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improving
the standard-setting activities of the ILO
A position paper of the Workers’ Group of the ILO Governing Body
Introduction
1.
The future
of standard-setting activities has been the subject of detailed examination by
the Ventejol Working Party, which reported to the Governing Body in March 1987.
Subsequently, several decisions were taken concerning improvements in the
conference that provided a framework for the standard-setting activities of the
ILO. The discussions, which followed both in the Governing Body and the
Conference have revealed agreement on the following principles :
(a) ILO standard setting remains important, as a means of promoting balanced
development, in justice and freedom, and as a source of inspiration for social
policies.
(b) International labour standards should continue to be adopted on a
universal basis. However, they should be drawn up in a spirit of realism and
effectiveness, so as to respond to the needs of all member states.
(c) As provided in the Constitution, ILO standards should be framed with due
regard to differences in levels and conditions of development, with a view to
enabling the greater number of States progressively to ensure the intended
protection.
(d) There are limits to flexibility. In particular, it is generally felt that
there should be no flexibility in Conventions dealing with fundamental human
rights and freedoms, and that standards aimed at protecting workers’ life
and health should likewise be universally applicable.
2.
The
Workers’ Group endorsed these principles,
which are the subject of a large consensus. However, realism and
effectiveness may not mean the same things to everybody. Furthermore, during the
past decade, in the light of economic globalization, the question of standards
has been discussed several times. It was the subject of the 1994 and 1997
Reports of the Director-General to the International Labour Conference, and most
recently, it was dealt with in the "Decent work " Report to the
Conference in 1999. These discussions further revealed that International Labour
Standards and the bodies for their supervision are the ILO’s major
achievements and reconfirmed labour standards as the principal means of action
of the Organisation. In his report to the ILC in 1999, the Director-General
emphasized that “ ILO Conventions and Recommendations are a vital source of protection
for working people all over the world”. It is also worth noting that
Governments strongly committed themselves to respect fundamental workers rights
at the World Summit for Social Development, Copenhagen, in 1995, at Singapore in
1996 and Geneva in 1998 in the WTO Ministerial Declarations and in the ILO
Declaration on Fundamental Principles and Rights at Work adopted in June 1998.
The Working Party on Policy Regarding Revision of Standards
-
It
is worth recalling the progress achieved so far by the Working Party
on Policy regarding the Revision of Standards, which was set up in 1995. It
has now concluded the case-by-case examination of the Conventions, except
for three of them, which are the subject of a study, and has undertaken the
examination of the Recommendations, the last batch of which will be examined
in November, 2000. Therefore steps are being taken to modernise and
rejuvenate the standards system of the ILO. Our immediate concern should be
to ensure the implementation of the conclusions and recommendations of the
Working Party. In this connection, five obsolete Conventions, which had
never come into force were withdrawn at the 88th Session of the
International Labour Conference (June , 2000). Furthermore, the Governing
Body has decided to place on the agenda of the 90th session
(2002) of the Conference, the withdrawal of 20 Recommendations.
Unfortunately, the required number of member States have not yet ratified
the amendment to the Constitution which would allow the Conference to
abrogate the Conventions that have been declared obsolete by the Working
Party. Only 50 member States have ratified this constitutional amendment so
far.
The Facts
4.
These facts
should be borne in mind in any debate on standards so that a clear distinction
is made between perception and reality and between facts and fiction. The
criticisms levelled so far against the standard-setting system have been greatly
exaggerated.
5.
The
Workers’ Group would like to stress the importance of the standard-setting
activity of the ILO. The ILO standards provide a unique framework of
international law for improving the working conditions and lives of workers
everywhere. If since its inception, the core activity of the ILO has been the
setting up of standards, securing their observance has been its life-breath.
This function is derived from its Constitution, which contains a number of
specific provisions in this regard. In fact, as a response to globalisation ,
the Organisation is called upon to broaden and reinforce its action on standards
in order to globalise workers’ rights and social justice and not the contrary.
The backlash against globalisation as was seen in Geneva, Seattle, Davos,
Washington and Prague recently is a challenge to the ILO to provide that missing
social dimension link.
6.
