May 29, 1998

LABOUR: DRAFT DECLARATION ON CORE LABOUR STANDARDS

Geneva, 28 May (Chakravarthi Raghavan) -- The International Labour Conference, at its two-week 86th session beginning 2 June, is to consider adoption of a possible Declaration of principles of the ILO concerning fundamental rights and its appropriate follow-up mechanism.

The subject will be first considered in a committee of the Conference, and then come up before the Conference for adoption.  

There are still some differences, among governments and the tripartite constituents on the followup mechanism, as well as on a formulation of the Declaration that it may not be relied upon to adopt trade measures of a protectionist nature or call into question comparative advantage of other countries.  

While this is not as strong as developing countries desire, the US, France and the workers group do not favour any such reference.  

The draft text of the Declaration put forward by the International Labour Office has a preamble and five paragraphs of the declaration about the core labour standards that every ILO member should adhere (whether or not a party to the relevant Conventions), and has a sixth paragraph on eschewing protectionist trade measures -- separating the paragraph from earlier ones with three asterisks. 

The report to the Conference of the Labour Office explains that there is still no agreement on its inclusion -- with the Workers' group as well as some governments having expressed opposition to the very principle of such a clause -- the formulation has been presented thus, and its idea left as part of the Declaration or reformulated as a preambular paragraph (and thus have even less legally declaratory value).  

The draft put forward by the Office has been the result of several stages of discussions and consultations on various aspects of the issue at the ILO -- among others at the conference, the working party on the Social Dimensions of Liberalization of International Trade, the ILO Committee on Legal Issues and International Labour Standards (LILS), the ILO governing body meetings and tripartite consultations after the last March meeting of the Governing Body.  

The Labour Office's report to the Conference notes that the draft text of the declaration has been drawn up in the light of comments following the consultations and that it represents "a significantly simplified version" of the previous text. 

The draft for a followup mechanism on the declaration, the report adds, has left open different alternatives on issues where the consultations have not identified clear choices.  

A sticking point in the Declaration could be a provision that the Declaration may not be relied upon by any ILO member to adopt trade measures that are of a protectionist nature or measures that would call into question the comparative advantage of other countries. 

During the various stages of the discussion of the standards question, the developing countries had wanted a clear formulation on non-use of the labour standards issue for trade purposes. The United States and France, on the other hand, wanted elimination of any formulation that would even frown upon use of the Declaration for trade purposes. The workers group wanted to leave open this possibility.  

In earlier drafts which omitted references to the trade sanctions or trade policy issue, the Labour Office had explained that the trade question was not within ILO jurisdiction.  

But it became clear that developing countries would not accept any declaration that does not rule out trade sanctions.  

The compromise now put forward, as the last para of the draft, would have the Conference stress "that no ILO Member may rely on this Declaration to adopt trade measures that are of a protectionist nature or measures that would call into question the comparative advantage of other countries."  

As alternatives, the office document proposes: 

• either a preambular paragraph to the effect that the Organization is not competent in the sphere of trade and so nothing in the Declaration may be seen as authorizing any ILO member to adopt measures of a protectionist kind, or  
• place the formulation ahead of a paragraph on Conference deciding to give full effect to the Declaration through the followup mechanisms. 

Neither would be seen as satisfactory by the developing country governments, more so in the light of the various comments and statements made by some of the industrialized countries at the recent 2nd Ministerial Conference of the WTO, and the pressure from organized labour in the industrial countries for 'fair competition' - a code word for trade barriers on cheap goods from the developing world. 

In its report for the Conference, the Labour Office says that since the Declaration is not even a treaty, and does not create any new constitutional obligation for ILO members, it can't provide any legal basis for ILO members for derogation from other multilateral treaties and obligations and that the ILO could not issue any sort of instructions on a matter not falling within its competence. 

The idea of trade-labour standards linkage was raised by the US, France and the central trade union organizations after the conclusion of the Uruguay Round and on the eve of the Marrakesh meeting to establish the WTO. The US organized labour there has been raising this question even before, and the US government had been raising it from to time (after the launching of the Uruguay Round at Punta del Este) at the old GATT Council but without raising it in a form or as a condition that would jeopardise the US demands and accords it got in the Uruguay Round.  

After Marrakesh, the ILO Director-General Michel Hansenne brought it up in his report to the June 1994 Conference, and the issue has been debated arousing controversies within the ILO bodies, the Copenhagen Social Summit and other places -- with a gradual shift of ground from trade-linked labour standards to the universal fundamental human rights at work standards, often referred to as the 'core labour standards'.  

A major source of controversy has been the position of the developing countries who, while agreeable to gradual raising of standards of workers, have been opposed to anything that could give a handle to the major industrial countries to protect their senescent industries (like textiles and clothing) by keeping out imports on the basis of workers rights or their wages etc. 

In this perspective, one of the sources of opposition has been that any Declaration would serve the purpose or have the effect of extending by legally questionable means the constitutional obligations of members under the ILO structure -- namely acceptance of conventions voluntarily, and carry out obligations flowing from them (and not from Conventions not adhered to). 

