11:41 AM Mar 13, 1997


Geneva 13 Mar (Chakravarthi Raghavan) -- The issue of labour standards and trade in a globalizing world economy, and the role of the International Labour Organization in this area is set for discussion at the Governing Body of the ILO which is currently holding its 268th session.

The subject is to be discussed in terms of strengthening the ILO's supervisory procedures on labour conventions, and in particular the socalled "core" conventions and "fundamental workers' rights", in the Committee on Legal Issues and International Labour Standards (LIILS), as well as in the Working Party on Social Dimensions of Liberalization of International Trade.

The issue has been on the agenda of the Governing Body and its two subsidiary bodies since the present ILO Director-General brought it up in 1994, initially in support of the demands of some industrial nations and workers organizations for a 'social clause'.

Since then, the debate has undergone some change in focus, though the workers organizations, and particularly the International Confederation of Free Trade Unions (ICFTU) has not abandoned its idea of trade sanctions for violation of workers' rights.

Initially raised, by workers and some industrial nations like France and US, in a form that covered a wide spectrum of issues, including 'unfair' competition due to depressed or low wages, the focus was shifted at the ILO to the question of "core" labour standards and conventions, and the strengthening of the ILO supervisory procedures over observance of the core conventions and fundamental workers' rights, whether or not countries have joined the conventions.

At the meetings of the governing body last November, on the eve of the Singapore Ministerial Conference of the World Trade Organization, it appeared that a compromise could be reached within the tripartite Governing Body, with the employers and workers divided whether the route should lie via new conventions or a revised "Philadelphia Declaration" which provides a basic framework for the ILO after the second world war.

However, the workers with an eye on the Singapore WTO meeting and their efforts to put the issue on the WTO agenda, did not agree to compromises that the ILO bureau sought to promote.

The Ministerial Declaration at Singapore has made a reference to the fundamental workers rights issue in a separate paragraph, in which the Trade Ministers of WTO member countries renewed their commitment to the observance of internationally recognized labours and affirming that the ILO is the competent body to set and deal with labour standards.

While the various protagonists publicly differed at the end of the meeting on whether this put the trade/labour-standards issue into the WTO or outside, it was generally agreed that the ball is now in the ILO court.

The ILO secretariat has put forward two documents for the LIILS meeting, one on the strengthening of the ILO's supervisory procedures and the other, responses of member-states to the call for ratification of the core conventions -- No 29 of 1930 on Forced Labour, No 105 of 1957 on Abolition of Forced Labour, No 87 of 1948 on Freedom of Association and Protection of the Right to Organize, No 98 on Right to Organize and Collective Bargaining, No 100 of 1951 on Equal Remuneration, No 111 of 1958 on Discrimination in Employment and Occupation, and No 138 of 1973 on Minimum Age at work.

In November 1995, the ILO head had produced a similar report, and the present one is an update on it, and responses to his further letters to the member governments who have not yet ratified.

But since the 1995 ILO inquiry and responses, there has been 16 new ratifications of these conventions.

Among them, India (the focus of attention on prevalence of forced labour), has said that it had been unable before to join the convention because of the legislation in force in one of the states, but that with the cooperation of local authorities it has finally managed to have that legislation amended and was in the process of ratifying the convention.

"All in all," says the ILO Director-General, "it is encouraging that the campaign launched to promote the ratification of the ILO's fundamental Conventions is generally having an effect."

But the replies show that the campaign has not had much effect in encouraging the US, the country leading the trade-social clause campaign to ratify the conventions and thus bring its own policy under international scrutiny.

The United States has so far ratified only one of the conventions that of 1957 on Abolition of Forced labour, and in January 1997 the administration has initiated procedures to submit the 1958 Convention against discrimination in employment and occupation to the US Senate for ratification.

On the other conventions, it has repeated its replies of November 1995 about its inability to ratify others, and thus bring US law and practice under international supervision.

It has noted that ratifying the 1930 Convention against forced labour "runs counter to the current trend towards privatization of prison management".

The US has also said now that its views on ratifying the conventions on freedom of association and collective bargaining has not changed since its 'no' in its last reply in November 1995.

At that time, the US had said that neither the ILO convention on freedom of association nor the one on collective bargaining could be ratified by it without some changes in legislation and regulations on the right to strike for certain employees. The ratification of the 1950 Convention on equal remuneration for equal work was not under active consideration either since the convention's notion of equal remuneration for work of equal value did not "precisely match" the US legal standards.