The first
Global report under the Follow-up to the ILO Declaration on Fundamental
Principles and Rights at work rightly pointed out that “the ideological
confrontation that marked the twentieth century has given way to debate about
how best to manage the market and enlarge
respect for basic human rights“.
7.
Therefore
what the workers’ Group said in 1993 concerning labour standards in its
document “ The ILO towards the 21st
Century” remains valid. We quote “The
task facing the Organisation is to reaffirm the authority of its Conventions and
Recommendations as universal standards of social and labour law and practice; to
mark out the way for future standard-setting; to take decisive new measures to
ensure the universal application of its human rights standards ; and to take the
lead in having key standards firmly established as the applicable criteria of
fair competition required for the satisfactory functioning of an open system of
world trade”.
8.
In
November 1999, the IMEC countries indicated that there was a need to develop a
broader policy framework for normative activities, including revision of
standards and other international issues. The Asian Pacific Group also called
for a comprehensive review of the ILO standard-setting and supervisory
mechanisms to be undertaken. Hence, the Workers’ Group clearly stated that
there should be a shared commitment among the three groups to aim at improving
the standards-related activities of the ILO and not to weaken them. Unless such
guarantees are given explicitly, the Workers’ Group would have no confidence
in such a review. We have already shown our good faith and cooperation in the
discussion recently on the revision of Article 24 of the Constitution. While
agreement was not reached on all issues, we agreed on some changes to be brought
to the procedure to make it more transparent and efficient, some Governments and
employers’ Groups asked that a decision be deferred on this matter.
9.
Therefore,
in the light of the decision taken in March this year, the Workers’ Group
expects that the Office will prepare for November a document on
improvements in standard-setting activities incorporating the necessary
guarantees that were already included in para.5 of document GB.277/LILS/2,
namely “the reaffirmation of a shared commitment by constituents to the improvement of existing
standards-related activities and procedures. This would also involve agreement
on the need to strengthen and not weaken activities that demonstrably perform
well in the achievement of the Organisation’s objectives”.
10.
The
Workers’ Group would wish the discussion to focus on the actions proposed by
the Director-General to the ILC last year in order to raise the profile and
increase the relevance of the ILO’s work on standards, namely:
-
preparing
the ground for new standards more thoroughly;
-
exploring
new methods of standard setting;
-
engaging
in deeper analysis of existing standards, their synergy, lacunae, and impact on
various groups;
-
accelerating
the revision of outdated instruments to build on progress already made and
promoting priority standards as problem-solving tools;
-
stepping
up efforts to help countries implement ILO standards;
-
enhancing
the impact of the supervision of standards; and
-
reasserting
the role of the ILO standards in the broader world context.
Ratification Rate of Conventions
11.
The
statistics on ratification of Conventions show that the number of ratifications
increased every year and the total number of ratifications as at 1st
October, 2000 were 6,790 compared to 5,397 in 1989. This is equivalent to 37.1
ratifications per Convention and the average number of ratifications per year
was 130.5 during the last decade. In the recent years, the ratification rate of
the fundamental Conventions grew faster as a result of the ratification campaign
launched by the Director-general in 1995. The present ratification totals of the
eight core Conventions are 1005 out of a possible total of 1400.This
demonstrates that Conventions, which are actively promoted by the Office can
attract a reasonable number of ratifications. A similar campaign should be
launched for the priority and up-to-date Conventions. Moreover, it should be
noted that not all Conventions are relevant for all countries, particularly the
maritime Conventions and those concerning mining and fishing. Therefore the
evolution of the ratification rate is not as bad as it is being portrayed in
some circles. But it is obvious that the ILO should do more active promotional
work. The three Conventions adopted recently –No 176 ( health and safety in
mines), No 181 (private employment agencies) and No.182 ( worst forms of child
labour) seemed to be doing well, particularly the latter which has received
an exceptionally high number of ratifications ( 37 so far) during its
first year. It should be noted that the employers have systematically opposed
the ratification of Conventions which were adopted by the required majority
presumably because they voted against their adoption, for instance Conventions
No.175 on Part-Time Work and Convention No 177 on Home Work. In this case, some
Governments have failed to assume their responsibility by giving the employers
at national level almost the right to veto the ratification of such Conventions.
