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 227 members (109 Government members, 30 Employers' members and 88 Workers' members). It also included 13 Government deputy members, 35 Employers' deputy members and 77 Workers' deputy members. (Endnote 1) In addition, 22 international non-governmental organizations were represented by observers. In the name of the Committee, the Chair welcomed South Africa's return to the ILO and its representatives' presence in the Committee.

2. The Committee elected its Officers as follows:

Chairman: Mr. J.-J. Elmiger (Government member, Switzerland).

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

Reporter: Ms. Khabo J. Dlamini (Government member, Swaziland).

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 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). (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 freedom of association and collective bargaining. This year, the general discussion included a third part, devoted to the special section of the Committee of Experts' report in which it joined in the commemoration of the 75th anniversary of the founding of the ILO and reflected on the history and the future of ILO standards. A special day during the present Committee was taken up by this item, a record of which appears hereafter. There are of course certain aspects of the general discussion which are covered in more than one part, but this may be helpful and is in any event not insignificant. Finally, as usual, the Committee considered various individual cases relating to the application of ratified Conventions or compliance with the obligations to supply reports and to submit Conventions and Recommendations to the competent national authorities.

6. The examination of those cases, which was 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, especially this year, the Committee made 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 and will not fail to take the measures required to ensure fulfilment of the obligations they have undertaken. A summary of the information supplied by governments, the discussions in the present Committee and any conclusions it has drawn is set out in Part Two of this report.

B. General questions relating to international labour standards

Introduction

7. The Employers' members stated that for several years their views at the beginning of the general discussion were centred on changes, since it is change, development and new ideas which merit the Committee's attention and which should determine what is positive and to be maintained and when it is necessary to pursue new paths. This approach was right also in the year of the Organization's 75th anniversary, and the Employers' members recalled two raison-d'être or motivations at the origin of the ILO. The first was the idealistic one appearing in the opening phrase of the Preamble to the Constitution, linking lasting peace to social justice; the second was the rather pragmatic one similarly appearing in the Preamble, recognizing that social regulation can also increase production costs and that for competitivity's sake it is desirable that humane conditions of work should be accepted and applied in practice universally. In the ILO, not only social questions but also economic ones are dealt with, and the Employers' members considered that the idealistic and the realist approaches were both needed in order to fashion and adapt reality in a positive and effective way.

8. The Committee considered how, as the Committee of Experts had noted in their report, the international environment had changed radically in recent years, with, for instance, the end of the cold war, the re-emergence of ethnic and nationalistic conflict, the growth of structural unemployment in the most developed countries, and structural adjustment programmes in some countries -- including developing ones. The ILO's standard-setting activities must adapt to these new conditions so that the Organization may meet the challenge of the twenty-first century dynamically and effectively. The Committee accepted this, along with the need to adapt to changes -- political, economic, technological -- made or being made in the international community. The Government member of China observed that these questions of development, cooperation and progress are the universal aspiration of peoples, and the ILO with its standard-setting activities must be able to respond to its Members' expectations: of special importance in this must be employment promotion and the elimination of poverty and contribution to the reform of the international economic order.

9. There were, however, various opinions of recent events. The Workers' member of the United Kingdom thought the discussions should make use of the Director-General's Report to the Conference as well as the report of the Committee of Experts and was concerned at the tendency to rewrite and reinterpret history. Some of the Workers' members merely see one brutal economic theory replaced by another. If, indeed, progress cannot be stopped and everything is getting better, it is not clear why certain Asian countries are arguing, as they did last year, against universal standards or proposing, as they do this year, such a dangerous resolution as some seen during the time of the communist bloc. The Director-General's Report declares that for most observers it was the economic failure of that system rather than its moral bankruptcy which led to the failure of communism in Eastern Europe, and this is a distortion which champions of the free market wish to promote. That member stated that the free market should not be seen as the answer to all problems, competition cannot replace social justice, and economic reform and structural adjustment are often a pretext for destroying -- or at least weakening -- the influence of trade unions. Communism was swept aside because it was fundamentally anti-democratic and an affront to human dignity and human rights. The ILO was created to combat any system which does not recognize freedom of association and human rights, and not to praise the virtues of one or another economic system. Happily, the Committee of Experts indicated in paragraph 21 of its report that standards on fundamental human rights "must be observed regardless of economic circumstances or fluctuations" -- and, one might add, of economic system.

10. The Employers' and the Workers' members made certain points. Despite the different interpretations of individual members, the Committee's discussions, as in the 70th anniversary celebrations in 1989 (the year when the Berlin Wall collapsed), reflected complete agreement on the permanence of the ILO's basic aims. Support for standard-setting activities and the supervisory system as means of promoting balanced development in justice and freedom and belief in the principle of universality of standards as a framework for economic activities in which the rules of the game are the same for all have not wavered.

11. Several Government (for example, Belgium, China, Egypt, Kenya, Japan, Morocco, Portugal) and Workers' (for example, China, Korea, Tunisia) members also expressed their conviction of the relevance and necessity of standard-setting activity in the ILO in relation to particular questions and situations.

12. The Workers' member of Pakistan stressed that workers in the Third World are especially attached to the principles laid down in the ILO Constitution and the Declaration of Philadelphia. Standards were at the root of the Organization and the reason why it is called the "World Parliament of Labour". Basic standards on human rights, freedom of association, abolition of forced labour and child labour and prohibition of all discrimination should be observed by all, and the world should not be divided into first and second class citizens. The Government member of Belgium called for an enlarged concept of fundamental standards not limited to the six "classic" Conventions but including others, as the Workers' members said, such as the Labour Inspection Convention, 1947 (No. 81), the Employment Policy Convention, 1964 (No. 122), the Labour Inspection (Agriculture) Convention, 1969 (No. 129), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).

13. The Government member of Belgium thought at the same time that positive developments did not mean it was not necessary to remain vigilant. The Workers' member of France also noted that some questions were raised as regards standard-setting which ought not to be. Some countries sometimes say that standards do not have to follow the criteria for their evaluation. Standards have been seen as incompatible with the aim of full employment, and this was an important and fundamental question. Despite possible weaknesses in the full employment standards, there was no reason to question the principle of adoption and application of standards or the idea of standards itself, which remains the essence of the ILO.

14. Many speakers referred to paragraphs 19 and 21 of the Committee of Experts' report. Adapting to change goes together with the problem of flexibility in standards. This old debate is linked to the issue of universality and becomes more urgent as economic and social development accelerates in a context of globalization and pressure for deregulation. Paragraph 19 mentions the revision and updating of standards. In paragraph 21, the Committee of Experts noted that implementation of certain standards such as those on social security or paid leave can have direct repercussions on national economic policy and on individual enterprises, and thought it important to bear in mind the economic impact of such standards, so that the cost does not become a disincentive to ratification.

15. The aim of flexibility in standards is not often contested, although there are different attitudes in the interpretation of the notion and the desired degree of flexibility. As certain Workers' members (such as those of Germany and Tunisia) expressly stated, trade unions are not against flexibility in the sphere of labour so long as equilibrium between workers' and employers' interests is not damaged to the detriment of the former. Flexibility must not mean enabling governments to apply or not to apply standards or to interpret them as they wish. The Workers' member of Germany observed that many Conventions contain flexibility clauses enabling their scope to be limited (such as Nos. 102 and 119), so that the small numbers of ratifications of them cannot be attributed to lack of flexibility. The controversy on this subject was out of place. For new Conventions, there should be as concrete provisions as possible, in order to avoid doubt as to their purpose; and he thought the Employers' members were self-contradictory when they came out in favour of Conventions with no concrete content while at the same time criticizing the supervisory system, whose function is to give substance to the contents of Conventions.

16. The Workers' members of Guatemala and Uruguay, referring to paragraph 21 of the report of the Committee of Experts, disagreed with the distinction drawn between social security and paid leave standards on the one hand and basic human rights standards on the other: human rights should be viewed as a whole, and social security and paid leave are part of the human rights to be protected. The economic problems of Latin America result from other causes than social security spending. Neoliberal policies executed without consultation of workers' organizations go to destroy the social fabric, undo national solidarity, prevent the achievement of social justice and, moreover, seriously threaten explosive social consequences. This was reason enough, in their view, to resist flexibility imposed on workers, and the ILO would be the ideal forum for discussion of the issues, so that its role takes on particular importance and relevance.<

Relations of the Committee of Experts and the Conference Committee

17. In response to the wish expressed last year by the Committee, the Director-General again invited the Chair of the Committee of Experts to attend the work of the Committee as an observer. Mr. Ruda recalled that last year's experience, when the Committee of Experts was for the first time given the opportunity to be represented in the Conference Committee, was for him and the other experts an instructive and enriching one: instructive because it enabled them to see more closely how the present Committee works, with its own customs and traditions, which should lay the groundwork for better mutual understanding between the two Committees; and enriching because it facilitated a better appreciation of the concerns, policies and aims of the present Committee, which should improve communications between the two. Mr. Ruda explained how the reports of the Committee of Experts which are placed before the present Committee are the fruit of intense reflection. The part of the report headed "Seventy-fifth anniversary of the ILO" and the General Survey on freedom of association and collective bargaining were the most significant contributions of the Committee of Experts to this year's anniversary. At the end of the general discussion, Mr. Ruda again noted the attention given to the work of the Committee of Experts, which stimulated that Committee further: negative and positive comments alike would be transmitted to his colleagues, who would accord them the same attention. What counts most is that the work of the Committee of Experts should have the consideration it deserves as regards both general ideas and the concrete application of standards by States. The two bodies follow a common path laid down in the Constitution towards universal peace founded on social justice, and this involves the commitment, cooperation, solidarity of all concerned.

18. The Committee hailed the high quality of the report of the Committee of Experts, prepared as ever on the principles of independence, objectivity and impartiality and forming the essential basis for its discussions. It welcomed the positive response of the Committee of Experts to this second invitation issued to it, and the Government member of the United States hoped such participation would become a new tradition. The Workers' members considered that cooperation between the two Committees was enhanced by the presence of Mr. Ruda, tangible proof of which was there in the report of the Committee of Experts and the General Survey, as was also noted by the Government member of Portugal. The Workers' member of France, who last year was hesitant, this year joined the consensus on this point. The Employers' members welcomed that there were now three women members of the Committee of Experts. They also greeted the presence of the Chair of the Committee of Experts as a factor in the better understanding between the two bodies. It should yet be remembered that the dialogue between the two Committees was an internal one, and the main aim was to engage in dialogue with member States. To that end, it was important for the two Committees to agree wherever possible.

19. The Committee again expressed its wish that the Director-General should invite the Chair of the Committee of Experts to be present as an observer at its general discussion next year.

20. The Employers' members referred to paragraphs 24 and following of the Committee of Experts' report concerning the supervisory system, especially the indications of the respective functions of the two Committees. They welcomed the new approach of the Committee of Experts: whereas in 1990 they had concluded that, so long as the International Court of Justice did not contradict them, the Committee of Experts' interpretations might be regarded as valid and commonly accepted, in 1991 they had substantially changed their stance. The Committee of Experts recognized that their views could not be considered binding, that their opinions had no erga omnes effect, and that the fact that the Employers' members -- or, where applicable, the Committee as a whole -- reserved the right to dissent from those opinions was not incompatible with that position. The Committee of Experts now took a historical view of the supervisory bodies' work, and this year's report gave some space to the motives of the historical "legislator". Clearly, the increasing numbers of reports were what was behind the wish to create the Conference Committee and the Committee of Experts in 1926, initially only provisionally. The experts described their job as technical and legal supervision, not subject to group interests, and they concluded with some observations. For the experts, the supervision exercised by the Conference Committee, not described in detail, was essentially a dialogue between Governments and Employers' and Workers' members; the Conference Committee and the Committee of Experts had different but complementary functions.

21. The Employers' members' three comments on these observations did not concern the binding nature of the two bodies' comments. First, they wondered whether the roles of the two bodies are really different: they both had the aim of establishing whether member States meet their obligations, and for the present Committee this is laid down in article 7 of the Standing Orders of the Conference. It was also true that the Committee of Experts' tasks are purely technical and preparatory, as indicated when they were initially laid down and were substantially unchanged since then. The Committee of Experts is to inform the Conference and the Committee of the Conference "as to the facts". It was also recognized that "the Committee of experts would have no judicial capacity, nor would it be competent to give interpretations of the provisions of the Conventions nor to decide in favour of one interpretation rather than of another" (sic -- see International Labour Conference, Eighth Session, 1926, Part Three, Appendix V, pages 395, 398 and 405). Thus, according to the Employers' members, the Conference Committee's supervisory role, like any other, can only be performed if there are concrete conceptions of the legal content and extent of the obligations on member States. The Conference Committee makes regular use of the preparatory work of the Committee of Experts, but there is no obligation to follow the comments of the experts exclusively or be bound by them. Only the International Court of Justice may give binding interpretations. The two Committees are considered complementary, with no hierarchical relation between them.

22. The Employers' members further thought there might be a contradiction in the description in the Committee of Experts' report, and that this should be avoided. The Committee of Experts was presented as a body responsible for technical supervision being outside of group interests and impartial, the Conference Committee as a political body with a highlighted tripartite structure. The Employers' members wished to avoid contrasting objectivity and impartiality with tripartism and policy, which gave the impression that the comments of the Committee of Experts were of higher value and standing. Such an attitude would be totally incomprehensible in a specifically tripartite organization where all the main organs, including the Committee on Freedom of Association, whose opinions are much appreciated by those who gain from them, are tripartite and thus -- in terms of what has been said -- "political".

23. The Workers' members recalled that the two Committees always worked in a spirit of openness and constructive dialogue. They were complementary, each with its own responsibilities. The Conference Committee on Standards, in virtue of its tripartite composition, guaranteed contact with the feelings of the practical protagonists; the Committee of Experts, in virtue of its composition and working methods, guaranteed the serenity and impartiality essential to the interpretation of Conventions and its examination on the basis of guiding and unchanging principles. The Workers' members wished to continue to work in the spirit of constructive dialogue which enabled the vast majority of the Committee's conclusions to be adopted by consensus.

24. The Workers' speaker was thus surprised by the Employers' members' position as to the respective roles of the Committee of Experts and the present Committee and their reaction concerning the credibility of the experts, and he referred to the statements of the Workers' members of France, Germany and the United Kingdom on that point.

25. Those speakers criticized the Employers' members' arguments in often strong terms. They pointed out that their position was different in the discussion of the Committee's working methods in 1979-80 and in the discussion of the Director-General's Report on standards in 1984, when it was confirmed that system for supervising the application of standards was founded on legal evaluation by independent experts followed by examination by a tripartite body. They reflected on the reasons for such a change of attitude; and if the authority of the Committee of Experts -- and thus of the supervisory system -- were not to be undermined, it should be considered the final instance, so long as governments do not have recourse to the International Court of Justice (ICJ). Nobody questions the authority of the ICJ, but the reasons why there had been practically no recourse to it in 75 years should be clarified.

26. The Government members who spoke on this question, those of Germany, Morocco, Portugal and the United States, confirmed their confidence in the objectivity, independence and impartiality of the Committee of Experts and the complementary roles of the two supervisory bodies and stressed the need for dialogue and cooperation in aid of a common purpose.

27. In reply to the Workers' members' critique, the Employers' members said they found it unconvincing and no one wished to belittle the work of the Committee of Experts or sap its authority, as some Workers' members seemed to pretend. The Employers' members said they had done nothing but what the experts did when they drew attention to historical developments, and like the experts they noted that the experts were not trying to have the last word. When they disagreed with the experts on a question, they did so openly, unlike others, and were criticized for that. Yet they believe in the ILO's promising future, with the work of the experts unimpaired. They are convinced that the present Committee can only obtain results when employers and workers are at one, and this was so 10, 15 and 20 years ago as it is today.

Ratifications and denunciations of Conventions

28. Every year, the report of the Committee of Experts draws up a balance sheet of the obligations on member States relating to instruments adopted by the Conference. As in any balance sheet, there are credits -- the ratifications -- and debits -- the denunciations.

29. The Committee was informed that 398 ratifications from 38 member States were registered in 1993, bringing the total as at 31 December 1993 to 6,050. As the representative of the Secretary-General pointed out in his opening statement, 192 ratifications were registered between 1 June 1993 and 1 June 1994. These are record figures to be seen, in part, alongside the increased number of member States from 148 to 171 in four years.

30. The Workers' members welcomed the higher number of ratifications, even allowing for those made by new member States. They found it encouraging as a concrete and immediate sign of the support of member States and their employers' and workers' organizations for the principles and values of the ILO, a point also made by Government members (for example, those of China and Portugal). It should give pause for thought to those incessantly and obstinately calling for revision of Conventions, said the Workers' members. Even countries where administrative and organizational constraints affect capacity to ratify might ratify Conventions on human rights and other priority ones such as the Employment Policy Convention (No. 122), the labour inspection ones (Nos. 81 and 129) and that on tripartite consultations (No. 144). The Conventions on workers' basic rights are the heart and backbone of the ILO and make no direct imposition on labour costs, and this was in line with paragraph 21 of the report of the Committee of Experts.

31. The Workers' members noted that several Governments supported promotional activities for standards, and the Government member of China had described his positive attitude to standards and promotion of them as part of the reforms leading to a market economy. That attitude should be given substance in a higher number of ratifications of basic as well as technical standards.

32. The Government member of Belgium referred to his country's experience, where the 75th anniversary has been the occasion for examining a series of possible new ratifications. The Workers' members pointed to the interest of that, as showing how unfounded the reasons for non-ratification can be; and to the usefulness of General Surveys in looking at the difficulties in the way of ratification of Conventions. Instruments should be quickly submitted to the competent authorities, and promotion of standards and the Committee of Experts' reports should extend to parliamentary and judicial bodies.

33. Information on ratifications completed, proceeding or envisaged was communicated to the Committee by other governments. The Government member of Germany said that in spring 1994 his Government had drafted a law to ratify Conventions Nos. 161 and 164, which had been submitted to the competent legislative authorities, and that ratification would be voted on shortly; Conventions Nos. 163, 165 and 166 had been submitted but it was not intended to ratify them. He said the Parliament criticized the delay before which Conventions and Recommendations were submitted to it, and a new procedure to remedy the situation was envisaged. The Government member of Australia announced preparation of a national plan of action to ratify some 28 Conventions, including Conventions Nos. 97, 141, 143, 151, 154 and Conventions on safety and health. The Government member of China said the Government was examining ILO instruments in detail in order to promote ratifications: Convention No. 170 concerning chemicals was submitted by the Government to the standing committee of the National Chinese People's Congress for consideration and should be ratified shortly. The Government member of Nigeria mentioned ratification of Conventions Nos. 144 and 155. The Government member of Portugal announced ratification of the Social Security (Minimum Standards) Convention (No. 102) and the Radiation Protection Convention (No. 115), and approval for ratification of Conventions Nos. 158 on termination of employment and 171 on night work, by the National Assembly. The Workers' member of Argentina indicated that a working party created by the four members of MERCOSUR (Argentina, Brazil, Paraguay, Uruguay) had reached agreement on ratification of 34 important ILO Conventions, and a tripartite committee of MERCOSUR and central trade union organizations in the four countries had drafted a charter of basic rights with ILO assistance.

34. The Workers' members hoped the ratification procedures initiated by governments would lead to other governments taking similar steps.

35. The representative of the Secretary-General remarked on the absence of "pure" denunciations between June 1993 and the present, and on the five denunciations resulting from the ratification of a revising Convention. The total of denunciations not resulting from ratification of a revising Convention since 1919 was 72 as of 25 February 1994. The Government member of Kenya pointed out that the risk of denunciations can be minimized by the flexibility of standards which enables them to be ratified and applied by countries at different stages of economic development.

Reports on ratified Conventions

The obligation to report

36. The Committee again expressed its concern at failures to meet the constitutional obligation to supply reports, as noted by the Committee of Experts, since this is the very basis of the system of periodic supervision.

37. The Employers' and Workers' members and several Government members (China, Egypt, Germany, Morocco, Portugal, United Kingdom) regretted the continuing decline in that respect: the percentage of reports received (64.6 in February 1994) was lower than in 1993, which was in turn the lowest for 45 years. Only a quarter of reports received come by the due date, and in too many instances they do not contain the necessary replies to the comments of the supervisory bodies.

38. As the Employers' and Workers' members observed, the fact that one-third of States Members do not entirely fulfil their reporting obligations seriously affects the effectiveness of the supervisory system. Failure to reply to the comments of the supervisory bodies and poor quality of reports received impede the dialogue between the Committee of Experts and the present Committee, as the Workers' members regretfully noted, dialogue and cooperation being the cornerstone of the ILO's supervisory system. The Workers' member of Finland, speaking also on behalf of the Workers' members of the Nordic countries, agreed, while more generally drawing attention to paragraph 43 of the report of the Committee of Experts: "The obligation to report should not be regarded as a merely formal obligation, but more as a means for governments to take stock periodically of the state of their labour legislation using instruments that they have ratified voluntarily as a gauge."

