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Max Planck Encyclopedia of International Procedural Law [MPEiPro]

Supervisory and Review Procedures: International Labour Organization (ILO)

Monique van Alphen Fyfe, Guy Fiti Sinclair

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 28 March 2023

Freedom from slavery or forced labour — Freedom of association — International labour law — Compliance monitoring in international organizations

Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.

A.  Introduction

The International Labour Organization (ILO) was established in 1919, at the end of the First World War and at a time of significant industrial upheaval. In the context of the emerging importance of workers’ movements, the ILO had at its core a unique feature—a tripartite structure of state, employer, and worker delegates who actively participate in all features of the ILO’s work. This structure is often argued to be the source of the ILO’s continued success and the source of its legitimacy (International Organizations or Institutions, Democratic Legitimacy), and is a key feature of most of the ILO’s supervisory procedures.

The ILO’s supervisory procedures comprise a diverse and interlocking set of mechanisms. They include two special procedures (representations and complaints, through which industrial organizations and other states can complain of serious alleged breaches of labour conventions), and the regular system of supervision (through which states report on their own compliance). Procedural rules for each have developed throughout the history of the ILO. New bodies for examining compliance have been established for all three supervisory procedures, resulting in for example new special procedures for an area crucial to the ILO’s work: freedom of association and collective bargaining. The combination of new bodies and changes to the Constitution of the International Labour Organization (‘ILO Constitution’) has also resulted in an extensive expansion of the work of the regular system of supervision, and an increasing practice of the special procedures feeding into that work through a system of follow-up procedures.

A key feature of these supervisory procedures is their complementarity, both within the supervisory matrix and also to other aspects of the ILO’s functioning. Within the supervisory matrix, the multiplicity of mechanisms provides for different stakeholders to initiate a different supervisory procedure. Each procedure has a greater or lesser degree of tripartism and procedural complexity, reflecting the nature of the stakeholder and the seriousness of the issue. Within the ILO, for example, the regular system of supervision can identify broad patterns and specific areas of concern, which can in turn highlight those issues to the International Labour Conference (‘ILOILC’) and the ILO Office (‘the Office’) to mobilize diplomatic dialogue and/or technical assistance to address them.

The accumulation of outputs is often said to be what makes the supervisory procedures successful. The different mechanisms provide for repeated public scrutiny of state compliance, often via tripartite examining bodies with each procedure. Most of the procedures are geared towards generating opportunities for mediated solutions, rather than imposing sanctions. Persuasion and dialogue, therefore, are the supervisory procedures’ most effective tools. But this efficacy is premised on the legitimacy generated from the consensus reached through tripartite discussion.

Consensus has been achieved thanks to the supervisory procedures through much of the ILO’s history. However, more recently, serious disagreement has emerged between tripartite delegates on the critical right to strike, stemming from changes in the geo-political environment, but also from the results of supervisory procedure development (discussed below in section D). While the immediate crisis has abated, questions remain for the procedures themselves. The system’s efficacy is built on the weight of consensus between tripartite delegates. Where consensus is undermined, so too are the procedures and, perhaps, the suitability of the principle of tripartism 100 years on from the formation of the ILO.

B.  Development of the International Labour Organization Supervisory Procedures

ILO supervisory procedures initially comprised three mechanisms contained in the Treaty of Versailles (Versailles Peace Treaty (1919)), Part XIII of which became the ILO Constitution. The first two were special procedures—representations and complaints—through which industrial associations could make representations and Member States could make complaints to the ILO alleging state failure to meet obligations. The third was the regular system of supervision, through which states were required to report to the ILO on the ratification status of various conventions.

Formal and informal changes since the initial framing in the Treaty of Versailles have led to developments in both the number of bodies involved in ILO supervisory mechanisms and the scope of those bodies’ remit. Formal change—in particular through the review and amendment of the ILO Constitution in 1946—has widened the scope of the regular supervisory system in a way that has had far-reaching effects. Informal change—for instance, through establishing sub-committees of the Governing Body—has had similarly profound consequences for ILO supervisory procedures.

What follows is a brief descriptive account of each of the original supervisory procedures, the changes to those procedures, and the introduction of additional procedures throughout the life of the ILO.

1.  Special Procedures: Representations and Complaints

Described as the two ‘constitutional procedures’ (Maupain, 1999, 273) for settlement of labour disputes, the representation and complaint procedures have existed since the ILO’s creation in 1919.

(a)  Representations

10  The representations procedure stems from Articles 24 and 25 ILO Constitution, which are unchanged from the original Articles 408 and 409 Treaty of Versailles (Representation Procedure: International Labour Organization (ILO)). The representations procedure allows industrial associations of employers or workers to make allegations, via representations to the ILO Office, that a Member State has ‘failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is party’ (Art 24 ILO Constitution). Article 24 allows the Governing Body at its discretion to communicate the representation to the relevant state, and invite the state to make a statement in response. If no statement in response has been received within a reasonable time or if the statement received is unsatisfactory, the Governing Body has the right to publish the representation and any statement in reply under Article 25. The process is intended to encourage states to enter into dialogue with industrial associations and to avoid reputational damage associated with publication.

11  The broad discretion granted to the Governing Body in the constitutional provisions has been regulated over time by detailed Standing Orders (Standing Orders concerning the procedure for the examination of representations [‘Standing Orders’]). These were first adopted in 1932, and have been modified three times since then, most recently in 2004. The Standing Orders safeguard the consistent application of the procedure across all representations submitted in a number of ways. Among them is that the Director General must acknowledge receipt of representations and inform the relevant Member State. Another is ‘receivability’ (Art 2 Standing Orders), which measures the representation against certain criteria, including that the representation is from an association of an industrial character, and that it provides sufficient details of the alleged failure to observe convention obligations. Although the ILO Convention requires representations to relate to a Member State, the Standing Orders allow the Governing Body to receive representations regarding a state that has left the ILO if it remains a party to the relevant convention (Art 11 Standing Orders).

