A. Introduction

1. In accordance with article 7 of its Standing Orders, the Conference set up a Committee to consider and report on item III on its agenda: "Information and reports on the application of Conventions and Recommendations". The Committee was composed of 213 members (109 Government members, 22 Employers' members and 81 Workers' members). It also included 33 Government deputy members, 14 Employers' deputy members and 68 Workers' deputy members. In addition, one Government was represented by an observer.(Endnote 1)

2. The Committee elected its Officers as follows:

Chairman: Mr. S. Pérez del Castillo (Government member, Uruguay);

Vice-Chairmen: Mr. A. Wisskirchen (Employers' member, Germany); and Mr. W. Peirens (Workers' member, Belgium);

Reporter: Ms. K. Wiklund (Government member, Sweden).

3. The Committee held 19 sittings.

4. In accordance with its terms of reference, the Committee considered the following: (i) information supplied under article 19 of the Constitution on the submission to the competent authorities of Conventions and Recommendations adopted by the Conference; (ii) reports supplied under articles 22 and 35 of the Constitution on the application of ratified Conventions; and (iii) reports requested by the Governing Body under article 19 of the Constitution on the Workers with Family Responsibilities Convention (No. 156) and Recommendation (No. 165), 1981.(Endnote 2)

5. As usual, the Committee began its work with a discussion of general aspects of the application of Conventions (particularly ratified Conventions) and Recommendations and the discharge by member States of standards-related obligations under the ILO Constitution. It then discussed the General Survey made by the Committee of Experts on the Application of Conventions and Recommendations, on workers with family responsibilities. Finally, it considered various individual cases relating to the application of ratified Conventions or compliance with the obligations to supply reports and to submit Conventions and Recommendations to the competent national authorities. The examination of those cases, which is the essential work of the Committee, was based principally on the observations contained in the report of the Committee of Experts and on the oral and written explanations provided by the governments concerned. The Committee also referred to its discussions in previous years, comments received from employers' or workers' organizations and, where appropriate, the reports of other ILO supervisory bodies. In view of the short time available, the Committee followed its usual practice of making a selection among the Committee of Experts' observations and consequently discussed a limited number of cases. The necessity of making this selection in no way affects the conclusion of the Committee of Experts in other cases that, in view of the problems encountered, it would be appropriate to ask the governments concerned to supply information to the present session of the Conference. The Committee trusts that those governments will pay close attention to the requests of the Committee of Experts. A summary of the information supplied by governments, the discussions in the present Committee and any conclusions it has drawn is set out in Part Two of this report.

6. The Committee decided to maintain its usual practice of adopting formal minutes of its general discussion as well as the discussions of individual cases. Those minutes constitute a detailed record of the views of members of the Committee which it is not the purpose of this report to duplicate.

7. The Committee was very pleased to welcome as an observer during the general discussion the Chairman of the Committee of Experts on the Application of Conventions and Recommendations, Dr. J. M. Ruda. This was the first time ever that the Committee of Experts had had the opportunity to be formally represented in the Conference Committee, and it marked a new stage in the intensification of the dialogue and cooperation between these two essential parts of the ILO's supervisory system. The Committee again expresses its wish that the Director-General should invite the Chairman of the Committee of Experts to be present as an observer at its general discussion next year.

8. Dr. Ruda, on behalf of the Committee of Experts, expressed his gratitude for the invitation to be present in the Committee's general discussion. He was impressed by the emphasis placed in the Committee on dialogue, showing belief in the power of persuasion as a means of achieving results: it seemed that the differences of opinion led to a search for consensus rather than confrontation. The present Committee, like the Committee of Experts, took time to reflect on how difficulties in conscientiously applying international labour standards might be resolved. Mr. Ruda was impressed too by the amicable atmosphere in which the Committee's deliberations took place: unpoliticized discussion in this way facilitated an objective appreciation of the Committee of Experts' own observations. Criticisms - which he had found to be constructive - would be transmitted to his colleagues. The Committee of Experts was an old and experienced organ of the ILO, which endeavoured to improve and adapt to change, while preserving intact its independence, objectivity and impartiality. Mr. Ruda recalled that the ILO supervisory system, of which the Committee of Experts is part, with its aim of achieving the due and complete implementation of international labour standards, remains the most effective in any international organization. The real conditions in which legislation is applied are always more complex than and cannot be fully anticipated by the legal standard itself. The present Committee and the Committee of Experts must each accomplish their complementary missions, in aid of the ILO's ultimate goal: social justice.

B. General questions relating to international labour standards

I. Supervisory system

(i) Roles of the supervisory bodies

9. The Committee noted with satisfaction the Committee of Experts' positive response to the invitation to be represented during the present Committee's general discussion. The relationship between the two bodies continues to strengthen on a well-established basis: the Committee of Experts' high-quality report is prepared on the principles of independence, objectivity and impartiality and is an essential starting-point for the work of the present Committee. The Committee believes that the effectiveness of the supervisory system depends on constructive dialogue between the two bodies.

10. The Employers' member of the United States recalled that the Committee of Experts had originally been set up to advise the present Committee as to the facts, since the Conference Committee was otherwise unable to complete its work in the time available. The Committee of Experts' role was to provide assistance to the Conference Committee by determining whether there was compliance with ratified Conventions, so that this Committee and the Conference could ultimately decide on their own attitude and what action they might take or recommend. He stressed the importance of cooperation between the two Committees, which each made different contributions, in particular, to the interpretation of Conventions. It was essential to the credibility of the supervisory system that the Committee of Experts should take account of the discussions held in the present Committee and respond to the questions raised, particularly in cases. The success of the supervisory system was a remarkable achievement and attempts to improve it were intended to be constructive.

11. The Workers' members emphasized the complementarity of the two bodies, and the indispensable demarcation of the functions and attributions of the two Committees. In its composition and working methods, the Committee of Experts guarantees the objective and impartial evaluation of the national situation with regard to standards. The Conference Committee gives the supervisory system vitality because of its experience and the evidence brought by employers' and workers' organizations. The Workers' members considered that respect for the respective functions and composition of the Committee of Experts and the Conference Committee are indispensable in guaranteeing the overall effectiveness of the supervisory system. The Workers' members welcomed the fact that the Committee of Experts in its choice of cases and subjects takes account of practical concerns and priorities. In this spirit, the Committee of Experts gives special attention to the observance of standards in export zones and cases which have provoked detailed discussion at the Conference. However, the Workers' member of the Netherlands considered there was sometimes a lack of continuity and responsiveness on the part of the Committee of Experts in certain cases where it has failed to formulate observations which the Workers' group would have wished to discuss in the Committee. During the Cold War, when the supervisory machinery had been under attack by the Soviet Union, the Workers' and Employers' groups in the Conference Committee had been united in wholeheartedly supporting the Committee of Experts, and the Conference Committee's concerted action had thus averted the threat to the supervisory system. However, by the end of the 1980s, the Employers in particular had begun to question the validity of certain conclusions of the Committee of Experts: this had led in turn to the Committee of Experts explaining their position as regards the question of interpretation in paragraphs 6 and 7 of their 1990 report, and now the Employers and Workers found themselves expressing opposite points of view. This jeopardized the integrity of the supervisory system far more than the Soviet threat and could lead to a breakdown of the normal functioning of the Conference Committee: time was uselessly consumed by the question of the Committee of Experts' authority in relation particularly to the question of interpretation of the right to strike, and there was a real danger that the Employers' arguments would precipitate further contentions by governments seeking a way out of their difficulties. The Workers' members observed that the Conference Committee had over the years unanimously acclaimed the fundamental principles of objectivity, impartiality and independence on which the Committee of Experts assessed individual States' compliance with ratified Conventions. Contesting the role of the Committee of Experts and the supervisory system was a wrong way of dealing with legitimate differences of view, and the efficient operation of the Committee would be seriously impaired by any failure of harmony and cooperation between Employers and Workers.

12. The Employers' members stated that they understood but did not share the concern of the Workers' members that the image of the Committee of Experts might be in danger. Although they did not question the competence of the Committee of Experts within the framework of the supervisory system, they did not agree with all results of its work, and that they did openly and clearly. Repeatedly, the Workers' members had stated with respect to the question of who was allowed to give binding interpretations: "We share the Experts' opinion in this matter". If the Employers were correct they had to answer: "Then we all share the same opinion". For in 1991 the Committee of Experts had said in paragraph 11 of their report that it had "never regarded its views as binding decisions". With respect to the relation between the various supervisory bodies, the Committee of Experts stated in paragraph 12 "that its evaluations do not prevail erga omnes". The opinion which had been expressed by the Experts since 1991 and which had not since been changed was in line with the ILO Constitution, and with the historical development of the Committee of Experts and the Conference Committee. The Employers had repeatedly indicated this. However, in the practice of the Conference Committee, there were deviations from the evaluations of the Experts. The Employers thought that this happened more often from the Workers' than from their own side.

