO to acknowledge that standards had not been adopted for an eternity. This partly explained why the ILO Constitution had not provided specific provisions for the abolition of outdated standards. In conclusion, they were encouraged by the new approach towards more flexibility and insisted on the importance of continuing the social dialogue.
51. The Committee noted with interest the information regarding ratifications, communicated by the following Government members: Canada (the Government was pursuing its efforts to ratify the Forced Labour Convention, 1930 (No. 29)); China (procedures had started with a view to the ratification of the Safety and Health in Construction Convention, 1988 (No. 167), and of the Labour Administration Convention, 1978 (No. 150)); Dominican Republic (the instruments of ratification of the Minimum Age Convention, 1973 (No. 138), the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), and of the Labour Administration Convention, 1978 (No. 150), are about to be deposited with the Director-General); Japan (the Government has taken steps for the ratification of the Private Employment Agencies Convention, 1997 (No. 181), by submitting it to Parliament); Nepal (the country is about to ratify the Forced Labour Convention, 1930 (No. 29), the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Abolition of Forced Labour Convention, 1957 (No. 105); Portugal (studies and consultations had been started with a view to the ratification of the Part-Time Work Convention, 1994 (No. 175), of the Safety and Health in Mines Convention, 1995 (No. 176), of the Seafarers' Hours of Work and the Manning of Ships Convention, 1996 (No. 180), of the Private Employment Agencies Convention, 1997 (No. 18), and the Protocol to Merchant Shipping (Minimum Standards) Convention, 1976 [and Protocol, 1996] (No. 147)); Seychelles (the cabinet of the Council of Ministers had approved the ratification of the following Conventions: the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Equal Remuneration Convention, 1951 (No. 100), the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the Working Environment (Air Pollution, Noise and Vibration) Convention, 1977 (No. 148), the Labour Administration Convention, 1978 (No. 150), and the Labour Relations (Public Service) Convention, 1978 (No. 151)); Switzerland (the country will be ratifying the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Minimum Age Convention, 1973 (No. 138)).
ILO Declaration on Fundamental Principles
and Rights at Work and its Follow-up
52. The Employer members raised the question of whether the Declaration on Fundamental Principles and Rights at Work and its Follow-up really intended to create additional means on the effective implementation of fundamental ILO standards. The Declaration had been elaborated because many member States had not yet ratified the core ILO Conventions. However, it remained an open question whether the Declaration would provide additional possibilities for the implementation of these standards. With respect to the view expressed by the Committee of Experts that the follow-up of the Declaration should not constitute a substitute for the established supervisory machinery or impede its functioning, the Employer members considered that this view might create some kind of confusion. In particular, concerning the hope expressed by the Committee of Experts that a coherent approach with the ILO's established standards and supervisory machinery would be maintained in practice, they underlined the different approaches of international labour standards and the Declaration. In their opinion, there was a clear distinction between these instruments which would need to remain visible with regard to their supervision.
53. The Employer members, while welcoming the intensive campaign to promote a more widespread ratification of the ILO's seven fundamental Conventions, considered a success by the Committee of Experts, considered that the unsatisfactory level of ratifications of these Conventions had been an underlying reason for the adoption of the Declaration. The future would show its real significance.
54. The Worker members considered that the Declaration on Fundamental Principles and Rights at Work and its Follow-up undeniably constituted an extremely important development with regard to international labour standards, and that its approval and implementation would without doubt have an important political and social impact, which could contribute to the strengthening of the relevance and impact of international labour standards. It was also important that the Declaration become a reference point for technical cooperation and for the orientation of various ILO programmes as well as those of the other international institutions to which reference was previously made. During its March 1999 session, the Governing Body established procedures for the application of the follow-up. The first global report would be dedicated to freedom of association and collective bargaining. Three concerns and priorities were to be emphasized. First, the Worker members considered that the follow-up to the Declaration should not be a substitute for the established supervisory mechanisms or impede their functioning. They shared the concerns expressed by the Committee of Experts in this regard. Second, there should be consistency between the application of fundamental principles and rights. Even if the primary purpose of the Declaration and its follow-up were intended to be promotional in nature, it was essential to avoid the emergence of different conceptions of freedom of association, of collective bargaining or of prohibition of discrimination. Third, the campaign to promote the ratification of fundamental Conventions should be continued.
55. The Worker members noted that in this connection, the Report of the Director-General to the Conference entitled Decent work clearly stressed that the Declaration on Fundamental Principles and Rights at Work and its Follow-up should strengthen the ILO's ability to promote fundamental rights and that countries should still be encouraged to ratify the fundamental Conventions. Rights at work, and therefore labour standards, also figured among the four strategic objectives of the ILO recommended by the Director-General.
56. Several Government members (Belgium, Egypt, Ethiopia, France, Germany, India, Kenya, Lebanon, Netherlands, Portugal, Sweden (speaking on behalf of the Nordic countries), Switzerland, United Kingdom) referred to the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up. Some Government members (Belgium, Egypt, France, Germany, Netherlands, Portugal, Sweden (speaking on behalf of the Nordic countries), Switzerland) shared the view of the Committee of Experts that the follow-up should not substitute for, nor impede the functioning of, the supervisory system and that action was required to ensure that a consistent and coherent approach with the ILO's established standards and supervisory mechanisms was maintained in practice. The Government member of Switzerland stressed that it was important that the Declaration follow-up should begin according to the agreed schedule and that the Report should lead to strengthened cooperation among the departments inside the Office, as well as between international institutions, including the financial institutions.
57. Speaking as the Employer spokesperson for the Declaration in 1998, the Employer member of the United States also considered that the Declaration and its follow-up was intended to be complementary to the existing supervisory machinery, and not an alternative to it. The principles deriving from the Declaration were of a different nature from obligations undertaken as the result of the ratification of Conventions. They were designed to achieve the policies set out in Conventions, but not their detailed legal obligations. Moreover, the principles contained in the Declaration concerning freedom of association and collective bargaining differed from the detailed elaboration of such principles by the Committee on Freedom of Association. The Declaration reinforced the policies set out in the fundamental Conventions, so that countries which had not yet done so would be in a position to ratify those Conventions, and countries which had already ratified them would be in a better position to achieve their full implementation in law and practice. It therefore embodied a consistent and coherent approach to the ILO's established supervisory machinery.
58. The Government member of Kenya stressed the promotional nature of the follow-up to the Declaration and referred to the substantial resources under Strategic Objective No. 1 on the promotion and effective implementation of the Declaration. The Government member of India considered that the core principles of the Declaration should be promoted regardless of whether or not the member States had ratified the corresponding Conventions. The Declaration should not be used as a pretext for not ratifying the relevant ILO Conventions, since ratification was the appropriate step for promoting and implementing the principles and rights enshrined in the Declaration.
59. The Worker members considered that the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up should be the starting point and reference in order to achieve a better knowledge and application of international labour standards. A number of Governments had underlined, as had the Worker members, the complementary nature of the Declaration and its follow-up (Belgium, Germany, India, the Netherlands, Portugal and Switzerland); like the Worker members, these Governments echoed the concerns of the Committee of Experts that the follow-up of the Declaration was in no way intended as a substitute for existing mechanisms. The Declaration should stimulate governments to ratify and effectively apply the fundamental Conventions and orient technical cooperation.
Other international and regional issues
60. The Employer members noted that every year, the report of the Committee of Experts described the collaboration of the ILO with other international organizations responsible for human rights treaties and instruments. These instruments had either universal or regional coverage. The universal treaties were generally the responsibility of the United Nations and its specialized agencies. Considerable progress had sometimes been recorded in the implementation of such treaties, although it often took some time before this success became visible. One illustration was the Universal Declaration of Human Rights which, in the beginning, had been little more than a solemn declaration. This meant that its only significance had been as a political recommendation of the United Nations General Assembly, since the member States of the United Nations had not been able to agree on any more far-reaching provisions. However, since then, most of the provisions of the Universal Declaration had come to be considered as an integral part of international common law. It had therefore become a part of the expanding body of international law, which corresponded to the overall process of globalization. In this respect, although many people regarded globalization with anxiety, its other aspects should also be taken into account.
61. The Worker members underlined that, in respect of the collaboration between the ILO and other human rights organizations, the ILO had undoubtedly strengthened its own capacity of intervention concerning human rights at work. However, the ILO should develop its collaboration with the United Nations and other specialized institutions in order to reinforce the follow-up in the field of human rights.
62. The Worker member of the Netherlands noted with regret that the United Nations Commission on Human Rights did not refer to the ILO's work in relation to human rights, and the resolutions on trade and development adopted in the past few years by the United Nations General Assembly did not refer to the discussion on the social clause in the ILO and the World Trade Organization.
63. The representative of the Secretary-General indicated that contacts with the special rapporteurs and the standing organs of the United Nations had been intensified in recent years and contacts with the High Commissioner for Human Rights and with other international organizations, including the World Bank and the IMF, had been more frequent.
64. The Government members of Belgium and Romania referred to the collaboration between the ILO and the Council of Europe indicating that new ratifications had been registered for both the Social Charter, its additional protocols, and the revised Social Charter which would enter into force in July 1999. More particularly, according to the Government member of Belgium, this movement seemed to announce a new era in European cooperation based on the application of fundamental social rights, largely inspired by those elaborated by the ILO but which also took into account directives on social matters by the European Community. He agreed with the Director-General that the ILO should also take an interest in the efforts towards regional cooperation in matters of social rights be it on the basis of existing Conventions, through the elaboration of new instruments, or in the context of a technical contribution for management of social aspects of trade agreements. The Government member of Romania stressed the complementarity, complexity and occasionally the inconsistency of regional and international labour and social protection instruments. Special attention should be paid, when selecting proposals to be included in the standards portfolio, to the quality, universality and flexibility of ILO standards. If contradictions between international and regional standards arose, the universality of the former and the rationale of the latter would be called into question. A Worker member of Germany referred to a case that had recently been brought under the supervisory system of the Charter using the collective complaints procedures on the subject of the prohibition of child labour. A number of ILO Conventions had played an important role in the process of revision of the Social Charter and the ILO should continue to play its role as a standard-setting and supervisory body. The comments of the Committee of Experts and the Committee on Freedom of Association should be considered as authoritative for the interpretation of the European Social Charter, as a minimum level of protection.
65. The Worker member of Brazil made reference to the adoption of the MERCOSUR Declaration on social and labour questions, which was inspired by the ILO's Declaration. It should contribute to the regional awareness of the need for discussion on this subject in the process of globalization.
66. The Government member of Belgium, referring to the discussion on social questions and globalization, stated that each organization acting in the economic and social field, had its own share of responsibility for supporting the social aspects of globalization in conformity with the commitments made at the World Summit for Social Development. Each organization should therefore examine what it could do within the parameters of its mandate. Social development rested on the dynamism of the fundamental social instruments of the ILO. One should therefore welcome all initiatives which contributed to fulfilling this social responsibility, including those which concerned the coordination between the institutions of relevance in this context.
Fulfilment of standards-related obligations
67. The Employer members approved of the gradual renewal of the body of ILO standards. Obsolete instruments were being replaced by the ratification of revised Conventions, or obsolete Conventions were being denounced at the invitation of the Governing Body. Information was also provided in the report on cases of denunciation of ratified Conventions which had not been accompanied by the ratification of a revised Convention. One illustration was the denunciation by the Netherlands and Zambia of the Underground Work (Women) Convention, 1935 (No. 45), which contained a categorical ban on underground work by women. A similar situation had occurred in relation to the general prohibition of the night work by women. These well-meant protective measures had their roots in what might be termed a pre-scientific era. However, if certain types of work were unhealthy, they were uniformly unhealthy for both men and women. The exclusive prohibition of these types of work for women merely served to reduce their opportunities on the labour market.
68. The Employer members drew attention to the new presentation of information concerning the ratification of Conventions. The information provided now not only covered cases of new ratifications, but also denunciations. While not constituting a value judgement, such information reflected the real situation more closely.
69. The Employer members recalled that the entire supervisory system was based primarily on the reports that member States were required to provide. By the end of the session of the Committee of Experts, some 62 per cent of requested reports had been received. A majority of member States had therefore fulfilled their reporting obligations. The principal problem lay in the timely receipt of the reports. When they were transmitted too late, there was no opportunity for their careful examination and it was often necessary to defer them for examination to the next year. For many years, the Employer members had called for member States which repeatedly submitted their reports between the end of the session of the Committee of Experts and the beginning of the Conference to be listed by name. Unfortunately, this request had not been put into effect and no explanation had been provided. They re-emphasized that reports on the application of ratified Conventions needed to include information on their implementation in practice. Reports confined to the legislative situation did not always provide a realistic overall picture. This was another aspect in which there were still many shortcomings in the reporting process. The representative of the Secretary-General stated that he would bring the question posed by the Employer members to the attention of the Committee of Experts at its next session.
70. The Employer members noted the cases of progress referred to in the report of the Committee of Experts, and stressed the important information that was provided by large numbers of employers' and workers' organizations. In this context, it was important for more member States to ratify the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). With respect to the complaints procedures under the Constitution and others, the report of the Committee of Experts succinctly described the complaint procedures instituted under articles 24 and 26 of the ILO Constitution. The Employer members noted the considerable increase in the number of representations made under article 24 and the cases brought before the Committee on Freedom of Association.
71. The Worker members expressed the hope that the pace of ratification would increase appreciably in the near future in developing countries, as well as in industrializing countries and industrialized countries. The Worker members appealed to the 15 members of the European Union and the Community's institutions to clarify urgently possible legal problems concerning the procedures to ratify the Conventions on health and safety. These problems discouraged the ratification of these Conventions and were impeding ratification in other regions of the world. Member States should abandon their passive attitudes where their legislation does not conform to a particular Convention. International standards should rather be used to revise and implement the legislation. The Office and all the constituents should reinforce their efforts to ensure that international labour standards are more widely known. In this respect, the concern the Director-General raised in his Report that most standards were not well known, was found to be correct.
72. The Worker members noted that the report of the Committee of Experts also provided information on the denunciation of Conventions which were not accompanied by the ratification of a revised Convention. In the case of Australia, there had been no real tripartite consultations concerning the denunciation of the Placing of Seamen Convention, 1920 (No. 9). However, the Working Group on Maritime Standards in Australia had recommended the ratification of the new revised maritime Conventions, namely the Recruitment and Placement of Seafarers Convention, 1996 (No. 179) and the Seafarers' Hours of Work and the Manning of Ships Convention, 1996 (No. 180). In the case of the denunciation of the Underground Work (Women) Convention, 1935 (No. 45) by the Netherlands, the new Convention, the Safety and Health in Mines Convention, 1995 (No. 176), was not ratified. Luxembourg denounced the Night Work (Bakeries) Convention, 1925 (No. 20) without ratifying the Night Work Convention, 1990 (No. 171).
73. The Worker members noted that even though the majority of governments duly submit reports, a very important minority does not or does so late, including first reports following ratification. The majority of reports were received between 1 September and the end of November when the Committee of Experts met; however, reports should be sent to the ILO between 1 June and 1 September to ensure that the ILO can prepare for the meeting of the Committee of Experts. The final problem arose from the fact that a number of reports were incomplete and did not reply to the comments of the supervisory bodies or to the observations of employers' or workers' organizations. The Worker members, like the Employer members, had always emphasized the importance of constructive dialogue between member States and the supervisory bodies. Without a detailed response from the governments to the questions and observations of the supervisory bodies, such dialogue was no longer possible and, as a result, the attitude of the supervisory bodies would necessarily become more firmly entrenched. In this context, four points should be emphasized. Some of the countries concerned were small developing countries or countries that have faced significant upheavals. ILO technical assistance and the support of the members of the multidisciplinary teams could assist these governments. Some of the countries mentioned in the report of the Committee of Experts have or should have the technical and organizational capacity to take part in a dialogue with the supervisory bodies. Many of them should reinforce their labour administration and develop tripartism through efficient consultation structures as was called for in the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) and its corresponding Recommendation (No. 152). The Committee of Experts should shortly evaluate the arrangements in force concerning the submission of reports and arrive at conclusions. The cycle for sending most reports had been extended to five years; the reports were simplified and emphasis had been put on the real problems of application. These important reforms had not had the expected effect. The existence of a tripartite structure was important in order to encourage respect for the obligations arising from the ILO Constitution and from ratified Conventions.
74. The Worker members indicated that the observations of employers' and workers' organizations formed an important element in the development of the supervisory system. Once again, the Committee of Experts had received a large number of observations from employers' and workers' organizations. These initiatives bore witness to the importance of the ILO for the workers and their organizations and also to the persistent nature of problems of application in numerous countries. To obtain a true measure of the impact and the importance of the reactions of national and international workers' organizations, it was also necessary to view them against the representations submitted under article 24 of the Constitution, complaints under article 26 and complaints examined by the Committee on Freedom of Association. Some procedures were better known than others and thus more widely used by organizations. Such was the case regarding complaints placed before the Committee on Freedom of Association, or representations. As a result of certain weaknesses in the present regular supervisory system, such as the lengthening of reporting periods, the failure to provide reports due and the absence of replies from certain governments to the comments of the supervisory bodies, these procedures had their uses. It was therefore important that the ILO should have the means necessary to organize the follow-up. The ILO should also continue its efforts to update its procedures, including that governing representations. With respect to the cases of progress mentioned in the report, these show clearly the importance of the ILO and its supervisory system for the daily lives of workers, even if, in the great majority of cases, far too much time passed between comment by ILO bodies and the adaptation of laws and practices.
