Governance through Promotion and Persuasion: The 1998 ILO Declaration on Fundamental Principles and Rights at Work

German Law Journal

Volumn 9, Issue 11, 2008, Pages 1429-1451

  de Wet, Erika ^a,b  

^a UNIVERSITY OF AMSTERDAM   (Netherlands)

^b NORTH WEST UNIVERSITY   (South Africa)

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[No Author keywords available]

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EID: 80052233569     PISSN: None     EISSN: 20718322     Source Type: Journal    
DOI: 10.1017/S2071832200000535     Document Type: Article

References (89)

1. 1 Adopted by the International Labour Conference, 86th Session, 18 June 1998. See International Labour Conference, Record of Proceedings, Nos. 20 and 22 (86th Session Geneva 1998).
2. 2 Austina Reed and Charlotte Yates, The ILO Declaration on Fundamental Principles and Rights at Work: The Limitations to Global Labour Standards, in THE AUTO PACT: INVEST, LABOUR AND THE WTO 249 (Maureen Irish ed.,2004). Within the national context the social partners are also mobilized around the 1998 Declaration through technical assistance projects. This, in turn, can lead to institutional and legislative reform in areas pertaining to the eight fundamental Conventions. Available at: http://www.ilo.org/dyn/declaris/DECLARATIONWEB.INDEXPAGE. See also, infra, note 44.
3. 3 For a definition of “public authority,” see von Bogdandy, Dann and Goldmann, in this issue.
4. 4 The formal economy pertains to income-generating activities that take place within a formal regulatory framework. The informal economy concerns those income generating activities which take place outside the formal regulatory framework. See Reed and Yates (note 2), at 248. For the extent to which international labour standards address people in the informal economy, see Anne Trebilcock, International Labour Standards and the Informal Economy, in LES NORMES INTERNATIONALES DU TRAVAIL: UN PATRIMOINE POUR L’AVENIR. MÉLANGES EN L’HONNEUR DE NICOLAS VALTICOS 588 et seq. (ILO ed., 2004).
5. 5 International Labour Office, Women and Work: Selected ILO policy documents, 3 (1994); HÉCTOR G. BARTOLEMEI DE LA CRUZ ET AL., THE INTERNATIONAL LABOUR ORGANIZATION 4 et seq. (1996).
6. 6 CHRISTINE KAUFMANN, GLOBALISATION AND LABOUR RIGHTS: THE CONFLICT BETWEEN CORE LABOUR RIGHTS AND INTERNATIONAL ECONOMIC LAW 49 (2007); Nicolas Valticos and Geraldo Von Potobsky, International Labour Law, in I INTERNATIONAL ENCYCLOPEDIA OF LABOUR LAW AND INDUSTRIAL RELATIONS 34 et seq. (ILO ed., 1994).
7. 7 KAUFMANN (note 6), at 51.
8. 8 The agreement also specifically committed the ILO to operating consistently with the purposes of the UN Charter and, in particular, Art. 55. See Janelle Diller, UN Sanctions–The ILO Experience, in UNITED NATIONS SANCTIONS AND INTERNATIONAL LAW 197 (Vera Gowlland-Debbas ed., 2001).
9. 9 KAUFMANN (note 6), at 50.
10. 10 Valticos and Von Potobsky (note 6), at 40 et seq.
11. 11 Ten of the government seats are permanently held by States of chief industrial importance. Representatives of other member States are elected in the Conference every three years, taking into account geographical distribution. The employers and workers elect their own representatives respectively. See also Valticos and Von Potobsky (note 6), at 42 et seq.
12. 12 Valticos and Von Potobsky (note 6), at 43; see also: https://www.ilo.org (last visited 3 June 2008).
13. 13 The ILO has international legal personality and currently consists of 181 member States. See Art. 39 ILO Constitution, text available at: https://www.ilo.org (last visited 3 June 2008).
14. 14 In light of the tripartite nature of the ILO, no reservations against ILO Conventions are possible. Valticos and Von Potobsky (note 6), at 40; KAUFMANN (note 6), at 50.
15. 15 Art. 19(5)(b) ILO Constitution, text available at: https://www.ilo.org (last visited 3 June 2008).