13. The Workers' members of the Netherlands and the United States also noted that the Committee of Experts' qualities of objectivity, impartiality and independence are complemented rather than duplicated by the present Committee, whose role it is to bring the Experts' analyses to life through its discussions. The Workers' member of Germany urged the Committee of Experts not to show any weakness by yielding to possible pressure from certain employers and governments.

14. The Government member of Cuba considered that the present Committee should not impede the Committee of Experts or obstruct it from carrying out its independent, impartial and objective tasks.

15. Several Government members (Australia, Netherlands, United States) expressly reaffirmed their support for the supervisory machinery. The Government member of the United States considered that the Committee of Experts' report was based on sound objective and impartial legal analysis, which endowed the present Committee with greater authority and was in turn itself reinforced by the weight of the tripartite Conference. In her view, it was the Committee of Experts' international reputation for solid legal and technical work which had increased its independence over many years when its views had met with virtually no objections in this Committee. While it was true that the Committee of Experts' findings were not legally binding, and that there was a measure of interpretation in the functions of both Committees, the present Committee need not be too concerned with interpretation issues, when it is ongoing dialogue between the two Committees which is the key.

16. The Government member of Saudi Arabia (speaking also on behalf of the Government members of Bahrain, Kuwait, Qatar, United Arab Emirates) raised the question whether there was sufficient expertise in Islamic law in the Committee of Experts and the Standards Department. A Workers' member of Poland welcomed the appointment of a new female member to the Committee of Experts and hoped that male dominance of that body would be further reduced. The Committee was reminded by the representative of the Secretary-General that, in addition to Ms. Letowska of Poland, the Committee of Experts includes Ms. Al-Awadhi, an experienced jurist, of Kuwait; further, one post in the Standards Department would shortly be occupied by a native Arabic speaker, while another of regional adviser on standards for Arab countries would also be filled in July 1993.

17. The Workers' member of Japan suggested that, in order to safeguard its objectivity and impartiality, the Committee of Experts should, when examining individual cases, ensure that an Expert from the country in question would refrain from participating, so as to avoid undue outside pressure on the Expert.

(ii) Interpretation of Conventions

18. The Committee noted that an Office document (GB.256/SC/2/2) had been submitted to the Governing Body Committee on Standing Orders and the Application of Conventions and Recommendations at its May 1993 Session, concerning article 37, paragraph 2, of the Constitution and the interpretation of international labour Conventions, and that that Committee would continue its examination of the matter at a future session. Article 37 (2) empowers the Governing Body to "make and submit to the Conference for approval rules providing for the appointment of a tribunal for the expeditious determination of any dispute or question relating to the interpretation of a Convention".

19. The Employers' members stated that the document had been called for in discussions held in the Conference Committee in recent years, and they found it interesting and in many respects well-researched. Further consideration should be given in due course to whether a tribunal should be established under the Constitution, as to which the Employers reserved their judgement. The document showed that every supervisory body examining whether a State was fulfilling its obligations under a Convention had to undertake the task of interpretation, although only one - the International Court of Justice - could do so with binding authority. The fact that the Conference Committee might be considered a "political" body did not mean that it does not find its rightful place in the interpretation of Conventions, as paragraphs 19 and 20 of the document indicated, according to article 7 of the Conference Standing Orders. The Employers' members recalled that the Committee of Experts did not regard its interpretations as establishing res judicata or decisions binding erga omnes.

20. As regards the principles and methods of interpretation, the Employers' members noted that the document referred to the 1969 Vienna Convention on the Law of Treaties, as they themselves and the Committee of Experts had done in the past. Under Article 32 of the Vienna Convention it was clear that recourse should be had to preparatory work only as a supplementary means of interpretation in order to confirm an interpretation made under Article 31 or to correct an ambiguous or absurd result. Paragraphs 43 to 48 of the document were also unclear in that it was unrealistic to distinguish between diplomatic and tripartite conferences as bodies in which international treaties are elaborated: the decisive factor was that it is in international law States which have to fulfil obligations and to decide whether to incur them. Nor did Article 5 of the Vienna Convention help, as the ILO does not have its own rules on interpretation. Sometimes it was suggested or openly maintained that the Employers had formerly said something different. However, there was no contradiction of today's statements. The same had already been said in 1983 in the Employers' spokesman's comments regarding Conventions Nos. 87 and 96 under Article 19. Further continuity could be found in the protocol of the 121st Session of the Governing Body from 3 to 6 March 1953. More than 40 years ago the then Employers' spokesman, Pierre Waline, had clearly rejected the deduction of a detailed right to strike from Conventions Nos. 87 and 98.

21. The Employers' member of the United States remarked that disagreements over the method and substance of interpretations arose in only a small proportion of the vast number of comments made over the years by the Committee of Experts. The report of the Conference Committee that had led to the creation of the Committee of Experts stated that it would have no judicial capacity or competence to give interpretations of Conventions. Whilst the work of the Committee of Experts was clearly of the utmost importance to the work of the present Committee, it could not be presumed that this Committee would automatically accept Committee of Experts' interpretations, which had to be discussed sometimes over a period of time. Developing the indication in paragraph 22 of the document, he considered that parties who had drafted standards were in the best position to determine their meaning: this could not lead to "clandestine modification of meaning", as the Conference Committee meets in public. The Committee of Experts should highlight and explain any new interpretations in the general part of its reports in its observations on cases, and in general surveys, so that they are more readily evident to everyone. Otherwise, States may ratify Conventions with no notice or indication from the wording or legislative history of detailed interpretations subsequently made and tending in some instances towards "optimal" labour standards. Too detailed interpretation was another factor discouraging ratification.

22. The Workers' members reaffirmed their attachment to the interpretation of Conventions by an impartial organ such as the Committee of Experts or the International Court of Justice: they agreed with the Experts that, as long as the opinions of the former are not contradicted by the latter, they are valid and to be accepted. It was against the ground rules of the supervisory system for a government to criticize the conclusions of the Committee of Experts without having recourse to the Court. The procedures would be prolonged to the detriment also of constructive tripartite dialogue in the present Committee. A better solution was to reinforce the present supervisory bodies.

23. The Workers' members found the Employers' arguments as to the Vienna Convention political and legally unconvincing. Article 31 (3) (b) of the Convention meant that account should be taken of interpretations and viewpoints expressed by the competent organs of the Organization (viz. the Committee of Experts and the Committee on Freedom of Association); Article 5 preserves the specificity of UN specialized agencies such as the tripartite ILO. The Workers' members as a whole associated themselves with the analysis made by a Workers' member of Poland, that Article 5 of the Vienna Convention guarantees the autonomy of rules and working methods of the ILO, and that the ordinary meaning of the terms of a Convention concerning human rights (such as Convention No. 87) must be found in their context and in the light of the object and purpose of the Convention. Human rights Conventions must necessarily be interpreted progressively as living instruments.

24. The Committee entertained a wide-ranging exchange of views but reached no conclusion as to the advisability of setting up an article 37 (2) tribunal. The Workers' members, as regards possible application of article 37 (2), and the creation of a tribunal to resolve any question or overcome any difficulty in the interpretation of a Convention, consider such a step could question the credibility and authority of the Committee of Experts. Several members (e.g. the Government members of France, Nigeria, Spain, Syrian Arab Republic) expressed varying degrees of support for a tribunal which would speedily resolve disagreements on interpretation and take account of the ILO's characteristics. The Workers' member of Norway (speaking also on behalf of the Workers' members of Denmark, Finland, Iceland and Sweden) compared article 37 (2) to similar provisions in the constitutions of other international organizations. Several other members (e.g. the Government members of Australia, Switzerland, United States) questioned the need for a tribunal, given the existing supervisory system, at least, in the view of the United States Government, until there was certainty that there would be no negative impact on the authority, credibility or effectiveness of those bodies. The Committee agreed that the matter required further study.

25. The representative of the Secretary-General assured the Committee its views would be brought to the attention of the Governing Body when it examined the document further, and the Committee would be informed of developments.

(iii) Reporting obligations

26. Following its discussions of governments' difficulties in meeting reporting obligations in recent years, the Committee was informed by the representative of the Secretary-General of preliminary consideration given by the Office to the possible rearrangement of the procedure for requesting reports, with the aim of maintaining and if possible improving the quality of the supervisory system, concentrating on cases of serious problems of application, and reducing the workload on national administrative authorities.

27. The Employers' members agreed with the approach taken by the Office in its internal working document. They recalled their concern that, alongside the increase in absolute terms in the numbers of reports due, following the accession to membership of the ILO of new States and the consequent new ratifications, the proportion of reports received continued to fall: this led to unequal treatment as between governments which meet their obligations and those which do not. The increasing numbers of reports posed a problem for the Office, the Committee of Experts and the Conference Committee.

28. The Workers' members stressed that no reform of the supervisory system must be allowed to weaken the application of Conventions in law and practice. The regular supervisory system should be maintained for all the Conventions classified by the Governing Body in 1987 as basic human rights ones, plus those on labour inspection, employment policy and tripartite consultation: reports on these should be requested automatically, in order to avoid discrimination between States, whilst cases of serious difficulty - including in respect of Conventions not regarded as basic human rights ones - should be dealt with outside the normal cycle as they are now and on the initiative of the present Committee. The Workers' members also reminded the Committee that governments' reports often do not give full information, which impedes an effective appreciation of the situation.

