I. Introduction

1. The Committee of Experts on the Application of Conventions and Recommendations, appointed by the Governing Body of the International Labour Office to examine the information and reports submitted under articles 19, 22 and 35 of the Constitution by States Members of the International Labour Organization on the action taken with regard to Conventions and Recommendations, held its 69th Session in Geneva from 26 November to 11 December 1998. The Committee has the honour to present its report to the Governing Body.

2. The Committee noted with regret that Mr. Uribe Restrepo ceased to be a member and that Sir John Wood asked to be relieved of his duties as a member. It would like to pay tribute to the outstanding contribution they made to the work of the Committee during some 20 years as members, due to their vast experience and their steadfast commitment to the principles of the ILO.

3. The Governing Body has appointed Mr. Anwar Ahmad Rashed AL-FUZAIE, Ms. Laura COX, and Mr. Sergey Pertrovitch MAVRIN as members of the Committee. It gave the Committee great pleasure to welcome them to its present session.

4. The present composition of the Committee is as follows:

Mr. Anwar Ahmad Rashed AL-FUZAIE (Kuwait),

Ms. Janice R. BELLACE (United States),

Mr. Prafullachandra Natvarlal BHAGWATI (India),

Ms. Laura COX, QC (United Kingdom),

The Right Honourable Sir William DOUGLAS, PC, KCMG (Barbados),

Ms. Blanca Ruth ESPONDA ESPINOSA (Mexico),

Ms. Robyn A. LAYTON, QC (Australia),

Ms. Ewa LETOWSKA (Poland),

Mr. Sergey Petrovitch MAVRIN (Russian Federation),

Baron Bernd von MAYDELL (Germany),

Mr. Cassio MESQUITA BARROS (Brazil),

Mr. Benjamin Obi NWABUEZE (Nigeria),

Mr. Edilbert RAZAFINDRALAMBO (Madagascar),

Mr. Miguel RODRIGUEZ PIÑERO Y BRAVO FERRER (Spain),

Mr. Amadou SO (Senegal),

Mr. Boon Chiang TAN (Singapore),

Mr. Jean-Maurice VERDIER (France),

Mr. Budislav VUKAS (Croatia),

Mr. Toshio YAMAGUCHI (Japan),

5. The Committee elected Sir William DOUGLAS to the Chair and it elected Mr. E. RAZAFINDRALAMBO as Reporter of the Committee.

6. In pursuance of its terms of reference, as revised by the Governing Body at its 103rd Session (Geneva, 1947), the Committee was called upon to examine:

(i) the annual reports under article 22 of the Constitution on the measures taken by Members to give effect to the provisions of the Conventions to which they are parties, and the information furnished by Members concerning the results of inspections;

(ii) the information and reports concerning Conventions and Recommendations communicated by Members in accordance with article 19 of the Constitution;

(iii) information and reports on the measures taken by Members in accordance with article 35 of the Constitution.

7. The Committee, after an examination and evaluation of the above reports and information, drew up its present report, consisting essentially of the following three parts: Part One is the General Report in which the Committee reviews general questions concerning international labour standards and related instruments and their implementation. Part Two contains observations concerning particular countries on the application of ratified Conventions (see section I and paragraphs 181 to 211 below), on the application of Conventions in non-metropolitan territories (see section II and paragraphs 181 to 211 below), and on the obligation to submit instruments to the competent authorities (see section III and paragraphs 212 to 232 below). Part Three, which is published in a separate volume (Report III (Part 1B)) consists of a General Survey on the Migration for Employment Convention (No. 97) and Recommendation (No. 86) (Revised), 1949, and the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), and the Migrant Workers Recommendation, 1975 (No. 151), on which governments were requested to submit reports under article 19 of the ILO Constitution.

8. In carrying out its task, which consists of indicating the extent to which the situation in each State appears to be in conformity with the Conventions and the obligations undertaken by that State by virtue of the ILO Constitution, the Committee has followed the principles of independence, objectivity and impartiality set forth in its previous reports. It has continued to apply the working methods recalled in its 1987 report. A spirit of mutual respect, cooperation and responsibility has consistently prevailed in the Committee's relations with the International Labour Conference and its Committee on the Application of Standards, whose proceedings the Committee takes fully into consideration, not only in respect of general matters concerning standard-setting activities and supervisory procedures, but also in respect of specific matters concerning the way in which States fulfil their standards-related obligations.

9. In this context, the Committee again noted the participation of the Chairperson of its 68th Session as an observer in the general discussion of the Committee on the Application of Standards of the 86th Session of the International Labour Conference (June 1998). It noted the decision of the above-mentioned Committee again to request the Director-General to invite the Chairperson of the 69th Session of the Committee of Experts on the Application of Conventions and Recommendations to attend as an observer the general discussion of the Committee on the Application of Standards of the 87th Session of the International Labour Conference (June 1999). The Committee accepted the invitation.

10. The Chairperson of the 69th Session of the Committee of Experts invited the Employer and Worker Vice-Chairpersons of the Committee on the Application of Standards of the 86th Session of the International Labour Conference to jointly pay a visit to this Committee at its present session. Both accepted this invitation. Unfortunately, for reasons beyond his control, at the last minute the Employer Vice-Chairperson was not able to come to Geneva.

II. General

Membership of the Organization

11. Since the Committee's last session, the number of member States of the ILO has remained unchanged at 174.

New standards adopted by the Conference in 1998 and the coming into force of Conventions

12. The Committee noted that at its 86th Session (June 1998) the International Labour Conference adopted the Job Creation in Small and Medium-Sized Enterprises Recommendation, 1998 (No. 189).

13. The Part-Time Work Convention, 1994 (No. 175), has been ratified by Cyprus and Mauritius, and entered into force on 28 February 1998. The Safety and Health in Mines Convention, 1995 (No. 176), has been ratified by Botswana and Spain, and entered into force on 5 June 1998. The Protocol of 1995 to the Labour Inspection Convention, 1947 (No. 81), has been ratified by Finland and Sweden, and entered into force on 9 June 1998.

Ratifications and denunciations

Ratifications

14. The list of ratifications by Convention and by country (Endnote 1) indicates a total of 6,477 ratifications as at 31 December 1997. At the end of the Committee's session on 11 December 1998, 72 ratifications had been received from 41 countries, bringing the total to 6,549.

Denunciations accompanied by the ratification of a revising Convention

15. Since the Committee's last session, the Director-General has registered 23 denunciations accompanied by the ratification of a revising Convention.

Albania ratified the Minimum Age Convention, 1973 (No. 138)

Brazil ratified the Holidays with Pay Convention (Revised), 1970 (No. 132)

Brazil ratified the Seafarers' Annual Leave with Pay Convention, 1976 (No. 146)

Cyprus ratified the Minimum Age Convention, 1973 (No. 138)

Denmark ratified the Minimum Age Convention, 1973 (No. 138)

Ecuador ratified the Indigenous and Tribal Peoples Convention, 1989 (No. 169)

Guyana ratified the Minimum Age Convention, 1973 (No. 138)

Hungary ratified the Holidays with Pay Convention (Revised), 1970 (No. 132)

Jordan ratified the Minimum Age Convention, 1973 (No. 138)

Netherlands ratified the Occupational Safety and Health (Dock Work) Convention, 1979 (No. 152)

Philippines ratified the Minimum Age Convention, 1973 (No. 138)

Slovakia ratified the Minimum Age Convention, 1973 (No. 138)

Denunciations following the recommendation of the Governing Body

16. Denunciations not accompanied by the ratification of a revising Convention made in response to the recommendation regarding the policy of revision of standards made by the Governing Body were registered from Belgium for the Inspection of Emigrants Convention, 1926 (No. 21) and the Contracts of Employment (Indigenous Workers) Convention, 1939 (No. 64), and from Chile for the Maternity Protection Convention, 1919 (No. 3).

Denunciations not accompanied by the ratification of a revising Convention

17. A denunciation not accompanied by the ratification of a revising Convention was registered from Australia for the Placing of Seamen Convention, 1920 (No. 9). The Government states that it had chosen not to ratify the revising Convention following a process of consultation and consideration in relation to reforms aimed at improving the international competitiveness of Australian shipping. These reforms were recommended to the Government by an advisory body, the Shipping Reform Group, comprising key maritime industry executives, which found that "the industry employment arrangements for rating seafarers were found to inhibit employment continuity for seafarers, increase training costs, prevent transfer of ratings between each ship operator's vessels, involve both inadequate selection arrangements and barriers to promotion for seafarers and impose on the industry additional administrative costs of the system. In addition, independent reports to the Government highlighted the adverse impact of the industry employment arrangements on occupational health and safety outcomes in the maritime industry. The introduction of company-based employment for all seafarers was seen by the industry as important in helping to reduce the current high incidence of work-related injury and disease. This results from the improved selection of seafarers to suit the physical demands of particular seagoing jobs and allowing specialized training to be provided to seafarers who have a full-time commitment to their employment with a particular ship operator".

18. The Government, therefore, decided to withdraw from further involvement in operating the particular public employment services for seafarers, which were part of the substantive requirements of ILO Convention No. 9, as from 1 March 1998.

19. A denunciation not accompanied by the ratification of a revising Convention was registered from Luxembourg for the Night Work (Bakeries) Convention, 1925 (No. 20). The Government states that "the measure is one of a number of initiatives aimed at encouraging the development of enterprise by removing obstacles to self-employment and in particular to the creation and running of small and medium-sized enterprises. In concrete terms, removing the prohibition of night work will allow bakeries to adapt to current technical and economic conditions and meet their customers' needs. The proposal to denounce Convention No. 20 and repeal the national statutes based on it prohibiting night work in bakeries was approved unanimously by the tripartite coordination committee, which includes representatives of all the national employers' associations and trade union organizations".

20. A denunciation not accompanied by the ratification of a revising Convention was registered from the Netherlands for the Underground Work (Women) Convention, 1935 (No. 45). The Government states that in its opinion "a categorical ban on women doing a specific type of work is not in accordance with the principle of equal opportunities for men and women to which we now adhere. In the Government's view, the Convention no longer accords with European regulations ... on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions. Unless women are pregnant, have recently given birth or are breastfeeding, the risks they face in working underground do not differ from those faced by men. The denunciation by the Netherlands of this Convention will not affect the specific protection afforded to women in relation to pregnancy and maternity, who can invoke the provisions of other regulations in this connection". The Government conducted consultations on the denunciation of the Convention with the organizations representing employers and workers.

21. A denunciation not accompanied by the ratification of a revising Convention was registered from Zambia for the Underground Work (Women) Convention, 1935 (No. 45). The Government states that in full consultation with and with the mutual consent of the most representative organizations of employers and workers, it took note of "the tremendous technological developments covering many fields including organization of work to the extent that work which was hazardous, arduous, or strenuous is no longer so. Under the circumstances, provisions of the said Convention providing protection to women because of the nature of work has become an instrument of discrimination against women. It has thus become inappropriate in these modern times to deny women the right to access to profession, career or employment of one's choice in the mines. Zambia thus progressively removed legislative measures, national policies and practices tending to inhibit women to exercise their full potential on an equal basis with men".

22. The Committee notes that several denunciations of the Underground Work (Women) Convention, 1935 (No. 45) have been registered for the 12-month denunciation period ending 30 May 1998.

23. As regards the question of the relationship between the prohibition of the employment of females on underground work in mines as laid down in this Convention, and equality of treatment, the Committee recalls that the Convention does not provide for the absolute prohibition of the employment of females in mines. On the contrary, the Convention authorizes females holding positions of management or females employed in health and welfare services, or who in the course of their studies spent a period of training in the underground parts of a mine, as well as any other work to be performed by females who may occasionally have to enter the underground parts of a mine for the purpose of non-manual occupation. Moreover, the Committee wishes to recall that under the provisions of Article 5, paragraph 1, of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), "special measures of protection or assistance provided for in other Conventions or Recommendations adopted by the International Labour Conference shall not be deemed to be discrimination".

24. The Committee hopes that efforts will be undertaken by all member States, irrespective of the ratification or denunciation of the Underground Work (Women) Convention, 1935 (No. 45), with a view to improving the protection of safety and health in mines as well as the protection of male and female workers, taking due account of the relative instruments in this regard, in particular the Safety and Health in Mines Convention, 1995 (No. 176), and the Safety and Health in Mines Recommendation, 1995 (No. 183). The Committee trusts that any review of the prohibition of manual underground work for women will be undertaken within the framework of an improvement of the overall working conditions in mines.

Declarations

25. With regard to non-metropolitan territories, the Netherlands made a declaration on behalf of Aruba terminating the acceptance of the obligations of the Rural Workers' Organisations Convention, 1975 (No. 141).

Notifications

26. With regard to the application of international labour Conventions to the Special Administrative Region of Hong Kong, the Director-General has registered the following notifications made by China on the application, with modifications, of the Weekly Rest (Industry) Convention, 1921 (No. 14), the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), and the Labour Administration Convention, 1978 (No. 150).

Constitutional and other procedures

27. The Committee had been informed of the decisions taken by the Governing Body in cases where the Governing Body had recourse to the constitutional procedures in respect of complaints, representations and other procedures.

A. Complaints submitted under article 26 of the ILO Constitution

Complaint against Myanmar

28. The Committee noted with interest the report of the Commission of Inquiry appointed under article 26 of the Constitution of the ILO to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), which completed its work on 2 July 1998. The report was sent to the Government of Myanmar on 27 July and was published on 20 August 1998. At its 273rd Session (November 1998) the Governing Body took note of the Commission's report and the Government's communication under article 29, paragraph 2, of the Constitution; it also asked the Director-General to present a progress report at its 274th Session (March 1999).

Complaint against Nigeria

29. The Committee notes that at its 271st Session (March 1998) the Governing Body had decided, in accordance with article 26(4) of the ILO Constitution, to refer the question of observance by Nigeria of 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), to a commission of inquiry. The Committee takes note that, following developments in the situation, a direct contacts mission took place and the report of this mission was transmitted to the Governing Body. It also notes the decision of the Governing Body at its 273rd Session (November 1998) to transmit that report to the Committee of Experts for examination and to suspend the work of the Commission of Inquiry pending such examination and until such time as the Governing Body may decide otherwise.

Complaint against Colombia

30. The Committee notes that the International Labour Conference at its 86th Session (June 1998), in accordance with article 26 of the ILO Constitution, received a complaint which had been filed by 26 trade union members alleging non-observance by Colombia of 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). The Committee was informed that the Governing Body, at its 273rd Session (November 1998), instructed the Director-General to request the Government of Colombia to communicate its observations on the complaint. It notes that the Governing Body will decide at its 274th Session (March 1999), in the light of information provided by the Government and the recommendations of the Committee of Freedom of Association regarding the complaint and the cases which are still pending, whether they should be referred as a whole to a commission of inquiry.

B. Representations submitted under article 24 of the ILO Constitution

Representation concerning Bolivia

31. At its 272nd Session (June 1998), the Governing Body decided that the representation made by the Bolivian Central of Workers (COB) alleging non-observance by Bolivia of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), was receivable. A tripartite committee was set up to examine the representation.

