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The ILO’s response – Emphasis on core standards
As a response to the challenges of globalisation and the increasing number of member states, the ILO adopted the Declaration of Fundamental Principles and Rights at Work in 1998. The Declaration is promotional in nature and aims at strengthening the application of the basic values inherent in ILO membership, namely; freedom of association and the effective recognition of the right to collective bargaining, the elimination of all forms of forced or compulsory labour, the effective abolition of child labour, and the elimination of discrimination in respect of employment and occupation. These principles are embodied in eight conventions constituting the core labour standards that the ILO has recognised as fundamental for social justice.15 In addition, as further response to the challenges of globalisation, the ILO adopted the Declaration on Social Justice for a Fair Globalisation in 2008.
The obligation to respect the principles embodied in the core conventions follows directly from ILO membership and the follow-up mechanism, comprising of regular reports on the conformity of national laws and practices with the core conventions, thus applies to all member states.17 Even though the quite burdensome reporting system has resulted in an increased number of ratifications of the core standards, it is worth asking why the fundamental rights are not made enforceable on all member states and the core standards made subject for the regular supervisory system, considering the special significance that the ILO argues that these rights have in order to achieve other worker rights.
Which standards should be included among the core standards ?
Although there is an international consensus that the ILO’s core standards are indeed fundamental human rights, there is significant international support outside the ILO that substantial wages and protection against ultra-hazardous working conditions should also be included in the core standards.19 It is unclear what impact globalisation has had on the health and safety of workplaces.20 Nevertheless, it most likely has had a negative impact, particularly considering the emergence of large clothing industries in developing countries, where labour conditions are kept low in order to reduce costs. This is due to the demand of Western consumers for cheap clothes, resulting in factory accidents such as the recent one in Bangladesh. In light of this, it is difficult to understand why these issues are not included in the core standards. It is a human right to be protected from working conditions where human life is at risk and to have the right to a living wage. The rationale behind not including these other rights was, inter alia, that they may affect countries’ competitive advantages, which the core labour standards were considered not to do.21 Even though a universal minimum wage is not suitable since low wages are one of the developing countries’ most significant competitive advantages, a minimum “living wage”22 could nevertheless be included in the core standards without risking the developing countries’ competitive advantages. Moreover, it may be argued that some fundamental human rights should be protected regardless of the potential effect on competitive advantage.23 The absence of health and safety standards and a minimum living wage among the ILO’s core standards can perhaps be understandable due to the difficulties in defining the content of the rights. However, merely the fact that a matter is difficult to handle does not argue against it being subject to international regulation.
The Adoption of International Labour Standards
The ILO is primarily a standard-setting body that has created a system of international labour standards, consisting of international conventions and recommendations covering all work-related matters. The conventions are legally binding international treaties while recommendations are non-binding guidelines. The recommendations could either be autonomous or work as supplements as to how conventions could best be applied.
Before a labour standard is adopted, it must be discussed during, at least, two International Labour Conferences. The aim of this double discussion is to give the governments and social partners sufficient time to examine the instrument and comment on it.36 The fact that it takes some time to adopt an instrument is important, as with all law-making, since it reduces the risk of influence by populist waves. When a convention has been adopted, member states may choose to accept it as legally binding through the formal process of ratification.
A convention normally enters into force twelve months after it has been ratified by at least two member states. As of today the ILO has adopted 189 conventions and 202 recommendations.38 Nevertheless, the conventions and recommendations are not ratified universally. Furthermore, denunciation, i.e. a declaration that a member state is no longer bound by a convention, is usually permitted at ten years intervals after a convention comes into effect. Denunciation is usually the result of the ratification of another revised convention regarding the same matter. Albeit, a convention can be denounced simply because a member state considers itself unable or unwilling to respect the convention.
There is no possibility to make reservations against conventions as they are intended to be universal in nature, i.e. applicable to all member states despite having different social structures and in different stages of industrial development. In order to achieve this objective, the standards must be formulated in a flexible way taking into account the member states’ differences. However, at the same time, the standards must set meaningful targets for social development. Some conventions therefore include “flexibility clauses” allowing member states to temporarily set lower standards than those that the convention requires as a minimum, to exclude certain workers from the application of the convention, or to only apply certain parts.
Moreover, most of the ILO’s conventions are short in form, only consisting of a few broad obligations. When more technical precise obligations are needed, they are usually made in recommendations. Indeed, the treaty form is very adaptable due to its general wording. The reluctance states may have towards ratification is usually not directed at the content of the conventions, but rather at submitting to international supervision.41 Consequently, even standards not including a flexibility clause can provide a great deal of flexibility. The rationale behind flexibility may be comprehensible considering that the ILO should be open to all the worlds’ countries. Too detailed and rigid conventions run the risk of not being ratified. Nonetheless, if conventions are too flexible they will risk losing their purpose, since they will cease to be standards.