12.
It is also
worth noting that some 20 out of the 175 Member States of the ILO have lost
their right to vote and moreover they are not attending the International Labour
Conference. They are not fully participating in ILO activities or fulfilling
their reporting obligations. Without specific
measures from the ILO, these countries, which are mainly the
least-developed ones, would be left on the margins and they could not be
expected to ratify ILO Conventions or to contribute in the Organisation’s
standard-related activities. Special efforts should be made by the Office to
assist these countries.
13.
While the
level of ratification can still be raised, the Workers’ Group would like to
stress that it attaches as much , if not more, importance to application of
ratified standards. Every year, the Committee of experts highlights in its
reports the failures of many Governments to comply with the Conventions they
have ratified. These Governments should not also seek to hide their failures
behind this discussion.
Autonomous
Recommendations v/s Conventions
14.
During the
past few years, some people are repeatedly advocating the adoption of autonomous
Recommendations as opposed to Conventions. This question was also raised in the
report of the Director-General in 1997. The proponents of the soft-law approach
continue to press their view. Let’s look at the nature and constitutional
basis of Conventions and Recommendations in order to understand that each of
these instruments plays a specific role in the standard-setting activities of
the ILO. Conventions are instruments, which on ratification create legal
obligations, including regular reporting obligations. Recommendations are not
open to ratification, but give guidance as to policy, legislation and practice.
Both kinds of instrument are adopted by the ILC and Article 19 of the
Constitution provides:
1.
When the conference has decided on the adoption of proposals with regard
to an item on the agenda, it will rest with the Conference to determine whether
these proposals should take the form: (a) of an international Convention, or (b)
of a Recommendation to meet circumstances where the subject, or aspect of it,
dealt with is not considered suitable or appropriate at that time for a
Convention.
Hence,
their functions, which are compatible and complementary, are clearly defined. It
is clear that a Recommendation (whether autonomous or not) cannot replace a
Convention. The decision whether to have a Convention or a Recommendation rests
with the Conference. It might be recalled that during the period from 1951 to
1970, well over half of the
Recommendations adopted (i.e. 31 out of 55) were autonomous instruments
unrelated to a Convention. Since 1971, 44 of the 47 Recommendations have been
instruments supplementing a Convention. In 1998, the International Labour
Conference adopted Recommendation No. 189 on Job Creation in Small and Medium-Sized Enterprises and the drafting
of an autonomous Recommendation on the Promotion
of Cooperatives is on the agenda of the Conference next year.
Hence, both types of instruments have been and are still useful for the
protection of workers all over the world. What is important is to have
suitable instrument or instruments which are adequate to the subject
examined by the Conference. Finally, Conventions have been and still are a
unique and irreplaceable source of binding obligations subject to various types
of supervisory procedures.
Codes of Practice
15. The
overwhelming majority of the codes of practice developed by the ILO through
tripartite meetings of experts deal with issues in the field of occupational
health and safety. They
provide guidance to the tripartite constituents at national level on the
promotion of heath and safety standards in the workplace. They are based
generally on instruments adopted by the International Labour Conference on
safety and health. Therefore, they are complementary to the labour standards.
They perform a specific supportive role to promote best practice. But they
cannot be an alternative to Conventions or Recommendations.
Selection Criteria for Standard-Setting
16.
As far back
as 1984, this question was raised in the Director-General’s report. In the
course of an in-depth review undertaken by the Governing Body at that time, a
number of criteria were suggested to guide the choice of items, such as the
number of workers affected, the extent to which the subject would affect workers
in the lower economic stratum, and the severity of the problem. These criteria
are useful and the Office has taken them into account to establish a
“portfolio” of possible items
for consideration by the Governing Body. But
these criteria have their limits and they should not be applied rigidly. It has been said that some useful instruments would perhaps
have never seen the light of day if these criteria had been mechanically
applied. In fact , with the introduction of the “portfolio” approach , a
preliminary written consultation of all member states is undertaken following
which proposals are submitted to the Governing Body. There is a need to
encourage wider participation of the member States and indeed the tripartite
constituents at national level in this process. In this way , the Governing Body
could take into account diverse
needs and circumstances, an assessment of the economic impact of proposed
standards and of the need for
flexibility and efficiency. But this does not imply reducing standards to lowest
common denominators as it is being suggested in some quarters by including “
prospects of ratification” as a criterion for the choice of standard-setting
items. Conventions must continue to set targets for social progress, if not they
will be meaningless.
