Volume 1 - Documents 1-58 | INTERNATIONAL COURT OF JUSTICE

Document Number

191-20231214-REQ-02-00-EN

Document Type

request_advisory_opinion

Case

191 - Right to Strike under ILO Convention No. 87

Date of the Document

Thu, 12/14/2023 - 12:00

Document File

191-20231214-req-02-00-en.pdf

Document No. 1
Constitution of the ILO

 Constitution
of the International
Labour Organization
International Labour Office, Geneva, 2021

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 Contents
Page
Constitution of the International Labour Organization ....................... 7
Preamble .......................................................................................... 7
Chapter I. Organization ................................................................... 8
Article 1. Establishment and membership .............................................. 8
Article 2. Organs ......................................................................................... 9
Article 3. Conference .................................................................................. 9
Article 4. Voting rights.............................................................................. 10
Article 5. Place of meetings of the Conference .................................... 11
Article 6. Seat of the International Labour Office ................................ 11
Article 7. Governing Body ........................................................................ 11
Article 8. Director-General ....................................................................... 12
Article 9. Staff ............................................................................................ 13
Article 10. Functions of the International Labour Office....................... 13
Article 11. Relations with governments ................................................... 14
Article 12. Relations with international organizations .......................... 14
Article 13. Financial and budgetary arrangements ............................... 15
Chapter II. Procedure ........................................................................ 16
Article 14. Agenda and preparation for the Conference ...................... 16
Article 15. Transmission of agenda and reports
for the Conference ................................................................... 16
Article 16. Objections to agenda .............................................................. 16
Article 17. Officers of the Conference, procedure
and committees ........................................................................ 17
Article 18. Technical experts ..................................................................... 17
4
Page
Article 19. Conventions and Recommendations .................................... 18
Article 20. Registration with the United Nations .................................... 21
Article 21. Conventions not adopted by the Conference ...................... 22
Article 22. Annual reports on ratified Conventions ............................... 22
Article 23. Examination and communication of reports ....................... 22
Article 24. Representations of non-observance
of Conventions .......................................................................... 23
Article 25. Publication of representation ................................................. 23
Article 26. Complaints of non-observance .............................................. 23
Article 27. Cooperation with Commission of Inquiry ............................ 24
Article 28. Report of Commission of Inquiry........................................... 24
Article 29. Action on report of Commission of Inquiry.......................... 24
Article 30. Failure to submit Conventions or Recommendations
to competent authorities ........................................................ 25
Article 31. Finality of decisions of the International
Court of Justice ......................................................................... 25
Article 32. Effect of decisions of the International Court
of Justice on findings or recommendations of
Commission of Inquiry ............................................................ 25
Article 33. Failure to carry out recommendations of
Commission of Inquiry or the International
Court of Justice ......................................................................... 25
Article 34. Compliance with recommendations of
Commission of Inquiry or the International
Court of Justice ......................................................................... 26
Chapter III. General ............................................................................ 26
Article 35. Application of Conventions to non-metropolitan
territories ................................................................................... 26
Article 36. Amendments to Constitution ................................................. 28
5
Page
Article 37. Interpretation of the Constitution and
of Conventions .......................................................................... 28
Article 38. Regional Conferences .............................................................. 29
Chapter IV. Miscellaneous provisions ............................................... 29
Article 39. Legal status of Organization .................................................. 29
Article 40. Privileges and immunities ....................................................... 29
Annex Declaration concerning the aims and purposes
of the International Labour Organization
(Declaration of Philadelphia) ......................................... 30