39. After analysing the causes of this odd situation, the Workers' members refuted the argument of administrative constraints often advanced, since the great majority of questions raised need only simple replies. To them it seemed to be more a question of the order of governments' and labour administrations' priorities. The Employers' and Workers' members supported the Committee of Experts' call for national administrations and employers' and workers' organizations to participate more actively in the supervisory system.

40. The Committee joins the Committee of Experts in hoping that the new adjustment of regular supervisory procedures decided on by the Governing Body in November 1993 will enable member States better to meet their obligations under articles 19, 22 and 35 of the ILO Constitution.

41. For the Employers' members, revision and strengthening of the procedures linked to reporting obligations are crucial, since this is at the heart of the entire supervisory system. The new arrangements adopted by the Governing Body are regarded as an absolute minimum below which it would be impossible to obtain positive results.

42. The Workers' members also consider the new arrangement of regular reporting procedures should enable the difficulties referred to be overcome: they had not seen the need for them, but did not question them now the Governing Body decision was taken, especially as it was gratifying to note they largely meet the criteria and conditions they specified last year. These related to the special attention to be given to Conventions concerning basic rights and others considered as priority ones, examination outside the normal cycle of cases where there are serious implementation problems, and bringing forward the date of the Committee of Experts' report to allow for better preparation for the Conference. The Workers' members said they will closely follow the implementation of the new procedures adopted for a trial five-year period and will assess them in due course.

43. The Government members mentioned above agreed that the rearrangements should lighten the tasks of administrations and thus permit governments better to fulfil their constitutional obligations. In particular, the Government member of the United Kingdom hoped the new procedures would be implemented quickly; the Government member of Portugal hoped they would not lead to weakening of the supervisory system. The Government member of China observed that these new arrangements do not exhaust the wider question of improvement of the supervisory machinery and standard setting in general.

Examination of reports

Cases of progress and practical application

44. The Employers' and Workers' members and several Government members (for example, China, Egypt, Morocco, Portugal, the United States) welcomed the new cases of progress in the application of ratified Conventions and that the Committee of Experts referred to 42 cases in 30 States and one non-metropolitan territory, where following its comments steps have been taken to change the national law or practice as required. These are tangible proof of the impact of standards and the efficacity of the supervisory system, and the recompense for dialogue steadfastly maintained in different quarters.

45. The Government member of the United States considered that the present Committee should try to analyse the data more and she noted that this year the cases of progress included 12 countries whose problems were discussed in the Committee in the last ten years: four of them were dealt with in special paragraphs. The Workers' members agreed with the Government members mentioned that the cases concerning basic and priority Conventions were encouraging, as were those concerning developing countries. Nevertheless, the Workers' members considered the progress too slow sometimes and regretted that the supervisory bodies in some cases had to return to cases discussed for several years. The Government member of Belgium called for examination of the meaning of persistent cases, the lessons of which should be drawn in legal and practical terms.

46. The Employers' members referred to paragraph 144 of the Committee of Experts' report as regards appropriate sanctions designed to ensure the observance of measures taken to apply Conventions, and thought the possibilities for imposing appropriate sanctions for non-compliance with the obligations resulting from the Conventions were limited, as the ILO could request that a specific sanction be applied only if the Convention in question provided for it. As this occurred only in a few instances, sanctions were usually provided for by national legal systems, and therefore differed accordingly.

Other supervisory procedures

47. The Employers' members referred to the Committee of Experts' statement in its report (paragraph 31), that the procedure laid down in article 19 of the Constitution as to general surveys of instruments chosen by the Governing Body was not strictly a supervisory one, that the importance of general surveys examining the effect given to unratified Conventions and Recommendations had, however, continued to increase, and that they were a point of reference for the whole supervisory system. The Employers' members regarded this as applying very largely to this year's General Survey on Freedom of Association and Collective Bargaining. Yet they considered that such general surveys did not contain binding interpretations of controversial questions.

48. The Employers' members referred to paragraph 33 of the Committee of Experts' report describing the supervisory bodies established for the special complaints procedure relating to freedom of association. They considered the Committee on Freedom of Association to have no wider powers than those of the Fact-Finding and Conciliation Commission, created at the same time but never having really been able to carry out regular functions. The Committee on Freedom of Association was a sort of preliminary investigation for the Governing Body. Its functions had changed since then and it acquired "jurisdiction" and was often considered by some people to be competent to make almost binding interpretations. However, this was not foreseen by the Constitution of the ILO.

49. The Workers' members recalled the crucial role of the Committee on Freedom of Association in defence of basic rights and noted that the number of complaints was rising in recent years despite the process of political democratization, which did not automatically increase respect for social standards. Although serious violations such as physical interference with trade unionists and denial of the right of organizations to exist were perhaps diminishing, violations of basic rights were at the same time becoming more complex and sophisticated. Several countries were only partially democratized and democratic principles were hard to implement in social and economic life. The Workers' member of Argentina referred to the situation in Latin America, whence came almost half of the cases examined between 1985 and 1994 by the Committee on Freedom of Association.

50. The Employers' members said that the direct contacts procedure mentioned in paragraph 35 of the Committee of Experts' report had often been welcomed by them and deserved their full support in future. It was not strictly a supervisory procedure but allowed the Office to give various services requested of it, and the Employers' members considered it a means of promoting the application of standards which was at least as useful as the traditional supervisory mechanism. The Workers' members noted that all the missions expected had taken place including those resulting from the conclusions of the present Committee in its discussion of individual cases. The success of a direct contacts mission accepted by a government was also a question of respect for dialogue, although the Workers' members warned against using the procedure or more generally technical cooperation merely as a means of delaying or evading discussion at the Conference.

51. The Employers' members raised doubts as to whether access to the supervisory procedures, as mentioned by the Committee of Experts in paragraph 36 of its report, could be opened to individuals. That would require new bodies and new procedures, a matter which merited further examination.

52. The Government member of Nicaragua also doubted whether other voluntary mechanisms, such as a system of mediation and arbitration, should be established on a permanent basis as suggested by the Director-General in his Report, to supplement the present ILO supervisory procedures. First, national authorities should recognize labour disputes, and intervention by an international instance in such cases might turn to interference in internal affairs. Such a mechanism could not replace commissions of inquiry or the Fact-Finding and Conciliation Commission, which had a different purpose, and their voluntary nature would be very relative since, as with direct contacts, refusal to accept them would be interpreted negatively.

Role of employers' and workers' organizations

53. The Employers' and Workers' members and the Government members who spoke on this question (for example, Nicaragua, Portugal) shared the views generally expressed by the Committee of Experts on the participation of such organizations in the supervisory system (paragraphs 46 to 51 of the report) and looked for an increasing role for them as a result of the rearrangement of procedures adopted by the Governing Body.

54. The Employers' members agreed with the opinion in paragraph 50 of the Committee of Experts' report that progress in the organization of consultations could help solve problems in applying standards at the national level and avoid reference to an international body. The Workers' member of Ghana remarked that in developing countries governments were indifferent to the problems of trade unions, who thus had to raise them at the international level.

55. The Workers' members and the Government member of Portugal pointed to the record 251 observations of employers' and workers' organizations referred to by the Committee of Experts, which was explained not only by government failings but also by the increasing number of breaches of standards, including basic rights: such breaches were becoming more sophisticated and complex, as already stated, and the Workers' members considered that the increased number of comments by employers and workers was in part due to their assumption of some governmental responsibility. They hoped the Office would let employers' and workers' organizations have the necessary financial and technical means for discharging their additional tasks and responsibilities. The Workers' member of France also called for further efforts by the Office to provide information on standards and procedures and to promote them and he asked governments to observe the principle of tripartism in delegations going to standards-related meetings. The representative of the Secretary-General, responding to a question concerning the despatch of the report of the Committee of Experts to national employers' and workers' organizations, indicated that unfortunately the Standards Department did not have the resources, as there would be some 800 of them; the competent branches of the Office would, nevertheless, be contacted to see if it was physically possible to satisfy the request of the Workers' member of France.

56. As the Government member of Nicaragua and the Workers' member of Finland observed, Convention No. 144 was a suitable means for involving employers' and workers' organizations more closely in the preparation of reports and the elaboration and application of standards. Of course, the aim of that Convention was to promote procedures in each member State to ensure effective consultations between representatives of governments, employers and workers on questions concerning international labour standards and the fulfilment of related constitutional obligations. The 61 ratifications of the Convention were generally considered insufficient and, in concurrence with the Committee of Experts, urgent appeals were made in the Committee, particularly by the Workers' members and the Government members of Nicaragua and Portugal, for the Convention to be more widely ratified as a matter of urgency. The application of principles was a different matter from ratification and some failures as regards tripartite consultation were pointed out by the Workers' member of Argentina in respect of Latin American countries, including those nine which had ratified Convention No. 144.

Questions concerning the application of certain Conventions

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

57. The Employers' members expressed their complete indignation at the problem of exploitation of children, especially through prostitution and pornography and a related kind of tourism, as mentioned in the comments of the Committee of Experts on Convention No. 29. The Workers' members associated themselves with the Employers in this respect.

58. The Workers' members also noted that the experts quite rightly gave special attention to the problem of contemporary slavery, especially of children: child labour in most cases was forced labour and was often a form of economic exploitation which violated fundamental rights of the child and human rights in general as guaranteed in several ILO Conventions and in Conventions adopted in the United Nations. Political will was essential if child labour was to be stopped, and poverty was of course in part responsible, but child labour was most often due to inequitable policy for income distribution and equal opportunities, especially when there was no sound policy in the spheres of budget and education. The Workers' members supported the position of the Committee of Experts placing responsibility on the whole international community when children were subjected to forced labour and especially exploitation through prostitution and pornography, and they too wished to see advertising and promotion of such practices in countries and regions where those tourists come from prohibited. The Workers' members also pointed out that 135 countries had ratified Convention No. 29, and that this demonstrated the dynamic interaction between basic standards and the world social order. They also referred to the ILO's interdepartmental programme for the elimination of child labour, the aim of which was in particular to promote the ratification of Conventions related to child labour and the improvement of their application.

59. In view of the support given to the position of the Committee of Experts on child labour and the application of Convention No. 29, the Workers' members wished all Government members to draw their authorities' attention to the experts' comments. The Government member of Portugal agreed with the Committee of Experts and the appeal to member States to eradicate such practices.

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

60. The Workers' members noted that, as usual, the Committee of Experts made general comments on the Application of Convention No. 122. Reports from 47 States and eight non-metropolitan territories examined this year dealt with the same period as last year, i.e. 1990-92. The comments in paragraphs 91 to 94 of the report of the Committee of Experts should be read together with those in paragraphs 52 to 57 of the 1993 report, as mentioned by the Workers' members, who recalled that the Committee of Experts was very concerned with practical commitment to full employment under Convention No. 122 and with social dialogue, confirming these points this year, whilst adding other important observations.

61. The Workers' members referred to the Committee of Experts' comments in paragraph 91 of its report, that the phenomenon of economic growth without improvement in the employment situation as in some countries was a new reason for concern, in so far as it could lead to structural changes which would be unfavourable to employment in the long term. The Workers' members considered that active and coordinated measures did not seem to be being taken to deal with the structural crisis.

62. The Employers' members disagreed with this view and thought there was no proof that the negative effects on employment of productivity increases outweigh the employment creation flowing from increased production. There was no automatic link between economic growth and a relative decline in numbers of jobs, and the factors affecting employment levels in recent years could not be ignored, such as increasing employment in the services sector, slower capital intensification, reduction in average working time, greater use of part-time work and a growing tendency to use other manpower policy measures. Unemployment resulted not only from loss of jobs. The number of workers employed in OECD member States had grown by almost 25 per cent between 1970 and 1992, which meant some 80 million people had found new jobs. However, this impressive growth did not keep pace with the number of jobseekers, so that greater growth and economic activity were necessary. The real problem was not employment reduction but an insufficient level of employment creation.

63. The Workers' member of Pakistan noted that in several developing countries economic growth was accompanied by employment creation which was capital-intensive instead of favouring in the short term labour-intensive methods. The Workers' members in general rejected any misunderstanding which might result from this exchange of views: there was no disagreement with the Employers as to the relationship between growth and employment, since growth was obviously indispensable in solving unemployment problems.

64. The Workers' members agreed with the Committee of Experts in paragraph 92 of its report, that most often macro-economic policy objectives tended to favour overcoming inflation and public finance. They stressed the predominance of monetary policy objectives, which meant that employment was really the only adjustment variable. The Workers' members agreed with the Government member of Belgium in referring to meetings such as the G7 or the Council of Ministers of Finance of the European Union (ECOFIN), which on the basis of economic and monetary criteria adopted recommendations and decisions affecting employment policy without consulting ministries of labour or the social partners. The Workers' members were concerned that the effect on employment of privatization, especially the Workers' members of Ghana and Pakistan, who referred to the social cost of structural adjustment programmes imposed by the International Monetary Fund and the World Bank. The recommendations and conditions put particularly by the IMF, the World Bank and the OECD often or sometimes completely ignore the objectives and the requirements of Convention No. 122.

65. The Employers' members did not share the concerns expressed in paragraph 92 of the Committee of Experts' report, that governments favour growth over employment. To stimulate economic activity in a country it was necessary to have monetary stability, a solid national budget, a responsible political economy, a reasonable and effective system of collective bargaining and labour legislation, and a responsible policy on wages and working time, to encourage private initiative and production. Full employment could not be an absolute objective and could not be realized to the detriment of other aims in the long term.

66. The Workers' members noted that some member States considered that an active labour market policy and flexibilization of its operation were sufficient to pursue the aims of the Convention, whilst the Committee of Experts considered that member States should see to it that the impact of the Convention was not reduced because of labour market policy alone. As for paragraph 93 of the report of Committee of Experts, the Employers' members considered that the tendency to pursue employment and labour market policies in this way should be resisted when it led to the creation of a secondary or unstable labour market. In the long term intervention and subsidization could be no substitute for market economy mechanisms, and a negative effect on the labour market would be inevitable. It was contradictory to demand the end of a centrally planned economy and the lack of liberty it entailed, and at the same time repeatedly call for greater state intervention in the economy and society.

67. The Workers' members refuted the alleged contradiction between employment policy and efficient social protection: employment, workers and conditions of work could not be considered as variables. International standards created a universal framework in which employers' and workers' organizations and governments could organize the labour markets and socio-economic policy to take account of local possibilities, and this was the experts' opinion when they stated that "the goals of raising standards of living and promoting equity of employment policy should not be forgotten when, for example, the reduction of the minimum wage is envisaged to favour greater flexibility in the labour market" (paragraph 92 of the report of the Committee of Experts). The Workers' members recalled the discussion of the 1992 general survey on minimum wage fixing: Convention Nos. 26, 99 and 131 guaranteed minimum wage fixing which was fair for all categories of workers, taking account in particular of inflation and changes in the incomes of other sections of the population. The Workers' member of France strongly supported the experts on this point, since they fully understood that respect for standards was indispensable at a time when ultraliberalism was an excuse to promote maximum flexibility. The market's dynamism must be countered by standards.

68. The Workers' members noted that the Committee of Experts also recalled in several cases the importance of giving effect to Convention No. 122 as regards consultation of employers' and workers' organizations and other sectors of the active population. They referred to the absence of real consultation of the social partners, who were met with a minimalist attitude or even a negative one in respect of social dialogue both in industrialized and in developing countries, and this was in their view a major violation of the Employment Policy Convention.

69. The Workers' members hoped that the comments of the Committee of Experts and the present Committee on the application of Convention No. 122 would be taken into account for the general discussion on employment policies in a world perspective placed on the agenda of the 83rd Session of the Conference in 1996.

Application of standards in particular circumstances: Export enterprises and industrial zones, maritime labour standards

70. The Workers' member of Argentina regretted that the Committee of Experts' report contained no special paragraph on international maritime registers or export processing zones.

71. The representative of the Secretary-General drew the Committee's attention to the Committee of Experts' observations this year under Convention No. 147 on merchant shipping, addressed to several countries where there were "flags of convenience" according to the criteria of the International Transport Workers' Federation. He also confirmed that the Committee of Experts was still following the application of ratified Conventions in export-processing zones and that this year it had again made comments in its general survey and in observations concerning individual countries.

Technical cooperation and standards

72. The Committee noted with interest the information in the Committee of Experts' report on the technical assistance given relating to standards, which in various ways included direct contact missions, visits and missions by technical advisers on standards, regional and subregional seminars, training programmes for officials of national labour administrations, advisory services relating to international labour standards and labour legislation projects.

73. The Employers' and Workers' members noted that employers' and workers' organizations were requesting ever more technical assistance from the Office in order to meet their increased responsibilities, and this showed their appreciation of the interest and value of assistance given. Several Government members (for example, China, Colombia, Egypt, Japan, Morocco) spoke of activities in their countries and supported the various programmes, underlining the positive effects of help given, especially to strengthen the capacity of labour ministries.

74. The Committee joined the Committee of Experts in noting with interest the setting up of multidisciplinary teams in the regions. The Workers' member of Argentina stressed the need for each team to have a standards adviser, and the representative of the Secretary-General described the present situation in the Regions in this respect. Various statements in the Committee showed agreement with the experts that this form of assistance was a new phase in the symbiosis between the ILO's standard-setting and technical cooperation activities, in the context of the implementation of the active partnership policy.

75. The Employer's members found paragraphs 52 and 53 of the Committee of Experts' report too restrictive as to the relation between technical cooperation and standards. The Employers' members considered it was said in those paragraphs that technical cooperation had the main aim of promoting the better application of standards. In their view there should be interplay and synergy between standards and technical cooperation, and this meant that also technical cooperation experience should be taken into account in the elaboration of standards.

76. The representative of the Secretary-General noted the interest shown by governments and employers' and workers' organizations in technical assistance and indicated that demand in this area was much greater than ability to offer. He confirmed that he was continuing to reorganize the Standards Department internally so as to free greater resources for technical assistance, although that must in no way affect the quality of work of the secretariat of the supervisory bodies. Supervision of the application of standards was and would remain the absolute priority of the ILO's Standards Department.

Relations between the ILO and other international organizations

77. The Workers' members considered that cooperation between the ILO and other international organizations should be intensified. As in the case of indigenous and tribal peoples, the cooperation relating for example to child labour, forced labour in the widest sense of the term, migrant workers' rights and the prevention of discrimination should be intensified and made more active. The conclusions of the final declaration of the World Conference on Human Rights (Vienna, 14 to 25 June 1993) should be closely followed as regards social rights.

78. The Workers' members noted that in fields other than human rights, there should also be intensified collaboration between the ILO and international financial, economic and trade organizations such as the IMF, the World Bank and the new World Trade Organization. The ILO should be involved in the programmes, activities, studies and regulations of those organizations, especially as regards social and employment matters. The Workers' members drew governments' attention to the fact that the budget, staff and resources of the World Bank were much greater than those of the ILO, which had to limit itself to zero growth in its budget. Member States must make the necessary means available to the ILO for it to fulfil its mandate.

79. The Workers' members stated that the opinion of the Court of Justice of the European Union delivered on 19 March 1993 should enable clarification of certain questions of competence as between the Union and the ILO. Preparatory work for the Conference relating to standards partly within the competence of the European Union should be improved, and relations between the ILO and the Union should be regulated so that the rate of ratification might improve substantially. Tripartite consultation at the national and European levels should be ensured and the social chapter of the Maastricht Treaty provided for a consultation mechanism. The Workers' members considered that the social standards of the European Union, especially the European Directive on children and young persons, should take account of ILO standards.

80. The Employers' members and the Government member of Germany observed that no final decision on the relative competence of member States and the European Union Commission had yet been taken in relation to matters dealt with by the International Labour Organization. The Government member of Belgium hoped efforts would be made to improve such relations and enable States to fulfil their obligations. The European Union should deal with the problem raised when its own decision making processes prevented States from ratifying and placed them in a delicate position as to discharge of their international commitments. He agreed with the Workers' members that the European Union should not damage national tripartite consultations or try to establish a second code of international labour standards sometimes inferior to existing standards. The ILO should not on the other hand be unduly afraid of the development of regional cooperation, since it could have a favourable economic effect. Social dialogue should be realized at the level of the Union and effective consultations should be provided for at that level in order to improve cooperation.