75. With respect to denunciation of Conventions, the Government member of Portugal considered that these should be followed by the ratification of revising Conventions. She referred to the denunciation of the Underground Work (Women) Convention, 1935 (No. 45) specifically and said that any revision of the prohibition against work by women in mines should be made in the context of an improvement of conditions of work in mines. This was also mentioned by the Government members of the Netherlands and Spain, and the Worker member of the Netherlands, with descriptions of the situation in their countries. The Worker member of Greece deplored the fact that eliminating positive discrimination in the name of equality resulted in losing the level of protection in some countries. He considered that equality of opportunity could not mean the elimination of certain rights for women but rather the extension of these rights to men.
76. The Government member of Lebanon wondered whether Convention No. 45 could still be considered relevant or whether it could properly be viewed as a shelved or obsolete Convention. The representative of the Secretary-General stated that this Convention had not been shelved nor identified as obsolete by the Governing Body.
77. The Government member of Kenya drew attention to the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), and the Worker member of the Netherlands stressed the importance of having tripartite consultations within the meaning of the Convention with respect to denunciations and ratifications.
78. The Government member of Germany considered that the decrease in the fulfilment of the obligation to report by member States was particularly disturbing, all the more so because the follow-up to the Declaration would also depend on a proper fulfilment of reporting obligations of member States. The Government member of Egypt called on the ILO to increase the technical assistance provided to countries to help them meet their reporting obligations. The Government member of Swaziland suggested the provision of financial assistance accompanied by technical assistance.
79. The Worker member of Finland (speaking on behalf of the Worker members of the Nordic countries) whose views were shared by a Worker member of Germany, stressed the point that the work of the Committee of Experts was only as good as the material and information they received and on which they based their assessments. In this regard, he stressed the importance of the role of the employers' and workers' organizations in the implementation of Conventions. The quality of the governments' reports could be better if the reports were prepared in good cooperation with employers' and workers' organizations in the national tripartite ILO committees and if the reports were supplemented by observations from these organizations. He mentioned that this was the method used in the reports prepared, for instance, in Finland and according to his experience, tripartite preparatory work was a good method, and, indeed, the only acceptable method. The observations from labour market organizations gave the Committee a valuable insight into the practical application of the policies being pursued in the respective countries. According to the Worker member of France, the decrease in the number of reports submitted this year was virtually unprecedented over the past half century. The reporting cycle had, however, been considerably lengthened at the request of governments in order to allow them to provide comprehensive reports within the time limits. If shortcomings emerged in this system, other methods of supervision would be increasingly required. The Worker member of Pakistan recalled the importance of the obligation of sending reports on the application of Conventions in the non-metropolitan territories.
80. The Government member of India said that there had been more frequent recourse to the liberal application of some of the constitutional provisions, particularly article 26. He considered that article 26 was an extreme measure designed to deal with an extreme situation, and should be applied only as a last resort.
81. A Worker member of Germany stated that, although the Committee of Experts had not included in this year's report a reference to sanctions in the event of the non-application of a Convention by a member State, such measures were nevertheless necessary. The Employer members referred in this connection to last year's report of the Committee of Experts in which the Experts had changed their position on this question. They stated that this change of position was also noted in the 1998 report of the Conference Committee.
Other questions concerning the application of particular Conventions
82. The Worker members noted that the Committee of Experts' report this year contained some general considerations on the application of widely differing Conventions. These remarks were of great value. By drawing attention to developments and problems arising in different countries, these considerations bore witness to the desire of the supervisory bodies to remain in touch with the real situations.
83. The Government member of Cuba stated that the part of the report of the Committee of Experts, dedicated to the application of specific Conventions, was particularly useful in that it could be relied upon for precise indications regarding these Conventions, taking into account the limitations of different kinds that prevented conducting more detailed general surveys for more than one Convention each year. It thus contributed to a better understanding of the essential problems of their application.
The Forced Labour Convention, 1930 (No. 29)
84. The Employer members welcomed the comments made by the Committee of Experts concerning the Forced Labour Convention, 1930 (No. 29), which recalled the discussion on that subject held in the Conference Committee in 1998. All aspects of the subject merited further attention in future, given the Employer members' views in favour of a more restrictive interpretation of the present standards.
85. The Worker members recalled that last year the Conference Committee had undertaken detailed discussions regarding the problems of application of Convention No. 29, in connection with prison labour and especially in prisons under the management of private enterprises and where prisoners were made available to private enterprises. Work of this sort raised problems regarding fundamental rights, acceptable working conditions, and unfair competition with other enterprises, which were endeavouring to respect national and international standards. The Committee of Experts hoped to continue studying this question on the basis of further information from the member States. All governments should reply to the questions posed by the Committee of Experts in its general observation on Convention No. 29, and should consult employers' and workers' organizations. A new General Survey should shortly be carried out concerning forced labour instruments as the previous survey dated from 1979.
86. Several Government members (Cuba, Germany, Kenya, Spain, United Kingdom, United States) referred to the question of prisoners hired to or placed at the disposal of private individuals, companies or associations. The Government member of Kenya agreed with the views of the Committee of Experts that this question merited sustained attention. The Government member of Cuba considered that there was a risk that this might result in situations of exploitation of human rights under the cover of the rehabilitative function of prison labour. The Government member of Germany recalled that at the time of the elaboration of this instrument, the obligation for prisoners to work was considered as part of the punishment while the present view was that work by prisoners was seen as an important element in the process of resocialization. It was necessary to examine whether current practices, particularly in private prisons, were compatible with a strategy of resocialization. Referring to the General Report of last year and the general observation of this year as well as the comments addressed to his country, the Government member of Spain wondered whether the question under discussion merited such detailed attention when the paragraph of the Article was inconsequential compared with the whole Convention, since the report does not contain questions on prison labour and in the face of a Convention which was dense in reflective aspects and rich in its development of standards. The concern for Article 2(2)(c) of this extensive, important and fundamental Convention is deep and widespread within the Committee of Experts. One wondered whether this problem of such disproportionate connotations will withstand a balanced and weighted comparison to the treatment given to the major human situations which were reflected and regulated in detail by the Convention. The Government member of the United States recalled that last year, his Government had requested the Committee of Experts to re-examine its interpretation of Convention No. 29, in particular in relation to private prisons and prison labour for private enterprises. This question deserved in-depth treatment, particularly the aspects touching on prisoners hired to or placed at the disposal of private individuals, companies or associations. This meant dealing with the type of work covered and excluded from the Convention, the nature of the consent of the prisoner, minimum wage rates, authorized benefits and deductions and the conditions of the control by public authorities. The Government member of the United Kingdom stated that his Government would continue to work with the Committee of Experts and the social partners in the United Kingdom in developing a realistic and up-to-date interpretation of this fundamental Convention. He considered that this approach was crucial to maintaining and promoting the effective implementation of the Convention and supported the proposal of the Committee of Experts for a General Survey on forced labour. The Government members of Cuba and the United States expressed their support for a new General Survey.
87. The Employer member of the United States stated that, regarding the current examination of the legal situation in the United States with reference to Convention No. 29, the additional information provided by the Committee of Experts on the issue of prisoners being hired to or placed at the disposal of private individuals, companies or associations to be useful. However, he considered that the call for further information on this subject should not have been confined to countries which had ratified the Convention. In practice, the provision of information from other countries would facilitate the ratification process. The representative of the Secretary-General recalled that only States bound by the Convention were required to provide information on its application, by virtue of article 22 of the ILO Constitution.
88. A Worker member of Germany requested the Government member of his country, when referring to the work performed by prisoners in the context of Convention No. 29, to refer not only to the role of work in the process of the social reintegration of prisoners, but also to the measures which needed to be taken for the satisfactory application of the Convention in national legislation in Germany. The Worker member of India opposed the use of forced labour in prisons. The Worker member of France stated that although work by prisoners was a recognized and effective method of social reintegration, certain essential criteria had to be met. Prisoners had economic and social rights and Convention No. 95 was also applicable to them. The right to a wage, coverage by legislation on occupational safety and health, the right to social security, a retirement pension and the probability of freely chosen employment also applied to prisoners.
Seafarers' Identity Documents Convention, 1958 (No. 108)
89. The Employer members noted that the aim of the Convention was to establish the purpose of identity documents for seafarers, as well as the purposes for which they should not be used, with particular reference to the distinction between such identity documents and passports. Seafarers' identity documents were not a substitute for a passport. Nor could a passport be used as a seafarer's identity document. However, such documents partly fulfilled the functions of a passport, particularly where seafarers wished to go ashore for a short period in a specific area. However, the Committee of Experts had not put forward reasons for the relatively low level of ratification of the Convention. It could only be speculated that the contents of the instrument were not fully understood in all member States or might conflict with national provisions on migration. Some countries might well be experiencing difficulties in aligning their national provisions concerning both passports and identity documents with the requirements of the Convention.
90. The Worker members pointed out that this was not the first time that the Committee of Experts had drafted general comments on Conventions of a technical nature such as Convention No. 108. Technical Conventions often had great importance both in principle and in practice for the workers concerned. As a result of the tightening of immigration regulations in many countries, seafarers were increasingly confronted with problems concerning temporary shore leave in port. However, the authorization to leave a ship when in port must not be confused with immigration documents such as passports and visas. The Committee of Experts recalled that the aim of a seafarer's identity document was to facilitate temporary shore leave by means of a reciprocally recognized document. It enabled the seafarer to leave the ship. In certain cases, he would otherwise be obliged to remain on board for many weeks, or even months, resulting in an intolerable privation for the seafarer. It should therefore be regarded as a special form of temporary entry. The Committee also recalled that a wide range of supplementary conditions, such as the presentation of complementary documents, the payment of taxes or the retention of the document by the port authorities, were contrary to the terms of the Convention. In certain countries the issue or retention of the identity document was used directly or indirectly to link a seafarer to a specific shipowner. The result of this was that labour laws and the freedom to work of seafarers were limited or depended on the good will of a specific shipowner. This could give rise to serious abuse, where the shipowner concerned subcontracted seafarers to other shipowners under inferior conditions on receipt of a commission. Such practices were unacceptable. The countries concerned should re-examine at an early date their regulations and their practice in the light of the comments of the Committee of Experts.
91. The Government member of Cuba considered the evaluations and considerations of the Committee of Experts regarding the differences that could be noted between identity documents and passports to be very illuminating. Carrying out technical assistance activities in this area could be very beneficial, above all taking into account that the application of this Convention generally exceeded the scope of competence of ministers of labour.
92. A Worker member of Germany considered that the extensive comments of the Committee of Experts provided a valuable contribution to raising awareness of the objectives and provisions of the instrument. Such comments should become a regular feature of the report of the Committee of Experts on the other Conventions. The Worker member of Greece stated that although this was a maritime Convention, it concerned human dignity and the scope of human rights at work. Seafarers' identity documents were useful above all to enable a seafarer to obtain shore leave during the ship's call at port. It thus permitted him to leave his workplace which at the same time served as his place of lodging. He then asked whether there existed other categories of free workers who lived day and night at their workplace and needed a special document to leave it. He considered that the regulations for seafarers on leave were unique: most often, the seafarer was a foreigner but nevertheless he was not on the territory as a tourist. A clear distinction should be made between shore leave and the stay of a tourist. In conformity with the rule the crew followed the ship. This itself was the nature of work of seafarers, which explained their presence on the territory of various countries. He then noted that technical progress had sometimes diminished in a draconian manner the number of seafarers working on ships. It had also shortened the calls at port and lengthened the time at sea. Therefore, permission to go on land became a vital need for the seafarer. No one could remain confined on board for long periods without danger to his or her physical and mental health and well-being and, finally, the ability to ensure the security of navigation. What was being dealt with here was a universal principle, as was maritime law itself. Any free worker must be able to leave his or her workplace. The right to shore leave had always been a part of maritime custom, and was currently expressed in Convention No. 108. All countries should therefore ratify and apply this Convention. Any action taken to avoid issuing the identity document and to hinder obtention of shore leave constituted a clear violation of human rights at work. All countries should ratify and apply this Convention.
Employment Policy Convention, 1964 (No. 122)
93. The Employer members noted that the part of the report of the Committee of Experts dealing with the application of Convention No. 122 contained no new elements. Any improvement in the employment situation would only take place through the coordination of measures in such areas as economic policy, monetary policy and social policy. The interdependence of these policy areas was such that their causes and effects needed to be taken fully into account. In its comments on the Asian crisis, the Committee of Experts had referred to the High-Level Meeting held in Bangkok in April 1998 and its conclusions and recommendations. The crisis had brought to an end a decade of sustained and rapid growth, which had resulted in relatively low levels of unemployment. The reasons for the occurrence of the crisis had included a lack of openness in markets and the absence of transparency in the financial sector. The crisis clearly provided an opportunity to improve structures and to make the necessary reforms. It was therefore important to offer the necessary support to the countries concerned. However, labour market policy measures could only be adopted as part of integrated economic and social policies, and could not be a substitute for general policy measures. There needed to be more widespread acceptance of the need to coordinate macroeconomic policy and international monetary policy. The Employer members emphasized the importance that ILO action could have in this respect.
94. The Employer members noted that a section of the Committee of Experts' report also covered the efforts made by the Member States of the European Union to achieve economic and monetary union. The Committee of Experts had referred in particular to the extraordinary session of the European Council on Employment, held in Luxembourg in November 1997, which had formulated a coordinated strategy on employment policy. It had also referred to the "employment guidelines" to be incorporated into national employment action plans in each Member State. The importance of the four overriding principles of employability, the spirit of enterprise, adjustment and equality of opportunity, should be emphasized in this respect. It was important to take into account the principle of subsidiarity, since each Member State of the European Union was responsible for its own employment and labour policies. The problems of individual Member States in this area therefore needed to be solved within their national boundaries.
95. The Employer members, referring to the situation in countries in Latin America and other developing regions, were particularly pleased with the comments of the Committee of Experts concerning the informal sector. Although recognizing that it was better to note growth in the informal sector rather than just stagnation and job losses in the formal sector, they questioned the call made by the Committee of Experts for representatives of the informal sector to be more closely involved in the formulation and implementation of employment policy. Structures normally existed in the formal sector for the representation of the social partners, but it was very difficult to identify representatives of persons working in the informal sector. They also welcomed the general statement made by the Committee of Experts that the best means of promoting employment was by supporting private initiative. In a free society, the decisions of individuals determined whether and where jobs would be created.
96. The Employer members referred to the World Employment Report, 1998-99, which was concerned in particular with the development of globalization and the associated rapid technological change. In this respect, particular importance should be attached to the level of qualifications of workers. Empirical studies showed that a well-educated population raised the competitive level of a nation and permitted more rapid adjustment to structural change. In this respect, a good basis for vocational skills needed to be established at an early stage. It was very difficult to compensate subsequently for shortcomings in education or vocational training. The objective was to ensure that individuals achieved and maintained a high level of employability. This required the motivation of individuals and preventive measures to ensure that obstacles were overcome and passive support measures avoided.
97. The Worker members stated that with regard to Convention No. 122, the Committee of Experts had once again made very useful comments. One of the principal challenges of employment policy was undoubtedly the Asian crisis. Starting out as a financial crisis, it had quickly shaken the economy and society. Even though the traditional financial indicators showed that the crisis was becoming less serious, its consequences on the economy, and therefore on income and employment, would be felt for a long time. Did a crisis of this nature require a structural response, within which institutional reforms would have a major role to play? These were the findings of several studies and reports which had recently been submitted to the Governing Body. It was therefore necessary to work without delay for greater social dialogue, a better application of labour standards, a coordinated and transparent social, economic and financial policy and the establishment of a social protection network. It would also be necessary to establish effective services to provide guidance and retraining to workers who had been made redundant or who were likely to lose their jobs. Employability was not the responsibility of the worker alone, but was also a subject which needed to be addressed by employers and governments. In its report, the Committee of Experts had made recommendations within the context of the coordinated employment policy required by Convention No. 122. This position was fully supported by the Worker members. The impact of the crisis had also been felt in an important way in other regions, including Latin America and Africa. Employment levels were continuing to fall in the formal sector, while the informal economy increased in size. It was for this reason that dialogue was required with workers' organizations, including those from cooperatives and the informal sector, which did indeed exist, with a view to working without delay for the development of an employment policy which offered greater numbers of workers the prospect of better employment and adequate social protection
98. The Worker members considered that the Committee of Experts had also been right to note the establishment of a common currency, the Euro, in 11 of the 15 Member States of the European Union. Increased cooperation at the European level was required to direct monetary and economic policy more effectively towards social and employment objectives. In this respect, the Committee of Experts had referred to the extraordinary European Council on Employment held in Luxembourg in November 1997 and the adoption of employment guidelines and national employment action plans. These constituted an important first step, which was nevertheless not in itself adequate for the perusal of a coordinated employment policy, as required by Convention No. 122. Economic and monetary policy therefore needed to take employment objectives more fully into account. Although such coordination was envisaged on paper, the monetary, economic and financial authorities still tended to focus on applying their own measures. It was to be hoped that the process leading up to an employment pact, such as the one prepared for the European Summit in June, would lead to progress in this respect.
99. The Government of Cuba stated that the existence of a significant informal sector in many countries supported the need to continue the effort to incorporate general guidelines for development of this sector in the formulation and application of employment policy at the national level. The inclusion of this sector in the scope of labour inspection, as well as the observation that ILO minimum age conventions not only applied to employment of children for wages in the organized sector, but also to any form of economic activity, including self-employment, could contribute to the formulation and application of an efficient employment policy that protected the rights of workers. The Government member of Portugal considered that the right to work was a human right and was essential for the enjoyment of other fundamental and social rights. The Government member of India considered that the Convention provided a proper framework for adopting a national economic and social policy aimed at achieving productive employment for all. The Government member of Kenya agreed with the Committee of Experts to the effect that the goal of full, productive and freely-chosen employment remained the basic policy of the Organization. The Government member of Lebanon highlighted the importance of the ILO's global and InFocus programmes aimed at job creation and employment generation.