7
 Constitution of the International Labour
Organization
Preamble
Whereas universal and lasting peace can be established only if it is
based upon social justice;
And whereas conditions of labour exist involving such injustice,
hardship and privation to large numbers of people as to produce unrest so
great that the peace and harmony of the world are imperilled; and an
improvement of those conditions is urgently required; as, for example, by
the regulation of the hours of work including the establishment of a
maximum working day and week, the regulation of the labour supply, the
prevention of unemployment, the provision of an adequate living wage, the
protection of the worker against sickness, disease and injury arising out of
his employment, the protection of children, young persons and women,
provision for old age and injury, protection of the interests of workers when
employed in countries other than their own, recognition of the principle of
equal remuneration for work of equal value, recognition of the principle of
freedom of association, the organization of vocational and technical
education and other measures;
Editor’s notes:
(1) The original text of the Constitution, established in 1919, has been modified by the
amendment of 1922 which entered into force on 4 June 1934; the Instrument of Amendment
of 1945 which entered into force on 26 September 1946; the Instrument of Amendment of
1946 which entered into force on 20 April 1948; the Instrument of Amendment of 1953
which entered into force on 20 May 1954; the Instrument of Amendment of 1962 which
entered into force on 22 May 1963; the Instrument of Amendment of 1972 which entered
into force on 1 November 1974; and the Instrument of Amendment of 1997 which entered
into force on 8 October 2015.
(2) Equality for women and men in the world of work is a core value of the International Labour
Organization. The resolution concerning gender equality and the use of language in legal
texts of the ILO, adopted by the General Conference at its 100th Session, 2011, affirms that
gender equality should be reflected through the use of appropriate language in official legal
texts of the Organization and that, in the ILO Constitution and other legal texts of the
Organization, the use of one gender includes in its meaning a reference to the other gender
unless the context requires otherwise.
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Whereas also the failure of any nation to adopt humane conditions of
labour is an obstacle in the way of other nations which desire to improve the
conditions in their own countries;
The High Contracting Parties, moved by sentiments of justice and
humanity as well as by the desire to secure the permanent peace of the
world, and with a view to attaining the objectives set forth in this Preamble,
agree to the following Constitution of the International Labour Organization:
Chapter I. Organization
Article 1
Establishment and membership
1. A permanent organization is hereby established for the promotion
of the objects set forth in the Preamble to this Constitution and in the
Declaration concerning the aims and purposes of the International Labour
Organization adopted at Philadelphia on 10 May 1944, the text of which is
annexed to this Constitution.
2. The Members of the International Labour Organization shall be the
States which were Members of the Organization on 1 November 1945 and
such other States as may become Members in pursuance of the provisions
of paragraphs 3 and 4 of this article.
3. Any original member of the United Nations and any State admitted
to membership of the United Nations by a decision of the General Assembly
in accordance with the provisions of the Charter may become a Member of
the International Labour Organization by communicating to the Director-
General of the International Labour Office its formal acceptance of the
obligations of the Constitution of the International Labour Organization.
4. The General Conference of the International Labour Organization
may also admit Members to the Organization by a vote concurred in by two
thirds of the delegates attending the session, including two thirds of the
Government delegates present and voting. Such admission shall take effect
on the communication to the Director-General of the International Labour
Office by the government of the new Member of its formal acceptance of the
obligations of the Constitution of the Organization.
5. No Member of the International Labour Organization may withdraw
from the Organization without giving notice of its intention so to do to the
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Director-General of the International Labour Office. Such notice shall take
effect two years after the date of its reception by the Director-General,
subject to the Member having at that time fulfilled all financial obligations
arising out of its membership. When a Member has ratified any international
labour Convention, such withdrawal shall not affect the continued validity for
the period provided for in the Convention of all obligations arising
thereunder or relating thereto.
6. In the event of any State having ceased to be a Member of the
Organization, its readmission to membership shall be governed by the
provisions of paragraph 3 or paragraph 4 of this article as the case may be.
Article 2
Organs
The permanent organization shall consist of:
(a) a General Conference of representatives of the Members;
(b) a Governing Body composed as described in article 7; and
(c) an International Labour Office controlled by the Governing Body.
Article 3
Conference
1. The meetings of the General Conference of representatives of the
Members shall be held from time to time as occasion may require, and at
least once in every year. It shall be composed of four representatives of each
of the Members, of whom two shall be Government delegates and the two
others shall be delegates representing respectively the employers and the
workpeople of each of the Members.
2. Each delegate may be accompanied by advisers, who shall not
exceed two in number for each item on the agenda of the meeting. When
questions specially affecting women are to be considered by the Conference,
one at least of the advisers should be a woman.
3. Each Member which is responsible for the international relations of
non-metropolitan territories may appoint as additional advisers to each of its
delegates:
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(a) persons nominated by it as representatives of any such territory in
regard to matters within the self-governing powers of that territory; and
(b) persons nominated by it to advise its delegates in regard to matters
concerning non-self-governing territories.
4. In the case of a territory under the joint authority of two or more
Members, persons may be nominated to advise the delegates of such
Members.
5. The Members undertake to nominate non-Government delegates
and advisers chosen in agreement with the industrial organizations, if such
organizations exist, which are most representative of employers or
workpeople, as the case may be, in their respective countries.
6. Advisers shall not speak except on a request made by the delegate
whom they accompany and by the special authorization of the President of
the Conference, and may not vote.
7. A delegate may by notice in writing addressed to the President
appoint one of his advisers to act as his deputy, and the adviser, while so
acting, shall be allowed to speak and vote.
8. The names of the delegates and their advisers will be
communicated to the International Labour Office by the government of each
of the Members.
9. The credentials of delegates and their advisers shall be subject to
scrutiny by the Conference, which may, by two thirds of the votes cast by the
delegates present, refuse to admit any delegate or adviser whom it deems
not to have been nominated in accordance with this article.
Article 4
Voting rights
1. Every delegate shall be entitled to vote individually on all matters
which are taken into consideration by the Conference.
2. If one of the Members fails to nominate one of the non-Government
delegates whom it is entitled to nominate, the other non-Government
delegate shall be allowed to sit and speak at the Conference, but not to vote.
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3. If in accordance with article 3 the Conference refuses admission to
a delegate of one of the Members, the provisions of the present article shall
apply as if that delegate had not been nominated.
Article 5
Place of meetings of the Conference
The meetings of the Conference shall, subject to any decisions which
may have been taken by the Conference itself at a previous meeting, be held
at such place as may be decided by the Governing Body.
Article 6
Seat of the International Labour Office
Any change in the seat of the International Labour Office shall be
decided by the Conference by a two thirds majority of the votes cast by the
delegates present.
Article 7
Governing Body
1. The Governing Body shall consist of fifty-six persons:
(a) twenty-eight representing governments;
(b) fourteen representing the employers; and
(c) fourteen representing the workers.
2. Of the twenty-eight persons representing governments, ten shall be
appointed by the Members of chief industrial importance, and eighteen shall
be appointed by the Members selected for that purpose by the Government
delegates to the Conference, excluding the delegates of the ten Members
mentioned above.
3. The Governing Body shall as occasion requires determine which are
the Members of the Organization of chief industrial importance and shall
make rules to ensure that all questions relating to the selection of the
Members of chief industrial importance are considered by an impartial
committee before being decided by the Governing Body. Any appeal made
by a Member from the declaration of the Governing Body as to which are the
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Members of chief industrial importance shall be decided by the Conference,
but an appeal to the Conference shall not suspend the application of the
declaration until such time as the Conference decides the appeal.
4. The persons representing the employers and the persons
representing the workers shall be elected respectively by the Employers’
delegates and the Workers’ delegates to the Conference.
5. The period of office of the Governing Body shall be three years. If
for any reason the Governing Body elections do not take place on the expiry
of this period, the Governing Body shall remain in office until such elections
are held.
6. The method of filling vacancies and of appointing substitutes and
other similar questions may be decided by the Governing Body subject to the
approval of the Conference.
7. The Governing Body shall, from time to time, elect from its number
a chairperson and two vice-chairpersons, of whom one shall be a person
representing a government, one a person representing the employers, and
one a person representing the workers.
8. The Governing Body shall regulate its own procedure and shall fix
its own times of meeting. A special meeting shall be held if a written request
to that effect is made by at least sixteen of the representatives on the
Governing Body.
Article 8
Director-General
1. There shall be a Director-General of the International Labour Office,
who shall be appointed by the Governing Body, and, subject to the
instructions of the Governing Body, shall be responsible for the efficient
conduct of the International Labour Office and for such other duties as may
be assigned to him.
2. The Director-General or his deputy shall attend all meetings of the
Governing Body.
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Article 9
Staff
1. The staff of the International Labour Office shall be appointed by
the Director-General under regulations approved by the Governing Body.
2. So far as is possible with due regard to the efficiency of the work of
the Office, the Director-General shall select persons of different nationalities.
3. A certain number of these persons shall be women.
4. The responsibilities of the Director-General and the staff shall be
exclusively international in character. In the performance of their duties, the
Director-General and the staff shall not seek or receive instructions from any
government or from any other authority external to the Organization. They
shall refrain from any action which might reflect on their position as
international officials responsible only to the Organization.
5. Each Member of the Organization undertakes to respect the
exclusively international character of the responsibilities of the Director-
General and the staff and not to seek to influence them in the discharge of
their responsibilities.
Article 10
Functions of the International Labour Office
1. The functions of the International Labour Office shall include the
collection and distribution of information on all subjects relating to the
international adjustment of conditions of industrial life and labour, and
particularly the examination of subjects which it is proposed to bring before
the Conference with a view to the conclusion of international Conventions,
and the conduct of such special investigations as may be ordered by the
Conference or by the Governing Body.
2. Subject to such directions as the Governing Body may give, the
Office shall:
(a) prepare the documents on the various items of the agenda for the
meetings of the Conference;
(b) accord to governments at their request all appropriate assistance within
its power in connection with the framing of laws and regulations on the
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basis of the decisions of the Conference and the improvement of
administrative practices and systems of inspection;
(c) carry out the duties required of it by the provisions of this Constitution
in connection with the effective observance of Conventions;
(d) edit and issue, in such languages as the Governing Body may think
desirable, publications dealing with problems of industry and
employment of international interest.
3. Generally, it shall have such other powers and duties as may be
assigned to it by the Conference or by the Governing Body.
Article 11
Relations with governments
The government departments of any of the Members which deal with
questions of industry and employment may communicate directly with the
Director-General through the representative of their government on the
Governing Body of the International Labour Office or, failing any such
representative, through such other qualified official as the government may
nominate for the purpose.
Article 12
Relations with international organizations
1. The International Labour Organization shall cooperate within the
terms of this Constitution with any general international organization
entrusted with the coordination of the activities of public international
organizations having specialized responsibilities and with public
international organizations having specialized responsibilities in related
fields.
2. The International Labour Organization may make appropriate
arrangements for the representatives of public international organizations
to participate without vote in its deliberations.
3. The International Labour Organization may make suitable
arrangements for such consultation as it may think desirable with recognized
non-governmental international organizations, including international
organizations of employers, workers, agriculturists and cooperators.
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Article 13
Financial and budgetary arrangements
1. The International Labour Organization may make such financial and
budgetary arrangements with the United Nations as may appear
appropriate.
2. Pending the conclusion of such arrangements or if at any time no
such arrangements are in force:
(a) each of the Members will pay the travelling and subsistence expenses
of its delegates and their advisers and of its representatives attending
the meetings of the Conference or the Governing Body, as the case may
be;
(b) all other expenses of the International Labour Office and of the
meetings of the Conference or Governing Body shall be paid by the
Director-General of the International Labour Office out of the general
funds of the International Labour Organization;
(c) the arrangements for the approval, allocation and collection of the
budget of the International Labour Organization shall be determined by
the Conference by a two thirds majority of the votes cast by the
delegates present, and shall provide for the approval of the budget and
of the arrangements for the allocation of expenses among the Members
of the Organization by a committee of Government representatives.
3. The expenses of the International Labour Organization shall be
borne by the Members in accordance with the arrangements in force in virtue
of paragraph 1 or paragraph 2(c) of this article.
4. A Member of the Organization which is in arrears in the payment of
its financial contribution to the Organization shall have no vote in the
Conference, in the Governing Body, in any committee, or in the elections of
members of the Governing Body, if the amount of its arrears equals or
exceeds the amount of the contributions due from it for the preceding two
full years provided that the Conference may by a two thirds majority of the
votes cast by the delegates present permit such a Member to vote if it is
satisfied that the failure to pay is due to conditions beyond the control of the
Member.
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5. The Director-General of the International Labour Office shall be
responsible to the Governing Body for the proper expenditure of the funds
of the International Labour Organization.
Chapter II. Procedure
Article 14
Agenda and preparation for the Conference
1. The agenda for all meetings of the Conference will be 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 organization recognized for the purpose of article 3, or by any
public international organization.
2. The Governing Body shall make rules to ensure thorough technical
preparation and adequate consultation of the Members primarily concerned,
by means of a preparatory conference or otherwise, prior to the adoption of
a Convention or Recommendation by the Conference.
Article 15
Transmission of agenda and reports for the Conference
1. The Director-General shall act as the Secretary-General of the
Conference, and shall transmit the agenda so as to reach the Members four
months before the meeting of the Conference, and, through them, the non-
Government delegates when appointed.
2. The reports on each item of the agenda shall be despatched so as
to reach the Members in time to permit adequate consideration before the
meeting of the Conference. The Governing Body shall make rules for the
application of this provision.
Article 16
Objections to agenda
1. Any of the governments of the Members may formally object to the
inclusion of any item or items in the agenda. The grounds for such objection
17
shall be set forth in a statement addressed to the Director-General who shall
circulate it to all the Members of the Organization.
2. Items to which such objection has been made shall not, however,
be excluded from the agenda, if at the Conference a majority of two thirds of
the votes cast by the delegates present is in favour of considering them.
3. If the Conference decides (otherwise than under the preceding
paragraph) by two thirds of the votes cast by the delegates present that any
subject shall be considered by the Conference, that subject shall be included
in the agenda for the following meeting.
Article 17
Officers of the Conference, procedure and committees
1. The Conference shall elect a president and three vice-presidents.
One of the vice-presidents shall be a Government delegate, one an
Employers’ delegate and one a Workers’ delegate. The Conference shall
regulate its own procedure and may appoint committees to consider and
report on any matter.
2. Except as otherwise expressly provided in this Constitution or by the
terms of any Convention or other instrument conferring powers on the
Conference or of the financial and budgetary arrangements adopted in virtue
of article 13, all matters shall be decided by a simple majority of the votes
cast by the delegates present.
3. The voting is void unless the total number of votes cast is equal to
half the number of the delegates attending the Conference.
Article 18
Technical experts
The Conference may add to any committees which it appoints technical
experts without power to vote.
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Article 19
Conventions and Recommendations
1. When the Conference has decided on the adoption of proposals
with regard to an item on the agenda, it will rest with the Conference to
determine whether these proposals should take the form:
(a) of an international Convention, or
(b) of a Recommendation to meet circumstances where the subject, or
aspect of it, dealt with is not considered suitable or appropriate at that
time for a Convention.
2. In either case a majority of two thirds of the votes cast by the
delegates present shall be necessary on the final vote for the adoption of the
Convention or Recommendation, as the case may be, by the Conference.
3. In framing any Convention or Recommendation of general
application the Conference shall have due regard to those countries in which
climatic conditions, the imperfect development of industrial organization, or
other special circumstances make the industrial conditions substantially
different and shall suggest the modifications, if any, which it considers may
be required to meet the case of such countries.
4. Two copies of the Convention or Recommendation shall be
authenticated by the signatures of the President of the Conference and of
the Director-General. Of these copies one shall be deposited in the archives
of the International Labour Office and the other with the Secretary-General
of the United Nations. The Director-General will communicate a certified copy
of the Convention or Recommendation to each of the Members.
5. In the case of a Convention:
(a) the Convention will be communicated to all Members for ratification;
(b) each of the Members undertakes that it will, within the period of one
year at most from the closing of the session of the Conference, or if it is
impossible owing to exceptional circumstances to do so within the
period of one year, then at the earliest practicable moment and in no
case later than 18 months from the closing of the session of the
Conference, bring the Convention before the authority or authorities
within whose competence the matter lies, for the enactment of
legislation or other action;
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(c) Members shall inform the Director-General of the International Labour
Office of the measures taken in accordance with this article to bring the
Convention before the said competent authority or authorities, with
particulars of the authority or authorities regarded as competent, and
of the action taken by them;
(d) if the Member obtains the consent of the authority or authorities within
whose competence the matter lies, it will communicate the formal
ratification of the Convention to the Director-General and will take such
action as may be necessary to make effective the provisions of such
Convention;
(e) if the Member does not obtain the consent of the authority or
authorities within whose competence the matter lies, no further
obligation shall rest upon the Member except that it shall report to the
Director-General of the International Labour Office, at appropriate
intervals as requested by the Governing Body, the position of its law and
practice in regard to the matters dealt with in the Convention, showing
the extent to which effect has been given, or is proposed to be given, to
any of the provisions of the Convention by legislation, administrative
action, collective agreement or otherwise and stating the difficulties
which prevent or delay the ratification of such Convention.
6. In the case of a Recommendation:
(a) the Recommendation will be communicated to all Members for their
consideration with a view to effect being given to it by national
legislation or otherwise;
(b) each of the Members undertakes that it will, within a period of one year
at most from the closing of the session of the Conference or if it is