81. The representative of the Secretary-General replied to various Committee members' questions as to the ratification of Conventions by the European Union and reassured the Committee that there was no conflict between the ILO and the European Commission Secretariat. The Office had always been available to supply information or assistance as required, and the ILO's member States which have ratified Conventions should be informed by the Commission of any implications of a draft directive on the application of ILO Conventions. If the Commission did not do that, the ILO would do so as far as possible by way of information and without any ulterior motive.

C. Reports requested under article 19 of the ILO Constitution

Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87); the Right to Organize and Collective Bargaining Convention, 1949 (No. 98)

82. The Committee held a fruitful and in-depth discussion on the General Survey of the Committee of Experts which examined the effect given to 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). Besides the information provided in the reports communicated under article 19 of the Constitution, the Committee of Experts also examined the information received under article 22 of the Constitution from member States having ratified the Conventions in question. The survey also took due account of the comments received from employers' and workers' organizations to whom government reports had been transmitted by virtue of article 23(2) of the Constitution.

General remarks

84. The Workers' members and the great majority of the Government members emphasized the independence, objectivity and impartiality demonstrated by the Committee of Experts in the elaboration of this General Survey which extended and, in many ways, completed the previous General Surveys on the subject. They expressed their conviction that, due to its high quality and exhaustive nature, this General Survey would serve as a reference text for several years to come, whether it be to promote the ratification of the Conventions or to improve their application, or even with respect to training activities. The Workers' members noted with satisfaction that, even if the two Committees had different mandates and working methods, the Experts had taken into account the work of this Committee, as they clearly stated that they had endeavoured to respond to certain questions and concerns which it had previously expressed. The Government member of Venezuela associated himself with these remarks.

85. The Employers' members, while subscribing to most of the comments of the Committee of Experts, expressed a certain number of reservations, in particular with respect to the chapter on the right to strike. Without calling into question the General Survey, the Government members of Belarus and of Portugal also expressed several nuances with respect to this question.

86. A wide consensus emerged in the Committee on the need for the universal application of standards on freedom of association, the respect of which could not be subordinated to the achievement of a certain level of development or to a political or economic situation. The Government member of Namibia emphasized in this regard, however, the dilemma faced by countries who had to yield to the requirements of international financial institutions and donor countries, which often were not easily reconcilable, and were even incompatible, with international labour standards; for example, when an economic recovery and structural adjustment plan -- and the obtaining of financing -- resulted in massive dismissal in the public service and drastic cut-backs in education and health services. In these circumstances, the question of free collective bargaining and the application of standards did not even come into question.

87. The Workers' members and several Government members emphasized that the survey was rightly placed within the context of the recent political and economic changes which had occurred. As regards political upheaval, while it may be true that important progress had been noted in the process of democratization, the Workers' members nevertheless recalled that there were still autocratic regimes in the world in which the only democratic thing was the name; one had to remain vigilant, therefore, because free and democratic workers' and employers' organizations made up an essential component of any true democracy. As concerned the new challenges raised by the globalization of the economy and the intensification of competition, the Workers' members considered that an updating was required by a strengthening of the functioning and the impact of the ILO as well as the fundamental principles being attacked. The survey satisfactorily responded to this need. In the opinion of the Employers' member of the United States, however, some passages of the survey gave the impression that the Committee of Experts considered that Conventions Nos. 87 and 98 would in some way be protected from the upheavals occurring in the world of work, whereas the implementation of ILO standards could not be disassociated from national and global economic realities; just like the employers, the workers had to adapt to the changing conditions. While acquiescing to the need to adapt, the Workers' members could not accept that this would result in a weakening of their organizations and the collective bargaining systems developed over the years.

88. The General Survey noted a significant number of cases of progress achieved in the application of these conventions, which was highlighted by several Government members, as well as the Employers' and Workers' members. The latter recalled, however, that many serious problems of practical application, in fact as in law, existed in several parts of the world, as could be seen by the Reports of the Committee on Freedom of Association. Several Workers' members stressed the particularly serious situation prevailing in Latin America in this regard. The Workers' members of Colombia and of Guatemala recalled that the progress noted at the legislative level was not sufficient if not accompanied by a true political will to translate the spirit of the law into practice. Furthermore, the Workers' members and, in particular, the Workers' member of New Zealand mentioned that the recent adoption of the Contracts of Employment Act gave rise to serious violations of freedom of association and of free collective bargaining.

89. The Employers' members and several speakers from the two other groups recalled that the Committee of Experts' comments on the principles of freedom of association applied both to workers and employers. The latter would, therefore, have hoped that this equality of treatment had been mentioned more systematically in the survey. Furthermore, employers' organizations needed massive assistance with respect to training, particularly in the countries of Central and Eastern Europe where they had not previously been in a position to play their true role. The ILO could make an important contribution in this regard. The Workers' member of France, indicating his agreement on this last point if it was a question of finding interlocutors for trade unions, nevertheless specified that the ILO should never finance activities which would hinder the formation of workers' organizations or lead to their disappearance.

90. The Workers' members expressed great interest in the measures that the new Government of South Africa indicated it would take to follow the recommendations made by the Fact-Finding and Conciliation Commission, particularly with respect to freedom of association. The Government member of South Africa stated that his Government recognized without reservation the jurisdiction of the Fact-Finding and Conciliation Commission and its obligations under international law, and undertook to bring its laws into line with them. The public and agricultural sectors were now covered by labour legislation and a draft Bill concerning the so-called autonomous territories should be adopted shortly: then all of the country would be covered by a single industrial relations scheme. A process of tripartite consultation had begun with respect to the right to strike, an issue which might be resolved between now and next year.

91. The Workers' members expressed their complete agreement with the views of the Committee of Experts on the subject of a world social platform. This would be the first step towards the setting up of a truly human work scheme in all nations, an objective mentioned since 1919 in the ILO Constitution. Indicating that his Government did not yet have a definitive position on the advantages of including a social clause in international trade agreements, the Government member of the Netherlands expressed his opinion that the Conventions on freedom of association could play a role in this regard if such clauses were to be included. The Employers' member of the United States on the other hand felt that the extensive interpretation given by the Experts to these Conventions, as illustrated by the right to strike, represented one of the obstacles in their use in a social clause. He considered that the principle of freedom of association should be greatly simplified, perhaps to one sentence, to be implemented in any meaningful way in a trade regime. The Workers' members said that they had some difficulty reconciling this last argument with the fact that the Employers' members had really only criticized the chapter dealing with the right to strike, restricting themselves only to some reservations in respect of specific aspects. In these circumstances, reducing the principles of the Convention to one single sentence in a social clause would be a far too simplistic approach.

92. The Employers' member of the United States, supporting the observations made by the Employers' members, recalled the degree to which it was important that the observations of the Experts on the meaning and scope of Conventions Nos. 87 and 98 were well understood and accepted, precisely because of the central nature of these instruments to the work of this Committee. As everyone knows, this Committee functions for the most part on the basis of consensus. However, this ability is seriously impaired when one or the other group disagrees with the Experts' observations. This is particularly critical with respect to the formulation of conclusions on specific cases and the adoption of special paragraphs. This need for consensus is particularly acute in cases involving freedom of association. For the most part, this has not proven to be a problem except when the issue involves the right to strike.

General introduction of the General Survey

93. The Employers' members recalled the conditions which prevailed at the beginning of the industrial era, when democracy was still in its infancy in a number of countries; various groups had to struggle then to defend workers' and employers' interests. Even if there had been a considerable evolution since then, some forms, even the terminology used, had been conserved. It might therefore be useful to carry out a re-examination of this question. The General Survey set forth the diverse sources of rights which had emerged over the years and the different international instruments which contained various provisions on the question of freedom of association. The existing texts in the area, however, only contained brief principles on the subject. It was therefore not surprising that the introductory chapter of the survey did not really address the content of the standards in question, but rather confined itself to an assessment of how these standards had been interpreted and applied over the years by the different supervisory bodies called to handle them. This sometimes gave the impression that one of these bodies was being called upon to lay down the law. Of course this was not said directly, because none of these bodies had that competence. The survey drew a number of conclusions, not only on a series of fundamental principles, considered by the Committee as a veritable international law of freedom of association, but also on a number of minutely detailed points.

94. The Workers' members emphasized that the General Survey came at a crucial time for social policy in general and for the ILO in particular. Due to the globalization of the economy and the recent political changes, workers' and employers' organizations, as well as the public authorities, were facing new challenges, numerous and important. These diverse factors unified and strengthened each other: primarily, the result was a generalized intensification of competition which should be counterbalanced by international rules. The ILO and its fundamental principles, tripartism, freedom of association and free collective bargaining, had always been considered the cornerstones of a universal social and economic framework. These principles were also the fundamental objectives during the creation of the ILO in 1919 and its strengthening in 1944. The challenges which must now be met required updating in the sense of a strengthening of the functioning and impact of the ILO. The General Survey, which the Committee of Experts had rightly placed in the present context, met expectations and was a very current and usable frame of reference. The survey would have beyond a doubt a profound influence on the future action of all the supervisory bodies. The Workers' members also noted with satisfaction that the Committee of Experts had taken into account the work of the Conference Committee on Standards, as had been announced already in paragraph 3 of the survey, even if these two committees had a different mandate and different working methods. The Committee of Experts had replied unambiguously to the numerous observations based, in particular, on some provisions of the Vienna Convention or on other texts or legal theories.

The relationship between trade union rights and civil and political liberties

95. The Employers' members generally supported the comments of the Committee of Experts on this subject, but with certain nuances. The beginning of this chapter, which in particular made reference to other international texts, lent to the observation that sometimes, in practice, there was some opposition between individual rights and collective rights, whereas that should not normally be the case. The right of every person to establish and join organizations was the very foundation of freedom of association. The comments and recommendations of the Committee of Experts on this subject concerned the fundamental rights and liberties which every citizen should be able to invoke, worker or employer, who wishes to join an organization and participate in its activities. For the Employers' members, respect for these principles was the indispensable prerequisite for the existence of a state of law respectful of democratic rules. For a number of years, this Committee had recalled that the violation of civil liberties had negative repercussions on freedom of association. The Committee had the duty to draw attention to the regrettable situations of this type when they occurred and to request the necessary changes. There were a number of difficulties in this respect and the ILO and the employers should continue to cooperate in order to resolve them. These substantial problems which were raised in the course of this discussion, as a rule lay well outside the subtleties concerning the right to strike, and indeed had nothing to do with it. The real and recognizable difficulties, obstructions and shortcomings concerning freedom of association in its practical application formed an important field of action for the supervisory bodies of the ILO. There was considerable agreement on this subject, constituting a base for effective action in this field and this opportunity should not be lost. The differences of opinion about the limits of strikes should not be allowed to imperil the general measure of agreement. However, controversial matters needed to be discussed at somewhat greater length than questions on which there was agreement.

96. For the Workers' members, collective rights gave rise to harmonious development and the reinforcement of individual rights. There was therefore a veritable complementarity between the two. Furthermore, freedom of association was a principle the consequences of which reached far beyond the framework of labour law in the classic sense of the word. In the absence of a democratic order respecting political rights and freedoms, freedom of association could not fully develop in all its aspects. Convention No. 87 and the constitutional principles of freedom of association, which must be respected by every State whether or not they have ratified the Convention, imposed an obligation of result on the authorities responsible for the police, as well as for the administration of justice and the for the judiciary power. The public authorities must not remain complacent by simply tolerating the existence and the functioning of workers' and employers' organizations; they must create and maintain all the necessary conditions so that these organizations may develop, without interference, within the framework of a true political, social and economic democracy. Each year during the discussion of the individual cases, however, the Committee noted that legitimate trade union activities were considered as criminal offences in some countries and that they were suppressed by the authorities or even by paramilitary groups acting with complete impunity. The Workers' members also stressed that it was particularly important that an independent, easy accessible, judiciary system be established -- a subject which it would be desirable to provide for in a specific international instrument -- and that the victims of this type of repression could thus obtain compensation for the prejudices caused.

97. The Workers' members also deplored the very serious attacks on freedom of association which were the result of measures taken in certain countries, for example, the internment of trade union activists in "education through labour" camps, who were thus forcibly integrated into a parallel economy which exported products and services around the world. The Workers' members of Colombia and of Guatemala moreover underlined the deplorable situation prevailing in their countries and in several countries in Latin America, as could be seen by the number of cases of violation of fundamental rights brought before the Committee on Freedom of Association. The Workers' member of New Zealand also gave resounding homage to the workers who had been victims of serious violations of fundamental rights simply for having wanted to defend freedom of association, and sometimes losing their life for it. The Workers' member of France stressed the utility and the effectiveness of the ILO supervisory machinery which had, for example, contributed to the setting up of truly free and democratic trade-unionism in Poland.

98. Several Government members (Finland, Portugal, Uganda) endorsed the views expressed by the Committee of Experts on the necessary link between civil and political liberties and trade union rights. The Government member of Germany agreed with the Workers' members that the situations described in this part of the survey were particularly disturbing.

The right of workers and employers to organize

99. The members of the Standards Committee of the Conference stated that they were generally in agreement with the comments of the Committee of Experts on this question. Several reservations were however expressed concerning the issue of trade union security.

100. The Workers' members indicated on a general level that the possibility, in fact as in law, of establishing trade union organizations was an indispensable prerequisite to the proper functioning of freedom of association and free collective bargaining. If the recent process of democratization had given rise to progress on this point as compared with the situation in 1983, there were nevertheless a series of measures and practices in a number of countries which hindered, sometimes openly, the right to organize for workers. The desire to obtain a competitive advantage, to perpetuate a not very democratic control over workers, the explanations based on the so-called obsolete nature of international standards or even the economic and cultural differences, were some of the reasons invoked by different countries and really constituted excuses more than true arguments.

101. The Workers' members subscribed to the position of the Committee of Experts according to which the only exceptions provided for in Convention No. 87 were the armed forces and the police; in case of doubt, workers should be considered as civilians and thus benefit from the protection of this instrument. These principles were also valid for all other workers who, in many countries, were refused trade union rights, for example: public servants, fire-fighters, prison staff, agricultural workers, workers in the informal sector, managerial staff, workers in export processing zones, migrant workers, etc. The Workers' member of Argentina furthermore drew the Committee's attention to the specific difficulties encountered by seafarers because of the greatly increased use of flags of convenience and second registers in such a way as to deprive an important group of workers of any of the protections of international labour conventions, in particular, in the area of freedom of association. This problem should be remedied by the ILO.

102. According to the Workers' members and the Employers' members, the right of workers and employers to establish organizations should not be hindered by unduly complex and long registration procedures which did not offer all the guarantees of necessary objectivity and which, in practice, amounted to a system of previous authorization. The Workers' members indicated that these problems were particularly serious in systems of enterprise trade unions because of the necessity to register each time, as well as in the free export zones, a problem raised many times in the General Survey. Moreover, several free trade unions, established recently or for a certain number of years, were also facing obstacles in countries which applied a system of semi-official trade union monopoly, and even official, in favour of a union close to the political power.

103. As concerned the right of workers and employers to establish organizations of their own choosing, the Workers' members commented on three points. First, in systems of enterprise trade unions, many workers were deprived of the right to organize when legislation imposed an excessive threshold as to the minimum number of members. This situation was worsened by the increasing number of small and medium enterprises and the greater recourse to subcontracting. The second important theme concerned the relationship between, on the one hand, trade union diversity and, on the other, the requirements of effectiveness and feasibility in collective bargaining at all levels. The bilateral and tripartite social dialogue could not be limited only to the enterprise, but should be held at every level and deal with every facet of social and economic policy. An excessive multiplication of workers' and employers' organizations, like a trade union monopoly imposed by law, ran the risk of weakening the quality of the social dialogue and damaging the members' representation. The balance to be found depended to a large extent on the particularities of the labour relations system in each country. The Workers' members also underlined that maintaining this balance, particularly in systems of centralized negotiation, might become difficult when trade unions by category, such as managers, claimed recognition as the most representative trade union at the national and federal level. Thirdly, the survey confirms that the clauses and practice of trade union security were not covered by the Convention. Given that these clauses were often criticized by governments which had adopted an anti-union policy, it was not surprising that the trade unions concerned looked to protect themselves by using clauses of this nature.

104. The Government member of Iceland stated that his country and many other States were concerned about several problems raised with respect to Convention No. 87 such as closed shop systems, trade union security clauses and the notion that it was worth calling up the negative side of freedom of association. Governments were often confronted with a dilemma in this regard: on the one hand, they try to guarantee trade union security by allowing the social partners to negotiate on priority employment clauses, particularly when the employment market is restricted and fragmented as in Iceland; on the other hand, they are expected to neutralize the negative aspects of freedom of association by prohibiting trade union security clauses. This question was equally linked to the search for greater flexibility in the labour market, as well as to the desires to substitute individual labour contracts for collective agreements, a tendency which was reflected in other regional instruments. The Committee of Independent Experts of the European Social Charter had for its part considered that article 5 of the Charter covered both positive and negative freedom of association and that trade union security clauses were in violation of the Charter. The European Court of Human Rights arrived at the same conclusion with respect to article 11 of the European Convention on Human Rights, without determining however if this negative right should benefit from an equivalent protection to that given to the positive right. This gave rise to the thought that the latter, in certain circumstances, might benefit from better guarantees.

105. Supporting the general observations of their group, several Workers' members also remarked on the specific situation in their own countries with respect to the comments of the Committee of Experts on this subject. Thus, the Workers' members of the Czech Republic and of Japan evoked specific problems concerning the right to organize for public servants or certain workers in the public sector, for example fire-fighters or prison staff; the Committee of Experts had now clarified this question. The Workers' member of Senegal stressed that workers, particularly in French-speaking Africa, were often refused functions of responsibility in unions because of distinctions based on nationality even though they enjoyed popular support from their constituents. The unanimous position of the Committee of Experts on trade union monopoly had now been consecrated, as was underscored by the Workers' members of Poland and Spain, the former specifying that Convention No. 87 had undoubtedly furnished powerful arguments for the Solidarity union in its struggle for the recognition of truly independent trade unions. The Workers' member of Norway, speaking on behalf of the Workers' members of Denmark, Finland, Iceland and Sweden, firmly supported the conclusions of the Committee of Experts on the questions of trade union security. They pointed out, however, that a contradictory jurisprudence on this subject might develop between the ILO and the European bodies.

106. The Employers' members remarked that, overall, the Committee of Experts repeated the comments made previously on this subject, for example concerning persons who could not be refused the right to associate because of the occupational category to which they belong, their nationality or their civil status or even the absence of preference for political reasons. The survey did not insist enough, however, on the fact that the guarantees under Article 2 of Convention No. 87 applied with as much force to employers. Other subjects such as the system of previous authorization existing in some countries, the conditions of registration equivalent to previous authorization, as well as the trade union monopoly imposed by legislation, had been discussed at length in previous years; the opinions of the Committee of Experts and this Committee in this regard were sufficiently clear and in agreement that it was not necessary to add to them.

107. The Employers' members nevertheless expressed serious reservations with respect to the differentiation made by the Experts between trade union security clauses freely negotiated and clauses imposed by legislation. This differentiation, which was perhaps no longer a true differentiation, was far too complex. If this reasoning were accepted, pressures through collective bargaining would be acceptable but not by state regulation. Reservations were necessary in this regard because there were countries where collective bargaining produced the same effects as legislation. The Employers' members thus did not see any real difference between the factual pressures and those exercised by legislation: for the individual the result was the same whether the pressure came from workers' organizations, employers' organizations or the State. In the opinion of the Employers' members, there was a logically obvious link between the freedom to join an organization and the freedom not to join. Freedom required the possibility to choose among several options and the freedom not to join was an inalienable part of the guarantee for freedom. The Employers' members considered that on this point, the Committee of Experts did not follow the principle retained in paragraph 55 of the survey wherein it applied the principle that exceptions to a basic rule should be interpreted in a very narrow sense.

108. The Employers' members of Iceland and Romania, supporting the general observations of the Employers' spokesperson on these questions, made additional observations. The Employers' member of Iceland, referring to comments of her Government and the Workers' member of Norway, stated that the questions concerning trade union security clauses and the right not to associate were more complex than the General Survey implied and that further discussion was necessary with respect to paragraph 102. She had difficulty understanding in this context the difference between laws and collective agreements, particularly when the latter were extended to all workers by law and not only to those directly concerned by the agreements. The problem was aggravated in Iceland by the fact that the law required employers to deduct union dues from employees' salaries: it was difficult in these circumstances to speak of voluntary association of workers. To require, either directly or indirectly, people to join a union against their will was not reconcilable with the basic principle of the right to organize, nor with modern notions of personal freedom. In this regard, the Employers' member of Romania was also surprised by the fact that, according to his interpretation, the Committee transformed a right - which must be protected - into an obligation, and this under the guise of trade union security favouring trade union monopoly. According to him, the comments of the Committee concerning the deduction of dues at the source, for unionists as well as non-members, were contrary to Articles 6 and 9 of Convention No. 95 on the protection of wages, and the comments concerning the obligation of non-members to pay equal contributions to union dues in order to benefit from collective agreements were contrary to Paragraph 4 of Recommendation No. 91 on collective agreements.