Representation concerning Bosnia and Herzegovina

32. At its 273rd Session (November 1998), the Governing Body decided that the representation made by the Union of Autonomous Trade Unions of Bosnia and Herzegovina alleging non-observance by Bosnia and Herzegovina of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), was receivable. A tripartite committee was set up to examine the representation.

Representations concerning Chile

33. At its 271st Session (March 1998), the Governing Body decided that the representation made by the College of Teachers of Chile A.G. alleging the non-observance by Chile of the Old-Age Insurance (Industry, etc.) Convention, 1933 (No. 35), and of the Invalidity Insurance (Industry, etc.) Convention, 1933 (No. 37), was receivable. A tripartite committee was set up to examine the representation.

34. At its 273rd Session (November 1998), the Governing Body decided that the representation made by a number of national trade unions of workers of the Private Sector Pension Funds (AFP) alleging non-observance by Chile of the Old-Age Insurance (Industry, etc.) Convention, 1933 (No. 35), the Old-Age Insurance (Agriculture) Convention, 1933 (No. 36), the Invalidity Insurance (Industry, etc.) Convention, 1933 (No. 37), and the Invalidity Insurance (Agriculture) Convention, 1933 (No. 38), was receivable. A tripartite committee was set up to examine the representation.

Representation concerning Colombia

35. The Office received the representation made by the Latin American Central of Workers (CLAT) alleging non-observance by Colombia of the Protection of Wages Convention, 1949 (No. 95). This representation has been submitted to the Officers of the Governing Body for a decision on its receivability, but their decision is still pending.

Representation concerning Denmark

36. At its 272nd Session (June 1998), the Governing Body decided that the representation made by the Association of Salaried Employees in the Air Transport Sector and the Association of Cabin Crew at Maersk Air, alleging non-observance by Denmark of 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), was receivable. The Governing Body referred this representation to the Committee on Freedom of Association.

Representation concerning Spain

37. At its 272nd Session (June 1998), the Governing Body adopted the report of the tripartite committee set up to examine the representation made by the General Labour Confederation of the Republic of Argentina alleging the non-observance by Spain of the Migration for Employment Convention (Revised), 1949 (No. 97), the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and the Employment Policy Convention, 1964 (No. 122).

Representation concerning Ethiopia

38. At its 273rd Session (November 1998), the Governing Body decided that the representation made by the National Confederation of Eritrean Workers (NCEW) alleging non-observance by Ethiopia of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and the Termination of Employment Convention, 1982 (No. 158), was receivable. The Governing Body decided to set up a committee to examine the representation.

Representation concerning Hungary

39. At its 270th Session (November 1997) the Governing Body decided that the representation made by the National Federation of Workers' Council (NFWC) alleging the non-observance by Hungary of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and the Employment Policy Convention, 1964 (No. 122), was receivable. A tripartite committee was set up to examine the representation.

Representations concerning Mexico

40. At its 272nd Session (June 1998), the Governing Body adopted the report of the tripartite committee set up to examine the representation submitted by the Trade Union Delegation, D-III-57, section XI of the National Trade Union of Education Workers (SNTE), Radio Education, alleging the non-observance by Mexico of the Indigenous and Tribal Peoples Convention, 1989 (No. 169).

41. At its 273rd Session (November 1998), the Governing Body decided that the representation made by Radical Trade Union of Metal and Associated Workers alleging non-observance by Mexico of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), was receivable. A tripartite committee was set up to examine the representation.

Representation concerning Peru

42. At its 273rd Session (November 1998), the Governing Body adopted the report of the tripartite committee set up to examine the representation made by the Confederación General de Trabajadores del Perú (CGTP) alleging non-observance by Peru of the Indigenous and Tribal Peoples Convention, 1989 (No. 169).

Representation concerning Turkey

43. At its 270th Session (November 1997), the Governing Body took note of an interim report on the representation made by the Confederation of Trade Unions of Turkey (TURK-IS) alleging non-observance by Turkey of the Labour Clauses (Public Contracts) Convention, 1949 (No. 94).

Representation concerning Venezuela

44. At its 273rd Session (November 1998), the Governing Body adopted the report of the tripartite committee set up to examine the representation made by the Latin American Central of Workers (CLAT) and the Latin American Federation of Commerce (FETRALCOS), alleging the non-observance by Venezuela of the Employment Policy Convention, 1964 (No. 122).

Representation concerning the Socialist Federal Republic of Yugoslavia

45. There has been no change in the situation over the past year. The Committee noted previously that the tripartite committee established to examine the representation submitted by the International Confederation of Free Trade Unions (ICFTU), alleging non-observance by the Socialist Federal Republic of Yugoslavia of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), submitted its report to the 253rd (May-June 1992) Session of the Governing Body. The Governing Body has suspended examination of this representation, pending a possible stance by the United Nations which would make it possible for some defendant to be identified for the purposes of the application of article 7 of the Standing Orders governing the procedure for the examination of representations submitted under articles 24 and 25 of the ILO Constitution.

46. The Committee noted the discussion at the 273rd Session of the Governing Body (November 1998) on the revision of the procedure for the examination of representations submitted under article 24 of the ILO Constitution. The discussion centred on three issues: the consequences of representations being automatically referred to a tripartite committee if they were found receivable, the question of the suspensive effect of such representations under article 24 of the Constitution on the regular supervisory machinery provided for under article 22, as well as the need to maintain the rules providing for the private character of the meetings of the Governing Body at which a representation was considered and for the confidential nature of the reports submitted by tripartite committees set up to examine article 24 representations. The preliminary views which were expressed on the issues will be taken into account in the preparation of a subsequent paper to be presented for discussion by the Governing Body next year.

C. Special procedures concerning freedom of association

47. At each of its last meetings (March and June 1998), the Committee on Freedom of Association had before it an average of some 65 cases concerning nearly 40 countries from all parts of the world, for which it presented interim or final conclusions, or for which the examination had been adjourned pending the arrival of information from governments (309th, 310th, 311th and 312th Reports). Many of these cases have been before the Committee on several occasions. Moreover, since the last meeting of the Committee of Experts, some 50 new cases had been submitted to the Committee. Missions concerning cases pending before the Committee on Freedom of Association visited Djibouti, the Republic of Korea, Nigeria and Indonesia.

48. The Committee on Freedom of Association drew the attention of the Committee of Experts to the legislative aspects of the following cases: 1773 (Indonesia), 1843 (Sudan), 1887 (Argentina), 1906 (Peru), 1912 (United Kingdom/ Isle of Man), 1928 (Canada/Manitoba), 1931 (Panama), 1942 (China/Special Administrative Region of Hong Kong) and 1943 (Canada/Ontario).

Functions in regard to other international instruments of universal and regional character

A. United Nations treaties concerning human rights

49. The Office regularly sends written reports and submits oral information, in accordance with existing arrangements, to the various bodies responsible for the application of United Nations Conventions that are relevant to the ILO's mandate. These bodies constitute the supervisory machinery established by the United Nations to examine reports which governments are required to submit at regular intervals on each of the United Nations instruments that they have ratified. Since the Committee's last meeting, the following activities have been undertaken:

-- International Covenant on Economic, Social and Cultural Rights: the Office took part actively in the 18th (April-May 1998) and 19th (November-December 1998) Sessions of the Committee on Economic, Social and Cultural Rights, presenting reports on five countries at each session;

-- International Covenant on Civil and Political Rights: the Office took part actively and reports were presented on five countries for the 62nd (March-April 1998), on six countries for the 63rd (July 1998), and on six countries for the 64th (October-November 1998) Sessions of the Human Rights Committee;

-- Convention on the Elimination of All Forms of Discrimination against Women: a report on eight countries was submitted for the 18th (January-February 1998) Session of the Committee on the Elimination of Discrimination against Women;

-- International Convention on the Elimination of All Forms of Racial Discrimination: a report on 14 countries was submitted to the 53rd (August 1998) Session of the Committee on the Elimination of Racial Discrimination;

-- United Nations Convention on the Rights of the Child: the Office took part actively in the 17th (January 1998), 18th (May-June 1998), and 19th (September-October 1998) Sessions of the Committee on the Rights of the Child, providing information on States under consideration at its corresponding pre-sessional working groups. The United Nations Committee invited States which have not ratified the Minimum Age Convention, 1973 (No. 138) to do so. In addition, the Committee invited States which it had found to be experiencing difficulties in areas falling within the ILO's competence to request the assistance of the Office;

-- The Office was represented at the 9th (February 1998) Meeting of persons chairing the human rights treaty bodies to discuss closer cooperation between the UN treaty bodies and the ILO and, in particular, how to make better use of the information provided in the ILO reports.

B. European Code of Social Security and its Protocol

50. In accordance with the supervisory procedure established under Article 74(4) of the Code, and the arrangements made between the ILO and the Council of Europe, the Committee of Experts examined 17 reports on the application of the European Code of Social Security and, as appropriate, its Protocol. It noted that the States parties to the Code and the Protocol continue in large measure to apply them. At the sitting in which the Committee examined the reports on the European Code of Social Security and its Protocol, the Council of Europe was represented by Ms. Ochoa-Llidó, Chief of the Social Security Unit. The conclusions of the Committee regarding these reports will be sent to the Council of Europe.

51. In addition, a representative of the ILO took part, as technical adviser, in the meeting of the Committee of Experts on Standard-Setting Instruments in the field of Social Security, held in Strasbourg (France) in May 1998, to examine the application of these instruments on the basis of the conclusions of this Committee. As in previous years, this Committee, which is now a competent body within the Council of Europe, endorsed the conclusions of the Committee of Experts.

52. Finally, the Committee was informed that the Netherlands had withdrawn their denunciation of Part VI (Employment injury benefit) of the Code as amended by the Protocol, with effect from 11 March 1998.

C. European Social Charter and Additional Protocol

53. In the context of its collaboration with the Council of Europe, representatives of the ILO participated in the course of 1998, in an advisory capacity, in accordance with article 26 of the European Social Charter, in several sessions of the Committee of Independent Experts responsible for supervising the application of the Charter.

54. Furthermore, since the Committee's last meeting, Slovakia has ratified the European Social Charter; Sweden has ratified the European Social Charter (Revised); Greece and Slovakia have ratified the Additional Protocol to the European Social Charter; Slovakia has ratified the Protocol amending the European Social Charter; Finland, Greece, Portugal and Sweden have ratified the Additional Protocol to the European Social Charter providing for a system of collective complaints, which thus came into force on 1 July 1998.

Collaboration with other international organizations

Cooperation in the field of standards with the United Nations and the specialized agencies

55. In the context of the collaboration established with other international organizations on questions concerning the supervision of the application of universal instruments relating to subjects of common interest, copies of the reports received under article 22 of the Constitution were forwarded to the United Nations, specialized agencies, and intergovernmental organizations with which the ILO has entered into special arrangements for this purpose.

56. Thus, in accordance with established practice, copies of the reports received on the Indigenous and Tribal Populations Convention, 1957 (No. 107), were forwarded for comment to the United Nations, the United Nations Food and Agriculture Organization (FAO), the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the World Health Organization (WHO); copies of these reports were also sent to the Inter-American Indian Institute of the Organization of American States and to the United Nations Centre for Human Rights. Copies of reports on the Radiation Protection Convention, 1960 (No. 115), were transmitted to the International Atomic Energy Agency (IAEA). Copies of reports on the Social Policy (Basic Aims and Standards) Convention, 1962 (No. 117), were sent to FAO, UNESCO and the United Nations. Copies of reports on the Prevention of Accidents (Seafarers) Convention, 1970 (No. 134), were transmitted to the International Maritime Organization (IMO). Copies of reports on the Rural Workers' Organisations Convention, 1975 (No. 141), were forwarded to FAO and the United Nations. Copies of reports on the Human Resources Development Convention, 1975 (No. 142), were sent to UNESCO. Copies of reports on the Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147), were forwarded to IMO. Copies of reports on the Nursing Personnel Convention, 1977 (No. 149), were transmitted to WHO.

57. Representatives of these organizations were also invited to attend the sittings of the Committee of Experts in which the Conventions in question were discussed.

Matters relating to human rights

50th anniversary of the Universal Declaration of Human Rights

58. The year 1998 has been an extremely important one in human rights for the United Nations system and for the ILO in particular. For the United Nations system as a whole, the 50th anniversary of the adoption of the Universal Declaration of Human Rights has provided the occasion for reflection, celebration and re-examination of activities. The Office of the High Commissioner for Human Rights has carried out a number of events during the year and celebrations culminated on 10 December 1998 with events in both New York and Geneva. The Committee notes that several of the events that took place in the course of the year -- in particular the adoption of the ILO Declaration of Fundamental Principles and Rights at Work -- relate directly to this anniversary year. It notes also that the International Labour Standards Department issued a publication entitled "The Universal Declaration of Human Rights and ILO Standards" for the occasion, as well as a special issue of the International Labour Review entitled "Labour Rights, Human Rights", and encourages the Office to continue to make its work on human rights better known.

Declaration of Fundamental Principles and Rights at Work and its Follow-up

59. The Committee notes with interest the adoption of this Declaration by the International Labour Conference at its 86th Session (June 1998), and the discussions which have taken place in the Governing Body on its follow-up. As it noted in its last report (paragraph 79), the Committee "has always welcomed any measures that would strengthen the ILO's ability to promote and protect the fundamental human rights which lie within its mandate, and to help member States to move towards the ratification of the ILO's Conventions on these subjects". It notes that this Declaration and the measures to be taken to give effect to it, will increase the ILO's ability to promote the principles underlying the core Conventions when these instruments have not yet been ratified; and that they provide for a more systematic examination of the needs for and delivery of ILO technical assistance on the matters covered by it. The Committee looks forward to the additional opportunities the operation of the Declaration will give for the effective implementation of fundamental ILO standards, and the principles underlying them. The Committee notes that the follow-up mechanism is not intended to be a substitute for the established supervisory mechanisms nor will it impede their functioning. The Committee notes the need for care to be exercised in this regard and further that action is required to ensure that a consistent and coherent approach with the ILO's established standards and supervisory mechanisms is maintained in practice.

Other human rights issues

60. The Committee will recall that the Governing Body decided, at its March-April 1995 session, to collect information on the ratification situation of the seven ILO Conventions dealing with fundamental human rights (Conventions Nos. 29 and 105, 87 and 98, 100 and 111, and 138) and, at its subsequent sessions, examined reports collating the replies of member States to the Director-General's letter calling for their universal ratification. The Governing Body has also examined reports of the Office's assistance to the member States for the ratification and application of these instruments. The campaign has been a great success, with 100 new ratifications or confirmations of ratifications previously applicable. The campaign continues, and the Office has been notified that a number of other ratifications are likely in the near future. The campaign is expected to be incorporated into the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work.

61. The ILO was asked to contribute, along with other organizations which make up the United Nations system, to a review of the progress accomplished since the World Conference on Human Rights (Vienna, 1993), for the United Nations Commission on Human Rights, the Economic and Social Council and the General Assembly in 1998. This was prepared in cooperation with the United Nations Office of the High Commissioner for Human Rights, and the ILO's report has been communicated to these bodies.