impossible owing to exceptional circumstances to do so within the
period of one year, then at the earliest practicable moment and in no
case later than 18 months after the closing of the Conference, bring the
Recommendation before the authority or authorities within whose
competence the matter lies for the enactment of legislation or other
action;
(c) the Members shall inform the Director-General of the International
Labour Office of the measures taken in accordance with this article to
bring the Recommendation before the said competent authority or
authorities with particulars of the authority or authorities regarded as
competent, and of the action taken by them; and
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(d) apart from bringing the Recommendation before the said competent
authority or authorities, no further obligation shall rest upon the
Members, except that they shall report to the Director-General of the
International Labour Office, at appropriate intervals as requested by the
Governing Body, the position of the law and practice in their country in
regard to the matters dealt with in the Recommendation, showing the
extent to which effect has been given, or is proposed to be given, to the
provisions of the Recommendation and such modifications of these
provisions as it has been found or may be found necessary to make in
adopting or applying them.
7. In the case of a federal state, the following provisions shall apply:
(a) in respect of Conventions and Recommendations which the federal
government regards as appropriate under its constitutional system for
federal action, the obligations of the federal state shall be the same as
those of Members which are not federal states;
(b) in respect of Conventions and Recommendations which the federal
government regards as appropriate under its constitutional system, in
whole or in part, for action by the constituent states, provinces, or
cantons rather than for federal action, the federal government shall:
(i) make, in accordance with its Constitution and the Constitutions of
the states, provinces or cantons concerned, effective
arrangements for the reference of such Conventions and
Recommendations not later than 18 months from the closing of
the session of the Conference to the appropriate federal, state,
provincial or cantonal authorities for the enactment of legislation
or other action;
(ii) arrange, subject to the concurrence of the state, provincial or
cantonal governments concerned, for periodical consultations
between the federal and the state, provincial or cantonal
authorities with a view to promoting within the federal state
coordinated action to give effect to the provisions of such
Conventions and Recommendations;
(iii) inform the Director-General of the International Labour Office of
the measures taken in accordance with this article to bring such
Conventions and Recommendations before the appropriate
federal state, provincial or cantonal authorities with particulars of
21
the authorities regarded as appropriate and of the action taken by
them;
(iv) in respect of each such Convention which it has not ratified, report
to the Director-General of the International Labour Office, at
appropriate intervals as requested by the Governing Body, the
position of the law and practice of the federation and its
constituent states, provinces or cantons in regard to the
Convention, showing the extent to which effect has been given, or
is proposed to be given, to any of the provisions of the Convention
by legislation, administrative action, collective agreement, or
otherwise;
(v) in respect of each such Recommendation, report to the Director-
General of the International Labour Office, at appropriate intervals
as requested by the Governing Body, the position of the law and
practice of the federation and its constituent states, provinces or
cantons in regard to the Recommendation, showing the extent to
which effect has been given, or is proposed to be given, to the
provisions of the Recommendation and such modifications of
these provisions as have been found or may be found necessary in
adopting or applying them.
8. In no case shall the adoption of any Convention or
Recommendation by the Conference, or the ratification of any Convention by
any Member, be deemed to affect any law, award, custom or agreement
which ensures more favourable conditions to the workers concerned than
those provided for in the Convention or Recommendation.
9. Acting on a proposal of the Governing Body, the Conference may,
by a majority of two thirds of the votes cast by the delegates present,
abrogate any Convention adopted in accordance with the provisions of this
article if it appears that the Convention has lost its purpose or that it no
longer makes a useful contribution to attaining the objectives of the
Organization.
Article 20
Registration with the United Nations
Any Convention so ratified shall be communicated by the Director-
General of the International Labour Office to the Secretary-General of the
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United Nations for registration in accordance with the provisions of
article 102 of the Charter of the United Nations but shall only be binding
upon the Members which ratify it.
Article 21
Conventions not adopted by the Conference
1. If any Convention coming before the Conference for final
consideration fails to secure the support of two thirds of the votes cast by the
delegates present, it shall nevertheless be within the right of any of the
Members of the Organization to agree to such Convention among
themselves.
2. Any Convention so agreed to shall be communicated by the
governments concerned to the Director-General of the International Labour
Office and to the Secretary-General of the United Nations for registration in
accordance with the provisions of article 102 of the Charter of the United
Nations.
Article 22
Annual reports on ratified Conventions
Each of the Members agrees to make an annual report to the
International Labour Office on the measures which it has taken to give effect
to the provisions of Conventions to which it is a party. These reports shall be
made in such form and shall contain such particulars as the Governing Body
may request.
Article 23
Examination and communication of reports
1. The Director-General shall lay before the next meeting of the
Conference a summary of the information and reports communicated to him
by Members in pursuance of articles 19 and 22.
2. Each Member shall communicate to the representative
organizations recognized for the purpose of article 3 copies of the
information and reports communicated to the Director-General in pursuance
of articles 19 and 22.
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Article 24
Representations of non-observance of Conventions
In the event of any representation being made to the International
Labour Office by an industrial association of employers or of workers that
any of the Members has failed to secure in any respect the effective
observance within its jurisdiction of any Convention to which it is a party, the
Governing Body may communicate this representation to the government
against which it is made, and may invite that government to make such
statement on the subject as it may think fit.
Article 25
Publication of representation
If no statement is received within a reasonable time from the
government in question, or if the statement when received is not deemed to
be satisfactory by the Governing Body, the latter shall have the right to
publish the representation and the statement, if any, made in reply to it.
Article 26
Complaints of non-observance
1. Any of the Members shall have the right to file a complaint with the
International Labour Office if it is not satisfied that any other Member is
securing the effective observance of any Convention which both have ratified
in accordance with the foregoing articles.
2. The Governing Body may, if it thinks fit, before referring such a
complaint to a Commission of Inquiry, as hereinafter provided for,
communicate with the government in question in the manner described in
article 24.
3. If the Governing Body does not think it necessary to communicate
the complaint to the government in question, or if, when it has made such
communication, no statement in reply has been received within a reasonable
time which the Governing Body considers to be satisfactory, the Governing
Body may appoint a Commission of Inquiry to consider the complaint and to
report thereon.
24
4. The Governing Body may adopt the same procedure either of its
own motion or on receipt of a complaint from a delegate to the Conference.
5. When any matter arising out of article 25 or 26 is being considered
by the Governing Body, the government in question shall, if not already
represented thereon, be entitled to send a representative to take part in the
proceedings of the Governing Body while the matter is under consideration.
Adequate notice of the date on which the matter will be considered shall be
given to the government in question.
Article 27
Cooperation with Commission of Inquiry
The Members agree that, in the event of the reference of a complaint to
a Commission of Inquiry under article 26, they will each, whether directly
concerned in the complaint or not, place at the disposal of the Commission
all the information in their possession which bears upon the subject matter
of the complaint.
Article 28
Report of Commission of Inquiry
When the Commission of Inquiry has fully considered the complaint, it
shall prepare a report embodying its findings on all questions of fact relevant
to determining the issue between the parties and containing such
recommendations as it may think proper as to the steps which should be
taken to meet the complaint and the time within which they should be taken.
Article 29
Action on report of Commission of Inquiry
1. The Director-General of the International Labour Office shall
communicate the report of the Commission of Inquiry to the Governing Body
and to each of the governments concerned in the complaint, and shall cause
it to be published.
2. Each of these governments shall within three months inform the
Director-General of the International Labour Office whether or not it accepts
the recommendations contained in the report of the Commission and if not,
25
whether it proposes to refer the complaint to the International Court of
Justice.
Article 30
Failure to submit Conventions or Recommendations
to competent authorities
In the event of any Member failing to take the action required by
paragraphs 5(b), 6(b) or 7(b)(i) of article 19 with regard to a Convention or
Recommendation, any other Member shall be entitled to refer the matter to
the Governing Body. In the event of the Governing Body finding that there
has been such a failure, it shall report the matter to the Conference.
Article 31
Finality of decisions of the International Court of Justice
The decision of the International Court of Justice in regard to a
complaint or matter which has been referred to it in pursuance of article 29
shall be final.
Article 32
Effect of decisions of the International Court of Justice on findings or
recommendations of Commission of Inquiry
The International Court of Justice may affirm, vary or reverse any of the
findings or recommendations of the Commission of Inquiry, if any.
Article 33
Failure to carry out recommendations of Commission of Inquiry or the
International Court of Justice
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.
26
Article 34
Compliance with recommendations of Commission of Inquiry or the
International Court of Justice
The defaulting government may at any time inform the Governing Body
that it has taken the steps necessary to comply with the recommendations of
the Commission of Inquiry or with those in the decision of the International
Court of Justice, as the case may be, and may request it to constitute a
Commission of Inquiry to verify its contention. In this case the provisions of
articles 27, 28, 29, 31 and 32 shall apply, and if the report of the Commission
of Inquiry or the decision of the International Court of Justice is in favour of
the defaulting government, the Governing Body shall forthwith recommend
the discontinuance of any action taken in pursuance of article 33.
Chapter III. General
Article 35
Application of Conventions to non-metropolitan territories
1. The Members undertake that Conventions which they have ratified
in accordance with the provisions of this Constitution shall be applied to the
non-metropolitan territories for whose international relations they are
responsible, including any trust territories for which they are the
administering authority, except where the subject matter of the Convention
is within the self-governing powers of the territory or the Convention is
inapplicable owing to the local conditions or subject to such modifications as
may be necessary to adapt the Convention to local conditions.
2. Each Member which ratifies a Convention shall as soon as possible
after ratification communicate to the Director-General of the International
Labour Office a declaration stating in respect of the territories other than
those referred to in paragraphs 4 and 5 below the extent to which it
undertakes that the provisions of the Convention shall be applied and giving
such particulars as may be prescribed by the Convention.
3. Each Member which has communicated a declaration in virtue of
the preceding paragraph may from time to time, in accordance with the
terms of the Convention, communicate a further declaration modifying the
terms of any former declaration and stating the present position in respect
of such territories.
27
4. Where the subject matter of the Convention is within the selfgoverning
powers of any non-metropolitan territory, the Member
responsible for the international relations of that territory shall bring the
Convention to the notice of the government of the territory as soon as
possible with a view to the enactment of legislation or other action by such
government. Thereafter the Member, in agreement with the government of
the territory, may communicate to the Director-General of the International
Labour Office a declaration accepting the obligations of the Convention on
behalf of such territory.
5. A declaration accepting the obligations of any Convention may be
communicated to the Director-General of the International Labour Office:
(a) by two or more Members of the Organization in respect of any territory
which is under their joint authority; or
(b) by any international authority responsible for the administration of any
territory, in virtue of the Charter of the United Nations or otherwise, in
respect of any such territory.
6. Acceptance of the obligations of a Convention in virtue of
paragraph 4 or paragraph 5 of this article shall involve the acceptance on
behalf of the territory concerned of the obligations stipulated by the terms
of the Convention and the obligations under the Constitution of the
Organization which apply to ratified Conventions. A declaration of
acceptance may specify such modification of the provisions of the
Conventions as may be necessary to adapt the Convention to local
conditions.
7. Each Member or international authority which has communicated a
declaration in virtue of paragraph 4 or paragraph 5 of this article may from
time to time, in accordance with the terms of the Convention, communicate
a further declaration modifying the terms of any former declaration or
terminating the acceptance of the obligations of the Convention on behalf of
the territory concerned.
8. If the obligations of a Convention are not accepted on behalf of a
territory to which paragraph 4 or paragraph 5 of this article relates, the
Member or Members or international authority concerned shall report to the
Director-General of the International Labour Office the position of the law
and practice of that territory in regard to the matters dealt with in the
Convention and the report shall show the extent to which effect has been
given, or is proposed to be given, to any of the provisions of the Convention
28
by legislation, administrative action, collective agreement or otherwise and
shall state the difficulties which prevent or delay the acceptance of such
Convention.
Article 36
Amendments to Constitution
Amendments to this Constitution which are adopted by the Conference
by a majority of two thirds of the votes cast by the delegates present shall
take effect when ratified or accepted by two thirds of the Members of the
Organization including five of the ten Members which are represented on the
Governing Body as Members of chief industrial importance in accordance
with the provisions of paragraph 3 of article 7 of this Constitution.
Article 37
Interpretation of the Constitution and of Conventions
1. Any question or dispute relating to the interpretation of this
Constitution or of any subsequent Convention concluded by the Members in
pursuance of the provisions of this Constitution shall be referred for decision
to the International Court of Justice.
2. Notwithstanding the provisions of paragraph 1 of this article the
Governing Body may make and submit to the Conference for approval rules
providing for the appointment of a tribunal for the expeditious
determination of any dispute or question relating to the interpretation of a
Convention which may be referred thereto by the Governing Body or in
accordance with the terms of the Convention. Any applicable judgement or
advisory opinion of the International Court of Justice shall be binding upon
any tribunal established in virtue of this paragraph. Any award made by such
a tribunal shall be circulated to the Members of the Organization and any
observations which they may make thereon shall be brought before the
Conference.
29
Article 38
Regional Conferences
1. The International Labour Organization may convene such regional
conferences and establish such regional agencies as may be desirable to
promote the aims and purposes of the Organization.
2. The powers, functions and procedure of regional conferences shall
be governed by rules drawn up by the Governing Body and submitted to the
General Conference for confirmation.
Chapter IV. Miscellaneous provisions
Article 39
Legal status of Organization
The International Labour Organization shall possess full juridical
personality and in particular the capacity:
(a) to contract;
(b) to acquire and dispose of immovable and movable property;
(c) to institute legal proceedings.
Article 40
Privileges and immunities
1. The International Labour Organization shall enjoy in the territory of
each of its Members such privileges and immunities as are necessary for the
fulfilment of its purposes.
2. Delegates to the Conference, members of the Governing Body and
the Director-General and officials of the Office shall likewise enjoy such
privileges and immunities as are necessary for the independent exercise of
their functions in connection with the Organization.
3. Such privileges and immunities shall be defined in a separate
agreement to be prepared by the Organization with a view to its acceptance
by the States Members.
30
Annex
Declaration concerning the aims and purposes of the
International Labour Organization
(Declaration of Philadelphia)
The General Conference of the International Labour Organization,
meeting in its Twenty-sixth Session in Philadelphia, hereby adopts, this tenth
day of May in the year nineteen hundred and forty-four, the present
Declaration of the aims and purposes of the International Labour
Organization and of the principles which should inspire the policy of its
Members.
I
The Conference reaffirms the fundamental principles on which the
Organization is based and, in particular, that:
(a) labour is not a commodity;
(b) freedom of expression and of association are essential to sustained
progress;
(c) poverty anywhere constitutes a danger to prosperity everywhere;
(d) the war against want requires to be carried on with unrelenting vigour
within each nation, and by continuous and concerted international
effort in which the representatives of workers and employers, enjoying
equal status with those of governments, join with them in free
discussion and democratic decision with a view to the promotion of the
common welfare.
II
Believing that experience has fully demonstrated the truth of the
statement in the Constitution of the International Labour Organization that
lasting peace can be established only if it is based on social justice, the
Conference affirms that:
(a) all human beings, irrespective of race, creed or sex, have the right to
pursue both their material well-being and their spiritual development in
31
conditions of freedom and dignity, of economic security and equal
opportunity;
(b) the attainment of the conditions in which this shall be possible must
constitute the central aim of national and international policy;
(c) all national and international policies and measures, in particular those
of an economic and financial character, should be judged in this light
and accepted only in so far as they may be held to promote and not to
hinder the achievement of this fundamental objective;
(d) it is a responsibility of the International Labour Organization to examine
and consider all international economic and financial policies and
measures in the light of this fundamental objective;
(e) in discharging the tasks entrusted to it the International Labour
Organization, having considered all relevant economic and financial
factors, may include in its decisions and recommendations any
provisions which it considers appropriate.
III
The Conference recognizes the solemn obligation of the International
Labour Organization to further among the nations of the world programmes
which will achieve:
(a) full employment and the raising of standards of living;
(b) the employment of workers in the occupations in which they can have
the satisfaction of giving the fullest measure of their skill and
attainments and make their greatest contribution to the common wellbeing;
(c) the provision, as a means to the attainment of this end and under
adequate guarantees for all concerned, of facilities for training and the
transfer of labour, including migration for employment and settlement;
(d) policies in regard to wages and earnings, hours and other conditions of
work calculated to ensure a just share of the fruits of progress to all, and
a minimum living wage to all employed and in need of such protection;
(e) the effective recognition of the right of collective bargaining, the
cooperation of management and labour in the continuous improvement
32
of productive efficiency, and the collaboration of workers and employers
in the preparation and application of social and economic measures;
(f) the extension of social security measures to provide a basic income to
all in need of such protection and comprehensive medical care;
(g) adequate protection for the life and health of workers in all occupations;
(h) provision for child welfare and maternity protection;
(i) the provision of adequate nutrition, housing and facilities for recreation
and culture;
(j) the assurance of equality of educational and vocational opportunity.
IV
Confident that the fuller and broader utilization of the world’s
productive resources necessary for the achievement of the objectives set
forth in this Declaration can be secured by effective international and
national action, including measures to expand production and consumption,
to avoid severe economic fluctuations to promote the economic and social
advancement of the less developed regions of the world, to assure greater
stability in world prices of primary products, and to promote a high and
steady volume of international trade, the Conference pledges the full
cooperation of the International Labour Organization with such international
bodies as may be entrusted with a share of the responsibility for this great
task and for the promotion of the health, education and well-being of all
peoples.
V
The Conference affirms that the principles set forth in this Declaration
are fully applicable to all peoples everywhere and that, while the manner of
their application must be determined with due regard to the stage of social
and economic development reached by each people, their progressive
application to peoples who are still dependent, as well as to those who have
already achieved self-government, is a matter of concern to the whole
civilized world.
Document No. 2
Agreement between the United Nations and the ILO,
1946