100. A Worker member of Germany stated that even though Convention No. 122 was a promotional Convention, its application had a direct impact on the implementation of other Conventions. In this respect, he recalled the discussions by the Member States of the European Union in Luxembourg in 1997, which had reaffirmed the central importance of macroeconomic policy for employment issues. Moreover, in response to the views expressed by the Employer members concerning the economic feasibility of certain types of social protection measures, he stated that recent crises in financial markets had fully demonstrated the need for social cohesion. By way of illustration, the increasing tendency to favour private insurance schemes over public social protection systems meant that, through their greater dependency on global financial markets, their beneficiaries were more vulnerable to financial crises. The Worker member of France referred to the comments of the Committee of Experts and to the ILO's World Employment Report covering employment in the world and the means of combating unemployment and underemployment, generalized basic education, initial and ongoing training to meet the growing demand for skilled workers and to learn new technologies, and the reduction of working time. The Asian crisis showed that efficient social systems were a prerequisite for balanced and sustained development and that their failure created a tragic situation for workers and hampered the possibilities for revival. Reference was often made, as causes of unemployment, to the insufficient flexibility of the labour market and the cost of labour and social protection. The Asian crisis proved the contrary. Social progress and social justice were essential criteria for sustained growth. In a future report, the Committee of Experts should study further the question of the conditions and methods for the maintenance and long-term development of employment, skills and protection against unemployment in order to meet the objective of Convention No. 122, namely full employment. That would help sustain the financing of social security and retirement pensions, which were currently being jeopardized by precarious employment, the imposition of flexibility and low wages.
101. The Employer member of South Africa stated that the promotion of the ideal of full employment would be a significant tool for the future as it provided an opportunity to integrate macroeconomic including monetary policies with labour market policies. This should also enable the Committee of Experts to contribute to the evaluation of the trade-offs and the costs associated therewith.
Indigenous and Tribal Peoples Convention, 1989 (No. 169)
102. The Employer members considered that it had not been possible for the Committee of Experts to say a great deal with respect to the application of Convention No. 169 because the Convention had only been adopted recently and had received few ratifications. The objective of the instrument was the protection of some 300 million indigenous and tribal people. In the same way as many other Conventions, it established minimum rights and provisions. Nevertheless, it was an extremely complex instrument which could affect the constitutional structure of a nation. It could also have an impact in areas which did not lie within the direct application of national legislation. By way of illustration, the Committee of Experts had referred in this respect to the peace agreement in Guatemala and the influence of the Convention in certain court cases.
103. The Worker members were pleased to have contributed decisively to the adoption in 1957 and 1989 of the two ILO standards on indigenous and tribal peoples, the Indigenous and Tribal Populations Convention, 1957 (No. 107) and the Indigenous and Tribal Peoples Convention, 1989 (No. 169). The Committee of Experts had rightly emphasized that Convention No. 169 was the most comprehensive instrument which could have been designed to protect the rights of indigenous and tribal peoples. The Convention had already had a major impact in many countries, even before its ratification, although much remained to be done.
104. The Employer member of Bolivia stated that the report of the Committee of Experts correctly pointed out that the Convention had influenced positive law. This had been the case as regards the Bolivian Constitution which had incorporated the principles of a multi-ethnic and multicultural society, and as regards the Mining Code. Furthermore, the application of the Convention was extremely complex and was generating doubts and difficulties, particularly when taking into account the fact that its scope of application exceeded labour and covered other issues relating to natural resources, different cultural and sociological aspects and matters pertaining to penal law. The Committee of Experts had stated that "this Convention establishes a relationship of respect between indigenous peoples and the States in which they live, a concept which should not be confused with autonomy or political and territorial independence from the nation State". This was important because in countries such as Bolivia there was a tendency to give too broad an interpretation to the Convention, to disregard its limits, terms and the need for flexibility. The Committee of Experts should help to provide an adequate interpretation of this Convention to encourage its dynamism, geographical coverage and to achieve its objectives.
Conventions relating to child labour
105. The Employer members noted that, in its comments on the application of Conventions on child labour, the Committee of Experts had referred to new instruments being prepared for the elimination of the worst forms of child labour; it had also underlined the lack of precise information provided by some countries on the application in practice of existing Conventions. The reports on the application of Conventions on child labour as well as, more generally, on all Conventions should be more accurate and complete, and should include information on the practical application of the standards. The measures adopted by member States, if they were not adapted to the real situation, would remain a dead letter. They agreed that a good level of education and training was one of the surest guarantees against "exploitative" child labour. Indeed, education and training were a determining factor in the future of any nation.
106. The Worker members stated that the ILO and the international community paid increased attention to the measures required to combat child labour throughout the world. In this respect they referred in particular to the current discussions in the Conference for the adoption of the new instruments, the exhaustive programmes, such as the International Programme for the Elimination of Child Labour (IPEC) for the prevention and elimination of child labour, and the campaign to promote the ratification of Convention No. 138. There had been an encouraging rise in the number of ratifications of the Convention. In several countries, trade union organizations had made a major contribution to the mobilization against child labour. In some countries, the ILO should provide assistance to trade union organizations to strengthen their capacity for action in fields such as combating child labour. The Worker members shared the concern of the Committee of Experts in relation to child labour in the informal sector and the need to strengthen controls, particularly through the labour inspectorate and the involvement of employers' and workers' organizations.
107. Several Government members (Belgium, Dominican Republic, Indonesia, Kenya, Sweden (speaking on behalf of the Nordic countries)) referred to the new instruments currently under discussion by the Conference. The Government member of Belgium considered that these instruments should aim at complementing the goals of Convention No. 138 with a view to taking certain immediate actions. The Government member of Cuba stated that the development and prolongation of basic schooling were important elements to guarantee the application of Convention No. 138. The Government member of Kenya commended the ILO's efforts in the fight against child labour and especially through the activities of IPEC to which the Government members of the Dominican Republic and Indonesia referred. The Government member of Sweden (speaking on behalf of the Nordic countries) expressed the hope that the supervisory activities relating to international labour standards in this area would contribute to the effective elimination of child labour.
108. The Worker member of Pakistan expressed the hope that the ILO would help in the application of the Convention to ensure that children had access to education. The Worker member of Colombia wondered whether it was realistic to hope to find a solution to this problem, given the increase in social marginalization and labour instability. The ILO should take the time to review the concrete results of its work. The Worker member of India stated that while laws existed in his country to prohibit bonded labour and child labour, these practices still existed, illustrating the fact that the existence of a legal framework was not sufficient to ensure implementation of Conventions, and that further ILO assistance would be needed in this respect.
Export processing zones
109. The Employer members indicated that on various occasions, the Conference Committee had addressed the question of the application of Conventions in so-called export processing zones and enterprises. The report of the Committee of Experts referred to the Action Programme which had been undertaken on the subject, and to the conclusions and recommendations of the 1998 Tripartite Meeting on Export Processing Zones. Progress was obviously being made in this area. For example, the application of labour law to special economic areas was explicitly excluded in only a few countries. Nevertheless, there remained much room for improvement. The Committee of Experts referred in this connection to the application of Conventions on freedom of association and collective bargaining, as well as equal remuneration. However, it would appear that the question of remuneration in export processing zones did not give rise to special problems and was not worse than in other parts of the countries.
110. For the Worker members the application of Conventions in export processing zones and enterprises was a matter of absolute priority. They thanked the Committee of Experts for the comments and observations that it had been making for several years on the application of standards in export processing zones. Since the last Conference, the 1998 Meeting on EPZs had been held. The Meeting had been able to adopt important conclusions on the priorities and measures to be taken to improve social and working conditions in export processing zones. In its conclusions, it had noted that the pace at which these zones were developing was accelerating with globalization. A consensus had been achieved with regard to the serious problems which arose in relation to excessive hours of work, severe limitations on freedom of association and collective bargaining, as well as on social dialogue and the conditions of work of women. It was important for the ILO's supervisory bodies and the Office to supervise the application of Conventions and the implementation of the guidelines adopted by the Meeting.
111. The Government member of Cuba, like the Committee of Experts, reiterated that globalization of the economy could not weaken the obligation of States that had ratified Conventions to apply them also to workers in export processing zones. The Government member of Germany considered that the very existence of these zones indicated the existence of a link between trade and the rights of workers. The Worker member of Pakistan, referring to the denial of the rights of workers in export processing zones, called for such workers to be covered by all national labour laws.
Freedom of association and collective bargaining
Special reports on the Freedom of Association and
Protection of the Right to Organise Convention, 1948
(No. 87), and the Right to Organise and Collective
Bargaining Convention, 1949 (No. 98), from countries
that have not ratified them
112. The Employer members described section III of the report on freedom of association and collective bargaining as a mini article 19 survey. The Governing Body had decided in November 1995 to undertake such special reports on the implementation of the seven fundamental Conventions. However, the system nevertheless had to be changed once again. Following the adoption of the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, such surveys would in future be part of the follow-up to the Declaration. The information provided in the present survey covered member States which had not ratified Conventions Nos. 87 and 98. The contents of the survey were therefore confined mainly to the issue of whether ratification was envisaged and the obstacles which were preventing ratification. It should be noted that, when the report was drafted, Convention No. 87 had received 122 ratifications, while the figure was 139 ratifications for Convention No. 98. The true significance of these figures could be gauged when it was taken into account that non-ratifying countries accounted for nearly one-half of all workers and employers throughout the world. These countries consisted of a mixture of highly developed and industrialized countries, countries in transition and developing countries. It was also to be regretted that only around one-half of the member States from which reports had been requested had complied with that requirement. This constituted a contravention of their constitutional obligations and was not acceptable. Moreover, the quality and coverage of the information provided in the responses varied widely. The Employer members added that the experience of many years showed that professions of intent to ratify Conventions in the near future had to be regarded with an element of scepticism based on realism rather than on mistrust.
113. The Employer members noted that, with respect to Convention No. 87, the Committee of Experts undertook to indicate the obstacles to its ratification. In many cases, the member States concerned had referred to the absence of workers' organizations. However, this should provide no obstacle to ratification. The situation was completely different in cases in which workers' organizations, or essential elements of their activities, were prohibited, or where a situation of trade union monopoly was imposed. The same applied where restrictions were imposed on particular categories of workers or activities, or where limitations were placed on the holding of trade union office based on nationality. In countries where there was a one-party political system, there was often an explicit connection between the political structure and the workers' movement. The fact that only two member States had referred to restrictions on the right to strike as a determining factor in preventing ratification clearly showed that the report covered only a small part of the real situation. Moreover, over the years, the Committee of Experts had developed an extremely broad interpretation of the right to strike, which was not founded in any specific wording in the Convention. And yet it made severe criticisms of member States every year on the grounds that their strike regulations differed from the broad interpretation which it propounded. This approach undoubtedly had a negative impact on the willingness of member States to ratify Convention No. 87. Nevertheless, the Employer members wished to highlight the fact that they fully agreed with most other elements of interpretation of Convention No. 87, and that this was important for the ILO and its constituents. The Committee of Experts had also referred to a number of reasons put forward by member States for their failure to ratify Convention No. 98. Many governments had stated that their internal legal situation was substantially, or almost entirely, in accordance with the requirements of the Convention, which meant in practice that not all of its requirements were met.
114. The Employer members mentioned that the part of the General Report covering these Conventions concluded with an urgent appeal to make every effort for their more widespread ratification. Despite the very intensive promotion of these Conventions, and 50 years after their adoption, countries representing one-half of the world's population still had not ratified them. The reasons for this situation needed to be sought out more intensively. In this respect, the General Survey on migrant workers had analysed the reasons for the non-ratification of the respective Conventions in an entirely realistic manner. In the case of Conventions Nos. 87 and 98, it was therefore necessary to raise the question as to whether their texts were mistaken or unrealistic. The Employer members did not believe that this was the case. Nevertheless, as they had often stated, they entertained substantial doubts concerning the interpretation of the Conventions, which had deviated widely from their wording. It was therefore small consolation that the only binding interpretation of legal texts could be made by the International Court of Justice. In view of the absence of any decision by that Court, there was therefore no generally binding interpretation of the two Conventions. Although they only constituted comments, the continued expansion of the observations made by the Committee of Experts in this respect had an important effect. They concerned a large number of situations and frequently led to the conclusion that the Conventions in question were not being respected. It could not be doubted that this process dissuaded member States from ratifying the instruments.
115. The Worker members stressed first and foremost the importance of Conventions Nos. 87 and 98, which guaranteed fundamental labour rights. The previous session had seen the 50th anniversary of Convention No. 87, and this year was the 50th anniversary of Convention No. 98. The Governing Body had decided that the first global report under the follow-up of the ILO Declaration on Fundamental Principles and Rights at Work should be devoted to freedom of association and the effective recognition of the right to collective bargaining. Next year's Conference would discuss this report which would deal simultaneously with countries which had ratified the two Conventions and with those which had not yet done so. The annual reports had perhaps a more restricted aim than the global reports but they were nonetheless of major importance. They would make possible an examination of the obstacles to ratification, the prospects of ratification and the difficulties posed by non-ratification. The procedures for annual reports would be carried out in parallel to the campaign launched by the Director-General in May 1995 to promote the ratification of the seven fundamental Conventions. This campaign must be maintained and the Office should continue to give it priority. The Special Report answered in part to the aspirations linked to the Declaration on Fundamental Principles and Rights at Work and to the strategic objectives of the ILO recommended by the Director-General. Fuller information than in the past was now available regarding the situation in several countries which had not already ratified the Conventions. Twenty-seven countries had not yet sent a report regarding Convention No. 87, and 19 countries had failed to do so regarding Convention No. 98. Taking into account the replies sent within the framework of the ratification campaign for the fundamental Conventions, information was available for 44 countries out of the 52 which had not ratified Convention No. 87, and for 30 countries out of the 35 for Convention No. 98. The government replies had been supplemented by information from other sources, and several national and international workers' organizations supplied information on the reports submitted by the governments. The additional, clarifying material brought by workers' organizations clearly illustrated the disparity which in certain cases existed between governments' statements and the reality in these countries.
116. The Worker members noted that certain governments had announced, without giving fuller details, that they were studying the possibility of ratifying Convention No. 87 and/or Convention No. 98. However, in some countries, listed in paragraph 122 of the report, there were no trade unions, or no truly independent trade unions, and collective bargaining was non-existent or almost non-existent. Myanmar, Oman and Sudan were examples of such countries. Trade unions were non-existent, almost non-existent or even prohibited in the countries listed in paragraph 125 (Saudi Arabia, the United Arab Emirates and Qatar). On the other hand, other countries, such as Brazil, India, Mexico, Morocco and Nepal were seeking to remove obstacles in their legislation and practice so as to be able to ratify these Conventions. It was to be hoped that their good intentions would result in a rapid ratification and effective application of freedom of association and collective bargaining. The obstacles facing them as well as their real intentions regarding ratification should be identified and if the political will existed within government, ILO technical assistance could help to overcome the problems. In some countries practical application posed very serious problems due to the weakness of the legislation or shortfalls in its efficacy regarding anti-trade union practices: this situation pertained particularly in the United States. In other countries, recent legislation did not aim to promote freedom of association and collective bargaining but, on the contrary, sought to limit them. Certain paragraphs of the Committee of Experts' report were devoted to the prohibition of the right to strike to obtain the extension of collective bargaining in several enterprises in New Zealand; the absence of recognition of the right to strike in China; several aspects of collective bargaining at the federal level and in certain Canadian provinces; and the abolition of public servants' trade unions in Thailand. Several countries, such as China and Viet Nam maintained a single trade union system imposed by law.
117. The Worker members believed that the campaign for the promotion and ratification of the fundamental Conventions had contributed to removing obstacles to ratification in several countries and that Indonesia's ratification of Convention No. 87 was very important. Other countries had announced that the process of ratification was under way. Despite such positive developments, the ratification of Convention No. 87 was progressing in a less encouraging way than the ratification of the other fundamental Conventions. It appeared that too many countries still resisted moving towards a position which would allow possible ratification. These countries had very large populations and were thus denying millions of workers the protection of the fundamental Conventions.
118. Several Government members spoke concerning prospects and difficulties of ratification of Conventions Nos. 87 and 98. The Government member of Cuba considered that the information on obstacles encountered concerning ratification of these Conventions contributed, according to the report of the Committee of Experts, new elements that confirmed the need to continue technical assistance activities, although in some circumstances there might not be just an absence of technical capacity or social or economic conditions for the application of fundamental trade union principles and rights, but also a lack of willingness on the part of the governments to assume such obligations. The Government members of Belgium and Portugal expressed the hope for a larger number of ratifications of Conventions Nos. 87 and 98. Some Government members referred to the interpretations of the provisions of these Conventions made by the supervisory bodies. The Government member of Germany shared the views expressed by the Employer members regarding the way the comments by the Committee of Experts might affect the level of ratifications of these Conventions. He expressed understanding of the fact that the issue of essential services or public services were invoked as a major obstacle. Similar problems also occurred in the application of the Convention in member States that had ratified these Conventions. The Government member of India stated that although these obstacles were few in number, they were common to many countries. He believed that interpretations of the provisions of these Conventions by the supervisory bodies had gone beyond the text of the Conventions, which could only be interpreted by the International Court of Justice. However, he emphasized that India's intention was not to take any rigid legal position, but to promote a dialogue within the ILO system to identify and remove these technical obstacles in order to facilitate wider ratification and implementation. The question of ratification continued to be under examination. Although formal ratification was not expected in the near future, the Government would soon be in a position to communicate information on the progress made in removing some of the obstacles. The Government member of Sri Lanka referred to specific obstacles concerning Convention No. 87 linked to restrictions that some countries imposed on the organization of public sector trade unions at certain levels. The Government member of Canada referred to provisions of Convention No. 98 dealing with collective bargaining rights which appeared to have been interpreted by the ILO to mean that workers, apart from the exceptions permitted in the Convention, must have access to statutory machinery providing for collective bargaining. A number of jurisdictions in Canada excluded some types of workers other than those allowed to be excluded under Convention No. 98 from their collective bargaining legislation. Nevertheless, he declared that the Government of Canada would continue to assess whether the ILO's approach to the requirements of Convention No. 98 could provide enough flexibility to lead eventually to the required unanimous agreement of Canadian provinces and territories in Canada to ratification of the Convention. It was his Government's firm intention to continue the dialogue with the ILO on this issue. The Government member of China stated that the principles of the Conventions were respected and freedom of association guaranteed.