12  If deemed receivable as per the above criteria, the Standing Orders then set out the procedures for subsequent referrals for assessment of the substance of the representation (Art 3 Standing Orders). Originally, the only option was to refer the matter for assessment by a specially constituted tripartite committee, comprising equal numbers of government, employer, and employee representatives, which investigates and reports on the alleged failure. The tripartite committee holds meetings in private, and its deliberations are confidential. The Standing Orders confer on the tripartite committee various powers to communicate the representation to the state, invite a statement in reply, request further information from the industrial association and/or the state, and invite the organization to make an oral statement to the committee (Art 4 Standing Orders). A state from which the committee has requested a statement may request that the committee allow an oral presentation from a state representative (Art 5 Standing Orders).

13  The tripartite committee’s resulting report includes conclusions and recommendations for the Governing Body to consider. The latter deliberates in private, although the state concerned may participate (but not vote) through a representative (Art 7 Standing Orders). The Governing Body can make findings, and publish the recommendations and any statements in response, which would bring the representations procedure to a close (Art 8 Standing Orders). While the Governing Body regularly publishes the findings of the tripartite committee on the ILO website and in the Official Bulletin, it has published the representation and state response—as a means of sanction envisaged by Article 25—only once (Report of the Committee set up to Consider the Representation Presented by the International Confederation of Free Trade Unions under Article 24 of the ILO Constitution Alleging Non-Observance of the Discrimination (Employment and Occupation) Convention, 1958 (No 111) by Czechoslovakia, 1978). The Governing Body ceased regularly publishing state responses in 1991. Its preferred approach has been to resolve the matter through dialogue.

14  Although the tripartite committee referral remains the most common, a more serious option is available. Article 26 (4) ILO Constitution allows the Governing Body to refer the representation to a specially constituted Commission of Inquiry as if it were a complaint under the complaints procedure (Art 10 Standing Orders; Art 26 (4) ILO Constitution).

15  Two additional referral options have since been added as other supervisory procedures developed. First, since 1951, the Governing Body has been able to choose to refer representations to the Committee on Freedom of Association (Committee on Freedom of Association (CFA): International Labour Organization (ILO)) where the alleged failures relate to freedom of association or bargaining rights. Secondly, if the subject-matter of a representation is similar to that already raised in another representation, the Governing Body may choose to defer assessment until the matter has been addressed by the follow-up procedures of the regular system of supervision, discussed below. The development of these two mechanisms is addressed in more detail below.

16  Only 14 instances of the representations procedure were recorded in the ILO’s first 60 years. An increasing rate of representations, particularly since 1980, saw the total reach 189 in 2019 (ILO Representations (Art 24)).

(b)  Complaints

17  The second of the foundational ‘constitutional procedures’ is the complaints procedure stemming from Articles 26–34 ILO Constitution (largely unchanged from Arts 411–20 Treaty of Versailles) (Complaint Procedure: International Labour Organization (ILO)). Those Articles establish a more complex, adversarial, and somewhat more traditional dispute resolution process. The complaints procedure is commenced by a Member State filing a complaint against another member, or by the Governing Body acting on its own initiative. Article 26 allows the Governing Body, at its discretion, to undertake the steps referred to in Article 24 regarding representations (that is, refer the complaint to the state concerned and seek a response), and then to refer the complaint to a specially constituted three-person, quasi-judicial Commission of Inquiry. Similar to the representations procedure, since the CFA was established in 1951, the Governing Body has had the option of referring a complaint to the CFA instead of a Commission of Inquiry where the allegations relate to freedom of association or bargaining rights.

18  The ILO describes the Commission of Inquiry as its ‘highest-level investigative procedure’. It is used in circumstances of allegations that a Member State committed serious violations that it refused to address. The seriousness of the complaints procedure is reflected in the number of Articles devoted to it in the Constitution, the fact that it does not require state consent or cooperation, and the infrequency with which it has been put to use: rarely in the first 40 years of the ILO, and only 13 times since (ILO Complaints/Commissions of Inquiry (Art 26)).

19  The procedure of a Commission of Inquiry is controlled in various ways. The first sitting of a Commission of Inquiry was in 1961 and concerned the application by Portugal of the Abolition of Forced Labour Convention, 1957, in its African territories. That Commission of Inquiry began with a discussion of the procedure it would follow (Report of the Commission of Inquiry ILO Official Bulletin (1962) Supp 2 vol XLV Series A No 2). Although each Commission of Inquiry is free to set its own rules, a relatively static set of procedural rules has remained in place since then. Those procedural rules require written memorials from parties and relevant industrial associations, and allow for examination of witnesses and fact-finding missions or site visits.

20  Reporting obligations (Reporting Systems) and subsequent steps were prescribed at the outset in the ILO’s Constitution (Arts 28 and 29). It provided that the Commission had to report to the Governing Body its findings and recommendations, which the Governing Body then communicated to the state concerned for its acceptance or otherwise. Although the state was provided with the ability to challenge the report by referring the matter to the Permanent Court of International Justice (PCIJ) and later the International Court of Justice (ICJ), the Governing Body was unable to do so. (Originally, a state’s right to refer to the PCIJ extended to the failure to consider in a state legislature an ILO-adopted draft recommendation or convention. As part of the constitutional review in 1946, this was limited to alleged failure in respect of the implementation of conventions once ratified (Art 416 Treaty of Versailles).) Finally, should a state consider it has since complied with the Commission’s recommendations, it could inform the Governing Body and request another Commission of Inquiry to verify its compliance (Art 34 ILO Constitution).