29. In a further exchange of views, members of the Committee generally expressed support for the efforts being made to improve the reporting system, agreeing with the view that the changes must nevertheless not lead to weakening of the system. On the Workers' side, several speakers expressed particular caution and concern that prolongation of the reporting period should not lead to lowering of the standards being applied; one called on governments to make greater efforts to comply with their constitutional obligations. The Government member of the United States hoped eventual reforms to the reporting system would enable the Office and the Committee of Experts to focus more on long-standing, and emerging and potential problems of application; and when the Governing Body considered the Office's proposals it should insist on strict safeguards to ensure that a full, detailed report would be immediately requested and reviewed whenever there was a concern that there was or could be a problem with the application of a ratified Convention; nor should supervision be limited to the most flagrant violations of particular Conventions, but all ratified Conventions had to be fully implemented.

30. The representative of the Secretary-General stated that the Office took careful note of all the statements made. He reassured the Committee that any future reforms would in no case be allowed to weaken the quality and effectiveness of the supervisory system. He hoped a balanced package of measures replacing certain automatic procedures with more selective and objective ones - stressing always the role of employers' and workers' organizations - would be possible.

(iv) Publication of the Committee of Experts' report

31. The Workers' members and several Government members referred to the inability of many delegations to prepare for the Conference, because they receive the Committee of Experts' report too late. For this reason, the Committee welcomed the Office's consideration of a proposal to the Governing Body which would mean bringing forward the date of the report's publication.

32. Several Government members (Egypt, Iraq, Saudi Arabia (speaking also on behalf of the Government members of Bahrain, Kuwait, Qatar, United Arab Emirates), Syrian Arab Republic) also drew attention to the delays caused by having to translate the Committee of Experts' report and other documents into Arabic. They called for early translations to be made available. The representative of the Secretary-General recalled that the comments relating to Arabic-speaking countries and the general part of the Committee of Experts' report are already translated into Arabic.

(v) Role of employers' and workers' organizations

33. The Committee underlined the important part played in the supervisory system by employers' and workers' organizations. This has become increasingly evident recently as the numbers of their comments on the application of Conventions noted by the Committee of Experts have risen to record levels. The operation of dynamic tripartism in the present Committee reflects both the natural interest which employers and workers have in the ILO's supervisory system and the socio-economic reality which is its background.

34. The Government member of Kenya attributed the great interest shown by employers' and workers' organizations in part to the constant efforts made by the supervisory bodies and the Office to furnish them with full information on their role.

II. Principles of standard-setting

(vi) Standard-setting policy

35. The Committee noted with interest the representative of the Secretary-General's indications as to the enhanced role of the International Labour Standards Department of the Office in preparing proposals for the Conference agenda for submission to the Governing Body, and in collaborating in the secretariat of each technical committee of the Conference elaborating standards. Together with the deployment of standards specialists in the field in 12 of the new multi-disciplinary teams, it is hoped that this will help better to meet the constituents' concerns, as expressed for example in the Conference Committee, at all stages in the life-cycle of international labour standards.

36. The Employers' members stressed the connection between the setting, ratification and practical application of standards: it was irrational to promote the setting of standards which were too far-reaching or complex, containing detailed rather than general aims, and which either could not be ratified or once ratified could not be translated into national law and practice.

37. The Government member of Switzerland suggested that, when the future of standard-setting policy is discussed, the ILO should become a sort of "social GATT", with the aim of creating conditions of competition balanced by universally recognized social standards. The Workers' members supported this suggestion. They also agreed with the Employers' view that the ILO's priority is the fight against poverty and realization of the objective of social justice, and they considered that it is through social rights and labour standards that the hopes of the Declaration of Philadelphia may be realized.

38. Several Government members (Australia, China, France, Islamic Republic of Iran, Kenya, Switzerland) spoke in favour of maintaining or increasing the degree of flexibility in standards. Another (Portugal) called for measures to encourage and if necessary assist member States to participate more fully in the various stages of the elaboration of standards. The Government member of Germany pointed out that some new Conventions pose difficulties as to their ratification because, as a result of compromises reached, they are inappropriately and unclearly worded.

39. The Workers' member of Argentina warned of the damage done to the standard-setting system, when Employers' members stated they were against the ratification of certain Conventions and in favour of reviewing others or making them more flexible. This had incited certain governments to disregard the requirements of Conventions, for example by simply cancelling large numbers of collective agreements. The arguments put forward by certain governments in favour of flexibility only contributed to the employers' cause, to the detriment of the workers. A remedy should be found to such situations.

(vii) Current changes: development and transition

40. Referring to paragraph 11 of the Committee of Experts' report, the Employers' members mentioned the transition of many countries to a market economy. These and other world developments presented new challenges and necessitated a review of all the ILO's activities, including standard-setting, supervision of standards, technical cooperation and the Organization's internal structure, as advocated in the International Organization of Employers document "Proposals for a thorough reform of the ILO".

41. The Workers' members emphasized the role of international labour standards, when the world had become dominated by the logic of the global market-place, from which the workers often derive little or no benefit, even if overall economic growth is obtained. The ILO's 1993 edition of the World Labour Report shows the social cost of recent developments - including loss of freedom of association - and the danger of provoking protectionism. The Workers' members consider the social dimension vital to development strategy and rational economic structural adjustment. Democratization in itself does not guarantee the observance of standards, and the Director-General's 1994-95 budget proposals rightly link it to the fight against poverty and the improvement of social protection through the elaboration and supervision of international labour standards as the prime objectives of the Organization. Several new member States have already demonstrated their support for standard-setting by ratifying Conventions despite administrative and economic difficulties; and in the Workers' view international labour standards offer an excellent scenario for the labour market protagonists.

42. Further, the Workers' member of the United Kingdom recalled that Western governments and the Employers had earlier seen labour standards and human rights - including the right to organize and the right to strike - as bulwarks against Communism, and it seemed they now considered labour standards should conform to the laws of the market-place. Whilst Communism had indeed failed both because it was economically inefficient and, moreover, because it did not respect human rights, it did not follow that the unregulated and exploitative free market should be welcomed without guaranteeing workers the protection of the same standards and rights.

43. Several members from countries in transition from a planned to a market economy (for example, the Government members of Bulgaria, China, Mongolia, Russian Federation) referred to the need for new social and labour legislation on the model not only of existing market economy countries but also of international labour standards. They hoped that the Office would continue to supply technical advice in this respect, as well as on other measures to deal with unemployment and the elimination of discrimination.

44. The Committee noted with approval the Committee of Experts' comments in the field of discrimination. It referred also to recent serious and inhuman acts of discrimination, particularly against ethnic and religious minorities in certain countries. Many members of the Committee strongly recommend to all States the ratification and full implementation of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).

(viii) Universality of standards

45. The Committee's attention was drawn by many speakers to the importance of the principle of universality, both as regards the terms in which international labour standards are conceived and as regards their application. Some speakers indicated that, in order to ensure that standards lend themselves to implementation by developing as well as industrialized countries, they should be drafted as flexibly as possible. Others referred in this context to the Office's 1989 study of flexibility devices in Conventions (Governing Body document GB.244/SC/3/3), and to the increased role of the Standards Department in the preparatory work for possible new instruments.

46. Universality in the application of standards means that there should be no relativity or "double standards" in their interpretation and the manner in which they are supervised by the ILO. The Workers' members considered that the principle applies to the manner in which the Committee selects and treats individual cases: at neither stage should different criteria be used according to a country's economic or strategic importance, and it was a sinister practice to overlook failures by industrialized countries, while criticizing developing countries for their failures. The view was expressed that there should be equal treatment among States.

47. The Government member of Sri Lanka stated that he believed the prevailing situation in a country sometimes, despite repeated comments by the Committee of Experts, did not warrant the amendment of legislation involving minor, dormant divergencies from a ratified Convention. In such cases, there should be a flexible approach which took into account the country's social, economic and perhaps political environment, and the Committee of Experts should examine this matter further. The Government member of Malaysia also called for a more pragmatic and less legalistic approach by the present Committee and the Committee of Experts when considering the observance of ratified Conventions especially by developing countries and new member States.

(ix) The question of revision of standards

48. Several Government members referred in general terms to a perceived need to revise certain older Conventions; the Government member of Australia mentioned ones containing special provisions for women workers not now regarded as consistent with the principle of equal treatment.

49. The Workers' members pointed to the Report of the Governing Body Working Party on International Labour Standards (ILO Official Bulletin, Special Issue, Vol. LXX, 1987, Series A - the "Ventejol Report"), examination of which showed that all existing Conventions in need of revision had by now been revised or were currently undergoing the procedures for possible revision. It was thus contrary to the Governing Body's position to suggest that some other standards - even fundamental human rights ones - should be revised in order to make them more flexible.