16. 16 For example, of the 17 Conventions adopted by the Conference during the 1980s, the highest number of ratifications registered for any of these instruments were 73. Of the 14 Conventions adopted during 1990, only the Prohibition of the Worst Forms of Child Labour Convention, 1999 (No 182) attracted a high number of ratifications. Of the remaining conventions, the highest ratification rate was 20. See William R. Simpson, Standard-Setting and Supervision: A System in Difficulty, in LES NORMES INTERNATIONALES DU TRAVAIL: UN PATRIMOINE POUR L’AVENIR. MÉLANGES EN L’HONNEUR DE NICOLAS VALTICOS 52 (ILO ed., 2004).
17. 17 European Union Member States in particular tend to force standards to their level of achievement, without considering the needs of developing countries. For their part, many developing countries do not sufficiently take part in the negotiation process.
18. 18 Simpson (note 16), at 50 et seq.
19. 19 KAUFMANN (note 6), at 50.
20. 20 Of the prior 185 conventions, Nos 4, 15, 20, 21, 28, 31, 34-40, 43, 46, 48-51, 60, 61, 64-67, 86, 91 and 104 have been withdrawn. Of the 195 Recommendations, Nos. 1, 5, 11, 15, 37-39, 42, 45, 50, 51, 54, 56, 59, 63-66, 72 and 73 have been withdrawn. See KAUFMANN (note 6), at 51; Brian A. Langille, Core Labour Rights – The True Story (Reply to Alston), 16 EUROPEAN JOURNAL OF INTERNATIONAL LAW 425 (2005).
21. 21 In 1997 the International Labour Conference adopted an amendment to the ILO Constitution, which would allow for the abrogation of a convention in force but recognized as obsolete if two-thirds of delegates voted for such a measure. This amendment has been ratified by more than 80 states but still falls short of the requirements for entering into force. Available at: http://www.ilo.org.
22. 22 ILO Press Release, 98/23, 29 May 1998.
23. 23 ILO Press Release, 98/23, 29 May 1998.
24. 24 International Labour Conference, Report VII, Consideration of a possible Declaration of principles of the International Labour Organization concerning fundamental rights and its appropriate follow-up mechanism, 5 (86th Session, Geneva 1998).
25. 25 Final Copenhagen Declaration and the Program of Action, Report of the World Summit for Social Development, Copenhagen, 6-12 March 1995, UN Doc. A./CONF./166/9, para. 54(b).
26. 26 The ILO participated in the negotiations leading up to the adoption of the Programme of Action on workers’ fundamental rights at the Copenhagen summit. See International Labour Conference, Report VII, Consideration of a possible Declaration of principles of the International Labour Organization concerning fundamental rights and its appropriate follow-up mechanism, 1 (86th Session, Geneva 1998).
27. 27 International Labour Conference, Report VII, Consideration of a possible Declaration of principles of the International Labour Organization concerning fundamental rights and its appropriate follow-up mechanism, 5 (86th Session, Geneva 1998). See also Art. 2(a)-(d) of the 1998 Declaration, text available at: http://www.ilo.org (last visited 3 June 2008).
28. 28 ILO Press Release, 98/23, 29 May 1998.
29. 29 WTO Singapore Ministerial Declaration, 13 December 1996, WTO Doc. WT/MIN(96)/DEC, 18 December 1996, para. 4, available at: http://www.wto.org (last visited 3 June 2008).
30. 30 See also OECD, TRADE EMPLOYMENT AND LABOUR STANDARDS: A STUDY OF CORE WORKERS’ RIGHTS AND INTERNATIONAL TRADE (OECD Publishing, Paris 1996); OECD, INTERNATIONAL TRADE AND CORE LABOUR STANDARDS (OECD Publishing, Paris 2000).
31. 31International Labour Conference, Report VII, Consideration of a possible Declaration of principles of the International Labour Organization concerning fundamental rights and its appropriate follow-up mechanism, 4 (86th Session, Geneva 1998).
32. 32 GB 270/3/1, 270th Session, November 1997, para. 19.
33. 33 International Labour Conference, Report VII, Consideration of a possible Declaration of principles of the International Labour Organization concerning fundamental rights and its appropriate follow-up mechanism, 5 (86th Session, Geneva 1998).
34. 34 International Labour Conference, Report VII, Consideration of a possible Declaration of principles of the International Labour Organization concerning fundamental rights and its appropriate follow-up mechanism, 7 (86th Session, Geneva 1998); Memorandum of the United Nations Office of Legal Affairs, E/CN.4/L.610/, 2 April 1962.