21  In the case of a state failing to comply with decisions of the Commission of Inquiry or the PCIJ, the Constitution originally provided for the Commission of Inquiry to recommend steps of an economic character that other Member States could appropriately take against a defaulting state (Arts 418 and 419 Treaty of Versailles). In 1946, those provisions were removed and replaced with Article 33, which provides that the Governing Body can recommend to the ILOILC any action ‘as it may deem wise and expedient to ensure compliance’ (Art 33 ILO Constitution). This step—described as the most ‘far reaching’ (Wisskirchen, 2005, 269) of the ILO supervisory enforcement mechanisms (see also International Organizations or Institutions, Supervision and Sanctions)—has been invoked only once in ILO history. In 2000, the Governing Body took the unprecedented step of recommending a series of measures against Myanmar for its persistent failure to end forced labour (Forced Labour/Slave Labour). Those measures included heightened scrutiny by various branches of the ILO, inviting Member States to review their engagement with Myanmar, inviting the Economic and Social Council (United Nations, Economic and Social Council (ECOSOC)) to place the matter on its agenda, and encouraging other international organizations to cease their activities if they abetted forced labour (Resolution concerning the measures recommended by the Governing Body under Article 33 of the ILO Constitution on the subject of Myanmar (14 June 2000)).

2.  Regular System of Supervision

22  The regular system of supervision refers to the process of periodic reporting by Member States on measures taken to implement provisions of conventions and recommendations, the examination of those reports by ILO bodies, and the subsequent issuing of recommendations in relation to them. The system stems from Article 408 Treaty of Versailles, which is replicated in Article 22 ILO Constitution. Since the 1946 review of the ILO Constitution, the regular system of supervision has been governed by Articles 19, 22, and 23. Article 19 creates reporting obligations in respect of recommendations and unratified conventions. Article 22 does so for ratified conventions. Finally, Article 23 requires the Director-General of the ILO to provide a summary of the reports at the next plenary meeting of the ILOILC.

23  Member State reports under Article 22 were originally considered by the ILOILC directly during its annual plenary meeting. However, it soon became clear that, due to the increasing numbers of Member States, conventions, and recommendations, the ILOILC could not fulfil that function whilst also discharging its other functions. 1926 saw the creation of a mutual supervision system, with the ILOILC establishing the tripartite Conference Committee on the Application of Standards (‘CCAS’) and requesting the Governing Body make appointments to what became known as the Committee of Experts on the Application of Conventions and Recommendations (‘CE’) (Committee of Experts on the Application of Conventions and Recommendations: International Labour Organization (ILO)) (ILOILC Record of Proceedings, 8th Session, 1926, Appendix VII). These two Committees remain the standing bodies that receive, process, and assess Member State reports.

24  The two bodies work sequentially. The CE is an independent technical body of 20 experts that receives and examines Member State reports, prepares assessments of state compliance, and produces a report that proposes recommendations for the CCAS. The CCAS then considers the CE’s report and prepares its own assessments and recommendations in a report to the ILOILC. The working practices of both bodies have changed over time, as has the reporting cycle, as described below.

(a)  Developments with respect to the Reporting Cycle

25  Article 22 established the obligation of each Member State to report annually on the implementation of conventions to which it is a party. Formally, that obligation remains unchanged, but a steady increase in the volume of reports has prompted a more nuanced approach in practice (for example, reports went from 180 in 1926 to 4500 by 1955: Report of the CE on the Application of Conventions and Recommendations (Articles 19, 22 and 35 of the Constitution), Report III (Part IV), ILOILC 40th Session, 1957, 2 para 9). Reporting obligations were gradually relaxed at the Governing Body’s directive, setting obligations at increasingly longer intervals and eventually also prioritizing reporting on specified conventions. The reporting cycle was amended initially to two years in the 1950s. In 1976, the distinction between fundamental and other conventions was introduced (GB.304/LILS/4, 2009), and in 1985, obsolete conventions began to be excluded, such as a suite of conventions on specific indigenous worker rights, the subject matter of which was outdated and was more appropriately addressed in a comprehensive convention (GB.229/10/19, 1985). In 1993, the Governing Body clarified the priority conventions for which more frequent reporting was required, and distinguished between detailed reporting requirements for those priority conventions and simplified requirements for others (GB.258/LILS/6/1, 1993). In 2001, it began the process of grouping conventions for ease of reporting (GB.282/8/2 and GB.283/10/2, 2001). In 2009, the reporting cycle was amended to three years for priority conventions.

27  On all other conventions (apart from those no longer subject to regular supervision), Member States must now report every six years. However, reports may be requested more frequently at the request of the Governing Body (following a complaint procedure), or at the request of ILO bodies under the regular system of supervision.

28  Although, as noted above, the form of state reports has been modified to provide for reports of greater or lesser complexity commensurate to the priority status of the convention at issue, the accepted process for producing such reports is largely unchanged. When writing reports on ratified conventions, a Member State must consult employer and worker organizations (Art 5 (1) (d) Convention 1976 No 144; Para 5 (e) Recommendation 1976 No 152). When complete, all reports must be communicated to both employers’ and workers’ organizations in the relevant state for comment (Art 23 (2) ILO Constitution). These organizations provide their observations on the report, either within the report itself or directly to the ILO.

(b)  Developments with respect to the Committee of Experts on the Application of Conventions and Recommendations

29  The CE is governed by its terms of reference but has no other written rules of procedure or standing orders. There is therefore broad scope to define and modify its procedure. Many such modifications have taken place since its inception.

30  Subtle internally driven procedures have increased the scope and effectiveness of the CE as an examining body. For instance, the CE aims to achieve decisions by consensus. To achieve this, each member is given responsibility for a certain issue and makes draft findings with the assistance of specialists at the ILO office, which are then approved by the CE as a whole. Deference to expertise means this often results in consensus, but the CE can and does take decisions by majority—sometimes with minority decisions recorded in its report.