INTERNATIONAL LABOUR OFFICE
OFFICIAL BULLETIN
20 December 1946 Vol. XXIX, No. 6
Protocol concerning the Entry into Force of
the Agreement between the United Nations
and the International Labour Organization
Article 57 of the Charter of the United Nations provides that
specialized agencies established by intergovernmental agreement and
having wide international responsibilities as defined in their basic
instruments in economic, social, cultural, educational, health and
related fields shall be brought into relationship with the United
Nations. Article 63 of the Charter provides that the Economic and
Social Council may enter into agreements with any of the agencies
referred to in Article 57, defining the terms on which the agency
concerned shall be brought into relationship with the United Nations,
and specifies that such agreements shall be subject to approval by
the General Assembly.
The International Labour Conference, meeting in its twentyseventh
session in Paris on 3 November 1945, adopted a resolution
confirming the desire of the International Labour Organization to
enter into relationship with the United Nations on terms, to be
determined by agreement, which will permit the International Labour
Organization, in which the representatives of workers and employers
enjoy equal status with those of Governments, to co-operate fully
f or the attainment of the ends of the United Nations, while retaining
the authority essential for the discharge of its responsibilities under
the Constitution of the Organization and the Declaration of Philadelphia,
and authorizing the Governing Body of the International
Labour Office to enter, subject to the approval of the Conference,
into such agreements with the appropriate authorities of the United
Nations as might be necessary or desirable for this purpose.
384
The Economic and Social Council, during its first session, in
January-February 1946, adopted a resolution establishing a Committee
of the Council on Negotiations with Specialized Agencies
which was directed to enter into negotiations as early as possible
with the International Labour Organization.
Negotiations between the Committee on Negotiations with Specialized
Agencies of the Economic and Social Council and the Negotiating
Delegation of the International Labour Organization took
place in New York on 28 and 29 May 1946 and resulted in an
Agreement. This Agreement was signed on 30 May 1946 by Sir
A. Ramaswami Mudaliar, President of the Economic and Social
Council and Chairman of the Committee on Negotiations with Specialized
Agencies, and Mr. G. Myrddin-Evans, Chairman of the
Governing Body of the International Labour Office and of the Negotiating
Delegation of the International Labour Organization.
On 21 June 1946, the Economic and Social Council, during its
second session, unanimously recommended the Agreement between
the United Nations and the International Labour Organization to
the General Assembly for its approval.
Article XX of the Agreement provides that the Agreement shall
come into force on its approval by the General Assembly of the
United Nations and the General Conference of the International
Labour Organization.
The Agreement was approved by the General Assembly of the
United Nations on 14 December 1946 and by the General Conference
of the International Labour Organization on 2 October 1946.
The Agreement accordingly came into force on 14 December
1946.
A copy of the authentic text of the Agreement is attached hereto.
IN FAITH WHEREOF we have appended our signatures this
nineteenth day of December, one thousand nine hundred and fortysix,
to two original copies of the present Protocol, the text of which
consists of versions in the English and French languages which are
equally authentic. One of the original copies will be filed and recorded
with the Secretariat of the United Nations and the other will
be deposited in the archives of the International Labour Office.
TRYGVE LIE,
Secretary-General of the United Nations
EDWARD PHELAN,
Director-General of the International
Labour Office
385
Agreement between the United Nations and the
International Labour Organization
Article 57 of the Charter of the United Nations provides that
specialized agencies established by intergovernmental agreement and
having wide international responsibilities as defined in their basic
instruments in economic, social, cultural, educational, health and related
fields shall be brought into relationship with the United Nations.
The International Labour Conference, meeting in its twentyseventh
session in Paris on 3 November 1945, adopted a
confirming the desire of the International Labour Organization to
enter into relationship with the United Nations on terms to be
determined by agreement.
Therefore, the United Nations and the International Labour
Organization agree as follows:
ARTICLE I
The United Nations recognizes the International Labour Organization
as a specialized agency responsible for taking such action as
may be appropriate under its basic instrument for the accomplishment
of the purposes set forth therein.
ARTICLE II
Reciprocal representation
1. Representatives of the United Nations shall be invited to
attend the meetings of the International Labour Conference (hereinafter
called the Conference) and its committees, the Governing
Body and its committees, and such general, regional or other special
meetings as the International Labour Organization may convene,
and to participate, without vote, in the deliberations of these bodies.
2. Representatives of the International Labour Organization
shall be invited to attend meetings of the Economic and Social Council
of the United Nations (hereinafter called the Council) and of its
commissions and committees and to participate, without vote, in the
deliberations of these bodies with respect to items on their agenda
in which the International Labour Organization has indicated that
it has an interest.
3. Representatives of the International Labour Organization
shall be invited to attend, in a consultative capacity, meetings of the
General Assembly and shall be afforded full opportunity for presenting
to the General Assembly the views of the International
Labour Organization on questions within the scope of its activities.
386
4. Representatives of the International Labour Organization
shall be invited to attend meetings of the main committees of the
General Assembly in which the International Labour Organization
has an interest and to participate, without vote, in the deliberations
thereof.
5. Representatives of the International Labour Organization
shall be invited to attend the meetings of the Trusteeship Council
and to participate, without vote, in the deliberations thereof with
respect to items on the agenda in which the International Labour
Organization has indicated that it has an interest.
6. Written statements of the Organization shall be distributed
by the Secretariat of the United Nations to all Members of the
General Assembly, the Council and its commissions and the Trusteeship
Council as appropriate.
ARTICLE III
Proposal of agenda items
Subject to such preliminary consultation as may be necessary,
the International Labour Organization shall include on the agenda
of the Governing Body items proposed to it by the United Nations.
Similarly, the Council and its commissions and the Trusteeship
Council shall include on their agenda items proposed by the International
Labour Organization.
ARTICLE IV
Recommendations of the General Assembly and of the Council
1. The International Labour Organization, having regard to the
obligation of the United Nations to promote the objectives set forth
in Article 55 of the Charter and the function and power of the
Council, under Article 62 of the Charter, to make or initiate studies
and reports with respect to international economic, social, cultural,
educational, health and related matters and to make recommendations
concerning these matters to the specialized agencies concerned,
and having regard also to the responsibility of the United Nations,
under Articles 58 and 63 of the Charter, to make recommendations
for the co-ordination of the policies and activities of such specialized
agencies, agrees to arrange for the submission, as soon as possible,
to the Governing Body, the Conference or such other organ of the
International Labour Organization, as may be appropriate, of all
formal recommendations which the General Assembly or the Council
may make to it.
387
2. The International Labour Organization agrees to enter into
consultation with the United Nations upon request, with respect
to such recommendations, and in due course to report to the United
Nations on the action taken, by the Organization or by its members,
to give effect to such recommendations, or on the other results of
their consideration.
3. The International Labour Organization affirms its intention
of co-operating in whatever further measures may be necessary to
make co-ordination of the activities of specialized agencies and those
of the United Nations fully effective. In particular, it agrees to
participate in, and to co-operate with, any body or bodies which the
Council may establish for the purpose of facilitating such co-ordination,
and to furnish such information, as may be required for the
carrying out of this purpose.
V
Exchange of information and documents
1. Subject . to such arrangements as may be necessary for the
safeguarding of confidential material, the fullest and promptest
exchange of information and documents shall be made between the
United Nations and the International Labour Organization.
2. Without prejudice to the generality of the provisions of paragraph
1:
(a) the International Labour Organization agrees to transmit to the
United Nations regular reports on the activities of the International
Labour Organization;
(b) the International Labour Organization agrees to comply to the
fullest extent practicable with any request which the United
Nations may make for the furnishing of special reports, studies
or information, subject to the conditions set forth in Article XV;
and
(c) the Secretary-General shall, upon request, consult with the
Director regarding the provision to the International Labour
Organization of such information as may be of special interest
to the Organization.
ARTiCLE' VI
Assistance to the Security Council
The International Labour Organization agrees to co-operate with
the Economic and Social Council in furnishing such information and
rendering such assistance to the Security Council as that. Council
388
may request including assistance in carrying out decisions of the
Security Council for the maintenance or restoration of international
peace and security.
ARTICLE VII
Assistance to the Trusteeship Council
The International Labour Organization agrees to co-operate with
the Trusteeship Council in the carrying out of its functions and in
particular agrees that it will, to the greatest extent possible, render
such assistance as the Trusteeship Council may request, in regard to
matters with which the Organization is concerned.
ARTICLE VIII
Non-self-governing territories
The International Labour Organization agrees to co-operate with
the United Nations in giving effect to the principles and obligations
set forth in Chapter XI of the Charter with regard to matters
affecting the well-being and development of the peoples of nonself-
governing territories.
ARTICLE IX
Relations with the International Court of Justice
1. The International Labour Organization agrees to furnish any
information which may be requested by the International Court of
Justice in pursuance of Article 34 of the Statute of the Court.
2. The General Assembly authorizes the International Labour
Organization to request advisory opinions of the International Court
of Justice on legal questions arising within the scope of its activities
other than questions concerning the mutual relationships of the
Organization and the United Nations or other specialized agencies.
3. Such request may be addressed to the Court by the Conference,
or by the Governing Body acting in pursuance of an authorization
by the Conference.
4. When requesting the International Court of Justice to give
an advisory opinion, the International Labour Organization shall
inform the Economic and Social Council of the request.
ARTICLE X
Headquarters and regional offices
1. The International Labour Organization, having regard to the
desirability of the headquarters of specialized agencies being
389
situated at the permanent seat of the United Nations, and to the
advantages that flow from such centralization, agrees to consult the
United Nations before making any decision concerning the location
of its permanent headquarters.
2. Any regional or branch offices which the International Labour
Organization may establish shall, so far as practicable, be closely
associated with such regional or branch offices as the United Nations
may establish.
ARTICLE XI
Personnel arrangements
1. The United Nations and the International Labour Organization
recognize that the eventual development of a single unified
international civil service is desirable from the standpoint of effective
administrative co-ordination, and, with this end in view, agree to
develop common personnel standards, methods and arrangements
designed to avoid serious discrepancies in terms and conditions
of employment, to avoid competition in recruitment of personnel,
and to facilitate interchange of personnel in order to obtain the
maximum benefit from their services.
2. The United Nations and the International Labour Organization
agree to co-operate to the fullest extent possible in achieving
these ends and in particular they agree to:
(a) consult together concerning the establishment of an International
Civil Service Commission to advise on the means by which
common standards of recruitment in the secretariats of the
United Nations and of the specialized agencies may be ensured;
(b) consult together concerning other matters relating to the employment
of their officers and staff, including conditions of
service, duration of appointments, classification, salary scales
and allowances, retirement and pension rights and staff regulations
and rules with a view to securing as much uniformity in
these matters as shall be found practicable;
(c) in the interchange of personnel, when desirable, on
a temporary or permanent basis, making due provision for the
retention of seniority and pension rights;
(d) co-operate in the establishment and operation of suitable
machinery for the settlement of disputes arising in connection
with the employment of personnel and related matters.
390
ARTICLE XII
Statistical services
1. The United Nations and the International Labour Organization
agree to strive for maximum co-operation, the elimination of
all undesirable duplication between them, and the most efficient use
of their technical personnel in their respective collection, analysis,
publication and dissemination of statistical information. They agree
to combine their efforts to secure the greatest possible usefulness
and utilization of statistical information and to minimize the burdens
placed upon national Governments and other organizations from
which such information may be collected.
2. The International Labour Organization recognizes the United
Nations as the central agency for the collection, analysis, publication,
standardization and improvement of statistics serving the general
purposes of international organizations.
3. The United Nations recognizes the International Labour
Organization as the appropriate agency for the collection, analysis,
publication, standardization and improvement of statistics within
its special sphere, without prejudice to the right of United
Nations to concern itself with such statistics so far as they may
be essential for its own purposes or for the improvement of statistics
throughout the world.
4. The United Nations shall develop administrative instruments
and procedures through which effective statistical co-operation may
be secured between the United Nations and the agencies brought
into relationship with it.
5. It is recognized as desirable that the collection of statistical
information should not be duplicated by the United Nations or any
of the specialized agencies whenever it is practicable for any of
them to utilize information or materials which another may have
available.
6. In order to build up a central collection of statistical information
for general use, it is agreed that data supplied to the
International Labour Organization for incorporation in its basic
statistical series or special reports should, so far as practicable, be
made available to the United Nations.
ARTICLE XIII
Administrative and technical services
1. The United Nations and the International Labour Organization
recognize the desirability, in the interest of administrative and
391
technical uniformity and of the most efficient use of personnel and
resources, of avoiding, whenever possible, the establishment and
operation of competitive or overlapping facilities and services among
the United Nations and the specialized agencies.
2. Accordingly, the United Nations and the International Labour
Organization agree to consult together concerning the establishment
and use of common administrative and technical services and facilities
in addition to those referred to in Articles XI, XII and XIV,
in so far as the establishment and use of such services may from
time to time be found practicable and appropriate.
3. Arrangements shall be made between the United Nations and
the International Labour Organization in regard to the registration
and deposit of official documents.
ARTICLE XIV
Budgetary and financial arrangements
1. The International Labour Organization recognizes the desirability
of establishing close budgetary and financial relationships with
the United Nations in order. that the administrative operations of
the United Nations and of the specialized agencies shall be carried
out in the most efficient and economical manner possible, and that
the maximum measure of co-ordination and uniformity with respect
to these operations shall be secured.
2. The United Nations and the International Labour Organization
agree to co-operate to the fullest extent possible in achieving
these ends and, in particular, shall consult together concerning the
desirability of making appropriate arrangements for the inclusion
of the budget of the Organization within a general budget of the
United Nations. Any such arrangements which may be made shall
be defined in a supplementary agreement between the two organizations.
3. In the preparation of the budget of the International Labour
Organization the Organization shall consult with the United Nations.
4. The International Labour Organization agrees to transmit its
proposed budget to the United Nations annually at the same time
as such budget is transmitted to its members. The General Assembly
shall examine the budget or proposed budget of the Organization
and may make recommendations to it concerning any item or items
contained therein.
5. Representatives of the International Labour Organization
shall be entitled to participate, without vote, in the deliberations of
the General Assembly or any committee thereof at all times when
392
the budget of the Organization or general administrative or financial
questions affecting the Organization are under consideration.
6. The United Nations may undertake the collection of contributions
from those members of the International Labour Organization
which are also Members of the United Nations in accordance
with such arrangements as may be defined by a later agreement
between the United Nations and the International Labour Organization.
7. The United Nations shall, upon its own initiative or upon the
request of the International Labour Organization, arrange for studies
to be undertaken concerning other financial and fiscal questions of
interest to the Organization and to other specialized agencies with
a view to the provision of common services and the securing of
uniformity in such matters.
8. The International Labour Organization agrees to conform as
far as may be practicable to standard practices and forms recommended
by the United Nations.
ARTICLE XV
Financing of special services
1. In the event of the International Labour Organization being
faced with the necessity of incurring substantial extra expense as
a result of any request which the United Nations may make for
special reports, studies or assistance in accordance with Articles V,
VI or VII or with other provisions of this agreement, consultation
shall take place with a view to determining the most equitable manner
in which such expense shall be borne.
2. Consultation between the United Nations and the International
Labour Organization shall similarly take place with a view to
making such arrangements as may be found equitable for covering
the costs of .central administrative, technical or fiscal services or
facilities or other special assistance provided by the United Nations.
ARTICLE XVI
Inter-agency agreements
The International Labour Organization agrees to inform the
Council of the nature and scope of any formal agreement between
the International Labour Organization and any other specialized
agency or intergovernmental organization and in particular agrees
to inform the Council before any such agreement is concluded.
393
ARTICLE XVII
Liaison
1. The United Nations and the International Labour Organization
agree to the foregoing provisions in the belief that they will
contribute to the of effective liaison between the two
organizations. They affirm their intention of taking whatever further
measures may be necessary to make this liaison fully effective.
2. The liaison arrangements provided for in the foregoing
articles of this Agreement shall apply as far as appropriate to the
relations between such branch or regional offices as may be established
by the two organizations as well as between their central
machinery.
ARTICLE XVIII
Implementation of the Agreement
The Secretary-General and the Director may enter into such
supplementary arrangements for the implementation of this Agreement
as may be found desirable in the light of the operating experience
of the two organizations.
ARTICLE XIX
Revision
This Agreement shall be subject to revision by agreement between
the United Nations and the International Labour Organization.
ARTICLE XX
Entry into force
This Agreement shall come into force on its approval by the
General Assembly of the United Nations and the General Conference
of the International Labour Organization.