The Application and Promotion of International Labour Standards
After the potential ratification of a convention by a member state, the member state becomes subject to the ILO’s supervisory system, responsible for the enforcement of the convention. The ILO’s supervisory system consists of ordinary supervision, as well as the procedures of representations and complaints.
Ordinary s upervision
When a country has ratified a convention its’ government has an obligation to report to the ILO every two or five years42 on the measures taken in order to make the convention effective.43 Based on the governments’ reports, the Committee of Experts44 may make comments to a government found to be not fully complying with adopted standards or its constitutional obligations. The comments may take the form of either observations or direct requests.45 The Committee of Experts’ reports are later submitted to the International Labour Conference, where they are discussed and examined by the Conference Committee, a standing tri-partite Committee. This examination often results in the Conference Committee recommending the governments to take specific actions, inviting ILO missions or technical assistance regarding, for example, how to draft or revise national legislation.46 The ordinary supervisory system consequently consists of a system of reports, comments and dialogue. The continuation of this dialogue under long periods has in many cases not led to any results. Therefore, since 1969, there is a possibility for a representative of the Director-General of the ILO to visit a violating state in which informal discussions with the government can take place in order to solve the implementation problem.
Complaints and representations
Individual member states, a delegate to the International Labour Conference or the Governing Body may also file complaints against another member state that has ratified the same convention.48 The Governing Body may then appoint a Commission of Inquiry. This is the most high-level investigative procedure of the ILO, set up in cases where member states have severely violated a convention and repeatedly refused to take any correcting measures. The Commission consists of three prominent persons who then hold a quasi-judicial procedure resulting in a recommendation to the member state.49 There are no set rules regarding the procedure that the Commission should follow, and naturally criticism has been directed towards the Commission of Inquiry’s objectivity.
Evaluation of the Supervisory System
The ILO’s supervisory system has several benefits that are connected to the origins and powers of the system as described in chapter two; e.g. ratification is a legal obligation involving the supply of regular reports, the interaction between legal analysis carried out by experts (Committee of Experts or Commission of Inquiry) and pressure from tri-partite organs (the Conference or the Governing Body), as well as the combination of regular supervision with that of representations and complaints. Nonetheless, the fact that the ILO’s supervisory system has a unique structure cannot in itself be evidence of efficacy. One of the inherent weaknesses is the reliance of “sociological sanctions” and the fact that the supervisory system cannot operate without the cooperation of the violating state.
Table of contents :
Chapter 1: Introduction
1.2 Method and Material
Chapter 2: The International Labour Organization
2.1 The Challenges of Globalisation
2.2.1 ILO’s response – Emphasis on core standards
2.2.2 Which standards should be included among the core standards?
2.2 The ILO’s Structure
2.3 The Adoption of International Labour Standards
2.4 The Application and Promotion of International Labour Standards
2.4.1 Ordinary supervision
2.4.2 Complaints and representations
Chapter 3: Evaluation of the ILO Approach
3.1 Evaluation of the Supervisory System
3.1.1 A voluntary approach
3.1.2 Complaints and representations
126.96.36.199 Article 33 – The Myanmar case
3.1.3 The question of sanctions
3.2 The Existence of a Global System of International Labour Standards
Chapter 4: Corporate Social Responsibility
4.1 A Known Phenomenon in a New Context
4.2 A Broad vs. a Narrow View of CSR
4.3 The Role of the Consumer
4.4 Can and Should Corporations be Socially Responsible?
Chapter 5: Company Based Codes of Conduct
5.1 Challenges with Making Codes of Conduct Effective
5.1.1 The adopting of a code; reasons, attitudes and the involvement of workers
5.1.2 Content and construction
5.1.4 Development towards independent monitoring and beyond
5.2 Violations of Codes of Conduct
5.2.1 The company vs. suppliers – Cutting off or working for improvements
5.2.2 The company vs. workers and other stakeholders – Private litigation of human rights
188.8.131.52 The company vs. suppliers’ workers
184.108.40.206 The company vs. other stakeholders
Chapter 6: Comparison of the ILO and CSR Approaches
6.1 The Codes’ Potential to Reach a Wider Range of Workers
6.2 The Limits of Reliance on Consumer Pressure
6.3 The Question of Freedom of Association
6.4 The Handling of Violations
6.5 Can Codes of Conducts be Legally Enforceable?
6.6 Race to the Bottom Exchanged with Race to the Top?
Chap 7: Summary Conclusions