III. General aspects of the application of standards

(x) Ratifications

50. The Workers' members called for further ratifications by member States, including industrialized countries, and particularly of basic human rights Conventions. They also called for ratifications by new States formerly bound by Conventions as constituent parts of other States. They remarked on the differences between the regions as regards numbers of ratifications, and in this light stressed the role of the ILO's promotional activities.

51. The Government member of Portugal underlined the usefulness of ratifying and implementing the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), as a means of promoting the ratification of other Conventions. Others referred in this respect to the opportunity presented by article 19 general surveys for the Office, the Committee of Experts and the present Committee to clarify the provisions of Conventions perhaps causing difficulties to governments as regards ratification.

52. The Committee noted with interest the indications by several Government members that ratifications were envisaged or under consideration, as follows: Bulgaria (Fee-Charging Employment Agencies Convention (Revised), 1949 (No. 96), Social Security (Minimum Standards) Convention, 1952 (No. 102), Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144)); China (Chemicals Convention, 1990 (No. 170)); Mongolia (Labour Inspection Convention, 1947 (No. 81), Labour Inspection (Agriculture) Convention, 1969 (No. 129), Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), Occupational Safety and Health Convention, 1981 (No. 155)); Sri Lanka (Human Resources Development Convention, 1975 (No. 142), Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144)); Suriname (Right to Organize and Collective Bargaining Convention, 1949 (No. 98), Collective Bargaining Convention, 1981 (No. 154), Termination of Employment Convention, 1982 (No. 158)); United States (Discrimination (Employment and Occupation) Convention, 1958 (No. 111)).

(xi) Denunciations

53. The Employers' members referred to the case where, in their view, Conventions had been adopted which proved ill-adapted to changing circumstances of fair competition in the labour market, such that the numbers of denunciations were accumulating. This had been so for the Night Work (Women) Convention, 1948 (No. 89), and for the Fee-Charging Employment Agencies Convention (Revised), 1949 (No. 96).

54. The Workers' members did not agree that those denunciations were justified. They drew attention to the requirement under Article 5 (1) (e) of Convention No. 144 of tripartite consultations before denunciations are made. And they called for tightening of the procedures for denunciation laid down in the final articles of Conventions, so that in addition States denouncing be required to give detailed reasons for the denunciation or for not ratifying a revising instrument or for not re-ratifying a Convention with acceptance of more flexible provisions in it (as is possible in respect of Convention No. 96) and to seek solutions in order to avoid the denunciations. This could be done through a revision of the Final Articles Revision Convention, 1961 (No. 116). The Government member of Germany indicated that in the case of his Government's denunciation of Convention No. 96, the time limits - which were very long by comparison with those for other international treaties - played a decisive role.

(xii) Submission to the competent authorities

55. Several members referred to the importance of fulfilling the Constitutional obligation to submit the Conventions and Recommendations adopted by the Conference to the competent national authorities, as a first step towards possible ratification and implementation of standards. Some pointed out the practical difficulties in completing the submission procedure on time, especially when the authentic texts adopted by the Conference have to be translated into one or more national languages. The usefulness of assistance given by the Office in the drafting of submission documents was acknowledged by several members.

(xiii) Application of standards in particular circumstances: export processing zones and enterprises; offshore installations; maritime labour standards

56. The Workers' and other members welcomed the further attention given by the Committee of Experts to the problem of export processing zones and enterprises created in the hope of encouraging economic development and sometimes involving a relaxation of labour protection, following the present Committee's mention of it last year. It was recalled that ratified Conventions should be fully applied in conformity with international law, and special concern was expressed as to matters of freedom of association, discrimination and safety and health.

57. The Workers' member of Argentina observed that the general part of the Committee of Experts' report did not deal this year with offshore installations, seafarers on board ships flying flags of convenience, or fishing workers. The Committee's attention was nevertheless drawn by the representative of the Secretary-General to current consideration being given within the Organization to possible new maritime standards, and to the Committee of Experts' comments to individual States on the application of various Conventions to seafarers. The observer of the World Federation of Trade Unions stated that the exclusion of provisions of ratified ILO Conventions or restriction or abolition of freedom of association in export processing zones or other special economic zones was a violation not only of ILO Conventions but also of the Vienna Convention, which provides that a treaty must apply throughout the territory of a State.

(xiv) Freedom of association

58. The Employers' members discussed the issue of the interpretation of Conventions (see above, section I (ii)), particularly in connection with the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), and the question of the right to strike, They indicated that they had consistently held the view that Convention No. 87 does not regulate the right to strike. The text of the Convention did not mention it, and the preparatory work showed the Conference had reached no consensus on the matter. Nor, in their opinion, could there be recourse to "relevant rules of the organization" under Article 5 of the Vienna Convention, since in this case there were no such rules, and under the related ILO procedures it was clear that the views taken by the non-governmental constituents (i.e. employers' and workers' organizations) would conflict. According to the Employers, Convention No. 87 had been interpreted as incorporating the right to strike 13 years after its adoption. Where there was doubt, the principle of international law in dubio mitius should be applied so as not to exaggerate the obligations of the Convention. However, the Committee of Experts had, the Employers stated, considered that a restriction of strikes was admissible only within very narrow limits, which was to the Employers legally incomprehensible. They hoped these questions would be dealt with in next year's article 19 general survey.

59. The Employers' members stated that in the legal order of the States, there were very different models for the legal classification of strike and lockout. One model could be sketched out as follows: a strike was regarded as a basic right that was established above the generally applicable legal order. In such a conflictual order, the social partners would have an antagonistic and irreconcilable stance. Under another model, labour disputes would also be part of a generally applicable order, a legal order which saw itself mainly as a peace order. Rights and duties of individuals and of interest groups would be balanced in relation to the rights of others and of the entire society. There were many variants of these models. Nothing indicated that the extreme conflictual model that set hardly any limits to strikes should be interpreted from Convention No. 87. Referring to the statement of a Workers' member of Germany, that the Employers were only opposing a certain interpretation of strikes because this would not coincide with their own interests, the Employers considered it natural that they should attend to their own interests and were directly affected by strikes, as they normally were directed against them. However, in today's production which was increasingly based on the principle of the division of labour, strikes more and more often also affected individuals and parts of society which were not at all involved. To this extent, it was much more important than in the past that the State established rules of law. It seemed strange that one speaker pointed out that the Employers had not been able to fully prove that the Vienna Convention was relevant for interpretation. In view of the fact that a legal question was not open to proof, this was not a task that the Employers' members had to undertake. As the applicability of the Vienna Convention was widely accepted and the Experts themselves were referring to it, there was no need for further comment. The Employers' members had already commented sufficiently on Article 5 of the Vienna Convention. Everybody was also familiar with the importance of Article 4 on non-retroactivity of the Vienna Convention. However, the Committee of Experts considered that a restriction of strikes was admissible only within very narrow limits. On page 186 of the English version of their report they state "that any prohibition or restriction of strikes should be confined to the following three cases: strikes in essential services in the strict sense of the term, namely those whose interruption would endanger the life, personal safety or health of the whole or part of the population; strikes by public servants acting in their capacity as agents of the public authority; and strikes during an acute national crisis". This abstract basic formula was further developed until a very exactly defined right to strike arose which had a tendency to allow nearly any strike and therefore forbade any restriction. According to the Experts, a State that used a different yardstick violated its international duties. The Employers had repeatedly upheld that this was juridically incomprehensible. In substance, it appeared unacceptable to any State that its possible action be restricted to cases of endangering life, personal safety or health of the entire population or parts thereof. The Employers thought that it was a fundamental duty of every State to protect its citizens, even individuals, as comprehensively as possible. This was one of the basic reasons for the existence of a State.

60. The Employers' member of the United States considered that the decisions of the Governing Body Committee on Freedom of Association were an inappropriate basis for defining the scope of the right to strike under Conventions Nos. 87 and 98, since those decisions depended on principles of the ILO Constitution and not the terms or legislative histories of the Conventions. The Employers' member of Turkey found the Committee of Experts' conclusions questionable, particularly with regard to Conventions Nos. 87 and 98: the legislative history did not justify the position taken as to sympathy strikes, political strikes, and a strict notion of essential services. The Committee of Experts did not seem to accord employers their reciprocal right under Article 3 of Convention No. 87 to have recourse to lockouts. In view, nevertheless, of the link with freedom of association, a new Convention should be considered to regulate the right to strike. It would also be desirable for the general survey on Conventions Nos. 87 and 98 next year to give clear, reasoned explanations as to the right to strike, taking account of all the views expressed in this Committee.

61. The Workers' members strongly supported the views of the Committee of Experts with regard to the right to strike, which were in accord with the case-law of the Committee on Freedom of Association. They regarded the Employers' criticism as politically rather than legally motivated. The right to strike was inseparable from the notion of freedom of association, and the Workers hoped the next general survey would consolidate the principles already established on this point. They fully shared the views of a Workers' member of Germany, that various principles of freedom of association were regarded as part of customary law; the Committee of Experts' interpretation of the right to strike in Convention No. 87 had been accepted over many years, and this made it relevant under article 31 (3) (c) of the Vienna Convention. They also agreed with a Workers' member of Poland that the right to strike had to be seen in the light of the principle ubi jus ibi remedium as a last resort means of exercising the substantive rights of Conventions Nos. 87 and 98. They equally agreed with another Workers' member of Germany that the right to strike could not be dissociated from other fundamental rights of workers; in fact, it was impossible to characterize the right to strike as interpreted by the Committee of Experts as an unlimited one.