119. The Worker member of Finland (speaking on behalf of the Worker members from the Nordic countries), referring to the campaign to promote ratification of the fundamental rights Conventions, found that while the results were encouraging, the rate of ratifications of Convention No. 87 left much to be desired. In addition countries such as Afghanistan, China, India, the Islamic Republic of Iran, New Zealand and the United States were among the States that have not ratified Conventions Nos. 87 and 98. Some of these were industrialized countries. Several of the most heavily populated countries in the world had not ratified these Conventions. The Committee should appeal to member States to ratify these Conventions. Ratification and full implementation of the seven Conventions on basic human rights, especially Nos. 87 and 98, were of vital importance, and not only for workers. Where freedom of association or the right to organize did not exist, there could be no hope for all the other important labour standards laid down in additional ILO Conventions. Only the existence of free and independent trade unions and employers' organizations, and governments' acceptance of the need to consult them and to negotiate with them, could help governments resist the temptation to lower or ignore labour standards in times of economic depression or swift political change. More than one-fifth of the Committee of Experts' report (Part Two) was this year taken up by comments on Conventions Nos. 87 and 98. While not all of those comments were critical, too many cases of little or no progress unfortunately remained.
120. The Worker member of Germany urged industrialized countries to ratify these Conventions. They could not credibly advocate fundamental workers' rights all over the world without themselves submitting to the supervisory machinery. The Worker member of India recalled that many advanced countries had not ratified Convention No. 87, and the Worker member of Italy stressed the fact that although the majority of countries had ratified Conventions Nos. 87 and 98, over half the workers in the world did not enjoy their protection. The Worker member of Pakistan stated that the large number of cases of violations of trade union rights having come before the Committee on Freedom of Association confirmed that workers' rights were being flagrantly violated.
121. The Worker member of the Netherlands disagreed with the views expressed by the Employer members on the way the Committee of Experts dealt with the right to strike. There was a striking inconsistency between this position and the position the Employers had taken on this issue in the period before 1989, when they fully supported the experts' views. He further remarked that the Employers in the Committee on Freedom of Association continued to do so. In conclusion he noted that, apparently, no Governments shared the Employers' views on this issue. To the extent that any of the Governments that had been sharply criticized by the Committee of Experts for their restrictions on the right to strike really felt that the Experts were wrong, this issue could be referred to the International Court of Justice. The Worker members of Germany supported the statement of the Worker member of the Netherlands. A Worker member of Germany also contested the view expressed by the Government member of Germany that the restrictions contained in national legislation respecting categories of workers, such as public employees, were the principal reason for the reluctance of member States to ratify these Conventions. The preparatory work for the two Conventions demonstrated that they applied to all workers.
122. A Worker member of Germany regretted that on the 50th anniversary of the adoption of Convention No. 98, it had not been thought fit for the Committee to hold a special session reflecting the crucial importance of the Convention, at a time when a general trend towards individualized agreements between employers and workers was taking precedence over collective agreements. This trend was calling into question the principles of the Convention and was leading to a deterioration in working conditions. The Committee should therefore include a special paragraph in its report re-emphasizing the importance of Convention No. 98. In this connection, he called for a German translation to be made available of the Digest of decisions and principles of the Committee on Freedom of Association Committee. Some Worker members drew attention to the situations in their countries. The Worker member of Brazil indicated that the Government had submitted to the National Congress a draft constitutional amendment to remove the obstacles to the incorporation of Convention No. 87 into Brazilian constitutional law. The Worker member of Colombia stated that in Latin America the rights to associate, to collective bargaining and to strike were almost non-existent, as a result of new systems for hiring workers, labour reforms, flexibility and structural adjustment programmes, the aims of which were to annihilate the trade union movement. He criticized the strategies imposed by the international financial institutions, and in particular the Interamerican Development Bank, for lending money to countries not for their development, but to destroy trade unions and dismiss workers. In this manner, in recent months Colombia had seen 15,000 workers dismissed and dozens of trade unions destroyed. The Worker member of Tunisia stressed the importance of the Workers' Representatives Convention, 1971 (No. 135), which he considered should be treated with the same importance as Conventions Nos. 87 and 98.
123. The Worker member of the United States, referring to the celebration of the 50th anniversary of the adoption of Convention No. 98, as well as the 50th anniversary of Convention No. 87 the previous year, recalled the indication given by the Government of the United States and the comments submitted by the AFL-CIO which were mentioned in the report of the Committee of Experts. When workers in his country wished to assert their rights of freedom of association, they ran a substantial risk of triggering aggressive and often illegal opposition by their employer. Violent anti-union attitudes had given rise to the growth of a large industry of management consultants advising employers on how to remain "union free". For this purpose, use was made of highly refined and effective means of coercion and intimidation, as well as the ultimate weapon of discharge from employment. This industry had started to be exported to many other countries. There were credible estimates that thousands of workers lost their jobs every year in the United States due to the exercise of rights guaranteed by federal law. Moreover, workers who decided to organize did so under the explicit understanding that they were placing their jobs at risk. An opinion poll undertaken in 1994 had found that nearly 80 per cent of all citizens of the United States believed that workers were likely to lose their jobs if they tried to introduce a trade union to their workplace. According to federal law, the achievement of representation marked the beginning of a relationship of bargaining in good faith between the employer and the trade union. However, available data showed that one-third of new certifications of workplace unions never resulted in a first collective bargaining agreement. The federal laws embodied a policy of promoting freedom of association at the workplace as an instrument of peace rather than strife. However, the promise of representation remained unfulfilled for thousands of workers in his country. A recent ICFTU report had noted that the law in the United States was unable to protect workers when the employer was determined to destroy or prevent trade union representation. The experience of his country illustrated the substantial gap which could exist between respect for the principles of the core human rights Conventions and adherence to their actual provisions in practice. The workers' movement in the United States would redouble its efforts to increase the number of ratifications of ILO Conventions by his country, and especially the fundamental Conventions, in cooperation with elements in the business community which understood that respect for workers' rights was an essential element of a modern and productive industrial relations system.
124. The Employer member of the United States said that the influence of management consultants was only a minor factor in the decline in trade unions in the United States. Research showed that the increased participation of women in the workforce was the most important factor underlying the decline in workers' organizations. Improved human resources practices, the globalization of the economy and a lack of organizing efforts were also important factors. Moreover, research showed that the action taken by trade union organizers was more important than managerial attitudes in determining whether workers formed organizations. He also pointed out that whereas unions devoted 40 per cent of their dues for organizing workers in the 1950s, that dropped to 2 per cent in the 1960s to the 1980s. He warned that, at a time when many NGOs were competing for the allegiance of workers and their families, trade unions in the United States could no longer afford to rest on their laurels.
125. The Employer member of the Islamic Republic of Iran stressed the importance of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). In this regard he thanked the ILO for assisting in obtaining a commitment from his Government to ratify this Convention, and urged the Government to accelerate the procedure for ratification. He suggested that Conventions and Recommendations be addressed to his country's Parliament and Labour Council to encourage further ratifications. He also suggested that this Committee and the Committee of Experts use positive and promotional language in their comments to alleviate the concerns expressed by some countries regarding the extent of the criticism to which they could be subject as a result of non-conformity. Where there was non-conformity, the supervisory bodies should give more guidance and the ILO should provide assistance based on the needs and the social and economic context of the country concerned.
126. The Worker members had observed that several Governments had clarified their position regarding ratification of these instruments in the Special Reports which served as a basis for the Committee of Experts' report: India had supplied information on its stance relative to a possible ratification of both Conventions, while Chile and Indonesia had both recently ratified Convention No. 87. The Government member of Canada had explained developments in that country regarding Convention No. 98, and it appeared that the door was still open to a possible ratification. The Government of Canada should accelerate its work. If the national legislation or practice in a given country were not in conformity with the Convention, the national situation required revision, and not the contrary, involving revision of the Convention or changes in its interpretation. With respect to the right to strike, the Worker members stressed the fact that the position of the Committee on Freedom of Association and the Committee of Experts in this regard had been established and confirmed for many years; they therefore did not share the doubts of the Employer members. The vast majority of countries which had not yet ratified Convention No. 87 had not indicated why the right to strike should prevent them from ratifying this instrument.
127. The Employer members deplored the statement made by the Worker member of the Netherlands concerning the right to strike as they felt that the statement was solely of a polemic nature. They considered that this statement was an unsuccessful attempt to show a change in the Employer members' view on the right to strike. Furthermore, the Employer members quoted the report of the Committee of Experts in which it was mentioned that two States considered the right to strike to be an obstacle to the ratification of Conventions Nos. 87 and 98. This led them to think that these obstacles were also encountered by other States which had not ratified these two Conventions. Moreover, the Employer members' views on the subject were well explained in paragraphs 115-134 of the Conference Committee's report of 1994.
Submission to competent authorities
128. The Employer members recalled that one of the obligations of ILO member States was the submission of ILO instruments to the competent national authorities within 12 months, or at the latest within 18 months of their adoption by the Conference, which in most cases meant submission to the national parliament. However, there were shortcomings in the fulfilment of this obligation. It was to be regretted that 28 member States had not indicated that the ILO instruments adopted over the past seven sessions had been submitted to the competent authorities. In the detailed comments that it had made on the subject this year, the Committee of Experts had described the measures which needed to be taken by member States, with particular reference to the purpose of submission and the fact that it did not imply the obligation to ratify the respective Conventions. Member States remained entirely free to decide whether or not to ratify the instrument concerned. The Conference Committee had also promoted the submission of ILO instruments for many years.
129. The Worker members stressed the unique character, within the system of international relations, of submission of the instruments adopted by the International Labour Conference to the legislative bodies of the member States. Submission of the instruments within 12 or 18 months after their adoption by the Conference was intended to attain several important objectives: the reinforcement of the links between the ILO and national authorities such as parliaments; the promotion of ratification; and the stimulation of tripartite dialogue at national level on the development of national social policy in relation to international standards, which could only enhance democracy. In its report, the Committee of Experts set out in detail the nature of the obligation that submission implied, and the precise modalities to be followed. The Committee listed the countries which had not supplied information regarding submission of instruments adopted over the last seven sessions of the Conference. These countries figured among the automatic cases. The governments concerned should take account of the comments of the Committee of Experts and, if necessary, adapt their internal procedures for submission. It appeared that several countries had recently simplified their procedures by creating a direct link in respect of submission between the ministry of labour and the legislative bodies, thus strengthening tripartism.
Technical cooperation relating to standards
130. The Employer members referred to section IV of the report of the Committee of Experts which described the many forms of technical assistance provided by the ILO in the field of standards. These included seminars, regional conferences and very many advisory services. For several years, the multidisciplinary advisory teams had been particularly active in this respect. The Employer members expressed gratitude for all the assistance provided, often under difficult conditions.
131. The Worker members expressed firm support for technical assistance in the field of standards, which they saw as an ILO activity aimed at strengthening the application of international labour standards. This technical assistance role in respect of standards was also referred to in the Director-General's Report to the Conference. Even greater efforts should be made to provide this assistance since most international standards remained unknown throughout the world as did the ILO supervisory system. The report for the Conference on the role of the ILO in technical cooperation also referred to international standards. The Worker members regretted the absence of standards specialists in various posts. The Committee had always strongly supported the establishment of multidisciplinary teams. The Worker members again insisted that multidisciplinary teams and the whole range of technical assistance should develop contacts with the employers' and workers' organizations. Several organizations had informed the Worker members that the ILO's Active Partnership Policy did not always pay sufficient attention to the need to strengthen employers' and workers' organizations. Support should not be limited to programmes in collaboration with governmental agencies, consultants and certain NGOs. The essence of the ILO lay in its tripartism.
132. Several Government members (Cuba, Dominican Republic, Egypt, Indonesia, Sri Lanka) recalled the benefit brought by the technical assistance of the Office. The Government of Kenya considered that the ILO also had an obligation to find out the nature of any difficulties which might be hampering various member States from discharging their constitutional obligations under the ILO Constitution. It should offer assistance in the form of educational seminars, study fellowships, regional seminars on international labour standards, and finally, through the services of specialists in labour standards in the various multidisciplinary teams. The presence of these teams was aimed at assisting member States in fulfilling their standards-related obligations, to ensuring that appropriate tripartite consultations between governments, employers and workers take place, and to promoting the integration of standards considerations in the formulation of country objectives and technical cooperation projects and programmes. He considered that technical cooperation and advisory services clearly offered the best means of convincing the member States of the ILO that the Organization could help them and believed that such technical cooperation should not be made conditional, as long as such assistance was consistent with ILO objectives. The Government member of China acknowledged that there was a "development gap" among various regions and countries that led to differences in capacity for labour standards activities among member States. Such a capacity restriction affected and restrained many member States, particularly the developing ones, from ratifying and applying labour Conventions, including the fundamental ones. He stressed that the Office should take advantage of its strength in resources and expertise and provide country-specific technical assistance and cooperation to enhance the capacity-building of member States. This would promote the ratification and implementation of Conventions in a progressive manner, and would ensure the effective role of international labour standards in the safeguarding of workers' rights and the promotion of social progress. The Government member of Morocco emphasized the importance of ILO assistance in the area of harmonizing labour legislation with international labour standards. The Government member of Portugal referred to making standards widely known in particular by translating them into national languages of member States. The Government member of Sweden (speaking on behalf of the Nordic countries) highlighted the activities of the standards specialists in the multidisciplinary teams and their role in the ratification campaign and in the integration of standards into country objectives. The Employer member of the Islamic Republic of Iran stressed the important role that multidisciplinary teams had played in helping countries to understand the concepts underlying international labour standards and to implement them.
133. The Worker members supported the statements made by the Government members for the strengthening of technical cooperation in the field of standards. They reiterated that the ILO should devote priority attention to the strengthening of tripartism and social dialogue. If trade unions were or became weak in some countries because of economic or social transitions or due to anti-trade union practices, the ILO and the governments should make every effort to create a favourable climate for the development of these organizations. The organizations of employers and workers had a great advantage in that they had the ability to be present in enterprises at the national and international levels. They also had representative structures or institutions. Other organizations, such as NGOs, generally operated differently. Finally, the Worker members indicated their support for the suggestion to strengthen the supervisory system by creating tripartite committees at the national level.
C. Reports requested under article 19 of the Constitution
Migration for Employment Convention (Revised) (No. 97)
and Recommendation (Revised) (No.86), 1949, and the
Migrant Workers (Supplementary Provisions) Convention
(No. 143) and Recommendation (No. 151), 1975
134. The Committee devoted part of its general discussion to the examination of the second General Survey made by the Committee of Experts on the Application of Convention No. 97 and Recommendation No. 86, and Convention No. 143 and Recommendation No. 151 concerning migrant workers. In accordance with the usual practice, this survey took into account information communicated by governments under article 19 of the Constitution, as well as the information communicated by member States which have ratified the instruments in their reports submitted under articles 22 and 35 of the Constitution and the comments received from employers' and workers' organizations to which the government reports were communicated in accordance with article 23(2) of the ILO Constitution.
The changing context of migration for employment
135. The Worker members noted that the very detailed General Survey on migrant workers dealt with almost all aspects and problems related to the application of these instruments which was important since protection of migrant workers was one of the essential missions of the ILO. The situation of migrants was also brought up in the Declaration on Fundamental Principles and Rights at Work and its Follow-up and in the new Private Employment Agencies Convention, 1997 (No. 181). At issue was a group of workers for which international labour standards were absolutely vital for the maintenance of their most fundamental rights, not only because many countries were involved in migration but also because migrants were more vulnerable than other workers. As they generally did not have the right to vote, their situation and their problems were rarely, if ever, a political priority. In addition, they often held precarious or badly paid employment. The globalization of the world economy and the feminization of migration had added new problems and important challenges which called for concerted action. For the trade union movement, migrant workers represented a considerable challenge, and it had to consider how to integrate and implicate migrant workers in trade union activities in receiving countries and how to ensure cooperation between sending countries and receiving countries with a view to improving the situation of these workers. Too many countries tended to render trade union actions concerning migrants more difficult. For instance, laws and regulations did not allow migrants to join a trade union, to take up a post as a trade union official or to elect members representing workers in the workplace. This also represented a violation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and of the 1998 Declaration. The Worker members deplored the repeated violations evoked in previous years during discussion of Convention No. 87's application by Kuwait, Ecuador, Colombia, Bolivia and Guatemala. The ILO, the international community and member States in particular should be even more vigilant as regards migrant workers. The General Survey achieved several objectives in this regard. First, there was the classic objective of attempting to provide answers to concrete questions of interpretation with a view to assisting countries overcome their hesitations as regards ratification. Second, the survey sought to provide indications on how to resolve certain problems in the application of the Conventions. Finally, an evaluation of the future ratification prospects was made. The Worker members considered, however, that in order to increase the survey's utility and accessibility, it would have been appropriate to produce a publication limited to 80 to 100 pages, which would set out the essence of the survey to which could be joined a more technical annex.