31  The substance and detail of CE reports have expanded significantly since 1926. Some of these expansions are again internally driven. For instance, at its inception, the CE sought information solely on whether states had enacted legislation to give effect to conventions. By the 1930s, it had widened its scope to also include information to assess the effective implementation of conventions and domestic court interpretations of legal provisions affecting the application of those conventions (ILOILC, 15th Session, 1931, Report of the Director, 6). That scope remains in place today.

32  The CE practice of responding to Member States with two types of comment—observations and direct requests—has also had an impact on its reports. Direct requests are used in circumstances of more technical issues or when the CE requires further information. Direct requests are appeals made directly to the government under review. The substance of direct requests is not published, but the fact that a direct request has been made is listed in the CE’s report. Observations address fundamental issues in a Member State’s application of a particular convention, or circumstances of sustained failure to fulfil reporting obligations. The substance of observations is included in the CE’s reports, as a means of highlighting significant failures to the CCAS.

33  In addition, the CE has developed a practice of ‘footnoting’ remarks on Member States from which it determines whether full information or urgent out-of-cycle reports are required (International Labour Office, 2011, 20). This is another means of highlighting significant failures—one that is noted with gravity by the CCAS and the ILOILC. In deciding whether to footnote particular remarks, the CE considers the seriousness and persistence of the problem as well as its urgency, and the quality and scope (or absence) of the government’s response (International Labour Office, 2011, 20).

34  In 1964, the CE also began to develop a practice of noting cases of ‘satisfaction’ (Osieke, 1985, 174). These are cases where a state has responded to comments in a previous report by amending or implementing legislation, or by changing policy or practice, to the satisfaction of the CE. More recently, the CE has also drawn attention to cases of ‘interest’ where a state has taken some steps towards addressing previous comments, and to cases of ‘good practice’ where a state has consistently met obligations or shown a unique or notable approach to compliance, to showcase them as models. The combined practices of footnoting and noting cases of satisfaction or interest enable the CCAS to identify more readily the range of compliance in responses and capabilities demonstrated by Member States.

35  A substantial change in procedure—and the content of the CE’s reports—stems from amendments to Article 19 following the 1946 review of the ILO Constitution. The amendments extended reporting requirements on Member States beyond ratified conventions to include both recommendations and non-ratified conventions. The amended Article 19 (5) (e) provides that, where a Member State has not ratified a convention adopted by the ILOILC, the state shall nonetheless provide reports. In those circumstances, a state is required to report at ‘appropriate intervals as requested’ by the Governing Body on the ‘position of its law and practice … showing the extent to which effect has been given, or is proposed to be given, to any of the provisions of the Convention’, or otherwise stating the difficulties which prevent ratification. Article 19 (6) (d) provides an equivalent obligation for recommendations.

36  The Article 19 extension had a corresponding effect on the CE’s terms of reference, which expanded from considering ways and means of ‘making the best and fullest use’ of Article 22 reports to examining reports produced pursuant to both Articles 22 and 19, the latter at the ‘appropriate intervals’ at which they are required. The CE considered the first Article 19 reports in 1949, and reported on them in 1950, grouping them into themed categories of international labour law (Summary of Reports on Unratified Conventions and on Recommendations (Article 19 of the Constitution), Report III (Part II), ILOILC 33rd Session, 1950; Labour Law, International), with a particular emphasis on obstacles to ratification and possible changes to recommendations to make them fit for purpose (Summary of Reports on Unratified Conventions and on Recommendations (Article 19 of the Constitution), Report III (Part II), ILOILC 33rd Session, 1950, Introduction).

37  The CE’s early approach to Article 19 became the basis for what is known as the General Survey, a part of the CE’s annual report focussed on a particular area of labour law specified each year by the Governing Body. The General Survey had its genesis in general comments by the CE on the status of particular areas of international labour law. It soon became a separate and significant element of its report, drawing attention to the global status and trends on particular topics. This approach allows the CE to request reports so as to track progress across all Member States, analyse obstacles to implementation or ratification of certain recommendations or conventions, and identify ways in which such obstacles may be overcome. The first of the CE’s reports with a part expressly entitled ‘General Survey’ was issued in 1967 (Report of the CE on the Application of Conventions and Recommendations (Articles 19, 22 and 35 of the Constitution), Report III (Part IV), Part 3 (‘Hours of Work’), ILOILC 51st Session, 1967, 171).

38  Another procedural modification concerns the relationship between the regular system of supervision and the representations procedure. At the close of the Cold War (1947–91), the ILO anticipated an increase in the number of representations from workers’ associations in states that were previously part of the Soviet bloc. On the basis of Article 23 (2), which allows for employer and worker organizations to comment on Member State reports, the procedural rules concerning representations were relaxed. This change had the effect that the Governing Body could direct the concerns of workers’ associations to the CE instead of receiving them as formal representations, thus reducing the pressure on the ILO to appoint a tripartite committee to examine representations and giving workers’ associations access to a system of supervision that was less adversarial and administratively less onerous.

39  As a result of these developments, the CE’s annual report has increased in scope and volume. It now comprises:

  • •  the General Report, which provides an overview of the CE’s work, summarizes compliance by Member States, draws attention to matters of concern via footnotes, and makes notes of cases of satisfaction and interest;

  • •  the substance of observations made in the assessment of Member States’ application of conventions and recommendations;

  • •  a list of direct requests and subsequent correspondence; and

  • •  the General Survey.

40  The CE adopts its report in December each year. The findings and legal interpretations of conventions in its report are non-binding, but have persuasive power (Wisskirchen, 2005, 273). The CE report is submitted to the Governing Body at its March session and advanced for consideration in the ILOILC in June, where it is reviewed by the CCAS.

