Geneva, March 1997
EIGHTH ITEM ON THE AGENDA
Reports of the Committee on Legal Issues
and International Labour Standards
First report: Legal issues
1. The Committee on Legal Issues and International Labour Standards met on 19 March 1997 and was chaired by Mr. J.L. Ilabaca (Government, Chile). The Employer and Worker Vice-Chairpersons were Mr. D. Funes de Rioja and Mr. J.-C. Parrot respectively.
2. The Committee had before it five papers prepared by the Office.
Proposed amendment to Article 26, paragraph 4(a) of the Conference Standing Orders relating to the 72-hour time-limit for the submission of objections to credentials
3. With regard to this item, the Committee examined a paper(1) prepared by the Office on the problem of time-limits for submitting objections to credentials under Article 26, paragraph 4(a) of the Conference Standing Orders. The paper referred to the limited time available to the Credentials Committee to consider objections in view of the need to follow a procedure which required the Credentials Committee to transmit the text of objections to the Governments in question so that they could express their views on the matter before the Committee and where appropriate to enable the Committee to meet the participants concerned. The problem had been aggravated by the shortening of the Conference and the fact that some Governments did not adhere to the time-limits laid down in Article 26, paragraph 1 which required credentials to be deposited with the International Labour Office at least 15 days before the opening of the Conference. The Office therefore proposed an amendment to the Standing Orders which would permit objections to be submitted even before the publication of the names of delegates in the Provisional Record of the Conference and to reduce that time-limit for their submission to 48 hours, instead of 72 hours, from the date of publication of the person's name and function in the Provisional Record. It was also proposed to delete the provision which permitted the Credentials Committee to consider a late objection coming from a distant country, taking into account the non-use of the provisions in the last 25 years, the presence in Geneva of major international confederations of workers' and employers' organisations and the improved means of communication.
4. The Worker members considered that the proposals contained in the Office paper should be viewed in the light of the importance of the work of the Credentials Committee. They felt that the problem of the time-limits was due to many Governments failing to respect the provisions of Article 26, paragraph 1 of the Conference Standing Orders. However, they wished to retain the 72-hour deadline for the submission of objections with regard to names which appeared in the first list (Provisional List), since the beginning of the Conference was very demanding on the time of delegates and that the maintenance of that period would not present any problem in practice. The reduced deadline could be adopted for the two other lists, although whether the deadline was 72 or 48 hours did not have much importance in the case of the third list, normally published two days before the end of the Conference. They proposed, however, that a note should be visibly inserted in the published lists of delegations to draw attention to the deadlines for submitting objections to credentials.
5. The Employer members considered that the issue of time-limits was important if the work of the Credentials Committee was to be carried out logically and effectively. The maximum period of 72 hours should be retained for the first list of delegations, since there were normally many omissions in that list. The 48-hour time-limit was however acceptable for the second and third lists. They agreed with the proposal made by the Worker members.
6. The Legal Adviser indicated that there was no difficulty in retaining the 72-hour deadline for the publication of the first list of delegations. An appropriate amendment could be made to distinguish between the time-limits for the first list and the names appearing for the first time in the revised lists. Regarding the remark by the Worker members concerning the third list, he stressed that the purpose of the proposed amendment was not only to reduce the deadlines, but also to make it possible for objections to be submitted even before names were published, a practice which needed to be encouraged as in many cases these names were normally known in advance. This idea was adequately reflected in the French version of the text proposed by the Office, but not in the English text, where the words "at the latest" should be inserted after the words "within 72 hours".
7. The Committee recommends that the Governing Body propose to the International Labour Conference that it amend article 26, paragraph 4(a) of its Standing Orders as follows:(2)
4. An objection shall not be receivable in the following cases:
(a) if the objection is not lodged with the Secretary-General within 72 hours at the latest from 10 o'clock a.m. of the date of the publication in the Provisional Record of the name and function of the person to whose nomination objection is taken: Provided that, where the name of the person is published for the first time in a revised list of the names and functions of delegates, the above time-limit shall be reduced to 48 hours; [Provided that the above time-limit may be extended by the Credentials Committee in the case of objections concerning the nomination of a delegate or adviser from a distant country];
Proposed amendment to article 32, paragraph 2, of the Conference Standing Orders concerning the effect on the right to vote of late payments under arrangements for the consolidation of arrears
8. Under this item, a proposal was contained in the Office paper(3) to amend article 32, paragraph 2, of the Standing Orders of the Conference, concerning Members in arrears to which the right of vote had been restored under an arrangement whereby they paid their arrears in annual instalments together with their normal contribution for the current year. Under the present wording of that provision, the Member lost the right to vote if it failed to pay the amounts due by the end of the year concerned. Where those amounts were later paid, the Conference was nevertheless obliged to go through the time-consuming procedures involved in the restoration of the right to vote. The proposed amendment would prevent a definitive loss of the right to vote if the Member had paid by the last day of the annual session of the Conference following the year in which the amounts were due.
