THIRD ITEM ON THE AGENDA
Follow-up on the discussion of the Report of
the Director-General to the 85th Session (1997)
of the International Labour Conference
(a) Inclusion on the agenda of the 86th Session (1998) of the
International Labour Conference of an item concerning a
Declaration on workers' fundamental rights
1. At its 269th Session (June 1997), the Governing Body decided to place on the agenda of its 270th Session (November 1997) an item concerning follow-up on the discussion of the Report of the Director-General to the 85th Session (1997) of the International Labour Conference. Under this item it will consider the possibility of including on the agenda of the 86th Session of the Conference in 1998 -- the year that will mark the 50th anniversary of the Universal Declaration of Human Rights and of the ILO's Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) -- an additional item relating to a Declaration on fundamental rights, including a follow-up mechanism.
2. The different views on the Declaration and its follow-up presented at the Conference are summarized in a separate document submitted to the Governing Body.(1) Since the 85th Session of the Conference and the 269th Session of the Governing Body consultations have taken place involving ILO constituents and the Office. This document draws on the various points made in those consultations, particularly where there has been a degree of convergence of views. It covers the following questions:
A. Why a Declaration?
B. Which fundamental rights?
C. What follow-up?
D. By which bodies?
3. This document contains two appendices: a technical note on article 19 procedures, and a summary of the existing supervisory mechanism.
4. There is no attempt to make one single proposal on the two central issues of the contents of and follow-up on a Declaration. Rather, this paper aims at identifying the building blocks for both which can be further elaborated, if the Governing Body wishes to go ahead, for its 271st Session in March 1998. These building blocks should contain sufficient substance to allow the Governing Body to decide that an item relating to a Declaration and its follow-up mechanism can be put on the agenda of the 86th Session of the Conference. In this case, a draft Declaration would be prepared for the Governing Body's 271st Session (March 1998) through a careful process of consultations, and the details of the follow-up mechanism could be decided upon at the same session.
5. The documentation for the 271st Session of the Governing Body will be prepared in close consultation with all constituents, with full account being taken of their views and observations.
A. Why a Declaration?
6. The purpose of a Declaration on fundamental rights is to recognize explicitly, through a solemn statement approved by the International Labour Conference, the consensus which the international community has reached regarding the special significance of a number of fundamental rights in the present global context, and to express the commitment of its constituents to strengthening their universal application by the ILO.
7. The focus of a Declaration would accordingly be on reaffirming, in the light of developments since the Declaration of Philadelphia, the meaning and scope of the commitments to which all ILO member States have subscribed when freely accepting the ILO Constitution. It would recognize that the basic values set out in the Constitution and the Declaration of Philadelphia give rise to a commitment on the part of Members to strive towards achieving them. Even where Members are not yet ready to ratify the specific Conventions adopted by the International Labour Conference in which these rights are developed, they would acknowledge in a Declaration their commitment to eliminate progressively situations that are incompatible with their principles, in line with their abilities and resources.
8. The term "Declaration" reflects this intention. According to an authoritative source, a declaration in international law is a "formal and solemn instrument suitable for rare occasions when principles of lasting importance are being enunciated".(2)
9. It should be recalled in particular that the World Summit for Social Development, held in Copenhagen in March 1995, made two authoritative statements that are relevant to the discussion on a Declaration and follow-up action. Commitment 3(I) of the Summit to which the Heads of State and Government subscribed, reads as follows:
[We commit ourselves to promoting the goal of full employment as a basic priority of our economic and social policies, and to enabling all men and women to attain secure and sustainable livelihoods through freely chosen productive employment and work.
To this end, at the national level, we will:]
[(a) ... (g)]
(i) Pursue the goal of ensuring quality jobs, and safeguard the basic rights and interests of workers and to this end, freely promote respect for relevant International Labour Organization conventions, including those on the prohibition of forced and child labour, the freedom of association, the right to organize and bargain collectively, and the principle of non-discrimination.