(c)  Developments with respect to the Conference Committee on the Application of Standards

41  The CCAS is a standing committee of the ILOILC. It is made up of government, employer, and worker delegates, and provides them the opportunity to jointly assess whether states are discharging their international labour law obligations and make recommendations to Member States where specific steps are required. Unlike the CE, it is made up of hundreds of delegates, and its authority is sourced primarily in its universality and political legitimacy rather than its expert or technical knowledge. It draws on the technical input from the CE’s reports to identify areas of concern, and encourages direct dialogue on those concerns between states and workers’ and employers’ organizations. The final report of the CCAS is adopted by the ILOILC (Art 23 ILO Constitution; Art 7 ILOILC Standing Orders).

42  Like the CE, the CCAS has no permanent fixed rules of procedure. At the outset, the primary mandate of the CCAS was to receive and consider the CE’s report. It considers the report in three stages: a general discussion on the report; a discussion of the General Survey; and an examination of cases the CCAS selects with respect to concerns in the application of ratified conventions. In considering the CE’s report, the CCAS must act independently; as such, it is open to the CCAS to arrive at different conclusions from that of the CE, affording it an ability to respond dynamically to changing circumstances.

43  This ability can be seen in the process for selecting particular observations for discussion. Beginning in 1957, the CCAS started to distinguish between those states that failed to comply with formalities (such as supplying reports) and those that failed to comply with substantive and fundamental obligations in a significant or longstanding manner—the latter being more serious and more likely to result in discussion (ILOILC Record of Proceedings, 40th Session, 1957, Appendix VI, para 30). This has developed into the CCAS’s current practice, which is to select particular observations made by the CE for discussion, and invite the relevant Member State to provide information on the matters raised. The decision of which observations to select is not determined by a fixed set of criteria, but the CCAS has indicated that it makes use of the following considerations (International Labour Office, 2011, 20–21):

  • •  comments of the CE, in particular the existence of a footnote;

  • •  quality and scope, or absence, of government response;

  • •  seriousness and persistence of shortcomings;

  • •  urgency;

  • •  comments from employers’ and workers’ organizations;

  • •  the nature of a specific situation;

  • •  previous conclusions of the CCAS, in particular the existence of a special paragraph; and

  • •  likelihood of tangible impact.

44  The CCAS appears to target particularly the fundamental conventions, to address a range of categories of conventions, and to take into account geographical spread. The CCAS makes observations about shortcomings and deterioration in process and practice and invites the states concerned to provide information by attending a sitting of the CCAS. Its recommendations often take the form of suggesting that a Member State seek advice or technical assistance from the ILO, such as allowing a direct contacts mission (discussed below). It has, at times, recommended the revision of a convention (ILOILC Record of Proceedings, 82nd Session, 1995, 24 and 68). The CCAS reserves special paragraphs in its report for observations of significant concern, which it uses to draw the particular attention of the international community to those breaches.

45  The regular system of supervision has more recently incorporated follow-up procedures as an integral part of the system. These are used in circumstances of sustained failure to report and of sustained failure to comply with convention obligations. The CCAS identifies cases of serious failure, for which ongoing attention is required. Personalized letters are then drafted by the Office that outline concerns and any technical assistance already provided, request information from states regarding the obstacles preventing their compliance, and invite the state’s views on what assistance might facilitate compliance. The follow-up procedure is complementary to and facilitates mobilizing other aspects of the ILO’s work. For example, it assists in creating a feedback loop for the recommendations of other supervisory bodies and the CE’s decision to draw attention to cases where further assistance would be useful, and in facilitating the CE’s ongoing task of assessing a state’s steps towards compliance.

46  The regular system of supervision can mobilize other aspects of the ILO’s functions in a broader sense. By identifying ongoing and systemic issues, the system can identify states in need of more intensive ILO support, such as technical assistance and direct contacts missions. A form of direct contacts missions began in 1967 to develop dialogue between states and their employer and employee representatives. These missions are usually used in important cases concerning the ratification or the implementation of conventions and recommendations, cases before the CFA, or cases for which an ad hoc committee has been formed. They are used only at the request or assent of the state concerned. The process suspends the regular system of supervision, and allows direct contact, usually by representatives of the ILO Director-General visiting the state concerned to enter dialogue and negotiation, to determine facts and the assistance needed to address rapidly the concerns raised.

3.  Special Procedure for Freedom of Association

47  The special procedure for freedom of association is the most recent formal addition to the ILO supervisory mechanisms. The Committee on Freedom of Association (‘CFA’) and the Fact-Finding and Conciliation Commission on Freedom of Association (‘FFCC’) were established between 1950 and 1951 following negotiations with ECOSOC. Their foundation drew on the commitment to freedom of association (Association, Freedom of, International Protection) in the ILO Constitution preamble, and two specific conventions adopted by the ILO in the late 1940s: the Freedom of Association and Protection of the Right to Organise 1948 (ILO Convention 87) and the Right to Organise and Collective Bargaining 1949 (ILO Convention 98). Both follow the ILO’s unique tripartite structure.

48  The CFA and the FFCC each constitute nine-member bodies that examine alleged infringements of the principles of freedom of association and the effective recognition of the right to collective bargaining. The CFA, a tripartite subcommittee of the Governing Body, was established to examine observations and representations referred to it by other ILO supervisory bodies. Its formal role is that of a pre-assessment mechanism to determine whether the matter should be referred to the FFCC. The FFCC is rarely used, however, for a variety of reasons. Most significantly, in practice, the procedure followed by the CFA has given the CFA sufficient information to undertake a large part of the relevant assessment itself, thus removing the need for referral to the FFCC.

49  Although no fixed rules of procedure were imposed on it, in practice the CFA developed similar procedures to those adopted by the Governing Body with respect to representations (International Labour Office, 2018, Annex 1). It requests responses from states, can issue direct requests if a state does not respond, can undertake direct contacts missions (with the relevant state’s consent), and, on rare occasions, conducts oral hearings. It issues conclusions and recommendations to the Governing Body, which may include:

  • •  a statement that no further action is required;

  • •  interim conclusions and recommendations;

  • •  requests to be kept informed of progress;

  • •  definitive conclusions and recommendations (which can include referring the matter to the CE for monitoring where the conventions are ratified, and referring the matter to the FFCC).