Consensus and majority vote
17.
While it is
important to make all possible efforts to achieve a consensus on the choice of
topics for standard-setting or to resolve differences during the negotiating
process, it should be clear that consensus cannot be a substitute for a
democratic vote. Consensus does not mean unanimity as some people want to
interpret it. We have seen already how the WTO is paralysed by its famous rule
of consensus where important decisions have been postponed sine die. We have
seen also at the recent meeting of the UN Special General Assembly on the
Follow-up to the Social Summit (UNGASS) how
a handful of Governments blocked the decisions on some issues which were
supported by a large number of Governments, NGOs and trade unions. Therefore ,
the Workers’ Group strongly believes that the resolution of differences of
opinion by means of voting is the most democratic way when all other attempts to
obtain a consensus have failed. Moreover, instruments are adopted by two-thirds
of the votes cast by the delegates present and not by “narrow majorities” as
being claimed in some circles. The founders of the ILO have in their wisdom
included this provision in the constitution in the full knowledge that
Governments have a large responsibility in the legislative process both at
national and international levels. It is rare that employers would welcome
legislation with open arms. Labour laws themselves are adopted by majority vote
by the competent authorities of most, if not all, of the Member States of the
ILO.
18.
Another
dangerous concept is being advocated in this connection and to which we cannot
subscribe is a request that only Governments that are in a position to ratify a
Convention should actually vote for it. Ratification is a voluntary exercise and
each Government should decide in full freedom whether to ratify a Convention or
not. They have also the right as members of the ILO to participate actively in
the standard-setting activities of the Organisation. If we have to follow the
above suggestion, then Governments, which do not have maritime, fishing or
mining activities would be denied the opportunity to vote for instruments
dealing with these issues. Member States are entitled to vote for Conventions or
Recommendations which , in their judgement, they consider suitable and
appropriate. Their right to exercise their votes should not be subjected to any
pre-conditions linked to ratification of an instrument. Moreover, if the
delegates of such countries did not participate in the vote, the International
Labour Conference would not have been able to adopt maritime or other sectoral
Conventions.
19.
The
International Labour Conference, which formulates the international labour
conventions, constitutes, from the point of view of international law, an
organization of a unique nature. It is not an assembly of plenipotentiaries
authorised to sign on behalf of Governments, but a kind of international
parliament, in which votes are individual, and in which a two-thirds majority
bind the whole of the States which are members of the Organisation. The
obligations undertaken by the members are, nevertheless, limited. They are
merely bound to submit the
instruments to their legislatures within one year of their adoption.
It is not logical to expect a Government representative to assess on the
spot whether his country’s situation satisfies the requirements of a
Convention, which is put to a vote. If there are any difficulties or obstacles
to ratification, these have to be dealt with at the national level within a
reasonable period of time. Hence, the importance for Governments to fulfil their
obligations by submitting the adopted instruments to their national legislatures
within the prescribed period. Unfortunately, as demonstrated by the Committee of
Experts , several Governments are not making the necessary efforts to do so.
Flexibility Clauses
20.
The
question of flexibility devices in Conventions has also been widely discussed in
the Governing Body in the past. As a result , a wide range of flexibility
devices has been developed with a view to giving effect to the directive
contained in article 19, paragraph 3, of the ILO Constitution that, in the
drawing up of Conventions and Recommendations, regard be had to differences of
conditions and levels of development. The need for flexibility is already taken
into account in the course of the preparation of
ILO standards. The instruments adopted over the past few years already
allow for many and varied forms of flexibility. These may arise not only from
clauses permitting specific exceptions, derogations or variations, but also from
the basic conception of the instruments, such as the adoption of promotional
Conventions and institutional framework Conventions. The ILO has already
approved and developed a wide range of flexibility devices aimed at enabling the
greatest number of States progressively to ensure the intended protection.