Paragraph 54(b) of the Programme of Action adopted by the Summit states that governments should enhance the quality of work and employment by --
(b) Safeguarding and promoting respect for basic workers' rights, including the prohibition of forced labour and child labour, freedom of association and the right to organize and bargain collectively, equal remuneration for men and women for work of equal value, and non-discrimination in employment, fully implementing the conventions of the International Labour Organization (ILO) in the case of States parties to those conventions, and taking into account the principles embodied in those conventions in the case of those countries that are not States parties to thus achieve truly sustained economic growth and sustainable development".
10. It must be made clear that there can be no question of making the obligations under core Conventions binding on States that have not ratified them. In his reply to the discussion of his Report at the 85th Session of the Conference, the Director-General emphasized --
that it is in no way a question of imposing, through such a declaration, new obligations on member States against their will. The declaration is aimed at reaffirming the logic of the commitments and the values to which States have already freely subscribed in joining the ILO. ... nobody could reproach the Organization for inviting its Members to take seriously such commitments by making them more explicit.
11. This reaffirmation of the constitutional commitment of member States would have two aspects which should be regarded as inseparable: on the one hand, their commitment to promote respect for those principles; and on the other, a commitment by the Organization to help them through the various means at its disposal, including in particular advice and technical cooperation. One should particularly bear in mind the unique ability of the ILO to rely upon its tripartite constituents throughout this process.
12. As the rationale would be to promote and evaluate endeavours -- that is, the progress towards implementing basic principles -- and not to control the conformity of national law and practice with substantive provisions of the relevant Conventions, it would therefore not be necessary to define precisely the contents of those principles in a Declaration (as would be the case with instruments establishing concrete obligations once they have been ratified). The principles should be set out in such a way that trends can be evaluated.
B. Which fundamental rights?
(a) The basis and scope of the distinction between fundamental and other rights
13. The ILO Constitution has always recognized that the way in which effect is given to certain rights may vary depending on the level of economic development but that there are rights or principles which are essential to the objectives of the Organization. Thus, in article 41 of the original Constitution, frequently referred to in the recent debates, the High Contracting Parties ...
... recognize that differences of climate, habits and customs, of economic opportunity and industrial tradition, make strict conformity in the conditions of labour difficult of immediate attainment.
However, they also stated that --
... labour should not be regarded merely as an article of commerce ... there are methods and principles for regulating labour conditions which all industrial communities should endeavour to apply, so far as their special circumstances will permit.
14. The Parties affirmed that "among these methods and principles" some seemed to be "of special and urgent importance". The first of them was the principle that labour should not be regarded as a commodity or article of commerce.
15. The distinction concerning basic principles is reiterated in the Declaration of Philadelphia, which reaffirms (in section I) "the fundamental principles on which the Organization is based", which first and foremost include: (a) the principle that labour is not a commodity, and (b) the statement that freedom of expression and association are essential to sustained progress.
16. The reasons for regarding certain rights as indeed being fundamental, irrespective of levels of development, has become clearer as a result of the debate that has resulted from the increasing interdependence of economies and societies. Those rights are in a sense a precondition for all the others in that they provide for the necessary implements to strive freely for the improvement of individual and collective conditions of work, account being taken of the circumstances of the countries concerned.
(b) The specific implications of the distinction
17. The rights covered by the above criteria are now the subject of a consensus reaching even beyond the ILO. Mention in this connection need only be made of the Declaration adopted by the Copenhagen Summit, referred to in paragraph 9 above. The principles on the prohibition of forced labour and child labour, freedom of association and the right to organize and bargain collectively, equal remuneration for men and women for work of equal value, and non-discrimination in employment have been developed by the International Labour Conference in the specific provisions of seven "core" Conventions, which are the subject of an ongoing ratification campaign (without prejudice to the possible inclusion of a new instrument on the most intolerable forms of child labour in this list). The Conventions are --
18. All the provisions embodied in these Conventions correspond to principles that figure either in the Preamble to the Constitution, or in article 41 of the pre-war Constitution or in the Declaration of Philadelphia. Although the prohibition of forced labour is not expressly mentioned in any constitutional text, it would seem necessarily to follow from the values and principles enunciated in them.(3) It can, for instance, be derived from Article II(a) of the Declaration of Philadelphia, which says that --
All human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity.
