7:28 AM Nov 8, 1995


Geneva 7 Nov (Chakravarthi Raghavan) -- The United States which wants to sanction developing countries through the World Trade Organization for their non-observance of the core International Labour Standards has told the ILO that it is unable to ratify the very same conventions because they conflict with its domestic laws and practices.

These conventions include those for abolishing forced labour, freedom of association and collective bargaining and minimum age for employment -- often described as core and fundamental human rights ILO standards.

The US response is in an International Labour Office document for its governing body currently in session. The ILO document presents the responses of various governments who are not so far parties to them about their intentions on ratification of the seven "fundamental ILO conventions", the reasons preventing their ratification and whether they would accept the ILO's multidisciplinary assistance teams to overcome any obstacles.

The ILO survey through a questionnaire and responses is part of the drive to promote observance of these fundamental ILO conventions.

According to the document, the US has been unable to ratify the 65-year old ILO convention on forced labour since its trends towards subcontracting operation of prison facilities conflicted with the convention.

The US has also been unable to ratify the over 30 year old conventions on freedom of association and protection of workers rights to organize and bargain collectively because it would involve making changes in its laws and regulations.

The US response, or atleast as mentioned in the ILO document, is so worded that one has to read between the lines to make out that in fact the US law and practice is lower than that demanded by the Convention.

All ILO conventions while stipulating minimum standards to be observed have a standard formula enabling higher standards by any member-country. Thus a response about conflict between the Convention and domestic laws standing in the way imply that domestic laws are below the standards required by any ILO Convention.

The United States has been seeking for over a decade to bring labour rights into the trading system, and wants the World Trade Organization's first Ministerial session in Singapore next year to bring the issue of trade and social clause on its agenda, so that countries found to be not observing these fundamental conventions viewed as fundamental human rights instruments could be sanctioned through restrictions on their exports.

This anomaly of the US seeking to put observance of the ILO conventions on the WTO agenda, while not being a party itself to the very same conventions at the ILO is because in the trade body the US would not be forced to undertake the commitments or obligations itself, but would be able to withhold trade rights to others on the ground of non-observance.

The ILO has been discussing the issue of trade liberalisation and observance of labour standards intensively over the last 2-3 years. As decided at the annual conference in 1994 and subsequently at the Governing Body, the ILO is undertaking a campaign to promote observance of these conventions through surveys and questionnaires and making public the response of governments, as well as media campaigns.

The ILO Director-General sent letters to member-states concerning the ratification of the seven fundamental conventions: Forced Labour Convention of 1930 and the Abolition of Forced Labour convention of 1973, the Freedom of Association Convention of 1948 and the Right to Organize and Collective Bargaining Convention of 1949, the Equal Remuneration Convention of 1959, the Discrimination (Employment and Occupation) Convention of 1958 and the Minimum Age Convention of 1973.

Quite a number of major industrialized countries are not parties to one or the other of these conventions, with the United States leading the pack and not being a party to these core conventions and many others.

The US public posture is that though not a party, nevertheless its laws and the US constitution guarantees these rights. But the US responses to the ILO bring out that in fact its laws and practices in some areas or the other are in conflict with the obligations of these fundamental human rights conventions.

On the forced and compulsory labour issue and the 1930 ILO Convention which has now been ratified by 138 ILO members, the US has said that after an earlier examination (the document does not say the when of the 'earlier') consideration of ratification has been put aside because the trend of subcontracting operation of prison facilities conflicted with the Convention.

Canada has said it viewed this convention as one "intended primarily for colonies and non-metropolitan territories" and hence not relevant to the Canadian situation. But it has however ratified the 1958 convention for abolition of forced labour.

The US has also said that neither the convention on freedom of association nor the one on collective bargaining could be ratified without some changes in legislation and regulations including that concerning the right to strike for certain employees.

Canada has said it could not ratify the right to organize and collectively bargain convention because exclusions from collective bargaining rights were wider in Canada than provided in the Convention.

Switzerland has said that the anti-union discrimination provisions of that convention are contrary to Swiss law, but that it was now undertaking a inquiry into practices of other European countries.

The United States has also said the ratification of the 1950 Convention on Equal Remuneration was not under active consideration, since the convention's notion of equal remuneration for work of equal value does not precisely match the US legal standard of equal pay for substantially equal work.

The ILO report does not provide any country answers about the 1958 Convention against discrimination in employment. This convention is the subject of a special review by the ILO Committee of Experts at their November-December session this year. The ILO plans to present the information relative to this to the Governing Body when it examines next the question of ratification of fundamental ILO conventions.

On the 1973 ILO convention stipulating the minimum age for employment (13 years), which has so far been ratified only by 46 countries, the United States has listed, as a reason for non-ratification, several instances of inconsistency between the Convention and its legislation -- on light work, agricultural work, moral hazards, employment in the arts and the problems of the US federal structure.

Austria has said that ratification of the Convention would be examined as part of a process of implementing European Union guidelines on child labour. The Czech republic has given a similar answer, but that it expects ratification to take place within two to four years. Denmark expects to ratify it in 1996, while Portugal says the Convention has been approved for ratification.