Document No. 3
United Nations General Assembly Resolution 50(I) of
14 December 1946

Takes note of the action of the Council to
place certain non-governmental organizations in
category (a);
Expresses agreement with the general principle
that ail non-governmental organizations in category
(a) should receive equal treatment in respect
of consultative arrangements with the Council.
Sixty-sixth plenary meeting,
15 December 1946.
50 ( 1). Agreements with
Specialized Agencies 1
The General Assembly,
Whereas agreements entered into by the Economie
and Social Council with certain specialized
agencies art now before the General Assem
bly for approval:
Resolves to approvc the agreements with the
International Labour Organization,2 the United
Nations Educational, Scientific and Cultural Organization,•
the Food and Agriculture Oi:ganization
of the United Nations• and the International
Civil Aviation Organization, • provided
that, in the case of the agreement with the International
Civil Aviation Organization, that Organization
complies with any decision of the
General Assembly regarding Franco Spain.
Furthermore, considering it essential that the
policies and activities of the specialized agencies
and of the organs of the United Nations should
be co-ordinated:
Requests the Economie and Social Council to
follow carefully the progress of such collaboration;
Instructs the Economis; and Social Council to
report on this question to the l';eneral Assembly
within the space of three years, so as to keep the
Assembly informed and in order that the Council
and the General Assembly may, if necessary,
and after consultation with the said agencies,
formulate suitable proposais for improving such
collaboration.
Sixty-fif th plenary meeting,
14 December 1946.
51. (1). Transfer to the United Nations
of certain non-poUtical
Functions and Activities of
the League of Nations, other
than those pursuant to International
Agreemenis
In accordance with the resolution adopted by
the General Assembly on 12 February 1946 and
the resolution adopted by the Economie and Social
Council on 16 February 1946, the Secretary-
' See also a resolution adoptcd on the report of the Fifth
Committee (page 148).
• Document A/72.
'Documents A/77, A/77/Corr. 1 and A/77/Corr. 11.
• Document A/78.
• Documents A/1o6 and A/1o6/Corr. ,.
78
Prend acte de- la décision du Conseil de classtt
un certain nombre d'organisations non gouvernementales
dans la catégorie a);
Approuve le pi;incipe suivant lequel on réservera
à toutes les organisations non gouvernementales
classées dans la catégorie a) le même régime
en ce qui concerne les modalités de consultatioru
avec le Conseil.
Soixan.te-rixième séance plénière,
le 15 décembre 1946.
50 ( 1). Accords avec les Institutions
spécialisées 1
L'Assemblée générale,
Considérant que les accords conclus P.U: _ le
Conseil économique et social avec certames
institutions spécialisées sont actuellement soumis
à l'approbation de l'As~emblée,
Décide d'approuver les accords avec l'Organisation
internationale du Travail 1, l'Organisation
des Nations Unies pour l'éducation, la -science et
la culture•, l'Organisation des Nations Unies
pour l'alimentation et l'agriculture', et l'Organisation
de l'aviation civile ihternationale5, sous
réserve, en ce qui touche l'accord avec l'Organisation
de l'aviation civile internationale, que
cette Organisation se conforme à toute décision
de l'Assemblée générale concernant l'Espagne
franquiste.
Considérant d'autre part que la coordination
des programmes et des activités des institutions
spécialisées et de ceux des organes des Nations
Unies est essentielle,
Demande au Conseil économique et social de
suivre attentivement le développement de cette
collaboration;
Charge le Conseil économique et social de faire
rapport sur cette question à l'Assemblée générale
dans le délai de trois ans, afin d'informer l'Assemblée,
et de façon que le Conseil et l'Assemblée
puissent, s'il y a lieu, et après consultation avec
ces institutions, formuler les propositions appropriées
en vue d'améliorer cette collaboration.
Soixante-cinquième séance plénière,
le 14 décembre 1946.
51 ( 1). Transfert aux Nations Unies
de certaines fonctions et
activités non politiques de la
Société des Nations autres
que celles lui appartenant
en vertu d'accords internationaux
Conformément à la résolution adoptée par
l'Assemblée générale le 12 février 1946 et à la
résolution adoptée par le Conseil économique et
social le 16 février 1946, le Secrétaire général a
'Voir aussi une résolution adoptée par la Cinquième
Commission (page 148).
• Document A/72.
'Documents A/77, A/77/Corr. 1 et A/77/Corr. a.
• Document A/78.
• Documents A/1o6 et A/1o6/Corr. 1.