136. The Worker members welcomed the fact that much attention had been given to the coherence between the instruments of the ILO, the instruments and activities of the United Nations and other specialized organizations, as well as regional instruments of cooperation. Migration was typically an issue which called for a high degree of collaboration within the international community. As regards collaboration between member States, the Worker members noted that these instruments encouraged countries to collaborate in settling problems related to migrant workers. Even if a member State did not ratify the Conventions, it was free to regulate main aspects of migration by way of bilateral agreements. Such bilateral agreements were mainly based on a structure -- now outdated -- whereby migration was arranged between official placement agencies in the two countries concerned. Recent developments should be taken into account in this context as well as issues concerning the role of private employment agencies, the feminization of migration, assistance to migrant workers in difficulties and the protection of their wages. Bilateral agreements should to the greatest extent possible take account of international labour standards, and they should in no case contain provisions which were contrary to fundamental labour standards or to the Conventions, which should be ratified as a priority. The Worker members noted that in Asia there were not even bilateral agreements between countries most particularly concerned by migration which could regulate the most urgent problems. Certain countries had, however, called for such agreements due to the vulnerability of their migrant workers and bad experiences in the recent past. It had further been clearly demonstrated that migrant workers were, and had been, the first victims of the financial and economic crisis in Asia, as well as in other parts of the world. The majority of immigrant workers were non-qualified and, as such, were the most vulnerable when restructuring and job losses occurred.
137. In the opinion of the Worker members, countries which were members of regional entities such as the European Union or Common Market of the South (MERCOSUR), should also take into account the consequences which their regional integration might have on migrant workers arriving from countries outside these entities. In the European Union, the principle of the free movement of workers and jobseekers who were citizens of one of its Member States prevailed. The legal status of citizens of these countries was however mainly regulated by various laws in and agreements between the Member States, which tended to make the situation difficult for migrants. Since the entry into force, on 1 May 1999, of the Treaty of Amsterdam, the competence of the European Union as regards working conditions for citizens of third countries had significantly altered. The European Union could now, for example, initiate legislation concerning the admission of citizens from third countries to the labour market, the extension of the scope of existing legislation to citizens of third countries, as well as the maintenance and transfer of acquired rights in social security systems. The European Union could also take the initiative to develop questions such as the extension of the principle of non-discrimination based on race and ethnic origin. The Treaty also provided that the social partners at the European level should be consulted prior to such initiatives. In addition, the employers' and workers' organizations at the European level had, in 1995, adopted the Joint Declaration on the prevention of racial discrimination and xenophobia and promotion of equal treatment at the workplace and developed a Compendium of Good Practice. A strengthening of the collaboration between the ILO and the European Union in this respect would also be indispensable.
138. With respect to the migration process, the Worker members noted the problems that were related to the lack of control over private recruitment and placement bodies, which often did not provide accurate information regarding open positions and required migrant workers to pay substantial sums as fees for their services. Such practices were not only contrary to Convention No. 97, but also to Convention No. 181. The latter, as well as other recent standards such as the Recruitment and Placement of Seafarers Convention, 1996 (No. 179), did not permit the charging of fees for certain specifically identified services, for example, for the issuance of official certificates. Moreover, Article 2 of Convention No. 97 appeared to prohibit the charging of administrative costs for the issuance of official documents even if such fees were imposed by a public placement agency. A clarification in this respect would permit a clearer definition of the obligations and strengthen protection against exploitation of migrants by private agencies. The most equitable and efficient solution would be to place responsibility for recruitment costs wholly on the employer. The Worker members also noted that the survey called attention to HIV/AIDS testing, as well as other medical tests, with which prospective migrants were systematically faced, although the infections or illnesses at issue would not affect their work. They supported the view that such practices violated the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).
139. As regards migrant workers who were in an irregular situation and/or illegally employed, the Worker members noted from the survey that the methods used to combat these problems all too often resulted in abuse of the fundamental rights of workers. There was a need to strike a proper balance between a protection of labour markets from distortions and the fundamental rights of migrant workers, including those who were in an irregular situation. Governments often tended to adopt repressive laws and practices aimed at controlling migratory flows without any consultation with either sending countries or employers' and workers' organizations and without giving consideration to the actual effect of the sanctions. In practice the fight against illegal employment resulted in a lack of effective sanctioning of employers and private recruitment agencies. In some countries the penalties for clandestine work were directed against the workers themselves. It was for this reason that workers did not dare to demand either payment of salaries or acceptable working conditions. For example, in Malaysia and in Singapore corporal punishment was possible. Such practices not only violated Article 1 of Convention No. 143 but also general principles of law and of human rights. Methods to suppress clandestine migration also provoked exploitation and labour trafficking, notably of women and children who were put to work under conditions of serfdom and slavery. The Worker members supported the appeal by the Committee of Experts that more balanced methods for the combat of abusive and illegal situations be developed urgently.
140. As regards equality of opportunity and treatment, the Worker members noted that it was the practical, rather than the legal, application of the relevant provisions that was problematic, as demonstrated by recent ILO research concerning certain industrialized countries, referred to in the General Survey. It was therefore essential for employers' and workers' organizations, as well as governments, to pay particular attention to actual cases of discrimination. Access to means of redress in situations of non-respect for migrant workers' rights should be facilitated, notably as regards the defence of their rights before tribunals by trade unions or by special commissions with competence to act in this respect. According to the Committee of Experts, the promotion of equal opportunity was more difficult than ensuring equality of treatment. Equality of opportunity required specific and positive actions in order to compensate for prejudice at the level of employment and integration into the society of the receiving country. Vocational training of migrant workers should be a priority in the receiving countries as a majority of migrant workers were not, or badly, qualified, and often came from rural areas. Likewise, measures could be taken for the recognition of professional qualifications acquired abroad, as well as the integration of migrant workers and their families. Access to employment and different occupations was also a problem when work permits imposed restrictions on migrant workers for a preliminary phase, only lifted after a period of residence or work. This period should be limited to two years according to Article 14 of Convention No. 143.
141. As regards migrants in society, the Worker members noted that the Conventions did not provide for specific obligations in regard to the daily life of migrant workers and their families. Most of the relevant measures were only found either in the relevant recommendations or in provisions of a promotional nature. For example, the right to family reunification was not provided for as a binding provision in the Conventions, yet the Committee of Experts was of the opinion that separation of a migrant who had been granted permanent residence in a country from his or her family would appear to constitute unreasonable hardship. The survey had identified good practices which, while aiming at migrant workers' integration, respected their national and cultural identity. On the other hand, the survey's examination of employment, residence and return demonstrated that there were considerable legal problems and obstacles to ratification: Article 8 of Convention No. 97, guaranteeing to migrant workers admitted on a permanent basis the right not to be returned by reason of illness and Article 8(1) of Convention No. 143, guaranteeing the right not to be returned in case of loss of employment.
142. The Employer members noted that this was the first time that a General Survey was conducted with a view to examining the continued relevance of a group of Conventions. They stressed that the character of migration had changed substantially since 1975 -- so much so that even the definitions of key terms in this field were no longer universally accepted. Yet, for this survey only 96 of the 174 ILO members (55 per cent) had fulfilled their constitutional responsibilities to provide a report on the law and practice, that many of the reports received were deficient in the level of detail, and only a small number of comments had been submitted by employers' and workers' organizations. No one really had all the facts, so that international regulation at this point could only be based on a partial picture and on anecdotal impressions. The latter was surely a poor basis for establishing legal requirements. As a result of the 1997 Tripartite Meeting of Experts on the Future of ILO Migration Activities, the ILO was to be commended for attempting to obtain the facts through pattern and practice studies as a vehicle to investigate allegations of exploitation of migrant workers. To date no employers' or workers' organizations or government had triggered the procedure undoubtedly because very few of the ILO's constituents were aware of it. The Employer members were interested in the legal basis for this procedure. Likewise, they recalled that the ILO Governing Body had supported the creation of the International Labour Migration Database, which would apparently be available on a limited basis in 1999. The Employer members asked how the data were to be collected and certified as to their validity and authenticity.
143. The representative of the Secretary-General replied that the studies were not a supervisory mechanism or a complaints procedure, but a method whereby constituents could request the ILO to analyse their practices or those of other constituents in relation to migrant workers; thus it was based on article 10 of the Constitution, namely the general authority of the Office to carry out any special investigations requested by the Conference or the Governing Body. The procedure of pattern and practice studies had been adopted by the tripartite Technical Meeting in April 1997 and approved by the Governing Body, though not yet implemented. Regarding the reliability of statistics gathered, he stated that questionnaires had been sent to bureaux of statistics, whose replies would be used as a basis for the statistics concerning migratory flows. Migration statistics supplied to the ILO normally came from two sources: censuses and registers of emigrants and immigrants (in a few cases also from labour force surveys).
144. The Employer members noted that the Director-General, in his Report Decent work, estimated there may be 100 million workers and their families living outside their countries, but it was difficult to establish with any accuracy the number of migrant workers in the world today. This lack of reliable figures, as well as the limited information provided by employers' and workers' organizations, made it clear that there needed to be a general discussion on the subject of migrant workers in a future International Labour Conference before any new standard setting on migrant workers could take place, in order to establish and develop a tripartite understanding of the current and future dimensions of the issue.
145. The Employer members stated that the survey pointed out that many member States were turning to bilateral agreements to regulate the most significant emigration and immigration flows, particularly with respect to social security. The survey did not address the compatibility of these bilateral agreements with the two Conventions, but they clearly had an advantage over the existing Conventions in that they could take into account present-day realities, and could be adapted to the particularities of specific groups of migrants. Moreover, both the sending and receiving countries could share the burden of ensuring adequate working conditions as well as monitoring the pre- and post-migration process. Such flexibility was lacking in the Conventions: no distinction could be made under the instruments between migrants for permanent settlement and temporary migrants; neither instrument operated on the basis of reciprocity. The survey documented the numerous policy failures that created obstacles to implementation of the two Conventions: (1) for example, with respect to recruitment and transit of migrants, supervision of employment contracts was less common a practice in receiving countries, where it was particularly important, than in sending countries; (2) legislation in both sending and receiving countries rarely required written information documents to migrants; (3) although the administrative costs of recruitment were not to be borne by immigrants, private recruitment agencies were resorting to such fee charging; (4) with the ready availability of air travel, many of the provisions relating to protection of migrants during transit were no longer relevant to the vast majority of migration flows today; and (5) the increasing testing of incoming migrants for HIV or AIDS infection was a major point of concern.
146. The Employer members noted that the General Survey highlighted the growth of illegal migration and labour trafficking, particularly with respect to women. Just as it was rare to find respect for the basic rights of migrants in the country of employment, it was common to find countries of emigration adopting specific measures to protect the human rights of their nationals working abroad. Yet no such rights existed for those migrants in an irregular situation. It appeared to the Committee of Experts that, short of establishing expensive systems of police surveillance, there were no adequate laws and practices to control efficiently migration flows and abusive practices. There was an inherent tension in providing equal opportunity for migrants, and few of the laws and regulations examined in the survey contained such a legal requirement. In this area, nations erred on the side of providing employment, social security and trade union rights for their own citizens. On the other hand, governments had fewer problems in guaranteeing equality in conditions of work. With respect to the question of the return of migrants in the case of loss of employment, the problems of application stemmed, in part, from having to apply Article 8 of Convention No. 143 to both permanent and temporary migrants. There was also the consideration that should migrants become a burden on public funds, regardless of their residency status, they may no longer be permitted to reside in the country. The domestic labour market concerns for national workers related primarily to the impact of immigration on jobs and pay. Contrary to the closing-of-borders attitude and xenophobia present in many countries, immigrant workers, whether high- or low-skilled, were complementary to national workers, not substitutes. As a consequence, immigration increased the total number of jobs in the host country, at any given level of aggregate demand. Overall, immigrants did not put nationals out of work. In fact, they expanded demand and employment. Research showed that there was practically an insignificant effect on the wages of national workers or immigrants already resident in a country. Yet, legislation in many countries provided a "priority rule" requiring that nationals or resident foreigners be given the opportunity to apply for jobs before permits could be issued to immigrants. Given the slack labour markets in many countries, such a protective policy response was understandable; however, many countries were moving simultaneously to facilitate the flow of highly skilled immigrants to fill many of the jobs requiring cutting edge skills, especially in the rapidly growing information technology industries.
147. The Employer members noted that increased migration was inevitable in an integrated world economy. In this environment there was a contradiction between the notion of segregated national economies and increasing international movement of workers driven by the world labour market.
148. The Government member of Greece also noted the dual responsibilities of governments. They were invited to play a double role: on the one hand they had to protect migrant workers against inequality in employment conditions and against discrimination, and provide equal insurance for migrant workers as for national workers in respect of safety and health at the workplace. Above all they should not neglect the importance of access to education for migrant workers. On the other hand, governments had to ensure that the economic and social stability for nationals was not seriously influenced by the entry of migrants into society and onto the employment market.
149. The Government member of India noted that there had been many important changes over the previous two decades, including globalization, liberalization of trade, and the breaking down of political barriers, which should have been accompanied by the free flow of persons. However, restrictions on the free flow of labour remained, although international migration continued to increase. He observed that the plight of migrant workers had received attention by the International Labour Conference on several earlier occasions, during which the need to protect the rights of these workers was acknowledged, although national sensitivities had thwarted the reaching of a consensus on the measures needed to rectify the situation. While all of the large number of migrant workers may not be subjected to exploitation, a large majority of them suffered discrimination by migrant-sending countries, migrant-receiving countries, recruitment agencies, employers and enforcement agencies. Noting that the principles enshrined in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) were considered fundamental and, through the adoption of the 1998 Declaration, member States had undertaken to observe those principles irrespective of ratification, he considered that the basic aims of Conventions Nos. 97 and 143 and the rights set out therein were likewise captured under the Declaration. This was so since Convention No. 111 prohibited discrimination based on national extraction or social origin and Convention No. 87 applied to workers "without distinction whatsoever", thus clearly covering migrant workers. In the view of his Government, migrant workers holding valid transfer and residential permits and those residing for more than one or two years should enjoy the basic workers' rights provided for under Conventions Nos. 87 and 98. Since they contributed to the creation of wealth of both sending and receiving countries, governments should be equally concerned with ensuring that these workers enjoyed fundamental rights, job security, social protection and safe and healthy working conditions. The ILO played the important role of promoting dialogue and cooperation between migrant-sending countries and migrant-receiving countries.
150. The Government member of the Netherlands recalled that migration, which had rightly been a long-standing concern of the ILO, was a universal and in many ways intangible phenomenon. By definition, it superseded the authority of individual countries and had not been subject to liberalization to the same extent as goods, capital or services. There had never been any rules, such as the GATT rules covering goods, regulating the global right of the free movement of persons. Only within trade blocs, such as the European Union, had it been possible to achieve forms of free movement of labour and persons. Even in those situations, rights were not universal. For example, citizens of non-European Union countries had no right to free movement from one Member State of the European Union to another. He questioned whether Conventions Nos. 97 and 143 adequately assured the social protection of migrant workers at a time when international migration was increasing and completely changing in character. The General Survey rightly referred to the changing nature of transportation, the rise in the migration of single women workers, the difficulties encountered by the authorities in dealing with the related problems and the increase in illegal migration and an enormous influx of asylum-seekers, due both to differences in levels of development and political upheavals, including armed conflicts. Since the 1970s, his country had changed from a country of emigration, which had concluded a number of bilateral migration agreements, to a country of immigration.
151. The Government member of Tunisia agreed with the Worker members that equality of opportunity was more important than equality of treatment. Equality between national and migrant workers should be comprehensive and cover all areas of their rights and duties at work, including unemployment benefits. Vocational and career development opportunities and measures to promote the reunification of families were also important. In addition, greater attention should be paid to assisting workers who wished to return home on a voluntary basis in order to contribute to their reintegration into the economies of their home countries. In a similar vein, the Government member of Turkey recalled the change in migration patterns in certain European countries, from turning to the Mediterranean countries, including Turkey after the Second World War to resolve their manpower needs until the oil crisis in the 1970s, following which the migration of Turkish citizens to European countries had been confined to family formation and unification. The number had now reached the level of around 3 million, and the migration process was no longer regarded as temporary. A new approach to the phenomenon had therefore become necessary to take into account the increasing need for the integration of migrant workers and their families into host societies. He was convinced that such integration would remain abstract while migrant workers remained marginalized on the labour market. For example, the unemployment rate of such workers was often double or triple the national average. Although this situation was frequently explained by referring to the lack of skills of migrant workers, discrimination suffered by such workers discouraged them from improving their employability through vocational training and education. In some cases, special programmes had been designed for migrant workers together with other disadvantaged groups on the labour market, but they had to take into account the psychological aspect of the migrant workers' situation. If the provision of vocational training facilities was accompanied by employment guarantees and measures to encourage self-employment, this could achieve a substantial improvement. Despite the anti-discrimination legislation adopted in many countries, employment was not the only area in which migrants suffered prejudicial treatment, as demonstrated in several judgements handed down by the European Court of Justice in favour of migrants, the latest of which concerned equality of treatment with regard to social security rights. He expressed great concern at the rise in racism and xenophobia and hoped that past tragedies would not be repeated. It was important to prevent misleading propaganda which targeted migrants; migrants were becoming a central issue in an increasing number of election campaigns. There was an urgent need to establish bilateral or multilateral mechanisms to combat discriminatory and intolerant practices between receiving and sending countries. His Government therefore welcomed the social policy adopted by several receiving countries of encouraging migrants and their families to integrate and participate in society on an equal footing with nationals, while preserving their cultural identities. He hoped that the ILO would continue to support equality of treatment between national and migrant workers and that it would help to coordinate migration policies between States, and between governments and the social partners.