50  Through this process, the CFA examines a state’s laws, provides guidelines, and offers technical assistance to bring the laws into compliance with the relevant principles and obligations. The CFA may examine allegations against a state irrespective of whether the state has ratified the relevant conventions. Given that feature of the CFA’s mandate, states that have not ratified the relevant conventions often cooperate with the CFA’s processes in order to defend themselves against allegations and prevent adverse findings. The CFA is one of the most frequently used procedures, with the number of cases addressed now exceeding 3,400 (van der Heijden, 2018, 210). It is also one of the most successful, with over 75 per cent of its recommendations implemented by states (van der Heijden, 2018, 210).

51  The procedure in the CFA is largely undertaken via written communications. However, in 1971 the Governing Body authorized the CFA to recommend direct contacts missions. These have since become a frequently used feature of the CFA’s procedure, despite the need for state consent.

52  The FFCC, as mentioned, has had much less use. Its membership is appointed by the Governing Body, but specific panels—usually comprising three members—are constituted as required to hear individual cases. Like Commissions of Inquiry, each panel of the FFCC determines its own procedure, but these have generally followed a pattern of examining documents, hearing from the parties and witnesses, and conducting fact-finding missions and site visits to meet state, employer, and worker representatives and anyone considered able to furnish the FFCC with relevant information.

53  The first case referred to the FFCC was in 1964, concerning public sector trade unions in Japan. In the years since, it has heard only a handful of cases, including allegations against Greece (1965–1966), Lesotho (1973–1975), Chile (1974–1975), the United States (1978–1981), and South Africa (1988–1992). In the case of Chile, the FFCC visited the state, made extensive recommendations, and entrusted the matter to the CFA for monitoring. The case of South Africa, which was not an ILO Member State at the time, concerned breaches of trade union rights related to apartheid. When apartheid began to be dismantled in the early 1990s, South Africa agreed to extend the FFCC’s mandate to include broader aspects of labour relations. The FFCC again made extensive findings, which were approved by ECOSOC and included the provision of ILO technical assistance to reform domestic labour legislation. South Africa rejoined the ILO in 1994.

C.  Comparative Analysis

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.

D.  Assessment of Performance and Impact

66  An assessment of the performance of the ILO supervisory matrix produces mixed conclusions. The effectiveness of any international supervisory mechanism is necessarily dependent on many factors, including the seriousness of the issue, the resources and economic situation of the state concerned, the relative power between the state, employers, and workers, and, of course, politics. International lawyers nonetheless generally hold the ILO’s supervisory procedures in esteem for being efficient as well as influential in terms of achieving the ILO’s aims. For a long time, despite using the tools of dialogue rather than sanction, the ILO was seen as largely successful in encouraging not only greater compliance with international labour standards but also greater awareness of social justice and compliance with classic human rights such as the rights to freedom of expression and association (van der Heijden, 2018, 203–4). More recently, confrontation between the ILO’s internal organizational structure and a changing geopolitical environment has highlighted latent difficulties in the supervisory procedures and the broader principle of tripartism. Despite an alleviation of the immediate crisis, these difficulties have implications for the continuing persuasive power of the ILO supervisory procedures, and have yet to be fully addressed.

1.  Complementarity

67  The strength of the ILO supervisory matrix lies in the complementarity and cumulative impact of outputs of the various mechanisms (Wisskirchen, 2005, 270). Many commentators suggest its effectiveness stems from ‘repeated public scrutiny’ and the ‘mobilization of shame’ (Maupain, 1999, 281). Procedural rules that allow for the cross-pollination of information between several supervisory mechanisms and trigger follow-up procedures add to the cumulative impact of the whole.

68  The concept of complementarity is key to discharging the primary purpose of the supervisory mechanisms—facilitating the implementation of international labour law. The range of procedural rules governing each mechanism means that the system as a whole is able to absorb information from a variety of sources, including reports from states and comment from non-state actors in the regular system of supervision, petitions from non-state actors in representations, from other states in complaints, and from everything in the special procedure of the CFA. The CE, for instance, is able to identify obstacles and aspects of conventions that are consistently problematic for certain states. It does this in particular through the General Survey, a system it developed itself. The regular system of supervision can then channel that information to other organs of the ILO to mobilize them with the aim of achieving broader implementation and compliance by states.

69  The findings of a particular supervisory mechanism might appear to be more powerful the fewer cases it hears. The findings of a Commission of Inquiry in the complaints process, for instance, are certainly taken seriously. The complaints process has been described as ‘cumbersome’ (Wisskirchen, 2005, 271) and is infrequently used, but nonetheless appears to be a respected process. Despite the often politically charged issues and significant potential for disagreement, recommendations of Commissions of Inquiry have not generally been challenged by the states concerned. The one exception was when Germany took advantage of one member’s dissent to reject the Commission’s recommendations. Germany did not, however, refer the matter to the ICJ. The Governing Body’s ability to recommend to the ILOILC any action to ensure compliance has also only been used once, again demonstrating that states take the complaints process seriously and work towards compliance when it is used.

70  The CFA, on the other hand, is used much more frequently. This does not appear to have diminished its persuasive effect. It has seen significant success, for example in influencing states to release detained trade unionists and in the development of domestic law relating to freedom of association and collective bargaining (Potobsky, 1998). The mere fact of a complaint made to the ILO on freedom of association matters has, at times, been effective in mitigating or halting measures that are allegedly in breach (Potobsky, 1998). Repeated scrutiny, through the CE report and follow-up procedures—particularly where cases are separated for specific scrutiny via footnotes in the CE report and by special paragraphs in that of the CCAS—may further stimulate debate and dialogue at both the international and the domestic level, provide guidance for development, and influence states by having a preventative effect (La Hovary, 2015, 323).

