The ILO and the impact of labor standards: working on the ground after an ILO Commission of inquiry.

• Author: Tapiola, Karl
• Position: International Labour Organization

INTRODUCTION

The question of the impact of human rights standards is always difficult. The International Labour Organization (ILO) has some specific tools, and often different possibilities than do other parts of the international system, for increasing that impact. This Article discusses the ILO's innovative approaches to promoting the observance of labor standards internationally. It highlights how the ILO is a viable model for encouraging human rights in an era where human rights advocacy is all too often about ideas, not action. It focuses particularly on the impact of one of those tools: Commissions of Inquiry.

1. THE ILO AND INTERNATIONAL HUMAN RIGHTS

   The standards adopted by the ILO since 1919 are in many respects the founding documents of international human rights law, and are an integral part of that law as it has developed since the United Nations was created nearly thirty years later. How are these standards reflected in international human rights law? When the League of Nations and the ILO were invented in the Treaty of Versailles in 1919, the idea of a conscious human rights agenda was specifically avoided. This was largely because to recognize, for example, the principle of racial equality would have called into question the colonial system then in place, and even President Wilson could not push the idea because the Senators from the U.S. South would have rejected the Treaty out of hand were this to be included.(1) Meanwhile, the ILO began to adopt labor standards, laying the foundations for the human rights instruments that would be adopted when the United Nations was created in the aftermath of World War II.

   By the time the Universal Declaration of Human Rights (UDHR) was adopted in 1948, the ILO had embarked on an exceptional period of human rights standard-setting, beginning with the Freedom of Association and Protection of the Right to Organize Convention (No. 87), adopted a few months before the UDHR, shortly to be followed by the adoption of the Protection of the Right to Organize and Collective Bargaining Convention (No. 98) in 1949. Between then and 1958, the ILO would adopt seminal instruments on equal remuneration for men and women for work of equal value (Convention No. 100), forced labor (Convention No. 105, supplementing the earlier Convention No. 29 of 1930), discrimination in employment and occupation (Convention No. 111), and indigenous and tribal populations (Convention No. 107). (2) There was already a solid body of ILO standards on child labor (which would be consolidated and revised by the Minimum Age Convention (No. 138) in 1973, and later supplemented in 1999 by the Worst Forms of Child Labor Convention (No. 182). The UDHR included several provisions on workers' rights as an important part of universal human rights, particularly in Article 23, which bears a certain family resemblance to the conditions contained in U.S. legislation (3) promoting labor rights through trade measures. Article 23 of the UDHR provides:

   (1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

   (2) Everyone, without any discrimination, has the right to equal pay for equal work.

   (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.

   (4) Everyone has the right to form and to join trade unions for the protection of his interests.

   In addition to the standards themselves, the ILO's supervision and promotion of the implementation of these standards has also been very effective. The ILO employs participative methods that go well beyond what most international organizations have attempted. These are based in the constitution of the ILO, as well as in the fact that the ILO is tripartite, (4) and does not rely on governments alone to make decisions or as sources of information. The ILO does not, of course, have enforcement powers-states do not, as a rule, accord such powers to international organizations-but for various reasons the ILO's supervision has obtained significant results.

2. GENERAL ILO SUPERVISORY PROCESS

   A brief description of the ILO's supervisory procedures is necessary to set the stage. Most of the supervisory process is based on regular reporting and supervision, as opposed to a complaints-based system-though complaints are also provided for. The ILO supervisory system relies on regular reporting by both governments and other stakeholders (i.e., workers' and employers' organizations). Where this regular supervision is not enough to secure compliance, then complaints can be lodged.

   1. Reports by Ratifying States

      The essential tool is provided for under Article 22 of the ILO Constitution, by which ratifying states send the ILO a regular report on how they are applying, in law and in practice, each Convention they have ratified. Reports are required every five years on most Conventions, but every two years on a group of twelve human rights and governance instruments. (5) In a procedure unique in international law, copies of these reports must be sent to the most representative organizations of employers and workers in the country, who, under Article 23 of the ILO Constitution, have standing to submit comments and additional information on each report. These reports are reviewed by the Committee of Experts on the Application of Conventions and Recommendations, made up of twenty jurists from around the world-judges of the International Court of Justice, law professors, national judges, etc. The current chair is Professor Janice Bellace (Samuel Blank Professor and Professor of Legal Studies, Business Ethics and Management of the Wharton School, University of Pennsylvania). The Committee makes detailed comments on the application of the Conventions, which are published online and in book form. (6) This Committee handles well over 2000 government reports each year. The Committee's reports are then submitted to the International Labour Conference, where approximately twenty-five cases are discussed in public session each year.

   2. Complaint Procedures

      The ILO also has three complaint procedures. The first consists of "representations" under Article 24 of the ILO Constitution, which allows workers' and employers' organizations to complain about the application of ratified Conventions. These complaints are examined by a committee of the ILO Governing Body, composed of one worker, one employer, and one government representative. The second complaints procedure allows what are called "complaints" under Article 26, which give rise in most cases to a Commission of Inquiry, examined in more detail below. Commissions are composed of three independent persons of high esteem, appointed by the Director-General.

      Finally, under an arrangement made in 1951 with the U.N. Economic and Social Council (ECOSOC), the Governing Body Committee on Freedom of Association may receive complaints of violations of the principle of freedom of association from organizations of employers and workers, even where the relevant ILO Conventions on freedom of association and collective bargaining rights have not been ratified. The Committee is composed of nine titular members--three each of government, employer, and worker representatives on the Governing Body, along with deputy members plus an independent chairperson.

      It is worth pointing out, before examining in more detail the Commissions of Inquiry, that every stage of all of the ILO's supervisory procedures is published, on paper and/or online, except the internal deliberations of such bodies as the Committee of Experts and the Committee on Freedom of Association. While government reports are not published-as a logistical matter because of their high volume and the lack of resources to translate them into the ILO's working language-they are available for consultation at the annual sessions of the International Labour Conference; the relevant documentation received is also summarized in the supervisory results.

      This information is published in part because it allows countries to have a public and open explanation of the gaps between their international obligations and their domestic policies, which is essential if non-governmental actors in the countries concerned are to be able to use this information to promote greater compliance. It also exposes nations to pressure from other international actors, both governments and international organizations, to improve the situation of workers in their countries. Indeed, among the ILO's founding principles, included in the preamble to its constitution, is the notion that "the failure of any...