152. Several Worker members stressed the vulnerability of migrant workers. The Worker member of Greece recalled that migrant workers were utilized to adjust the labour market: they were brought in or sent away according to needs and performed unhealthy and arduous work which nationals of the host country did not wish to carry out. In seeking to improve their living conditions, they became the victims of institutionalized exploitation, which might be prohibited by law, but was tolerated in practice. Fortunately, trade union movements came to their defence. It was surprising that more countries which exported labour had not ratified Conventions Nos. 97 and 143 to protect their nationals. He feared that statements that these instruments were out of date were more an excuse not to ratify than an expression of the desire to adopt instruments which addressed current needs. It was necessary to mobilize public opinion throughout the world to teach tolerance towards others; much remained to be done and the economically powerful countries had a great responsibility to bear. The Worker member of India stated that even where workers were able to obtain a work permit, there were sometimes indirect restrictions on migration due to obstacles in obtaining an entry visa. In some countries migrant labour was used as a cheap source of labour in order to keep down the wage levels of local workers, so measures should be taken to ensure that migrant workers earned a decent livelihood. There was a need to monitor employment agencies, because false promises were sometimes made, resulting in workers being stranded and left extremely vulnerable upon arriving in the host country. Other problems that needed to be addressed by the ILO or by effective mechanisms included: child labour in the context of migration (a particular problem in his country); migrant workers' right to raise a legitimate grievance without the risk of being expelled from a country; the conclusion of agreements and understandings between sending and receiving countries so as to address the problem of exploitation and to ensure proper working and living conditions for migrant workers; discrimination on the basis of religion; women leaving with the expectation of being employed as domestic servants but finding themselves forced into the sex sector. The Worker member of Italy also noted that since the adoption of Conventions Nos. 97 and 143, the international context had changed significantly, with migratory flows today numbering around 100 million, without counting refugees. There was an increasing number of women and children, and illegal migrant workers were almost in the majority. Those who emigrated were ready to do anything, including risking their lives, to obtain a forged passport and reach their destination. Irregular migrant workers were in an extremely vulnerable situation. They were exploited during their journey and upon arrival and were the first to suffer in an economic downtown, such as the Asian crisis. He endorsed the General Survey's support for maintaining the basic principles set forth in the two Conventions, namely the control of migratory flows, cooperation between States, equality of treatment. However, it was also necessary to set new rules which took account of the new situation of migrants. Protection of migrant workers must be provided within the framework of the 1998 Declaration. The Worker member of Pakistan also noted that the Report of the Director-General estimated that there may be as many as 100 million workers and their families living outside their countries, of whom a growing proportion were women, often travelling alone and desperate for work and income. Many female migrant workers were recruited by employment agencies and then forced into prostitution upon their arrival in the country; the ILO should play a more active role in preventing such practices. He called on the ILO to encourage sending and receiving countries to enter into bilateral and multilateral agreements for the protection of migrant workers; to collect and disseminate information on policies and legislation, movements of migrant workers and their living and working conditions; to monitor whether abusive practices were taking place in both sending and receiving countries, particularly with respect to women; and to ensure that migrant workers were covered by social security provisions. The important role of employers' and workers' organizations in helping to eliminate abusive practices was also underlined. He expressed his appreciation that the ILO, and the United Nations through the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990), had been taking this issue seriously. The Worker member of Senegal was of the opinion that the General Survey was too Eurocentric in its perspective whereas Conventions Nos. 97 and 143 concerned all the continents. Emigration did not take place only in the direction of rich countries and was not exclusively a North-South problem, but was also a South-South issue. The weakening of the role of the State was not sufficient to justify the discrimination and humiliation to which migrant workers were subjected. There was a problem of reciprocity with regard to many Western countries. In order to travel to some of those countries, it was necessary to pass through the immigration control office, while the nationals of those countries could enter Senegal without a visa. Moreover, migrant workers were no longer unskilled workers, but university graduates whose expertise was in demand. This phenomenon could only grow in view of the cultural domination of the North propounded by the media. Workers on all continents needed to strengthen their solidarity and decide on common action based on new forms of cooperation to protect the rights of migrant workers. The Worker member of Tunisia emphasized the need for the ILO to adjust to the changing situation of migrant workers and to help them, particularly through a more rigorous supervision of the application of its standards. Many measures had been adopted to liberalize the flow of capital, goods and information, but the measures governing migrant workers remained stringent and restrictive. This negative attitude towards labour did not reflect the fact that it was more noble than goods or capital. Moreover, increased competition on global markets had imposed lower wages on migrant workers, who were frequently offered boring and repetitive work, so that it would be easier to persuade them to leave the country when they were no longer useful. He emphasized the great importance for migrant workers of the observance of Conventions Nos. 87 and 98, which were vital in ensuring their freedom of association. Greater flexibility in the application of these standards was not a desirable objective and a firm attitude was required towards the observance of fundamental principles related to human rights and the dignity of the individual.
153. The Employer member of India recalled that the ILO had been addressing the issue of migrant workers since 1919 and its concern for equality of treatment between national and migrant workers and coordination on migration policies between States, employers and workers was reflected by the number of instruments adopted. There had been a tremendous increase in labour migration due to globalization accompanied by the developments in communication networks and in international transport, the development of politically-oriented preferential immigration policies and the financial crisis in Asia. International migration had become a means of escaping poverty, unemployment and other social, economic and political pressures. He stressed the vulnerable position of migrant women, conflicts between the interests of domestic labour and migrants and violations of fundamental human rights. The ILO had played a pivotal role in balancing conflicting interests through the adoption of international labour standards, the provision of technical advisory services and research. Repressive laws and practices were not sufficient to control effectively illegal and abusive migration; it was important to ensure basic human rights to protect migrant workers. The survey demonstrated that there were fewer problems involving conditions of work than with access to employment and occupation, social security benefits and trade union rights. Furthermore, many of the rights afforded to migrant workers were only granted after a specific residency period which migrant workers in short-term jobs were, by definition, unable to fulfil. Referring to the conclusions of the General Survey, he observed that it would be helpful to ascertain the trends, consequences and conditions of international migration with the participation of non-governmental organizations and employers' and workers' organizations. In addition, the creation of a database would be useful. There was an urgent need for better mechanisms at both the national and international levels to address the situation of migrant workers and it was up to the ILO to provide the international framework for this effort and to put into place the other policies and measures that would lead to a better and more fulfilling life for migrant workers.
Scope of the instruments and definitions
154. The Worker members underscored the complexity of issues related to international migration. A balance had to be struck between differing interests. There was, on the one hand, the need to regulate the domestic labour market in order to avoid brutal distortions between labour supply and demand; on the other hand, there was the need to protect the rights of migrant workers as well as to fight against the underground economy which often involved illegal employment. To this should be added different legal traditions within the member States as well as geographical and economic differences. These elements had to be taken into account in the drafting of instruments. That was why the Committee of Experts drew attention to the flexibility contained in the migration instruments. The instruments adopted both in 1949 and in 1975 represented innovations by the ILO as regarded flexibility in international labour standards. Member States could exclude the three annexes to Convention No. 97, and they had the option not to ratify one of the two parts of Convention No. 143. Furthermore, the Committee of Experts, in paragraph 101, recalled that the term "migrant worker" also covered refugees and displaced persons in so far as they were workers employed outside their home country. This observation was particularly topical in a world confronted with numerous conflicts and instances of political repression. The Worker members considered there to be a major gap in the Conventions since they excluded self-employed migrant workers as well as workers in informal or marginal sectors.
155. The Employer members, recalling the substantially changed character of migration, noted that the definitions of key terms were no longer universally accepted. The world of 1949 and 1975 had been composed of immigration countries, emigration countries and transition, or asylum, countries. The migration mechanisms in most countries had been designed to give priority to their perceived unique requirements. Today, fewer and fewer countries fitted into any one of these traditional categories. Most countries fitted into two, if not all three categories simultaneously. The basic migration blueprint used by the ILO and the international community for the past 30 years might no longer be suited to present circumstances. What was the continuing appropriateness of the generally accepted legal migrant categories -- refugees, labour migration and family reunion -- when exceptions to these categories had occurred and had become common, for example, women's migration, displaced exiles, poverty-affected, unique humanitarian cases and environmental refugees? The Committee of Experts devoted some attention to another category, irregular migration, ranging from skilled to unskilled workers in a broad range of circumstances. This category needed to be better understood in terms of its dimensions and characteristics. In addition, the Organization of Economic Cooperation and Development (OECD) had noted an increase in the importance of temporary migration within overall migration flows. Within developed countries, the movement of workers applied more and more to skilled labour, and over the past few years to highly skilled workers.
National practice
156. The Government member of Canada explained that, although Canada had not ratified the migration Conventions, through the federal and provincial/territorial governments the rights of all residents had been actively promoted and supported. In Canada, the majority of those who would be considered migrant workers for the purpose of the ILO Conventions, entered as permanent residents. As such, they enjoyed virtually the same rights as Canadian citizens and their human rights were protected by the Charter of Rights and Freedoms with some exceptions, for instance the right to vote was limited to citizens. There was also a relatively small number of workers who were admitted for a temporary period to fill specific needs of Canadian employers (seasonal agricultural workers; live-in caregivers; software industry workers). Once in Canada, these workers were also protected by the Charter and by provincial labour and human rights legislation and some could, after meeting certain conditions, apply to become permanent residents and eventually citizens. There was a need in international forums to recognize that migrant workers could be fully integrated into the receiving State and that some did become permanent residents in the countries of destination upon which they ceased being members of a vulnerable group in special need of protection. There was also a need to recognize in international instruments that the human rights of migrants should be protected in all States concerned, namely in those of origin and transit as well as in those of destination. For regular migrant workers in Canada, legislative and administrative practice did not permit any differences in treatment between them and national workers. Various efforts had been made by governments to improve the system for accreditation of occupational qualifications. Canada had three levels of anti-discrimination legislation, administered by either the Canadian Human Rights Commission or provincial human rights commissions. Legislation alone could not change those attitudes which gave rise to acts of discrimination against migrant workers and other minority groups. Education and public awareness were key factors of individual and institutional change. He corrected certain specific references to Canada in the General Survey which were inaccurate or incomplete, noting that Canada had not changed its immigration policy (immigration had increased from an average of 100,000 per year from 1981 to 1985, to an average of 227,000 per year from 1993 to 1997, a number which would remain the same for 1998 and 1999 and which included some 24,000 to 28,000 refugees in each of those years; temporary entry admissions had been stable at about 100,000 employment authorizations and 95,000 student authorizations in past years). Regarding the quote from Canada's report concerning the work and study of dependants of temporary foreign workers, it should also have included the information provided by the Government of Quebec and included in the Government of Canada's report, that it was the provincial authority which issued permits to work or study in the province.
157. The Government member of the Czech Republic noted that, before the political changes which had occurred a decade ago, the immigration of foreigners into her country and the emigration of Czech citizens abroad had been strictly limited. After 1989, the Czech territory had been used mainly as a transition country towards Western European countries, yet the Czech Republic was now increasingly becoming a country of immigration, with a high number of illegal immigrants. In terms of international labour migration, its labour market occupied a central position between the economically advanced countries with a developed market economy and some of the economically less advanced countries of Eastern and Central Europe. Foreign workers could be employed in her country only if they were in possession of an employment permit, issued under the Employment Act, and a residence permit issued in accordance with the Residence of Foreigners Act. Both foreign workers and stateless workers were covered by the same labour relations regulations as nationals. However, on some matters relating to the social security of migrant workers and their families, the legislation or infrastructure required fully to guarantee their rights was lacking. Difficulties were encountered in acquiring precise information on the extent, causes, geographical location and sectors in which the illegal employment of foreigners occurred. One method of investigation included group interviews with experts from public institutions and persons with expert knowledge of the labour market. With a view to resolving these questions, an amendment to the Employment Act had been prepared and a new law on the residence of foreign citizens had been drafted. Efforts were also being made to improve coordination between the institutions concerned with the related problems, including the establishment of an information system covering the whole country.
158. The Government member of Germany, referring to Article 10 of Convention No. 143 which, according to the explanations provided by the Committee of Experts, did not oblige States to intervene in matters which, in some countries, were left to collective bargaining, recalled a European regulation dealing with migrant workers mentioned in his Government's report. According to this regulation, certain restrictions could be imposed on migrant workers concerning the possibility of their fulfilling public functions as trade union representatives which probably constituted a violation of Article 10 of the Convention. He clarified a misunderstanding relating to Germany in paragraph 615: foreign workers always had the possibility of obtaining translation in their own language in German courts and the expenses for such translation were borne by the worker only in cases where an agreement of reciprocity did not exist with the country of the migrant worker. A Worker member of Germany referred to the activities undertaken in the context of the European Year Against Racism (1997), and indicated that many of these should be continued. With reference to the postal sector in Germany, he noted that an agreement had been reached between the workers' representatives and the employers concerning equality at work and a common declaration of trade unions and employers denouncing racism and xenophobia.
159. The Government member of Greece pointed out that migrant workers living and working in Greece who possessed a work permit, enjoyed the same rights as Greek citizens and had the same obligations under Act No. 1975 of 1991. Foreigners who obtained work in Greece were insured by the social insurance institution as were Greek nationals, from the first day of their employment; they had the right to benefits as long as they resided legally in the country or if they had a valid visa; all employed persons were insured whatever their nationality, sex, age or religion. Greece had always been a country of emigration, but over the last few years, as a result of the socio-political instability existing in the Balkan region, which had worsened in recent months, the country had received an enormous wave of clandestine migrants from neighbouring States, thus becoming a host country for migrant workers. In order to face up to this wave of illegal migration, the Greek Government had issued two Presidential Decrees, Nos. 358 and 359 of 1997, to regulate the legalization of all foreigners who received a residence permit of limited duration and had the right to the benefits provided for by the Greek legislation governing them, permitting them and their family members to exit temporarily from Greek territory and to return when the length of time of their absence did not exceed two months. Foreigners who resided in Greece for five years and who possessed the necessary means to cover their board and lodging needs, could obtain a residence permit valid for five years and request, in the name of family unity, the non-expulsion, arrival or installation with them, of the members of their family. The Worker member of Greece indicated that the Greek legislation referred to by the Government member was good in achieving justice for immigrant workers.
160. The Worker member of Italy pointed out that his Government had ratified the two Conventions. In the period between the adoption of the 1989 Act and the 1998 Act governing the immigration and status of foreigners, the country's objective had been to regulate migratory flows on the basis of bilateral agreements entered into with the countries of origin and to legalize the situation of clandestine workers who had been working in Italy for a certain period of time. Employers had been encouraged through incentives to legalize irregular workers. Resources had been allocated, particularly for health care, schooling and cultural integration. The massive influx over recent years of both refugees and migrants had posed serious problems which, as a result of the work of trade unions and voluntary organizations, had been overcome.
161. The Government member of Mexico emphasized the importance of migration to his country. Mexico played a dual role in this respect, with immigrants crossing into the country from the South and its own nationals migrating to the North, a situation which had given rise to the establishment of policies, programmes and measures to provide effective protection for the rights of migrant workers. Mexico, as noted in the General Survey, had undertaken numerous activities at both the national and international levels. In the United Nations Human Rights Commission, his Government had proposed the establishment of an Intergovernmental Group of Experts responsible for the examination of obstacles to the full exercise of the human rights of migrants, and the formulation of recommendations in this regard. This year, the Group had presented its final report, identifying institutional obstacles of an economic and social nature and recommending that a special rapporteur on the human rights of migrants should be appointed with the mandate to examine the measures required to overcome obstacles to the full and effective protection of the human rights of this vulnerable group. This recommendation had been approved and it was hoped that the special rapporteur would be appointed in the near future and would receive and exchange information on violations of human rights of migrants from, among others, intergovernmental organizations and the competent organizations in the United Nations system. He was confident that the new special rapporteur of the Human Rights Commission and the ILO would establish a regular dialogue that would permit them to coordinate their respective functions and responsibilities for the purpose of improving the situation of all migrant workers. Recalling the important contribution made by the ILO to the drafting of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which had been inspired by existing ILO Conventions, he stated that the UN Convention had been ratified by Mexico a few months ago.
162. The Government member of Slovakia highlighted provisions of his country's legislation concerning the employment of foreigners and stateless persons, in particular the Act on Employment which granted them the same legal status as citizens. Employers domiciled in the country were permitted to employ only those foreigners or stateless persons who held a long-term residential permit pursuant to a visa which allowed them to undertake employment and who held a labour permit, or holders of permanent residential permits, or those with refugee status or certificates of displaced persons. The requirement of a long-term residential permit being granted pursuant to a visa entitling employment to be undertaken or pursuant to a labour permit also applied to foreigners or stateless persons working in the country who were in an employment relationship with foreign employers for a period exceeding one month. The Slovak Government had concluded bilateral agreements with some countries, for example the agreement with the Government of the Russian Federation on the organizing of employment for the fulfilment of commercial and other contracts and on the mutual employment of citizens and the treaty between Slovakia and the Czech Republic concerning mutual employment.