62. The Government member of Germany observed that if the right to strike was contained implicitly in Convention No. 87, it was a matter of concern that the Convention was interpreted to imply not "the" but "a certain kind of" right to strike.

63. The Workers' member of Colombia reminded the Committee of the vital importance of the right to strike for workers where large numbers of trade unionists had even been assassinated for daring to exercise their rights. The Workers' member of Pakistan observed that, if workers are forbidden to exercise their right to strike, they are subjected to forced labour in violation of Conventions Nos. 29 and 105. He noted that the right to strike is a fundamental one in UN instruments, but underlined that the strike is not an end in itself - rather a means of achieving real dialogue between the parties.

64. Two Workers' members of Poland referred also to the continuing problem of redistribution of trade union assets in countries where union pluralism has been restored. They urged the supervisory bodies to take an active stand in this matter so as to assist in the dismantling of the former monopolistic trade unions.

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

65. The Committee discussed the Committee of Experts' general comments as to the implementation of a policy for full, productive and freely chosen employment. It fully agreed that employment policy should be the object of concertation with employers' and workers' organizations, and that many factors, such as training and economic and collective bargaining policies, must be taken into account, involving various government ministries and agencies.

66. The Employers' members again questioned the inclusion of a special section on Convention No. 122 in the general part of the Committee of Experts' report, although they found what was said realistic, particularly as to the countries in transition to a market economy. Labour market policy alone cannot create lasting jobs. The social partners, by the conclusion of collective agreements, themselves determine whether jobs are created or lost. The Employers' member of the United States stated that there was a need to open to change, when faced with the dynamic world economy, with ready availability of technology, instantaneous telecommunications and rapid transportation. Such an economy had resulted in a great deal of structural adjustment and governments, employers and workers were no longer in a position to address the consequences of these changes as if they still lived in closed economies. A single policy prescription was not necessarily the solution to these changes.

67. The Government member of Germany attributed the need for this section to the fact that the terms of the Convention allow the formulation of hypotheses rather than the establishment of violations.

68. The Workers' members hoped the Committee of Experts would continue to draw attention in its general report to Convention No. 122, insofar as employment and the right to work are a prerequisite to the existence of various other workers' rights: occupational safety and health, the right to organize, the right to strike. Unemployment could not be treated as a by-product of economic growth: in some countries it was no longer due only to recession but was becoming part of the system, and it behoved this Committee to voice concern for the unemployed and the poorest people in the world. The Workers' members pointed to the need under Article 3 of the Convention for governments to consult in advance organizations and representatives of different regions and sectors concerned, including the informal sector which is often overlooked. They detected a positive change in the attitudes of high officials of international institutions responsible for structural adjustment programmes (the International Monetary Fund and the World Bank) as to the impact of such programmes on the most disadvantaged sections of the population, although much remains to be done in this respect. The ILO stands for the social objectives which must be safeguarded in the face of enforced "liberalism" disguised as structural adjustment, and the 1994 High-Level Meeting in the ILO would deal with this aspect. Action on the part of the international community was needed in particular to ease the burden of foreign debt on developing countries.

69. A Workers' member of Poland considered that governments should report more fully on the Convention, so as to give the Committee of Experts sufficient grounds for conclusions. Policy in many countries in transition to a market economy unfortunately concentrated on the administration of the labour market for economic restructuring, with the provision of unemployment benefits regarded as a necessary evil: more attention should be given to the formulation and implementation of active policies for full and productive employment. As for developing countries in particular, the Government member of Nigeria noted that world recession made the promotion of full, productive and freely chosen employment very hard: the Committee of Experts should always take account of the existing economic situation when examining reports.

IV. Other standards-related activities

(xvi) Technical cooperation relating to standards

70. The Committee noted with interest the Committee of Experts' indications as to both the assistance given by the Office through the regional advisers on standards - soon to be superseded by technical advisers on standards forming part of the multidisciplinary teams - and the continuing improvement of coordination between standard setting and technical cooperation. The Government member of the United Kingdom looked forward in due course to reviewing the progress made in assisting ILO constituents with their standards-related problems. Several members (for example, the Government members of Namibia, Russian Federation, Suriname) gave examples of assistance they had received, illustrating how these activities help ensure not only the fulfilment of reporting obligations but also the actual implementation of standards. The Government member of Japan also reaffirmed his country's willingness to continue making contributions to the ILO's work, for example through multi-bilateral programmes in aid of seminars and symposiums and other forms of cooperation related to labour standards.

71. The Employers' members considered promotional measures by the Office at least as valuable in the implementation of standards as supervision and control in the traditional sense; the ILO's task for the future should not be underestimated. Therefore, every promotional measure represented an additional and important step which often could lead more rapidly to the desired goal.

72. The Workers' member of Pakistan spoke of the effort needed from employers' and workers' organizations to disseminate knowledge of what is done in the ILO in terms of international labour standards, and the ILO should do more in particular to provide guidance and training for workers in this respect.

73. The Workers' members stressed that promotional activities must not have the effect of weakening activities for the supervision of standards.

74. The Government member of Namibia expressed appreciation for ILO assistance in drafting a comprehensive Labour Act enshrining a policy of adhering and giving effect to international labour Conventions and Recommendations. The Government member of Kenya welcomed the emphasis on the ILO's advisory role as opposed to one of policing infringements of standards which were often due to socioeconomic and financial difficulties rather than a deliberate intention to violate labour standards. The Government member of China said that the ILO should increase its assistance of this kind, but that technical cooperation should not be used to impose pressure.

75. The representative of the Secretary-General indicated the Office's full agreement with the objective of increasing promotional activities, but it should be absolutely clear that this must in no case detract from supervisory activities, to which they are complementary.

(xvii) Collaboration with other international organizations, especially on human rights issues

76. The Workers' members recalled the specific tripartite structure and the mandate and competence of the ILO in social and economic matters and urged it to increase its influence as compared with the United Nations and certain other organizations, such as the financial institutions, so as to avoid being marginalized. The Committee considers that the ILO should improve its image and play a more active and critical role in the debate on labour and social issues in countries at all stages of development, including such areas as protection of children.

77. The Government members of Bulgaria and Uganda drew special attention to the need to intensify relations with the IMF and the World Bank, since their policies have such an impact on the ILO's work.

78. The Workers' members and the Government member of Belgium welcomed the ILO's active participation in the implementation, strengthening and improving of the European Social Charter of the Council of Europe.

79. The Committee welcomed the attention given by the Committee of Experts to the ILO's role in preparations for the June 1993 World Conference on Human Rights held in Vienna; and supported the action taken by the Office for the UN International Year of the World's Indigenous People, recalling the importance of the Indigenous and Tribal Peoples Convention, 1989 (No. 169). The Government member of Netherlands noted that the ILO actually functions very well in comparison with other organizations; he was concerned at the attempts being made at the Vienna World Conference to dilute the already weaker system for supervision of human rights in the United Nations and considered that UN bodies would do better to raise their level of supervision to that of the ILO rather than for the ILO to let its own working methods deteriorate.

80. The representative of the Secretary-General undertook to transmit to the Director-General of the ILO the wish expressed in the Committee for the strengthening of relations between the ILO and other international organizations, especially in the UN system, in order to avoid any isolation or marginalization of the ILO.

81. Following its discussion last year, the Committee discussed relations between the ILO's standard-setting and the activities of the European Community, particularly in the light of the Advisory Opinion of the Court of Justice of the European Communities on the question of the ratification of the Chemicals Convention, 1990 (No. 170) (referred to in document GB.256/SC/1/3). It noted that the Advisory Opinion does not wholly resolve the question of competence, but it hoped that it would now be possible for consultations and cooperation between the ILO and the EC to be intensified. The Workers' members hoped too that obstacles to ratification by EC member States of ILO Conventions on safety and health would now be overcome, and that those responsible in various regional organizations for drafting legal texts would pay special attention to the consequences for international labour standards. The Employers' members considered that relations between the ILO and the EC were not easy, especially when matters were touched on which, in the EC, member States were no longer competent. Efforts must in their view be undertaken to bring into harmony the obligations which some States had as members both of the ILO and of the EC. Participation of the social partners in ILO procedures constituted, the Employers considered, an important difference to the EC; the attempts to resolve this problem had not yet been concluded. A recent report of the Governing Body from 10 May showed that contacts between the ILO and the EC had been intensified and that consultations went on, the Employers' members stated. The Government member of Nigeria noted the increasing role of the European Community in ILO standard activities. He recalled the Advisory Opinion in question and doubted the competence of the European Community to conclude any Convention since the Community was not a member of the ILO; however, he stated, the constituent members of the Community are competent to ratify ILO standards which they have participated in formulating. The representative of the Secretary-General stated that the Office would follow this matter very carefully and keep the Committee fully informed of developments.