71  The CE has its own in-built system for recognizing the effectiveness of the ILO supervisory matrix. With the inclusion of the General Survey and follow-up procedures, the CE is able to monitor improvement of specific issues across the globe and issues in specific states based on the recommendations of other supervisory ILO bodies. The CE has noted an increasing number of matters with satisfaction, as well as matters that have moved from footnotes to being noted with interest. Some commentators suggest that this trend illustrates that the regular system of supervision is working effectively and gradually to improve labour conditions on a broad scale (Osieke, 1985, 174). Others consider that it is difficult to assess the overall efficacy of the system in achieving better state adherence to labour conventions, because such adherence is not instant, nor is it static, and therefore relying on notes of satisfaction may not adequately reflect the complex situations influencing any given instance of compliance.

72  Although much of the ILO supervisory system is described as complementary, the particular overlap between representations and the regular supervisory mechanism has led to criticisms of a lack of clarity between the two and a marginalization of the representations procedure. Where a suitable industrial association is non-existent, the regular system of supervision might lead to initiating a representations procedure, but the overlap increases the chance of different treatment of the same issue by the different bodies within the ILO.

2.  Criticisms and Crisis

73  The CE in particular is highly respected because of its technical expertise and its institutional knowledge as a result of its standing committee status. The expansion of its mandate has, however, raised concerns that it is ‘on the verge of asphyxiation’ (Maupain, 2013, 132). Its expanded workload has increased its reliance on the ILO Office, which in turn can lead to questioning of the CE’s independence.

74  Further criticisms arise from the CE’s position in respect of interpreting international law. The CE, along with the CFA, has built up a body of soft law jurisprudence, necessarily inherent in its task of assessing whether states are in fact in compliance (La Hovary, 2015). That jurisprudence has, for the large part, been accepted, despite Article 37 ILO Constitution, which grants only the ICJ and a specially constituted tribunal with the standing to make interpretations. In fact, the soft jurisprudence of the CE, and of other bodies within the supervisory system, has decreased any underlying pressure to make use of the interpretation procedure contained in Article 37. Further, the generally flexible procedural provisions available to a number of ILO supervisory bodies can also give rise to conflicting views on the law. This has left the CE, and the ILO supervisory system generally, vulnerable to political challenges to legal interpretations in controversial areas.

75  One such controversial area was simmering in the background for some time—the existence and extent of the right to strike. No such right is expressly conferred in the Constitution, or in the subsequent Convention 87 (freedom of association) or Convention 98 (collective bargaining). The right goes to the core of freedom of association and collective bargaining, without which the ILO is ‘inconceivable’ (van der Heijden, 2018, 208). It is of particular importance for trade unions—critical actors in the ILO’s tripartite structure. Both the CE and the CFA had long considered the right inherent in the Constitution and in Conventions 87 and 98, and applied and developed that interpretation accordingly. Employer delegates disagreed with much of this interpretation. For decades, the tripartite structure of the CFA and CCAS sought compromise and, where necessary, employer, worker and state delegates simply agreed to differ.

76  In 2012, the issue came to the fore as a major institutional crisis. It concerned the CE’s General Survey, which addressed fundamental rights at work—including Conventions 87 and 98. As noted above, while the CE is tasked with assessing factual allegations rather than legal interpretation, the latter is inherent in its task. The CCAS rarely contradicts either its factual or legal interpretations. In the General Survey, the CE recommended 25 states for further investigation. Employer delegates objected at the CCAS, on the basis that two of the 25 states were listed due to the CE’s erroneous interpretation of the right to strike. The employer delegates considered that the CE was overstepping its mandate to serve as technical experts and moving into territory that ought to be reserved for representative bodies within the ILO.

77  The employers’ objection came on the back of CE interpretations being adopted and endorsed by regional human rights bodies, such as the ECtHR, as well as domestic courts, which pushed the CE’s ‘soft law’ into harder jurisprudence (Maupain, 2013, 124–26; van der Heijden, 2018, 213–14). The fact that CE interpretations were being adopted indicates the CE’s reputation for technical competence and objectivity, and the respect with which its interpretation was held by judicial bodies. To the degree its work is taken into account by domestic or regional bodies, the regular system of supervision is effective. With regard to the right to strike, however, it has revealed fundamental issues with procedure. In particular, ad hoc additions to the CE’s mandate, such as General Surveys and direct representations, had grown in significance to the point of upsetting the balance with or effectiveness of other aspects of the regular system of supervision (Maupain, 2013, 124–25). In addition, the accepted practice of the CE interpreting international law has led to an expansion of rights via a technical body rather than via the appropriately representative legislative branch of the ILO, or via the constitutional procedures for the interpretation of disputes.

78  While employer and worker delegates have reached a compromise of sorts, the bigger issues have yet to be satisfactorily addressed. In 2015, employers’ and workers’ delegates issued a joint statement which acknowledged a right to collective actions for both parties—the right to strike and right to lockout (Tripartite Meeting on the Freedom of Association and Protection of the Right to Organise Convention, 2015). It does not address the underlying issues of the CE’s mandate, its interpretation of the relevant conventions, or the way in which such matters might be resolved in the future. Given the frequency with which freedom of association matters come into contact with the ILO system, it would seem likely that similar disagreements will arise again.

79  The challenge by employer delegates illustrates deeper problems with the ILO system and the implementation of standards. The CE’s interpretations on the right to strike reflected well-developed interpretation and application by the CFA, which operates largely by consensus of its tripartite members. The employer challenge therefore tested what was thought to be the ILO’s strength, that is, universality via accord between tripartite membership (La Hovary, 2015, 327–29). The employer call for the CE to focus on crucial compliance issues has had a chilling effect (ILOILC Record of Proceedings, 103rd Session, 2014, No 13, Part I, para 67). CE reports for subsequent years have taken a more cautious approach and delegated more matters to direct requests rather than observations, and reduced the length of observations. Workers’ delegates raised the concern that the substance of observations was being affected, and that such an impact would undermine the CE’s mandate to bring an independent expert voice to the regular system of supervision. It is, as one commentator puts it, ‘undeniable that the position of the ILO has been weakened as a result’ (van der Heijden, 2018, 215) of the crisis.