The ILO document as earlier clarificatory statements by the office that it would not create any new legal or constitutional obligation, but that a Declaration (within the UN system) is an instrument used on rare occasions for enunciating principles of lasting importance -- giving as examples the Philadelphia Declaration of 1944, which was then ncorporated into the ILO constitution two years later; and the 1964 Declaration against Apartheid.

But the Declaration, the report says, would commit the organization as a whole and has legal effects on all its bodies, the Conference, the Governing Body and the Director-General, atleast on the same level as a conference resolution. The ILO bodies would have to ensure implementation of the "concomitant obligations" placed on the organization by the Declaration. 

As far as the ILO membership is concerned, the Declaration and its followup mechanism, the report says, does not add any further obligation beyond those of the ILO constitution and practice.  

It neither sets out to establish or extrapolate a new or more detailed charter of fundamental labour rights, but rather underscores the renewed relevance and importance of these rights, enshrined in the ILO constitution and the Philadelphia Declaration -- freedom of association, protection of children, equality of treatment and opportunity.

The only extrapolation by the Declaration is that on prohibition of forced labour which "is not in the text but inherent to the principles of the ILO Constitution and the Philadelphia Declaration," which establishes that labour is not a commodity, but that workers are entitled to have their freedom of association, dignity and equality of opportunity respected. 

While the Declaration would thus be tantamount to a political and moral recognition of this logic by all ILO members, it is not a legally binding interpretation of the ILO constitution, which only the International Court of Justice could provide.  

However, the document points out, nobody has so far tried to argue that adherence to the ILO constitution would leave members free to practice forced labour if they have not ratified the relevant Convention.  

"The Declaration requires nothing more of ILO Members than to be consistent and comply with commitments they have already undertaken, and serves to encourage in their endeavours..."  

The same conclusions also apply to the followup mechanism, more so since such a mechanism might be implemented even in the absence of a Declaration, being based on Art. 19(5)(c) of the ILO constitution which authorizes the Government to implement -- on the basis of procedures it can establish -- a report or general overview based on all available information.  

But just as the Declaration creates no new constitutional obligation, it does not release them from any legal obligations under international law, in particular to obligations from other multilateral treaties to which they are parties and which they can renounce only in accordance with conditions set in such treaties or under general conditions outlined by the Vienna Law of Treaties. 

Given that it is not even a treaty, the Declaration would not provide any legal basis for derogation from other treaties inter se nor allow the ILO to issue any sort of instructions that does not fall within its competence.

As for a followup mechanism, the document suggests this could be done: 

• through an Annual review concerning non-ratified core Conventions with the review covering four areas of fundamental rights specified in the Declaration, but with the stipulation that the existing procedures on freedom of association would not be affected nor repeat issues taken up in that procedure.

The Annual reviews will be based on reports by Members under Art. 19(5)(e) of the ILO constitution for each of the core Conventions they have not ratified, and these reports, as compiled by the Labour Office, will be reviewed by the governing Body.

• through a Global Report compiled and issued under the authority of the ILO Director-General, covering every year each of the four categories of fundamental rights, and providing a global dynamic picture of the most significant developments relating to each category of fundamental rights during a four-year period, and assess the effectiveness of ILO assistance, and define priorities and an action plan for the following period. 

The Declaration, besides its preambular paragraphs relating to the ILO's founding principle of advancing social justice; affirmation that economic growth, while a pre-requisite for social progress, is by itself not enough to guarantee this or eliminate injustice and poverty; affirmation of the ILO's standard-setting role and guaranteeing fundamental human rights at work; the ILO's exclusive mandate to establish and implement international labour standards; and the urgency, in a situation of growing economic interdependence, to reaffirm the immutable nature of these principles and values.  

In the operative paragraphs, the Declaration recalls: 

• in freely joining the ILO, all members have endorsed the values and principles set out in the Constitution and the Philadelphia Declaration and have undertaken to work towards attaining these objectives;
• that these values and principles have been expressed and developed in the form of specific rights and obligations in Conventions;
• that Members, even if they have not ratified the Conventions in question, have a duty arising from their membership to work in good faith and to the best of their abilities to realize the fundamental rights contained in them, namely freedom of association and effective recognition of the right of collective bargaining; elimination of all forms of forced or compulsory labour; effective abolition of child labour; elimination of discrimination in respect of employment and occupation in all its forms.
• a concomitant obligation of the ILO to make effective use of its constitutional and operational resources to support efforts of Members to attain these objectives through assistance to promote ratification and implementation of the fundamental Conventions, assisting Members to ratify all or some of these conventions, and encouraging competent multilateral and other organizations to support these efforts through their own assistance programmes. 

In another paragraph, the draft Declaration would have the Conference Decide that to give full effect to the Declaration, a promotional followup mechanism, meaningful and effective, containing a review of annual reports under Art. 19(5)(e) of the Constitution, and a global report, shall be implemented in accordance with measures specified in n annex.  

A final para "Stresses that no ILO Member may rely on this Declaration to adopt trade measures that are of a protectionist nature or measures that would call into question the comparative advantage of other countries."