35. 35 The Declaration of Philadelphia, which constitutes an integral part of the ILO Constitution, is the only binding Declaration ever adopted by the International Labour Conference.
36. 36 Art. 2(a)-(d) of the 1998 Declaration, text available at: http://www.ilo.org (last visited 3 June 2008).
37. 37 GB. 270/3/1, 270th Session, November 1997, para. 18.
38. 38 See Max Rood, New Developments within the ILO Supervisory System, in LABOUR LAW, HUMAN RIGHTS AND SOCIAL JUSTICE 90 (Roger Blanpain ed., 2001); KAUFMANN (note 6), at 59.
39. 39 The principle of forced labour is not explicitly mentioned in the Preamble or the Declaration of Philadelphia, but is derived from the values proclaimed in these texts (in particular dignity and equal opportunity). See Francis Maupain, Revitalization Not Retreat: The Real Potential of the 1998 ILO Declaration for the Universal Protection of Workers’ Rights, 16 EUROPEAN JOURNAL OF INTERNATIONAL LAW 444 (2005); GB.270/3/1, 270th Session, November 1997, para. 18.
40. 40 CLARENCE WILFRED JENKS, LAW, FREEDOM AND WELFARE 103 (1963); Mouloud Boumghar, La Declaration de L’organisation international du travail du 18 Juin 1998 relative auch principes et droit fondamentaux au travail: une technique juridique singuliere de relance des conventions fondamentales, 10 AFRICAN YEARBOOK OF INTERNATIONAL LAW 369-370 (2002).
41. 41 GB.270/3/1, 270th Session, November 1997, paras. 16, 19; International Labour Conference, Report VII, Consideration of a possible Declaration of principles of the International Labour Organization concerning fundamental rights and its appropriate follow-up mechanism, 430-431 (86th Session, Geneva 1998); Langille (note 20).
42. 42 KAUFMANN (note 6), at 76.
43. 43 See Philip Alston, Core Labour Standards and the Transformation of the International Labour Regime, 15 EUROPEAN JOURNAL OF INTERNATIONAL LAW 494 (2004) (claiming that the 1998 Declaration detaches the core rights themselves from the details of the relevant conventions and the work done by the supervisory bodies in applying those standards over the years).
44. 44 The ILO classified those Conventions which contain the core ILO standards as fundamental Conventions. It concerns standards which the ILO has for many years in practice acknowledged as being of a fundamental nature. They include the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) (148 ratifications); Right to Organize and Collective Bargaining Convention, 1949 (No. 98) (158 ratifications); Forced Labour Convention, 1930 (No. 29) (172 ratifications); Abolition of Forced Labour Convention, 1957 (No. 105) (167 ratifications); Minimum Age Convention, 1973 (No. 138) (150 ratifications); Worst Forms of Child Labour, 1999 (No. 182) (165 ratifications); Equal Remuneration Convention, 1951 (No. 100) (164 ratifications); Discrimination (Employment and Occupation) Convention, 1958 (No. 111) (166 ratifications). Status of ratifications available at: http://www.ilo.org (last visited 3 June 2008). For the reporting obligations entailed by these Conventions, see section B.II.1.
45. 45 See Art. 1(b) of the 1998 Declaration, text available at: http://www.ilo.org (last visited 3 June 2008). The ILO’s Governing Body has also designated another four conventions as priority instruments, thereby encouraging member states to ratify them because of their importance for the functioning of the international labour standards system. These include Labour Inspection Convention, 1947 (No. 81) (137 ratifications); Labour Inspection (Agriculture) Convention, 1969 (No. 129) (46 ratifications); Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) (122 ratifications); Employment Policy Convention, 1964 (No. 122) (97 ratifications). Status of ratifications available at: http://www.ilo.org (last visited 3 June 2008).
46. 46 The supervisory machinery which is based on reports compiled by States and the ILO respectively (see B.II below) also focuses on the standards as defined in the respective fundamental Conventions. For example, the Director General’s 2005 Global Report, A Global Alliance against Forced Labour (2007), 5 et seq., stated that the ILO’s definition of forced labour comprises two basic elements. These include work or service that is exacted under the menace of a penalty and is undertaken involuntarily. It then draws on the work of the ILO’s supervisory bodies when supervising ratified Conventions to elaborate on the contents of these elements.
