Abstract
The UN Guiding Principles on Business and Human Rights, contained in a resolution adopted by the Human Rights Council, are basically a non-binding instrument that does not legally oblige UN member States, nor enterprises, to implement the principles enshrined therein. However, the UN organs, such as the Human Rights Council, have been following up the recommendations made in the resolution and set up various mechanisms, such as the Global Forum on Business and Human Rights to review the states’ and enterprises’ practices or the Inter-governmental Working Group, to, inter alia, try to formulate a legally binding treaty. Specialized Agencies, and other regional institutions have, as a matter of their own mandate, also actually responded to the recommendation of the Human Rights Council and conducted a number of activities that amounted to an actual follow-up of the original instrument. This chapter analyses those activities conducted by the ILO on their own, but which have a bearing on the implementation of the UNGP in practice. It concludes that the historical (over 90 years old) mechanism of supervision plays an important role also here in the implementation of the UNGP, in the area of labour and social rights, with a caveat that rights protected by international labour standards are basically collective (i.e., collective employment relations are targeted in most cases, except for instruments, such as those against forced labour where infringement of an individual’s right can also be addressed), and individuals cannot lodge complaints and demand remedy. Observance of international labour standards is a matter of the government and enterprises are not directly accountable to the ILO standards. Reference is also made to the peculiar ILO instrument called Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, which may serve as an additional tool to implement a part of the UN Guiding Principle, but with lesser degree compared to the traditional mechanisms to supervise the application of the international labour standards.
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Notes
- 1.
UN Doc. A/HRC/17/31 endorsed by the Resolution of the Human Rights Council 17/4 of 16 June 2011. This document is sometimes cited as Ruggie Principles, named after the comprehensive report submitted by the Special Representative of the Secretary General of the UN, John Ruggie, who formulated this set of principles after a long, laborious effort. See Ruggie (2013).
- 2.
Report of the Committee of Experts on the Application of Conventions and Recommendations, ILC.108/III(A), ILO Geneva 2019, p. 24.
- 3.
Ibid, p. 25.
- 4.
Report of the Committee set up to examine the representation made by the Hellenic Airline Pilots Association (HALPA) under article 24 of the ILO Constitution alleging non-observance by Greece of the Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105) (Official Bulletin, Vol. LXXI, 1988, Series B, Supplement 1).
- 5.
ILO Governing Body 1995, GB.264/16/7.
- 6.
ILO Governing Body 1999 GB.274/15/3, GB.276/16/4.
- 7.
ILO Governing Body 2011 GB.312/INS/15/3.
- 8.
The Committee is of the view that the interpretation by Japanese national courts of Article 4 of the Labour Standards Law may be correct in and as of itself, but from the perspective of the ILO Convention, it does not fully cover the obligations under international law. The Committee implicitly suggests that the judiciary, as a State organ, should pay attention to the State’s international obligations. Article 98, para 2 of the Constitution of Japan makes it clear that international treaties are valid in the national legal system. It is established jurisprudence that customary international law and ratified treaties supersede the laws of the land, although they are not above the Constitution.
- 9.
Article 33: “In the event of any Member failing to carry out within the time specified the recommendations, if any, contained in the report of the Commission of Inquiry, or in the decision of the International Court of Justice, as the case may be, the Governing Body may recommend to the Conference such action as it may deem wise and expedient to secure compliance therewith.” An action taken by the Conference may involve economic sanctions, which are rare but did happen in a relatively recent case against Myanmar.
- 10.
Report of The Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organisation to examine the observance by Romania of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), Vol. LXXIV, 1991, Series B, Supplement 3. (Mr I was employed in a railway company in Craiova and Mr P in an electric engineering company in Cluj.)
- 11.
O.B. Vol. XX, No. 1, 1935, p. 15. This complaint was not pursued.
- 12.
Report of the Committee of Experts on the Application of Conventions and Recommendations, International Labour Conference, 107th Session, 2018 Report III (Part A), p. 382.
- 13.
Individual Case (CAS)—Discussion: 1988, Publication: 75th ILC session (1988), Indigenous and Tribal Populations Convention, 1957 (No. 107)—India (Ratification: 1958), drawn from ILO website: https://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:2554333.
- 14.
Record of Proceedings, ILC 2017, Part II, p. 144.
- 15.
The development of this process is described in many publications, such as Valticos and von Potobsky (1995), pp. 295–299.
- 16.
CFA Report No 364, June 2012, Case No 2901 (Mauritius).
- 17.
CFA Report No 340, March 2006, Case No 2429 (Niger).
- 18.
Report No 348, November 2007, Case No 2494 (Indonesia).
- 19.