62. In the context of strengthening its technical advisory services on human rights, the Office has maintained collaboration with the United Nations' work through the Office of the High Commissioner for Human Rights. The Office has responded with written replies to the numerous requests for information received from the High Commissioner for Human Rights. It has also -- through its International Training Centre in Turin -- taken part in UN workshops on international human rights instruments reporting and has participated in joint briefing sessions with other United Nations agencies for country or thematic rapporteurs.

63. The Office took part actively in the 54th (March-April 1998) Session of the United Nations Commission on Human Rights, and the 50th (August 1998) Session of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, as well as in several of their subsidiary organs which meet throughout the year, providing written and oral information on relevant ILO standards, procedures and activities.

64. The Committee notes with interest that following a briefing session held in 1997 on the ILO's human rights work, the Office intends to hold another session in February 1999, immediately before the session of the United Nations Commission on Human Rights.

65. Following the General Assembly's proclamation of 1994-2004 as the International Decade of the World's Indigenous People, the Office has contributed to the Decade by organizing its own events and by collaborating with the Office of the High Commissioner for Human Rights. The Office is providing technical support to a Danish-funded project to promote the rights of indigenous and tribal peoples within the framework of relevant ILO standards, in particular Convention No. 169. The ILO is also continuing its work on the indigenous segment of the Guatemalan Peace Plan, signed in Oslo in 1994.

Operational activities and the supervision of international labour standards

66. The Committee has followed with particular interest recent discussions in the International Labour Conference and the Governing Body relating to the place of international labour standards in the Organization. This question concerns not only the question of the Declaration of Fundamental Principles and Rights at Work and its Follow-up, but moreover the role of ILO standards and principles in relation to the execution of the Organization's mandate as a whole. It is relevant to the extremely important debates on the social dimension of globalization and technical cooperation, the follow-up to the Social Summit in Copenhagen in 1995, the developing relations with international financial institutions (the World Bank, the International Monetary Fund and various regional bodies).

67. The Committee's own terms of reference and traditions lead it to consider many aspects of the application of Conventions, including cases where the ILO's technical cooperation might be of help and where evidence is provided of difficulties attributable directly or indirectly to financial crisis or structural adjustment programmes. In this process, it has always endeavoured to bring out the importance of respect for international legal norms at the national level -- both because of the concrete obligations on member States under the ILO Constitution (in particular, articles 19, 22 and 35), and because of the inherent desirability, underlined by the Constitution, of strengthening the roles of law and tripartism as a strategy for achieving the social justice which is the Organization's goal.

68. The Committee takes this opportunity to recall the success of the supervisory procedures of which it is a part. The number of formal cases of progress (where the Committee has expressed satisfaction) -- now over 2,200 in the last 35 years -- underrepresents the positive influence of the ILO's standards and the instances where dialogue among the supervisory bodies, governments and employers' and workers' organizations through the established procedures contributes to positive developments in terms of the Organization's own mandate.

69. The Committee continues to believe in the advantages of conceiving not only fundamental rights but also the whole range of labour standards in the form of judiciously worded instruments which lend themselves to due legal and consultative procedure at the national and international levels in order to promote and monitor their implementation. It commends the observations of all of the supervisory bodies of the ILO as reliable evaluations of the observance of the Organization's norms and as a basic point of reference both inside and outside. Such observations will have an impact ideally both on programming and implementation of the Organization's own operational activities through the active partnership policy and on the Organization's interaction with other international bodies -- which, as the Committee has often seen, can have such a major effect on how the ILO's standards and indeed other aspects of human rights are respected in practice.

Questions concerning the application of Conventions

Application of the Forced Labour Convention, 1930 (No. 29)

70. The Committee refers to paragraphs 94 to 125 of its General Report of last year, in which it examined special reports requested under article 19 of the Constitution on both of the forced labour Conventions, Nos. 29 and 105. It has also carefully noted the discussion in the Conference Committee and in particular the views of the Employer and Worker members as to the question of prison labour: it is aware of the rehabilitational function of prisoners working, as well as the risk of exploitation.

71. In this light, and following the general comments in relation to Article 2(2)(c) of Convention No. 29 in paragraphs 112 to 125 of its General Report of last year, the Committee has formulated a general observation intended to elicit information from all States bound by the Convention, which will supplement what has already been obtained or is asked for in individual comments. The Committee believes that the question of prisoners being, in the words of the Convention, "hired to or placed at the disposal of private individuals, companies or associations" merits fresh attention at the present time, and it intends to return to the matter when responses to its general observation are received.

72. More generally, the Committee notes that the last General Survey on the abolition of forced labour under article 19 of the Constitution was conducted in 1979. It considers that the implementation of these fundamental human rights Conventions is an important issue for the Organization, and one on which the Governing Body might wish to consider scheduling a new General Survey in the near future.

Application of the Seafarers' Identity Documents Convention, 1958 (No. 108)

73. The review of the governments' reports and the specimen identity documents has revealed in some cases a lack of awareness as to the purpose of the identity document and the rights and responsibilities which its issuance entails.

74. The Committee is aware of the tightening of immigration regulations in many regions and the particular problems this can create for seafarers, including those with identity documents issued pursuant to the Convention.

1. Purpose and specificity of the identity document

75. The document issued pursuant to this Convention, regardless of the form chosen (card or booklet), is a seafarers' identity document; it is not a passport. Article 4(2) of the Convention requires that the document contain a statement that it is a seafarers' identity document for the purpose of this Convention. Unlike a passport, which is a national document whose issuance (or refusal), use, possession and restitution are governed by national legislation, the seafarers' identity document is issued by a national authority pursuant to an international Convention. Consequently, it is the provisions of the Convention that govern all aspects of the identity document, unless otherwise provided in the Convention. The seafarers' identity document cannot be subjected to national legislation, in particular concerning, inter alia, passports, travel documents, and exit documents.

76. In exceptional cases where it is impracticable to issue the document to special classes of its seafarers, the Member may issue a passport indicating that its holder is a seafarer, "in which case the passport shall have the same effect as a seafarers' identity document for the purpose of the Convention" (Article 2(1)). Thus, in exceptional circumstances a passport can become a seafarers' identity document, but the opposite is never possible.

77. The identity document is not a travel document per se, and any decision taken by the national authority to include space for notations concerning the purposes set forth in Article 6(2) -- joining the ship, transit, repatriation -- cannot alter the fact that the document remains a seafarers' identity document, and not a passport. Therefore, the Committee considers that any reference to the document as a "passport" should be deleted.

78. The primary purpose of the document is to facilitate temporary shore leave for the seafarer by means of a reciprocally recognized identity document. This is the minimum undertaking of States parties. When the document is used for temporary shore leave, as provided in Article 6(1) of the Convention, it serves as an identity card and a landing card, and is the sole identity document required for this purpose. In many cases ships are at sea for long periods and denial of shore leave would result in severe hardship and intolerable privation for the seafarer who must remain on board when the ship is in port because he lacks the travel documents normally required for foreign visitors. Shore leave, therefore, should be regarded as a special form of temporary entry in recognition of the unique status granted to seafarers, due to the special nature of their calling. It is exceptional both temporally (limited to the brief call of the vessel in port) and spatially (often limited to movement within the area of the port).

79. According to the terms of the Convention, denial of shore leave by local authorities can only take place on an individual basis and presumably for compelling reasons of public order (Article 6(4)). Moreover, any administrative obstacle to taking shore leave, or the imposition of fees or taxes of any kind as a condition for taking shore leave in a State party to the Convention, is a violation of Article 6(1). The Committee further recalls that the purpose of the identity document only concerns conditions of entry as set forth in Article 6 and readmission to the issuing territory as set forth in Article 5; it does not concern exit. Furthermore, although this is not a stated purpose of the Convention, the Committee is aware that in practice possession of the identity document is often a prerequisite to concluding a maritime labour contract.

2. Form and content of the identity document

80. The minimum particulars which the document must contain are set forth in Article 4(3) and can be placed on a card, as is the practice in some countries. The Committee recalls that the identity document was never intended to replace the national passport as an international travel document. It further recalls that, throughout the preparatory works, the document is referred to as a "seafarer's national identity card". The initial requirement of numbered pages (or pages at all) and space for additional entries was ultimately rejected. Notations for purposes other than temporary shore leave (i.e., entry stamps, visas) depend on whether the issuing authority has provided space for such entries (Article 6(2)). For these reasons, the document is not required to be but may be a travel document, according to the form chosen by the issuing authority.

81. In recalling the purpose of the identity document and requirements as to its form, the Committee considers that placing entry stamps or visas in the document and its use for immigration admission or as a travel document to cross international borders are separate and subsidiary questions.

3. Entitlement to the identity document

82. The State party to the Convention is required to issue the identity document to its nationals who are seafarers, regardless of the flag of the ship they sign on. This brings to the fore the status of the citizen as seafarer, and thus entitlement to the identity document.

83. In Article 1(1) the term seafarer is used in a broad and almost generic context to mean generally the personnel on board when the ship is at sea. This vision of the seafarer is both logical and in keeping with the essential purpose of the Convention: to allow the seafarer to take shore leave. Therefore, the concept of seafarer as set forth in paragraph 1 of the Article is to be understood in terms of a functional analysis, and as a general rule to which there may be exceptions, members of the crew are seafarers.

84. The status as a seafarer is not affected by periods of unemployment; rather it is in the nature of the calling of the seafarer to be unemployed between maritime engagements. Article 2(2) authorizes but does not require the authority to issue the identity document to a seafarer registered at an employment office. Thus a seafarer to whom an identity document has been issued, continues to retain the document during periods of unemployment.

85. The Convention allows but does not require a State party to issue identity documents to foreign seafarers.

4. Issuance and possession of the identity document

86. As provided in Article 2(1), seafarers who are nationals shall apply in their personal capacity for the identity document. In this regard, the Committee observes with concern the practice in some States of requiring nationals to apply for the identity document through a national shipowner, thus effectively preventing seafarers from entering into a direct employment relationship with a foreign shipowner. In such situations local shipowners or maritime administrations recruit seafarers and then subcontract them to foreign shipowners.

87. Moreover, certain national legislative/regulatory texts provide for administrative refusal to issue identity documents or for their revocation -- apparently without due process or recourse -- to persons "legally banned" from working on vessels, or "for whom there exist reasons to be refused the issuance of a passport". In this regard, the Committee notes with concern that the refusal to issue documents denies the seafarer the right to work.

88. The terms of Article 3 stipulate that the identity document is to remain in the seafarer's possession at all times. Practices involving surrender of the document to the shipowner, to the port State authorities during shore leave, or to the issuing authority between engagements, are contrary to the Convention. Issuance of the document constitutes recognition by the issuing authority that the holder is a seafarer; as such he is entitled to continuous possession of the identity document and to use it for the purposes set forth in Articles 5 and 6. For both foreigners and nationals, the issuance of a seafarers' identity document confers a right of return to the issuing territory for one year after expiry of the document (Article 5).

5. Use of the identity document

89. The Committee emphasizes that the use of the identity document is distinct and must remain dissociated from the criteria of entitlement, the conditions of issuance, and the right of continuous possession. Whether the document can be used for purposes other than shore leave will depend on the form adopted by the issuing authority, following consultations with shipowners' and seafarers' organizations.

90. With regard to the purpose of the document and its use, the Committee considers that there are fundamental distinctions to be made between entry, admission and travel. Entry occurs once the ship is in the territorial waters of the State. When a merchant ship is in port, the crew has already entered the territory of the State, and is technically subject to its territorial jurisdiction. This principle is well established in international law although, in practice, as regards most situations on-board ship which do not directly affect the port State, it will refrain from exercising its jurisdiction over the vessel. Therefore, shore leave is more a conventional recognition of the principle of jurisdiction, according to which the seafarer is temporarily present in the territory, than a form of immigration admission. It is for this reason that the identity document need not have space for entry stamps or visas. The document in its essence is not intended for "admission" or "international travel", but only for identification of the seafarer to facilitate temporary shore leave. However, when there is space for notations in the document, there is clearly an obligation for the State party to allow entry into its territory for the additional purposes stated in Article 6(2) (transit, transfer, repatriation).

Application of the Employment Policy Convention, 1964 (No. 122)

91. This year the Committee began its examination of reports on the application of this Convention for the period 1996-98. As in the past, it has been able to draw on the analyses done by the ILO's Employment and Training Department (whose Director addressed the Committee at its invitation) and the employment specialists of the multidisciplinary advisory teams. It has also, where possible and appropriate, used the information provided by the States parties to Convention No. 122 in their reports which were also due this year on closely related Conventions, such as the Unemployment Convention, 1919 (No. 2), the Employment Service Convention, 1948 (No. 88), and the Human Resources Development Convention, 1975 (No. 142).

92. The fruitful dialogue that took place this year in the Conference Committee demonstrates the attachment of the social partners to seeking more effective means of applying Convention No. 122. The Committee for its part will continue, in its individual comments, to contribute to the public debate on employment, both at national and international levels, duly taking into consideration the views expressed in the Conference Committee. In this respect, the Committee notes in particular the concern expressed in the Conference Committee with regard to the impact on employment of the crisis in East and South-East Asia, and the call made to the Committee of Experts to monitor closely the effects of that crisis on the application of the Convention and other standards. It also notes the interest shown by the Conference Committee in the changes in employment policies in the countries of the European Union in preparation for economic and monetary union.

93. The Committee recalls that the Convention is in force in several Asian countries directly affected by the rapid rise in unemployment, underemployment and poverty resulting from the financial crisis. It notes that the High-Level Meeting which took place in Bangkok in April 1998 at the invitation of the ILO identified in its recommendations certain priority areas for action to mitigate the social consequences of the crisis and to create conditions for lasting recovery, particularly by improving the capacity of governments to design and implement active employment policies through closer cooperation between Ministries of Labour and those responsible for economic matters, boosting investment in human resources development, and recognizing the importance of the role of public employment services in the redeployment of workers who lose their jobs. The Meeting also emphasized that it is essential to maintain or establish sufficient protection in relation to incomes and essential social services, and considered that this issue should be included in the dialogue with the international financial institutions. Lastly, the Meeting highlighted the need for extensive tripartite dialogue at the national level covering the full range of economic and social policy choices. The Committee observes that these recommendations are entirely consonant with the fundamental provisions of the Convention with regard to the integration of employment policy into a coordinated social and economic policy and the consultation of the representatives of those affected by the measures to be taken. The Committee considers that the implementation of these recommendations should encourage the full application of the Convention under particularly difficult circumstances. In examining the report of Thailand, the Committee noted the efforts made to coordinate the various measures taken to combat the rise in unemployment and mitigate the attendant social consequences. The Committee will not fail to continue paying close attention to the policies adopted by these countries to overcome the crisis.

94. The Committee cannot fail to be aware of the consequences on the application of the Convention of the progress achieved by the Member States of the European Union towards the achievement of their project of economic and monetary union; in particular, it cannot fail to be aware of the consequences for employment policy of the transfer in some of those countries of control over monetary policy to a central independent European bank, or of the strict limits which they have set themselves in the area of budget policy. The Committee notes that the extraordinary European Council on Employment, which was held in Luxembourg in November 1997, emphasized the need for a coordinated macroeconomic policy and for systematic mobilization of Community policies to promote employment. The Committee also notes the adoption, through the Council resolution of 15 December 1997, of the "Employment guidelines" to be incorporated into the "national employment action plans" of each Member State. The Committee notes with interest the initial assessments of the application of these national plans which a number of governments have attached to their reports on the application of the Convention.

