Committee on Legal Issues and International Labour Standards
SECOND ITEM ON THE AGENDA
Revision of the procedure for the examination
of representations submitted under
article 24 of the Constitution
1. At the 273rd Session (November 1998) of the Governing Body, the Committee on Legal Issues and International Labour Standards (LILS Committee) held a preliminary exchange of views on the question of a possible revision of the procedure for the examination of representations submitted under article 24 of the Constitution.(1)
2. Following this examination, the Governing Body asked the Office to submit another document reflecting the general guidelines given by the members of the Committee and structured around the following three questions:
3. There are three main reasons to justify a revision of the procedure currently in force -- the increase in the number of representations seen over the years, the risk of overlapping between the representation procedure and the other supervisory procedures, and the clarification and possible harmonization of the confidentiality of the discussion concerning the examination of representations and the conclusion of the procedure under articles 24 and 25 of the Constitution. The following indications are intended to supplement and clarify those already provided in the document previously submitted to the Committee.(2)
4. The question of the examination of a possible revision of the procedure was originally put forward by the Officers of the Governing Body. Since the last revision, in 1980, of the Standing Orders concerning the procedure for the examination of representations under articles 24 and 25 of the Constitution, the Officers of the Governing Body are responsible for examining all representations with regard to their receivability and then reporting to the Governing Body. Faced with a growing number of representations, the Officers of the Governing Body raised the question in the middle of the 1990s as to the desirability of revising the procedure: if the trend in the increase of representations continued, the automatic referral of representations to a tripartite committee could in time become a problem with regard both to the availability of Governing Body members to participate in tripartite committees and also to Office resources.
5. Between the inception of the ILO and 15 September 1999, 89 representations have been submitted; 66, i.e. over 80 per cent of the total, were submitted in the past two decades, and 50 of these, i.e. 68 per cent of the total, were submitted in the 1990s.
6. During the Committee debates held in November 1998, members of the Governing Body requested additional information in order to assess the scope of and reasons for the increase, given that it could be a transient situation linked to the growing number of member States and ratified Conventions rather than a permanent feature. Several aspects appear, however, to indicate that these factors only play a minor role. Of 174 member States, 47 (that is a little over a quarter) have been the subject of one or more representations(3) and, over the last 20 years, only two States which have become Members since 1980 have been the subject of a representation. Furthermore, only 13 representations have related -- either exclusively or partially -- to Conventions adopted after 1980, and of the 163 Conventions currently in force, only approximately 60 have been the subject of representations. In addition, more than half of all representations concern the fundamental or priority Conventions, all adopted before 1980.
7. The objective data is not sufficient in itself to explain the increase in the number of representations, which is rather due to an increased awareness of the existence of, and the use of, procedures by the industrial associations of employers and workers, due in part to the promotion and information activities carried out by the Office following instructions from the Conference and the Governing Body at the beginning of the 1980s, and also to the expansion of democracy in a growing number of countries.
8. Although as the table below illustrates, representations have not increased at a constant pace, it is unlikely, in view of the above, that the trend towards a wider use of constitutional means of supervising the application of standards will gradually diminish.
2. The risks of overlapping between the various supervisory procedures
9. The usual practice of the Committee of Experts, when a procedure under article 24 or 26 of the Constitution is instituted, is to wait until the Governing Body has reached a decision on the substance before examining the questions raised or resuming their examination. Consequently, and in the absence of observations concerning the substance in the report of the Committee of Experts to the Conference, the Conference Committee on the Application of Standards shall not examine the question(s) being dealt with in the representation until the procedure under articles 24 and 25 of the Constitution has been completed.
Number of representations submitted to the Governing Body
10. The unprecedented situation created in 1997 by the overlapping of a representation considered as receivable by the Governing Body at its March session and the examination by the Conference Committee on the Application of Standards of an observation in the report of the Committee of Experts (calling on a Government to submit full details to the Conference)(4) was a result of the changes made to the date of the meeting of the Committee of Experts on the Application of Conventions and Recommendations.(5) In the absence of specific provisions governing this point, and taking into consideration the fact that an exception is made to the practice of automatically suspending the examination of the case by the Conference Committee when the matter concerns representations examined by the Committee on Freedom of Association, this gave rise to some controversy.
11. In fact, the Committee of Experts regularly refers to the interim conclusions and recommendations adopted by the Committee on Freedom of Association when the procedure before that Committee has been instituted on the basis of a representation under article 24 which would have been referred to it under article 3, paragraph 2, of the Standing Orders. Basing itself on any possible comments made by the Committee of Experts, the Conference Committee on the Application of Standards can thus examine the matter.