C. Reports requested under article 19 of the ILO Constitution

Workers with Family Responsibilities Convention (No. 156) and Recommendation (No. 165), 1981.

82. The Committee reviewed the General Survey of the Committee of Experts which examined the effect given to the above-mentioned instruments on the basis of the reports submitted under article 19 of the Constitution and, in accordance with established practice, with regard to information communicated under articles 22 and 35 of the Constitution. The survey also took due account of the comments received from 11 employers' and workers' organizations.

Aim of the instruments

83. The Committee considered the subject of the Convention and Recommendation important. The instruments have the dual objective of creating equality of opportunity and treatment in working life between men and women with family responsibilities, on the one hand, and between men and women with such responsibilities and workers without such responsibilities, on the other. It was stressed, in the survey, that the instruments formed an intrinsic part of any measures to promote equality of opportunity and treatment between men and women, an objective to which all countries should be committed, whatever their economic policy or stage of development. Referring to these explanations of the Committee of Experts, the Workers' members considered it just that the instruments had been placed among those which sought to enunciate fundamental human rights.

84. Echoing this view, the Workers' member of Australia suggested that the Convention and Recommendation were probably among the most important standards adopted by the ILO in relation to the promotion of equality between men and women workers. The Government member of China indicated that his Government was in favour of the principle of equality of opportunity and treatment provided for in the Convention and Recommendation, as did the Government member of the Syrian Arab Republic, who expressed high evaluation for the provisions of Convention No. 156, which sought improvements for the family and so had an impact on social development. Recalling the progress made in the ILO's standard-setting since 1951, the Government member of Sweden noted that the instruments under review served not only the interests of women but concerned the development of national policies to enable all persons with family responsibilities to be employed free from discrimination on that basis: thus the standards supported also men in meeting their dual responsibilities.

85. The Employers' members supported the objective of creating conditions which would enable workers to combine their family and occupational responsibilities to the greatest extent possible. All employers had an obvious interest in supporting this goal, as a worker's full potential and capability would otherwise be lost.

86. The Committee noted that the survey had traced the way in which ILO standards in the field of equality had evolved from emphasizing, at first, measures to protect women workers before shifting their emphasis to the promotion of equality. More recently, there had been an insistence that equality implied action to accord equal opportunities and treatment to women and men in all respects. It was in this context that the Employment (Women with Family Responsibilities) Recommendation, 1965 (No. 123) - which was based on the assumption that women had a greater responsibility towards their families than did men - had been replaced by Convention No. 156 and Recommendation No. 165. Throughout this evolution, there had not been, however, any derogation from the concern to provide women and their unborn and newly-born children with an adequate standard of protection.

87. The Employers' members found some contradiction between those ILO standards which sought to introduce equal regulations for men and women when, at the same time, other instruments retained the notion of preferential treatment for women. On this point, the Workers' members considered as premature any suggestion that, with the exception of measures to protect maternity and the reproductory process, the need to ensure special protection for women had passed.

Scope and contents of the instruments

88. The Workers' members considered that the survey had resolved, in a convincing manner, certain misunderstandings and important questions of interpretation that had constituted obstacles to the ratification of the Convention. Particular mention was made of the Experts' clarification of the relationship between Convention No. 156 and the Discrimination (Employment and Occupation) Convention (No. 111), 1958. Special measures in favour of women workers with family responsibilities were not incompatible with the requirements of Convention No. 156 and might in fact be indispensable to achieve effective equality between men and women under Convention No. 111. It was relevant to this point that the Workers' member of Poland considered Convention No. 156 to be a "lex specialis" for the fundamental rules of non-discrimination prescribed in Convention No. 111.

89. The Workers' members also made specific reference to Article 8 of Convention No. 156, which was cited as one of the main reasons that provoked the Employers' members to abstain from the final vote on the adoption of the 1981 instruments. The explanation offered in the survey made it clear that the requirement of Article 8 should no longer constitute an important impediment to ratification, even for countries which had not ratified the Termination of Employment Convention, 1982 (No. 158). Commenting on the way in which flexibility was often belied by apparently general clauses, the Government member of Germany stated that it was extremely difficult to ensure that Article 8 operated to the advantage, rather than to the disadvantage, of a worker with family responsibilities. In his view, several countries had been dissuaded from ratifying the Convention through fear that Article 8 could be interpreted as prohibiting termination because of the mere existence of family responsibilities. In opposition to this view, the Workers' member of Germany referred to an opinion of the Office (made in response to a request of the Government of Germany), stating that while termination of a labour contract was excluded solely on the grounds of family responsibilities, termination might be justifiable on other grounds.

90. The Workers' member of Poland regretted that the survey had not taken into account the general comments of the Human Rights Committee concerning the application of Article 40 of the UN Covenant on Civil and Political Rights which had touched on the notion of the extended family. The speaker urged the ILO not to overlook the emerging jurisprudence and case-law of the UN treaty-based monitoring bodies.

91. The Employers' members noted that the Committee of Experts had underlined the considerable flexibility of application afforded by the Convention, a feature which the Experts considered evidently to have been the intended outcome of the preparatory work. The Employers' members considered that the Convention had in fact introduced a new concept of flexibility, in that the principal requirements of the instrument enunciated hardly any specific measures, but referred instead, in a comprehensive way, to particular objectives. In their view, it became difficult to formulate objectives in a clear, juridical manner when there was an attempt to extend the scope of standards beyond the worker-employer relationship to address general problems in society.

92. In this respect, the Employers' members referred to Article 3 of the Convention which, in calling for the adoption of a policy leading to complete equality of opportunity and treatment, implied the achievement of a totally conflict-free combination of family obligations and a career. As the instrument's other provisions were more specific only in regard to particular areas such as training and education and community and regional planning, the comprehensive objectives of Article 3 were underpinned simply by other objectives, also without precise contours. Such an approach had resulted in overloading the instruments with comprehensive and idealistic targets. Accordingly, the Employers' members did not consider the standards allowed for any particular degree of flexibility. This assessment was confirmed by the fact that the second chapter of the survey described as insufficient, the policies and measures existing in certain States.

93. The Workers' member of Germany urged that the concept of flexibility be defined more closely and precisely: did the concept mean that there should be flexibility regarding the implementation by different national systems, or was there to be flexibility in the lowering of standards, thus allowing for the possibility of discriminating against workers with family responsibilities?

94. The instruments sought to promote an evolution in the respective roles of men and women, which the Workers' members supported fully, noting in this respect the change of attitude on the part of a large number of governments and a growing number of employers in the 12 years since the adoption of the instruments. In the view of the Employer's members, the traditional form of standard-setting lent itself only in a limited way to dealing with the respective roles of men and women, as many of the questions in this area were dependent on individual values and attitudes: thus, standards could not impose a specific ideal or model and different cultural traditions had to be taken into account. In the same vein, traditional relationships could not be changed either by legislation or by other initiatives of the State, though these might inspire a gradual and partial transformation. Changes in attitude and social phenomena had their own dynamics and timeframe.

95. In the discussion, allusions were made to the enterprise-level benefits to be derived from applying the principles contained in the ILO standards. The Workers' members referred to paragraph 253 of the survey which indicated that strategies introduced by employers in conformity with the Convention have proven beneficial, rather than detrimental, in economic terms. The Workers' member of Australia confirmed that substantial and quantifiable increases in productivity and improved efficiency had been noted in workplaces where policies responding to the needs of workers with family responsibilities had been adopted. The Government member of Sweden supported the proposal that the Office publish information on the benefits reaped by enterprises through the application of the principles of the instruments.

96. The Employers' members considered that since enterprises were concerned primarily with being profitable, their main task was not to provide a family-friendly environment. Steps could, of course, be taken to promote a more harmonious combination of family and work responsibilities and employers were continuing with, and enhancing, these measures. It was regretted by the Employers' members, however, that such developments were not particularly promoted by Convention No. 156; if they were taking place, this was despite the Convention.

Timeliness of the survey

97. The Workers' members considered the subject-matter of the survey an appropriate choice. Its selection was justified by the ILO's current activities concerning women workers, as well as by the need to respond to the Resolutions concerning equality of opportunity and treatment, which had been adopted by the International Labour Conferences in 1985 and 1991, respectively. Furthermore, though there had been a significant increase in the proportion of women entering the labour force, the great majority of women continued to be employed in low-paid jobs at the bottom of the occupational hierarchy.

98. Some Workers' members stated that, even though the legal protection for women had been improved in many jurisdictions, this did not necessarily mean that progress had been made in practice. The representative of the World Federation of Clerical Workers cited instances of practices in Latin American countries, where some employers required women workers periodically to present proof that they were not pregnant or, as in the case of the banks in Ecuador, to sign blank letters of resignation, which were brought into effect as soon as the women became pregnant. In a number of countries, workers in the commercial sector - of whom the majority were women - were obliged to work on Sundays, when crèches were closed. The lack of policies and official measures concerning child care had resulted in vast numbers of abandoned street children in, for instance, Brazil and Colombia, many of whom were murdered.