95. The Committee this year also examined several reports from countries in Latin America who have reported overall improvements in economic indicators, as well as persistent difficulties in improving the employment situation, especially in the formal sector. As in other developing regions, the informal sector is a major source of employment, especially for the most vulnerable population groups, such as young people, workers made redundant as a result of public sector restructuring and indigenous peoples. The Committee will continue to monitor closely the manner in which representatives of the informal sector are involved in the formulation and implementation of employment policy with the aim of seeking, through the process of consultation provided for in Article 3 of the Convention, socially acceptable solutions to the problems associated with the existence of a large informal sector.

96. The Committee has long observed that many reports describe measures aimed at encouraging job creation or facilitating the integration of informal employment into the formal sector by promoting small and medium-sized enterprises. It is therefore bound to welcome the adoption by the International Labour Conference of the Job Creation in Small and Medium-Sized Enterprises Recommendation, 1998 (No. 189). In emphasizing the indisputable role of private initiative in the creation of jobs and the need for the public authorities to maintain a climate that is conducive to the development and growth of enterprises, which very often make the most significant contribution to the promotion of employment, the Conference has made a valuable addition to the existing employment policy instruments. The Committee trusts that member States will take account of this Recommendation and include appropriate measures in their employment promotion policies.

97. The Committee notes with interest the World Employment Report, 1998-99 presented to it by its chief editor. The report is the third in the series, and this year considers the crucial role of training for the employability of workers in the context of globalization. The Committee notes that the technical analyses contained in the report, especially those dealing with the training strategies most likely to promote productive employment for the most vulnerable categories of the active population, confirm the importance of giving full effect to all the international labour standards relating to employment and training. The Committee recognizes the most useful contribution that the technical assistance of the ILO makes to member States in this regard, in particular the activities undertaken within the framework of the programme "More and Better Jobs for Women". The Committee sees this as further confirmation of its own conviction that full, productive and freely chosen employment is as essential to economic growth as it is to social justice.

Application of the Indigenous and Tribal Peoples Convention, 1989 (No. 169)

98. Since it came into force on 5 September 1991, 13 ratifications of this important Convention have been registered. During 1998 there have been three ratifications, by Ecuador, Fiji and the Netherlands, and others are expected in the near future.

99. Convention No. 169 is the most comprehensive instrument of international law for the protection in law and in practice of the right of indigenous and tribal peoples to preserve their own laws and customs within the national societies in which they live. They have the right under the Convention to decide on the orientation and conduct of their economic development, and the right to the ownership and possession of their lands; to strengthen their social organization and their educational and health programmes as well as communication with the national society; and to guarantee adequate political participation taking into account their own legal personality.

100. As the Committee has pointed out in its comments on specific situations in different countries, this Convention -- like other ILO instruments -- establishes minimum rights which must be respected and put into practice by the States which ratify it, with a view to the protection of the 300 million members of indigenous and tribal peoples acknowledged to exist around the world. The application of the Convention is extremely complex and may have a profound impact which may go even to the heart of the constitutional order of ratifying States. Its ratification may imply the adoption of new national standards, or the adaptation of existing standards to define under the Convention a new relation between governments and national societies with indigenous and tribal peoples. One of the fundamental precepts of this Convention is that a relationship of respect should be established between indigenous and tribal 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.

101. It is important to note that the Convention has also had a great influence in many countries even before its ratification. For example, it served as a point of reference for the conclusion of a peace agreement and the signing of a specific accord on the dignity and rights of the indigenous peoples of Guatemala. It has also helped to orient, or to serve as a point of reference, for discussions on the situation of indigenous and tribal peoples in other countries. Finally, the Convention has also had a significant impact on other instruments of international law and in other international organizations, in particular in the United Nations Commission on Human Rights' discussion of a possible draft declaration of indigenous rights and, in the Americas, in the discussion of a new instrument on indigenous rights by the Inter-American Institute of Human Rights of the Organization of American States.

102. Another important point is that the Convention has served as guidance for a number of decisions of several supreme courts in the Americas. This has illustrated the capacity of the Convention to influence the positive law of these countries and to help modify the relations of power in the political dialogue between the indigenous and tribal peoples and national governments. It may be noted in this respect that since 1996, four representations under article 24 of the ILO Constitution have been submitted alleging failure to observe the provisions of the Convention in several countries. This demonstrates an increasing tendency for the Convention to be a valuable instrument for the protection of the rights of these vulnerable peoples.

Application of Conventions on child labour

103. The Committee notes that, at the International Labour Conference in June 1998, a first discussion took place with a view to the adoption of new instruments concerning the prohibition and immediate elimination of the worst forms of child labour. It considers that the Global March against Child Labour, which arrived at the Conference on its first day, was an indisputable demonstration of the increasing international awareness of the child labour problem and high expectations of the ILO in tackling it.

104. The Committee notes from the first discussion on the new instruments on the worst forms of child labour that the intention of the ILO constituents is not to revise or replace the existing Conventions on the subject, but to complement them by focusing on the immediate elimination of the worst forms of child labour as a priority. Consequently, there is no need to suspend or slow down any ongoing efforts to ratify or apply existing instruments on child labour: on the contrary, improvements in this respect undoubtedly have a positive impact on the scourge of child labour as a whole.

105. In examining the application of the Conventions on minimum age for employment or work by individual ratifying States, the Committee has been attaching importance to their application in practice, even where national laws and regulations ensure legislative conformity with the provisions of the Conventions. However, the Committee has noted that a number of governments indicate in their reports that no contravention of the provisions of minimum age has been reported in the undertakings covered by the Convention, while information from other sources would point to the existence of child labour in the country in question. Governments' attention is drawn to the fact that the minimum age Conventions of the ILO apply not only to the waged employment of children under a formal contract in the organized sector, but also to any other economic activity, including self-employment, within the respective scope of the Conventions subject only to the specific exceptions permitted.

106. The Committee understands the difficulty in ensuring the application of the Conventions in this wide perspective, since a mere stipulation of minimum age for employment in the labour legislation does not suffice. That is why the Committee highly appreciates information on a wide range of practical measures taken, including for the development and extension of basic education, given their importance in ensuring the practical application of any of the minimum age Conventions. Recalling that one of the main demands of the Global March was "education instead of exploitation", the Committee would draw the attention of the member States and the social partners to the significance of the provision of education in the fight against child labour. It is convinced that the existing ILO standards concerning child labour and the supervisory mechanism, if utilized to the maximum, can also contribute a driving force in this direction.

107. Recalling its previous concern at the lack of accurate and reliable information on the actual situation of child labour, which has not yet been eradicated, the Committee again urges on the tripartite constituents of the ILO their increased involvement in overseeing the application of Conventions relevant to child labour, and in particular those concerning minimum age. It also urges the governments to ensure that labour inspection is carried out efficiently and effectively so as to detect and eradicate child labour. The Committee renews its hope that the supervisory activities relating to international labour standards regarding child labour will contribute further to national and international endeavours to eradicate child labour effectively.

Application of Conventions in export processing zones and enterprises

108. In its last report, the Committee had noted the work undertaken by the Special Action Programme created to consider labour and social issues relating to export processing zones. It looked forward to learning of the findings and conclusions of the Action Programme, in particular so far as the clarification and guarantee of the implementation of ratified Conventions in the zones are concerned.

109. The Committee notes with interest the report prepared by the Action Programme on Labour and social issues relating to export processing zones, as well as the report on the deliberations of the Tripartite Meeting of Export Processing Zones -- Operating Countries held in Geneva from 28 September to 2 October 1998 and its conclusions concerning priorities and guidelines for improving social and labour conditions in EPZs. It further notes the section on labour standards in the conclusions to this meeting which reaffirms the importance of respect for both international and national labour standards within EPZs and proposes strengthened labour inspectorates, information dissemination and awareness-raising programmes to ensure better compliance of these standards. Emphasis was also placed on the importance of tripartite consultations and dialogue at all levels. The meeting called upon the ILO to develop advisory services and technical assistance projects to assist EPZ-operating countries in improving labour and social conditions in EPZs and to provide all possible assistance to these countries when difficulties are encountered in fully respecting the fundamental rights set forth in the Declaration on Fundamental Principles and Rights at Work and its Follow-up, 1998.

110. The Committee welcomes the support given to the implementation of international labour standards in EPZs through the work undertaken by the Action Programme. It notes with particular interest from the report on Labour and social issues relating to export processing zones that very few countries continue to openly and officially exclude zones from the national labour legislation. There appears to remain, however, an important disparity between the de jure and the de facto application of labour standards in EPZs. For example, where the right to organize and to bargain collectively have the force of law in the EPZs of certain countries, many workers' organizations complained of being denied access to zones by security personnel and of other important obstacles to their ability to organize EPZ workers. Thus, the conclusions of the tripartite meeting emphasized the importance of improving labour-management relations and promoting collective bargaining machinery in EPZs. The Committee draws the attention of those governments which have ratified 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), to the importance of ensuring both a de facto and a de jure application of these Conventions in EPZs.

111. The tripartite meeting also took particular note of the high proportion of women being employed in EPZs and the frequent absence of sufficient measures to address adequately their needs as workers. In light of this fact, guidelines were drafted by the meeting with a view to ensuring equality in opportunity and employment, to providing adequate maternity protection and to facilitating the combination of work with family responsibilities. The Committee wishes to draw special attention to the important role which can be played in this regard by the standards set out in the Equal Remuneration Convention, 1951 (No. 100), the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and the Workers with Family Responsibilities Convention, 1981 (No. 156). It encourages those governments of export processing zones-operating countries which have ratified these Conventions to make particular efforts to ensure their full application within the zones. The Committee would, moreover, invite those countries which have not yet ratified these Conventions to give serious consideration to doing so.

112. The Committee has taken careful note of the views expressed in the Conference Committee in respect of export processing zones generally and as concerns the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), within the context of a globalizing world economy. It continues to take into account particular information received from governments as to the application of individual Conventions in EPZs. It encourages the governments concerned to continue to supply details in this respect and would invite both employers' and workers' organizations to communicate any observations they might deem appropriate.

III. 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

113. The Governing Body decided at its 264th Session (November 1995), in the context of its discussion of the strengthening of the ILO's supervisory machinery, that the special procedure under article 19 of the Constitution for the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), would be extended to all seven basic ILO human rights instruments. (Endnote 2) This procedure was used last year for the Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105). Accordingly, reports were requested this year from all the countries which had not yet ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). This procedure is intended to allow an examination outside the context of the General Surveys also conducted under article 19 of the Constitution of the obstacles to ratification of these fundamental instruments, the prospects for their ratification, and the difficulties encountered in the absence of ratification.

114. This procedure has been carried out in conjunction with the campaign launched in May 1995 by the Director-General for the ratification of these seven fundamental Conventions and with the urgent appeal for ratification launched by the Committee in 1998 on the occasion of the 50th anniversary of Convention No. 87. As a result, the procedure is able to make use of the information obtained through these other initiatives. The procedure was to be carried out every year for each of the seven fundamental Conventions in turn; however, the Committee notes that this procedure will be replaced in the context of the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work adopted during the 86th Session of the International Labour Conference. In this regard, the Committee expresses the hope that the follow-up mechanism provided for in the Declaration will facilitate the continuation of the positive results recorded in the past few years concerning the ratification of fundamental Conventions, and particularly the freedom of association Conventions.

Ratification of the freedom of association Conventions

115. Conventions Nos. 87 and 98, which are the fundamental freedom of association instruments, have both received a large number of ratifications. Nevertheless, a significant number of the ILO's member States have not ratified Convention No. 87 (about 30 per cent of member States) or Convention No. 98 (about 20 per cent of member States). To date, Convention No. 87 has received 122 ratifications, while Convention No. 98 has received 139. Of those numbers, 13 and 16 countries respectively have accepted the obligations ensuing from those instruments since the 1994 General Survey on freedom of association and collective bargaining, either because they have ratified the instruments or because they have confirmed obligations which applied to them before they became independent States. These countries are:

-- Convention No. 87: Botswana, Chile, (Endnote 3) Estonia, Grenada, Indonesia, Lithuania, Republic of Moldova, Mozambique, Namibia, South Africa, Sri Lanka, The former Yugoslav Republic of Macedonia, Turkmenistan and Zambia;

-- Convention No. 98: Botswana, Burundi, Chile, Estonia, Georgia, Madagascar, Republic of Moldova, Mozambique, Namibia, Nepal, South Africa, Suriname, The former Yugoslav Republic of Macedonia, Turkmenistan, Uzbekistan, Zambia and Zimbabwe.

The Committee particularly welcomes the most recent ratification of Convention No. 87, by Indonesia on 9 June 1998, which will affect tens of millions of workers.

116. The progress that has been made in the number of ratifications of these two fundamental Conventions is a positive aspect, but the Committee is bound to regret the fact that 52 States that have been Members of the ILO for more than 20 years have still not ratified Convention No. 87 and/or Convention No. 98. (Endnote 4) Furthermore, the Committee once again expresses its concern over the fact that an important number of the most populated countries have not yet ratified these fundamental Conventions, affecting approximately half of the workers and employers worldwide. In addition, the Committee notes that in most cases these countries represent international or at least regional economic powers. The Committee deplores that some of these countries do not mention any obstacles to ratification but yet do not indicate envisaging any steps towards ratification of these Conventions, which can only detract from the efforts to promote ratification in the rest of the world.

Information available

117. Reports have been received from 25 of the 52 countries that have not ratified Convention No. 87 and from 19 of the 35 countries that have not ratified Convention No. 98 (see list in the appendix). Some information comes from the replies provided by governments in response to the ratification campaign. Thus, information is available on 44 countries in the case of Convention No. 87 and on 30 countries in the case of Convention No. 98. The Committee regrets that certain countries that have not ratified one or both of these instruments have not sent any report or information in any other form. These countries are: Convention No. 87: Afghanistan, Equatorial Guinea, Gambia, Libyan Arab Jamahiriya, Solomon Islands, Somalia, Uzbekistan; Convention No. 98: Afghanistan, Equatorial Guinea, Gambia, Solomon Islands.

118. The Committee notes that in most cases, the information provided by governments was quite detailed and gave a reasonably detailed picture of the state of national legislation and practice with regard to the areas covered by the Conventions and the application of the principles of freedom of association. Nevertheless, the Committee regrets that certain countries provide no information in their reports on their intentions regarding ratification, the difficulties that are preventing or delaying ratification, or the reasons for which they oppose ratification. The Committee recalls that the technical assistance of the ILO is always available, but that governments should indicate clearly the obstacles they face as well as their actual intentions with regard to ratification of these fundamental Conventions.