9. The Worker members agreed with the proposed amendment to the Standing Orders, but requested clarification concerning paragraph 4 of the Office paper, which referred to the first day of the annual session of the Conference, and the text of the proposed amendment which referred to payment made at the time of the vote concerned.
10. The Employer members considered the proposed amendment reasonable and supported it.
11. The representative of the Government of Italy, while supporting the amendment, proposed that the words "shall be permitted to vote" in the text proposed by the Office should be replaced by "could be permitted to vote" as it might not be necessary to give such a Member its right to vote if there was no voting before the end of the Conference.
12. The representative of the Government of Austria agreed with the proposed changes but considered that the last sentence of the amendment proposed was obscure and confusing and should be deleted: the first sentence of the proposed amendment would permit a Member to vote if it had paid all instalments under the arrangement by the time of the vote; the last sentence, however, provided that the Member could vote if the amounts due had been paid by the close of the Conference. It therefore added nothing.
13. The Legal Adviser explained that in accordance with article 13, paragraph 4, of the Constitution, a Member which was in arrears of its contribution for the preceding two full years lost its right to vote unless the Conference had authorized that Member to vote. In order to avoid having to repeat this authorization at each session, the Conference had adopted article 32, paragraph 2 of the Standing Orders of the Conference, under which the Member was granted the right to vote for the session of the Conference at which the decision was taken. It retained that right as long as it complied with the arrangement by 31 December of the year in which the contribution and instalments were due. The present proposal addressed two situations. First, it would enable a Member to retain the right to vote without the need for a new authorization by the Conference as long as it had made all payments due by the time of the vote concerned. In practical terms, it would only be necessary for the Treasurer to inform the Clerk of the Conference that the Member had complied with the terms of the arrangement. Since the intention was to obviate the need for the Conference to give a new authorization to vote, it was necessary to retain the words "shall have the right to vote" instead of "could have the right to vote". The second situation addressed by the proposed amendment concerned the case of a Member for which an arrangement had been approved by the Conference and which had not made the required payments by the end of the Conference of the year following that in which the payments were due. Such a Member was not only unable to vote during the current session of the Conference but would also have to request restoration of the right to vote at a subsequent Conference. This provision was necessary to avoid creating an "open-ended" situation where a Member could stop paying its current contribution and instalments for many years and still be able to recuperate automatically its voting right by making a global payment before a vote at any subsequent session. These two situations were reflected in the proposed amendments.
14. The Committee recommends that the Governing Body propose to the International Labour Conference that it amend article 32, paragraph 2 of its Standing Orders as follows:(4)
2. Notwithstanding the provisions of paragraph 1 of this article, after the Conference has approved an arrangement under which the arrears of a Member are consolidated and are payable in annual instalments over a period of years, [any decision by the Conference permitting that Member to vote shall be valid as long as the Member concerned pays both its current contributions and the instalments on its consolidated arrears during the year in respect of which they are due] the Member shall be permitted to vote provided that, at the time of the vote concerned, the Member has fully paid all instalments under the arrangement, as well as all financial contributions under article 13 of the Constitution, that were due before the end of the previous year. However, if any part of the said amounts is still outstanding by the close of the annual session of the Conference in the current year, the permission to vote shall lapse.
Entry into force of the revised Memorandum of Understanding concerning cooperation in the International Programme on Chemical Safety (UNEP, ILO, WHO)
15. Under this item, the Committee took note of a paper(5) prepared by the Office relating to the status of a new Memorandum of Understanding (MOU) concerning cooperation in the International Programme on Chemical Safety (IPCS), which had entered into force on 6 December 1996. The new MOU set out the overall objectives of the IPCS and took into account developments since the United Nations Conference on Environment and Development (Rio de Janeiro, June 1992). The Employer members took note in particular of the scope of the programme as set out in paragraph 8 of the MOU. The Worker members noted with interest the provision contained in the MOU relating to the technical assistance to be provided to member States concerning risks to human health and the environment from exposure to chemicals.
Distribution and publication of Governing Body documents using the Internet and information on international labour standards on the Internet
16. The Committee examined these two items together on the basis of two papers(6) prepared by the Office. The first concerned Governing Body documents which were made available to members of the Governing Body and others entitled to receive them on the ILO's Internet site through a system involving the use of a password. The paper raised certain legal questions relating to early disclosure of Governing Body documents and to use of the password system. It also referred to certain resulting difficulties in the management of the ILO Internet site. On the recommendation of the Officers of the Governing Body, the password system was to be continued until a clearer picture emerged and the various categories of documents defined. The second paper informed the Committee of the availability on the ILO's Internet site of the ILO Constitution, ILO Conventions and Recommendations, the list of ratifications of Conventions, as well as reference information on national labour and social security legislation. The paper also discussed the availability on the Internet of the report of the Committee of Experts on the Application of Conventions and Recommendations (the "green book"). The Office was congratulated for making use of modern means of communication for the distribution of documents and dissemination of information. However, a number of specific concerns were raised.