19. There is thus a firm constitutional basis for the inclusion of these four sets of principles in the Declaration. While other principles covered by ILO standards are important, it would seem to be inadvisable to extend the list beyond the existing agreement on what constitutes fundamental rights. In addition, the debate at the 85th Session of the International Labour Conference confirmed the view that the four sets of rights on which there is agreement are instrumental in securing the conditions for development in situations compatible with human dignity.
(c) Possible elements of a Declaration
20. The building blocks of a Declaration could consist of a short preamble, referring to the overriding principle of labour not being a commodity. It could spell out that the aim of the Declaration is not, and cannot be, to increase the legal obligations of the Members, but to solemnly reaffirm that they recognize that by virtue of their adherence to the ILO Constitution they have accepted to work in good faith towards the elimination of situations which are incompatible with the fundamental rights mentioned in the Declaration, even though they may not yet be in a position to ratify the Conventions concerned.
21. It could also contain a reference to different levels of economic development and strength, in line with the original Constitution quoted in paragraph 13 above or the Declaration of Philadelphia, which says --
while the manner of their application must be determined with due regard to the stage of social and economic development reached by each people, their progressive application to peoples who are still dependent, as well as to those who have already achieved self-government, is a matter of concern for the whole civilized world.
These texts obviously cannot be used as such, but they could form the basis of drafting.
22. The way in which the principles underlying these four sets of rights might be expressed could either take the original Constitution or the Declaration of Philadelphia as a starting-point, or they could be aligned to the objectives expressed in the seven core Conventions without going into any detailed coverage of these instruments. An example on child labour could illustrate this. The original Constitution contains the following principle:
The abolition of child labour and the imposition of such limitations on the labour of young persons as shall permit the continuation of their education and assure their proper physical development.
The Minimum Age Convention states, in Article 1, that each Member ...
... undertakes to pursue a national policy designed to ensure the effective abolition of child labour and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons.
23. The other relevant Conventions also contain statements of basic objectives, such as Article 2 of Convention No. 87; Article 1(1) of Convention No. 98; Article 2 of Convention No. 111; Article 2(1) of Convention No. 100; Article 1(1) of Convention No. 29; and Article 2 of Convention No. 105. These provisions might provide elements for drafting the principles in the Declaration.
24. Other issues to be covered could include the commitment to the follow-up mechanism, which would complement the ILO's existing supervisory mechanism. The detail in which the mechanism would be spelled out in the text of the Declaration itself needs to be agreed upon.
C. What follow-up?
25. As the Declaration would reaffirm the will of member States to promote the principles contained in it, the concomitant obligation of the Organization would be to design the most suitable and effective promotional procedure for assisting Members in attaining this objective. In so far as Members have committed themselves to give effect to the principles to be contained in the Declaration by ratifying the corresponding core Conventions, the existing supervisory mechanism is available. In addition, the Governing Body's Committee on Freedom of Association also covers countries that have not ratified the relevant Conventions. Consequently, the question is of a promotional mechanism covering situations where the core Conventions related to non-discrimination and the abolition of forced and child labour are not ratified.
26. In this respect, the discussions in the Governing Body and the Conference have brought out a clear majority view that this promotional mechanism should not take the form of a system of complaints such as that of the Committee on Freedom of Association. It has been made equally clear that the existing procedures on freedom of association should remain unaffected by the adoption of the Declaration and the follow-up mechanism associated with it.
27. Emphasis has been given to another important consideration. The implementation mechanism should be based to the extent possible on existing mechanisms, and it should be clearly rooted in the Constitution of the ILO. This suggests a solution that has frequently been mentioned in previous discussions and in the consultative process: the use of article 19, paragraph 5(e) of the Constitution. This provision reads as follows:
If the Member does not obtain the consent of the authority or authorities within whose competence the matter lies, no further obligations shall rest upon the Member except that it shall report to the Director-General of the International Labour Office, at appropriate intervals as requested by the Governing Body, the position of its law and practice in regard to the matters dealt with in the Convention, showing the extent to which effect has been given, or is proposed to be given, to any of the provisions of the Convention by legislation, administrative action, collective agreement or otherwise and stating the difficulties which prevent or delay the ratification of such Convention.