109. Stating that the considerations made by the Committee of Experts in this chapter seemed relevant, the Government member of Portugal rectified the reference (paragraph 81, note 71) to provisions of Portuguese legislation concerning the minimum membership required for establishing a trade union, since the ratification of Convention No. 87 had brought about the abrogation of all contrary texts. The services responsible for the registration of trade unions no longer applied the Legislative Decree in question.

110. The Government member of Uganda indicated that his Government, with the technical assistance of the ILO, was undertaking a complete reform of all labour laws and that, for the first time, the social partners had been fully associated with this exercise. In particular, the Government enacted the Trade Union Amendment Legislation to extend trade union rights to workers who did not previously benefit from them, for example the civil service, teaching service and those in the Central Bank.

111. The Government member of the Czech Republic specified that the legislation of his country respected the Convention with respect to the rights of public servants; a draft Bill, considered to be in conformity with Convention No. 87 and with several provisions of Convention No. 151 (not ratified by his country) is to be submitted to Parliament after consultation with the trade unions.

Drawing up of constitutions and rules,

112. The members of the Standards Committee of the Conference were generally in agreement with the comments of the Committee of Experts on this matter.

113. The Workers' members, stressing the primordial importance of the autonomy of organizations, observed that it was remarkable that the countries which had very detailed regulations with respect to the functioning of trade union organizations often paid very little attention to social policy. Noting, as in the survey, that much progress had been made in this area, they encouraged these countries to pursue this policy in order to bring their legislation into total conformity with the principles of freedom of association. Furthermore, the Workers' members stated that they completely shared the firm and explicit position of the Committee, based on the preparatory documents of the Convention and also taking into account the context of globalization, when the Committee confirmed that trade union activities could not be limited to strictly occupational concerns. Workers' organizations should thus be able to voice their opinions on political issues in the broad sense of the term and, in particular, to express their views publicly on a government's economic and social policy.

114. For the Employers' members, the Committee of Experts had overall formulated appropriate observations on the application of these provisions of the Convention, even though they could not subscribe to its position in every detail; most of these observations did not therefore call for specific remarks. They observed, however, that the Committee of Experts had undertaken a delicate subject when commenting upon the question of the political activities of trade unions. The opinion put forth by the Committee in this regard seemed plausible but it was not strictly speaking deduced from the provisions of the Convention. The question of whether, and to what extent, workers' and employers' organizations should have political ties should be treated with a great degree of caution. If, as the Experts seemed to suggest, trade unions could intervene in any debate of this nature, it might become difficult to distinguish them from political parties. This would only result in the other political forces, which were perhaps stronger and more influential, inevitably considering them as competing political parties.

The right to strike

115. On the principle of the right to strike, a broad consensus was expressed in the Standards Committee. The Employers' members nevertheless specified that, according to them, the text of Conventions Nos. 87 and 98 did not include the right to strike and expressed their disagreement with the scope given to this right by the Committee of Experts. Some Government members expressed some reservations with respect to the public service.

116. The Employers' members made detailed comments on this question, clearly stressing on a number of occasions that they did not challenge the principle of the freedom to strike and lock-out, but they absolutely could not accept that the Committee of Experts deduced from the text of the Convention a right so universal, explicit and detailed, as it had done in this part of the survey.

117. Almost all the chapters began with a relevant passage of the Convention. This could not however be the case on this point since strike was not mentioned either in Convention No. 87 or in Convention No. 98. Furthermore, the survey placed a great deal of emphasis this year on the historical aspects of these instruments; this historical method of interpretation however was only of secondary importance since, in the first place, must come the text, the purpose and the meaning of the provisions themselves. There were no concrete provisions and it was not helpful to quote the standards contained in the instruments of other organizations where strikes and collective action were sometimes mentioned in another context and in a very general or only indirect manner.

118. The beginning of the chapter rightly indicated that the right to strike was mentioned during the preparatory work, but adds in paragraph 142 that "... during discussions at the Conference in 1947 and 1948, no amendment expressly establishing or denying the right to strike was adopted or even submitted." The Employers' members however quoted the following passage: "Several Governments, while giving their approval to the formula, have nevertheless emphasized, justifiably it would appear, that the proposed Convention relates only to the freedom of association and not to the right to strike, a question which will be considered in connection with Item VIII (conciliation and arbitration) on the agenda of the Conference. In these circumstances, it has appeared to the Office to be preferable not to include a provision on this point in the proposed Convention concerning freedom of association." (31st Conference, 1948, Report VII, page 87.) A similar conclusion was made in the plenary sitting: "The Chairman stated that the Convention was not intended to be a 'code of regulations' for the right to organize, but rather a concise statement of certain fundamental principles." (31st Conference, 1948, Record of Proceedings, Appendix X, page 477.) Later, Recommendation No. 92 on voluntary conciliation and arbitration dealt with this issue in a neutral manner without regulating the contents. During the plenary sitting, the famous Workers' spokesperson, Léon Jouhaux, bitterly complained of the unsatisfactory result of the discussion; he did not explicitly mention the absence of the right to strike, but other delegates did. Moreover, during the adoption of Convention No. 98, two requests presented by Workers' delegates with the aim of including a guarantee of the right to strike were rejected on the basis that it was not covered by the proposed text and that this question should be dealt with at a later stage. (32nd Conference, 1949, Record of Proceedings, Appendix VII, pages 468 and 470; see also ILO, Industry and Labour, Vol. II, July-December 1949, pages 147, et suite.) Shortly afterwards, a Government delegate made the same request which the chairman declared unreceivable for the same reasons.

119. Under these circumstances, it was incomprehensible to the Employers that the supervisory bodies could take a stand on the exact scope and content of the right to strike in the absence of explicit and concrete provisions on the subject, and that this absence seemed precisely to be the justification for their position, as is suggested in paragraph 145. The Committee of Experts had put into practice here what was called in mathematics an axiom and in Catholic theology a dogma: that is complete, unconditional acceptance of a certain and exact truth from which everything else was derived.

120. Article 3 of Convention No. 87 which confers to organizations the right "to organize their administration and activities and to formulate their activities" did not mean, according to the Employers' members, the right to intervene in the rights of others. In paragraph 136, the Experts rightly stated that "the exercise of this right inevitably affects third parties who sometimes feel that they are the victims in disputes in which they have no part". This assertion of the Committee's had been increasingly confirmed with respect to all labour disputes. In any event, strikes were clearly not an internal and autonomous matter of a trade union; they were above all directed against employers and, in today's world with its division of labour, the effects of a strike which were regularly and deliberately calculated increasingly touched third parties and the general public who had nothing to with this conflict. Sympathy strikes, by their very nature, were aimed at people who were not directly involved in the conflict. The interpretation of the Committee, which was creating and developing law, did not allow for the conclusion that the right to strike was an intrinsic corollary of the right to organize, as asserted in paragraph 151 of the survey.

121. The Employers' members also felt it important to note that they were not so much criticizing the fact that the Committee of Experts wanted to recognize the right to strike in principle, but rather that it took as a point of departure a comprehensive and unlimited right to strike. The views of the Committee of Experts on the various forms of strike and their scope were obviously based on erroneous premises. The Committee did not generally examine whether strikes were permissible, nor the question of how far a strike can go. Beginning with the erroneous premise of an unlimited right to strike, the Committee considered rather whether limitations on the right to strike were permissible. According to the Committee, any limitation on the right to strike required a specific justification, which could be seen in the treatment of all the important cases. Two examples could be given in this respect: the public service and political strikes.

122. According to the Employers' members, the Committee of Experts considered that restrictions on strikes in the public service were only allowable if the strike affected the essential services, an expression which the Experts later defined in the strict sense of the term. Consequently, the Committee came to accept restrictions on the right to strike only in cases where the strike might endanger the life, personal safety or health of whole or part of the population. The Employers' members had already responded in this respect that a State could not accept that its duty to protect the welfare of its citizens be restricted to the values of life and health. It can be seen that, in paragraphs 158 and 159, the Committee of Experts had applied a different approach by adopting a very cautious formula. The Committee considered that some restrictions on the right to strike might be permissible under certain circumstances, while leaving the question open. One might discern the sign of a new approach but, looking at the specific application of this approach to concrete examples concerning some countries, one quickly realized that the Committee had fallen back on its old formula, hurrying to forget its weak attempt at revision.

123. Still according to the Employers' members, the position of the Committee of Experts with respect to political strikes had also been influenced by the above-mentioned principle of unlimited strike. For a long time, the Committee only admitted the possibility of limitations for "purely" political strikes. However, the number of cases where the Committee applied this approach demonstrated that purely political strikes virtually did not exist since it had often assimilated political strikes to a protest against government policy, a form of strike which it had always considered acceptable. The Employers' members expressed their concern for the fact that, from this point of view, consideration was never given to the fact of a democratically elected parliament and yet, the social partners were not above the law. Regrettably, the Committee of Experts often considered that some strikes were a protest against the government, while in reality, these strikes were against decisions of a freely elected parliament. In these circumstances, it would seem more reasonable and in greater conformity with democratic rules to submit the question of strike and lock-out to the legislator of the ILO, i.e. the International Labour Conference, where, after sufficient preparation and an open debate, this area, which was still open, could be made the subject of a specific regulation.

124. In their final remarks on the right to strike, the Employers' members, in response to some comments from the Workers' members, recalled that they were not simply set on denying the right to strike, but had, to the contrary, put forward numerous and well-founded arguments for their position. First, the Employers' members had made recourse to historic arguments, the basis of which was disputed by some workers, precisely because the survey itself placed a great deal of emphasis on this. Basing themselves on these texts, the Employers could thus demonstrate that the right to strike had not been provided for in Conventions Nos. 87 and 98. This argument was all the more convincing by the fact that the right to strike had not been forgotten during the elaboration of these instruments: attempts had been made to incorporate this right into the Conventions but had been rejected in the absence of a majority in favour. Secondly, several speakers simply asserted that there was a comprehensive right to strike because there had to be, as without the right to strike, there could be no freedom of association. It was impossible to seriously argue against this type of preemptory statement which likened the right to strike to a sacred workers' right. Thirdly, numerous speakers cited other regional or international instruments dealing with the right to strike, lock-out, etc., but these were not relevant to the interpretation of ILO instruments. An extensive right to strike did indeed exist in some countries, but elsewhere the situation was entirely different. This was a matter for national law, but in no way was it a right established by ILO instruments or derived from them.

125. As regards the statement of the Workers' member of Poland that Conventions should be interpreted in a dynamic and functional manner, the Employers' members saw in this an admission that there was no legal basis for the right to strike in ILO instruments. There were rules of interpretation in international law provided for by Articles 31 and 32 of the Vienna Convention on the Law of Treaties which the Experts themselves used in their interpretations. Two objections were raised in this regard. First, the Vienna Convention dated back to 1969 and banned retroactivity. In Article 4 of this Convention, however, it is said that this ban on retroactivity did not apply to general rules of international law, and the rules of interpretation in Articles 31 and 32 of the Convention were such rules. Secondly, Article 5 of the Vienna Convention provided that it "applies to any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organization, without prejudice to any relevant rules of the organization." There were no rules of interpretation in the constituent instrument of the ILO and article 37 of the Constitution only indicated the competent body without establishing authentic rules of interpretation.

126. Finally, with respect to the statement made by the Workers' member of the United Kingdom according to whom even if the standards did not contain detailed provisions on the right to strike, this right was generally and implicitly recognized, the Employers' members stated that this argument was not enough as no rule of international law could be derived from it upon which the situation in every member State could be examined and, if necessary, criticized. There must be more precise provisions in order to conclude the existence of a right. Nevertheless, the Experts have gradually and systematically elaborated not a general principle on the right to strike -- as they should have done -- but rather an almost unlimited right to strike, accepting less and less any restrictions on this right. If the views of the Committee of Experts were generally accepted, then workers should no longer have any objection to placing this mater on the agenda of the Conference, thus clarifying the question. The Employers' members, however, were quite certain that the final result would not be the type of right to strike elaborated by the Committee of Experts.

127. Supporting the comments of the Employers' spokesperson, the Employers' member of the United States observed that, considering the legislative history of these Conventions and the observations of the Experts in the 1950s, no one could have anticipated the extremely explicit and detailed interpretation now made by the Committee of Experts. The speaker recalled that, in the 1953 survey on Convention No. 87, the Committee stated that: "The object of this Convention is to define as concisely as possible the principles governing freedom of association, whilst refraining from prescribing any code or model regulations." (ILC, 36th Session, 1953, Report III, Part IV of the Committee of Experts on the Application of Conventions and Recommendations (articles 19 and 22 of the Constitution), page 57.) The Committee asserted however in paragraph 13 of the 1994 survey that all of the principles which it applies constitute "a veritable international law of freedom of association". This flew in the face not only of the 1953 statement but also of what it rightly stated in paragraph 20 of the 1994 General Report: " ... ILO instruments, whether new or revised, set minimum standards (article 19, paragraph 8, of the Constitution). As a matter of principle, Conventions should set a general framework."

128. The speaker recalled that, in making observations regarding the application of ratified Conventions, the Committee of Experts normally based itself on the text of the convention and its legislative history. With respect to Conventions Nos. 87 and 98, however, the Committee had moved away from this practice and also applied the principles of the Committee on Freedom of Association. By endorsing the conclusions of the Committee on the meaning of these Conventions, the Committee of Experts has subverted the supervisory machinery. No less an authority than Mr. Nicolas Valticos had pointed out that the conclusions of the Committee on Freedom of Association were not limited to determining the meaning of the freedom of association Conventions and that, not being bound by the terms of these Conventions but more generally inspired by the principles of freedom of association, the Committee was led to formulate the principles which on various points extended the express provisions of the Convention. This reliance on decisions of the Committee on Freedom of Association, decisions which went beyond anything contemplated by the provisions and legislative history of these Conventions, undercut the credibility of the Committee of Experts, a credibility which remained vital to the effectiveness of the Conference Committee on the Application of Standards.

129. The speaker noted that, when the right to strike was discussed in the Standards Committee of the Conference, a confusion arose between two distinct questions which it was worth distinguishing. The first is whether trade unions have the right to strike; on this point, there is a general unanimity, although the right to strike was not without limits. The second question, more relevant to this Committee, is the following: do Conventions Nos. 87 and 98 include the right to strike and, if so, to what extent? Everyone would agree that the right to strike was not explicitly provided for in these instruments. The Committee of Experts indicated in paragraph 142 of the survey that the right to strike "... seemed to have been taken for granted in the report prepared for the first discussion of Convention No. 87 ..." and that "during discussions at the Conference in 1947 and 1948, no amendment expressly establishing or denying the right to strike was adopted or even submitted." Even if correct, these were quite slim reeds for the Experts to rely on as a basis for its extensive regulation of the ability of governments to place limits on the right to strike given the fundamental nature of such a right. Besides the fact that this document was prepared by the Office, the legislative history of Convention No. 87 was unequivocally clear that "the proposed Convention relates only to freedom of association and not to the right to strike". Furthermore, as was emphasized by the Employers' spokesperson, during the final discussions of Convention No. 98 in 1949, the Conference Chairman declared unreceivable the two amendments aimed at incorporating a guarantee for the right to strike as they were not within the scope of the Convention. The speaker thus expressed the opinion that the passage in question constituted a factual error with respect to the historical basis of the right to strike being fundamentally inherent to these Conventions.

130. The speaker recalled that the Committee of Experts mentioned the right to strike for the first time in its third General Survey on the subject in 1959, in only one paragraph and only with respect to the public service. In the following surveys, the Committee gradually expanded its views on the matter to seven paragraphs in 1973, then 25 in 1983 and finally arriving in 1994 with a separate chapter of no less than 44 paragraphs, including a number of new subjects.

131. Underlining that the Experts stated in paragraph 145 that: "In the absence of an express provision on the right to strike in the basic text, the ILO supervisory bodies have had to determine the exact scope and meaning of the Conventions on this subject", the speaker stated that the Committee of Experts' function was to interpret existing provisions and not to substitute for legislators; it is not up to the Experts to create requirements with respect to questions upon which the technical committee could not agree. To base oneself on the part of Article 3 which states "Workers' and Employers' organizations shall have the right ... to organize their ... activities and to formulate their programmes" is a very indirect and subjective method for concluding the existence of the right to strike in Convention No. 87. It was also a surprising method, as it concerned a right as fundamental as the right to strike which one would have expected to find as an express provision in the text of the Convention itself.

132. The speaker stated that, given the silence of the two Conventions on the right to strike, it would be better to substitute a more pragmatic approach for the optimal approach taken by the Experts whereby the Conventions would only be concerned with general prohibitions to the right to strike rather than the finer details of whether the strike involved essential or non-essential services or whether public servants exercised authority in the name of the State. Noting that the Experts seemed to have chosen a more pragmatic approach in paragraph 160 on the question of strikes in essential services, in response to the wishes expressed for several years by the Employers' members, they considered that this determination was made on a case-by-case basis and not according to the almost uniform approach mentioned in the 1983 survey (paragraph 214, footnote 3) frequently used in the past.

133. Moreover, the speaker remarked that this year, for the first time, the Committee of Experts has addressed the issue of replacing strikers. The speaker indicated his concern that the Committee make such an observation in the abstract, particularly when it was based on two decisions of the Committee on Freedom of Association, the conclusions and recommendations of which were less strict than the observation of the Experts in paragraph 175 since the former only found that there was risk of a derogation of the right to strike. This observation of the Committee of Experts, which might be raised within the framework of the controversial, political debate taking place in the United States, was not appropriate, especially if one considered that it involved only a small aspect of a balanced and complex system of industrial relations.

134. In reply to criticisms of the attitude attributed to the Employers' members concerning the ILO, standards and the support given to the supervisory bodies, an attitude which had allegedly radically changed according to some Workers' members, the speaker, supporting the general comments made by the Employers in this regard, recalled that it was not the Employers who had tried to destroy the ILO system but rather some countries. The Employers, to the contrary, had always supported the system and muted their concerns in the general interest.

135. The Employers' member of Nicaragua added that the right to strike should only be exercised after all other recourse foreseen for resolving conflicts had been exhausted. According to the Employers' member of Romania, the Committee of Experts sometimes made interpretations which contradicted provisions of other standards adopted by the ILO and the exercise of the right to strike could interfere with other rights just as fundamental.

136. The Workers' members stated that the right to strike was an indispensable corollary of the right to organize protected by Convention No. 87 and by the principles enunciated in the ILO Constitution. Without the right to strike, freedom of association would be deprived of its substance. It was enough to go through the preparatory works of Convention No. 87, the multiple conclusions and recommendations of the Committee on Freedom of Association and the successive general surveys elaborated by the Committee of Experts on this subject to be convinced of this. In its 1994 survey, the Committee of Experts formally and unambiguously confirmed this relationship by dedicating a separate chapter to the principles and modalities of the right to strike which it placed in the current context: growing interdependence, globalization of the economy, fragmentation of enterprises and the obsession of competitiveness. The Experts also established current and operational orientations, not only for this Committee, but also for all governments and all workers' and employers' organizations.

137. The Workers' members pointed out that, as indicated in paragraph 165 of the survey, strike objectives could not be limited only to the conflict linked to the workplace or the enterprise, particularly given the phenomena of enterprise fragmentation and internationalization. This was the logical consequence of the fact that trade union activities should not be limited to strictly occupational questions. Moreover, this enterprise fragmentation was partly due to the social policy of many governments to provide various advantages to small and medium enterprises; there was a danger in this weakening of collective rights if certain precautions were not taken, as mentioned in paragraph 335. This was the reason why sympathy strikes should be possible, as well as strikes at the sectoral level, the national and the international level.

138. The Workers' members also stressed that account had to be taken of all of this context when considering the question of modalities for carrying out strikes, such as picketing or occupation of the workplace. Often called upon to make this judgement, the judiciary power had a tendency to suppress these forms of strike, whereas it should do everything possible, if the judicial system in the country permitted, to ensure respect for international obligations and the ILO Constitution. The Workers' members also invited the Governments to verify whether the legislation, practice and jurisprudence of their countries were in conformity with the principles enunciated in paragraph 174 and, if not, to take the necessary corrective measures. As indicated in paragraph 137, detailed and restrictive legislation would not stop wildcat strikes and unorganized actions. By considerably limiting the scope of action of trade unions by legal or administrative restrictions, governments and employers might find themselves increasingly faced with spontaneous actions.