119. The Committee welcomes the fact that, by contrast with last year, certain employers' and workers' organizations have provided information on the reports submitted by governments under article 23, paragraph 2, of the Constitution. They include, workers' organizations in the following countries: Brazil, Republic of Korea, New Zealand, United States. Furthermore, the Committee notes that the International Confederation of Free Trade Unions (ICFTU) has sent comments on the following countries: Bahrain, Canada, China, Equatorial Guinea, Islamic Republic of Iran, Libyan Arab Jamahiriya, Myanmar, Oman, Qatar, Saudi Arabia, Sudan, Thailand, United Arab Emirates and Viet Nam. An employers' organization in Mauritius has also sent comments. The Committee recalls that, while it is for employers' and workers' organizations to judge whether or not it is appropriate to provide information, the Committee's task of examining the possible consequences of failure to ratify in the countries concerned is bound to be made easier when this information is provided.

120. Since the launch by the Director-General in 1995 of the campaign to promote ratification of the fundamental Conventions, the Committee has noted with interest that the ILO has carried out numerous promotional activities. These activities have included seminars to promote ratification of Convention No. 87 and/or Convention No. 98 in the following countries: Madagascar (1995), Zambia (1995), Zimbabwe (1995), Mauritius (1996), Democratic Republic of the Congo (formerly Zaire, 1996), Kenya (1997 and 1998), Uganda (1997 and 1998), United Republic of Tanzania (1997 and 1998), India (1998). Other seminars will be organized soon in Brazil and Morocco.

Ratification prospects

Ratifications in progress or considered

121. Certain governments have indicated that ratification is under way and may be expected soon: Convention No. 87: Angola (ratification under way); Cape Verde (ratification under way); Zimbabwe (recommendation to ratify submitted to Parliament); Convention No. 98: Congo (procedure for submission to the competent authorities is under way). Other governments have indicated that they see no obstacle to ratification and that the process should be initiated in the very near future or that recommendations to that effect will be made: Convention No. 87: Cambodia (recommendation submitted to the Prime Minister in March 1998); Kazakhstan (a draft agreement between the Government and employers' associations provides for ratification of the Convention and preparatory work on ratification has begun); Lao People's Democratic Republic (recommendation of the Labour Ministry submitted to the Government in January 1997); Malawi (ratification should get under way once tripartite consultations have been completed); Papua New Guinea (examination of ratification has started); Convention No. 98: Mauritania (a bill to ratify the Convention has been submitted to the Government and was to have been submitted to Parliament during its May-June 1997 session; there have to date been no further indications of any measures taken); Seychelles (the Convention will be ratified soon); Switzerland (the draft recommendation on ratification has been transmitted to the Federal Council which will decide whether or not to propose ratification to Parliament). Lastly, one Government (Fiji) has indicated that the recommendation to ratify Convention No. 87 should be adopted before the end of the year, while another Government (Bahamas), which in 1995 indicated its intention to ratify Convention No. 87 before 1997, has provided no further information on the measures that it has taken.

Obstacles to ratification mentioned by governments

122. The following countries have simply indicated that they are examining ratification, with no indication being given of any difficulties they may be encountering: Convention No. 87: Armenia, Democratic Republic of the Congo, Georgia, Oman, Saint Kitts and Nevis, Saint Vincent and the Grenadines, Sudan, United Republic of Tanzania. With regard to Sudan, the ICFTU has supplied information according to which the 1997 Trade Unions Act provides for a single trade union system and allows the public authorities to interfere to a considerable degree in the internal affairs of trade unions and to dissolve them in an arbitrary way. Convention No. 98: Armenia, Myanmar. With regard to Myanmar, the ICFTU has sent comments to the effect that there is no legal framework in the country for protecting workers against acts of anti-union discrimination or for protecting the right to collective bargaining.

123. Certain governments have provided general indications that legislation needs to be brought into line with these Conventions before ratification, without giving more precise information: Convention No. 87: Islamic Republic of Iran, Jordan. With regard to the Islamic Republic of Iran, the ICFTU has provided information according to which independent trade unions are prohibited in the Islamic Republic of Iran. The Labour Code provides that workers can establish Islamic labour committees, but the rules of these committees are drawn up by the Ministry of the Interior. Furthermore, the ICFTU indicates that the Government can dismiss and detain strikers and use the police to end strikes. Following the comments made by the ICFTU, the Government indicated that these allegations were not substantiated and that the ICFTU was confusing trade unions with associations, and particularly Islamic associations. Furthermore, the Government indicated that independent trade unions do exist in Iran and that the right to strike is being exercised as it shows from the agreement reached following a collective labour dispute in an oil refinery in Teheran. Convention No. 98: Kuwait.

124. Several governments have mentioned more substantial problems in the way of ratification. These fall into several categories, which are described below.

Convention No. 87

Absence of any workers' trade union

125. The following governments have not referred to the existence of any workers' trade union in their respective countries: Oman, Qatar, Saudi Arabia, United Arab Emirates. They have also provided the following observations.

126. The Government of Saudi Arabia indicates that there is no national legislation or practice for applying the provisions of the Convention. Furthermore, the Government has expressed no views regarding possible future ratification. The ICFTU has supplied information according to which trade unions, strikes and collective bargaining are prohibited under penalty of imprisonment, or expulsion from the country in the case of foreign workers.

127. The Government of the United Arab Emirates has indicated that the technical committee set up to examine ratification has not recommended it. The ICFTU has supplied information according to which there are no trade unions in the country and the right to organize is not provided for by the law.

128. The Government of Qatar has drawn attention to problems connected with the country's demographic situation and with the fact that its labour force is concentrated in the public sector. The Government has not, however, provided any indication of its intentions with regard to possible ratification. The ICFTU has provided information according to which trade unions are prohibited in Qatar. While the law allows the establishment of joint consultative committees, wages are generally fixed unilaterally by the employers.

129. The Government of Oman has not provided any information. The ICFTU has provided information according to which there are no trade unions in Oman and strikes have been strictly prohibited since 1973.

Trade union monopoly and denial of the right to establish the organization of one's own choosing without previous authorization

130. The Government of Brazil has indicated among other things that one provision in the Brazilian Constitution creates difficulties with regard to the Convention, in that it prescribes a single trade union system at branch level. In this regard, the Government has submitted to the National Congress a draft constitutional amendment which could open the way to future ratification.

131. The Government of Lebanon has indicated the existence of numerous discrepancies between national legislation and the Convention, in particular the fact that trade unions are required to obtain prior authorization before being set up and the fact that legislation permits the administrative dissolution of a trade union. Ratification will not be possible until these provisions are amended. In this respect, the Committee reminds the Government that it can draw on the ILO's technical assistance with a view to ensuring that any future changes to legislation take account of the provisions of the Convention.

132. The Government of Viet Nam has indicated that its national legislation contains certain provisions that are incompatible with the Convention, in particular the fact that a trade union is required to obtain prior authorization from the competent authority before being set up. The Government indicates further that no amendment to the legislation is planned and ratification will be examined at the appropriate time. The ICFTU has provided information according to which any trade union must be affiliated to the central trade union which is itself affiliated to the sole political party in power.

Restrictions for certain categories of workers and sectors of activity

133. The Government of El Salvador has indicated that a number of provisions in its national legislation pose problems with regard to the Convention. It points out, firstly, that the Constitution stipulates that public servants do not have the right to organize. Furthermore, under the Constitution only El Salvadorian nationals may hold trade union office. Lastly, the Government draws attention to the case of the armed forces and police, which are covered by special texts. The Committee recalls that it has already drawn the Government's attention to the fact that, under the terms of Article 9 of the Convention, the extent to which the guarantees provided for in the Convention apply to the armed forces and the police is to be determined by national laws and regulations. Consequently, States ratifying the Convention may decide on the extent to which such persons shall enjoy the right to organize, if at all. The Government gives no indication of the measures it intends to take to improve the application of the Convention or of its position with regard to future ratification.

134. The Government of India has indicated that its national legislation is broadly in conformity with the provisions of the Convention. Nevertheless, one problem remains in the sense that legislation draws a distinction between public servants and other workers, and the former are defined in very broad terms and face numerous restrictions in respect of their right to organize and collective bargaining. However, these restrictions have been ruled to be constitutionally valid by the Supreme Court, which took into consideration the fact that public servants enjoy a high degree of job security and can avail themselves of special mechanisms for settling disputes. In addition, the Government explains that in response to a request for technical assistance from the ILO, a tripartite seminar aimed at eliminating obstacles to ratification took place in May 1998. Following this seminar, the Government indicated that it planned to take the necessary measures to eliminate the legislative obstacles preventing ratification.

135. The Government of Malaysia, referring to its earlier comments, indicates that the main difficulty preventing the ratification of the Convention is that it would allow the formation of general unions which might be led by persons having nothing to do with the activities or interests represented by the unions and pursuing political or even subversive aims. As regards the political activities of the trade union movement, the Committee recalls that when trade unions, in accordance with the law and practice of their respective countries and following a decision of their members, decide to establish relations with a political party or to undertake constitutional political action as a means toward the advancement of their economic and social objectives, such political relations or actions should not be of such a nature as to compromise the continuance of the trade union movement or its social or economic functions. However, the Committee also recalls that it is possible to adopt provisions to promote democratic principles within trade unions or to ensure the proper conduct of the election process, with respect for members' rights, and that provisions of this kind do not involve any violation of the principles of freedom of association as long as they are not so detailed as to allow undue control by the authorities.

136. The Government of Morocco has indicated that national legislation stipulates that only Moroccan nationals may stand for trade union office and that certain public officials are excluded from the right to organize. However, the Government points out that, following the joint Declaration signed by the social partners in August 1996, the ratification process should begin very shortly. Noting that the Government has already raised the matter of nationality as a condition of eligibility for trade union office, the Committee once again points out that a formula which would allow a certain amount of flexibility would overcome this minor difficulty.

137. The Government of the Republic of Korea has indicated that its national legislation provides for restrictions on the right to organize of public officials and teachers, which prevents ratification of the Convention in the short term. However, the Government is examining an approach which would allow a gradual extension of these rights to the categories of workers in question, thereby assuring greater conformity with the provisions of the Convention. In this regard, the Committee recalls that the ILO can offer its technical assistance. The Federation of Korean Trade Unions (FKTU) has provided observations according to which the right to organize is not fully guaranteed to public sector workers and the list of essential services for which restrictions on the right to strike apply is defined very broadly.

138. The Government of Nepal has indicated that certain provisions of the Act concerning public servants are not in conformity with the principles set out in the Convention. However, the Government also indicates that it is about to begin consultations with the parties concerned with a view to eventual ratification. The Committee recalls in this regard that the ILO can offer technical assistance.

139. The Government of Thailand has indicated that a number of provisions in its national legislation create problems with regard to the Convention. Among other things, the Government has pointed out that public servants do not have the right to organize and only Thai nationals enjoy freedom of association. Amendments to bring legislation more into line with the Convention were submitted to Parliament in December 1996. The text in question was submitted to the Chamber of Representatives in January 1998 and adopted in September 1998. However, it has since been declared unconstitutional by the Constitutional Court. Furthermore, the ICFTU has provided information according to which the 1991 Act concerning industrial relations in public enterprises abolished all trade unions for civil servants.

The right to strike

140. The Government of Eritrea has indicated that certain restrictions on the right to strike are imposed by national legislation. The Government has also acknowledged that public officials and domestic staff are not covered by the legislation and therefore do not have the right to organize. However, the Government also points out that legislation in these areas is about to be reviewed.

141. The Government of New Zealand has indicated that, while in its view the labour relations legislation passed in 1991 is to a very large extent in conformity with the provisions of the Convention, it allows employees total freedom in deciding whether or not to join an association and which one. The Government also indicates that although the right to strike exists, there may be difficulties with regard to certain restrictions in this area, in particular the prohibition of strikes which a union might wish to declare to enforce the application of a collective agreement at a number of enterprises. The Government indicates that it does not plan to amend legislation for the time being. The New Zealand Employers' Federation (NZEF) has provided comments to the effect that the principles of freedom of association have been better respected since the adoption of the 1991 Act concerning employment agreements, because workers are able to choose freely whether or not to join an association. On the other hand, the New Zealand Council of Trade Unions (NZCTU) has expressed regret that no legislative amendment has been made to the 1991 Act. The NZCTU considers that the Government has not acted on the recommendations of the Committee on Freedom of Association concerning a complaint which it presented in 1993. Furthermore, the NZCTU has provided copies of recent New Zealand jurisprudence which in its view shows that the 1991 Act does not encourage or promote the principles of freedom of association. It also points out that the Act provides for certain restrictions on the right to strike.

Other information

142. The Government of China has indicated that it regards the provisions of national legislation in this area as being consistent with the fundamental principles of the Convention. It points out that the trade unions are mass organizations of the working class which must abide by the Constitution and the law and dedicate themselves to the unity of the country and the nation. The Government has indicated that, because of the particular historical and cultural circumstances of China, it prefers to adopt a gradual approach towards achieving greater conformity with the principles of freedom of association and eventual ratification of the Convention. The ICFTU has provided information according to which the 1992 Trade Unions Act prohibits the establishment of trade unions independent of the public authorities and the sole political party and provides for a single trade union system. This Act makes no mention of the right to strike which, moreover, is no longer recognized by the Constitution of 1982. Lastly, the ICFTU indicates that the 1995 Labour Code provides for serious restrictions to free collective bargaining.

143. The Government of the United States has indicated that under the terms of the Constitution, workers and employers have the right to set up organizations, without prior authorization or interference by the Government. The principal mechanism for the settlement of disputes lies in the obligation of both parties to bargain in good faith, with the option of assistance from the Federal Mediation and Conciliation Service. The Government indicates that, while there has been no recent in-depth tripartite analysis of the Convention, federal legislation appears by and large to be compatible with the Convention and that no further measures, including with regard to ratification, are planned. The draft report of the Government was examined by the Tripartite Advisory Panel on International Labor Standards (TAPILS). On the other hand, one workers' organization, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), has expressed regret at the substantial decline in trade union membership among workers in the United States, which it said was due to the refusal by many American employers to fulfil their legal obligations regarding trade unions. It also mentions the growth of a "management consultancy" industry which has an annual turnover of US$300 million and advises companies on remaining "union free".

144. The Government of Iraq, contrary to its earlier reply in 1993, has indicated that ratification of the Convention is not possible because its provisions are not covered by national legislation, and that it intends to take steps towards the adoption of legislation with a view to future ratification.

145. The Government of Kenya has indicated that an in-depth reform of national labour relations legislation is under way. In this regard, the Government points out that it has just requested technical assistance from the ILO.

146. The Government of Mauritius has indicated that certain impediments to ratification were identified in the country's legislation at a tripartite seminar that took place in October 1996 with the technical assistance of the ILO. These impediments include the discretionary power of the competent authority to refuse to register a trade union, which is tantamount to prior authorization for setting up a trade union organization. A draft revision of the Labour Code taking into account the provisions of the Convention and drawn up with the ILO's assistance is currently being studied. In addition, the Mauritius Employers' Federation considers that certain provisions of national legislation are not compatible with Articles 2, 3 and 4 of the Convention.