21.
These devices include, in particular, the possibility of
accepting a Convention in parts; the possibility of excluding certain sectors of
activity, categories of workers or areas of the country from its scope;
“escalator” clauses making possible the gradual raising of the level of
protection or the extension of the scope of protection; the adoption of
Conventions which lay down only basic principles, more precise and detailed
standards being incorporated in a supplementary Recommendation; the possibility
of adopting alternative solutions to a problem; and flexibility in the methods
of application. In fact, there are already too many flexibility provisions in
the existing Conventions. A rational use has to be made of these flexibility
devices in order to avoid the exclusion of many workers from the coverage of
Conventions. Such a situation would be contrary to this fundamental principle
that consists in providing the same rights and protections to all workers. What
is needed is for the Office to seek to increase awareness among the Governments
of the existence of these flexibility clauses in the course of its promotional
and advisory activities in order to encourage the ratification and application
of existing Conventions and to monitor on a regular basis the exemptions where
they are exercised by Governments. However, as we have said in the past, there
is no scope for flexibility in Conventions on fundamental rights and basic
freedoms.
Entry into force and denunciation
22.
The
conditions for the entry into force of Conventions have also been discussed in
the past. At present, apart from special cases (such as maritime Conventions), a
Convention generally comes into force 12 months after receipt of the second
ratification. The situation is not comparable with the Council of Europe or the
United Nations, where a Convention on Migrant Workers adopted ten years ago has
still not yet come into force for want of the required number of ratifications.
Hence, stricter conditions are not necessarily a solution . It is worth noting
that an early entry into force enables the reporting obligations of Member
States under articles 19 and 22 of the Constitution to become effective. The
advantage of an early entry into force of Conventions is that problems examined
by the supervisory bodies may help to clarify issues for the benefit of Member
States, which are still considering the possibility of ratifying them. However,
if the following conditions are met, the Workers’ Group would be prepared to
reconsider its position:
(a)
that the Office will launch an active campaign of ratification of the
recently-adopted Conventions, not only Convention No.182 on the Worst Forms of
Child Labour;
(b)
that the employers’ Group will refrain from discouraging the
ratification of Conventions for which they have not voted;
(c)
that the employers’ Group will fully support a promotional campaign to
ratify and implement the 70 or so Conventions found up-to-date by the Working
Party on Policy regarding Revision of Standards.
23.
It is being
said in some quarters that the ten- year denunciation procedure is too rigid and
acts as a deterrent for the ratification of Conventions and therefore there
should be a reduction of this period during which a ratifying Member State
remains bound by the Convention. But so far, most denunciations have been the
automatic consequence of a State’s ratification of a revised, more up-to-date
Convention on the same topic. There is also the possibility for a Member State
to denounce a Convention if it considers that it is no longer able to give
effect to it or that the Convention is no longer relevant in the national
context. However, such kind of denunciation has been rare. The total such
denunciations do not represent even 1 per cent of the current number of
ratifications which exceeds 6,700. There is no evidence that a shorter period
during which a member State is bound by a Convention will be an incentive for
ratification. In any case, when a denunciation of a Convention is contemplated ,
it would be necessary for the
member State concerned to consult fully the representative workers’ and
employers’ organisations before a decision is taken on the matter.
If this procedure is strictly observed, the Workers' Group might
reconsider its position on this matter but there should be no reduction of the
binding period for the fundamental and priority Conventions.
The Supervisory System
24.
The
supervisory system, which is intended to secure the implementation of ILO
standards has been described as one of the most far-reaching and effective
systems of international supervision. It has been substantially developed over
the years and its methods of work have also evolved gradually. The workers’
Group is prepared to discuss any suggestions, which might help to strengthen and
improve further the efficiency of the system. We shall put forward some
suggestions ourselves in another paper as we are not satisfied with the level of
application and implementation of Conventions by a number of Member States. But
for the time being, it is necessary to emphasise the need to apply, at national
level, the principle of tripartism through the establishment of tripartite
consultation procedures in line with the Tripartite Consultation (International
Labour Standards) Convention, 1976 (No. 144) in all Member States.
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