3.  Challenges to Tripartism

80  Related to this problem is the question of whether the tripartite principle is as relevant today to the global milieu as it once was. Considerable social, cultural, economic, and geopolitical changes have taken place between 1919 and 2019, particularly in the last 40 years. Those changes have had an effect on the model definitions of employer (often a shareholder rather than the classic entrepreneur) and worker (no longer necessarily in secure or steady work, and often an employer themselves). They have also had an impact on the functioning of industrial organizations of employers and workers, including an increasingly sceptical ideological view of trade unions around the world (Potobsky, 1998). The balance of power within the ILO is also subject to change, reflected in the shift in the employers’ position from (prior to 2012) agreeing to disagree regarding the right to strike to contemplating ICJ involvement on its interpretation. This shift has considerable implications for its supervisory systems, which are built on tripartite decision-making and require consensus to maintain high levels of persuasive power. It also has implications for the ILO generally, given the primary importance afforded to the tripartite structure in the composition and ethos of the Organization.

81  ILO tripartism can thus be challenged in terms of whether the principle effectively represents universality amongst the changing nature of the relevant stakeholders (Maupain, 2013, 2, 10–11). Although the divide between employer and worker organizations centred on one specific critical and controversial issue, it reflects a level of disagreement and possible distrust that the tripartite system may not currently be able to address. However, even though the causal issues of the crisis are yet to be resolved, the fact that the crisis happened at all indicates the level to which employer organizations consider the ILO and its supervisory procedures to be relevant and important. That employer and worker delegations have managed to find a way to compromise indicates the same for worker delegates. Tripartism, though not without its difficulties, is described by the Director-General as a precious institution which is ‘only as valuable as it is effective’ (Report of the Director-General, ILOILC Record of Proceedings, 81st Session, 1994, Part I, 35). The changing milieu indicates, perhaps, that the ILO, as well as its supervisory procedures and the rules they follow, ought to be assessed against its original principles, the reasons for those principles, and whether they remain fit for purpose as foundations for the supervisory procedures of international labour law today.

Cited Bibliography

  • E Osieke, Constitutional Law and Practice in the International Labour Organisation (Martinus Nijhoff Dordrecht 1985).

  • G von Potobsky, ‘Freedom of Association: The Impact of Convention No 87 and ILO Action’ (1998) 137 IntlLabRev 195–222.

  • F Maupain, ‘The Settlement of Disputes within the International Labour Office’ (1999) 2 JIEL 273–93.

  • A Wisskirchen, ‘The Standard-Setting and Monitoring Activity of the ILO: Legal Questions and Practical Experience’ (2005) 144 IntlLabRev 253–89.

  • RH Wade, ‘Accountability Gone Wrong: The World Bank, Non-governmental Organizations and the US Government in a Fight over China’ (2009) 14 New Political Economy 25–48.

  • International Labour Office, The Committee on the Application of Standards of the International Labour Conference: A Dynamic and Impact Built on Decades of Dialogue and Persuasion (ILO Geneva 2011).

  • F Maupain, ‘The ILO Regular Supervisory System: A Model in Crisis?’ (2013) 10 International Organizations Law Review 117–65.

  • F Maupain, The Future of the International Labour Organization in the Global Economy (Hart Publishing Oxford 2013).

  • C La Hovary, ‘The ILO’s Supervisory Bodies’ “Soft Law Jurisprudence”’ in A Blackett and A Trebilcock (eds), Research Handbook on Transnational Labour Law (Edward Elgar Cheltenham 2015) 316–28.

  • NYU Law School Clinic on International Organizations, ‘The World Bank Inspection Panel and International Human Rights Law’ (2016).

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  • International Labour Office, ‘Freedom of Association. Compilation of Decisions of the Committee on Freedom of Association’ (6th edn ILO Geneva 2018).

  • P van der Heijden ‘The ILO Stumbling towards its Centenary Anniversary’ (2018) 5 International Organizations Law Review 203–20.

Further Bibliography

  • EA Landy, The Effectiveness of International Supervision: Thirty Years of ILO Experience (Stevens & Sons London 1966).

  • I Szászy, International Labour Law: a Comparative Survey of Conflict Rules affecting labour Legislation and Regulation (AW Sijthoff Leyden 1968).

  • A Alcock, History of the International Labour Organisation (Macmillan London 1971).

  • KT Samson, ‘The Changing Pattern of ILO Supervision’ (1979) 118 IntlLabRev 569–87.

  • N Blokker, S Muller, and HG Schermers, Towards More Effective Supervision by International Organizations (Martinus Nijhoff Dordrecht 1994).

  • L Swepston, ‘Human Rights Law and Freedom of Association: Development through ILO Supervision’ (1998) 137 IntlLabRev 169–94.

  • E Gravel, I Duplessis, and B Gernigon, The Committee on Freedom of Association: Its Impact over 50 Years (International Labour Office Geneva 2002).

  • T Novitz, International and European Protection of the Right to Strike: A Comparative Study of Standards Set by the International Labour Organization, the Council of Europe and the European Union (OUP Oxford 2003).

  • P Alston ‘“Core Labour Standards” and the Transformation of the International Labour Rights Regime’ (2004) 36 EJIL 457–522.

  • E Gravel and Q Delpech, ‘International Labour Standards: Recent Developments in Complementarity between the International and National Supervisory Systems’ (2008) 147 IntlLabRev 403–15.

  • G Nesi, L Nogler, and M Pertile (eds), Child Labour in a Globalized World: A Legal Analysis of ILO Action (Aldershot Ashgate 2008).

Cited Documents