147. The Government of Uganda has indicated that the provisions of Convention No. 87 have been introduced into the Constitution and that efforts have been made to incorporate those provisions in national legislation. Nevertheless, the Government states that there are still difficulties impeding full application of the Convention (in particular problems relating to logistics and infrastructure) and provides no further indication of its intentions with regard to ratification. The Committee notes that the Government has been provided with technical assistance to organize seminars on the problems that may arise from ratification of the Convention.

148. The Government of Singapore has indicated that national legislation and practice are broadly compatible with the provisions of the Conventions and that, given that the existing system provides adequate rights for workers' and employers' organizations, no amendment to the legislation is planned for the future. The Government has not stated its position with regard to future ratification.

149. The Government of Zimbabwe has indicated that the "Harmonization Labour Bill" was intended to harmonize all industrial relations laws in order to ensure that public sector workers enjoyed the same rights as workers in the private sector. However, the Government has not adopted any position with regard to possible future ratification. Furthermore, the Committee notes with interest that Zimbabwe recently ratified Convention No. 98.

Convention No. 98

Anti-union discrimination

150. The Government of Thailand has indicated that national legislation does not provide adequate protection against acts of anti-union discrimination under the terms of the Convention. Furthermore, the Government repeats for Convention No. 98 the information given on the examination of its legislation with regard to Convention No. 87, thereby indicating that there are still certain obstacles to ratification at this stage.

Restrictions on collective bargaining

151. The Government of New Zealand has indicated that the 1991 Act concerning employment agreements to a large extent conforms to the provisions of the Convention. The Government recalls that it has introduced a system in which the parties are free to negotiate conditions of employment collectively or individually, which might give rise to disputes. The New Zealand Council of Trade Unions (NZCTU) considers that certain provisions of the 1991 Act constitute fundamental restrictions on the right of collective bargaining.

Other information

152. The Government of Saudi Arabia, while indicating that there is no national legislation or practice for the application of the Convention, indicates that the Labour Code, which is inspired by the principles of sharia law, includes provisions which encourage negotiations between the parties where disputes arise. The ICFTU has provided information according to which collective bargaining is prohibited in the country.

153. The Government of Bahrain has indicated that the Labour Code and numerous Ministerial Orders have been based on the Convention and affirm the right of collective bargaining in all branches of economic activity. The Government considers that national legislation covers every aspect of the questions dealt with by the Convention and, bearing in mind the specific employment conditions prevailing in the country, there is no need to ratify the Convention or apply its provisions. The ICFTU has provided information according to which trade unions are banned in Bahrain. It points out that the right to organize and the right to collective bargaining are not mentioned anywhere in the Labour Code and that the law provides only for a system of consultative labour committees which can only be established with the authorization of the Government.

154. The Government of Canada has indicated that legislation in force at different levels of government is essentially in conformity with the fundamental provisions of the Convention. However, it recalls that, in accordance with a long-established practice with regard to instruments dealing with matters that come under both federal and provincial/territorial jurisdiction, ILO Conventions are ratified only when all the authorities concerned are in favour of so doing. The Governments of Alberta, Nova Scotia, Newfoundland and Ontario indicated that their legislations are not compatible with certain provisions of the Convention and that they did not intend to introduce legislative amendments. The Government of Ontario, for example, states that in its view Articles 4 and 5 of Convention No. 98 do not adequately define which workers and types of employment should be excluded from the right to organize and collective bargaining and that it therefore opposes ratification. The ICFTU has provided information according to which the Canadian authorities, both at federal and provincial levels, have had recourse since 1991 to a number of laws which restrict the right to collective bargaining.

155. The Government of China has indicated that it has introduced the practice of collective bargaining as well as a system of tripartite consultation. The Government also indicates that the number of collective agreements concluded with enterprises is increasing each year. In 1997, for example, collective agreements covering nearly 50 million workers were concluded. Furthermore, a bill concerning collective agreements is being drawn up. As regards prospects for ratification, the Government repeats for Convention No. 98 the information that it provided for Convention No. 87 to the effect that the Government will not be in a position to ratify the Convention in the near future.

156. The Government of the United States has indicated that application of the Convention is broadly guaranteed by the Constitution and legislation, in particular the National Labor Relations Act (NLRA). This Act protects workers against acts of anti-union discrimination and organizations against acts of interference. Collective bargaining is promoted by means of remedies against unfair labour and working practices and by provisions which oblige the parties to meet and bargain in good faith. As for Convention No. 87, the Government also indicates that legislation has remained relatively stable and is generally in conformity with the Convention. No new measures are planned, including with regard to ratification of the Convention. The Government's draft report was reviewed by the Tripartite Advisory Panel on International Labor Standards (TAPILS). However, one workers' organization (the AFL-CIO) emphasizes that while legislation might appear to comply with the terms of the Convention, actual practice in the United States is quite different and it is standard practice for employers to refuse to enter into collective bargaining.

157. The Government of India repeated for Convention No. 98 the information it provided for Convention No. 87, namely, that there was a problem resulting from the distinction in legislation between public servants and other workers. In this regard, the Committee recalls that, according to Article 6 of Convention No. 98, the Convention does not deal with the position of public servants engaged in the administration of the State.

158. The Government of Mexico has indicated that legislation and practice are largely in conformity with the provisions of the Convention. It also indicates that it has just begun consultations with the social partners on possible amendments to labour relations legislation, although without giving any indications as to the ratification process.

159. The Government of Qatar has indicated that collective bargaining is applied both in law and in practice. The Government has also reiterated the same observations that it provided for Convention No. 87 to the effect that the national labour force is concentrated mainly in the public sector. It has provided no indication regarding the possibility of ratification. The ICFTU has provided information according to which collective bargaining is prohibited in Qatar.

160. With regard to Convention No. 98, the following governments reiterated the information given on their reviews of national legislation in relation to Convention No. 87, indicating that the provisions of the Convention would be taken into account but that a number of obstacles to ratification still remain at this stage: Eritrea, Viet Nam.

161. Lastly, the ICFTU has sent observations on the following countries that have not provided a report under article 19:

-- Equatorial Guinea: the ICFTU indicates that trade union rights do not exist in Equatorial Guinea and that the main workers' trade unions are obliged to operate clandestinely, since the Government has hitherto refused to register them;

-- Libyan Arab Jamahiriya: the ICFTU indicates that independent trade unions are banned in this country. The ICFTU also states that there are no strikes and that public servants who go on strike can be imprisoned or made to do forced labour.

Final remarks

162. In the light of the foregoing information provided by governments, the Committee notes with interest that several governments have ratified or are about to ratify one or both of the fundamental freedom of association and collective bargaining Conventions and that a number of governments have undertaken to eliminate the obstacles that have thus far prevented ratification. The Committee notes, however, that certain States which 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. The Committee reminds the Governments of the great importance of ratifying the ILO freedom of association Conventions, given that the principles on which those instruments are based form one of the foundations of tripartism and should be at the heart of any democracy. With this in mind, and with the 50th anniversary of Convention No. 98 approaching, the Committee once again, as it did on the occasion of the 50th anniversary of Convention No. 87, addresses an urgent appeal to those governments that have not yet ratified one or other of these Conventions to do so.

IV. Technical assistance in the field of standards

A. Direct contacts

163. Direct contacts missions concerning freedom of association were made to Indonesia upon recommendation of the International Labour Conference Committee on the Application of Standards, to Djibouti and the Republic of Korea upon recommendation of the Committee on Freedom of Association, and to Nigeria at the request of the Governing Body of the ILO. In respect of the Republic of Korea, a tripartite mission which, in this instance, was composed of members of the Committee on Freedom of Association, visited the Republic.

B. Promotional activities

164. Since the last meeting of the Committee of Experts, several regional and subregional seminars and symposia on international labour standards and freedom of association have been held: a Tripartite Subregional Seminar on Convention No. 87 in Nairobi (September) for Kenya, Uganda and the United Republic of Tanzania, a seminar on Conventions Nos. 87 and 98 in India (Dehra Dun in May) to promote the ratification of these two Conventions within the framework of the 50th anniversary of the adoption of Convention No. 87; a symposium in Spain (Seville in September), and a seminar on freedom of association for the representatives of workers' organizations in francophone countries in Paris (October).

165. The Committee noted that for several years, the Department has been carrying out activities for the promotion of the ILO standards system by holding seminars on standards and the ILO legal information system. This consists specifically of ILOLEX, a CD-Rom database on international labour standards; and NATLEX, a database on national legislation in respect of labour, social security and human rights questions. During 1998, in close collaboration with the multidisciplinary advisory teams and with the support of the regional offices, seminars were held in Europe and the United States. The participants in these seminars, senior officials from other international organizations such as the World Bank, employers' and workers' organizations, together with representatives from the judiciary and researchers, were given the opportunity to familiarize themselves with these databases and to discuss current subjects relating to standards. It should also be recalled that a special promotional effort of both ILOLEX and NATLEX was made during the International Labour Conference. The Department set up and maintained a "Standards booth" in the ILO building offering constant access to and assistance in the use of both ILOLEX and NATLEX.

166. The Department has been given the responsibility of managing the international labour standards section of the ILO Internet website. A document was presented to the Legal Issues and Labour Standards Committee (LILS) for the March 1997 session of the Governing Body concerning Internet publication of standards-related information, and the Committee welcomed this new promotional initiative. More importantly, the two departmental legal databases -- ILOLEX and NATLEX -- have now been made globally available on the ILO website. Statistically, these two databases respond to a monthly average of 80,000 Internet requests for information on labour standards and national labour legislation. These requests, in a normal month, come from approximately 50 different countries from every area of the world.

167. The Committee also noted that the Standards Department continues to organize its annual training course for government officials responsible for reporting on international labour standards which is held at the Turin Centre and in Geneva during the two weeks immediately preceding the June Conference. Many of the fellows stay on in Geneva to participate in the work of the Conference Committee on the Application of Standards. This year the course was attended by 38 participants from the following countries: Argentina, Bahrain, Belarus, Benin, Bosnia Herzegovina, Burkina Faso, China (Special Administrative Region of Hong Kong), Colombia (2), Côte d'Ivoire, Cuba, Czech Republic, Djibouti, Egypt, El Salvador, Ethiopia, Fiji, Grenada, Guinea-Bissau, Islamic Republic of Iran, Jordan, Kazakhstan, Republic of Korea, Lebanon (2), Lesotho, Mauritania, Mexico, Niger, Senegal, Seychelles, Sudan, Swaziland, United Republic of Tanzania (2), Togo, and Turkey (2). In addition, NORMES officials make presentations on standards on a regular basis to training courses on other subjects organized by the Turin Centre.

168. Other activities for the promotion of standards took the form of participation in seminars, workshops, symposia and meetings, and the provision of advisory services, technical assistance and consultations concerning international labour standards for the following countries and territories: Bangladesh, Botswana, Brazil, Cameroon, Canada, Chile, France, Gabon, Georgia, Germany, Italy, Republic of Korea, Morocco, Namibia, occupied Arab territories, Philippines, South Africa, Spain, Thailand, Tunisia, Ukraine, United States and Uruguay.

169. Moreover, an edition of the Digest of decisions and principles of the Committee on Freedom of Association has been published in Portuguese and the ILO publication "Freedom of Association" is now available in eight languages: German, Arabic, English, Chinese, Spanish, French, Portuguese and Russian. A technical guide on the procedures governing freedom of association is in the process of completion.

C. Standards and multidisciplinary advisory teams

170. The Committee noted that specialists in international labour standards were in place in 9 of the 16 multidisciplinary teams (MDTs) (in Bangkok, Beirut, Harare, Lima, Manila, Moscow, New Delhi, San José and Santiago de Chile). It noted that there remained to date a further four such vacancies (Abidjan, Addis Ababa, Dakar, and Port-of-Spain) and that no provision had been made for such posts in the Budapest, Cairo and Yaoundé MDTs. The Committee recalled that the services provided by the MDTs -- and especially the standards specialists, where they exist -- include assisting national constituents in fulfilling their standards-related obligations and promoting tripartite consultations on these issues. The standards specialists play an important role within the framework of the Director-General's ratification campaign of the fundamental Conventions of the ILO, as well as within the framework of the Active Partnership Policy towards the integration of standards considerations in country objectives and implementation of the objectives in terms of international labour standards.

171. The Committee notes with interest the continued organization by several teams of International Labour Standards Updates, which aim to inform constituents of standard-related procedures and obligations, including reporting obligations to the Committee of Experts, as well as new developments in international labour standard-setting and application, in one-day national meetings. The Committee welcomes the continued efforts made by the MDTs and the standards specialists in providing explanations and assistance as to the measures called for to overcome the obstacles to application which the Committee itself has pointed to in its observations and direct requests. It also welcomes the continued efforts made by the International Labour Standards Department to support and supplement the work of the standards specialists and especially the efforts made to help certain regions or countries in the absence of a standards specialist or the required technical expertise. Considering the beneficial effect of a similar previous decision, the Committee notes with interest the plan to bring standards specialists and associate experts on standards from the field to headquarters on mission during the International Labour Conference in June 1999, since this enables comparison of experience and mutual briefing on current issues preoccupying relevant headquarters departments, and facilitates contacts with national tripartite constituents represented in delegations to the Conference.

172. The Committee continues to be impressed by the vital role played by standards specialist and the MDTs as a whole in regard to the promotion and supervision the fullest possible application of the entire range of international labour standards. It therefore recalls the desirability of ensuring a sufficiency of qualified standards specialists in the field so that the MDTs are able to play that part, whilst maintaining the full capacity of the International Labour Standards Department to service the supervisory bodies.

V. Role of employers' and workers' organizations

173. At each session, the Committee draws the attention of governments to the role that employers' and workers' organizations are called upon to play in the application of Conventions and Recommendations and to the fact that numerous Conventions require consultation with employers' and workers' organizations, or their collaboration in a variety of measures. The Committee notes with satisfaction that almost all governments have indicated in the reports supplied under articles 19 and 22 of the Constitution the representative organizations of employers and workers to which, in accordance with article 23, paragraph 2, of the Constitution, they have communicated copies of the reports supplied to the ILO. (Endnote 5) Almost all governments have indicated the organizations to which they have communicated copies of the information supplied to the ILO on the submission to the competent authorities of the instruments adopted by the Conference. (Endnote 6)

174. In accordance with established practice, the ILO sent to the representative organizations of employers and workers a letter concerning the various opportunities open to them of contributing to the implementation of Conventions and Recommendations, accompanied by relevant documentary material, and a list of the reports due from their respective governments and copies of the Committee's comments to which the governments were invited to reply in their reports.

Observations made by employers' and workers' organizations

175. Since its last session, the Committee has received 246 observations, 41 of which were communicated by employers' organizations and 205 by workers' organizations. It shows again the interest of employers' and workers' organizations in the implementation of ILO standards and reflects the constant efforts made by the supervisory bodies and the Office to give interested organizations complete information on their role in this area. The Committee stresses the importance it attaches to this contribution by employers' and workers' organizations to the work of the supervisory bodies, which is essential for the Committee's evaluation of the application of ratified Conventions in law and in practice. It invites the employers' and workers' organizations to continue and augment their contribution to the supervisory system.