12. The question therefore arises of whether, while ensuring the primacy of the procedures which can lead to the adoption of constitutional "conclusions", in the form of a publication to sanction a failure to respect the ratified Convention or even the institution by the Governing Body itself of the procedure under article 26 of the Constitution, it might not be necessary to find an arrangement which would make it possible to prevent exceptional situations occurring, while respecting the complementarity of the supervisory procedures.
3. The clarification and harmonization of the confidentiality of the discussion
concerning the examination of representations and the conclusion of the procedure
13. The usefulness of the confidentiality of documents and debates relating to representations was raised by a government representative who questioned the genuinely confidential nature of the documents distributed in connection with representations and the possibility of maintaining their confidential nature. It appears from the discussion held in the LILS Committee that it would be useful to clarify certain points, particularly the distinction between the confidentiality of sittings for the consideration of the form and the substance of representations and the decision to make the representation public should the Governing Body not be satisfied with the statement from the government or owing to the lack of any statement from the government, and also possibly to harmonize practices.
14. The question of the private nature of the sittings of the Governing Body was already examined on the occasion of the most recent revision of the Standing Orders concerning the procedure for the examination of representations in 1980, when the Governing Body decided to retain the principle of conducting examinations during private sittings. However, in addition to the practical difficulties of keeping the examination of representations within the Governing Body -- and the documents submitted -- confidential, it is important to note that the degree of confidentiality of the procedure is not the same for representations relating to the application of Conventions concerning freedom of association which, under article 3, paragraph 2, of the Standing Orders, are referred to the Committee on Freedom of Association. In fact, both the procedure of the Committee on Freedom of Association and that applied by the tripartite committees assigned to examining representations, satisfy the confidentiality requirement which ensures the interests of the Member in question and the smooth running of the work of the tripartite committee appointed by the Governing Body to examine the representation or of the Committee on Freedom of Association. On the other hand, while the reports of the Committee on Freedom of Association are considered by the Governing Body in public sitting, those of the tripartite committees are considered in private sitting, in accordance with the Standing Orders. In this way, a single representation relating both to the application of Conventions concerning freedom of association as well as to other Conventions could paradoxically end up being treated in different ways depending on the subject in question -- consideration in public sitting for Conventions relating to freedom of association and consideration in private sitting for other Conventions.
15. Furthermore, the question of the value of publication under article 25 of the Constitution has been somewhat obscured as a result of the practice adhered to by the Office. Since 1991 only the recommendations of the tripartite committees, as approved by the Governing Body, are published in the Official Bulletin. The practice adhered to up until 1991 of publishing both the reports of the tripartite committees and the governments' replies in the Official Bulletin has been brought to an end. In view, however, of the general interest presented by the reports of the tripartite committees, the question arises of whether it would not be appropriate to permit their dissemination while ensuring a distinction is made between that dissemination and their possible publication under article 25 of the Constitution. In any case, the substance of such reports is reproduced in some detail by the Committee of Experts in its comments and it would be desirable to ensure that the entire reasoning of the Governing Body is made available by the Governing Body itself.
16. Article 24 of the Constitution does not make provision for the practical details of the consideration of a representation, but stipulates that the Governing Body "may communicate" it to the government against which it is made and that it "may invite" that government to submit a statement in reply. To exercise these two options, it is for the Governing Body alone to decide on the procedure to follow and the details of the examination, bearing in mind that the procedure chosen must permit the possible implementation of article 25. In other words, and irrespective of the procedure chosen for the examination of the representation, the Governing Body must be able to draw conclusions and close the procedure.
17. The preliminary discussions which were held in the LILS Committee on the possible revision of the Standing Orders revealed consensus on two objectives: the simplicity and coherence of a procedure over which the Governing Body has control and the aim of which is, in the terms of article 24, to examine whether "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".
18. The objective of simplicity must satisfy both the requirement for the transparency and objectivity of the procedure as well as the requirement contained in the Constitution to grant industrial associations of employers and workers very broad access to the procedure, while still taking into account the constraints -- in terms of both time and resources -- which constitute such a burden for the Governing Body and the Office, particularly as regards the automatic referral of all receivable representations to a tripartite committee. The objective of coherence must be, while still respecting the specific nature of the constitutional procedure relating to representations, to ensure that the various mechanisms used to supervise the application of the obligations voluntarily accepted by the Members complement one another and to avoid duplications and overlapping.
19. Each time the Governing Body has deemed it necessary in view of changes facing the Organization, the various elements making up the supervisory mechanism for the application of standards have been adjusted to make them more efficient and coherent. This pragmatic approach has so far allowed the flexibility of the whole to be maintained, by correcting the flaws or deficiencies which appear during use, and at the same time making it more efficient.