28. Although some observations have been made, particularly by the Workers' group, that this may not be the only possible basis for a procedure, as it is not in the case of the Committee on Freedom of Association, it is fair to conclude that a consensus on the new promotional mechanism could be reached only on the basis of article 19, paragraph 5(e). It has also been the clear understanding that the new follow-up mechanism would apply only -- as indeed is implied by the reliance on this paragraph of the Constitution -- to Members which have not ratified the relevant Conventions.
29. One significant advantage of this approach is that the legal basis of the system would not need to be further discussed. All member States that have not ratified the Conventions concerned are required to respond to requests that the Governing Body may decide to make to them at intervals that it considers appropriate, in a form requested by the Governing Body.
30. Although this approach therefore appears to be dictated by legal and practical considerations, care must be taken not to modify its object. The idea would not be to compromise the discretionary nature of the decision to ratify or not to ratify, but simply to make use of the information that could be gathered through this procedure in order to assess the situations and trends in this regard and, where applicable, to consider what practical means of assistance could be offered.
31. If it is agreed that article 19, paragraph 5(e) should provide the basis for the follow-up mechanism, this does not necessarily mean that the procedure presently followed under this provision (described in Appendix II) -- which is not laid down in the Constitution but is based on Governing Body decisions -- would be followed also in this regard, as it would not appear to correspond to the same objectives as those of the proposed Declaration. The way in which article 19, paragraph 5(e) is followed up at present would remain unaffected for the general surveys and the four-yearly special reports introduced in 1995; but this could be supplemented by another approach using somewhat different methods. For the purposes of the present discussion, it might be sufficient to indicate that information on national situations relevant to the fundamental rights and principles would be gathered through reports requested under article 19, paragraph 5(e) in an appropriate manner. The Governing Body could then discuss further details at its March 1998 session when it discusses the contents of a draft Declaration.
32. One further point should however be made clear to ensure that it will be possible to obtain an objective picture of the efforts being undertaken or, where applicable, of problems or abuses. As indicated in the attached technical note on article 19 (Appendix II), the information provided by governments may in any case be complemented or corrected by information submitted by employers' and workers' organizations under article 23(2) of the Constitution, as is already the case. The Governing Body should, where necessary, take care to specify the way in which these organizations might contribute to the replies and to the evaluation of efforts.
D. By which bodies?
33. As indicated in the attached documentation, the reports provided under the present procedure by which article 19 is implemented follow a well-established itinerary through the Committee of Experts and the Conference Committee on the Application of Conventions and Recommendations. However, the way in which this procedure is applied in practice would not allow sufficient time or provide an adequate framework for an evaluation or discussion of the information gathered for the purposes discussed here, and would not adequately correspond to the objectives of the proposed Declaration. The existing procedure is oriented only toward evaluating obstacles or difficulties with respect to specific provisions of Conventions, and not to evaluating trends in relation to fundamental principles. Article 19 allows the Governing Body to request information, and then leaves it free to provide for its examination in the way it sees most fit. Both the procedure and the bodies concerned could thus be different from those used at present, so as to ensure proper and effective follow-up on the proposed Declaration.
34. In this regard, it appears to be the consensus that the objectives of the procedure under the proposed Declaration would be to allow a regular assessment of significant developments and trends in individual countries relating to the fundamental principles, and to devise ways of assisting governments to work towards the implementation of the principles of the Declaration. As suggested above, one way this might be advanced would be to request each year simplified supplementary reports, on the basis of a standard form, thus bringing article 23(2) into play on an annual basis and allowing comments to be made by employers' and workers' organizations. Once this is agreed, it would then appear possible to determine which body would be best placed to carry out this review with sufficient time and care. There seems to be agreement that to achieve this objective the Governing Body would have to have a role. Further reflection can take place on whether the mechanism would be entirely in the Governing Body, or in the Conference, or a combination of the two. The question of whether the Committee of Experts, which has responsibility for the four-yearly reports, should also be associated with the examination of the yearly simplified reports, taking account of the different scope and objective of the proposed procedure, would also have to be addressed.
E. Points for decision
35. In the light of the above, it would appear that the Governing Body could decide to place the item on the Conference agenda, it being understood that agreement would have to reached at the March 1998 session, after full consultation, on the contents of the Declaration to be submitted to the Conference, as well as on the details of the follow-up mechanism. This item might be entitled "Possible consideration and adoption by the Conference of an ILO Declaration on fundamental rights, and its follow-up".