176. The majority of observations received (217) relate to the application of ratified Conventions (see list in Appendix II, page 60). Twenty eight observations relate to the reports provided by governments under article 19 of the Constitution of the ILO relating to the Migration for Employment Convention (No. 97), and Recommendation (No. 86) (Revised), 1949, and to the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), and Migrant Workers Recommendation, 1975 (No. 151). (Endnote 7)

177. The Committee notes that, of the observations received this year, 123 were transmitted directly to the International Labour Office which, in accordance with the practice established by the Committee, referred them to the governments concerned for comment. In 94 cases the governments transmitted the observations with their reports, sometimes adding their own comments.

178. The Committee also examined a number of other observations by employers' and workers' organizations, consideration of which had been postponed from the last session because the observations of the organizations or the replies of the governments had arrived just before or just after the session. It has had to postpone the examination of a number of observations to its next session, when they were received too close to or even during the Committee's present session to allow sufficient time for the governments concerned to make comments and for the Committee to consider the matters involved.

179. The Committee notes that in most cases the employers' and workers' organizations endeavoured to gather and present precise elements of law and fact on the application in practice of ratified Conventions. It notes that the matters dealt with in these observations have touched on a very wide range of Conventions relating, in particular, to the following subjects: protection of the right to organize and the right to collective bargaining, wage payment, discrimination, forced labour, minimum wage fixing, occupational safety and health, employment policy, labour inspection, tripartite consultations relating to international labour standards, maritime labour, social security. The second part of this report contains most of the comments made by the Committee on cases in which the comments raised matters relating to the application of ratified Conventions. Where appropriate, other comments are examined in requests addressed directly to the governments.

180. The Committee notes lastly that the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), has now received 88 ratifications. Thus, the number of ratifications has more than tripled since the General Survey on the Convention in 1982, which noted favourable prospects in this respect. (Endnote 8) The Committee hopes that many other countries will be able to ratify it, all the more since some have recently adopted provisions to establish tripartite bodies for ILO activities, with reference to the 1976 instruments.

VI. Reports on ratified Conventions (articles 22 and 35 of the Constitution)

Supply of reports

181. The Committee's principal task consists of the examination of the reports supplied by governments on Conventions which have been ratified by member States or which have been declared applicable to non-metropolitan territories.

182. In accordance with the decision to rearrange the regular supervisory procedures, adopted by the Governing Body at its 258th Session (November 1993), reports were requested this year on 34 ratified Conventions. (Endnote 9) These reports cover the period ending 1 September 1998. Furthermore, detailed reports were also requested from certain governments on other Conventions, in accordance with the criteria approved by the Governing Body concerning the obligation to send reports more frequently. (Endnote 10) The procedures which are followed and established practice with regard to the obligations relating to international labour standards are found in the Handbook of procedures relating to international labour Conventions and Recommendations.

Reports requested and received

183. A total of 2,036 reports were requested from governments on the application of Conventions ratified by member States (article 22 of the Constitution). At the end of the present session of the Committee, 1,264 of these reports had been received by the Office. This figure corresponds to 62.1 per cent of the reports requested, compared with 62.8 per cent last year. The Committee regrets that, as indicated in paragraphs 196 and 197 below, a number of reports received are incomplete and do not enable it to reach conclusions regarding the application of the Conventions concerned. A table showing reports received and not received, classified by country and by Convention, is to be found in Part Two (section I, Appendix I). Another table (section I, Appendix II) shows, for each year in which the Committee has met since 1931, the number and percentage of reports received by the prescribed date, by the date of the meeting of the Committee, and by the date of the session of the International Labour Conference.

184. In addition, 293 reports were requested on Conventions declared applicable with or without modifications to non-metropolitan territories (articles 22 and 35 of the Constitution). Of these, 127 reports, 43.3 per cent, had been received by the end of the Committee's session, in comparison with 72.7 per cent last year. A list of the reports received and not received, classified by territory and by Convention, is to be found appended to section II of Part Two of this report.

185. In those cases in which the reports were not accompanied by copies of the relevant legislation, statistical data or other documentation necessary for their full examination, and where this material was not otherwise available, the Office, as requested by the Committee, wrote to the governments concerned asking them to supply the necessary texts to enable the Committee to fulfil its task.

Compliance with reporting obligations

186. Most of the governments from which reports were due on the application of ratified Conventions have supplied all or most of the reports requested, as can be seen from Appendix I, Part Two, section I. However, 60 governments have not complied with their obligation to supply reports on ratified Conventions. Thus, all or the majority of the reports due this year have not been received from the following countries: Australia (Norfolk Island), Belize, Burkina Faso, Cameroon, Cape Verde, China (Special Administrative Region of Hong Kong), Comoros, Congo, Djibouti, Dominica, Equatorial Guinea, Fiji, France, France (French Guiana), France (French Polynesia), France (French Southern and Antarctic Territories), France (Guadeloupe), France (Martinique), France (St. Pierre and Miquelon), Ghana, Guinea, Guinea-Bissau, Haiti, Iraq, Kenya, Kyrgyzstan, Latvia, Libyan Arab Jamahiriya, Madagascar, Malaysia (Sarawak), Malta, Mauritania, Mongolia, Myanmar, Netherlands (Aruba), Niger, Paraguay, Philippines, Rwanda, Sao Tome and Principe, Senegal, Seychelles, Solomon Islands, Tajikistan, The former Yugoslav Republic of Macedonia, Togo, Uganda, United States (American Samoa), United States (Guam), United States (Northern Mariana Islands), United States (Puerto Rico), United States (United States Virgin Islands). No reports have been received for the past two or more years from the following countries: Afghanistan, Antigua and Barbuda, Armenia, Bosnia and Herzegovina, Burundi, Democratic Republic of the Congo, Denmark (Faeroe Islands), Georgia, Grenada, Liberia, Mali, Republic of Moldova, Nigeria, Saint Lucia, Sierra Leone, Somalia, United Republic of Tanzania (Zanzibar), Uzbekistan.

187. The Committee urges the governments of these countries, and also of those which have sent only some of the reports due, to make every effort to supply the reports requested on ratified Conventions. Where no reports have been sent for a number of years, it is likely that particular problems of an administrative or technical nature are preventing the government concerned from fulfilling its obligations under the ILO Constitution, and it may be that in cases of this kind assistance from the Office, in particular with the help of members of multidisciplinary advisory teams who are specialists on international labour standards, could enable the government to overcome its difficulties.

Late reports

188. The Committee is once again bound to emphasize the importance of communicating reports in due time. The reports due on ratified Conventions were to be sent to the Office between 1 June and 1 September 1998. Due consideration is given, when fixing this date, particularly to the time required to translate the reports, where necessary, to conduct research into legislation and other necessary documents, and to examine reports and legislation. The supervisory procedure can function correctly only if reports are communicated in due time. This is particularly true in the case of first reports or reports on Conventions where there are serious or continuing discrepancies, which the Committee has to examine in greater depth.

189. The Committee observes that the great majority of reports are received between the time-limit fixed and the date on which the Committee meets: by 1 September 1998, the proportion of reports received was only 22.7 per cent. This is lower than for its previous session (28.7 per cent), and the Committee is still concerned, since it notes that it is often first reports and those relating to Conventions on which the Committee has made comments that are received the latest. In these circumstances, the Committee has been bound in recent years to postpone to its following session the examination of an increasing number of reports, since they could not be examined with the necessary care owing to lack of time. It has thus had to examine a number of reports at its present session which had previously been deferred.

190. The Committee wishes to draw attention to the problem of the timing of transmission by governments of their reports. This year, only a small percentage of reports due were received by the requested date. The Committee notes that under the calendar for the reporting cycle implemented as a result of the decisions taken by the Governing Body in November 1993 the figure has not improved. The majority of reports received from governments continued this time to arrive in the last three months before the Committee's meeting or even during it. This obviously places a huge strain on the supervisory process and effectively makes it impossible for particular cases to be dealt with adequately or at all.

191. The Committee has noted with interest the efforts made by the Office -- particularly through the standards specialists present in several of the multidisciplinary teams -- to assist in ensuring the fulfilment of reporting obligations. It proposes to consider this question again in the light of the experience of the next few years. In the meantime, it appeals to all governments to examine the means by which their labour administrations can best take advantage of the new reporting arrangements and make sure the obligations are fulfilled.

192. Furthermore, the Committee notes that a number of countries sent the reports due on ratified Conventions during the period between the end of the Committee's work and the beginning of the International Labour Conference, or even during the Conference. (Endnote 11) The Committee emphasizes that this practice disturbs the regular operation of the supervisory system and makes it more burdensome.

Supply of first reports

193. A total of 57 of the 127 first reports due on the application of ratified Conventions were received by the time that the Committee's session ended. However, a number of countries have failed to supply first reports, some of which are more than a year overdue. Thus, certain first reports on ratified Conventions have not been received from the following States: since 1992 -- Liberia (Convention No. 133); since 1994 -- Latvia (Conventions Nos. 111, 122, 135 and 151); since 1995 -- Armenia (Convention No. 111), Burundi (Conventions Nos. 87, 100 and 111), Kyrgyzstan (Convention No. 133), Republic of Moldova (Convention No. 105), Nigeria (Convention No. 144), Seychelles (Convention No. 149); since 1996 -- Armenia (Conventions Nos. 100, 122, 135 and 151), Grenada (Conventions Nos. 87, 100 and 144), Latvia (Conventions Nos. 81, 129, 132, 154, 155 and 158), Uzbekistan (Conventions Nos. 47, 52, 103 and 122); and since 1997 -- Cyprus (Convention No. 147), Mali (Conventions Nos. 135, 141, 151 and 159).

194. First reports have particular importance since it is the basis on which the Committee makes its initial assessment of the observance of ratified Conventions. The Committee therefore requests the governments concerned to make a special effort to supply these reports.

Replies to the comments of the supervisory bodies

195. Governments are requested to reply in their reports to the observations and direct requests of the Committee, and the majority of governments have provided the replies requested. In accordance with the established practice, the International Labour Office wrote to all the governments who failed to provide such replies, requesting them to supply the necessary information. Of the 47 governments to which such letters were sent, only 19 have provided the information requested.

196. The Committee notes that there are still many cases of failure to reply to its comments; either:

(a) out of all the reports requested from governments, no report or reply has been received; or

(b) the reports received contained no reply to most of the Committee's comments (observations and/or direct requests) and/or did not reply to the letters sent by the Office.

197. In all there were 353 such cases, (Endnote 12) as compared with 385 last year. The Committee notes with concern that there is still a very high number of these cases. It is bound to repeat the observations or direct requests already made on the Conventions in question.

198. The failure of the governments concerned to fulfil their obligations considerably hinders the work of the Committee of Experts and that of the Conference Committee, and the Committee of Experts cannot overemphasize the special importance of ensuring the dispatch of the reports and replies to its comments on time.

Examination of reports

199. In examining the reports received on ratified Conventions and Conventions declared applicable to non-metropolitan territories, the Committee follows its usual practice of assigning to each of its members the initial responsibility for a group of Conventions. Reports received early enough are sent to the members concerned in advance of the Committee's session. The members submit their preliminary conclusions on the instruments for which they are responsible to all their colleagues for their examination. These conclusions are then presented to the Committee in plenary sitting by their respective authors for discussion and approval. Decisions on comments are adopted by consensus, without prejudice to experts who wish to put forward different opinions, as was the case in the past.

Observations and direct requests

200. In many cases, the Committee has found that no comment is called for regarding the way in which a ratified Convention has been implemented. In other cases, however, the Committee has found it necessary to draw the attention of the governments concerned to the need to take further action to give effect to certain provisions of Conventions or to supply additional information on given points. As in previous years, its comments have been drawn up in the form either of "observations" which are reproduced in the report of the Committee, or "direct requests", which are not published in the report, but are communicated directly to the governments concerned. (Endnote 13)

201. As in the past, the Committee has indicated by footnotes the cases in which, because of the nature of the problems met in the application of the Conventions concerned, it has seemed appropriate to ask the Government to supply a detailed report earlier than would otherwise have been the case. Under the system of spacing out reports, which applies to most Conventions, such early reports have been requested after an interval of either one or two years, according to circumstances. In some instances, the Committee has also requested the Government to supply full particulars to the Conference at its next session in June 1999.

202. The observations of the Committee appear in Part Two (sections I and II) of this report, together with a list under each Convention of any direct requests. An index of all observations and direct requests, classified by country, is provided at the beginning of this report.

Cases of progress

203. In accordance with its usual practice, the Committee has drawn up a list of the cases in which it has been able to express its satisfaction at certain measures taken by governments to make the necessary changes in their country's law or practice following comments by the Committee on the degree of conformity between national law or practice and the provisions of a ratified Convention. Details concerning the cases in question are to be found in Part II of this report and cover 39 instances in which measures of this kind have been taken in 33 countries. The full list is as follows:

State Conventions Nos.

204. Thus, the total number of cases in which the Committee has been led to express its satisfaction with the progress achieved following its comments has risen to 2,203 since the Committee began listing them in its reports in 1964. In addition, there have been many cases in which the Committee has been able to note with interest various measures that have been taken following its comments with a view to ensuring a fuller application of ratified Conventions. All these cases provide an indication of the efforts made by governments to ensure that their national law and practice are in conformity with the provisions of the ILO Conventions they have ratified.

205. These cases do not, however, as the Committee regularly points out, exhaust the instances in which Conventions and Recommendations have a measurable influence on the law and practice of member States. For example, the Committee has again noted a number of cases this year in which it is clear from the first report on the application of a Convention that new legislative or other measures were adopted shortly before or after ratification.

Practical application

206. As in previous years, the Committee has been concerned with assessing, on the basis of the information available, the extent to which national legislation giving effect to ratified Conventions is applied in practice. A number of questions designed to elicit information on this point are included in the report forms approved by the Governing Body for the Conventions, and the replies of governments to these questions constitute an appreciable, though uneven, source of information on practical application available to the Committee. The Committee has also taken into account other authoritative sources of information. These consist, in particular, of reports from other international or regional organizations, of the annual reports of labour inspection services, statistical yearbooks published in the States or by the ILO, observations of employers' or workers' organizations, compilations of judicial or administrative decisions, reports on direct contacts, reports on technical cooperation projects and missions, and other official publications such as manuals, studies and economic and social development plans.

207. The Committee notes that this year some 66.4 per cent of the reports supplied on Conventions for which information on practical application was specifically requested contained such data. Remarking that this percentage is lower in comparison with recent years, the Committee reiterates its appeal to all governments to continue to make every effort to include the information requested in their future reports.

208. The following countries have provided information on practical application in more than half the reports concerned: Argentina, Australia, Austria, Belarus, Belgium, Brazil, Burkina Faso, Canada, Chile, Czech Republic, Dominican Republic, El Salvador, Estonia, Finland, France, Gabon, Germany, Guatemala, Honduras, Hungary, India, Ireland, Italy, Japan, Lithuania, Luxembourg, Malta, Mauritius, Mexico, Mozambique, Netherlands, New Zealand, Nicaragua, Niger, Panama, Philippines, Portugal, Russian Federation, Slovenia, Spain, Sweden, Syrian Arab Republic, Thailand, Turkey, Uruguay.