In the other report about strengthening the supervisory mechanism, the ILO head notes the climate of growing awareness and consensus, both within the ILO and in other international organizations, on the priority to be given to the strengthening of the ILO's supervisory system for implementation of fundamental human rights within its mandate.

In providing "an inventory" of possible approaches that could be followed, the ILO secretariat says that though views have differed, somewhat sharply, on how to proceed, the various options discussed are not mutually exclusive, but tend to address different aspects of the problem and a combination of different approaches could be contemplated.

One approach is to encourage ratification of core conventions, and thus automatically bring within the supervisory system practices and measures prevalent within a country that violate their observance.

The other approach is on the basis that while Conventions can bind only the countries accepting it, some fundamental principles of the ILO constitution bind all its members as a result of their accepting that constitution and becoming an ILO member.

On the first, the ILO has asked its members to increase the frequency of reporting under Art. 19 of the constitution on the fundamental human rights conventions, setting out in a four-year rotation on their intentions about ratification and obstacles to ratification. This reporting requirement begins in 1997 with the two conventions on forced labour, next year on freedom of association, in 1999 on discrimination and in year 2000 on minimum age at work.

But the United Kingdom has suggested that the ILO procedures under Art. 24 of its constitution on handling representations about violations should be restricted to cases involving fundamental human rights Conventions.

On the second approach of ILO members having to observe the fundamental principles of the constitution, and thus observe the fundamental human rights conventions, whether or not they are members, an earlier ILO document has said that the ILO has the power to promote this and bring to light the degree to which practice of a Member may vary from the principles. That document had said that the constitutional basis for such a procedure concerning discrimination was clear. Though this was less obvious on forced labour, the prohibition of forced labour was inherent or could be derived from the Philadelphia Declaration.

In earlier discussions, the workers have said this was a sufficient basis for moving ahead to a new procedure. But the employers felt that such a constitutional precedent to dal with other subjects, in particular forced labour, was not so explicit. Views of governments have differed.

The ILO now says that it would be necessary to come to some agreement on what the fundamental principles of the ILO Constitution are in this respect. There could be no objection, in its view, to clarifying the constitutional basis for further action if this were considered necessary.

The Employers have suggested that the Conference could adopt a declaration of fundamental principles to provide a basis for additional action within the supervisory system and this declaration could embody the essence of the core Conventions and the principles in the ILO Constitution and the Philadelphia Declaration. This, the employers have said, was not intended to dilute any of these, but as an aid to, and interim step towards, the ratification of conventions.

The workers have outlined their concerns that as a result the supervisory mechanism might focus on the principles in the Declaration, rather than the Conventions themselves, and thus could be a backward step.

On the idea of a statement of fundamental rights, and the form it could take, the ILO document says if it is decided to proceed with such an option, it could be done by incorporating the statement in the ILO constitution which, the ILO secretariat says, would be necessary if the intention is to place an obligation on members independently of ratified conventions.

Such a course would require ratification by two-thirds of ILO members, including five of the States of chief industrial importance.

The other alternative would be to make a declaration that would simply enunciate or clarify the content of the principles which, though not expressly stated in the Constitution, are considered by members to be inherent in the Membership. Such a route was used in 1964 over the declaration on Apartheid.

Agreement would also be needed on the subject matter of the rights to be promoted or the point of reference for them, the ILO document says.

The employers have suggested that it should reflect the basic principles in the Conventions 29, 87, 98, 100, 105 and 111. The workers group want it to be "complemented by others whose inclusion is justified by the ILO's Constitutional principles and objectives".

The ILO document says that the Governing Body in recent years has agreed that these six conventions, along with the subject of child labour (Convention 138) are the core standards of the ILO, and should be taken into account in drawing up the principles.

The ILO can now receive, and look into complaints about Freedom of Association and Collective Bargaining, irrespective of a country's accession to these. The ILO Director-General had earlier suggested that this procedure could be considered for "other basic social rights".

The employers, in the working party on social dimensions of liberalization of international trade, have suggested as elements of a new procedure, review of the position of countries which had not yet ratified the core conventions as to implementation and observance of the fundamental principles.

They have however said this should be different from that of the ILO Committee on Freedom of Association.

As a possible scenario for further action, the ILO office has suggested adoption of a declaration or resolution at the 1998 Conference whereby the Conference would decide which principles are of such fundamental importance that their promotion -- irrespective of the ratification of the Conventions -- should be given special priority. In parallel, the Governing Body could contemplate a new procedure to promote this.