139. According to the Workers' members, possible restrictions on the right to strike in essential services and for certain categories of public servants should be restrictively defined given that they are exceptions to a general rule concerning a fundamental right. The Workers' members strongly hoped that the nuanced position thus expressed by the Experts would put an end to the controversy which sometimes hindered the work of this Committee. In paragraphs 161 and 254, et suite, the Experts rightly emphasized the need to give full priority to negotiated solutions.

140. In their final observations concerning the right to strike, the Workers' members reiterated their general agreement with respect to the approach adopted by the Committee of Experts and commented upon the observations made by some speakers. First of all, they noted that the Government and the Employers' members accepted the principle of the right to strike. The reservations expressed concerned not the right to strike but rather the modalities and the extent to which national conditions should be taken into account. Secondly, most of the reservations expressed by the governments only concerned the right to strike in the public service, considered to be a restrictive interpretation. Thirdly, expressing their surprise at the fact that the Employers' members relied on a declaration of a Workers' delegate to the 1949 Conference, the Workers' members expressed their preference for the method used in the General Survey and the examination, in particular, of legislation and practice in order to evaluate the real situation in the field. Fourthly, they stated that a new discussion at the Conference, as suggested by the Employers, of an essential aspect of a fundamental Convention dealing with human rights as Convention No. 87 did, was not a good idea. Such a discussion might paralyse tripartism and the ILO just at the time when the ILO should be developing dynamic action. As concerned the suggestion of the Employers' members to entrust to the legislators of the ILO, i.e. the Conference, the care to set the modalities of the right to strike, the Workers' members recalled that a draft resolution on this point had been introduced at an earlier session of the Conference by the Government of Colombia, a country which was experiencing very serious problems with respect to the application of Conventions Nos. 87 and 98, including before this Committee. On the other hand, the Committee of Experts unanimously, all the Workers' members and a large majority of the Government members were of the opinion that effective protection of freedom of association necessarily implied operational rules and principles concerning the modalities of the right to strike.

141. The Workers' members also rejected the position of the Employers' member of the United States according to whom the inclusion of Convention No. 87 as such in a social clause would not be opportune. They emphasized that the Employers' members really only criticized the substance of one of the ten chapters, expressing only some reservations on certain aspects of the rest of the survey. The simplifying of the freedom of association Convention into one single sentence in a social clause would not, therefore, make much sense.

142. As concerned the observations of the Employers' members and, in particular those of the Employers' member of the United States, on the changes occurring in the world and the need to adapt to them, the Workers' members were fully aware of this but they could not accept that these changes would weaken workers' organizations and the collective bargaining systems put into place over the years. On a related point on the discussion concerning the relationship between individual rights and collective rights, the Workers' members indicated that they did not dispute the practical importance of individual rights for workers, but nevertheless stressed that collective bargaining and collective rights in general were a very important source of rights for the promotion of the development of individual rights. If on the one hand they were in favour of a strengthening of certain individual rights, for example equality of opportunity, occupational training, family leave, etc., they were opposed, on the other to an individual approach which would tend to weaken collective bargaining.

143. Numerous Workers' members spoke to support the general observations, to emphasize specific aspects of this part of the General Survey or to draw the Committee's attention to the situation prevailing in some countries. All endorsed without reservation the approach adopted by the Experts concerning the interpretation of Article 3 on the right to strike. Thus, the Workers' member of Poland underlined that the Committee had only applied well-established principles, Convention No. 87 calling for a dynamic and functional interpretation. According to the Workers' member of Germany, if the Employers recognized the principle of the right to strike, it was not logical that they contest the means used by the Committee to interpret this principle. The Workers' members of the Netherlands and the United Kingdom stated that the Experts had developed their views on this question in a very cautious, gradual and balanced manner, with the support of a majority of the Conference Committee; it was preferable that the general consensus established in this regard not be shaken up. Recalling that strikes were an essential means of defending the economic, social and occupational interests of workers, the Workers' member of France particularly called into question the position of the Employers on sympathy strikes, emphasizing that there were problems of solidarity generally and that trade union structure was often interoccupational. Furthermore, he criticized the use made by the Employers of the declarations on strikes made by a Workers' member in 1948 and the exaggerated dramatization of the consequences of strikes. The real solution was not to give any reason for going on strike. Several other Workers' members also pointed out various forms of attack on the right to strike, for example: provisions making strikes a criminal offence, frequent limitations imposed on public servants, abuses with respect to the determination of minimum services.

144. Several Government members, including Finland, Germany and Venezuela, expressed general agreement with the Committee of Experts' position on strikes as an indispensable corollary of freedom of association and emphasized moreover that the Committee had explained that this was not an absolute right. According to the Government member of Venezuela, the Committee of Experts had only adopted the modern rules of interpretation of general legal standards by preferring a more flexible and dynamic interpretation to a literal and dogmatic one, taking into account not only the text, but also its precedents, in the context of its adoption and the changes which had occurred. It would have been surprising if a right so broadly accepted had been rejected by the ILO for a restrictive interpretation. For the Government member of Germany, if the authors of the Convention had not considered that the right to strike was a part of freedom of association, why would they have considered it necessary to specify that the recognition of trade union rights for public agents did not prejudge the question of their right to strike? (See 30th International Labour Conference, 1947, Report VII, page 109.)

145. Several Government members, in particular the Government member of Germany, stressed that the problems in this respect often related to the public service, since in that case the employer was the government.

146. The Government member of Belarus, recalling that Conventions Nos. 87 and 98 did not expressly cover the right to strike, stated that this right was always exercised even if it did not appear in national legislation. The legitimacy of this right had to be appraised with respect to the consequences that its exercise might have for society, limiting these consequences as much as possible. A legal framework had to exist therefore, strike being only one of the means for resolving conflicts, and its exercise should be limited to such circumstances. In cases where the consequences of strikes had effects beyond the enterprise, the government might have to take measures and prohibition of the strike in such cases was conceivable.

147. Agreeing that the right to strike was truly an essential corollary to the right to organize, the Government member of Portugal expressed, however, some doubts about certain developments in the survey concerning for example: the exercise of the right to strike in the public service, the maintenance of employment relations, sympathy strikes or strikes protesting against social and economic policy, procedures for strikes, lawful forms of strike action, sanctions in the case of illegal strikes and minimum services. In order to consider the principles put forward by the Committee of Experts as rules of international law, the Conference would have to adopt them according to the principle of tripartism. If a Convention were to be adopted, would all the rules elaborated by the Committee have to be included? Would States which had ratified Convention No. 87 adhere to the new standard?

148. The Government member of the United States indicated that the President of her country had stated that he would sign a law prohibiting the replacement of striking workers. The legislative amendments had been adopted by the House of Representatives and were presently under consideration by the Senate.

Dissolution and suspension of organizations federations and confederations

149. The Workers' members stated that the measures for dissolution and suspension of organizations examined by the Committee in Chapter IV of the survey were extreme forms of interference which should be condemned because the authorities could use them at any time in order to paralyse the trade union movement. The simple fact of their existence had the same effect as the sword of Damocles wavering above the organizations. Judicial recourse, when it existed, was often ineffective due to its sometimes slow and complicated nature and did not always offer guarantees of the necessary independence and objectivity. Other problems had recently arisen with respect to the division of the property of trade unions closely linked to the political system in place within the framework of an institutional trade union monopoly with the aim of equitably redistributing its supporters among the free and democratic trade unions. This redistribution should be organized as soon as possible and on an equitable basis. The Workers' member of Poland endorsed the position of the Committee of Experts on this point, stating however that it might have extended its scope -- which essentially aimed at Central and Eastern Europe -- to all the countries in Africa, Asia and America which have moved from a single party system to a pluralist democracy. He was of the opinion that the Committee could have emphasized more firmly and explicitly that the Convention placed an obligation on States to take such measures, after necessary consultation, as had been recalled by the Commission of Inquiry established to consider the complaint concerning the application by Romania of Convention No. 111 on discrimination (employment and occupation). He underlined that the absence of appropriate measures in this regard in numerous countries on the road to democratic reform represented one of the worst threats to the existence and functioning of independent trade unions.

150. As regards the restrictions placed on the right of organizations to join federations and confederations and to affiliate at the international level, the Workers' members stated that measures of this type were clearly designed to weaken the impact of the trade union movement and to undermine worker solidarity. Trade union organizations were thus trapped within a framework imposed by the authorities. Among the possible multiple consequences of this, they mentioned: the danger that trade union activities be restricted to strictly occupational matters concerning the workplace; the limitation of the scope of application of collective agreements and of social policy; the exclusion of certain categories of the population; the immobility and ignorance of workers faced with the increasing internationalization of the world; the danger of political control over the trade union movement; and finally, the weakening of tripartism at the national, regional and international level.

151. The Employers' members expressed their general agreement with the comments made by the Committee of Experts in these two chapters.

Right to Organize and Collective Bargaining

152. A fairly broad consensus developed in the Standards Committee of the Conference concerning the comments made by the Committee of Experts on Convention No. 98. The Employers' members and some Government members expressed, however, some reservations or nuances.

153. The Employers' members stated that the principle of protection against anti-union discrimination was clearly indicated in Article 1, paragraph 1, of Convention No. 98. Article 1, paragraph 2, illustrated this principle with examples; there was no doubt in this regard. On the other hand, the manner in which this protection had to be ensured was not so explicitly defined (which was not mentioned by the Experts) since the Convention limited itself to indicating that it must be "adequate". Several of the Experts' reflections on this point were understandable, but they were not directly derived from the Convention. The States therefore had a great deal of discretion in this regard. An excess of detail concerning protective measures could give the impression that it was an exhaustive list; measures not included might not then be taken into account. The term "adequate" was thus preferred in the Convention because of its flexibility. In this way, it could be interpreted and applied differently with respect to different legal systems.

154. As regards protection against acts of interference, the Employers' members emphasized that the Committee of Experts did not have any objection to the principle that employers may contribute to the financing of trade unions (paragraph 229) but did call into question the independence of solidarist associations. According to the Employers' members it was sometimes difficult to distinguish between the two. Mutual trust between the employers' and workers' organizations was a sign of a solid social partnership but, unfortunately, the relationships between organizations were often described as a long line of relentless conflicts, using the language of the class struggle, whereas this was an image of the past in several places in the world.

155. The Workers' members stressed that the exclusion of public servants in Convention No. 98 had to be restrictively interpreted. The number of individual cases in which the Standards Committee of the Conference discussed this question demonstrated the importance of the problem which was also raised within the context of privatization.

156. As concerned acts of anti-union discrimination, they recalled that effective protection during the period of employment, including termination of the employment relationship, was an essential aspect of the right to organize. Convention No. 135 completed these provisions with respect to workers' representatives. The Workers' members insisted that it was not enough for governments to tolerate unionism at the national or international level, but rather workers' organizations should have available to them all necessary means for the development of trade union action and dialogue through the intermediary of their activists and of their members. Regrettably, numerous governments and employers had the tendency to consider the presence of unions in the enterprise as a plague, whereas they should be accepted as true partners because of their ability to structure, coordinate and mobilize which were important qualities in the development of a good human resource policy and the creation of a climate of trust. The practice and the examples given in the survey demonstrated that protection against anti-union discrimination left much to be desired in many countries which could usefully be inspired by the constructive recommendations of the Committee of Experts.

157. As concerned protection against acts of interference, the Workers' members stated that it was illusory to hope for a free and autonomous functioning of trade union and employers' organizations if there was interference between them. The numerous complaints concerning employer interference in trade union affairs in several countries illustrated the scope of the problem. In some countries, this interference was even preached as official policy. It was encouraging to note that some progress had been made in one country with respect to solidarist associations, but the problem still existed in other places. Several Workers' members, in particular those of the Czech Republic, Guatemala, the Netherlands and Senegal, evoked the problems, sometimes extremely serious, which arose in this regard in their own countries or those of other member States. This was particularly the case when armed forces and police intervened, sometimes openly and with the endorsement of the authorities, in labour disputes and in workers' affairs generally. This situation could not be tolerated, even if this type of intervention was not specifically prohibited by the Convention.

Promotion of collective bargaining

158. The Workers' members insisted on the fact, that under the terms of Convention No. 98, it was not enough to tolerate collective bargaining; its promotion implied a positive attitude, no matter what system was in force. The Committee of Experts made an interesting suggestion with the system of framework agreements which would enable the strong points of several systems to be taken advantage of at the enterprise and sectoral level as well as even the national and supranational level. This system allowed for reconciliation, on the one hand, of common orientations in negotiations, the protection of workers in unorganized enterprises and sectors, such as service sectors or part-time workers or those who have limited contracts, and decentralized bargaining on the other.

159. According to the Workers' members, the direct or indirect interference by the public authorities in collective bargaining in order to maintain competitive positions had become a major problem. Measures of this type taken at the national, international or even supranational level, such as the Council of Ministers of Finance of the European Union (ECOFIN) went against the principles of free collective bargaining. The reminder of the Committee of Experts on this point was extremely important. While supporting these general observations, several Workers' members described the numerous and serious problems with respect to collective bargaining in their own countries or in other member States. In this respect, the Workers' member of Argentina recalled the annulment of collective agreements by decree, and the Workers' member of Senegal pointed out the specific problems arising from the devaluation of the CFA franc.

160. The question of the tendency towards individualization of labour relations to the detriment of the structures and machinery for collective bargaining was also raised by several Workers' members, in particular those from New Zealand, Spain and the United Kingdom. The latter indicated that, if trade unions were prepared to adapt to any change resulting, in particular, from globalization, workers were not on the other hand ready to accept changes which aimed specifically at altering the bargaining power of unions. Perhaps it should be asked whether the so-called need for flexibility was actually a natural competitive force or rather a device to reduce the bargaining power of unions. To the extent to which the provisions of the Conventions aimed at balancing the positions of the parties, they should be respected. True economic prosperity could only last if everyone who contributed to it could share in it equally. The Workers' member of New Zealand pointed out that the Government and the employers had put into place an industrial relations scheme aimed at destroying trade unions in the large sectors of the labour market, particularly those in which the working conditions were the worst. Turning to paragraphs 297 to 318 of the survey, she indicated that the recent Employment Contracts Act, which seriously increased the inequality between the power of employers and of employees, had begun to seriously erode collective bargaining.

161. The Employers' members, emphasizing that governments had a wide scope of appropriate promotional measures to choose from, stated that they did not share the concern of the Committee of Experts with respect to the tendency to reinforce individual rights over collective rights and the privatization of public enterprises. In industrialized countries, the only ones affected by this tendency, the age of collective thinking and regulation seemed to have come to an end. It was not a question of measures handed down from above, but rather a movement accompanying the evolution of contemporary tendencies which favoured increased autonomy and individualism. This did not mean that there would no longer be any collective bargaining or collective agreements, but their content would certainly change. ILO standards would have to adapt to the new situation by becoming more flexible in order to allow for greater differentiations depending on certain economic criteria. Supporting these observations, the Employers' member of the United States added that he had great difficulty understanding the Experts' comments on the dangers to collective rights because of measures, legislative or otherwise, favouring individual rights. Unions and other citizen groups in his country supported measures of this type.

162. The Employers' members supported without reservation most of the other observations made by the Experts in this chapter which showed that it was difficult to adopt a balanced position between the constraints arising from free negotiations on the one hand and the account given to national and global interests on the other. It was clear that, in the view of the Experts, freedom to bargain collectively was not unlimited as they recommended that the authorities try to convince the parties to take into account the interests of society and of the State. This should logically mean that, if the parties did not follow this advice, the Convention would permit certain restrictions on collective bargaining.

163. The Government member of Iceland, noting the complaint against his country submitted to the Committee on Freedom of Association, stated that a correct application of these instruments, particularly Convention No. 98 often created problems for governments. Governments had special responsibility for economic development which lead them sometimes to have to react quickly to prevent an economic crisis and massive unemployment, particularly when the economy depended upon one single activity, as in Iceland. The policy of his Government was nevertheless one of respect for its obligations under Convention No. 98 and of letting the social partners negotiate wages and other conditions of employment.

164. The Government member of the Czech Republic also pointed out the difficulties faced by governments which were sometimes called to intervene in the process of collective bargaining in order to maintain the stability of the macroeconomic environment and to keep inflation at a reasonable level. His Government recently had to decide to take such exceptional measures for the limited duration of the privatization process, in order to preserve the national economic interest.

165. The Government member of the United States pointed out that her Government had established three independent tripartite groups with the responsibility of reviewing the complex structure of labour management relations and to make recommendations for changes to the legislation and practice to facilitate the process of organizing and of collective bargaining in both the public and private sector. Administrative changes to the National Labor Relations Board (NLRB) were also being considered to ensure fair rules with respect to labour management disputes.

Highlights. Ratification of Conventions.

166. Most of the members of the Committee noted the increase in ratifications of Conventions Nos. 87 and 98 but pointed out that there was still progress to be made in this area given the fact that these were the most fundamental instruments of the ILO. They made an appeal in this regard, inviting the countries experiencing difficulties to request ILO technical assistance and emphasizing that the General Survey would, without a doubt, be a useful instrument to this end. Several of the members recalled that ratification without any true intention to apply the Convention did not correspond to the spirit of international labour standards.

167. The Workers' members expressed their surprise at the reasons given by some governments to justify or explain the non-ratification and noted that these were not well-founded reasons, but rather were pretexts. The principles of freedom of association and collective bargaining were constitutional principles universally applicable; the only difference concerned the supervisory procedures, in particular with respect to the competence of the Committee of Experts and this Committee.

168. The Employers' members remarked that the chapter concerning highlights of the last decade was helpful in giving a picture of the global situation and the problems encountered. They took note of the information given on ratifications and expressed their conviction that prospects in this area would be much better if the Committee of Experts had not made such a broad interpretation of these Conventions, particularly with respect to the right to strike. If these interpretations did not have a mandatory effect, they nevertheless were very dissuasive psychologically.

169. Recalling that his country had recently ratified Convention No. 98, the Government member of the Netherlands noted that some countries which had mentioned the social clause had not ratified Conventions Nos. 87 and 98. This was not a good example for developing countries and even for other countries which had not yet ratified the Conventions.

170. Several Government members, in particular those from Namibia and the United States, stressed that the application of standards was more important than their ratification. The Government member of the United States added that the legislation and practice in her country was largely in conformity with the ILO principles of freedom of association and that the ratification and implementation of Conventions was of increasing importance. The ratification by the United States of Conventions Nos. 144 and 105 was made possible by the tripartite machinery established for assuring that legislation and practice were in conformity with ILO Conventions. Her Government would commit itself to this tripartite process to ensure that the legislation was in line with the obligations of the Convention and would make any necessary changes before ratification. If ratification of Convention No. 87 were envisaged, ILO technical assistance would be requested. The General Survey would also be very helpful in this process.

171. The Government member of the Czech Republic informed the Committee that a similar tripartite process had begun and was a body responsible for, among other things, examining the possibility of ratifying new Conventions. The Government member of Uganda also recalled the very recent ratification by his country of Convention No. 144 which moved in the direction of greater consultation with the social partners.

Final remarks on the survey

172. The Employers' members remarked that, in this brief recapitulation of their principal observations, the Experts seemed to desire a return to traditional values. As regards the concern of the Experts with respect to the phenomena of privatization and to some recent tendencies in the market economy, the Employers' members expressed their belief that workers would certainly find advantages therein and that these measures were indispensable to the survival of many enterprises. Among these measures were, first, the strengthening of competitiveness by the creation of smaller units of production which could more easily and more rapidly adapt. The Employers' members supported this type of positive and necessary evolution. They indicated their belief that the values and fundamental objectives of Conventions Nos. 87 and 98 would still play a role, even in a changing world. One could not, on the one hand, watch the rapidly changing world and believe that the ILO would not be affected: it had to be possible, as was rightly said by the Director-General in his Report, to defend values and promote change. The great principles and laws took their force from laying out essential values and leaving the details aside. From this distance, one could affirm that the ILO, in the years 1948-49, had wisely decided to limit itself to setting forth fundamental principles of freedom of association and collective bargaining in Conventions Nos. 87 and 98. The details added by the Committee of Experts should be gradually withdrawn.

173. The Workers' members stated that the Experts had very rightly placed their final considerations within the context of the extensive structural changes at the socio-economic level and in society in general. Even if the impact of this evolution varied greatly from one country to another, it was remarkable that similar problems were resolved in a radically different manner when the financial constraints were the same and that ILO standards and objectives were respected in some countries and not in others, or only partially. This gap was largely due to the priorities and differing political choices.