20. Article 24 of the Constitution allows any industrial association of employers or of workers to institute at any time, providing that it fulfils the conditions of receivability established in the Standing Orders, a procedure to consider the manner in which a Member is applying an international Convention which it has ratified, irrespective of the subject-matter of that Convention. This procedure shares with the practice of the examination of the application of ratified Conventions based on articles 22 and 23 of the Constitution,(6) as well as with the procedure for complaints relating to freedom of association, the fact that it can be instituted by industrial associations of employers or of workers. It also shares with the constitutional complaint procedure for which provision is made in articles 26 et seq., the possibility of being concluded by measures taken against a country which has failed to secure in any respect the effective observance within its jurisdiction of a ratified Convention. Its specificity lies in the fact that it brings all these elements together in the same procedure which could be described as intermediary between those of articles 22 and 26 of the Constitution.
21. It should also be recalled, in particular as regards certain observations concerning a possible reinforcing of the conditions of receivability made during the last discussion, particularly as regards repetitive representations, that a reinforcement of this kind, apart from the question of its actual compatibility with the Constitution, is not justified. Hence, while it is true that 15 representations submitted recently related to the application of the same Convention(s) by the same countries,(7) none of these representations was lodged by the same organization. [The Governing Body considered that four of these representations were not receivable.](8) Furthermore, as regards the representations that have been considered as being receivable, although they relate to the same Convention, they refer either to different provisions in the instrument or to the application of the same provisions to different sectors of activity, or lastly to different situations owing to the action or inaction of the government in question.
22. The observed trend of wider use being made of the representation procedure by the industrial associations calls for a rationalization of the Governing Body's methods of work and of the means available to the Organization to ensure the smooth working of the procedure. At the same time it would be appropriate for all revisions to aim to ensure the coherence of the supervisory system as a whole by avoiding any risk of overlapping and to maintain its specificity within the supervisory system.
23. As regards the channels for the examination of representations which, as we know, are referred either to an ad hoc tripartite committee or to the Committee on Freedom of Association, there are two possible solutions.
24. The first, already mentioned previously, would consist of a standing committee. Although this solution does not solve the problem of the availability of members of the Governing Body called to sit on the tripartite committees, it would allow a more systematic organization of their work. If the Governing Body decides to go further into this solution, it would be necessary to keep in mind the need to take account of geographical distribution when appointing the members of this standing committee.
25. The second solution, already roughly outlined in the November 1998 document, would be to widen the choice of available forms of examination for representations judged to be receivable.
26. The first of these channels could consist of referring the question raised in the representation to the Committee of Experts on the Application of Conventions and Recommendations for consideration and inviting the government to make any statement on the subject it may think fit. The Committee of Experts would examine the question at its following session with, as appropriate, the government's statement, and would include its comments in its report. When the report of the Committee of Experts on the Application of Conventions and Recommendations is submitted to the Governing Body, at each March session, its attention would be drawn to the outcome of the examination of the question included in the report. The Governing Body could make the necessary decisions as regards the follow-up to take concerning the representation. It will have to be ascertained what type of questions which are the subject of representations should be transmitted to the Committee of Experts. The distinction proposed in the previous document (questions of fact/questions of law) was not unanimously approved as it appears difficult to implement in the abstract. Nevertheless, experience with representations shows that it is possible to distinguish what pertains to questions of standard application. Whatever the case may be, as indicated in paragraph 28 below, any decision to change channel should be justified and in the event of any doubt it would be for the Governing Body to decide which direction to take.
27. The second approach that could be taken, particularly for repetitive representations(9) or those not raising any specific problem, would consist of adhering closely to the procedure provided in articles 24 and 25 of the Constitution, that is directly to invite the government in question to make such statement on the subject as it may think fit and, if the statement received is not deemed to be satisfactory, to publish under article 25 of the Constitution the statement received and the reply to it, in a way that should make it quite clear that such publication is to be regarded as a sanction. Representations relating to a question examined a certain time previously by the ordinary supervisory bodies or previously examined under article 24 could be dealt with in this manner. Besides, there is nothing in the constitutional provisions to suggest that representations on which the supervisory bodies have already made comments or on which recommendations have been adopted by the Governing Body following previous representations are not receivable. Immediately they are considered as being formally receivable, they automatically give rise to the institution of an ad hoc tripartite committee. Cases of this kind would involve one of the following situations:
28. Each of the decisions taken as regards the channel chosen should be sufficiently justified in order to clarify the choice of the Governing Body and give the industrial associations concerned guarantees of transparency concerning the decision adopted.
29. The institution of these new channels and in particular the function of channelling representations in the appropriate direction, could be carried out in two ways:
2. The specific nature of the representation procedure and the harmonization of
practices relating to the confidentiality of sittings and documents
30. It is important to specify that the question here is the examination of the practice of the confidentiality of discussions relating to the examination of recommendations by the Governing Body and that of the conclusion of the procedure under articles 24 and 25 of the Constitution.