163. The Government member of Spain indicated that Spain had signed and ratified most of the international treaties governing the rights and liberties of foreigners, as well as those on human rights. It had arrived at a critical moment, with the establishment of a series of initiatives which would allow considerable development in Spanish immigration policy. The Chamber of Deputies was at present examining three draft laws which sought to reform the legislation in force. Regarding the processing of migrant workers, independent of work permits issued ordinarily, attention should be drawn to the quota policy in operation since 1993 which aimed at directing the flow of migrant workers according to the manpower requirements of the Spanish economy. Special rules had been established to expedite the procedure and to meet the demand of offers not met by Spanish workers, essentially in the livestock and agricultural, domestic service, construction and hotel sectors. Under Section 69 of the Regulations governing foreign nationals, once the foreign worker had obtained the required work permit to exercise an activity in Spain, rights at work and social security for foreigners were identical to those enjoyed by nationals. Spanish immigration policy was determined according to European Union directives. One of the most important innovations of the Treaty of Amsterdam, with the creation of a great space of liberty, security and justice, was the introduction of a new section on the free circulation of persons, asylum and immigration which required questions regarding policy on visas, asylum, immigration and legal cooperation to be submitted to the judicial authority of the community courts. Therefore for these questions, the community instruments would be applied, in place of all other types of agreements. Furthermore, the European Court of Justice would have wide-ranging competence on all these questions and the Commission, following a transitional period, would have exclusive authority to initiate proceedings. Spain's Penal Code, adopted on 23 November 1995, laid down prison sentences for persons trafficking illegally in manpower and for those who promoted or encouraged, by whatever means, the clandestine immigration of workers into Spain. Concerning the protection of persons displaced as a result of natural catastrophes, as provided for under the action programme of the Copenhagen World Summit for Social Development, Spain granted special treatment to the nationals of countries affected by Hurricane Mitch, and, when dealing with the requests submitted by nationals of these countries, account would not be taken of their initial situation in respect of employment. Dialogue with the social partners occurred in particular at the Forum for the Social Integration of Immigrants.
164. The Government member of Tunisia noted that, although his country had not ratified Conventions Nos. 97 and 143, it intended to achieve the objectives of both Conventions and ensure that they were reflected in national law and practice. His country was dedicated to the principle of equality of treatment between national and foreign workers in the field of social security and since 1996 Tunisian labour law had explicitly provided for equal rights for nationals and foreigners in the field of work. His country also held that other countries should apply equality of treatment to their migrant workers and give special attention to guaranteeing them decent living and working conditions in their receiving countries.
Ratifications: Obstacles and prospects
165. The Worker members noted that of the 41 ratifications of Convention No. 97, most came from countries that received immigrants. Convention No. 143 had received only 18 ratifications, and the pace of ratification for both instruments had slowed down over the years. However, according to the General Survey, 11 countries had announced their intention to ratify one or both Conventions. Six countries had stated that they would ratify them after modification of their legislation and at least three had requested technical assistance in this respect. Furthermore, other States had indicated that they were going to examine the possibility of ratification in due course. The Worker members recalled that, in 1980, when the last General Survey on this topic was carried out, many countries had announced their intention to ratify but these statements were never carried out. According to the current survey, certain difficulties raised by member States did not amount to fundamental obstacles to ratification, but rather reflected poor understanding of the Conventions' objectives, that the Committee of Experts had resolved or clarified. The Worker members referred, for example, to the position of certain countries such as Pakistan or Mexico which considered that the instruments did not concern the countries of origin of migrant workers, whereas the Committee of Experts had explained that the Conventions covered both sending and receiving countries.
166. The Employer members noted that each Convention was premised on the vastly different migratory considerations existing in 1949 and 1975. The survey pointed out, for example, that the 1949 Convention was intended to facilitate permanent and temporary migration, with Article 1 requiring ratifying States to provide other ILO Members and the ILO with a broad range of information on national policies, laws and regulations, including conditions of employment, and to cooperate on migrant employment services. It contained numerous protective provisions, including equality of treatment between migrant workers and nationals in four areas, and prohibition of expulsion of permanent migrants because of incapacity to work. There were three detailed annexes, that could be excluded, which dealt with organized and spontaneous migration for employment. Likewise, the 1975 Convention was adopted in different circumstances and intended to have the opposite effect of the 1949 Convention, namely to restrain migration following the 1973 oil shock, as well as to address the social problems inherent in the transformation from temporary to permanent residency. Article 1 laid down the general obligation to respect the basic human rights of all migrant workers without challenging the right of States to regulate migratory flows. Under Article 2, a ratifying State was required to adopt a number of measures to determine systematically whether there were illegally employed migrant workers in its territory. Article 3 required, in collaboration with other Members, suppression of clandestine movements of migrants including sanctions. Part I of the Convention also laid down certain protective measures for migrant workers who had lost their employment and for those in an irregular situation. Part II aimed to guarantee equality of treatment for migrants and their families, including individual and collective freedoms. On an overall basis, neither Convention had been widely ratified -- Convention No. 97 had been ratified by 41 countries but only 16 countries had ratified all of the annexes. Convention No. 143 had been ratified by just 18 countries. No ratifications of either one had occurred since 1993. They observed that, according to the survey, countries tended to follow the provisions set out in the instruments in broad terms, but less so when it came to provisions calling for more specific commitments. While each of the existing migrant worker Conventions was limited, they were so detailed that most countries were not in a position to implement them. Footnote 7 in the Final Remarks listed the provisions mentioned by member States as being obstacles to ratification, and nearly all the provisions of the instruments and their annexes appeared there. The points of divergence lay in key areas of the instruments: recruitment; rights of irregular migrants; and equal treatment and opportunity. These instruments had been drafted in the context of a world in which there was state-organized migration, rather than spontaneous migration. For both economic and political reasons, the State no longer played the same dominant role. Temporary migration was higher; female migrants made up half of migrant workers today; illegal migration was increasing; and travel was no longer an important consideration. Notwithstanding the changes in the context and characteristics of migration and the legal and practical obstacles to ratification, the Committee of Experts made the astonishing statement in paragraph 664 that the principles contained in the migration instruments were still valid today and that one option was to maintain the status quo. As with the differences between the 1998 Declaration and the fundamental Conventions, there were differences between principles and policy objectives and the detailed legal obligations of the Conventions that constituted obstacles to ratification.
167. Some speakers spoke generally of ratification prospects. The Government member of Germany considered that the last genuine ratification of Convention No. 143 had been registered in 1985, and that the ratifications registered between 1991 and 1993 only concerned States which were the legal successors of federal States which had already ratified this instrument. This showed that Convention No. 143 was not likely to be able to provide effective protection for migrant workers around the world. The United Nations Convention on migrant workers, too, only had very few ratifications and thus had not yet entered into force. He questioned the suggestion that in order to increase ratification, the Convention could be supplemented by a protocol allowing ratifying States to limit the extensive protection provided by the existing instrument. Perhaps this could prove useful since Article 8 of the Convention was often cited as a major obstacle for ratification. However, he emphasized that an additional protocol would only be open for States which had already ratified the Convention. The Government member of India also noted that the Conventions had received very few ratifications, thus underlining the politically sensitive nature of the subject matter and the reluctance of national governments to address the issue seriously. He urged the Committee not to reduce the discussion on the subject to a bargaining process between migrant-sending countries and migrant-receiving countries, but rather to address it on the basis of humanitarian considerations, human rights and social justice. The Worker member of Pakistan also referred to the low ratification rate of the Conventions and encouraged both migrant-sending and migrant-receiving countries to request ILO assistance in overcoming obstacles to ratifying them and in protecting migrant workers from abusive conditions. Concerning private employment agencies, he noted that these were growing in number and had overtaken public agencies in dealing with migrant workers. He welcomed the commitment made by the Director-General in his Report to the Conference to conduct a major study of formal and informal migrant labour contractors and agencies. The Worker member of Tunisia called for every effort to be made to increase the number of ratifications of Conventions Nos. 97 and 143 to provide further protection for migrants for employment.
168. Other governments explained their specific ratification situations. The Government member of Greece stated that the Greek High Council of Labour had unanimously decided that the State was unable to proceed to ratification of the Conventions on migration before adapting the legislation to take account of the huge influx of clandestine migrants. The Government member of Mexico recalled that Mexico had not ratified Conventions Nos. 97 and 143, and indicated that the circumstances which had given rise to those Conventions had changed substantially in recent years. These changes and the creation of new instruments made it necessary to adapt the ILO Conventions on this subject. The Government member of the Netherlands noted that his country had ratified Convention No. 97, which had been identified by the ILO Working Party on the Policy regarding Revision of Standards as a Convention whose ratification should be promoted. His country believed that Convention No. 97 provided a useful framework for national legislation. However, the same did not apply to Convention No. 143, which the Netherlands had no intention of ratifying. In general terms, Convention No. 143 was not in accordance with the law and practice in his country on such issues as the re-employment of migrant workers after a relatively short period of work and the obligation to systematically seek out illegal immigrants on the national territory. Indeed, the latter provision could lead to controls based on personal appearance, which could constitute an unjustified form of discrimination. The Government member of Slovakia also stated that the legislation of his country did not permit ratification of Conventions Nos. 97 and 143 at this time. The Government member of Sri Lanka, in the general discussion, cited Convention No. 97 as an example of instruments containing rigidly technical provisions with which certain member States could not possibly comply. The provision in question was that prohibiting ratifying States from levying any fee, however reasonable it might be, for the provision of facilities to migrant workers. His Government's Bureau of Foreign Employment granted many facilities to migrant workers such as registration, training, insurance, provision for their welfare through labour attachés, educational scholarships for their children, and other facilities in the event of accidents while abroad. His Government incurred considerable expense in providing such services to migrant workers, and for this reason charged them a reasonable fee. As it was keen to ratify Convention No. 97, both in 1993 and early this year, his Government had asked the Office whether or not a reasonable fee could be levied on migrant workers for specified services rendered. However, it was told on both occasions that it could not do so no matter how reasonable such a fee might be.
169. The Worker member of India urged his Government to take the appropriate steps to ratify Conventions Nos. 97 and 143 in the near future, whereas the Employer member of India indicated that his country had recently faced an increase in emigration flows and was currently studying the question of ratification of Convention No. 97; but with regard to Part 1 of Convention No. 143, India considered the Convention inappropriate to cover all migrant workers. He was of the opinion that migration procedures requiring that migrants be tested for HIV or AIDS infection had constituted an obstacle to ratification for a number of States.
The path ahead
170. Although opinions varied about the continuing usefulness of Conventions Nos. 97 and 143, most speakers favoured a general discussion of migration for employment at a forthcoming session of the International Labour Conference. The Government member of Greece stated that her Government supported the second option proposed by the Committee of Experts, namely the revision of the two Conventions and the drafting of a new Convention adapted to new needs. The Government member of Mexico was likewise in favour of the second option, a revision of these Conventions for the purpose of updating them and therefore to the extent that it was technically possible, a single Convention should be adopted which would fill the gaps of both current instruments, thereby establishing a framework Convention which would incorporate the advances contained in the United Nations Convention on migrant workers. The Government member of Tunisia expressed a preference for the revision of Conventions Nos. 97 and 143 and their merger into a single Convention setting out the basic principles and taking account of the present needs of both receiving and sending countries. Whatever options should be retained, the subject of migrant workers needed to be given greater attention by the ILO in future, including in the field of standard setting. The Government member of Turkey also called for a general discussion on migrant workers to be held in the Conference in the very near future. In the meantime, the ILO's work on migration issues would only be efficient and effective if priority was given to it in terms of budget allocations and staff. He therefore welcomed the proposal by the Director-General's transition team that a migration branch should be re-established within the ILO. The Employer members and some Worker members were prepared to move towards revision. The Worker member of Italy considered that the idea of a new framework Convention containing basic principles would provide a better response to today's different situations of migration for employment. It would be a priority framework standard which would take account of other international instruments, in accordance with the orientations set forth in the Report of the Director-General. The Worker member of Pakistan recommended that the Governing Body examine how best to promote international standards concerning migrant workers and place the issue on the agenda of a future session of the International Labour Conference. The Employer member of India, noting the particularly low level of ratifications of Convention No. 143, welcomed the steps being taken toward the revision of the Conventions, so that these could be ultimately ratified by the other member States. He indicated that taking regional perspectives into consideration and involving employers' and workers' organizations might also improve their rate of ratification.
171. Other speakers doubted the appropriateness of a new instrument but agreed that consensus should be sought. The Government member of India stated that, in the light of the previous international instruments adopted and the national sensitivities with respect to migrant workers, his Government was of the view that it may not be appropriate at this time to adopt a new international instrument on this subject. The more appropriate course of action would be for the ILO to promote consensus through the tripartite structures and encourage member States to take measures to protect the rights of migrant workers, particularly fundamental human rights. In this context, he emphasized that the 1998 Declaration would play a very important role, since migrant workers were often subjected to discrimination and compulsory labour, and denied the right to associate freely. He reaffirmed his Government's commitment to minimizing the exploitation and hardship of migrant workers, and stated that if a consensus emerged in this Committee to adopt a new framework Convention for migrant workers, his Government would like to be a party to that consensus. The Government member of the Netherlands considered that it would not be appropriate to formulate another Convention. Nevertheless, this did not mean that the issue of international migration did not deserve further attention. ILO work on the problem should continue, and could take the form of tripartite meetings, such as the one which had taken place in 1997, or even a general discussion at the Conference based on a thorough analysis of the subject by the Office. Some Worker members sounded a note of warning. A Worker member of Germany raised the possible danger of a new framework Convention undermining the existing Conventions since countries having already implemented those Conventions may then view them as obsolete. He also expressed the concern that a new Convention not weaken measures that had already been taken at the regional level, and referred in this regard to the equality provisions of the European Social Charter. All these matters, in his view, would need to be taken into consideration in any future discussions. He called on the Director-General to include the Conventions concerning migrant workers in his ratification campaign. Protection of migrant workers and their families would be strengthened through the acceptance of both parts of Convention No. 143. The Worker member of India asserted that it would be difficult to adopt a new instrument when the existing instruments had not yet been ratified. The ILO needed to give more attention to clandestine migration, and any new instrument would have to address this issue. Noting the difficulties expressed in the General Survey with regard to obtaining data, he stated that the ILO needed to request all countries to collect data concerning incoming and outgoing migration.
172. The Worker members concluded that the ILO, through its multidisciplinary teams and technical assistance, should first actively pursue the stated intention of certain member States to ratify the Conventions, since these proposed ratifications demonstrated that the principles contained in the two Conventions were still valid, even though the context of migration had changed and despite the lacunae they contained. Secondly, as regards the legal problems identified with certain provisions of the Conventions, the Worker members stressed that the two Conventions had a flexible structure and that ratification of one of the two sections of Convention No. 143, or the formulation of reservations with regard to the annexes of Convention No. 97, were possible. The ILO should provide assistance to those countries hesitating to ratify on legal grounds. A complementary strategy on standards should therefore be developed in order to protect the highest number of migrant workers. Thirdly, the two Conventions had been adopted in a different context. In today's reality, migrations did not occur in the context of bilateral agreements between governments and recruitment offices and they did not lead to definitive settlement in the host country. There were also other factors which had changed the structure and nature of migration for employment: the decline of the leading role of the State; spontaneous and temporary migrations; and the increase in female migrant workers, who worked in sectors excluded from Labour Codes, for instance, domestic work or the sex industry. The Worker members recalled the two major options contained in the survey's conclusions: first, to maintain the status quo but to launch a campaign for the promotion of ratifications and elaboration of one or more additional protocols to fill certain gaps, which would have the advantage of not delaying the ratifications announced by several governments; second, to revise completely the instruments in order to merge them into a single instrument, which could become a framework Convention. The advantage of this approach would lie in the fact that the emphasis would be put on principles accepted by all governments and therefore they could not invoke reservations to ratification solely on points of detail. However, the elaboration of such flexible standards could not guarantee a large number of ratifications. It was also important to avoid discouraging States from ratifying Conventions Nos. 97 and 143, since these two Conventions had played their role as a guide to national legislation and practice. The combination of the two proposed options was also possible. Furthermore, additional protocols could try to fill certain gaps and solve problems of implementation. At the same time, a framework Convention could establish basic principles in order to solve the problems of contemporary migration. The International Labour Conference should address migration for employment in a general discussion which should pave the way for new standard setting as had occurred with Convention No. 181 on private employment agencies. They proposed that the question of migrant workers be placed on the agenda of the Conference in the near future in order to elaborate a complementary strategy on standards with the aim of protecting the maximum number of migrant workers.
173. The Worker members also concluded that the discussion of the General Survey had confirmed and illustrated the comments and analysis made by the Committee of Experts, for both the situation of migrant workers and the difficulties in the interpretation and the application of the Conventions. The most important outcome of the discussion was the consensus on the need to envisage adequate protection for migrant workers. In view of this, migration for employment had to be included in the ILO's programme of work: first, the ILO should promote the application and ratification of Conventions Nos. 97 and 143 since several countries had indicated their intent to ratify them; second, as the Employer members had done, the Worker members proposed that a general policy discussion should be held at a future session of the Conference so as to clear the way for additional standard-setting activities. This discussion could be based on the General Survey, the discussion of the Conference Committee, research and external consultations, envisaging an effective and topical framework to strengthen the protection of migrant workers, including clandestine workers, against exploitation in all countries and to guarantee their fundamental rights.
174. In the Employer members' opinion, the General Survey in its totality was a compelling case in support of the second option: that the instruments be entirely revised and merged into a single Convention. There clearly was a need for a new framework standard on migrant labour that took into account present-day realities and the widely differing circumstances of sending, receiving, and transit countries. Such a framework standard would have an immediate and greater long-term impact. With a view towards greater coordination within the ILO, the Governing Body Working Party on the Policy regarding Revision of Standards should seriously take into account the findings of the General Survey, and conclude that Conventions Nos. 97 and 143 were candidates for revision.