17. The Employer members considered it important for them to have access to Governing Body documents on the Internet. Concerning the statement in the Office paper that the distribution on the Internet allowed these documents to be made available to members of the Governing Body in advance of the printed version, they observed that in certain cases they had received the printed versions before the documents had been available on the Internet. They felt it necessary to maintain the password system at least until all the legal aspects of the question had been examined, including the issue of the various types of documents to be made available. This was necessary to retain the confidential nature of certain restricted documents, for example, the report of the Committee on Freedom of Association. While the publication of these documents on the Internet was a sign of progress, it was necessary to proceed with caution concerning the kinds of documents to be distributed.
18. The Worker members had examined the issues raised in the Office paper concerning the distribution and publication of Governing Body documents using the Internet and noted that the Office intended to submit proposals to the Committee at a subsequent meeting. They were pleased that information on standards was available on the Internet. They were also pleased to have access to press releases on the day on which they were issued. There was, however, a need to avoid placing those entitled to receive the relevant documents at a disadvantage, since not everyone had access to the Internet. Following discussions in the Workers' group, they fully supported the idea that the report of the Committee of Experts should be made available immediately on the Internet to all constituents at the same time, without waiting for its publication.
19. The representative of the Government of Germany was of the view that, while it was a good thing that the Office recognized the need of member States for information and took advantage of modern means of communication, this should not be used to place those who did not have the means or capability of accessing that information at a disadvantage. Governing Body documents should therefore not be mailed later than was the case in the past, and it was not sufficient to provide members of the Governing Body with the printed copies only in their hotels in Geneva simply because the documents were available on the Internet.
20. The representative of the Government of the United States considered that by making these documents available on the Internet, the Office had now made a considerable amount of information available to governments. As these documents were received well in advance of the Governing Body sessions, it was possible to review them before delegates left for Geneva. Even for inexperienced persons the use of the password was not difficult or cumbersome, and she could agree to its continued use until all the implications had been examined. With regard to the reports of the Committee of Experts and other such documents, it was vital that governments received these reports before they were made available to the press in order to avoid being taken by surprise.
21. The representative of the Government of Mexico considered that for ministries in capitals and for permanent missions in Geneva, there were a number of advantages in accessing the documents on the Internet. He supported the position taken by the Employer members with regard to the Spanish version of the Governing Body documents, since they had received the printed document before the Internet version. It was therefore important to receive the translated versions as soon as they were available.
22. The representative of the Government of Canada welcomed the initiative taken by the Office and associated herself with the comments made by the representative of the Government of the United States and others concerning the need to make the documents available to all Governing Body members at the same time. The Office should therefore explore the ways it would be possible to achieve this end.
23. The representative of the Government of the Russian Federation also welcomed the new system, but considered that since not all countries had the same technological capacities available to them, the printed documents should continue to be sent out in good time. He drew attention to the 1980 version of the Standing Orders of the Governing Body in Russian, which he requested to be updated: the English and French versions had since been updated several times.
24. The representative of the Government of Japan supported the views of the Government of the United States concerning the need for governments to receive the green book before it was made available to the press in order to avoid confusion. He sought clarification on the statement in the Office paper concerning the embargo on its release.
25. The representative of the Government of China supported the views of the representatives of the Governments of Germany and Russia that, while the Internet was a good means of making documents available, it was necessary to ensure that printed documents, including the Chinese version, were transmitted to governments first.
26. The representative of the Director-General (the Director of the International Labour Standards Department) explained that the green book containing the report of the Committee of Experts on the Application of Conventions and Recommendations would continue to be published in printed form without prejudice to its diffusion on the Internet. The reasons for this were both technological and legal. Not all constituents of the ILO had access to the Internet. Legally, it was necessary to have an authentic text of the comments of the Committee of Experts and there was no guarantee at present that the information transmitted through the Internet could not be tampered with. Concerning the question raised by the representative of the Government of Japan on the embargo, he explained that it was necessary to place all parties interested on an equal footing. In order to achieve this, a date for distribution was decided upon every year. In 1997, for example, the date was set at 5 March. On that date copies of the green book had been sent by post to all governments. However, it was very difficult to ensure that governments had received it prior to dissemination in Geneva by the Office. After that date the embargo was lifted and the green book was available to any interested parties. It would be very difficult for the Office to wait until all governments had received the report before its general distribution. With regard to its distribution to workers' and employers' organizations, he referred to the solution which had been adopted by the Office following a discussion of the matter in the Conference Committee on the Application of Standards, which consisted in obtaining from the departments responsible for employers' and workers' activities, a list of persons interested in receiving copies of the green book. For financial reasons, its distribution was limited to that list. Concerning the request by the representative of the Government of the Russian Federation for a translation of the Standing Orders, he explained that such a translation would be made as soon as the necessary resources were made available, and mentioned other documents that would be available soon in Russia.
Geneva, 24 March 1997.
Signed: J.L. Ilabaca, Chairperson
D. Funes de Rioja
Points for decision: