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Labour Standards in International Economic Law pp 37–55Cite as

The ILO’s Mandate and Capacity: Creating, Proliferating and Supervising Labour Standards for a Globalized Economy

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Abstract

This chapter explores the International Labour Organization’s (ILO) mandate and capacity to create, proliferate and supervise labour standards through the lens of the operationalization of tripartism. Tripartism, a foundational feature of the ILO which implies the active participation of representatives of Governments, Employers and Workers in all aspects of the Organization, is essential to both the Organization’s mission of pursing social justice and the generation of international labour law more generally. Changes in the balance of power between the three groups inevitably have an impact on international labour law and on its supervision; such changes, in particular between Workers and Employers, have been taking place since 1989 and have taken a dramatic turn in 2012. The crisis that occurred that year and that has been unfolding since could have an impact beyond the ILO, by not only challenging the independence and the role of ILO supervisor bodies—and therefore reducing their influence—but also by having highly negative consequences for existing International Labour Standards which could be weakened.

This chapter draws on La Hovary (2015c), pp. 204–236.

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Notes

  1. 1.

    See Maupain (2013). As Langille notes, more generally, ‘the ILO is centred upon the most sensitive political nerve of all modern societies - the relationship of markets and politics and the questions of both the virtues and limits of markets. In the ILO this general question is focused upon the most central and most difficult of all markets - the labour market - a market in people, not commodities’, Langille (1999), p. 234. Considering that the orthodoxy within dominant economic thought tends towards a desirability for de-regulating labour issues, this makes law-making in the field particularly difficult.

  2. 2.

    Maupain (1999a), p. 336.

  3. 3.

    Trebilcock (2010), pp. 566–567. See also Novitz (2009–2010).

  4. 4.

    The connection between the two fields was established in 1919 and recalled in the Declaration of Philadelphia in 1944, annexed to the ILO’s Constitution in 1946. For an overview, see for example Diller (2013), pp. 128–147.

  5. 5.

    This chapter draws on primary and secondary written material, but also on oral interviews conducted between February and August 2014 with individuals from the ITUC, national confederations, the ILO (ACTRAV, ACTEMP, as well as current and retired civil servants), and Workers’ organizations. Individual interviewees are not identified but indications are given where specific insights from these interviews have been taken. This research was supported by the University of Glasgow and the Carnegie Trust for the Universities of Scotland.

  6. 6.

    ILO (1956), para 9.

  7. 7.

    Maul (2012), p. 2. Also Cabanes (2014), p. 79 and Cox (1973), p. 102.

  8. 8.

    Helfer (2006), p. 679, referring to Cox (1973), p. 102. Also Béguin (1959), p. 6. As is well known, it is, with the help of visionaries, the combination of the industrial revolution in the nineteenth century—which had led to the proliferation of abysmal working conditions—the ravages of the First World War and the rise of Bolshevism that led to the ILO’s creation.

  9. 9.

    See Art. 7 of the Constitution. There are also 66 deputy members (28 Government members, 19 Employers members and 19 Workers members)—Section 1.1.1, Standing Orders of the Governing Body.

  10. 10.

    See Art. 3 of the Constitution.

  11. 11.

    These include, for the Governing Body, appointing the Director-General who carries out his functions according to its instructions (Art. 8 (1)), directing the Office’s activities (Art. 10), deciding the agenda of the ILC (Art. 14 (1)) as well as several important matters concerning the supervision of ILS (and ILO (2011), paras 5–6). The ILC discusses and adopt ILO instruments, discusses policies, adopts the Organisation’s programme and budget, and elects the Governing Body, for example.

  12. 12.

    The International Trade Union Confederation (ITUC) and the International Organisation for Employers (IOE) provide secretarial support to, respectively, the Workers and Employers’ groups, and have a key role in formulating the groups’ responses at the Governing Body and the ILC.

  13. 13.

    This article has been interpreted by the Permanent Court of International Justice (PCIJ) in an advisory opinion of 1922 that still guides the ILO, see PCIJ, Designation of the Workers’ Delegate for the Netherlands at the Third Session of the International Labour Conference, Advisory Opinion, PCIJ Series B No. 1, pp. 23, 25. In particular, the PCIJ established that Workers’ delegates should represent all workers (not only unionised workers)—the same goes for Employers’ delegates, who should represent all employers.

  14. 14.

    See Art. 10 of the Constitution. See generally Jenks (1970), p. 70.

  15. 15.

    There is however a bureau of Workers’ Activities (ACTRAV) and of Employers’ Activities (ACT/EMP) within the Office.

  16. 16.

    See the works of Albert Thomas and Georges Scelle, cited in Maupain (1999a), p. 364. See also Jenks (1970), pp. 517–518.

  17. 17.

    Maupain (1999a), p. 366. Thomas justified his role by arguing that the Organisation had been created ‘for the workers and to improve their conditions’, Phelan (1936), p. 246.

  18. 18.

    See Cox’s account (1973) and Jenks (1970), pp. 517–518—Jenks explains that it is precisely because he was elected by the combined votes of Employers and Workers that Albert Thomas was able to act the way he did.

  19. 19.

    Helfer (2006), pp. 681 et seqq.

  20. 20.

    Maupain (1999a), pp. 365–366. The Office usually makes suggestions to add items on the agenda, Haas (1964), p. 213. The role that Phelan had in drafting the Declaration of Philadelphia, and the role that Maupain had regarding the 1998 and 2008 Declarations are well known, for example.

  21. 21.

    As Maupain states, the ‘tripartite compromise’ or the ‘excess of tripartite zeal’ of the Office raises the ‘risk […] that in anticipation of negative reaction from one group or another, certain topics might be given up completely, or that controversial conclusions might be emasculated’, Maupain (2013), p. 122.

  22. 22.

    See Standing (2008), pp. 372–373 and Rodgers et al. (2009), p. 234.

  23. 23.

    In September 2015. An amendment to the Constitution, adopted in 1997, which facilitates the abrogation of obsolete conventions has entered into force in October 2015.

  24. 24.

    Art. 14 (1) of the Constitution states that the agenda of the Conference is ‘settled by the Governing Body, which shall consider any suggestion as to the agenda that may be made by the government of any of the Members or by any representative [employers’ or workers’] organization […] or by any public international organization’.

  25. 25.

    Article 14 (1) of the Constitution and Art. 34 and Art. 35. Standing Orders of the Conference, for complete details.

  26. 26.

    The ILO supervisory system has been described extensively—see e.g. Maupain (1999b), pp. 273–293; Servais (2011) and Valticos (1994).

  27. 27.

    See Art. 19 and Art. 22 of the Constitution.

  28. 28.

    The work of the CEACR is enormous—ILS had received 8003 ratifications in September 2015 and they are constantly the object of new ratifications—22 ratifications were registered between May and August 2015, for example (see ILO website). ILS also keep on being adopted with important instruments adopted in the last ten years.

  29. 29.

    Direct requests are not published in this report but are available on the ILO website.

  30. 30.

    ILO (2006).

  31. 31.

    See Maupain (2013).

  32. 32.

    See La Hovary (2015b).

  33. 33.

    Rodgers et al. (2009), p. 24. Also Sengenberger (2013), p. 65.

  34. 34.

    Béguin (1959), p. 7. The position of the IOE is that although there is a role for ILS, ‘the ILO is harming its credibility by continuing to adopt standards that are increasingly less ratified’, France (2001), p. 63.

  35. 35.

    As Cox notes, the Director-General and some others in the Office ‘played a broker’s role’ in the resolution of this crisis, Cox (1973), p. 107.

  36. 36.

    It should be recalled here that the right to strike is not explicitly mentioned in Convention No. 87 on Freedom of Association but has been interpreted by the CEACR as an inherent element of freedom of association since the 1950s, following the conclusions of the CFA in this regard.

  37. 37.

    ILO (2012a), para. 150.

  38. 38.

    Ibid., para. 22. The CEACR and the CAS were both set up in 1926.

  39. 39.

    Ibid., para. 213 and information obtained from interviews.

  40. 40.

    Reaffirming inter alia that ‘in order to exercise fully its constitutional responsibilities, it is essential for the ILO to have an effective, efficient and authoritative standards supervisory system commanding the support of all constituents’, ILO (2014a), para. 40–43.

  41. 41.

    Art. 37 provides a legal answer to such deadlocks: Art. 37 (1) concerns referral to the ICJ for ‘any question of dispute’ relating to the interpretation of the Constitution or of Conventions and Art. 37 (2) concerns the setting-up of a Tribunal for matters related to the interpretation of Conventions. Resort to Art. 37 needs to be decided by the Governing Body, through a vote or consensus.

  42. 42.

    ILO (2013a), para. 33 and ILO (2015), para. 46.

  43. 43.

    La Hovary (2015a).

  44. 44.

    This crisis has been examined from different angles by a range of scholars, including Bellace (2014); La Hovary (2013) and Maupain (2013), pp. 117–165.

  45. 45.

    See e.g. Maupain (2013) and La Hovary (2015b).

  46. 46.

    ILO (2012a), paras. 49 and 82.

  47. 47.

    ILO (2012b), p. 3.

  48. 48.

    Information obtained from interviews.

  49. 49.

    ILO (2014c), paras. 11 and 228.

  50. 50.

    ILO (2013c), paras. 19–20.

  51. 51.

    See IOE (2013).

  52. 52.

    See the ILS Policy and the documents adopted by the Governing Body’s Committee on Legal Issues and International Labour Standards.

  53. 53.

    One in five Employer representative in the CAS is said to come from a company—the others all belong to law firms.

  54. 54.

    ILO (2014c), para. 67.

  55. 55.

    Ibid., para. 67.

  56. 56.

    Ibid., para. 55. At the Employers’ request, the CEACR met with the Workers’ and the Employers’ Chairpersons before its meeting, in an unprecedented move, ILO (2013a), para. 10. As a result, the Experts declared that ‘some adjustments been made’ as to the length and the presentation of information to the 2014 CEACR report, see ILO (2014b), para. 26.

  57. 57.

    The events of 2012 have been brought to the attention of national and international courts to dispute the CEACR’s work (see e.g. ECHR, RMT v. United Kingdom, Appl. No. 31045/10, 8 Apr 2014, para. 69—while the ECHR stated that it was not reconsidering the CEACR’s role as ‘a point of reference and guidance for the interpretation of certain provisions of the Convention’—at para. 97, it did not, however, apply the CEACR’s jurisprudence on sympathy strikes, which are crucial in a globalized world).

  58. 58.

    La Hovary (2013), pp. 345–346 for a summary.

  59. 59.

    Maupain has suggested a re-balancing of the available means of supervision, Maupain (2013).

  60. 60.

    Leary (1992), p. 613.

  61. 61.

    See ILO (2012a) para. 153; Cox (1973), p. 112 and Creighton (2004), p. 261.

  62. 62.

    Information obtained from interviews.

  63. 63.

    ILO Declaration on Social Justice for a Fair Globalization, adopted on 10 June 2008.

  64. 64.

    Standing (2008), pp. 379–80. These debates are by no means new, however. For example, in 1959, Béguin was already writing that ‘[w]hether or not tripartism still has a contribution to make in enabling the organization to ‘work more effectively’ on its future tasks, and whether new interpretations can be given to this form of collaboration are the questions that face [the] ILO as it enters its fifth decade’, Béguin (1959), p. 33.

  65. 65.

    Peters (2009), p. 321.

  66. 66.

    Klabbers (2014), p. 185.

  67. 67.

    For thorough survey of these issues, see Tikriti (1982), pp. 339–346 and Maupain (1999a), pp. 333–344. Furthermore, since 1919, the demand for tripartism within the ILO has been seen as a means of promoting tripartism and freedom of association within countries, e.g. Bonvin (1998), pp. 68–69. The role of the ILO is still very much seen in this way today.