31. The Governing Body examines in public sitting the reports of the commissions of inquiry set up under article 26 of the Constitution and the reports of the Committee on Freedom of Association, including those relating to representations referred to it under article 3, paragraph 4, of the Standing Orders. The discussion of these reports in public sitting does not, however, affect the secrecy of the deliberations that lead to their adoption. The Standing Orders could thus be amended to align the practice with that applicable to other procedures (Committee on Freedom of Association and commissions of inquiry).
32. The argument relating to the weakened impact of publication as sanction which could arise from making debates within the Governing Body public raises a more general problem -- that of the confusion which has long reigned between the dissemination of the report of the tripartite committees (like any other report of the Governing Body) and its publication in accordance with the Constitution.
33. The notion of publication should retain the meaning of a formal decision taken by the Governing Body under article 25 "to publish the representation and the statement, if any, made in reply to it". It is clear from the context that the decision to publish, in this case, is the result of the assessment by the Governing Body that the reply of the government in question was not satisfactory. In fact, up until now there has only been one publication under this article concerning a representation -- that relating to the application of Convention No. 111 by Czechoslovakia in 1978. The report was published in a special supplement to the Official Bulletin, indicating that the publication was issued in accordance with a decision taken under article 25.
34. To reinforce the distinction between the publication of the representation and the dissemination of the report, we could highlight one of the points of the applicable procedure according to the current Standing Orders. According to article 8 of the Standing Orders, "If the Governing Body decides to publish the representation and the statement, if any, made in reply to it, it shall decide the form and date of publication". This provision should be understood as meaning that the Governing Body should give a certain solemnity to the decision to publish. Consequently, it should be addressed as a specific item on the agenda of the Governing Body instead of being dealt with under a general point.
35. If it is thought that the reports of the committees appointed under article 24 of the Constitution should be available in full once they have been approved by the Governing Body, article 1 of the Standing Orders as worded prior to the 1980 amendment should be re-established.
3. The coherence of the system: Effect of the procedure
under article 24 on the procedure under article 22
36. If, for the reasons indicated above, it does not appear desirable to amend the established practice as regards the suspension of the procedure under article 22 when the procedure under article 24 is initiated -- in other words when the examination of the substance of the representation is initiated -- it will at least be necessary to carry out a minor amendment in order to avoid the overlapping of procedures which the Governing Body would prefer not to occur.
37. During the preliminary examination of the representation (receivability and choice of the channel of examination), the Governing Body should systematically be informed of the status of any procedure under way and, as appropriate, should give an informed view as to the consequences of its decision to channel the representation in one direction or another. In practical terms, in a case similar to the one referred to in paragraph 12 above, the Governing Body could, after having decided on its receivability, take the decision to transmit the question through one of the channels of examination at its June session, after the Conference, in order to benefit from any discussion which might have taken place at the Committee on the Application of Standards. Conversely, it could decide immediately to implement the procedure, recalling its suspensive nature.
* * *
38. In view of the above, the Committee will certainly wish to ask the Office to submit to it at a coming session draft amendments of the Standing Orders concerning the procedure for the examination of representations under articles 24 and 25 of the Constitution which take into account the guidelines formulated during the examination of this document.
Geneva, 12 October 1999.
Point for decision: Paragraph 38.
3. The distribution of representations by regions is as follows: Africa, seven representations; the Americas, 28 representations; Asia, three representations; Europe, 37 representations, 20 of which relate to countries in the European Union; Arab States, one representation.
4. See GB.273/LILS/1, paras. 4 and 34.
5. Between the session of the Committee of Experts (November-December) and the session of the Conference to which the Committee's report is submitted (June of the following year), the Governing Body meets in March and can reach a decision on the receivability of a representation lodged previously. However, the Convention(s) dealt with in this representation could have been the subject of comments by the Committee of Experts at its November-December session, perhaps together with a footnote calling on the government to submit full details to the session of the Conference. The Conference Committee thus finds itself faced with a case which is brought to its attention in the report of the Committee of Experts while the representation procedure on the same case has already been instituted by the Governing Body. This was the situation at the 85th Session of the Conference in 1997.
6. The observation of an employers' or workers' organization on the application of a ratified Convention automatically leads to the examination by the Committee of Experts of the point raised in the observation. See GB.258/LILS/6/1, para. 12(c)(iv).
7. Chile (Conventions Nos. 35 and 37, 1997-98); Congo (Convention No. 95, 1994-95); Denmark (Conventions Nos. 87 and 98, 1996-98); Mexico (Convention No. 169, 1996-98); Peru (Convention No. 102, 1994-95; Conventions Nos. 87, 100 and 111, 1995-96); Uruguay (Convention No. 155, 1994-96); Venezuela (Convention No. 158, 1991-96).
8. Peru (Convention No. 102, 1994-95; Conventions Nos. 87, 100 and 111, 1996); Denmark (Convention No. 98, 1997).
9. See para. 10 above.