Document No. 4
ILC, 32nd Session, 1949, Resolution concerning the
Procedure for Requests to the International Court of
Justice for Advisory Opinions, Official Bulletin, vol. XXXII,
1949, pp. 338–339

338
Proceedings of the Conference
The 32nd Session of the International Labour Conference was held at
Geneva from 8 June-2 July 1949.
The texts adopted by the Conference in the course of this session are
published in the Official Bulletin, Vol. XXXTI, No. 3, 15 August 1949. 4
The International Labour Office has also published the Record of
Proceedings of the 32nd Session of the Conference, comprising the lists
of members of the delegations and of committees, the officers and
secretariat of the Conference, the stenographic record of the discussions,
as well as appendices containing the documents and reports of the
• Conference committees and the texts adopted by the Conference.
The letters communicating these texts to the governments of States
Members are reproduced on pages 341-343.
Resolution concerning the Procedure ior Requests
to the International Court of Justice
for Advisory Opinions
(Adopted by the International Labour Conference at Its 32nd Session 5)
Whereas the Agreement between the United Nations and the International Labour
Organisation authorises the International Labour Organisation to request advisory
opinions of the International Court of Justice on legal questions arising within the
scope of its activities other than questions concerning the mutual relationships of
the Organisation and the United Nations or other specialised agencies, and provides
that such request may be addressed to the Court by the Conference or by the
Governing Body acting in pursuance of an authorisation by the Conference ; and
Whereas it is desirable that the Governing Body of the International Labour
Office should be authorised to address to the International Court of Justice requests
for advisory opinions ;
The General Conference of the International Labour Organisation, having been
convened at Geneva by the Governing Body of the International Labour Office, and
Having met in its 32nd Session on 8 June 1949,
4 With the exception of two texts reprodm:ed below (pp. 338-340).
5 This resolution was submitted to the Conference in accordance with a decision taken by
the Governing Body at its 107th Session. See Official Bulletin, Vol. XXXI, No. 3, 31 Dec. 1948,
p. 211.
339
Hereby, this twenty-seventh day of June 1949, authorises the Governing Body
of the International Labour Office to request advisory opinions of the International
Court of Justice on legal questions arising within the scope of the activities of the
International Labour Organisation other than questions concerning the mutual
relationships of the Organisation and the United Nations or other specialised
agencies.
Document No. 5
Letter of the Worker Vice-Chairperson of the ILO
Governing Body to the ILO Director-General, dated 12
July 2023

1
1
To:
Mr Gilbert Houngbo, Director-General
International Labour Office
Route des Morillons, 4
CH – 1211 Geneva, Switzerland
Re: Referral of an interpretation dispute to the International Court of Justice
under article 37(1) of the ILO Constitution
Dear Director General,
As already announced during the 347th Session (March 2023) of Governing Body Session, we
are writing with respect to the long-standing dispute over the interpretation of International
Labour Organisation (ILO) Convention 87 (Freedom of Association and Protection of the Right
to Organise Convention), one of its fundamental Conventions, in relation to the right to strike.
In conformity with the International Labour Organisation’s constitutional theory and practice,
and in the interest of obtaining legal certainty and preserving the integrity and credibility of
the Organization’s supervisory system, we hereby submit a formal request to refer the matter
urgently to the International Court of Justice (ICJ) for decision.
Despite multiple efforts of the tripartite constituents over the last many years to resolve this
issue through social dialogue, no negotiated outcome proved possible and there is no reason
to believe that further social dialogue will or can break this impasse.
We firmly believe that the ICJ as the principal judicial organ of the United Nations is best
placed and equipped to provide the ILO and its constituents the much-needed authoritative
guidance and legal certainty to robustly fulfil its mandate of social justice. Consistent with
well-established constitutional practice, we are committed to accepting the binding nature of
the ICJ’s advisory opinion to provide for the final settlement of this dispute.
2
2
One hundred years after the landmark advisory opinion No.1 of the Permanent Court of
International Justice on the nomination of the Workers’ delegate at the third session of the
Conference, and some ninety years after the advisory opinion on the interpretation of the
Night Work (Women) Convention, the Organization should not hesitate to place once again
its trust and confidence in the World Court.
In view of the above considerations, we recommend that the following questions be put to
the ICJ for an advisory opinion:
1. Is the right to strike of workers and their organizations protected under the
Freedom of Association and Protection of the Right to Organise Convention, 1948
(No. 87)?
2. Was the Committee of Experts on the Application of Conventions and
Recommendations (CEACR) of the ILO competent to:
(a) determine that the right to strike derives from the Freedom of Association and
Protection of the Right to Organise Convention, 1948 (No. 87), and
(b) in examining the application of that Convention, specify certain elements
concerning the scope of the right to strike, its limits and the conditions for its
legitimate exercise?
Accordingly, we would request the Office to take all necessary steps to:
(i) place an item on the agenda of the 349th Governing Body Session, for discussion
and decision, regarding the request to the ICJ for an advisory opinion on the above
questions, based on article 37 (1) of the ILO Constitution;
(ii) prepare a comprehensive Office report to facilitate an informed decision by the
Governing Body in that session;
(iii) bring this communication as well as the Office report as soon as possible to the
attention of all constituent groups and Member States of the ILO for any comments
they may wish to transmit ahead of the 349th Governing Body Session.
Fully aware that the Governing Body is empowered to request an advisory opinion to the ICJ
and mindful of the significance to have recourse to article 37 of the Constitution, we strongly
believe that the Governing Body should now take swift action and decide on the referral at its
next session in November 2023.
3
3
In anticipation of the Governing Body discussion and decision, we would also request that the
matter should be referred to the ICJ for an urgent procedure, to the extent possible, and that
international workers’ and employers’ organizations should be allowed to participate fully and
autonomously in the proceedings in recognition of the ILO’s unique tripartite structure.
Finally, to avoid any doubt as to the position of the Workers’ Group on this matter, we confirm
our strong conviction, supported by the long standing practice of the supervisory bodies of
the ILO, that the right to strike is an intrinsic and indispensable corollary of freedom of
association and the right to organise and therefore is protected under ILO Convention 87 and
the Constitution of the ILO. This implies that the supervision of the application of the right to
strike and the conditions of its exercise are in our view rightly within the mandate of the
CEACR.
Thank you for confirming at your earliest convenience that this communication will be
submitted to the Governing Body for its consideration and also that the Office will make all
necessary arrangements in time for facilitating the Governing Body discussion, including by
making available relevant background information.
Amstelveen, Netherlands, 12 July 2023
On behalf of the Workers’ Group in the ILO
Kind regards,
Catelene Passchier
Chairperson Workers’ Group and Vice-Chairperson Governing Body of the ILO
T: +31 (0) 6 128 69 830
E: [email protected]
ilo.org | Twitter | Facebook | LinkedIn | Instagram

Document No. 6
Letter of the Permanent Representative of Spain to the
International Organizations in Geneva to the ILO
Director-General transmitting a letter on behalf of the EU
Member States and Iceland and Norway, dated 14 July
2023

Document No. 7
Letter of the Minister of Labor and Employment of Brazil
to the ILO Director-General, dated 13 July 2023

Document No. 8
Letter of the Minister of Employment and Labour of the
Republic of South Africa to the ILO Director-General,
dated 14 July 2023

MINISTRY
EMPLOYMENT AND LABOUR
REPUBLIC OF SOUTH AFRICA
Department of Employment and Labour, Laboria House, 215 Francis Baard Street PRETORIA Tel (012) 392 9628 Fax: (012) 320 1942
Private Bag X9090 CAPE TOWN, 8001 RSA 12th Floor 120 Plain Street CAPE TOWN Tel: 021 466 7160 Fax: 021 462 2832
www.labour.gov.za
Mr GF Houngbo
The Director General
International Labour Organization
4 route des Morillons
CH-1211, Geneva,
SWITZERLAND
Dear Mr Houngbo,
RE: SUPPORT FOR THE WORKERS' GROUP PROPOSAL ON THE RIGHT TO
STRIKE
I hope this letter finds you well. I am writing to you to express full support for the
proposal put forth by the Workers’ Group regarding the interpretation of Convention
87 (Freedom of Association and Protection of the Right to Organise Convention)
concerning the right to strike.
As you are aware, the Workers' Group has formally requested the urgent referral of
this matter to the International Court of Justice (ICJ) to bring about legal certainty and
preserve the integrity and credibility of the ILO's supervisory system. During the
Governing Body session held in March, it was evident that consensus could not be
reached on a procedural framework for such referrals.
Therefore, as the Government of the Republic of South Africa, we unreservedly
support the Workers' Group's call for an urgent discussion about referring the case to
the ICJ and for including the matter on the agenda of the upcoming 349th Governing
Body Session in November 2023.
For our country, labour rights, particularly the right to strike and freedom of association,
are extremely important. Our Constitution, along with various pieces of legislation such
as the Labour Relations Act (LRA), enshrines and protects these fundamental socioeconomic
rights. These rights play a crucial role in safeguarding workers’ interests and
fostering a fair and balanced relationship between employers and employees.
Furthermore, it is our firm belief that resolving the matter concerning the right to strike
is essential in our ongoing efforts to ensure better protection of labour rights all over
the world. While we recognise the significance of social dialogue and collective
bargaining as the ultimate objectives, the current uncertainty surrounding the
interpretation of Convention 87 means that workers are deprived of their most potent
tool in the event of industrial disputes.
2
We kindly request that you convey our Government’s unwavering support to the
Workers' Group and assure them of our commitment to working collaboratively with all
the ILO Constituents. We believe that a unified stance from everyone will strengthen
our commitment to protect the most vulnerable among us and advance social justice
in the world of work.
We further underscore the urgent need to address the lack of legal certainty regarding
the interpretation of Convention 87. We also think that the ICJ is better positioned to
assist us resolve this long-standing matter.
In conclusion, we express our gratitude for your efforts in advancing the cause of
workers' rights and ensuring a fair and equitable global labour landscape. We trust
that the ILO will continue to play a pivotal role in promoting social justice and protecting
the rights of workers worldwide.
Thank you for your attention to this matter. We look forward to continued cooperation
with the ILO and its Constituents.
Yours Sincerely,
MR TW NXESI, MP
MINISTER OF EMPLOYMENT AND LABOUR
REPUBLIC OF SOUTH AFRICA
DATE: 14 JULY 2023
Document No. 9
Letter of the Minister of Labour, Employment and Social
Security of Argentina to the ILO Director-General, dated
14 July 2023