174. The Workers' members recalled that respect for the principles of freedom of association and free collective bargaining should not be subordinated to the political and economic situation or to the level of development. Standards did not imply direct labour costs but offered governments, workers and employers and their respective organizations, the possibility of progressively developing their system while taking into account the social and economic context. It was from this perspective that one should look at the call by the Experts for a world social platform of which freedom of association and free collective bargaining were an essential component (paragraph 330). These standards set forth the essential rules for the functioning and development of the actors in the employment market and for a continual development of social and economic policy. This was why the constitutional principles of freedom of association and free collective bargaining were considered as fundamental labour standards. This classification was approved by the Governing Body in 1987. Conventions Nos. 87 and 98 were classified by the Governing Body in 1993 among the ten priority Conventions for which reports were due every two years.

175. The Workers' members recalled that since 1951, the ILO has established a specific tripartite committee, the Committee on Freedom of Association, which examines in a flexible manner complaints concerning the violation of the constitutional principles of freedom of association and free collective bargaining. It was important to recall that this Committee submitted its unanimous conclusions to the Governing Body. That was proof in itself that tripartism played an effective role in the search for solutions and the resolution of disputes.

176. The Workers' members pointed out that true tripartism, which presumes a total respect for freedom of association and free collective bargaining, was undergoing heavy attack in a number of countries because of structural problems, cyclical problems, or both. Some even attribute high unemployment to social dialogue. Tripartism and free collective bargaining however were in the long run an economically efficient method. Dialogue between the workers' and employers' organizations on the one hand and with the public authorities in a tripartite fashion on the other, guaranteed the democratic nature of society as well as the necessary social infrastructure to carry out a viable social and economic policy. This was also the position of the Experts, particularly in paragraphs 334 and 336.

177. The Workers' members stressed that the Experts had also drawn attention to the very real danger of the weakening, desired or not, of freedom of association and free collective bargaining (paragraphs 335-337) account being given to the intensification of competition and the diverse measures taken by enterprises, countries and regions in order to strengthen their position in the global economy, . This danger can only be avoided if specific measures are taken to preserve fundamental rights. The Workers' members made a few suggestions in this regard, such as: (i) when enterprises are split or fragmented, the existing individual and collective rights, such as the action of trade union representation and the validity of collective agreements must be maintained (the ILO does not yet have a specific instrument in this regard); (ii) in order to safeguard collective rights in small and medium enterprises, a system of collective bargaining could be set up beyond the framework of the enterprise to the level of joint sectoral negotiation committees. Recognition of trade unions could also be based on systems surpassing the framework of the enterprise by the recognition of federations and confederations by sector. Within the system of recognition of trade unions by enterprise, the public authorities should use all means to encourage the employers, including the small and medium enterprises, to recognize trade unions and to negotiate effectively. In paragraph 257, the Experts rightly emphasized the crucial importance of the conclusion of a first collective agreement; (iii) subcontracting networks should respect fundamental labour standards by the insertion of specific clauses in trade agreements and through collaboration; (iv) in the case of employment through temporary work agencies or private employment services, a theme being discussed this year in a tripartite Conference committee, the use of temporary workers to replace striking workers must be explicitly prohibited (see also paragraph 175 of the survey). Furthermore, the trade union rights of temporary workers must also be safeguarded.

178. The Workers' members also called upon governments and employers to respect or ensure respect for the principles of freedom of association and free collective bargaining and associated themselves with the Experts' call in favour of the ratification of Conventions Nos. 87 and 98, a demonstration of support for the principles embodied in the Constitution. This call was important in the light of the 75th anniversary of the ILO, the Copenhagen Social Summit in 1995 and increasing globalization.

179. In the final part of their intervention, the Employers' members remarked that during the time of East-West conflict, two members of the Committee of Experts systematically expressed their dissension on certain points, in particular those linked to the freedom of association Conventions, while the majority of the Committee contradicted this view and emphasized their unanimity on all points. Fortunately, these times were now gone by and there was no longer a situation which might be described as an emergency situation, making it necessary to demonstrate unity where there really were differences on the substance. Everybody would fully understand that this situation affected all members of the Committee in equal measure. It was a question of survival for this Organization and particularly of the supervisory system, that everybody should stand shoulder to shoulder on these fundamental questions. Anyone who failed to take account of that fact was either enviably young or had a very short memory, and anybody who wanted to exploit this fact to demonstrate that there had been a change of opinion on the Employers' side, would have to justify this before the court of his own conscience. The Employers' members' opinion had certainly not changed since the last General Survey on the subject was published in 1983. Furthermore, the problems discussed in those days touched upon substantial questions such as forced labour, trade union monopoly, dependancy of trade unions from the Communist Party and had nothing to do with the somewhat artificial questions of the limits of the right to strike. Could one really expect that the situation of the 20 Experts in the Committee of Experts would be any different from other legal bodies like the supreme courts of States, where it was normal to have legal dissenting votes, which were normally published? There were many differing opinions on the right to strike. Could one really expect the 20 Experts to be totally of one mind on every detail? While the official rules of the Committee left room for dissenting opinion by members, which may be published at their request, the Employers' members would like to know what was the real general opinion in the Committee of Experts. As the next General Survey on freedom of association was still some time ahead, the Employers would welcome if in the meantime the Committee's reports in coming years would reflect new considerations on the number of controversial areas which might be taken up in somewhat different terms. They believed that this approach would do much to enhance the credibility and the effectiveness of the supervisory system.

Conclusions

180. The Committee concluded its work on the General Survey by noting that the debate, particularly rich and fruitful, gave everyone the possibility to express themselves on complex problems of freedom of association and collective bargaining, taking into account the global context. A wide consensus arose from the discussions on the General Survey. The Employers' members nevertheless expressed their disagreement on the question of whether the freedom of association Conventions included extensive and detailed regulation of the ability of governments to limit the right to strike. The Committee expressed the hope that the Committee of Experts' General Survey and the discussion in the Conference Committee would contribute to the recognition and promotion of the principles of freedom of association embodied in the ILO Constitution. It made a solemn call for the ratification of fundamental Conventions, the principles of which were at the core of the ILO mandate, and the respect of which was an indispensable prerequisite for the defence of workers' and employers' interests throughout the word, particularly in an international context characterized by very rapid changes and accelerated globalization of the economy.

D. The future of the ILO's standard setting

181. As stated above, the Committee decided to devote a special day during its general discussion to a debate on the theme of the future of ILO standards. The Committee of Experts in particular contributed its thoughts, and the Director-General of the ILO examined prospects for the Organization's standard-setting activities in a chapter of his Report to the Conference, while there were several statements in the Conference Plenary and the Resolutions Committee on the subject. The Conference's Committee on the Application of Standards is nevertheless specially well equipped to conduct a structured dialogue on the future of standard setting, since it is by its nature and activities more closely familiar with the potential and the limits of the standard-setting and supervisory system, as the Workers' members noted.

182. This was confirmed by the number of speakers (almost 50) from the three groups in the Committee, the scope and richness of the discussions, and the interesting technical or more fundamental proposals or suggestions made.

183. Following the discussion, the Committee expressed the hope that all views voiced in the general discussion, and in particular the special sitting on the future of standards, would be documented for the Governing Body and its Committee on Legal Issues and International Labour Standards for future reference. It requested the Director-General to do everything necessary to ensure this.

Statement of the Workers' members

184. The Workers' members already dealt directly or indirectly with certain aspects of the future of standards and their supervision during the general discussion on the report of the Committee of Experts and the General Survey (section B, above). They now developed more substantially two themes: the elaboration of standards and supervision of their application.

Elaboration and contents of standards

185. The Workers' members pointed to the international context of structural changes on the socio-economic plane and in society as a whole, the imperative of competitivity, and increasing globalization of the economy. The ILO and its basic principles were increasingly required to play the role of a lifeline in the face of unbridled competition, social exclusion and poverty. This involved not only a moral and legal obligation but also an economic necessity. The fall of the Berlin Wall which took place in 1989 clearly had significant consequences for the democratization process in many countries. But it was not sufficient to instal a formal policy of democracy: this new trend should also translate to the level of the organization of economic and social life.

186. The Workers' members were entirely in agreement with the position of the Committee of Experts, that standards on fundamental human rights must be observed regardless of economic circumstances or fluctuations. They noted with satisfaction that the Director-General shared this point of view in his Report to the Conference.

187. Fundamental standards offer countries, workers and employers and their respective organizations the possibility of progressively developing their social system while taking into account the economic context. All countries, independently of their social or economic situation or their political system, should respect the Conventions and the principles concerning freedom of association, free collective bargaining and the prohibition of forced labour, child labour and discrimination in employment within the broad and contemporary accepted meaning of the term.

188. It was in this sense and from this perspective that the call of the experts in their General Survey for a world social platform and the proposal of the International Confederation of Free Trade Unions (ICFTU), the World Confederation of Labour (WCL) and the European Trade Union Confederation (ECTU) for a social clause must be viewed. Respect for this world social platform and the social clause would permit a better distribution, within and among countries, of the fruits of economic development and growth. They would in the end stimulate international trade so that distribution of purchasing power among the population would be guaranteed. The social clause advocated by the Workers' members had nothing to do with protectionism. The logic of such a clause is contained in the Preamble to the ILO Constitution: "the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations which desire to improve the conditions in their own countries".

189. The Workers' members hoped that the ILO would very actively pursue discussion on the social clause. In doing so, the ILO would favour the adoption of provisions discouraging unfair labour practices and would also open the way for a reduction of protectionist pressures. To appease fears of disguised protectionism, the Workers' members wanted the ILO to give priority in its contacts with the World Trade Organization (WTO) and other organizations to the implementation of a mechanism which would accentuate the need to look for solutions to disputes by mutual agreement. There could be no recourse to trade sanctions except in cases where an agreement or another positive solution was not possible.

190. The Workers' members were of the view that national and multinational enterprises and networks of enterprises must be made responsible. Often enterprises hid behind governments to justify the violation of international standards. The Report of the Director-General contained interesting suggestions in this regard and the Committee of Experts also referred in its General Survey (paragraph 60) to the Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy with respect to free trade zones.

191. The position of the Workers' members could be summarized as follows:

(i) All countries should ratify as a priority the ten Conventions that the Governing Body in November 1993 retained for the sending of reports every two years: Conventions concerning human rights (Nos. 29, 87, 98, 100, 105, 111) and others equally considered priority Conventions No. 122 on employment policy, Nos. 81 and 129 on labour inspection and No. 144 on tripartite consultation. Pending ratification, countries concerned, enterprises (national or multinational), and employers' and workers' organizations should already apply the principles contained in those instruments. Moreover, tripartism, freedom of association and free collective bargaining are constitutional principles which apply to all member States. In the event of technical or administrative difficulties, technical assistance and multidisciplinary teams are available to assist and cooperate with governments as well as with employers' and workers' organizations:

(ii) Ratifications and respect for the principles contained in Conventions and Recommendations may not be limited to the ten Conventions set out above. Others such as those on occupational safety and health, the fixing of minimum wages, minimum age, seafarers, indigenous peoples and tribes and social security establish important social policy principles while leaving a margin for manoeuvre in translating them at the national level. As stated by the Committee of Experts in paragraph 20 of their report, a large number of flexibility clauses are included in existing Conventions. And yet, some such Conventions, like Convention No. 102 concerning minimal social security standards, are not ratified by many member States. The Workers' members are not opposed to the revision of standards in cases where it can be clearly proved that they are not adapted to present circumstances, or where there is a consensus that a specific point causes serious problems of ratification for a large number of countries. Revision activities and updated standards could in particular be based on general surveys. This year's discussion of the General Survey on Freedom of Association and Collective Bargaining confirmed the contemporary values of the principles of Conventions Nos. 87 and 98. The Workers and the vast majority of the Committee also supported the position of the Committee of Experts with regard to the right to strike and agree that revision or supplementary standards are not desirable.

(iii) Revision should not be used to weaken or eliminate protection of workers. In order to commence a revision of a Convention or part of a Convention, there must be an atmosphere of confidence among the groups. Undiscriminating calls for revision are mostly based on a pure and simple rejection of standards as such rather than detailed analysis.

(iv) The Workers' members emphasized categorically that the ILO must continue to elaborate standards. The Committee of Experts was also of opinion in paragraph 18 of its report that the ILO has not exhausted its function of adopting standards. Social and economic developments were dynamic in the globalization of the economy, the fragmentation of enterprises, rapid expansion of commercial and non-commercial services, new technologies, etc. Labour standards must follow these developments. For example, during the discussion of the General Survey, the Workers' members mentioned that the ILO does not yet have a Convention on labour tribunals and the maintenance of individual and collective bargaining rights in the event of the transfer of an enterprise, although these were two important aspects of social legislation in many member States.

Supervision of the application of standards

192. With regard to supervision of the application of standards, the present system was able to provide tangible results, despite the absence of compelling sanctions. This success was in particular due to the fundamental characteristics of the ILO, that is to say the contribution of employers' and workers' organizations, dialogue and persuasion. The strong points of the system must not be abandoned. Improvements should have as a major objective the reinforcement of dialogue and effective cooperation with the supervisory bodies. There had been radical changes in the international context and it was important that the ILO intervene rapidly, effectively and with authority in order to assert international standards and principles. The Workers' members are of the view that, given these developments, the supervisory procedures should be reinforced.

193. The Workers' members made six specific proposals:

(i) there should be an efficient and dynamic mechanism, similar to the Committee on Freedom of Association, to facilitate better application of principles concerning forced labour and child labour and deal with cases of discrimination. It was essential that workers' organizations be able to introduce complaints without the consent of their governments, and that the mechanism be available even if the country concerned has not ratified the relevant Convention;

(ii) the introduction of rapid mechanisms such as voluntary mediation and arbitration. Direct contacts missions already exist and are often suggested by the Conference Committee and the Committee of Experts to remedy problems regarding the failure to apply standards. Those procedures should not be used to escape supervisory bodies such as the Conference Committee. The coherence and integrity of the supervisory system should be guaranteed;

(iii) taking account in the application of the social clause of non-fulfilment of obligations to respond to supervisory bodies, lack of respect for conclusions of the Conference Committee on Standards, and failure to cooperate in anything to do with the application of the ILO's fundamental Conventions and principles. The social clause should not be an alternative to dialogue and persuasion but it should serve to strengthen them;

(iv) compensation and measures to rectify damage incurred by workers and their organizations through failure to apply Conventions or constitutional principles. They also referred to their position during the discussion of the General Survey. They asked the governments and the Employers to consider this proposal seriously;

(v) strengthening employers' and workers' organizations, the basis of the effectiveness of the supervisory procedures. The Office and the member States should actively assist them. Strong and efficient social partners are also essential for the success of the active partnership policy advocated in the report of the Director-General. Workers' organizations are essential for the defence and the development of individual rights in a coherent framework;

(vi) the Workers' members referred to the points of view that they expressed in the first part of the general discussion concerning the relationship between the Conference Committee on Standards and the Committee of Experts, the new system for sending reports and the absolute necessity that there be sufficient financial means for the ILO to fulfil its mandate.

194. In conclusion, the Workers' members asked for a campaign for a World Charter or world social platform which would have until the year 2000 as its primary objective the universal ratification of fundamental Conventions by all member States. This campaign should also strengthen tripartism at all levels, in order to create a true partnership.

Statement of the Employers' members

195. The Employers' members noted that the Committee of Experts and the Conference Committee were both well placed to identify problems of standard setting and implementation. Problems of discrepancies between standards and national provisions and practice arose when the ILO's standards did not take enough account of national situations, and Conference technical committees should be given the necessary feedback in this respect. What was needed was an evaluation of effects and legal consequences, a kind of technological impact study so that before any standard was adopted the right conclusions could be drawn. The ILO's objectives remained as clear as ever, but the means for their attainment were in urgent need of review. In their view for some time there had been clear signals within the ILO that the framework for standards was no longer in good condition, and that there must be some in-depth thinking about what to do in the future, as was clearly reflected in paragraphs 10-23 of the report of the Committee of Experts and in Chapter 3 of the Report of the Director-General.

196. In their statement, the Employers' members considered the role of standards as one of the ILO's means of action, and made various proposals to improve the procedures for elaborating and following up standards and supervising their application.

A. Standards as a means of ILO action

197. The Employer's members recognize the importance of the ILO's standard-setting activity -- that of the adoption of Conventions and Recommendations by the International Labour Conference. The procedures for drawing up these standards -- which enable all member States to participate on a tripartite basis and on an equal footing -- as well as the impartiality of the supervisory mechanisms give this activity its special value. lt remains one of the means of promoting, at the world level, fair social progress based on consensus between the social forces and the free commitment of States at all levels of development. Stressing the fact that it is not necessarily the best means by which to achieve the Organization's objectives does not mean putting the validity of this activity to question. Fortunately, the ILO possesses other means of action. All standards contained in Conventions do not have the same value; they are often old and obsolete and must be constantly updated to take into account changes in the world and difficulties encountered. The ILO's system of standard setting is in fact coming up against increasing criticism, and this not only from the employer benches. Standards are registering fewer and fewer ratifications, and their credibility is losing ground. In order to maintain what is most fundamental, a thorough reform should be envisaged so that ILO standards regain their importance.

198. lt is true that the authors of the ILO Constitution referred, in 1919, almost solely to standards -- in the form of Conventions and Recommendations -- as the means available to the Organization to achieve the objectives set out in its Preamble. Some reference, however, is made in the Constitution to assistance to governments in the framing of laws and regulations and in the improvement of administrative practices (article 10.2). Standards have traditionally been considered as the "heart", or the core of the ILO's activities. Does this privileged role still correspond to the objectives fixed by the ILO today?

199. One of the most eminent ILO officials in the standards field, Nicolas Valticos, wrote that standards and technical cooperation are means which are "aimed to guide and to stimulate governmental action". In the same volume, he considers cooperation as "a means of helping governments reach the level of standards laid down in international labour Conventions". He also mentions standards as serving as a guide to technical cooperation experts.

200. While this notion recognizes that technical cooperation has a significant place, the role accorded to it is only secondary -- that of a means of promoting standards. Generally speaking, isn't this approach too authoritative, too paternalist? Doesn't it boil down to telling States what they should be doing; rather than helping them achieve the social goals they have fixed for themselves?

201. This being so, is there not a place, in most fields of ILO activity, for a separate technical cooperation function or other non-standard-setting activities? For example, the promotion of productive employment calls for support in training and in the creation of enterprises -- themes which are not really suitable for coverage by binding universal standards. The same goes for human resources management. Both these areas of ILO activity concur with a very considerable demand on the part of constituents and contribute immensely to the possibilities for social progress.

202. The fact that the fundamental human rights instruments -- such as those on freedom of association or forced labour, which have received a large number of ratifications -- are upheld as sacred texts can well be understood. But should other Conventions which have received only a few ratifications, or which were adopted under conditions where no consensus whatsoever prevailed, be put into the same basket? The fact that member States have a constitutional right to choose not to ratify a Convention should also be recognized. This right is one of the essential features of the terms set out by the ILO Constitution, and must be borne in mind in any initiative aimed at improving the world's social condition, since its effectiveness ultimately depends on the positive attitude of member States. In this connection, providing technical cooperation cannot be used as a means of putting pressure on a government to ratify or implement a standard which, in the country in question, is considered unfitting.

203. Standards are an important means, but only one means among others of achieving the ILO's objectives. Their right role should therefore be examined.

204. In most countries, the trend is towards less regulation in order to leave more room for individual initiative and for negotiation. It is increasingly acknowledged that national standards must concentrate on what is essential and not get bogged down in unnecessary detail. This is just as true for international regulations. The more the latter try to cover everything in minute detail, the less applicable and credible they become. Refocusing international standards on the fundamental points is therefore the best way of strengthening their effectiveness.

205. What fields are, or still could be, covered by ILO standards?

206. Items recently proposed to the Governing Body lead one to think that the reservoir of questions of universal interest is running dry. This is particularly the case for the principal texts on human rights, the essential aspects of labour law, safety and health, and social security. What remains are subjects of a more technical nature, for which the cumbersome Conference procedure would seem out of all proportion. One sometimes gets the impression that it is not a question of deciding which items are appropriate topics for an instrument, but of how to find subjects in order to make up an agenda which must contain a predetermined number of standard-setting items.

207. In certain areas, it is impossible to impose precise obligations on States; all that can be done is give guidance -- for example, as regards employment or training. These are then referred to as "promotional" Conventions. This formula, which makes for greater flexibility, is clearly useful; but are they really Conventions, especially when it comes to supervising their application? Should there not be provision for more suitable procedures?

208. Do all subjects lend themselves to the elaboration of Conventions? A universal standard is only conceivable if there is a minimum of uniformity in member States. There has never been thought, for example, of establishing a minimum international wage, except for maritime transport (and, even then, its significance may be questioned). The same would no doubt be true for the duration of working time; attempts in this direction have not been at all convincing.