36. The Governing body is invited --
(a) to take a decision on placing on the agenda of the 86th Session (1998) of the International Labour Conference an additional item relating to the possible consideration and adoption of an ILO Declaration on fundamental rights and its follow-up;
(b) to instruct the Office to prepare, in close consultation with ILO constituents, a draft Declaration for submission to the Governing Body at its 271st Session (March 1998);
(c) to instruct the Office to prepare, in close consultation with constituents, detailed proposals on the follow-up mechanism, for discussion by the Governing Body's Committee on Legal Issues and Labour Standards at its 271st Session (March 1998).
Geneva, 15 October 1997.
Point for decision: Paragraph 36.
Existing ILO supervisory machinery (4)
The ILO's existing machinery has evolved over time from the foundations laid down in the Constitution, and from the functions assigned by the Conference and the Governing Body. The various bodies and functions outlined below form a unified whole.
1. Submission to the competent authorities
Under article 19 of the Constitution, all member States are required, within one year of the adoption of a Convention or a Recommendation, or 18 months for federal States and in exceptional cases, to bring the instrument "before the authority or authorities within whose competence the matter lies, for the enactment of legislation or other action" (paragraph 5(b) for Conventions, and 6(b) for Recommendations). No further obligations exist as to unratified Conventions, except in regard to reports on unratified Conventions and Recommendations (see below).
2. Reports on ratified Conventions
When a Convention has been ratified, a State is required under article 22 of the Constitution to submit periodic reports on its law and practice under the Convention. Reporting periods have been modified on several occasions, and reports are now due at intervals of two or five years, though reports can be requested more frequently if necessary. General reports are due annually. Note that there are now more than 6,400 ratifications, resulting in nearly 2,000 reports each year.
In the case of non-metropolitan territories (NMTs), States are required under article 35 of the Constitution to report, as under article 22, on the application of Conventions that they have declared applicable to these territories. There are around 1,000 declarations of application to NMTs now in force.
States are required under article 23, paragraph 2, of the Constitution to communicate copies of their reports to the most representative organizations of employers and workers in their countries, and these organizations may comment on these reports. An obligation also exists under Article 5(d) of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) to hold regular consultations with these organizations on "questions arising out of reports to be made to the International Labour Office under article 22 of the Constitution".
3. Reports on unratified Conventions and on Recommendations
Under article 19(5)(e) and (6)(d) of the Constitution, the Governing Body may request reports from each member State on "the position of its law and practice in regard to the matters dealt with in the (Convention or Recommendation), showing the extent to which effect is given, or is proposed to be given, to any of the provisions of the (Convention or Recommendation)". In the case of Conventions, the State shall also indicate "the difficulties which prevent or delay the ratification of such Convention". These reports are examined by the Committee of Experts on the Application of Conventions and Recommendations (see below), and form the subject of a "General Survey" which is examined each year by the Conference.
In addition, under the procedure adopted in 1996 by the Governing Body, States which have not ratified one or more of the ILO's fundamental Conventions (Nos. 29 and 105 on forced labour, Nos. 87 and 98 on freedom of association, Nos. 100 and 111 on discrimination, and No. 138 on minimum age for employment or work) are asked under article 19 of the Constitution to report at four-yearly intervals on the obstacles to ratification. These reports are also examined by the Committee of Experts, whose evaluation of them forms part of its annual report.
4. Committee of Experts on the Application of Conventions and Recommendations
The Committee of Experts was created in 1926 by the International Labour Conference, holding its first meeting in 1927, to examine the reports submitted by governments and by employers' and workers' organizations under articles 19, 22 and 35 of the Constitution. It is a body of 20 independent legal experts, appointed by the Governing Body on the nomination of the Director-General, which meets once a year in Geneva. It issues a report which consists of:
The Committee of Experts also adopts direct requests, which for reasons of economy are sent direct to governments but are not put before the Conference. The observations and direct requests are published in the annually updated ILOLEX database on CD-ROM (and soon available on line), and it is planned also to include the General Surveys in future editions of ILOLEX.