47. 47 Maupain (note 39), at 455; Simpson (note 16), at 63.
48. 48 Simpson (note 16), at 63.
49. 49 For example the right to freedom of association in Art. 22 ICCPR; the prohibition of forced labour in Art. 8(3) ICCPR; the prohibition of exploitative child labour in Art.32 Convention on the Rights of the Child and Art. 10(3) ICESCR; the prohibition of discrimination in employment and occupation in Art. 2(2) and Art. 6 ICESCR.
50. 50 For the 10 principles of the Global Compact, which became operational on 26 July 2000, See: http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/index.html. The wording on labor standards were taken from the 1998 Declaration.
51. 51 Alston (note 43), at 477. See also Information Note on Corporate Social Responsibility and International Labour Standards, para. 6, ILO Doc. GB.286/WP/SDG/4(Rev.), 2003, text available at: https://ww.ilo.org (last visited 3 June 2008).
52. 52 See Arts. 66 et seq. ICESCR; Art. 40 ICCPR; and Arts. 21 et seq. ESC, texts available at: https://www.unhchr.ch (last visited 3 June 2008).
53. 53 For example, when defining forced labour, the Committee on Economic, Social and Cultural rights (the supervisory body to the ICESCR) referred to the Forced Labour Convention of 1930 (No. 29) and the Abolition of Forced Labour Convention of 1957 (No. 105), as well as Art. 8(3) ICCPR. See Committee on Economic, Social and Cultural Rights, General Comment No. 18 (Right to Work), 6 February 2006, E/C.12/GC/18, para. 9, text available at: https://www.unhchr.ch (last visited 3 June 2008).
54. 54 See KAUFMANN (note 6), at 108 et seq.
55. 55 In addition, the notion of harmful child labour is narrower than the ILO approach which is aimed at the elimination of child labour.
56. 56 WORLD BANK, ENGENDERING DEVELOPMENT THROUGH GENDER EQUALITY IN RIGHTS, RESOURCES AND VOICE, SUMMARY (World Bank, Washington 2000); KAUFMANN (note 6), at 38.
57. 57 Principle 2, available at: http://www.ifc.org/ifcext/enviro.nsf/Content/SustainabilityPolicy (last visited 3 June 2008); Sec. IV of the OECD Guidelines for Multinational Enterprises, which resembles the core ILO standards, available at: http://www.oecd.org/. See Schuler, in this issue.
58. 58 See KAUFMANN (note 6), at 108 et seq.
59. 59 Maupain (note 39), at 452.
60. 60 A fact recognized during the drafting process. See ILO, Report of the Director General, The ILO, Standard Setting and Globalization, International Labour Conference, 85th Session, 1997, 14. See also Alston (note 43), at 470; KAUFMANN (note 6), at 76.
61. 61 Alston (note 43), at 477. Information Note on Corporate Social Responsibility and International Labour Standards, Para. 6, ILO Doc. GB.286/WP/SDG/4(Rev.), 2003, available at: www.ilo.org (last visited 3 June 2008).
62. 62 ILO, Report of the Director General, The ILO, Standard Setting and Globalization, International Labour Conference, 85th Session, 1997, 11.
63. 63 Para. IV.2, Annex to 1998 ILO Declaration, available at: http://www.ilo.org (last visited 3 June 2008) (providing for a review of the entire follow up process, which has been scheduled to take place in 2008).
64. 64 An example is the creation of the Special Action Programme on Forced Labour, which grew out of the discussion of the first Global Report on that topic. It filled an operational void in the ILO’s work in support of Member States’ efforts to eliminate modern as well as traditional forms of forced labour. See: http://www.ilo.org/sapfl/lang-en/index.htm. See also International Labour Conference, Report VII, Consideration of a possible Declaration of principles of the International Labour Organization concerning fundamental rights and its appropriate follow-up mechanism, 12 (86th Session, Geneva 1998). See also Hilary Kellerson, La Déclaration de 1998 de l’OIT sur les principes et droits fondamentaux: Un défi pour l’avenir, 137 REVUE INTERNATIONAL DU TRAVAIL 245 et seq. (1998).