Argentine Republic
National Executive Power 1983–2023
40 YEARS OF DEMOCRACY
Note
No.: NO-2023-81872752-APN-MT
CITY OF BUENOS AIRES
Friday, 14 July 2023
Reference: Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87):
Referral to the International Court of Justice – Right to strike
To: Gilbert F. Houngbo (International Labour Office (ILO)),
With copy to:
Dear Director-General,
I have the pleasure to write to you, in my capacity as Minister of Labour, Employment and Social
Security of the Argentine Republic, in relation to the letter addressed to you by the Workers’ group
of the ILO concerning a request for a referral to the International Court of Justice for an advisory
opinion on the scope of the provisions of the Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87), in relation to the right to strike.
In this connection, I wish to express my support for the request made by the Worker Vice-Chairperson
of the Governing Body on behalf of the Workers’ group of the ILO that an item be placed, as a matter
of urgency, on the agenda of the 349th Session of the Governing Body for discussion and decision
on a referral to the International Court of Justice (ICJ) of the longstanding dispute over the
interpretation of the Freedom of Association and Protection of the Right to Organise Convention,
1948 (No. 87), in relation to the right to strike. To facilitate the discussion and decision-making of
the Governing Body, the Office was also requested to prepare a comprehensive report containing all
the necessary elements to be considered for a referral to the Court, including the questions to be put
to the ICJ.
The tripartite constituents have made various attempts to resolve the prolonged interpretation dispute,
including through social dialogue. Despite these efforts, no consensus-based outcome has been
achieved. In the event that the dispute over the legal interpretation persists, the Organization must
have recourse to the constitutional procedure set out in article 37, paragraph 1, of the ILO Constitution
and refer the matter to the International Court of Justice. Governments need legal certainty in relation
to all of their obligations under Convention No. 87 and to the supervision of its application by the
Committee of Experts on the Application of Conventions and Recommendations. Without legal
certainty, this dispute will continue to have a detrimental effect on the supervisory system, on the
credibility of the ILO as a standard-setting body within and outside the United Nations system, and
on the effective application of international labour standards.
Taking into account the institutional impact of this persistent interpretation dispute and the urgent
need to resolve it, the Office is also requested to transmit this letter as soon as possible to all ILO
constituents before the Governing Body’s discussion.
Lastly, I wish to note that, throughout the prolonged debate on this subject, the Argentine Republic
has continuously maintained three clear positions:
I. In relation to the successive discussions of this matter in which divergent positions have
been expressed, and with a view to providing the international community with greater
certainty on the scope of Convention No. 87, the Argentine Republic has maintained that
it is advisable to refer the matter to the International Court of Justice pursuant to article
37, paragraph 1, of the ILO Constitution for final decision.
II. Furthermore, when the discussion focused on the need for a special procedure to seize
the International Court of Justice, the Argentine Republic stated that that was
unnecessary, and that a clear request from a Member State or a group of Employers or
Workers of the International Labour Organization was sufficient, as under article 37,
paragraph 1, they have the right without any prior formalities, and subject only to the
approval of the Governing Body in accordance with the required majority.
III. Without prejudice to all of the foregoing, in the various scenarios that have been
discussed, the Argentine Republic has always maintained that the Freedom of
Association and Protection of the Right to Organise Convention, 1948 (No. 87), contains
the right to strike, in accordance with Articles 3 and 10 of this international instrument.
In the light of the above, I would be grateful to receive confirmation that the necessary measures have
been taken in response to this letter.
I take this opportunity to renew to you the expression of my highest consideration.
Raquel Cecilia Kismer
Minister
Ministry of Labour, Employment and Social Security
Digitally signed by
Electronic Document Management
Date: 2023.07.14 19:59:12 -03:00
Document No. 10
Letter of the Employer Vice-Chairperson of the ILO
Governing Body to the ILO Director-General, dated 2
August 2023

1
2 August 2023
Mr Gilbert Houngbo
Director General
International Labour Organisation
Route de Morillons
CH-1211 Geneva
Switzerland
Dear Director General,
Re: Letter dated 13 July 2023
I hereby acknowledge receipt of your letter dated 13 July 2023 regarding the communication
of 12 July signed by Worker Vice-Chairperson of the Governing Body (‘Workers’
communication’) which contains a formal request to refer the “long-standing dispute over the
interpretation of … Convention 87 … in relation to the right to strike” urgently to the International
Court of Justice for decision.
We take note that the Workers’ communication in this context requests the Office to take all
necessary steps to:
(i) place an item on the agenda of the 349th Governing Body Session, for discussion and
decision, regarding the request to the ICJ for an advisory opinion on the above questions,
based on article 37 (1) of the ILO Constitution;
(ii) prepare a comprehensive Office report to facilitate an informed decision by the
Governing Body in that session;
(iii) bring this communication as well as the Office report as soon as possible to the
attention of all constituent groups and Member States of the ILO for any comments they
may wish to transmit ahead of the 349th Governing Body Session.
While we acknowledge the Workers’ requests which they have announced their intention
already during the March GB session, we oppose them for the following reasons:
First, according to Art. 3.1.1. of the Standing Orders of the Governing Body “the agenda of
each session shall be drawn up by a tripartite screening group composed of the Officers’ of the
Governing Body, the Chairperson of the Government group, the regional coordinators
representing the governments, the secretaries of the Employers’ and the Workers’ groups, or
their representative. Furthermore, Art. 3.1.3 of the Standing Orders states that “The
provisional agenda may be updated for any urgent matter arising between sessions by the
Officers of the Governing Body following consultations with the other members of the tripartite
screening group referred to in paragraph 3.1.1.” (emphasis added). As a matter of fact, the
provisional agenda agreed by consensus at the last screening group meeting held on 4th May
does not contain any item concerning Article 37 of the ILO Constitution, right to strike or
Convention 87. The proposed INS 7 item regarding the “Work plan on the strengthening of
the supervisory system” only deals with representations submitted under Article 24 and
2
reporting under Article 22 of the ILO Constitution. Based on the above articles in the Standing
Orders of the Governing Body, before making a decision on the possible updating of the
provisional agenda, the Officers must have adequate time and opportunity to properly consult
with the other members of the tripartite screening group. Only once this condition has been
met, an Officers’ meeting for updating the provisional agenda may be scheduled.
Second, we note that during the discussion at the March 2023 Governing Body, the groups
were very divided on the procedural framework on Art 37 proposed to be used to solve the
“right to strike” issue. A vote called by the Chairperson on this procedural framework was
called off in the last moment. As one government declared, “it was not ready to vote on such
a complex and technical issue that required extensive discussion and negotiation.”
Consequently, the Governing Body decided “to defer the consideration of item GB 347/INS/5
to a future session”, without specifying a particular session. We noted from the Workers’
communication, that the matter of a procedural framework on Article 37 is obviously no
longer pursued and that now a referral of the matter to the ICJ is suggested without having
established such a procedural framework. We would nevertheless point out that the
complexity and the political brisance of the possible use of Article 37 in the case of the “right
to strike” have not disappeared in the meantime. As also stressed by some governments in
the March debate, we reiterate the need to find a solution within the framework of social
dialogue, based on established rules and involving all the tripartite components of the
organization as represented in the International Labour Conference. We continue to strongly
believe that the issue of the “right to strike”, which falls within the ILO's core competence,
cannot simply be given out of hand and left to an external institution to decide. In our view,
future deliberations by the Governing Body on this matter must therefore primarily
incorporate ILO-internal options. Only such options, which inevitably involve compromises
and for this reason may not be considered ideal by some, offer a prospect of broad acceptance
and sustainability.
Accordingly, we kindly request the Director General to:
(i) place an item on the agenda of the 350th Governing Body Session regarding
proposals on further steps to ensure legal certainty on the interpretation of the
“right to strike” in the context of the Freedom of Association and Protection of the
Right to Organisation Convention 1948 (No. 87);
(ii) request the Office to prepare a note that examines in detail all possible proposals
to resolve the existing interpretation issue on the “right to strike” through social
dialogue within the framework of established ILO procedures and rules;
(iii) invite all tripartite constituents in the ILO member States to submit their comments
in this regard prior to the 350th Governing Body Session; and
(iv) transmit this letter with all constituent groups and Member States of the ILO for
their consideration.
We appreciate your intervention on this important matter, and we look forward to receiving
any updates on this regard.
Yours faithfully,
3
Renate Hornung-Draus
Chairperson of the Employers’ Group and Vice-Chair of the Governing Body

Document No. 11
Letter of the Ambassador and Permanent Representative
of Barbados to the United Nations Office at Geneva to the
ILO Director-General, dated 4 August 2023

Document No. 12
Letter of the Minister of Labour of Colombia to the ILO
Director-General, dated 10 August 2023

Government of Colombia
Permanent Mission of Colombia to the
United Nations in Geneva
DCHONU No. 458/23
The Permanent Mission of the Republic of Colombia to the International Organizations in
Geneva presents its compliments to the International Labour Office and, in relation to the
request made by the Workers’ group concerning the referral to the International Court of
Justice of a question on the scope and content of the Freedom of Association and Protection
of the Right to Organise Convention, 1948 (No. 87), has the pleasure to transmit the enclosed
note from the Minister of Labour of the Republic of Colombia, Ms Gloria Ines Ramirez Ríos,
addressed to the Director-General of the ILO, Mr Gilbert Houngbo.
The Permanent Mission of the Republic of Colombia to the International Organizations in
Geneva avails itself of this opportunity to renew to the International Labour Office the
assurances of its highest consideration.
Geneva, 10 August 2023
To the Honourable Director-General
of the International Labour Office
Mr Gilbert Houngbo
Bogotá, D.C.
GILBERT HOUNGBO,
Director-General
International Labour Office
Route des Morillons, 4
CH - 1211 Geneva, Switzerland
Re: Request to place an item on the agenda of the 349th Session of the Governing Body on
the referral of an interpretation dispute to the International Court of Justice under article
37(1) of the ILO Constitution
Dear Director-General,
We have been informed that the Worker Vice-Chairperson of the Governing Body has submitted
a letter containing requests on behalf of the Workers’ group, following the formal
announcement made at the 347th Session of the Governing Body in March.
We would like to indicate that the Government of Colombia fully supports the rationale and
objective of the Workers’ group’s request that, as a matter of urgency, an item be placed on the
agenda of the 349th Session of the Governing Body for discussion and decision on the referral
to the International Court of Justice (ICJ) of the longstanding dispute over the interpretation of
the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87),
in relation to the right to strike.
To facilitate the discussion and decision-making of the Governing Body, we also request that the
Office prepare a comprehensive report containing all the necessary elements to be considered
for a referral to the Court, including the questions to be put to the ICJ.
The tripartite constituents have made various attempts to resolve the prolonged discussion,
including through social dialogue. Despite these efforts, no consensus-based outcome has been
achieved. In the event that the dispute over the legal interpretation persists, the Organization
should have recourse to the constitutional procedure set out in article 37, paragraph 1, of the
ILO Constitution and refer the matter to the International Court of Justice. Governments need
legal certainty in relation to all of their obligations under Convention No. 87 and to the
supervision of its application by the Committee of Experts. Without legal certainty, this
discussion will continue to have a detrimental effect on the supervisory system, on the credibility
of the ILO as a standard-setting body within and outside the United Nations system, and on the
effective application of international labour standards.
Taking into account the institutional impact of this persistent interpretation dispute and the
urgent need to resolve it, we also request that the Office transmit this letter as soon as possible
to all ILO constituents before the Governing Body’s discussion.
We would be grateful to receive confirmation that the necessary action has been taken in
response to this letter.
Yours sincerely,
(Signed)
GLORIA INES RAMIREZ RIOS
Minister of Labour
Document No. 13
Letter of the Minister of Labour of Ecuador to the ILO
Director-General, dated 25 August 2023

Government of Ecuador
Government of Ecuador
Guillermo Lasso, President
Document No. MDT-MDT-2023-0482-O
Metropolitan District of Quito, 25 August 2023
Reference: ILO – Position of the Ministry of Labour with respect to the interpretation of
Convention No. 87 and the right to strike
Mr Gilbert F. Houngbo
Director-General of the ILO
INTERNATIONAL LABOUR ORGANIZATION
Dear Sir,
I hereby extend a cordial greeting to you. I wish to refer to the letters sent by the
International Labour Organization (ILO) regarding the interpretation of Convention No. 87
and the right to strike.
This Ministry has examined and reviewed the information sent by the ILO, workers’
representatives, employers’ representatives and governments, and considering that in the
legislation of Ecuador the principle for settling conflicts is the peaceful resolution of
international disputes and conflicts without resorting to threats or the use of force, this
Ministry is very much in favour, in line with the requests made by other Member States, of
including on the agenda of the 349th Session of the Governing Body an item for debate and
decision on submitting to the International Court of Justice (ICJ) the longstanding controversy
relating to the interpretation of the Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87), as regards the right to strike, thereby facilitating the
debate and corresponding decision-making process in the Governing Body, contributing to
legal certainty for all participants, as a fundamental principle of tripartite dialogue and
decision-making.
I wish to stress that, in order to facilitate meaningful debate, the Office should prepare and
share with members a comprehensive report containing all the information needed for an indepth
examination, and above all to facilitate the associated decision-making, in respect of
the request of the Workers’ group to the ILO, including the questions to be submitted to the
ICJ.
Yours faithfully,
Patricio Donoso Chiriboga
Minister of Labour