99. Labour conditions for women workers were said by some Workers' members to have worsened as a result of the social effects produced by structural adjustment measures being implemented in the developing countries of Latin America. The Workers' member of Nicaragua stated that there had been a serious deterioration in the situation of women workers in her country, with women representing 60 per cent of the unemployed workforce. This had resulted in an alarming increase in the level of prostitution in the urban areas, a prevalence of sexual harassment and a steep rise in the incidence of blackmail and humiliation of women. Discrimination in the agricultural sector was extremely serious, with gynaecological examinations being required prior to hiring. The establishment of export processing zones had, in many countries, resulted in the permanent violation of the human rights and dignity of the women employed in such zones.

100. In the countries of Eastern and Central Europe, paid holidays and paid leave to care for sick family members had been reduced, according to the Workers' member of Poland. Many women were, moreover, employed in workplaces in conditions which were particularly arduous for their health and safety. The fact that male workers were deprived of certain rights that were granted to women workers resulted in discrimination against the women through the legislative imposition of greater responsibilities with respect to the family, rather than leaving couples the freedom to determine for themselves how they might share those duties. The majority of discriminatory provisions that were in violation of Convention No. 156 were also breaches of Convention No. 111; as Convention No. 111 had been ratified by many countries, recourse should also be sought under its provisions.

101. The Workers' member of Pakistan drew attention to paragraph 265 of the survey where it had been pointed out that the position of women in the labour market still tended to mirror their traditional domestic role. It was in the interests of the family that women had access to gainful employment, the lack of which was accentuated in the least developed countries, and especially in rural areas where women were not protected by labour legislation concerning minimum wages, social security and working conditions and were, consequently, the poorest groups in those countries. In urban areas, women were also confined to low status precarious jobs, characterized by poor remuneration and lacking in opportunities for education, training and career development. Trade unions were thus obliged to promote equality for women not only in education and training but also as concerned their entry into employment so that women's status was commensurate with their contribution to society. However, it was also the duty of employers and the State to encourage women to enter the labour force with adequate protection against any form of discrimination. Member States could demonstrate their political will to bring about the necessary changes by ratifying and implementing the Convention.

Final remarks

102. The Workers' members considered that the survey had clarified considerably the requirements of those provisions that appeared to have given rise to questions of compliance by States concerned to ratify the Convention. They did not consider justified the criticisms regarding the lack of flexibility accorded by the Convention, as several of its Articles were phrased in ways that would enable account to be taken of the economic difficulties and particular situations prevailing in individual countries. The flexibility of the instruments had been welcomed by the Workers' members during the discussion and adoption of the instruments in 1981. The Workers' members felt that the implementation of the instruments should be organized at all levels - national, regional, sectoral and at the level of the undertaking - in a complementary manner. If the initiative to take appropriate measures were left to individual enterprises, this would result in the differential treatment of workers employed in small and medium undertakings and those working in poor and unorganized sectors.

103. While noting the explanations advanced in the survey for the low level of ratification of the Convention, the Workers' member of Poland considered that more could be done were governments to consult the representative workers' organizations in their countries to bring about the adoption of a consistent policy to achieve the objectives of the instrument. Noting that only 11 observations had been received from workers' and employer's organizations, the speaker also suggested that the Office and the Committee of Experts encourage governments to consult with the representative organizations with a view to obtaining their comments on unratified Conventions, an obligation that was more clearly set forth under article 22 of the ILO Constitution, than under article 19. The Workers' member of Pakistan also raised for consideration the possibility that requests for information on unratified Conventions be sent to workers' and employers' organizations to permit them to respond directly.

104. While considering the objectives of Convention No. 156 not only understandable, but meaningful and sensible, the Employers' members restated their view that it was not possible to attain those objectives through the application of the instrument or through legal prescription. Awareness and a change of attitude were needed. It was difficult for ratifying member States to translate the general and far-reaching provisions of the Convention into practice, a factor that explained the low level of ratification of the instrument. Accordingly, the Employers' members suggested that Convention No. 156 be classified among those instruments seriously in need of revision, in the hope that a redrafted Convention could be framed in more practicable and realistic terms.

105. The information and explanations contained in the survey were appreciated by many speakers both from States that had ratified the Convention and from those which had not taken that step. The Government member of Sweden pointed out that despite the desire for change in accordance with the instruments, women still bore a disproportionate share of the double burden of work and family responsibilities, as was evidenced by the growing proportion of women forced to undertake part-time work. While conceding that attitudes could not be regulated, she stressed that the standards nevertheless provided a supportive legal and political framework in which the social partners could give practical effect to the objectives of the instruments. The Government member of Australia stated that, even though the Convention had already been ratified, the survey would prove helpful in assisting her Government to develop further appropriate measures to achieve the objectives of the Convention, since it contained a comprehensive review of measures taken in other States. The Government member of the Syrian Arab Republic expressed the intention of his Government to endeavour to adapt national legislation in the direction prescribed by Convention No. 156. The Government member of China indicated that while the standards set out in the Convention and Recommendation on the provision of household service had not been reached because of the country's insufficient development of the social service sector, nevertheless the Government was making efforts to implement the instruments and hoped to ratify the Convention in the near future. The importance of the Convention was also attested to by the Workers' member of Iceland, who indicated that the labour movement in her country was preparing to apply pressure on the Government to ratify the Convention.

106. For many speakers, the survey was an important contribution to the activities to be undertaken in 1994, declared the International Year of the Family by the United Nations. The Workers' members called upon the ILO to take measures to encourage the ratification of Convention No. 156 during 1994. The representative of the World Federation of Clerical Workers considered, in this regard, that a vigorous international awareness campaign should be undertaken by the ILO to promote the subject of the survey; and for this, she offered the collaboration of her organization, as well as that of the Latin American Commission of Female Workers. The Workers' member of Uruguay stressed the importance of investing in the family which was, after all, the basic unit of society: that investment would bear fruit for everyone. The ILO had a fundamental role to play in promoting the ratification of Convention No. 156 for the benefit of all members of society. These sentiments were supported by the Government member of Sweden who also suggested that the ILO make every effort to disseminate information on the implementation of the instruments, both shortcomings and successes, to both United Nations and ILO constituents in order to promote equality worldwide and to inspire more States to ratify Convention No. 156. In the view of the Workers' member of Iceland, the importance of the instrument for the activities of 1994 was summarized in paragraph 7 of the survey, which stated that while pregnancy, confinement and breast-feeding were uniquely, biologically, a woman's province, reproduction was itself a social function that should be protected by society.

D. Compliance with specific obligations

107. The Committee decided that, in examining individual cases relating to compliance by States with their obligations under or relating to international labour standards, it would apply the same working methods and criteria as last year, as amended or clarified in 1980 and 1987.

108. In applying those methods, the Committee decided, on the proposal of the Workers' members supported by the Employers' members, to invite all governments concerned by the comments in paragraphs 87 (compliance with reporting obligations), 93 (supply of first reports), 96 (lack of reply to comments of the supervisory bodies), 121 (special problems relating to submission) and 125 (lack of reports on unratified Conventions and on Recommendations) of the Committee of Experts' report to supply information to the Committee in one half-day sitting to be devoted to those cases. This, it was hoped, would serve to increase the impact of the discussion and conclusions and make better use of the time devoted by the Committee to those cases.

109. The Committee noted that this new approach had produced interesting results as a first trial. Nevertheless, it should in no sense be understood by governments as dispensing them from the need to take part in the Committee's discussions. The Committee looks forward to next year, when the procedure will be further refined, to enable it to ensure the fullest possible examination of all these cases. In the Committee's view, it is essential to find the best possible means of improving its effectiveness in this respect.

OBLIGATION_A Submission of Conventions and Recommendations to the competent authorities

110. In accordance with its terms of reference, the Committee considered the manner in which effect is given to article 19, paragraphs 5 to 7, of the ILO Constitution. These provisions require member States within 12, or exceptionally 18, months of the closing of each session of the Conference to submit the Conventions and Recommendations adopted at that session to "the authority or authorities within whose competence the matter lies, for the enactment of legislation or other action", and to inform the Director-General of the ILO of the measures taken to that end, with particulars of the authority or authorities regarded as competent.

111. The Committee noted from the report of the Committee of Experts that considerable efforts to fulfil the submission obligation had been made in certain States, namely: Cape Verde, Guinea-Bissau.

112. The Committee was informed by various other States of measures taken to bring Conventions and Recommendations before the competent national authorities. It welcomed the progress achieved and expressed the hope that there would be further improvements in States that still experience difficulties in complying with their obligations.

OBLIGATION_B Failure to submit

113. The Committee noted with regret that no indication was available that steps had been taken in accordance with article 19 of the Constitution to submit the Conventions and Recommendations adopted between 1985 and 1991 by the 71st to 78th Sessions of the Conference to the competent authorities, in the cases of Antigua and Barbuda, Bangladesh, Belize, Cambodia, Congo, Guyana, Jamaica, Kenya, Madagascar, Pakistan, Paraguay, Saint Lucia, Seychelles, Sierra Leone, Zaire.