5. The Conference Committee on the Application of Conventions and Recommendations
One of the standing committees of the International Labour Conference at its annual session is the tripartite Committee on the Application of Conventions and Recommendations. It discusses the report of the Committee of Experts, and usually calls before it the representatives of some governments whose situation is mentioned in the experts' report in order to examine their situation more closely.
6. Representations under article 24 of the Constitution
The Constitution provides for a "representation" to be made "by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party". If it considers that the representation is receivable, the Governing Body usually establishes a tripartite committee from among its members to examine the representation and to make any recommendations it may consider appropriate. The conclusions of these examinations are followed up by the Committee of Experts.
7. Complaints under article 26 of the Constitution
The Constitution also provides, in article 26, that "Any of the Members shall have the right to file a complaint with the International Labour Office if it is not satisfied that any other Member is securing the effective observance of any Convention which both have ratified". The Governing Body may, if it thinks fit, refer complaints to a Commission of Inquiry, usually composed of three independent persons. "The Governing Body may adopt the same procedure either of its own motion or on receipt of a complaint from a delegate to the Conference." Commissions of Inquiry usually hold hearings and make on-the-spot investigations before making their conclusions and recommendations. The conclusions of these examinations are followed up by the Committee of Experts.
8. Special procedures on freedom of association
The Committee on Freedom of Association is a tripartite committee of the Governing Body, established by agreement with the United Nations Economic and Social Council (ECOSOC) in 1950. It may examine complaints from workers' and employers' organizations that member States of the ILO are not respecting basic principles of freedom of association. These complaints may be examined whether or not the country concerned has ratified the ILO's Conventions on the subject, as the procedure is based on constitutional principles. If the country has ratified the Conventions, the Committee's conclusions receive follow-up from the Committee of Experts.
The Fact-Finding and Conciliation Commission on Freedom of Association was also created by agreement with ECOSOC, at the same time as the Committee on Freedom of Association. It may examine the same kind of complaints as the CFA, but to do so requires the consent of the government concerned. It may also examine complaints of violations of freedom of association against non-member States of the ILO -- and has done so on several occasions -- when such complaints are forwarded to it by the United Nations and the country consents. Panels of the Commission are formed of three independent experts appointed by the Governing Body.
9. Direct contacts
Under a procedure adopted in 1964, a country may request direct contacts to discuss questions raised by the supervisory bodies. In such cases, the Director-General appoints a representative -- who may be an official of the Office or an independent person -- to discuss the situation with the government concerned and with the tripartite partners in the country. In such cases, the operation of the supervisory system is suspended for one year to allow a solution to the difficulty to be found.
10. Special studies on discrimination
In 1973 the Governing Body adopted a procedure for special studies on discrimination, which has not yet been used successfully. Under this procedure, a request for a special study may be submitted by a member State or by an organization of employers or of workers on specific questions that concern them. If the government concerned agrees to such a study, the Director-General is to examine with it the arrangements for carrying it out. It is not confined to countries having ratified any particular ILO Conventions.
11. Multinational enterprises
A special "Procedure for the examination of disputes concerning the application of the Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy" was adopted in 1980 and updated in 1986. It provides for requests for interpretations of the Declaration by the Governing Body's Subcommittee on Multinational Enterprises. This procedure is not for the examination of the application of standards, but to examine the Declaration itself.
12. Ad hoc procedures
The ILO has, from time to time, also carried out various ad hoc procedures. These include the long series of the Director-General's Reports on the effect given to the Declaration concerning Action against Apartheid (no longer prepared), and on the situation of workers in the occupied Arab territories; both were, or are, submitted direct to the Conference for discussion. Other procedures, including various kinds of special studies, have been used on various occasions.
13. Assistance by the International Labour Office
The International Labour Office provides considerable assistance to its constituents to apply international labour standards. This is most often done through the multidisciplinary advisory teams, either in response to requests from governments or from employers' or workers' organizations, or as part of the routine work of the Office in advising member States. All technical cooperation and assistance provided by the Office should be in harmony with standards, and one of its important objectives is always to facilitate the ratification or application of ILO standards. The advisory and assistance work of the Office is closely integrated with the supervisory machinery.
