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ILO's pioneering Freedom of Association
Committee marks fiftieth year
The core ILO Convention, No. 87 on freedom of association and protection of the right to organize, was adopted in 1948, followed by Convention No. 98 on the right to organize and collective bargaining, in 1949. Since then, thousands of trade unionists and many employers' organizations have benefitted from the protections provided by "87 and 98" - magic numbers for defenders of labour rights. Ian Graham traces the 50-year history of the ILO Freedom of Association Committee, which provides the clout behind the numbers.
GENEVA -There is nothing abstract about freedom of association.
Ask Dita Sari. For daring to organize independent trade unions in Indonesia during the 1990s, she went through repeated detentions, harassment, beatings, and abuse by the military.
In 1996, her call for a general strike brought her an eight-year prison sentence. But she had some powerful advocates abroad, including a unique international committee which celebrates its fiftieth anniversary this year.
The ILO Committee on Freedom of Association (CFA) kept up the pressure for Dita Sari's release. Success came in 1999, when she was freed and was unanimously elected Chairperson of the Indonesian Labour Federation, FNPBI.
In the last decade alone, more than 2,000 trade unionists worldwide were released from prison after this ILO Committee examined their cases.
"Trade unionists still go to jail in my country," Dita Sari told a special anniversary roundtable at the ILO this March. "We need more practical and direct action, the way you gave me three years ago. That's the way we can repeat the Committee's success stories."
Basile Mahan Gahé agrees. He is General Secretary of the "Dignité" trade union confederation, and has been jailed 10 times in Côte d'Ivoire. Here too, the ILO Committee kept working away at his case.
"I really owe my life to the Committee on Freedom of Association," he insists.
"We literally work here with questions of life and death," says ILO Executive Director Kari Tapiola.
Building consensus
It is not easy work. Setting standards is one thing. Achieving them is quite another. Worldwide norms pose a special challenge. They have to be applied through moral suasion, backed by a consensus which gradually builds up a set of precedents.
This technique has become all the more vital today. Many aspects of life have been fully globalized in practice, but doctrines of global sovereignty and global law-giving have not kept pace.
Labour rights are a good case in point. In a one-world market, workers everywhere must have the same right to join together in defence of their interests. Otherwise, all talk of a "level playing field" becomes meaningless.
Not surprisingly, a key role in the development of consensual standard-setting has been played by the ILO, one of the world's most enduring international organizations. And nowhere have these methods been employed to better effect than in the ILO Committee on Freedom of Association.
"We have probably made more frequent use of this Committee than of any other, and we have seen results," says Guy Ryder, General Secretary of the International Confederation of Free Trade Unions (ICFTU).
Basic right
Freedom of association is everybody's right. So says the Universal Declaration of Human Rights, which dates from 1948. That same year saw the adoption of a core ILO Convention No. 87 on freedom of association and protection of the right to organize. This was rapidly followed, in 1949, by Convention No. 98 on the right to organize and collective bargaining. ILO Conventions are ratifiable by States and binding upon them.
To this day, "87 and 98" are the magic numbers most quoted by defenders of international labour rights. They crop up constantly in protest letters to governments and companies over union rights violations. And they tend to produce a response. The clout behind them is due mainly to the case work built up by the Freedom of Association Committee.
Established by the ILO Governing Body in 1951, the Committee often has a fire-fighting role. When trade unionists are jailed for legitimate union activities, and particularly when they are in physical danger, the Committee can move fast.
This is due to its unique scope. Like the ILO's general structures, it is "tripartite". In other words, government, workers' and employers' representatives take part on equal terms. However, the Committee can examine a case against any ILO member country without the prior consent of the State concerned - even if that State has not formally ratified the Conventions on freedom of association. Nor do domestic remedies have to be exhausted before a case can be taken to this international Committee. And, when deciding if a complaint is receivable, the Committee does not feel bound by national definitions or recognition of workers' and employers' organizations. This means that it can hear cases brought by unofficial, clandestine, or exiled unions.
The Committee's conclusions go to the Governing Body, and governments do not relish being criticized in its reports.
"For trade unionists, the great advantage of this Committee is its universality," the ICFTU's Ryder believes. "If something happens to you, a complaint can be examined without having to wait for a long cycle of resolutions and permissions. In many ways, this Committee is a model of what international supervision should be."
Gross violations of labour rights are all too common these days. The ICFTU reported 223 trade unionists murdered or "disappeared" during 2001. In addition, more than 4,000 people were arrested, some 1,000 injured and 10,000 sacked for legitimate trade union activities. In Colombia alone, 201 trade unionists were assassinated or "disappeared" last year.
Specific, often brutal attacks on freedom of association will therefore remain a big concern for the Committee. Recently, for instance, it has been urging the Colombian Government to punish those who murder and abduct trade unionists, the Korean Government to release those detained or on trial for their trade union activities, the Zimbabwean Government to set up an independent enquiry into attacks on trade unions, and the Yugoslav Government to lift restrictions on employers' freedom of association. Employers have the same organizing rights as workers, and the Committee is there to protect them in the same manner as workers.