  68. 68.

    Maupain (2013), p. 10. Generally, see Hepple (2005), pp. 53–54 and Cooney (1999), pp. 370–373.

  69. 69.

    See ILO (2013b), para. 90.

  70. 70.

    Civil society is not completely absent from the ILO however—civil society representatives’ consultation and participation in debates is provided for in the Constitution and Standing Orders and some ILS make specific reference to their involvement. Moreover, so-called ‘Tripartite plus meetings are quite frequent within the ILO in practice.

  71. 71.

    Albert Thomas attempted to give a formal role to cooperatives, Louis (2013), p. 25.

  72. 72.

    ILO (1994), p. 35 and ILO (1999), p. 40.

  73. 73.

    ILO (2013b), para. 98. The 2008 Declaration on Social Justice stated explicitly the need to cooperate with new actors (II.A)v.

  74. 74.

    Inter alia, NGOs are not necessarily representative or independent either, their presence might create geographical imbalance, their lifespan is not necessarily very long, they are numerous, and their selection would not be straightforward. Maupain (1999a), p. 384 and ILO (1999), p. 40. See also Charnovitz (1997), pp. 75–77; Nolte and Lagodinsky (2004), p. 325 and Baccaro (2001).

  75. 75.

    Bonvin (1998), p. 69. Similar comments have been voiced about the ITUC on the workers’ side—Standing argues that the ILO ‘is one of the very few means by which to retain international legitimacy (and financial assistance for its members)’, Standing (2008).

  76. 76.

    Standing goes much further, arguing with regard to representativity in the Governing Body, that both Employers and Workers want ‘to retain their exclusive, monopolistic position and control the agenda with which they are most comfortable [and] each would support the other if any effort was made to broaden representativity’, Standing (2008), pp. 379–380. Others have pointed out that some Employers and Workers members stay on ‘well past their ‘use by’ date’ and make little positive contributions, Creighton (2004), p. 266. See also Maupain (1999a), p. 249. The Workers’ Group has been addressing these issues however.

  77. 77.

    Information obtained from interviews.

  78. 78.

    Hoffer (2014), p. 246. Frank Hoffer works in ACTRAV.

  79. 79.

    Sengenberger (2013), p. 63. This was manifest in the 2011 discussions of the Convention No. 189 on Domestic Workers. Generally, Sengenberger points out to the fact that ‘the ILO framework of international governance may be said to be more democratic and more up-to-date with the distribution of the present economic and political weight in the world than the system of governance of the international financial institutions’, Sengenberger (2013), p. 63.

  80. 80.

    Maupain (1999a), p. 59 referencing them as the BRIC States, as they then were.

  81. 81.

    Haas, for example, argued that while historically some Governments were likely to take the side of the Workers, the State is now supporting capital, Haas (1964), p. 213 and also Landelius (1965), p. 522. It can certainly be contended that it has abandoned its mediating role between capital and labour, Chhachhi (2014), p. 902. Information also obtained from interviews.

  82. 82.

    Information obtained from interviews.

  83. 83.

    Indeed, Governments have half the votes compared to a quarter each for Employers and Workers in plenary meetings and they are the only constituents empowered to vote on the ILO’s budget, which they finance. They are moreover the only constituents directly consulted by the Office during the preparation of ILS—ILS are addressed to them, although the procedural rules provide they do need to consult Employers and Workers—and they nominate the Workers and Employers representatives to the ILC, Haas (1964), p. 213.

  84. 84.

    ILO (1994), p. 35.

  85. 85.

    Ibid., p. 35.

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    Claire La Hovary

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La Hovary, C. (2018). The ILO’s Mandate and Capacity: Creating, Proliferating and Supervising Labour Standards for a Globalized Economy. In: Gött, H. (eds) Labour Standards in International Economic Law. Springer, Cham. https://doi.org/10.1007/978-3-319-69447-4_3

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