Article 19 procedures
1. Article 19 of the Constitution provides at paragraph 5(e):
if the Member does not obtain the consent (for ratification) of the authority or authorities within whose competence the matter lies, no further obligation shall rest upon the Member except that it shall report to the Director-General of the International Labour Office, at appropriate intervals as requested by the Governing Body, the position of its law and practice in regard to the matters dealt with in the Convention, showing the extent to which effect has been given, or is proposed to be given, to any of the provisions of the Convention by legislation, administrative action, collective agreement or otherwise and stating the difficulties which prevent or delay the ratification of such Convention.(5)
2. This provision is used in two separate but similar ways.
3. For many years, the Governing Body has chosen a specified Convention and Recommendation, or groups of Conventions and Recommendations on given subjects, for article 19 reports each year. In accordance with the practice established by the Governing Body, the Committee of Experts on the Application of Conventions and Recommendations carries out a general survey on the selected instruments. The Committee relies on the information contained in governments' reports, on the reports submitted to the ILO by employers' and workers' organizations (see below) and -- as stated in each general survey -- also on other information available to the Office such as legislation and other official documents. These general surveys form part of the Committee of Experts' report (Report III (Part 1B) since the numbering system was changed in 1997) to the Conference. The Conference Committee on the Application of Standards then devotes a day or so to discussing the general survey each year.
4. The Governing Body decided at its 264th Session (November 1995) that governments of all States that have not ratified the Conventions concerning forced labour, freedom of association, discrimination and child labour, should be asked to submit reports under article 19, following a simplified report form adopted by the Governing Body, in an additional procedure. This procedure is being applied for the first time for the Committee of Experts' session in 1997. The information supplied will be analysed by the Committee and its findings included in its General Report, which thus will also be discussed by the Conference Committee at its annual sessions. In this case also, any information received from employers' and workers' organizations will be taken into account. This was indeed one of the key points on which the Committee on Legal Issues and International Labour Standards of the Governing Body insisted when proposing to the Governing Body that it adopt this procedure.
Information from employers' and workers' organizations
5. Under article 23(2) of the Constitution, copies of the reports made by governments under articles 19 and 22 must be sent to the representative organizations of employers and workers specified in article 3 of the Constitution, i.e., national organizations. As stated in the Handbook of Procedures, "Those or any other employers' or workers' organizations may make any observations they wish on the subjects in question."
6. The Committee of Experts carried out a detailed examination of this question in its 1986 report.(6) It recalled there that the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) also provided for consultations with the tripartite partners on a number of matters, including the re-examination at intervals of unratified Conventions and of Recommendations to consider their "implementation and ratification as appropriate".
7. As concerns the legal basis for comments by employers' and workers' organizations, the Committee of Experts noted that both the requirements on reporting under article 19 on unratified Conventions and paragraph 2 of article 23 were added by a constitutional amendment in 1946. The Governing Body then decided to add questions to the report forms on article 19 and 22 reports in this regard. The Committee of Experts specified (para. 86) that
although article 23, paragraph 2, of the Constitution provides for the very useful possibility of bringing the reports of the governments to the attention of certain organisations, namely the most representative, it is not the basis of the question in the report form relating to the comments submitted by employers' and workers' organisations, which must be distinguished from the question relating to the communication of reports to the representative organisations, and it does not restrict the scope of this question to the most representative organisations.
Characteristics of reporting under article 19
8. From the examination above, it can be seen that the treatment of reports received under article 19 of the Constitution is determined as a result of decisions by the Governing Body within the framework of the Constitution's requirements. The characteristics are as follows.
2. Memorandum of the United Nations Office of Legal Affairs, E/CN.4/L.610, 2 April 1962.
3. This was developed in some detail in document GB.267/LILS/5, paragraphs 18 and 19.
4. This text was previously issued as an appendix to GB.268/LILS/6, and has been slightly amended to bring it up to date and provide more detailed information in certain respects.
5. A similar provision as regards Recommendations exists at paragraph 6(d) of article 19, but of course without reference to ratification.
6. International Labour Conference, 72nd Session, 1986: Report of the Committee of Experts, Report III (Part 4A), paragraphs 80-108.