Wider role
But it also looks at the bigger picture. Over the past 50 years, it has often had to delve into the economic, social and political conditions which affect freedom of association. Poland is a good example of this. In August 1980, when strike leaders of the Solidarity movement drew up their 21 demands in Gdansk, they included broad social and political rights, as well as "bread and butter" bargaining claims. This raised the issue of whether Solidarity could claim a legal status - and if so, which one.
"Every association had to be registered by the authorities," explains Janusz Onyszkiewicz. Now a member of the Polish Parliament, he used to be Solidarity's national spokesman. At that time, the Polish authorities could refuse to register most types of organizations.
"The only exceptions were trade unions," Onyszkiewicz points out. "There was no legal basis [to refuse registration] because Poland had ratified the Convention that made registration of trade unions automatic."
The strikes led to the Gdansk Agreement of August 31, 1980. This included the Polish Government's overt acceptance of the principles set out in Conventions 87 and 98. That October, Poland brought in a new Trade Unions Act, which permitted trade union pluralism. However, Solidarity still could not get its statutes registered. So the ILO Director-General undertook a mission to Poland, and in November 1980, the Polish Labour Minister appeared before the Committee on Freedom of Association to announce Solidarity's registration.
This victory was short-lived. The imposition of martial law in Poland on December 13, 1981 led to the dissolution of trade unions and repression against Solidarity's leaders and members.
However, the ILO continued to meet both with the Polish Government and with trade unionists, including Solidarity leader Lech Walesa. All through the 1980s, the ILO pressed the Polish Government to adopt legislation compatible with Conventions 87 and 98. The Government rejected these calls, but the ILO Director-General returned to Poland in 1987 for further talks with the Government and with trade union leaders, including those of the still-outlawed Solidarity.
A new wave of strikes in 1988 paved the way for democratic elections and the transfer of political power to Solidarity-allied forces. On ILO advice, a national tripartite commission was set up in January 1989, in part to draft new trade union legislation. In Poland, as throughout Central and Eastern Europe during the 1990s, the ILO followed through with a wide programme of seminars, training, and study tours, which put freedom of association on a strong footing there.
Over the decades, the Committee has dealt with a number of similar cases where dictatorial or authoritarian regimes, whatever their underlying ideology, systematically attacked freedom of association. Notable examples include Franco's Spain, Pinochet's Chile, and South Africa under apartheid.
Not that trade union rights are necessarily safe in parliamentary democracies. The geographical distribution of the complaints received by the Committee is certainly not even, but they show that freedom of association can come under threat anywhere.
Precedents
Meanwhile, the Committee goes on building up a body of precedents which make it easier to rule on important questions of trade union rights. When, for example, is it legitimate to outlaw strikes? The Committee has recognized that the right to strike may be restricted or prohibited in two cases: in the public service, but only for the public servants exercising authority in the name of the State, and in essential services.
This raises obvious problems of definition. Governments may be tempted to label almost anything as an "essential service", simply in order to ban industrial action. So part of the Committee's work over the past half-century has been to gradually list what are and are not essential services.
Similarly, the Committee has made it quite clear that many public servants, notably teachers, must not be banned from striking.
These rulings have practical consequences. For instance, fines imposed on Brazilian oil workers for going on strike in 1995, were cancelled after the Committee asked the Brazilian Government to intervene.
Growing success
Over the past half-century, the Committee has dealt with nearly 2,500 complaints from all continents. So what is its success rate? It is difficult to put a precise figure on that. Governments which are swayed by the Committee's recommendations will not necessarily say so.
Nonetheless, some measurements are available, and they point to a steadily growing effectiveness over the years.
The Committee judges its own impact mainly by "cases of progress". Over a period of 25 years, more than 60 countries on five continents have acted on the Committee's recommendations, and have informed it of positive developments on freedom of association. Up to 1999, some 37 per cent of these cases of progress were in Latin America, 23 per cent in Europe, 17 per cent in Africa, 15 per cent in Asia, 5 per cent in North America and 3 per cent in Oceania. The total number of cases of progress has increased rapidly over the past three decades.
To these should be added a growing number of cases where the matters raised in the complaints are settled after satisfactory negotiations between those concerned. These show the Committee's role in promoting dialogue.
Another important but unquantifiable benefit is the Committee's preventive role. The body of principles which it has established is taken into account by well-intentioned governments when they are drafting new labour legislation. In this way, breaches of basic rights are avoided at the outset.
As it moves into its second half-century, the Committee on Freedom of Association will continue to develop new techniques. One possibility introduced in the mid-1970s is the use of on-the-spot missions, both to gather information and to urge compliance with freedom of association. This has been put to good effect recently in union rights cases concerning Guatemala, Côte d'Ivoire and Korea. A further innovation in the Korean case was that the mission included employers', workers' and government representatives. This facilitates dialogue with "opposite numbers" in the country concerned.
But whatever its methods, the Committee's basic aim will remain the same - to defend freedom of association and collective bargaining worldwide.