OBLIGATION_C Supply of reports on ratified Conventions

114. In Part B of this report (General questions relating to international labour standards) the Committee has considered amongst other things the fulfilment by States of their obligation to report on the application of ratified Conventions. 17.1 per cent of the reports due had been received by 15 October 1992, the date fixed by the Governing Body, the highest figure since 1982 (the figure was 13.4 per cent in 1991). By the date of the meeting of the Committee of Experts, the percentage of reports received had risen to 65.4, which is the lowest recorded since 1946. Since then, further reports have been received, bringing the figure to 75.8 per cent (as compared with 76.8 per cent in June 1992 and 83.7 per cent in June 1991). This year, the Committee of Experts noted that 56 per cent of the reports on Conventions for which information on practical application was requested contained such information, slightly higher than in 1991 and 1992 (50 per cent), but less than in 1989. The Committee emphasizes the importance of sending practical information, without which it is impossible to know if a Convention is actually being applied. The Committee joins the Committee of Experts in appealing to governments to make every effort to include the necessary information in future reports.

OBLIGATION_D Failure to supply reports and information on the application of ratified Conventions

115. The Committee noted with regret that no reports on ratified Conventions had been supplied for two years or more by the following States: Albania, Cambodia, Guinea-Bissau, Lao People's Democratic Republic, Lesotho, Liberia, Seychelles, Somalia.

116. The Committee also noted with regret that no first reports due since 1990 on the following ratified Conventions had been supplied by Cameroon (Convention No. 162) and Yemen (Conventions Nos. 122, 156, 158). It stresses the special importance of first reports, on which the Committee of Experts bases its first evaluation of compliance with ratified Conventions.

117. In this year's report, the Committee of Experts noted that 40 governments had not communicated replies to most or any of the observations and direct requests relating to Conventions on which reports were due for examination this year, involving a total of 318 cases (compared with 330 cases last year and 335 two years ago). The Committee was informed that, since the meeting of the Committee of Experts, 14 of the governments concerned had sent replies, which would be examined by the Committee of Experts next year.

118. The Committee noted with regret that no information had yet been received regarding any or most of the observations and direct requests of the Committee of Experts to which replies were requested for the period ending 30 June 1992 from the following countries: Afghanistan, Angola, Bahamas, Belize, Central African Republic, Côte d'Ivoire, Djibouti, Ethiopia, France, Guinea-Bissau, Guyana, Iraq, Kuwait, Lao People's Democratic Republic, Lesotho, Liberia, Malawi, Nepal, Niger, Saint Lucia, Sao Tome and Principe, Seychelles, Solomon Islands, Somalia, Yemen, Zimbabwe; France (French Guiana, Guadeloupe, Martinique, Réunion, Saint Pierre and Miquelon).

119. The Committee noted the explanations provided by the governments of the following countries concerning difficulties encountered in discharging their obligations: Afghanistan, Angola, Bahamas, Côte d'Ivoire, France, Iraq, Kuwait, Malawi, Zimbabwe.

OBLIGATION_E Application of ratified Conventions

120. The Committee noted with particular interest the steps taken by a number of governments to ensure compliance with ratified Conventions. The Committee of Experts listed in paragraph 102 of its report new cases in which governments had made changes to their law and practice following comments it had made as to the degree of conformity of national legislation or practice with the provisions of a ratified Convention. There were 44 such cases, relating to 32 States and two non-metropolitan territories in all regions of the world. Almost 2,000 cases of progress have been recorded since the Committee of Experts began listing them in 1964. These results are tangible proof of the effectiveness of the supervisory system.

121. At its present session, the Committee was informed of other instances in which measures had recently been or were about to be taken by governments with a view to ensuring the implementation of ratified Conventions. While it is for the Committee of Experts to examine these measures, the present Committee welcomes them as fresh evidence of the efforts made by governments to comply with their international obligations and to act upon the comments of the supervisory bodies.

122. The Committee thought it appropriate to draw the attention of the Conference to various important cases which it had to consider.

OBLIGATION_F Cases of progress

123. The Committee noted with satisfaction that in a number of cases - including many involving basic human rights - governments have introduced changes in their law and practice in order to eliminate divergencies previously discussed by the Committee. It considers highlighting these cases a positive approach towards influencing governments to respond to comments of the supervisory bodies. In this respect, it refers to the report of the Committee of Experts and the discussion of individual cases which appears in Part Two of this report.

OBLIGATION_G Special cases

124. The Committee considered it appropriate to draw the attention of the Conference to its discussions of the cases mentioned in the following paragraphs, a full record of which appears in Part Two of this report.

125. As regards the application by Myanmar of the Freedom of Association and the Protection of the Right to Organize Convention, 1948 (No. 87), the Committee took note of the information repeated by the Government representative according to which his Government was committed to a process of change in the country's legislation in order to guarantee trade union rights. Nevertheless, the Committee recalled that the Committee of Experts and the Conference Committee had indicated to the Government, over a period of several years, the provisions of the legislation requiring amendment and up to now these changes in the legislation had not yet been accomplished. Consequently, the Committee expressed its deep concern and firmly urged the Government to adopt, in the very near future, the necessary measures in legislation and practice to guarantee to all workers and all employers without any distinction and without prior authorization the right to organize even outside the existing trade union structure should they so wish. The Committee trusted that it would be able to take note of substantial progress in the application of the Convention and requests the Government to transmit relevant detailed information in its next report.

126. The Committee trusts that the government concerned will take all measures necessary to correct the deficiencies noted and invites it to consider appropriate forms of ILO assistance, including direct contacts, to ensure that real progress is achieved by next year in the observance of its obligations under the ILO Constitution and the Convention in question.

OBLIGATION_H Continued failure to implement

127. The Committee recalls that its working methods provide for the listing of cases of continued failure over several years to eliminate serious deficiences, previously discussed, in the application of ratified Conventions. This year the Committee noted with grave concern that there had been continued failure over several years to eliminate serious discrepancies in the application by Sudan of the Forced Labour Convention, 1930 (No. 29).

128. The Governments of the countries to which reference is made in paragraphs 125 and 127 are invited to supply the relevant reports and information to enable the Committee to follow up the above-mentioned matters at the next session of the Conference.

OBLIGATION_I Supply of reports on unratified Conventions and on Recommendations

129. The Committee notes that 153 of the 280 article 19 reports requested on the Workers with Family Responsibilities Convention (No. 156) and Recommendation (No. 165), 1981, were received at the time of the Committee of Experts' meeting, and a further 10 since, making 58.2 per cent in all.

130. The Committee noted with regret that over the past five years none of the reports on unratified Conventions and on Recommendations requested under article 19 of the Constitution had been supplied by the following: Cambodia, Djibouti, Libyan Arab Jamahiriya, Papua New Guinea, Paraguay, Saint Lucia, Seychelles, Sierra Leone, Solomon Islands, Somalia, Yemen, Zaire.

OBLIGATION_J Communication of copies of reports to workers' and employers' organizations

131. Once again this year, the Committee did not have to apply the criterion "The government has failed during the past three years to indicate the representative organizations of employers and workers to which, in accordance with article 23 (2) of the Constitution, copies of reports and information supplied to the ILO under articles 19 and 22 have been communicated".

OBLIGATION_K Participation in the work of the Committee

132. The Committee wishes to express its gratitude to the 45 governments which collaborated by providing information on the situation in their countries and participating in the discussions of their individual cases.

133. The Committee is pleased to note that all governments invited and present at the Conference took part in the discussions concerning their countries.

134. The Committee notes with regret that the Government of one State which was not represented at the Conference, namely Seychelles, was unable to participate in the Committee's examination of the cases relating to it. It decided to mention this country in the appropriate paragraphs of this report and to inform the Government, in accordance with the usual practice.

135. The Committee has continued to strive to perform its role of examining information and reports on the application of Conventions and Recommendations according to its well-established working methods and traditions, but at the same time to meet the challenges posed by the changes which the Organization is undergoing. This has meant accepting the need for - and indeed promoting - innovation designed to improve the supervisory system. The Committee counts the strengthening of dialogue with the Committee of Experts, evidenced by the presence of the Chairman of that Committee during its general discussion, an undoubted success. It keeps an open mind on the possibility of other innovations to come - for example, in the means available of obtaining interpretations of Conventions, in the further reform of the reporting system, or in the more economical use of its own limited time for discussion. It emphasizes above all that the dynamism, the assiduity and the effectiveness of the ILO's system of the supervision of international standards are a peerless heritage both to be cherished and preserved, and to be constantly burnished and put to good use.

136. Finally, the Committee noted with interest that the Committee of Experts had decided to include in its next report its reflections on the present ILO system of setting and supervising standards and its future in the twenty-first century. The present Committee decided to devote a special sitting next year to the same subject. This will enable it too to contemplate the ILO's truly remarkable experience in the field of international standards in the perspective of the decades to come.

Geneva, 18 June 1993

(Signed) SANTIAGO PEREZ DEL CASTILLO,

KERSTIN WIKLUND,

Endnotes

Endnote 2