54 The tripartite principle is a major feature of the ILO’s supervisory mechanisms. That principle facilitates the active involvement of non-state actors in instigating supervisory procedures, participating in any written or oral communications, and participating in decision-making. Most supervisory mechanisms in the ILO include a tripartite decision-making aspect. Although the CE is not tripartite (being an expert technical body rather than a political one), its work is examined as part of mutual supervision with the CCAS—itself a tripartite body. A clearer exception to the tripartite principle can be seen in the Commissions of Inquiry. Being a quasi-judicial body, a Commission of Inquiry is populated by members chosen for their judicial capabilities rather than being representative of the tripartite interests of the ILO.
55 A key difference amongst ILO supervisory procedures is the formality of their creation, their rules, and their application. The more formal the procedure, the more it tends to follow prescribed or self-imposed procedural rules, and the less it tends to adapt or modify those rules over time.
56 For instance, the most formal procedure—complaints—is the most heavily prescribed by provisions in the ILO Constitution. Within the confines of those provisions, each Commission of Inquiry is capable of setting its own rules of procedure. The Commissions of Inquiry nonetheless follow a relatively familiar quasi-judicial procedure. Significantly, Commissions of Inquiry are part of what is seen as the most serious of the ILO’s supervisory mechanisms. They are initiated by one state’s complaint about another state’s conduct, and do not require state consent for the process to be undertaken. That context emphasizes the need for ensuring procedural fairness and also justifies greater proceduralization, including rules around confidentiality of proceedings, deliberation, and documents and the strict adherence to the rule of no dialogue between the Governing Body and Commissions of Inquiry during the process (Osieke, 1985, 226–27). It also arguably explains why Commissions of Inquiry have adopted (and retained without significant change over time) procedures that reflect aspects of a traditional juridical approach.
57 At first glance, the CFA and FFCC special procedure appears at odds with this analysis. Neither the CFA nor the FFCC is prescribed by constitutional provisions, or by standing orders. Despite this, they have developed seemingly static and procedural rules that reflect those of Commissions of Inquiry. This reflects the seriousness of the matters referred to those bodies, and the associated significance of findings and recommendations that each subsequently produces. Thus, despite the lack of constitutional formality in their foundation, they are formalized due to being a powerful component of the complaints procedure, which, in the context of the CFA at least, can proceed without a state’s consent.
58 Representations procedures have been described as something of a hybrid between complaints under Article 26 and the regular system of supervisions under Article 24. In this regard, representations procedures share the constitutional foundation and allegation aspect of the complaints procedure, as well as the possibility of resulting in punitive measures taken against the relevant state. They share with the supervisory system that matters will be addressed where concerns are raised by industrial associations rather than by states. The representations procedure is less heavily prescribed than that of complaints, possibly on the basis that they are the only constitutional process by which non-state actors may independently bring allegations of failure to comply with international labour law—such non-state actors being seen as integral to the successful implementation of international labour law. Nonetheless, in light of the fact that states ought to be able adequately to respond to such allegations, the representations procedures have been regulated to some degree via the Standing Orders. Those Orders do not go so far as the complaints procedure in terms of granting rights of reply. They grant a minimum of procedural fairness to the state, balanced against the need to mitigate the administrative burden on industrial associations, which are often less well-resourced by comparison—the need for simplicity, fairness, confidentiality and transparency, coherence, and objectivity. In all of these senses, the representations procedure sits at an intermediate point of the complaints procedure and the regular system of supervision.
59 At the other end of the spectrum, the regular system of supervision has undergone something of a proliferation in informally constituted bodies, expanded mandates, and informally introduced changes to procedure. Although based in specific constitutional provisions allowing for reporting and assessment, the bodies that now undertake that work, how they achieve it, and what they produce have changed considerably since 1919. The CE, for instance, is not the creation of the ILO Constitution, but of the Governing Body; similarly, the CCAS is a creature of the ILOILC. In terms of the CE’s mandate, it no longer simply reports on whether a state has ratified a convention. As a result of constitutional change, the CE now receives reports on whether recommendations and non-ratified conventions are applied. As a result of self-initiated mandate expansion, the CE also addresses how international labour law is applied, and how it is interpreted by domestic courts. To do so, it has changed its reporting structure, introducing for example, specific modes of comment on particular state activity (footnoting, and notes of satisfaction or interest), and the General Survey. And, as a result of Governing Body–initiated procedural change and justified on the basis that the CE was a less formal and therefore more appropriate mechanism, the CE now receives information directly from worker organizations that, according to the ILO Constitution, ought to be addressed via the representations procedure.