See also the contribution by Jernej Letnar Černič in this volume.
- 20.
Procedure for the examination of disputes concerning the application of the Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy by means of interpretation of its Provisions. Official Bulletin (Geneva, ILO), 1986, Vol. LXIX, Series A, No. 3, pp. 196–197 (to replace Part IV of the Procedures adopted by the Governing Body at its 214th Session (November 1980)). See Official Bulletin, 1981, Vol. LXIV, Series A, No. 1, pp. 89–90. Most recently at the 329th (March 2017) Session of the Governing Body. Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, ILO Geneva 2017 GB.329/POL/7, pp. 18–19.
- 21.
Para. 10, (b)(c)(d), in particular. Ibid. p. 4. It is, however, confusing to see the way how the UNGP is referred to here. Sub-paragraphs (b), (c) and (d) are almost full citations, while (e) is drafted from the perspective of the ILO Declaration.
- 22.
GB.205/10/2, para. 9 and GB.205/PV(Rev.), p. VI/4.
- 23.
“Resolution concerning follow-up to the World Employment Conference”, International Labour Conference, 65th Session, Record of Proceedings (Geneva, International Labour Office, 1979), section on multinational enterprises, XCV–XCVI.
- 24.
GB.214/6/3, para. 85; GB.214/PV(Rev.), p IV/11.
- 25.
GB.224/17/30.
- 26.
GB.228/19/24, paras 12 and 14.
- 27.
Para. 7 of the GB.301/MNE/4 301st Session 2008.
- 28.
Report of the Subcommittee on Multinational Enterprises GB.294/10 (Rev.) p. 2 paras 6 and 7.
- 29.
GB.329/POL/7, Annex II, Operational tools, 1 Promotion, (a) Regional follow-up.
- 30.
Černič (2009), pp. 29–30.
- 31.
Web information: Interpretation Procedure at Work: BIFU Case (1984–1985), Multi: Multinational Enterprise and Social Policy, at: http://www.ilo.org/public/english/employment/multi/tripartite/cases.htm. However, this URL was recently removed from the ILO’s website.
- 32.
Para 5 of the Procedure: “Requests for interpretation may be addressed to the Office: (a) as a rule by the government of a member State acting either on its own initiative or at the request of a national organization of employers or workers; (b) by a national organization of employers or workers, which is representative at the national and/or sectoral level, subject to the conditions set out in paragraph 6. Such requests should normally be channelled through the central organizations in the country concerned; (c) by an international organization of employers or workers on behalf of a representative national affiliate.”
- 33.
Para 2, of the Procedure: “The procedure should in no way duplicate or conflict with existing national or ILO procedures. Thus, it cannot be invoked: (a) in respect of national law and practice; (b) in respect of international labour Conventions and Recommendations; (c) in respect of matters falling under the freedom of association procedure. The above means that questions regarding national law and practice should be considered through appropriate national machinery; that questions regarding international labour Conventions and Recommendations should be examined through the various procedures provided for in articles 19, 22, 24 and 26 of the Constitution of the ILO, or through government requests to the Office for informal interpretation; and that questions concerning freedom of association should be considered through the special ILO procedures applicable to that area.”
- 34.
Para 7 of the Procedure [n 20].
- 35.
The OECD had adopted treaties, such as the Anti-Bribery Convention or the Model Tax Convention, but in the case of multinational enterprises, it did not choose to adopt the Guidelines as a treaty.
- 36.
“The Guidelines provide voluntary principles and standards for responsible business conduct consistent with applicable laws and internationally recognized standards. However, the countries adhering to the Guidelines make a binding commitment to implement them in accordance with the Decision of the OECD Council on the OECD Guidelines for Multinational Enterprises.” (OECD Guidelines, Preamble, para. 1).
- 37.
Report on the fourth session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, A/HRC/40/48, 2 January 2019, pp. 1–27.
References
Černič JL (2009) Corporate responsibility for human rights: analyzing the ILO Tripartite Declaration of Principles concerning multinational enterprises and social policy. Miskolc J Int Law 6(1):24–34
Ruggie JG (2013) Just business. W. W. Norton & Company, New York
Valticos N, von Potobsky G (1995) International labour law. Kluwer Law and Taxation, Deventer
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Ago, Si. (2019). Supervision of International Labour Standards as a Means of Implementing the Guiding Principles on Business and Human Rights. In: Bungenberg, M., Krajewski, M., Tams, C.J., Terhechte, J.P., Ziegler, A.R. (eds) European Yearbook of International Economic Law 2019. European Yearbook of International Economic Law, vol 10. Springer, Cham. https://doi.org/10.1007/8165_2019_27
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