209. ILO Conventions are only binding if ratified -- which means that States are only bound by their contents if they accept, in total liberty, the legal obligations they contain. It is sometimes claimed that a ratified Convention has a certain value, as a goal to be reached -- a sort of "target". lt is dangerous to believe this, since it would be diminishing the importance and credibility of ILO instruments. However, to be ratified, a Convention must be ratifiable -- that is, drafted in such a way that it can be implemented in countries differing not only in their degree of development but also in their legal concepts and their cultures.

210. Apart from a few fundamental instruments, ILO Conventions on the whole receive little ratification. This is not a new problem, but the situation is increasingly deteriorating. While this is partly explained by the complications arising from the European unification, it is mainly due to the inapplicability of texts adopted. The reason may be the lack of countries' development, but also the exaggeratedly complex and detailed nature of their provisions, which makes ratification difficult, even for the so-called "advanced" nations. These difficulties should be taken into consideration both when items are being chosen and defined, and during their discussion at the Conference. It is striking that, among the lessratified Conventions are those concerning occupational safety and health -- an area which all agree is the ILO's responsibility and in which instruments are generally adopted by a very large majority.

211. For Conventions already adopted, the only solution is revision in the fight of difficulties actually encountered, which would lead to greater flexibility (and not the contrary). The Governing Body should set up a coherent plan for the revision of instruments which have received little ratification.

212. As regards the future, the Governing Body and the ILO's general management should examine all means of action available in order to ensure that the objectives set by the Organization are carried out, even if they are not part of its traditional array of activities. The General Conference may have a certain effect on public opinion. Other avenues than constitutional instruments (which are too rigid) or general discussions (which receive little attention) could be pursued. In certain circumstances more discrete means such as personal contacts and talks -- may be more appropriate.

213. Finally, those with responsibility in the ILO -- delegates and officials -- must not lose sight of the fact that, today, regulation is no longer the sacrosanct way of ensuring social protection. Excessive regulation is increasingly seen as being a brake on economic development and, as a consequence, on social progress. It would be better to ensure that those concerned have maximum room for initiative and responsibility. Regulation, therefore, is only justified when it is essential. This also goes for international regulation.

214. With this in mind, a certain number of objective and recognized criteria must be defined to guide the Governing Body in its choice. The main questions to be asked would be:

Is drawing up a new standard essential in order to achieve a recognized ILO objective -- such as the struggle to create productive employment, the strengthening of the parties to tripartism, the reduction of major industrial hazards?

Does the topic in question affect a large number of workers in most parts of the world?

Is there sufficient consensus among the parties -- concerned to achieve significant results?

215. The "Ventejol" working parties that were set up by the Governing Body in 1979 and 1987 were unable to reach a consensus on the criteria to govern the standards policy no doubt because the basic problem of the relevancy of standards was not clearly put.

216. When the ILO was founded, certain protagonists saw its role not as that of simply progressively harmonizing social protection, but as a means of getting rid of the existence of inferior working conditions, as being legitimately instrumental to the competitivity between enterprises and between nations. This objective was not maintained, since the Conventions adopted by the Conference have no immediate compelling effect, they are only legally binding for those States which have ratified them. This is an important ILO constitutional principle which it would be practically impossible to change, and which prevents the ILO from being party, for example, to the inclusion of a "social clause" in trade agreements.

217. In conclusion:

standards are a means of achieving the ILO's objectives;

since the standards procedure is burdensome, and in view of the difficulties encountered with ratification and application, the ILO should only embark upon the elaboration of new standards when absolutely necessary, and this in accordance with criteria which correspond to the objectives of the Organization;

the present rhythm of adopting new standards should be slowed down, and greater priority given to the systematic revision of texts already adopted, in order to facilitate their wider ratification and application by most member States;

new standards should be drafted in such a way that they can be ratified and applied by all member States;

member States should not be subject to obligations or sanctions which go beyond the Constitution and those instruments they have freely ratified.

B. Improving the standards-related procedures

218. The problems associated with standard setting are such that a global approach is called for along the lines described above. However, it is also just as necessary to review the procedures governing their elaboration and follow-up. Some of them date back to the first years of the Organization, when there were few member States and they were all similar. Rather than take a fragmented look at the problem, a comprehensive study should be carried out, allowing for a global reform. It is in this spirit that the employers put forward the following proposals; eight proposals for improving the standards procedure:

(1) Improving the procedure for fixing the Conference agenda: at present, the Governing Body makes its choice on the basis of a very limited "menu". Possibilities for expanding this choice are limited, and the Governing Body proceeds more by elimination. The Governing Body is not able to have a long-term view, which is essential if a true standards policy is to be adopted. For this, it is proposed to broaden the possibilities of choice in order to have a discussion on the general orientation of the standards policy, the criteria to be followed, a systematic plan for updating old instruments, possible new subjects for which standards would be necessary, and items for general discussion. The Governing Body's first discussion on the Conference agenda could be used for this purpose.

(2) Improving the preparation of questionnaires: since government officials like to answer "yes" to the questions asked, the way these are drafted strongly influences the final text. The need for instruments drawn up to be limited to the essential and to include sufficient flexibility clauses must be taken into consideration. For this, the authors should carry out unofficial consultations in order to identify where views diverge. Items to be included in the questionnaire could also be debated in the Governing Body. Governments should also indicate, in their replies, how they intend implementing the proposals they approve.

(3) Seeking consensus within the Committees: the Chairmen and the secretariats of Committees should seek to solve the major difficulties by consensus rather then resorting to voting, the results of which are often fortuitous. This would go a long way to avoiding difficulties in ratification.

(4) Increasing the importance of Recommendations as separate instruments: Conventions and Recommendations do not necessarily have to go together to have any value: each of these instruments has its own merits, and their application, either jointly or separately, must be evaluated in each case.

(5) Controlling the role of regional groups: the influence of groups of integrating States is negative when they try to impose the contents of their own instruments on ILO Conventions and Recommendations. This is particularly a problem today with regard to the European Union, but may concern other regions in the future. lt may put the universality of ILO standards at danger, since texts over which a certain region of the world have had too great an influence risk being inapplicable in other regions and, as a consequence, not ratifiable.

(6) Toughening the conditions governing the coming into force of Conventions: under present practice, a Convention comes into force when it has received two ratifications. As a consequence, certain Conventions are in force but have been ratified by only a very few member States and this creates an unnecessary burden for the supervisory mechanism. The number should be increased -- a modification which would not require any amendment of the Constitution or Standing Orders as regards future Conventions, since the number is fixed in the final clauses of each instrument. The problem of Conventions which have already been adopted is more difficult to solve, but these difficulties are not impossible to overcome.

(7) Adopting a coherent plan for the revision of standards: the replies which, under article 19 of the Constitution, governments submit to questionnaires on non-ratified Conventions, together with the Experts' report thereupon, should be systematically used in preparing a plan for the revision of standards, which should take difficulties encountered, as well as the ILO's objectives, into consideration.

(8) Revising the denunciation periods: denunciation of a Convention is a difficult process, since it is only possible during a very limited period of time and at intervals which are too widely spaced. This discourages ratification by making Conventions almost irreversible. A reform should first of all be applied to new Conventions, as the legal problems involved would be less complex. Periods for denunciation could be fixed according to the importance of Conventions and their character.

C. Strengthening the supervisory procedures

219. A strict control over the application of standards should be maintained, since it guarantees their credibility and assures a responsible attitude on the part of authorities which adopt or ratify ILO instruments. Certain improvements should nevertheless be studied in order to strengthen the efficiency of supervisory procedures on ILO member States.

220. A first path to be followed in such reform is to improve the working methods of the supervisory bodies so that they are more selective and more effective. While the reforms proposed to the Governing Body follow this line (calendar, intervals of examination) and should be supported, other possibilities for reform still exist.

221. Secondly, the supervisory procedure should be better integrated into the ILO's long-term planning. While its prime aim is to ensure that member States respect their obligations, other means should be sought, without prejudice to the former: contributing to the implementation of the Organization's objectives. For example, as regards the combat against child labour, a critical examination of the relative instruments is necessary to determine the best means of action: a new instrument, revision, technical cooperation, meetings.

222. Finally, the mandate of the various organs which play a role in the procedure should be clarified. The problem lies mainly with the interpretation of texts. Recourse to the International Court of Justice -- the only measure provided for by the Constitution -- is, in practice, out of the question. The Committee of Experts, whatever its prestige, is not a jurisdictional body. The setting up of a special tribunal, mentioned as a possibility in the Constitution, is one of the paths that should be explored since its very existence would make the Experts' functions much clearer. The existence of a "jurisprudence" (the word is certainly not correct) which sometimes broadens the obvious meaning of texts, adds useless detail or introduces differentiations which unnecessarily complicate their firm application, adds nothing to the credibility of the procedure and slows down ratification. In any case, member States wishing to ratify should be informed of the "interpretation" given to texts by the supervisory bodies.

223. The role of the Committee on Freedom of Association -- which is not a supervisory body in the strict sense of the term -- as well as of its decisions, must be clarified in this connection, notably in relation to that of the Committee of Experts.

224. There is no question of weakening the supervisory mechanisms, or of jeopardizing their independence, but of strengthening them so that greater use may be made of them to achieve the objectives of the Organization.

Other statements in the discussion

225. After the opening statements by the speakers for the two groups, supported and supplemented by several other members of the groups, especially the Workers, some 20 Government members also spoke during the special day. All these statements are included in the formal minutes of that sitting, which thus form a record. The present report is as complete as possible but aims to avoid repeating the ideas expressed and the suggestions made by the speakers for the two groups during the general discussion (see section B, above).

226. Once again, the discussions showed the devotion to the principle of universality of standards and the necessary flexibility which goes with it when they are elaborated. The Government member of France recalled that ILO membership had grown from 42 at its creation to 171 today, which made it essential to consider the meaning of universality of standards. Should standards be demanding and precise in order to be a sort of ideal reference or should they remain general in order to be ratified by a greater number? Of course, both approaches were needed, and flexibility clauses in Conventions themselves should not be too necessary. In November 1989, the Governing Body adopted a document on this subject which had been unjustly neglected, although it could help to increase numbers of ratifications. Other Government members, for example, India, United Kingdom and United States also favoured flexibility and terms which enable it, even if as the Government member of Germany observed, the notion of flexibility should not be held out as an answer to all problems.

227. Flexibility of standards should, in the view of the Government member of Saudi Arabia, enable them to be adapted to conditions in various countries and their variable ability to comply with standards, although that did not mean less attachment to the principle of universality and indivisibility of standards. ILO standards place numerous obligations on member States, most of which are developing countries and have difficulty in meeting requirements designed to address the needs of developed and industrialized countries. Many Conventions should be re-examined and revised and other standards adopted, and the need to revise standards should be taken into account in the elaboration and adoption procedure in the ILO, adapting them to developments in the world and realistic possibilities for countries through preliminary tripartite discussions in order to make standards practicable. Flexibility resulting from a ratification procedure which is either partial or complete would enable countries whose legislation is not at first fully compatible with the Convention to ratify it and apply it progressively.

228. The Workers' member of Poland noted that article 19, paragraph 3, of the Constitution, envisages taking account of the level of industrial development of countries and other particular circumstances, although flexibility should not be allowed as regards standards on basic human rights. The Committee of Experts had quite rightly said that human rights must be observed whatever the level of economic development. The ILO had at its disposal various flexibility devices which could be combined in a Convention such as the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), which contains both promotional and prescriptive provisions.

229. The principle of universality implies also effective participation by a greater number in the process of elaboration of standards in order to reach as wide a consensus as possible, as the Government members of Cuba and Japan particularly stressed.

230. In its report, the Committee of Experts examined the question whether the ILO has exhausted its legislative function and should suspend it or even abandon it (paragraph 18 of the report). The Government member of France and most Government members took a midway position on the question of the rate of adoption of standards, in order to avoid being either too precipitate or to bring standard setting to a halt. The Government member of United Kingdom thought the rate should be slowed down; the Government member of Belgium thought that in the long term it would be destabilizing to consider a pause in this procedure necessary and it would perhaps be better to ensure that subjects proposed for standards are more widely supported by each of the groups and each region of the world, following early consultations, regional conferences, and conclusions of international symposiums, and by close analysis of overlapping and grey areas in the protection of workers' basic rights. The fundamental importance of the choice of subjects for the Conference agenda was also raised by several other Government members, such as those of Australia, France, Germany, India and Mexico.

231. The Workers' member of the Netherlands was concerned by the attitude of Employers' and Government members who maintain that there are enough standards and that in the context of economic globalization no new standards were necessary. The representative of the World Federation of Trade Unions (WFTU) considered the worsening of economic and social inequality evidenced by the report of the Committee of Experts shows precisely that standard setting activity should not be suspended, in order not to deprive the ILO of one of the most effective means of maintaining momentum for progress and social dialogue, and the fact that no instrument had been included on the agenda of the Conference for 1996 could be a dangerous precedent.

232. Most Government members who spoke on the subject agreed on the need to give priority to the revision of Conventions which have not been widely ratified or are old-fashioned or outmoded, especially those of France, Japan, Mexico, Norway (speaking on behalf of the Nordic countries) and United Kingdom. They suggested ways of doing this: for example, the Government member of France thought it could be useful to update the work of the Governing body working party known as the "Ventejol report". The Government member of Cuba also wished to see such work renewed, while others such as the Government member of United Kingdom wished for better use to be made of the Committee of Experts' General Surveys under article 19 of the Constitution.

233. The representative of the World Federation of Trade Unions (WFTU) could not understand why standards which are relevant and newly adopted should be revised on the ground that they have not yet been sufficiently been ratified, since even an unratified Convention was of value, if relevant, as a source of inspiration or guidance for the future of countries. In his view the aim of the ILO should still be the positive development of national legislation, and .international labour standards are generally flexible or correspond to absolute minima if what was intended was really to promote social justice and basic human rights.

234. In paragraph 22 of its report, the Committee of Experts considered the criticisms from some quarters alleging lack of clarity and consistency in the provisions of some Conventions adopted recently, and suggested that members of technical standard committees of the Conference should see that drafts finally approved were as coherent and lucid as possible. Several Government members (France, Morocco, Norway (speaking for the Nordic countries), United Kingdom and United States) agreed with the Committee of Experts in this respect. The Government member of Germany viewed the increasingly complex and detailed nature of Conventions as raising obstacles to ratification. The Government member of France wondered whether the secretariat were perhaps too ambitious in making proposals, whilst such perfectionism is not acceptable to many Governments as well as by agreements between Employers' and Workers' groups. Systematically placing an official of the Standards Department in the secretariat of the technical committees should enable delegates to be reminded of the need for legal clarity and draw their attention to the possibility of using flexibility clauses. The Workers' member of Japan noted the growing tendency for technical committees of the Conference in recent years to use the formula "appropriate to national conditions" to modify almost all provisions of an instrument for discussion, whereas such provisions weaken or nullify principles adopted in operative clauses and in most cases are a disguised form of opposition to the draft instrument in whole or in part; they make interpretation and application of Conventions difficult.

235. Several members spoke of the economic impact of standards raised by the Committee of Experts in paragraph 21 of its report, and the Government member of Portugal thought it important to take account of such impact when standards are adopted. The Government member of Cuba disagreed as regards Conventions on social security and saw a contradiction between the restatement of social objectives by the ILO and an apparent tendency to belittle the importance of those Conventions, which should be given high priority in the ILO's activities. The Government member of Belgium found the employment situation in many countries at the root of much of the criticism concerning the development of standards, although it was an insufficient cause for doubting and questioning standards and their fundamental role in favour of social justice. For the Government member of India, future ILO standards must balance labour protection and workers' rights against the need to promote full, productive employment and be dynamic and designed to address the real needs of the constituents in the constantly changing world of labour. Similarly, the Employers' member of the United States described the changes in the economic "rules of the game" that differ substantially from when most ILO standards were adopted. Change was constant and faster than ever, because of scientific and technical progress. Economic nationalities are increasingly blurred, differences of roles and functions in the labour market diminish, employment security cannot in his view be guaranteed by international labour standards but depends on continuing training throughout working life. These were the economic realities which for employers determined their approach to the elaboration and rationalization of standards and supervisory procedures. One of the main challenges for the ILO was to ensure a national and international environment in which employment policy balances the need for flexibility needed in the global economy against social guarantees for the acquisition of vocational training and qualifications, including technical cooperation by the ILO, which are essential for employment growth and productivity. The relevance and importance of international labour standards should be redefined in the framework of these economic realities.

236. The Workers' member of Poland warned against the temptation to give in to false arguments as to the economic impact of standards and recalled that in the 1936 Conference, when a draft Convention on annual paid holidays of six days per year was being discussed, the Employers' member of the United Kingdom claimed that such an undertaking by his country would mean committing industrial suicide; however, the economy of that country had very well accommodated legislation on paid holidays, despite not having ratified the Convention.

237. Several members of the Committee referred to the comments of the Committee of Experts and the Director-General on the length of the period of gestation of the formal standard setting process and suggestions as to greater flexibility -- a sort of "soft law", to use the Director-General's term. This approach was welcomed by, for example, the Government members of Australia, France, Mexico and Nigeria. The Government member of France wished the standard-setting system to be supplemented by instruments which would more rapidly meet current requirements, and it should be possible to conceive of guidance or declarations resulting from tripartite discussion by the Conference or the Governing Body. Of course, such supplementary action enabling the Organization to speak quickly on new issues could not replace standard-setting activity. Similarly the Government member of Mexico warned against confusion between legal instruments creating obligations and others such as codes of practice.

238. The system for supervising standards, their procedures and their role and prospects were all discussed.

239. The Workers' member of the United States made his statement on the subject of the supervision of the application of standards and how it might be improved, which is undoubtedly an important question for the standard-setting activity of the ILO. He first stressed the need and the importance of greater participation in the preparation of reports, a crucial element in supervision and in more intense cooperation with all the social partners. The Committee of Experts insisted on the need for the Office to offer more assistance to workers' and employers' organizations to enable them to understand the implications of standards, particularly as regards legislation and practice at the national level, and this was all the more significant given the changes made by the Governing Body in the procedures for sending reports. Direct contacts was a very useful and advantageous procedure for improving observance of standards, including by developing countries, and its modest cost recommended it compared with other procedures. Direct contacts could be especially useful in helping developing countries improve observance of Conventions. Moreover, special paragraphs in the report might, as the Workers' group considered, be more widely used than in recent years, when they had been progressively eroded: special paragraphs should not be confined to significant and flagrant problems or to violations of human rights, but should bring out other cases of incompatibility and omissions as regards the requirements of Conventions. The most serious cases should be highlighted by a special paragraph in order to promote the application and observance of standards, and on this there was no difference between employers and workers.

240. Many Government members supported the system and agreed with the Committee of Experts that it is a model and point of reference at the international level. The Government member of Mexico particularly stressed that it would be dangerous to question the validity and the role of the supervisory bodies. The Government member of France noted that the functioning of the system had improved since each body understood better the nature and limits of its role. The Government member of Spain did not disagree with the links between the supervisory bodies, as underlined by the Government member of Mexico in particular, but thought that the procedures making up the supervisory machinery as a whole should remain independent from each other, and handling of one subject by different procedures at different times should be avoided.

241. The Government member of Saudi Arabia spoke in favour of more equitable geographical distribution of the membership of supervisory bodies: the Committee of Experts' members should have special competence for economic and social questions; the present Committee's work was dominated by the concerns of developed countries, but most countries called to explain themselves were developing ones. The Government member of Norway observed that the work of the present Committee had gradually lost its purpose: the aim should not only be to establish whether the legislation of a member State is or is not in conformity with a Convention, but rather to engage in discussion of the principles of serious global problems, and this could be a source of inspiration for revision or better interpretation of Conventions, as well as for legal and political measures.

242. Several Government members, such as those of Australia, Belgium, Cuba and Mexico, considered that the new procedures for requesting reports decided on by the Governing Body in November 1993 should be favourably received, as they would lighten the task of national administrations. The Government member of Spain nevertheless had doubts on this, since in practice the periodicity of requests for reports was not respected, and for this reason he was against provisions enabling the Committee of Experts to request supplementary detailed reports. The Government member of Germany agreed, since the experts could request partial reports on questions of concern rather than a complete report every year or two.

243. Reducing the frequency of article 22 and article 35 reports under the Constitution could in the view of the Government members of the Nordic countries enable the Committee of Experts to devote greater resources to preparing general surveys on unratified Conventions and Recommendations. Several other Government members (for example, Australia, Belgium, Germany and Japan) stressed the usefulness of thematic surveys of this kind, which were a real work of reference. The Government member of Germany invited governments to give greater attention to sending reports under article 19 of the Constitution, and the Government member of Belgium asked the Committee to examine means of mobilizing international public opinion as regards its work.