65. 65 ILO Governing Body, Minutes of the 274th Session, 6th Sitting (1999); See also para. II.B.3 of the Annex to the 1998 ILO Declaration, available at: https://www.ilo.org (last visited 3 June 2008).
66. 66 Momar N’Diaye, The Annual Review and the Promotion of the 1998 Declaration on Fundamental Principles and Rights at Work: Developments and Initial Impact Assessment, in LES NORMES INTERNATIONALES DU TRAVAIL: UN PATRIMOINE POUR L’AVENIR. MÉLANGES EN L’HONNEUR DE NICOLAS VALTICOS 421 (ILO ed., 2004); Simpson (note 16), at 63; Rood (note 38), at 88.
67. 67 N’Diaye (note 66), at 420; Rood (note 38), at 88.
68. 68 Rood (note 38), at 89.
69. 70 Para. A.1. and Para. B.1, Annex to 1998 ILO Declaration, available at: https://www.ilo.org (last visited 3 June 2008); see also Simpson (note 16), 63; Rood (note 38), 92; Kaufmann (note 6), 73.
70. 71 See (note 45).
71. 72 Although the reporting rate has increased significantly since 2006, the number of countries subject to the follow-up mechanism has shrunk, as the fundamental Conventions become increasingly ratified. See N’Diaye (note 66), at 419.
72. 73 Comments are mainly received from the International Confederation of Free Trade Unions, which concentrate on the principle of freedom of association and the right to collective bargaining. At the same time, the input by the workers’ and employers’ organizations increased in 2005 to more than for the whole period between 2000 and 2004. See N’Diaye (note 66), at 417, 419; Alston (note 43), at 474.
73. 74 ILO Doc. GB.289/4; N’Diaye (note 66), at 424.
74. 75 Texts available at: http://www.ilo.org (last visited 3 June 2008).
75. 76 Para. II.B.1, Annex to 1998 ILO Declaration, available at: http://at www.ilo.org (last visited 3 June 2008).
76. 77For example, since the launch of the follow-up plan, the ILO has attempted to shed light on old and new manifestations of forced labour and to address them through technical cooperation. See Maupain (note 39), at 446, 456.
77. 78 The problem of absorption of extra budgetary resources affects the ILO as a whole and is not exclusively related to funds provided under stimulus of the Declaration. The reasons (such as slow recruitment) are largely systemic. For instances where resources have been effectively applied in relation to requests for technical assistance under the follow-up mechanism, see: http://www.ilo.org/dyn/declaris/DECLARATIONWEB.PROJECTSLIST?var_language=EN. See also N’Diaye (note 66), 419.
78. 79 See Rood (note 38), at 88 et seq. and Simpson (note 16), at 66 et seq. (generally on reporting and complaints procedures).
79. 80 This committee should be distinguished from the tripartite Fact-finding and Conciliation Commission on Freedom of Association (FCCA), which was created in 1950 through agreement between the United Nations Economic and Social Council (ECOSOC) and the ILO Governing Body (enclosed under B in ILO, Law on Freedom of Association, Standards and Procedures, Geneva 1995). This body also deals with alleged violations of trade union rights in countries that have not ratified the relevant fundamental Conventions. However the FCCA mechanism can only be triggered if the countries concerned have consented to the authority of the FCCA and is not used frequently. See Simpson (note 16), at 68; Rood (note 38), at 59, 89 et seq.
80. 81 Simpson (note 16), at 68.
81. 82 See Simpson (note 16), at 68 et seq.; Alston (note 43), at 445.
82. 83 International Labour Conference, Report VII, Consideration of a possible Declaration of principles of the International Labour Organization concerning fundamental rights and its appropriate follow-up mechanism, 3 (86th Session, Geneva 1998); Maupain (note 39), at 444.
83. 84 Reed and Yates (note 2), at 246.
84. 87 KAUFMANN (note 6), at 71.
85. 88 Alston (note 43), at 458, 488. For a denial of the existence of any hierarchy in relation to ILO standards, see Maupain (note 39), at 447.
86. 89 Reed and Yates (note 2), at 252; Alston (note 43), at 475.
87. 91 ILO Doc. GB.289/4; N’Diaye (note 66), 424.
88. 92 Reed and Yates (note 2), at 250.
89. 93 Reed and Yates (note 2), at 251; Alston (note 43), at 474.