209. The Committee wishes particularly to thank governments that have given information on practical application in their reports, as this information has greatly helped it in assessing more accurately the extent to which ratified Conventions are actually applied in these countries.

210. As in previous years, the Committee has addressed direct requests to certain countries which have not replied to the questions in the report forms on practical application. The Committee notes that, again this year, the majority of the countries in question are developing countries and that certain of them have referred specifically to difficulties of a financial and/or administrative nature which are preventing them from compiling the statistical and other information requested. The Committee is of the opinion that these are also cases in which technical assistance from the International Labour Office, particularly when provided by the multidisciplinary advisory teams, could assist in overcoming the difficulties in question.

211. The Committee also notes with interest the judicial and administrative decisions on questions of principle relating to the application of ratified Conventions to which certain countries have referred in their reports. It noted that 64 reports contain information of this kind and thereby shed additional light on the problems raised in these cases by the practical application of the Conventions in question.

VII. Submission of Conventions and Recommendations to the competent authorities (article 19, paragraphs 5, 6 and 7, of the Constitution)

212. In accordance with its terms of reference, the Committee this year examined the following information supplied by the governments of member States, pursuant to article 19 of the Constitution of the International Labour Organization:

(a) information on the steps taken to submit to the competent authorities within the time-limit of 12 or 18 months, as provided for in the Constitution, the following instruments adopted at the 84th (Maritime) Session of the Conference in October 1996: the Labour Inspection (Seafarers) Convention (No. 178) and Recommendation (No. 185); the Recruitment and Placement of Seafarers Convention (No. 179) and Recommendation (No. 186); the Seafarers' Hours of Work and the Manning of Ships Convention (No. 180) and Recommendation (No. 187); and the Protocol of 1996 to the Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147);

(b) information on the steps taken to submit to the competent authorities within the time-limit of 12 or 18 months the following instruments adopted by the Conference at its 85th Session (June 1997): the Private Employment Agencies Convention (No. 181) and Recommendation (No. 188);

(c) additional information on the steps taken to submit to the competent authorities the instruments adopted by the Conference from its 31st Session (1948) to its 83rd Session (June 1996) (Conventions Nos. 87 to 177 and Recommendations Nos. 83 to 184);

(d) replies to the observations and direct requests made by the Committee at its session in November-December 1997.

84th (Maritime) Session

213. The Committee recalls that submission to the competent authorities of the texts adopted at the 84th (Maritime) Session of the Conference (October 1996) should have been made within one year or, under exceptional circumstances, within 18 months of the close of the session. The latest dates for submission were 22 October 1997 and 22 April 1998 respectively. The Committee notes with interest that the governments of the following member States have provided information on the steps taken with a view to submission to the competent authorities of the instruments adopted by the Conference at its 84th Session: Barbados, Bahamas, Bulgaria, Canada, China, Cuba, Dominican Republic, Ecuador, Egypt, El Salvador, Equatorial Guinea, Ethiopia, Finland, Germany, Greece, Iceland, Indonesia, Jamaica, Japan, Jordan, Republic of Korea, Kuwait, Lebanon, Luxembourg, Malta, Mauritius, Myanmar, Netherlands, New Zealand, Nicaragua, Panama, Paraguay, Poland, Portugal, Romania, San Marino, Singapore, Slovenia, Switzerland, Tajikistan, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United States, Viet Nam.

214. The Committee notes that in certain cases there has been no mention of submission to the competent authorities of the Protocol of 1996 to the Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147). The Committee wishes to emphasize that under the terms of article 19 of the Constitution, submission to the competent authorities of all instruments (Conventions, Recommendations and Protocols) adopted by the Conference is obligatory.

85th Session

215. Submission to the competent authorities of the Convention and Recommendation adopted at the 85th Session of the Conference (June 1997) was to have been made within one year or, under exceptional circumstances, within 18 months of the close of the session, the final dates for submission being 19 June 1998 and 18 December 1998 respectively. The Committee notes with interest that the governments of the following member States have provided information on the steps taken with a view to submission to the competent authorities of the instruments adopted by the Conference at its 85th Session: Albania, Azerbaijan, Bulgaria, Cuba, Czech Republic, Dominican Republic, Ecuador, Egypt, Ethiopia, Germany, Greece, Iceland, Islamic Republic of Iran, Jamaica, Jordan, Republic of Korea, Lebanon, Luxembourg, Mauritius, Morocco, Myanmar, Namibia, Nepal, Netherlands, New Zealand, Nicaragua, Norway, Panama, Portugal, Qatar, Romania, San Marino, Saudi Arabia, Trinidad and Tobago, Togo, Tunisia, Turkey, Ukraine, United Arab Emirates, Viet Nam, Zimbabwe.

31st to 83rd Sessions

216. The Committee welcomes the considerable efforts that have been made, in particular by the Governments of Bulgaria, Chile, Guinea, Ireland, Lebanon, Mauritius and Sri Lanka, to submit to the competent authorities the instruments adopted by the Conference over a number of sessions.

217. The table in Appendix I to section III of Part Two of this report shows the position of each member State as it emerges from the information supplied by the governments, with regard to the discharge of the obligation to submit instruments adopted by the Conference to the competent authorities. Appendix II shows the overall situation with regard to instruments adopted from the 31st to the 85th Sessions of the Conference.

General aspects

218. In 1950 the Committee for the first time examined the discharge of obligations relating to the submission of instruments to the competent authorities. Since then, both it and the Conference Committee on the Application of Standards have continued to monitor the discharge of this important obligation which is one of the most original features of the Organization's standard-setting system. It was as a result of the amendment made in 1946 to article 19 of the Constitution, which entered into force in 1948, and of the modifications made as a result of this amendment by the Governing Body to the Committee's terms of reference, that the Committee was made responsible for examining information communicated to the Director-General by governments on the submission of instruments adopted by the Conference to the competent national authorities and to report on its findings. It follows that the obligation to submit contributes to the dialogue between the Committee of Experts and the Conference Committee, but also provides a channel between the International Labour Conference and the legislative authorities of member States.

219. The Memorandum concerning the obligation to submit Conventions and Recommendations to the competent authorities, with additions made by the Governing Body at the suggestion of the Conference Committee, on the last occasion at its 212th Session in February-March 1980, clarified many of the issues raised in practice and identified in precise terms the information that should be communicated to the ILO. In the first place, Members are asked to indicate which authority is competent according to the Constitution or basic law of the State, that is to say, empowered to legislate or take appropriate measures to give effect to instruments adopted by the Conference. In general, this would be the legislative assembly in which case there is no difficulty. In particular cases, the Committee asks governments to inform and mobilize public opinion with regard to the instruments adopted by the Conference by submitting them to the parliamentary body.

220. Secondly, Members are asked to indicate the date on which the instruments in question were submitted to the competent authorities. The provisions of article 19, paragraphs 5, 6 and 7, of the Constitution stipulate that instruments must be submitted within one year or, in exceptional circumstances, within 18 months, from the close of the session of the Conference. The time-limits apply both to federal States and to non-federal States.

221. In order that the competent national authorities may be kept up to date on the standards adopted at the international level which may require action by each State to give effect to them at the national level, submission should be made as early as possible and in any case within the time-limits set by article 19 of the ILO Constitution. Governments remain entirely free to propose any action which they may judge appropriate in respect of Conventions and Recommendations. In general, the aim of the submission is to encourage a rapid and responsible decision by each member State on the instruments adopted by the Conference.

222. The Committee again notes with concern that many countries are late in submitting the instruments adopted by the Conference to the competent authorities. The Committee is grateful to governments which, in answer to the ILO's reminders, report regularly on the progress made in terms of national measures to ensure that the submission is made as early as possible.

223. In some cases, governments postpone any decision with regard to the appropriate measures "for the enactment of legislation or other action" (article 19, paragraphs 5(b) and 6(b)). In order that it may assess the manner in which the submission is made, the Committee must have copies of the documents by means of which the Conventions and Recommendations were submitted to the competent authorities, and of any proposals which may have been made in accordance with the Memorandum of 1980. The Committee trusts that governments will make every effort to indicate their position on the instruments adopted by the Conference and that they will provide information on the substance of the documents by means of which the instruments were submitted.

224. Thirdly, the Memorandum of 1980 emphasizes that, if the submission is to have its full effect, it is also essential that the legislative authority have an opportunity to debate the matters addressed by the instruments adopted by the Conference. In this case, the substance of the decision taken by the competent authorities should be indicated.

225. Lastly, under the terms of article 23, paragraph 2, of the Constitution, it is of paramount importance to ensure that the representative organizations of employers and workers receive copies of any communications addressed to the ILO concerning the submission to the competent authorities of instruments adopted by the Conference. This enables the employers' and workers' organizations to formulate their own observations on the action that has been taken or needs to be taken with regard to the instruments in question. This important constitutional obligation was reinforced by the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), which stipulates that member States that have ratified the Convention are required to implement procedures for effective consultations between representatives of the government, the employers and the workers on the proposals to be made to the competent authority or authorities in connection with the submission of Conventions and Recommendations. (Endnote 14) Member States that have not yet ratified Convention No. 144 may refer to the relevant provisions of the Tripartite Consultation (Activities of the International Labour Organisation) Recommendation, 1976 (No. 152). In this way, employers' and workers' organizations are encouraged to formulate their own observations concerning the action that has been or should be taken with regard to the instruments adopted by the Conference.

226. In its last General Review of the Discharge of the Obligation concerning Submission to the Competent Authorities, (Endnote 15) the Committee indicated that, without the replies to its observations and direct requests concerning submission, it would be unable to carry out its tasks. The Committee therefore recalls that governments may address the Office directly in order to transmit all the information requested in the Memorandum of 1980. Letters sent by the Office transmitting the authentic copies of instruments adopted by the Conference and reminders of the constitutional time-limits sometimes give rise to an exchange of correspondence with governments, which allows the Committee to gather all the information requested in the Memorandum and thus dispense with observations or direct requests.

227. The Committee has taken note of the activities of the multidisciplinary teams and their standards specialists in assisting governments in meeting their obligations of submission. The Committee would encourage governments who wish to do so to contact the multidisciplinary teams and the ILO's International Labour Standards Department to ensure that the discharge of the constitutional obligation of submission gives rise to a dialogue with the ILO that will be fruitful both for the officials responsible for preparing documents for the submission of instruments adopted by the Conference, and for the members of the legislative assemblies concerned.

Comments of the Committee and replies from governments

228. As in its previous reports, the Committee in section III of Part Two of this report makes individual observations on the points that it considers should be brought to the special attention of governments. In seven of these observations (Bulgaria, Chile, Guinea, Ireland, Lebanon, Mauritius, Sri Lanka), the Committee has expressed satisfaction at the measures taken to submit instruments to the competent authorities. In addition, requests with a view to obtaining supplementary information on other points have been addressed directly to a number of countries, which are listed at the end of section III.

229. The Committee regrets that a number of governments have failed to provide replies to its comments, even after reminders have been sent by the Office in accordance with the requests made to it by the Committee (see Part Two, section III of this report). The Committee again expresses the hope that governments will endeavour in future to supply all the required information and documents.

230. The Committee wishes once more to point out the importance of the communication by governments of the information and documents called for in points I and II of the questionnaire in the Memorandum adopted by the Governing Body. The Committee trusts that the governments concerned will take suitable measures as requested in the observations and direct requests addressed to them.

Special problems

231. The Committee is bound to note with regret that no information has been supplied by the following 28 governments showing that the Conventions and Recommendations adopted by the Conference during at least the last seven sessions (from the 78th to the 85th Sessions) have in fact been submitted to the competent authorities: Afghanistan, Belize, Brazil, Cambodia, Cameroon, Central African Republic, Comoros, Congo, Guatemala, Guinea-Bissau, Haiti, Honduras, India, Kyrgyzstan, Liberia, Madagascar, Papua New Guinea, Saint Lucia, Sao Tome and Principe, Senegal, Seychelles, Sierra Leone, Solomon Islands, Somalia, Swaziland, Syrian Arab Republic, United Republic of Tanzania and Yemen. The fact that these countries, and most of those referred to in the many observations contained in Part III of this report, have accumulated a long backlog in this context is a cause of deep concern to the Committee. Indeed there is a danger that some of them may find it very difficult to bring themselves up to date. What is more, neither the legislative authorities nor public opinion in these countries are regularly informed of the existence of new instruments as the Conference adopts them, which defeats the real purpose of the obligation to submit explained in the preceding paragraphs.

232. Finally, the Committee wishes to recall that the obligation to submit the instruments adopted by the Conference implies the obligation to submit these instruments to the legislative body within the time-limits prescribed by the ILO Constitution. The government must communicate to the Office (with a copy to the representative employers' and workers' organizations) the information required in the Memorandum of 1980 with regard to the date of submission, the competent authority and the proposals that may have been formulated setting out the action to be taken on these instruments. The Committee deems it necessary to again insist on the nature of the submission, which does not imply any obligation on the part of the government to propose the ratification of the Conventions or the approval of the recommendations in question. Taking into account the explanations given by some States in their reports, the nature and scope of the obligation to submit are indicated in individual observations addressed to these States. The Committee expresses the firm hope that the governments concerned will promptly undertake to submit the instruments adopted at the sessions indicated, and that it will be able to note the progress made in this respect in its next report. The Committee finally recalls that governments have the possibility of asking the International Labour Office for the technical assistance which it is able to provide, particularly through the multidisciplinary advisory teams, in an endeavour to solve this type of problem.

VIII. Instruments chosen for reports under article 19 of the Constitution

233. In accordance with the decisions taken by the Governing Body, governments were requested to supply reports under article 19, paragraphs 5 and 7, of the ILO Constitution on the Migration for Employment Convention (No. 97) and Recommendation (No. 86) (Revised), 1949, and on the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), and the Migrant Workers Recommendation, 1975 (No. 151).

234. A total of 635 reports were requested and 349 received. (Endnote 16) This represents 55 per cent of the reports requested.

235. The Committee notes with regret that, for the past five years, none of the reports on unratified Conventions and Recommendations requested under article 19 of the ILO Constitution has been received from: 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.

236. The Committee can only urge governments once again to provide the reports requested so that its General Surveys can be as comprehensive as possible.

General Survey

237. Part Three of this report (issued separately as Report III (Part 1B)) contains the General Survey of the Committee on questions covered by Conventions Nos. 97 and 143 and Recommendations Nos. 86 and 151. In accordance with the practice followed in previous years, the survey has been prepared on the basis of a preliminary examination by a working party comprising four persons appointed by the Committee from among its members.

238. Lastly, the Committee would like to express its appreciation for the invaluable assistance again rendered to it by the officials of the ILO, whose competence and devotion to duty make it possible for the Committee to accomplish its increasingly complex task in a limited period of time.

Geneva, 11 December 1998. (Signed) Sir William Douglas,

E. Razafindralambo,

Endnotes

Endnote 2

Endnote 3

Endnote 4

Endnote 5

Endnote 6

Endnote 7

Endnote 8

Endnote 9

Endnote 10

Endnote 11

Endnote 12

Endnote 13

Endnote 14

Endnote 15

Endnote 16