60 Perhaps with the exception of the complaints procedure, the ILO system of supervision is primarily geared towards generating opportunities for mediated solutions (Servais, 2017, paras 1069 and 1071). Even the most complex and procedurally rigorous systems remain intended to pursue constructive rather than punitive outcomes, through persuasion and dialogue. The regular system of supervision encourages the application of the tripartite principle, generally in a systemic sense and in particular in the production of Member State reports and follow-up procedures. Even the most oppositional procedures emphasize the opportunity for dialogue; direct contacts missions are available at several stages within the ILO supervisory matrix, which suspend the more serious mechanisms and encourage mediated outcomes.
61 This approach is supported by the persuasive mode of sanctions within the supervisory system. The representations procedure allows for publication of state responses, which, given that it has been used only once, in 1977, acts more as a discreet deterrent against states’ failure to cooperate than a sanction in itself. Complaints procedures may result in binding recommendations if not rejected, but such recommendations themselves tend less towards findings of fault and more towards encouraging fuller and more effective compliance (Osieke, 1985, 235). The regular system of supervision does not produce binding directives. Rather, it is concerned to draw attention to difficulties in implementation and to identify assistance that might be of benefit in achieving compliance. The combination of expert assessment through the CE and the tripartite political legitimacy of the CCAS gives considerable authority to the regular system of supervision, such that its findings are not taken lightly. The sanctions involved in the ILO supervisory systems have been called a ‘combination of diplomacy and moral urgings’ (Servais, 2017, para 1067), made more powerful by their repetitive nature, and intended to guide the ILO and the state concerned to better implement the relevant conventions or recommendations.
62 The ILO’s supervisory system is unique in that it prescribes particular roles for certain specified non-governmental actors—employer and worker organizations—both in initiating the investigation of allegations (through representations) and in many cases in contributing to the decision-making process. Nevertheless, a number of supervisory, complaints, and review procedures have emerged in other international organizations which have certain similarities to elements of that system. Although space does not allow for a comprehensive analysis, it is worth pointing out some of these other procedures that are comparable in certain respects.
63 Perhaps the most obvious comparison to be drawn is with those procedures that have developed under various international human rights bodies. Within the United Nations, for example, the Universal Periodic Review carried out by the Human Rights Council (United Nations Commission on Human Rights/United Nations Human Rights Council) and the review of regular reports submitted by states parties to the treaty bodies (Human Rights, Treaty Bodies), such as the Human Rights Committee and the Committee on the Elimination of Discrimination Against Women (CEDAW), both bear considerable similarities to the ILO’s regular system of supervision. Some of the treaty bodies are also empowered to receive complaints from individuals and states in a manner not dissimilar to the ILO’s representations and complaints procedures. The Human Rights Council’s special procedures (including working groups, special rapporteurs, and independent experts) are comparable in their fact-finding functions to the Commissions of Inquiry established under the ILO’s complaints procedure, as well as its special procedures for freedom of association.
64 Similarities, as well as significant differences, can also be seen in regional human rights arrangements. The most well-established among these is the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘ECHR’) system. This provides for both individual petitions (comparable to the ILO’s representations procedure) and interstate complaints (which are relatively rarely used, like the ILO’s complaints procedure)—though of course the ECHR system has much more formalized procedures (as well as a much more developed jurisprudence) than the ILO, centred on the European Court of Human Rights (ECtHR). To take another example, the Inter-American Commission on Human Rights (IACommHR) comprises independent experts who conduct fact-finding investigations similar to ILO Commissions of Inquiry, albeit only based on individual petitions. Other points of difference include the fact that the IACommHR is a standing body which carries out many more investigations, notably including on-site visits, and has a broader mandate including country and thematic reports.
65 Some comparisons can also be drawn with procedures and mechanisms in international economic organizations. The Trade Policy Review Mechanism (‘TPRM’) of the World Trade Organization (WTO) requires members to report on their trade policies and practices at regular intervals. Unlike the ILO’s regular system of supervision, the length of those intervals depends on each member’s share of world trade in goods and services, rather than the nature of the obligations in question. Lastly, it is worth noting that the World Bank Inspection Panel (‘WBIP’) (Inspection Panel: World Bank) provides a kind of complaints mechanism by which non-state actors may request an inspection of a World Bank project, which (if accepted) involves a fact-finding investigation by independent experts. There are important differences between the WBIP and the ILO’s special procedures. First, requests must be based on a claim that the World Bank has failed to follow its own operational policies and procedures with respect to the relevant project, rather than a state’s failure to secure the effective observance of any Convention to which it is a party. Second, requests may be made by any group of individuals in a borrowing country who believe their rights or interests have been or are likely to be directly affected by a World Bank–supported project, rather than by a member of an industrial organization or a state. However, the World Bank’s policies and procedures incorporate and have been interpreted in light of international legal standards (NYU Law School Clinic, 2016); and it is arguable that the WBIP procedure often serves as a ‘boomerang’ by which project-affected individuals and non-governmental organizations bring claims against the Bank with the ultimate aim of influencing the conduct of the borrowing country (Wade, 2009, 29). The WBIP has supplied a template for similar mechanisms in other multilateral development banks.