175. Noting that the relatively low number of speakers illustrated the difficulties and complexities of the subject, the Employer members pointed out that the interventions by the Government members of Canada and Germany demonstrated the difficulties of ascertaining the legal and factual situation through reports provided to the Committee of Experts. This lack of detailed information highlighted the need for the Conference to hold a general discussion on the issue in order to examine the need to revise Conventions Nos. 97 and 143. They stressed that no Government member had come out in favour of the Conventions as offering the path for the future, and highlighted the comments made by several Government members which illustrated the various problems encountered in the implementation of these standards. Even the Worker members, among the many issues they raised, pointed to several gaps in the existing instruments. The Conventions were limited in certain respects and promises of their ratification had not been fulfilled. The legal obstacles to the ratification of the Conventions and the changing circumstances under which migratory flows were occurring confirmed the belief of the Employer members that the maintenance of the status quo was not a viable option. A new and more relevant product was needed to protect migrant workers in the global marketplace, for example through the merger of the present instruments into a single Convention setting achievable standards.
D. Compliance with specific obligations
176. The Committee decided that, in examining individual cases relating to compliance by States with their obligations under or relating to international labour standards, it would apply the same working methods and criteria as last year, as amended or clarified in 1980 and 1987.
177. In applying those methods, the Committee decided, on the proposal of the Worker members supported by the Employer members, to invite all governments concerned by the comments in paragraphs 186 (failure to supply report for two or more years on the application of ratified Conventions), 193 (failure to supply first reports on the application of ratified Conventions), 197 (failure to supply information in reply to comments made by the Committee of Experts), 231 (failure to submit instruments to the competent authority), and 235 (failure to supply reports for the past five years on unratified Conventions and on Recommendations) of the Committee of Experts' report to supply information to the Committee in one half-day sitting to be devoted to those cases. The Committee considered that this new approach should in no sense be understood by Governments as dispensing them from the need to take part in the Committee's discussions.
Submission of Conventions and Recommendations
to the competent authorities
178. In accordance with its terms of reference, the Committee considered the manner in which effect is given to article 19, paragraphs 5 to 7, of the ILO Constitution. These provisions require member States within 12, or exceptionally 18, months of the closing of each session of the Conference to submit the instruments adopted at that session to the authority or authorities within whose competence the matter lies, for the enactment of legislation or other action, and to inform the Director-General of the ILO of the measures taken to that end, with particulars of the authority or authorities regarded as competent.
179. The Committee noted from the report of the Committee of Experts (paragraph 216) that considerable efforts to fulfil the submission obligation had been made in certain States, namely: Bulgaria, Chile, Guinea, Ireland, Lebanon, Mauritius, Sri Lanka.
180. In addition, the Committee was informed by various other States of measures taken to bring the instruments before the competent national authorities. It welcomed the progress achieved and expressed the hope that there would be further improvements in States that still experience difficulties in complying with their obligations.
Failure to submit
181. The Committee noted with regret from paragraph 231 of the Committee of Experts' report that no indication was available that steps had been taken in accordance with article 19 of the Constitution to submit the instruments adopted between 1990 and 1996 by the 78th to 84th Sessions of the Conference to the competent authorities, in the cases of Afghanistan, Belize, Cambodia, Cameroon, Central African Republic, Congo, Haiti, Honduras, Papua New Guinea, Saint Lucia, Sao Tome and Principe, Seychelles, Sierra Leone, Solomon Islands, Somalia, Swaziland, Syrian Arab Republic and Yemen.
Supply of reports on ratified Conventions
182. In Part B of its report (General questions relating to international labour standards), the Committee has considered the fulfilment by States of their obligation to report on the application of ratified Conventions. By the date of the 1998 meeting of the Committee of Experts, the percentage of reports received was 62.1 per cent, compared with 62.8 per cent for the 1997 meeting. Since then, further reports have been received, bringing the figure to 71.4 per cent (as compared with 74.6 per cent in June 1998, 78.2 per cent in June 1997 and 78.9 per cent in June 1996). In 1998, the Committee of Experts noted that 66.4 per cent of the reports on Conventions for which information on practical application was requested contained such information, compared with 84.3 per cent in 1997 and 70.4 per cent in 1996. The Committee emphasizes the importance of sending practical information, without which it is impossible to know if a Convention is actually being applied. The Committee joins the Committee of Experts in its repeated appeals to governments to make every effort to include the necessary information in future reports.
Failure to supply reports and information on
the application of ratified Conventions
183. The Committee noted with regret that no reports on ratified Conventions had been supplied for two years or more by the following States: Afghanistan, Antigua and Barbuda, Armenia, Bosnia and Herzegovina, Burundi, Democratic Republic of the Congo, Denmark (Faeroe Islands), Georgia, Grenada, Mali, Saint Lucia, Sierra Leone, Somalia, United Republic of Tanzania (Zanzibar), Uzbekistan.
184. The Committee also noted with regret that no first reports due on ratified Conventions had been supplied by the following countries: since 1992, Liberia (Convention No. 133); since 1995, Armenia (Convention No. 111), Burundi (Conventions Nos. 87, 100 and 111), Kyrgyzstan (Convention No. 133); since 1996, Armenia (Conventions Nos. 100, 122, 135 and 151), Grenada (Conventions Nos. 87, 100 and 144), Latvia (Conventions Nos. 81 and 155), Uzbekistan (Conventions Nos. 47, 52, 103 and 122); and since 1997, Mali (Conventions Nos. 135, 141, 151 and 159). It stressed the special importance of first reports on which the Committee of Experts bases its first evaluation of compliance with ratified Conventions.
185. In this year's report, the Committee of Experts noted that 58 governments had not communicated replies to most or any of the observations and direct requests relating to Conventions on which reports were due for examination this year, involving a total of 353 cases (compared with 385 cases in December 1997). The Committee was informed that, since the meeting of the Committee of Experts, 14 of the governments concerned had sent replies, which would be examined by the Committee of Experts at its next session.
186. The Committee noted with regret that no information had yet been received regarding any or most of the observations and direct requests of the Committee of Experts to which replies were requested for the period ending 1998 from the following countries: Afghanistan, Antigua and Barbuda, Australia (Norfolk Island), Bosnia and Herzegovina, Burkina Faso, Burundi, Comoros, Democratic Republic of the Congo, Denmark (Faeroe Islands), Djibouti, Equatorial Guinea, Fiji, France (French Polynesia, French Southern and Antarctic Territories, Guadeloupe), Ghana, Grenada, Guinea, Guinea-Bissau, Haiti, Iraq, Kyrgyzstan, Latvia, Libyan Arab Jamahiriya, Madagascar, Mali, Malta, Mongolia, Netherlands (Aruba), Niger, Nigeria, Paraguay, Rwanda, Saint Lucia, Sao Tome and Principe, Sierra Leone, Solomon Islands, Somalia, Togo.
187. The Committee noted the explanations provided by the Governments of the following countries concerning difficulties encountered in discharging their obligations: Bosnia and Herzegovina, Burkina Faso, Burundi, Cambodia, Central African Republic, Democratic Republic of the Congo, Denmark (Faeroe Islands), Fiji, France (French Polynesia, French Southern and Antarctic Territories, Guadeloupe), Ghana, Guinea, Guinea-Bissau, Haiti, Honduras, Iraq, Latvia, Lesotho, Madagascar, Mali, Republic of Moldova, Netherlands (Aruba), Niger, Papua New Guinea, Seychelles, Swaziland, Syrian Arab Republic, United Republic of Tanzania (Zanzibar).
188. The Committee stressed that the obligation to transmit reports is the basis of the supervisory system. It requests the Director-General to adopt all possible measures to improve the situation and solve the problems referred to above as quickly as possible. It expressed the hope that the multidisciplinary teams would give all due attention in their work in the field to standards-related issues and in particular to the fulfilment of standards-related obligations. The Committee also bore in mind the new reporting arrangements approved by the Governing Body in November 1993, which came into operation from 1995.
Application of ratified Conventions
189. The Committee noted with particular interest the steps taken by a number of governments to ensure compliance with ratified Conventions. The Committee of Experts listed in paragraph 203 of its report new cases in which governments had made changes to their law and practice following comments it had made as to the degree of conformity of national legislation or practice with the provisions of a ratified Convention. There were 39 such cases, relating to 33 countries; 2,203 cases of progress have been recorded since the Committee of Experts began listing them in 1964. These results are tangible proof of the effectiveness of the supervisory system.
190. At its present session, the Conference Committee was informed of other instances in which measures had recently been or were about to be taken by governments with a view to ensuring the implementation of ratified Conventions. While it is for the Committee of Experts to examine these measures, the present Committee welcomes them as fresh evidence of the efforts made by governments to comply with their international obligations and to act upon the comments of the supervisory bodies.
191. The Committee thought it appropriate to draw the attention of the Conference to various important cases which it had to consider.
Cases of progress
192. The Committee noted with satisfaction that in a number of cases -- including many involving basic human rights -- governments have introduced changes in their law and practice in order to eliminate divergencies previously discussed by the Committee. It considers highlighting these cases a positive approach towards influencing governments to respond to comments of the supervisory bodies. In this respect, it refers to the report of the Committee of Experts and the discussion of individual cases which appears in Part Two of this report.
Special cases
193. The Committee considered it appropriate to draw the attention of the Conference to its discussions of the cases mentioned in the following paragraphs, a full record of which appears in Part Two of this report.
194. As regards the application by Cameroon of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee noted the written information and the oral detailed statement made by the Minister for Employment and Labour and the discussion which took place. It recalled that the case had been discussed by the Committee in several sessions in the past. It also recalled that the Committee of Experts had formulated comments for several years regarding the non-application of Articles 2 and 5 of the Convention in law and practice. It stressed the need to amend Act No. 68/LF/19 of 1968 and the corresponding Decree of 1969 subjecting the legal existence of organizations of public servants and the possibility of joining a foreign occupational organization to previous authorization of the administrative authorities. It also stressed the need to repeal section 6(2) of the Labour Code which permitted the prosecution of persons forming a trade union which had not yet been registered and who acted as if the trade union had been registered. The Committee deeply regretted that, despite previous discussions on this case, no progress had been made. The Committee strongly urged the Government to take effective measures in order to remove the obstacles to freedom of association which resulted from the requirement of previous authorization to set up a trade union organization and to guarantee that all workers, including civil servants and contract workers, had the right to form and join organizations of their own choosing. The Committee expressed serious concern that the Government had not supplied a detailed report to the Committee of Experts for several years. The Committee once again strongly urged the Government to supply a detailed report to the Committee of Experts at its next meeting on the measures effectively taken to bring the legislation and practice into conformity with the Convention.
195. As regards the application by Myanmar of the Forced Labour Convention, 1930 (No. 29), the Committee noted the written and oral information supplied by the Government, and the discussion which followed. It noted in particular the Government's position that the findings of the Commission of Inquiry and the Committee of Experts had no basis, and that the Report of the Director-General of 21 May 1999, supplied to members of the Governing Body, on the measures taken by the Government to comply with the recommendations of the Commission of Inquiry, was based on false and misleading information. The Committee also noted the issuance of Order No. 1/99 of 14 May 1999, directing that the power to requisition forced labour under the Towns Act, 1907, and the Village Act, 1907, not be exercised. The Committee recalled the long history of the case and the series of actions taken by the ILO supervisory bodies, including the recommendations of the Commission of Inquiry established by the Governing Body. It considered that the explanations provided by the Government did not respond to the detailed and well-substantiated findings and recommendations of the Commission of Inquiry and the Committee of Experts. It noted with deep concern the findings of the Commission of Inquiry that there was convincing information available that forced and compulsory labour on a very large scale still occurred in Myanmar. The Committee regretted that the Government had not allowed the Commission of Inquiry to visit the country to verify the situation for itself. It could also have been the occasion for the Government to present its own position before the Commission in a very objective and impartial manner. It regretted that the Government had shown no inclination to cooperate with the ILO in this respect. It called upon the Governing Body, the Committee of Experts and the Office to continue taking all possible measures to secure the observance by Myanmar of the recommendations of the Commission of Inquiry, which confirmed and expanded the Committee of Experts' own previous conclusions.
196. As regards the application by Myanmar of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee noted the statement made by the Government representative and the detailed discussion which took place thereafter. It recalled that this case had been discussed by the Committee consistently for over a decade. The Committee could not help but once again deplore the fact that no progress had been made toward the application of this fundamental Convention, despite the repeated calls upon the Government made by the present Committee and the Committee of Experts. The Committee was also once again obliged to express its profound regret that serious divergences between the national legislation and practice, on the one hand, and the provisions of the Convention, on the other hand, continued to exist. It could not help but once again deplore the absence of genuine cooperation on the part of the Government in this regard. Extremely concerned over the total absence of progress in the application of this Convention, the Committee once again strongly urged the Government to adopt, as a matter of urgency, the measures and mechanisms necessary to guarantee, in legislation and in practice, to all workers and employers, without distinction whatsoever and without previous authorization, the right to join organizations of their own choosing, to protect their occupational interests and the right to affiliate with federations, confederations and international organizations, without interference from the public authorities. The Committee strongly urged the Government to make, without delay, substantial progress in the application of the Convention, in law and in practice, and urged the Government to supply a detailed report to the Committee of Experts this year.
197. The Committee trusts that the governments concerned will take all measures necessary to correct the deficiencies noted and invites them to consider appropriate forms of ILO assistance, including direct contacts, to ensure that real progress is achieved by next year in the observance of their obligations under the ILO Constitution and the Conventions in question.
Continued failure to implement
198. The Committee recalls that its working methods provide for the listing of cases of continued failure over several years to eliminate serious deficiencies, previously discussed, in the application of ratified Conventions. This year the Committee noted with great concern that there had been continued failure over several years to eliminate serious discrepancies in the application by Myanmar of the Forced Labour Convention, 1930 (No. 29) and of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
199. The Governments of the countries to which reference is made in paragraphs 194 to 198 are invited to supply the relevant reports and information to enable the Committee to follow up the abovementioned matters at the next session of the Conference.
Supply of reports on unratified Conventions
and on Recommendations
200. The Committee notes that 349 of the 635 article 19 reports requested on the Migration for Employment Convention (Revised), 1949 (No. 97) and Recommendation (Revised) (No. 86), 1949 and the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) and Recommendation (No. 151), 1975 had been received at the time of the Committee of Experts' meeting, and a further 18 since, making 58 per cent in all.
201. The Committee noted with regret that over the past five years none of the reports on unratified Conventions and on Recommendations requested under article 19 of the Constitution had been supplied by Afghanistan, Armenia, Djibouti, Fiji, Georgia, Haiti, Kazakhstan, Lesotho, Liberia, Libyan Arab Jamahiriya, Republic of Moldova, Nigeria, Saint Lucia, Solomon Islands, Somalia, the former Yugoslav Republic of Macedonia, Turkmenistan.
Communication of copies of reports to workers'
and employers' organizations
202. Once again this year, the Committee did not have to apply the criterion "The Government has failed during the past three years to indicate the representative organizations of employers and workers to which, in accordance with article 23(2) of the Constitution, copies of reports and information supplied to the ILO under articles 19 and 22 have been communicated".
Participation in the work of the Committee
203. The Committee wished to express its gratitude to the 64 governments which collaborated by providing information on the situation in their countries and participating in the discussions of their individual cases.
204. The Committee regretted that, despite the invitations, the Governments of the following States failed to take part in the discussions concerning their countries' fulfilment of their constitutional obligations to report: Armenia, Australia (Norfolk Island), Cameroon, Congo, Georgia, Kazakhstan, Kyrgyzstan, Liberia, Libyan Arab Jamahiriya, Malta, Mongolia, Nigeria, Paraguay, Rwanda, Sao Tome and Principe, The former Yugoslav Republic of Macedonia, Togo, Yemen. It decided to mention the cases of these States in the appropriate paragraphs of its report and to inform them in accordance with the usual practice.
205. The Committee noted with regret that the Governments of the States which were not represented at the Conference, namely Afghanistan, Antigua and Barbuda, Belize, Comoros, Djibouti, Equatorial Guinea, Grenada, Saint Lucia, Sierra Leone, Solomon Islands, Somalia, Turkmenistan, Uzbekistan were unable to participate in the Committee's examination of the cases relating to them. It decided to mention these countries in the appropriate paragraphs of this report and to inform the Governments, in accordance with the usual practice.
* * *
206. The Committee's work was carried out this year in a particularly rich and full environment: the adoption by the Conference in 1998 of the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up; drafting of new instruments to combat child labour; plenary discussions on the Director-General's Report Decent work; and the discussion of a report on technical cooperation. This year is also the 80th anniversary of the ILO as well as the 50th anniversary of Convention No. 98. In this context, which is particularly fertile with reflections and proposals, the work of the Committee has demonstrated its usual qualities of seriousness, a critical but constructive attitude; and a tripartite dialogue which shows wisdom but is not devoid of passion. Principles, fundamental standards, priority standards and other standards are all part of the basic vocation of this Organization -- social justice. Vital components of this vocation are ratification of Conventions, respect for their terms and supervision of their application within the regular supervisory system, wherein the role of the Committee goes without saying. The Committee's discussions reflected the profound changes taking place in the world, and the impact of these changes on the world of work. The Committee hopes it has contributed to making the message of this last session of the century one of continuing confidence in international labour standards and in the values of tripartite dialogue to improve conditions of work and life, contribute to social justice and promote human dignity.
Geneva, 15 June 1999.
(Signed) R. Dimapilis-Baldoz,
Chair.
W. van de Ree,
Reporter.
1. For changes in the composition of the Committee, see the report of the Selection Committee, Provisional Record Nos. 3 to 34.
2. Report III to the International Labour Conference -- Part 1A: Report of the Committee of Experts on the Application of Conventions and Recommendations; Part 1B: Migrant Workers.
Updated by HK. Approved by RH. Last update: 26 January 2000.