Australia has expressed its concern that it was not yet in a position to ratify and also concern that it has not been more widely ratified. Among the reasons for its own non-ratification are absence of national policy in required terms, difficulties in demonstrating compliance to all forms of employment or work, no general prescription of employment under age 13 and gaps in supervision. Australia also finds the convention to be an "inflexible and prescriptive instrument" not particularly well-attuned to the nature of the problem and the most effective means of dealing with it.

Canada has been unable to ratify because of same divergences between the Convention's requirements and national situation, including the fact that "no Canadian jurisdiction prohibits work for young persons under school-leaving age to precisely the full extent provided in the Convention, and that no jurisdiction prohibits all work, including night work for children under 13". New Zealand too has no plans to ratify this convention, though equivalent protection is said to be provided by national law. New Zealand finds lack of flexibility in the Convention and its requirements of a statutory minimum age for admission into employment.

The United Kingdom says that it has not ratified the convention because it requires evidence to be collected by obliging employers to keep records of young workers which the UK considers to be unnecessary since its school attendance records contain comparable information.

Switzerland says that several economic branches of activity in that country -- agriculture, fishing, horticulture and domestic work -- are not covered by minimum age legislation, and that there is no legislation establishing a minimum age for work outside an employment relationship.

Among developing countries and transition economies, on the forced labour convention, Estonia and Uzbekistan say it is being submitted for ratification. Ethiopia was examining for ratification all four of the fundamental labour rights conventions. Zimbabwe is submitting for ratification 'most' of these conventions, but without indicating which. Namibia is planning to consider whether or not to ratify these conventions. Botswana was consulting trade unions on ratifying more of the ILO conventions while China was meticulously studying these conventions with a view to their playing a reference role in deepening reform of the labour system and improving its labour legislation. Oman has said it is examining all the seven conventions referred to it by the ILO, while Nepal has said it was at an "initial stage of industrialization" and that its institutional infrastructure was not so strong, but that it would make efforts to ratify outstanding conventions at the earliest possible time. Mozambique has said it has done everything possible to prevent forced labour within its institutional capacities and ratification did not seem necessary.

The Philippines said that because of exclusion of several categories of work or compulsory service from coverage of the Convention, it does not find it feasible to ratify under its existing laws. However, it has ratified the much later 1958 convention for eliminating forced labour.

On the abolition of forced labour, India has said that a reason for non-ratification was that some provisions of the legislation in one of its constituent states was inconsistent with the Convention but that the Government of India was pursuing amendments with the government of that state and has also been in correspondence with ILO on this issue.

Malaysia said that the basic differences in perception between it and the ILO, which led Malaysia to denounce the convention several years ago, had not changed and that it does not envisage renewing the ratification.

On the Freedom of Association Convention, among the developing countries, Brazil has submitted it to the Senate and is examining the compatibility of the Convention and national laws.

India, in a response covering this and the Convention on the right to organize and bargain collectively, has said its laws on right of association of civil servants and employees performing managerial, administrative and supervisory work were not in conformity with the provisions of the Conventions, which were largely influenced by western concepts. On the Minimum Age for employment convention, Argentina has said it has submitted a draft legislation for raising the minimum age and for ratifying the convention. Bangladesh, Botswana, Central African Republic, China, Ecuador, Ethiopia, Laos, Lebanon, Namibia, Nepal, Oman, Panama, Sierra Leone, Slovakia, Sri Lanka, Sudan, Uganda, Uzbekistan, Zaire and Zimbabwe are examining the 1973 convention on minimum age for employment but have reached no conclusion.

Ghana which found no inconsistency between its national laws and the convention, did not consider ratification necessary, but would re-examine its position. Malaysia also said its laws did not contradict the Convention, but took no position on ratification.

Mexico has said that there were various inconsistencies between the Convention and its national legislation that prevented ratification for the moment. The Philippines said that the Minimum Age (Industry) Revised Convention of 1936 provided sufficient international guidelines and that it was not inclined to ratify the 1973 convention because of "existing cultural factors and need to reinforce enforcement machinery"

The ILO office has found the results of the survey "encouraging", having already resulted in four ratifications of one or more of these conventions. And in 25 more cases, the office could expect to receive ratifications very shortly, while in more than 30 others work with a view to ratification was under way.

The results, the ILO said, were also encouraging in showing that ratification of fundamental ILO Conventions were important to its members, even when they were unable to do so for the moment.

The reasons cited for non-ratification were almost always substantial. When based on what seemed to be "inadequate understanding" of the requirements of the Convention or technical problems such as lack of legislation, the technical assistance of the ILO might be useful.

Suggesting further promotional measures to secure ratification and implementation, the ILO document says that increased and improved public information was essential in this regard. The Governing Body, the document suggests, should instruct the ILO Office to pursue its followup efforts for increased ratification and other efforts to promote these conventions.

Observers said that such ILO efforts, through surveys and publicising their outcome, and the peer pressure that it brings to bear on those governments who have not ratified the conventions, serve a better purpose than the attempts to link trade and labour rights.