244. Several Government members referred to the suggestions in paragraph 41 of the report of the Committee of Experts as to a procedure similar to that of the Committee on Freedom of Association in order to deal with problems of discrimination, forced labour and child labour. The Government member of Australia favoured strengthening the protection of workers' rights in these areas, and the Government members of Austria and Belgium were prepared to examine how to institute such procedures. The Government member of India thought this required serious study, as it would be costly and he was not certain whether such procedures could deal with such problems, which are often linked to poverty more than legislation. The Government members of Germany and the United Kingdom thought it would be irresponsible to create procedures on the basis of that for freedom of association in order to apply other rights. Referring to paragraph 34 of the Committee of Experts' report, indicating that the special procedure for equality of treatment instituted in 1973 had never been used, the Government member of the United Kingdom thought the reasons should be studied. The Workers' member of Japan considered it a potentially very important procedure, given the delicacy of these questions both in the ILO and in the United Nations, and proposed that measures should be taken. The Employers' member of Turkey thought there should be a special discrimination procedure, including in respect of migrant workers, similar to that for freedom of association.

245. The Workers' members of Italy and Poland and the representative of the World Federation of Trade Unions (WFTU) supported the proposals for new procedures to deal with cases of discrimination, forced labour and child labour. As the Workers' member of Poland had said, these procedures should be available against any State whether or not it had ratified a given Convention, since these were matters of fundamental human rights, and the supervisory bodies were bound to derive their legal authority from the ILO Constitution.

246. The Government member of India could not contemplate the ideas discussed as to making access to the supervisory bodies available to individuals, since the credibility of the supervisory system depended on its tripartite nature. The Government member of the United Kingdom considered that such a system would destroy established procedures and be unfortunate at a time when efforts were being made to reduce the workload of the Office. The Workers' members of Japan and Norway also did not favour opening supervisory procedures to individuals, which would damage the basic principle of tripartism and the role of unions in the operation of the system.

247. The Government member of the United Kingdom regarded the idea of voluntary mediation and arbitration mechanisms as attractive and worth examining further since, as the Director-General had indicated, it could be operated at low cost while relieving the rest of the supervisory system and reducing the numbers of complaints, commissions of inquiry and direct contacts missions. Other Government members (Austria, Belgium, Norway) also supported this idea and were prepared to study it.

248. As regards the suggestion by the Committee of Experts as to compensation to be paid to persons harmed by non-application of a Convention, the Government member of the United Kingdom considered economic and political sanctions would not only be inapplicable but would be even counter-productive by discouraging further ratifications and leading member States to question their membership of the Organization: his Government was convinced that a voluntarist approach to ratification like that prevailing in the ILO was the best way to promote standards. The Government member of India was also for reasons of principle opposed to any notion of sanctions or forcing. The Workers' member of Norway stated that such a matter should only be raised at the international level after the exhaustion of national procedures and in his view the question should be examined in the next report of the Committee of Experts.

249. The Government member of Portugal supported the suggestions of the Committee of Experts as to more active participation of national administrations and employers' and workers' organizations in the supervisory system, as did the Workers' members of Poland and Sweden, the latter of which drew special attention to the crucial role of Convention No. 144 and its ratification: recognizing the usefulness of the procedure under article 19 of the Constitution, he stressed the need for employers' and workers' organizations to take part in a regular examination of unratified Conventions at the national level, and this was required in the consultations laid down in Convention No. 144.

250. The Government members of Australia, Guinea, India and Portugal agreed with the Committee of Experts as to the promotion of standards and technical cooperation. The Government member of Guinea thought such methodology could contribute to better preparation for inevitable changes in the present environment, both in respect of attitudes and structures and especially in the area of standards relating to basic human rights. The Government member of India saw the active partnership as a new chance for technical cooperation and strengthening its synergy with standards, and this should be fully exploited. The Workers' members of Italy and Pakistan wondered specifically whether technical cooperation could be more widely used to encourage ratification of Conventions.

251. Several members of the Committee (the Government members of Guinea and India, the Workers' member of the Netherlands and the Employers' member of South Africa, who also stressed the importance of standards in the promotion of social equity in achieving balanced economic growth) called for closer collaboration between the ILO and other international organizations. Thus the Government member of India specially mention the Bretton Woods Institutions and thought the ILO should use all its authority to give due attention to the social dimension of structural economic reform: whilst labour market flexibility might be necessary for industrial modernization and restructuring, in a context of increasing economic globalization, it was also important to ensure social protection for vulnerable sections of workers against the adverse consequences of restructuring. It was thus important for the ILO to have closer relations with the International Monetary Fund and the World Bank in order to promote social justice and full employment.

252. The Government member of Belgium felt that the question of the social clause should be raised at this stage of the Conference, although it was isolated from earlier discussions. This was a controversial but a pressing matter for several reasons: synergy between international labour standards and the development of international trade, between the social and the economic, was becoming more accepted, and many people saw in it a means of improving the application of the ILO's most important Conventions, which were widely recognized as a permanent social heritage. The opportunities for cooperation presented by the World Trade Organization should be taken, since a multilateral approach to this question would ensure objectivity and the involvement of the ILO. How the social clause would be implemented remained to be seen, but in any event the prospects were exciting, as any trade agreement between partners at any level has social consequences for the parties. Such agreements should include clauses for mutual assistance and cooperation.

253. The Government members of Australia and Germany, the Workers' members of Egypt and France and the representatives of the World Federation of Trade Unions (WFTU) and the World Confederation of Labour (WCL) agreed with the Government member of Belgium: the ILO was competent to intervene and be an active partner in the debate. The Government member of Cuba was more cautious: before making a decision, the extent and detail of the proposals of the Director-General should be clarified and any new form of protectionism or trade discrimination against the weaker countries should be avoided.

254. The Workers' member of Egypt feared that making a link between international trade and standards with sanctions for countries not observing standards would not immediately affect the working class which the social clause was intended to protect. The Government member of India stated too that any interference in freedom of trade through protectionist measures on the pretext of a social clause would reduce employment opportunities and perpetuate poverty. He firmly opposed attempts to link certain labour standards to international trade and trade could not and should not be decisive on all social subjects; nor should international labour standards be applied by means of trade sanctions. The Government member of the United Kingdom also opposed any proposal as to social regulation which would make links with international commerce.

255. At the conclusion of the special day's discussion on the future of standards, the Employers' members did not wish to repeat earlier points made, given the intensity and the diversity of opinions, but referred to their opening statement which explained their position in detail. One theme which they had not taken up at all was that of the social clause, although this was particularly important in the discussion, as various statements showed. The social clause was a very old subject as the Preamble to the ILO's Constitution shows, and the ILO itself was already a sort of social clause, as this was its task originally. The new element in the present debate was the attempt to create a direct link between these objectives and the regulation of world trade. The remarks in the Director-General's Report regarding the social clause raised questions which were unanswered, especially the solution proposed at the end of the chapter, and ultimately it would be necessary to know the cost-benefit ratio. The main problem was to identify standards on which a social clause could be based, and in the present Committee the tendency had been to think only of Conventions on basic human rights. However, although such Conventions contain some basic provisions, not all their contents were fundamental and the question was thus what would be indispensable in practice, what could be accepted and how far. They wondered whether the founding principle of the ILO, namely the voluntary nature of engagements undertaken, could be maintained or should be overridden or in fact was already overridden. If there were to be practical consequences of the application of social clauses, various procedural questions would arise as to the authorities for taking decisions or imposing sanctions or, conversely, making recommendations, and a sort of judicial supervision would be necessary. If sanctions were taken, their nature and the basis for them could not be determined, so that in the Employers' view there was no reason justifying procedures for the introduction into world trade of general social clauses. Whilst trade liberalization could be limited conceivably to make it more straightforward, there was a danger that all these measures would lead to new forms of protectionism, and any protectionism would in the end damage all economic actors. The Employers' members agreed with the Director-General of the GATT, that if poverty were the cause of a higher level of social protection it would be investment and not sanctions which would present a remedy.

256. The Employers' and Workers' members welcomed the special discussion in which the three groups had made both technical and more fundamental suggestions and remarks concerning standard-setting activity and the supervisory system.

257. The Workers' members noted that the vast majority of Governments and Employers' members recognized and stressed the importance of standards as part of the ILO's mandate, and the universality of standards had been demonstrated many times during the discussion. However, it remained difficult to understand some statements or suggestions which had been made. For example, the discussions, and especially the Employers' members' statement, showed that the role of standards seemed to be doubted. Some speakers seemed to question the place of standards as "an important means but one among others", and to wonder whether the ILO should guard against regulation in present times as a means of ensuring social protection. Regulation was justified only where indispensable, as was the case at the international and the national levels, but standards must remain the heart and backbone of the ILO. The Workers' members feared that the ILO's mandate would no longer be respected if standards did not form one of its main activities, and several speakers demonstrated the crucial importance of social dialogue and tripartite participation. The difference between fundamental and priority standards and other standards was often stressed in the present Committee, while the idea of a social clause in trade and cooperation agreements had caused Employers to raise questions. It was important to note that these questions are essentially ones of form rather than substance. Attention should be drawn to constitutional principles relating to freedom of association and the right to organize applying to all member States, and the vast majority of member States have ratified Conventions Nos. 29 and 111. Further, the Employers' members, the Workers' members and several Government members had stressed the importance of the link between international labour standards and technical cooperation and assistance. The problem of ratification should not be exaggerated since the ratifications of basic Conventions such as Conventions Nos. 29, 100, 105, 111 and the priority Conventions like Nos. 81, 122, 129 and 144 were quite high. A diminishing average number of ratifications was not fatal, as in the general discussion it had been noted that 192 ratifications had been registered in the past year and the present year without taking account of ratifications by new member States. There were various suggestions and considerations as to the elaboration and the content of standards, flexibility clauses and progressivity in implementation, strengthening the supervisory system and the working methods of the present Committee, the participation of employers' and workers' organizations, the promotion of standards and technical cooperation, which confirmed this view. Nevertheless, differences of opinion continued especially as regards the respective roles of the Committee of Experts and the present Committee, and the revision of standards. As these subjects have not been exhausted, the minutes of this sitting and the part of the report of the Committee of Experts under reference should be incorporated in the Governing Body documents when standard-setting activities and the supervisory system were discussed.

E. Compliance with specific obligations

258. 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.

259. 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 120 (compliance with reporting obligations), 125 (supply of first reports), 129 (lack of reply to comments of the supervisory bodies), 154 (special problems relating to submission) and 158 (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.

260. The Committee noted that this new approach had been introduced last year on a trial basis and had produced interesting results. 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 noted that this year, especially due to the improvements in the procedures, the new approach could be considered successful, as it had been possible to hear most Government delegates concerned.

OBLIGATION_A Submission of Conventions and Recommendations to the competent authorities

261. 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.

262. The Committee noted from the report of the Committee of Experts (paragraph 147) that considerable efforts to fulfil the submission obligation had been made in certain States, namely: Botswana, Greece, Grenada, India, Mauritius, Niger, Syrian Arab Republic, Uruguay.

263. 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

264. The Committee noted with regret from paragraph 154 of the Committee of Experts' report that no indication was available that steps had been taken in accordance with article 19 of the Constitution to submit the Conventions and Recommendations adopted between 1985 and 1991 by the 71st to 78th Sessions of the Conference (Endnote 3) to the competent authorities, in the cases of Antigua and Barbuda, Cambodia, Central African Republic, Costa Rica, Djibouti, El Salvador, Jamaica, Kenya, Madagascar, Papua New Guinea, Paraguay, Saint Lucia, Seychelles, Sierra Leone, Solomon Islands, Trinidad and Tobago, United Republic of Tanzania, Zaire.

OBLIGATION_C Supply of reports on ratified Conventions

265. 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. By the date of the meeting of the Committee of Experts, the percentage of reports received was 64.6, which is the lowest recorded since 1946. Since then, further reports have been received, bringing the figure to 77.2 per cent (as compared with 75.8 per cent in June 1993, 76.8 per cent in June 1992 and 83.7 per cent in June 1991). This year, the Committee of Experts noted that almost 67 per cent of the reports on Conventions for which information on practical application was requested contained such information, substantially higher than in 1991 and 1992 (50 per cent) or 1993 (56 per cent). 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

266. The Committee noted with regret that no reports on ratified Conventions had been supplied for two years or more by the following States: Albania, Dominica, Guinea-Bissau, Nepal, Saint Lucia, Sao Tome and Principe, Solomon Islands, Somalia.

267. The Committee also noted with regret that no first reports due since 1992 on the following ratified Conventions had been supplied by France (French Southern and Antarctic Territories) (Conventions Nos. 53, 69, 74, 92, 133 and 134), Liberia (Convention No. 133) and Nigeria (Convention No. 133). It stressed the special importance of first reports, on which the Committee of Experts bases its first evaluation of compliance with ratified Conventions.

268. In this year's report, the Committee of Experts noted that 47 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 354 cases (compared with 318 cases last year and 330 two years ago). The Committee was informed that, since the meeting of the Committee of Experts, 25 of the governments concerned had sent replies, which would be examined by the Committee of Experts next year.

269. 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 1993 from the following countries: Barbados, Burkina Faso, Burundi, Central African Republic, Chad, Equatorial Guinea, Gabon, Ghana, Guinea-Bissau, Haiti, Honduras, Jamaica, Libyan Arab Jamahiriya, Madagascar, Mozambique, Nepal, Papua New Guinea, Saint Lucia, Sao Tome and Principe, Solomon Islands, Somalia, Zaire.

270. The Committee noted the explanations provided by the Governments of the following countries concerning difficulties encountered in discharging their obligations: Barbados, Burundi, Cambodia, Central African Republic, Gabon, Ghana, Haiti, Honduras, Jamaica, Kenya, Libyan Arab Jamahiriya, Madagascar, Mozambique, Namibia, Nigeria, Papua New Guinea, Paraguay, Seychelles, Sierra Leone.

271. The Committee expressed extreme concern at the gravity of the situation. Without real progress, the whole supervisory mechanism risks paralysis. The obligation to transmit reports is the basis of the supervisory system. The Committee requests the Director-General to adopt all possible measures to improve the situation and solve the problems referred to above as quickly as possible. It expressed the hope in particular that the multidisciplinary teams would give top priority in their work in the field to the fulfilment of standards-related obligations.

OBLIGATION_E Application of ratified Conventions

272. 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 135 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 42 such cases, relating to 30 States and one non-metropolitan territory in all regions of the world. Over 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.

273. 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.

274. 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

275. 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

276. The Committee considered it appropriate to draw the attention of the Conference to its discussion of the case mentioned in the following paragraph, a full record of which appears in Part Two of this report.

277. As regards the application by India of Convention No. 29, the Committee took note of the oral information furnished by the Government representative and of the developments that have taken place. It regretted that no report was furnished in time by the Government but noted that the report as well as the replies to the comments of the Committee of Experts were received in the International Labour Office on 2 June 1994. It regretted that this late despatch made it impossible for the Committee of Experts, and consequently for the Conference Committee, to consider more recent information supplied by the Government. In any event, the Committee noted that, notwithstanding the efforts made, much remained to be done to overcome the problems already discussed in the course of many earlier sessions and highlighted by the Committee of Experts concerning notably the identification, liberation and rehabilitation of persons in bonded labour, including children, as well as, in particular, the introduction of an efficient enforcement system. In this regard the Committee remained very deeply concerned by the situation. The Committee urged the Government to send its next report in time so that the Committee of Experts, as well as the Conference Committee itself, could duly examine it. Considering the conclusions it adopted last year and bearing in mind the gravity of the questions under discussion for several years now without any progress being recorded, the Committee reiterated its very deep concern. It urged the Government to spare no effort to institute the urgent and necessary measures for the elimination of debt bondage and to furnish without delay and without fail all the detailed information required by the Committee of Experts.

278. 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

279. The Committee recalls that its working methods provide for the listing of cases of continued failure over several years to eliminate serious deficiencies, previously discussed, in the application of ratified Conventions. This year the Committee made no mention in this respect.

280. The Government of the country to which reference is made in paragraph 277 is invited to supply the relevant report and information to enable the Committee to follow up the above-mentioned matter at the next session of the Conference.

OBLIGATION_I Supply of reports on unratified Conventions and on Recommendations

281. The Committee notes that 54 of the 106 article 19 reports requested on Conventions Nos. 87 and 98 were received at the time of the Committee of Experts' meeting, and a further two since, making 52.8 per cent in all.

282. 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: Libyan Arab Jamahiriya, Namibia, Papua New Guinea, Paraguay, Saint Lucia, Seychelles, Sierra Leone, Solomon Islands, Somalia, Zaire.

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

283. 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

284. The Committee wishes to express its gratitude to the 50 governments which collaborated by providing information on the situation in their countries and participating in the discussions of their individual cases.

285. The Committee regrets that, despite repeated invitations, the Governments of the following States failed to take part in the discussions concerning their countries: Albania, Antigua and Barbuda, Burkina Faso, Djibouti, Liberia, Nepal, Sao Tome and Principe, Seychelles, Sierra Leone, Zaire. It decided to mention the cases of these States in the appropriate paragraphs of its report and to inform them in accordance with the usual practice.

286. The Committee notes with regret that the Governments of the States which were not represented at the Conference, namely Chad, Dominica, Equatorial Guinea, Guinea-Bissau, Saint Lucia, Solomon Islands, Somalia, were unable to participate in the Committee's examination of the cases relating to them. It decided to mention these countries in the appropriate paragraphs of this report and to inform the governments, in accordance with the usual practice.

287. The report of this year's Committee on the Application of Standards is unusually long, but this is neither accidental nor purposeless. There are two noble and just reasons: the celebration of the 75th anniversary of the ILO, and the detailed examination of the very basic question of the state of freedom of association in the world. The very wide interest in the role and future of standards in general and especially the most basic standards has provoked a lively but thoughtful discussion which the Committee hopes will usefully contribute to the fertile discussions to which this year's celebration has given rise.

288. The 75th anniversary of the ILO and the 50th anniversary of the Declaration of Philadelphia are particularly important, given their timing. Change in the world is commonplace and changes are of course accelerating and becoming more difficult to control and organize on the basis of universally accepted aims and values. The last ten years have seen the generalization of the market economy, liberalization of trade and globalization of the economy -- all of this with considerable and recognized success and efficiency on the level of the economy. But there has also been a dramatic increase in unemployment which has become more structural, including in industrialized countries, and inequalities have increased with the spreading of poverty and new forms of poverty and the resurgence of ethnic and nationalistic conflict.

289. Commemoration is the occasion for the return to historic bases and values which have to be defended, whilst avoiding the temptation to rewrite history. At the same time, it is the occasion for reflection on the future and changes which should be made in the standard-setting sphere. This too is what the Committee has tried to do, especially on the basis of the report of the Committee of Experts.

290. Discussions in the Committee make it clear that one of the fundamental questions for several years has been the relevance of ILO standards and the constant adaption of standard-setting to the increased pace of the world economy. Criticisms based on economic arguments (labour costs, rigidities and obstacles to employment and structural adjustment) have not destroyed the consensus on this point. Workers' protection is the main purpose of international labour law. The importance of standard-setting activity in promoting development balanced in justice and freedom and inspiring social policies is still recognized, even if the need for realism and effectiveness is stressed.

291. Paradoxically, one of the features of globalization is that it does not exclude contradictory trends. The Workers' members of the Committee called on the ILO to launch a campaign for a World Charter or social platform with the aim of ratification of the ILO's fundamental Conventions by the year 2000.

292. That the social should overcome the economic was the wish expressed by Albert Thomas on the tenth anniversary of the ILO. This does not deny the inevitable dialectic between social and economic but states the humanist vocation of the ILO. Social justice is the raison-d'être of the ILO and should be its guiding light at the dawn of the third millennium.

293. After concluding its work, the Committee held a special sitting in honour of Mr. Edward J. Hickey, Workers' representative of the United States of America in the Conference Committee on the Application of Standards, who had decided to take the opportunity presented by the 75th anniversary of the ILO and the 50th anniversary of the Declaration of Philadelphia to end his long and eminent career in the Committee. In this special sitting, many speakers expressed their admiration of Mr. Hickey's tireless and passionate devotion over 30 years' service in the Committee to the cause of international labour standards, his exceptional professional and human qualities, and the contribution he has thus made to the defence and promotion of human freedom and dignity. The Committee unanimously decided to record its deep gratitude to him.

Geneva, 21 June 1994 (Signed) J.-J. ELMIGER

Khabo J. DLAMINI

Endnotes

Endnote 2

Endnote 3