Document No. 14
Note Verbale No. 185/MP-ANG/GEN/2023 of the
Permanent Mission of the Republic of Angola, dated 6
September 2023

Government of Angola

Document No. 15
Letter of the Swiss Federal Councillor and Head of the
Federal Department of Economic Affairs, Education and
Research to the ILO Director-General, dated 6 September
2023

The Head of the Federal Department of Economic
Affairs, Education and Research (EAER)
Bern, 6 September 2023
Dear Director-General,
Switzerland wishes to thank you for your letters dated 17 July, 4 August and 10 August 2023,
informing us that you had received a number of communications regarding the outstanding issue of
the interpretation of the Freedom of Association and Protection of the Right to Organise Convention,
1948 (No. 87) in relation to the right to strike. We have taken due note of the request submitted by the
Workers’ representative and of the reply sent by the Employers’ representative, as well as of the
positions adopted by several governments.
Switzerland has followed the debate on the interpretation of Conventions of the International Labour
Organization (ILO) and on the transposition of article 37 of the ILO Constitution very closely over the
past 15 years. Questions of interpretation are of institutional importance. The ILO possesses a number
of specific features. While respecting the request formally lodged by the Workers’ group, Switzerland
has consistently reiterated its preference for the approach set out in article 37, paragraph 2 of the
Constitution for questions of interpretation. Switzerland also recalls that no procedural framework was
adopted with regard to article 37, paragraph 1, at the Governing Body Session that took place in
March 2023.
In preparation for a future discussion by the Governing Body of the possible referral of the question of
interpretation to the International Court of Justice (ICJ), we would like to highlight the following points:
- The procedure cannot be separated from the question or questions of interpretation to be
asked. Yet, at this stage, it is doubtful whether the questions submitted, as formulated, are
truly questions of interpretation and whether they are admissible before the ICJ.
- The International Labour Conference (ILC) should approve the referral to the Court as well as
the question(s) of interpretation, following an in-depth analysis by the Governing Body. Steps
should be taken to ensure that all interested governments can take part in these discussions,
in compliance with the rules of procedure. The Governing Body may meet in plenary session
or as a Committee of the Whole, with all Member States having the right to speak. The
discussion may also be referred and submitted to the Conference.
Mr Gilbert Houngbo
Director-General
International Labour Office
Geneva
Federal Palace East, CH-3003 Bern
- Deliberations and negotiations should be open to all Member States that are not represented
on the Governing Body. All Member States should be able to take part in the discussions and
decision-making process regarding the referral of disputes to the Court, and the efficiency and
fairness of the process should be ensured.
It is imperative that the signatory States of Convention No. 87 be involved in the discussions on the
substance of the question of interpretation to be submitted to the ICJ. Signatory States are indeed the
first concerned. Furthermore, the ICJ has consistently held that it must ensure it has all the necessary
information. To this end, the ICJ may invite all signatory States to participate actively in the
proceedings. The involvement of these States in the drafting of the question is therefore essential to
ensure continuity and consistency.
The question’s content or, at the very least, the decision whether or not to refer the question(s) to the
ICJ must be approved by the ILC. Convention No. 87 is regarded as fundamental and embodies a
fundamental principle and right which all Member States must respect, promote and uphold. Moreover,
the resolution giving the Governing Body the authority to submit requests for advisory opinions was
adopted in 1949. The composition of the ILO today is not comparable to that of 1949. Back then, the
ILO had 62 Member States. At that time, the Governing Body was much more representative of its
membership. In the interest of fairness and inclusion, the ILC must therefore be involved in discussions
and decisions on the content and/or referral of the matter to the ICJ.
The Swiss Government accordingly requests the Officers of the Governing Body to schedule a
discussion at the Governing Body in the form of a Committee of the Whole and to make arrangements
for the approval of the question(s) by the International Labour Conference in due course.
I thank you for taking due note of these remarks.
Yours sincerely,
Guy Parmelin
Federal Councillor
2/2
Document No. 16
Letter signed by 14 regular Employer members of the ILO
Governing Body to the Chairperson of the Governing
Body, dated 12 September 2023

1
12 September 2023
Mr Abiodun Richards Adejola
Permanent Representative of Nigeria to the UN
Chairperson of the Governing Body of the ILO
International Labour Organisation
Route de Morillons
CH-1211 Geneva
Switzerland
Re: Request by 14 regular members of the Employers` Group for a special meeting of the
Governing Body under Article 3.2.2 of the ILO Governing Body Standing Order for the
urgent inclusion of a standard setting item on the right to strike on the agenda of the
112th session of the International Labour Conference agenda
Dear Chairperson of the Governing Body,
The undersigned hereby submit to you a request for a special meeting of the Governing Body
under Article 3.2.2 of the Standing Orders of the Governing Body.
Purpose of the meeting would be to decide on the urgent inclusion of a standard-setting item
on the right to strike on the agenda of the 112th session of the International Labour Conference
(ILC) in 2024. More concretely, it is proposed that the ILC adopt a Protocol to C. 87 on the
right to strike or more broadly on industrial action. The adoption of the Protocol would
authoritatively determine the scope and limits of the right to strike in the context of C. 87. The
obligations under the Protocol would become binding for those parties to C. 87 that ratify the
Protocol. In this way, the adoption of the Protocol would settle the ongoing dispute about the
interpretations on the right to strike.
The adoption of a Protocol to C. 87 on the right to strike would thus demonstrate that a lasting
solution to the conflict over the interpretations of the right to strike is possible through
dialogue within the tripartite structures of the ILO and that a referral to the International Court
of Justice is not necessary.
In order to ensure that the possibility of standard-setting on the right to strike is not rendered
obsolete by a referral of the matter to the ICJ, we also request that the special meeting is
organized before the special meeting requested by the Workers’ group and of 34
governments.
We kindly request you, the Chair of the Governing Body, to convene the special meeting at
an appropriate time and to seek the assistance of the Office in preparing and arranging this
special meeting as specified above.
Yours sincerely,
Signatures of 14 regular Employer members of the Governing Body:
Mr S. Barklamb (Australia -<f ,,..#' 4-LLLÍ.- Mr H. Diop (Senegal)
Mr R. Dubey (India)
ll 􀀄􀀅 .. 1- 4.-, Ms R. Hornung-Qraús (Gerrñany)
Mr T. Mackall (United S
,,.-
Mr K. 􀁔rab Emirates) Mr B. Matthey (Switzerland)
Ms J. Mugo (Kenya) cJ􀀅-.....r􀀆,,
􀀄l\. 􀀅 1-.
Mr H. Munthe (Norway)
Ms E. Nagasawa (Japan) 􀁕 ;2􀀃,.,. Ms A. Vauchez (France)
Sr. F. Yllanes (Mexico) Mr H. Zouanat (Morocco)
2
Document No. 17
Note Verbale Z-2023/62441669/36640282 of the
Permanent Mission of the Republic of Türkiye, dated 22
September 2023

C*
PENT M[SSION OFTHE REP'[JE3LIC OF T
TOTHEUNITEDNATIONSOFFTCE IN GENEVA
Received in CABINET
2 5 SEP,2023
Z-2023/62441669/36640282
The Permanent Mission of the Republic of Tarkiye to the United Nations Office in
Geneva and other international organizations in Switzerland presents its compliments to the
International Laborir Organization (ILO) and has tlie honorir to acknowledge receipt of the
communication dated 15 September 2023 regarding the special sessions of the Governing Body
and to highlight the following points:
Tl'ie Permanent Mission on belialf of tlie Government of Tiirkiye expresses its firin
support for tlie inclusive approach presented by Switzerland and the Employers' Group for the
foitlicoming special meetings of the Governing Body. Specifically, the Permanent Mission
reiterates its support for tl"ie proposal tliat special 'meetings be convened in the format of a
Committee of the Whole, allowing non-Governing Body members to actively participate and
express their views on the critical matter concerning ILO Convention No. 87. The Permanent
Mission strongly believes that this approach aligns with the principles of transparency,
representation, and dialogue, which are essential for the effective functioning of the ILO.
Furtliermore, the Permanent Mission welcon'ies the reqriest for a special meeting
addressing the inclusion of a standard-setting item regarding the right to sty-ike in the agenda of
the l 12th Session of the International Laborir Conferepce whicli can play a crucial role in
addressing tliis long-lasting disprite tlirough constructive social dialogue witliin t]ie ILO. The
primary objective of sucli a special meeting sliould be to facilitate the endorsement of a Protocol
associated with Convention No. 87, encompassing the topics of the right to strike and broader
industrial actions. Therefore, this Protocol worild establisli clear and authoritative guidelines
and serve as the definitive instrru'nent for delineating precise and autlioritative parameters
govei'ning tlie scope and limitations of tlie right to strike within tlie overarcliing framework of
Conve'ntion No. 87, thereby ultimately resolving the ongoing disagreement.
In this regard, The Permanent Mission kindly requests the ILO to circulate this Note
Verbal to all ILO member states as well as to the Governing Body of tlie ILO.
The Perinanent Mission of the Repriblrc of Tarkiye avails itself of this opportunity to
renew to the International Labour Organization, the assurances of its highest consideration.
Geneva, 22 September 2023
International Labour Organization (ILO)
4 rorite des Morillons
CH- 1211 Geneve 22, Switzerland

Document No. 18
ILO, Note concerning special Governing Body sessions –
Past practice, September 2023

Special GB sessions – Past practice
1. A special meeting of the Governing Body (session spéciale or session extraordinaire in
French) may be convened when (i) 16 regular GB members so request in writing (art 7(8)
of the Constitution); (ii) 16 Government members or 12 Employer members or 12 Worker
members so request (para 3.2.2. of the Standing Ordesr); (iii) the chairperson considers it
necessary (para 3.2.2.).
2. The record shows that there have been three special meetings/ sessions convened by the
GB Chairperson on the basis of his discretionary authority to do so when he considers it
necessary. On two other occasions, he declined requests for a special meeting (see
attached internal JUR Note of 16 August 1977).1
3. The first instance was the special meeting convened in September 1932 between the 59th
and 60th Sessions of the Governing Body at the request of Italian Government. The Italian
Governments proposal asked the Governing Body to decide that the International Labour
Organisation should examine the question of the reduction of hours of work as an urgent
matter, in accordance with the resolutions of the Unemployment Committee adopted by
the Governing Body and with the resolution which the Conference itself had adopted at
its Sixteenth Session. For the meeting, Italy proposed a Resolution, and the Office
prepared a Note.
4. The second precedent was special meeting convened on 3 October 1935 between 72nd
and 73rd Sessions of the Governing Body. The meeting took place one day before the
opening of the 73rd Session and was summoned by the Chairperson to discuss matters
that needed to be resolved prior to the beginning of the 73rd Session (in which new
Officers would be elected). These matters were the effective withdrawal of Germany and
the designation of Canada as a State of chief industrial importance, as well as the revision
of the rules concerning the election of the Officers.
5. The third instance was the special session held on 19-20 May 1970 to elect ane Director-
General following the resignation of David Morse on 9 February 1970, effective 31 May
1970. At the immediately preceding 178th Session, “the Chairman informed members
that, in the light of consultations between the groups and as provided for in article 20 of
the Standing Orders of the Governing Body, he had convened a special session, to be held
from 18 to 20 May 1970, for the appointment of the Director-General of the International
Labour Office.” (GB.178/PV, p. 79).
6. As regards the two occasions on which the Chairperson refused to respond favourably to
requests for a special meeting, the first was in 1973 when two Governing Body members
solicited the holding of a special meeting to discuss the coup in Chile. The Chairperson,
after consulting the Vice-Chairpersons, decided that no special session was necessary
1 Special meetings should be distinguished from special sittings organized, for example, to honour (Albert Thomas in June
1932 or Wilfred Jenks in November 1973), or receive personalities (Joseph Stiglitz in March 2009).
“considering the ILO's financial situation and the fact that the present session was due to
begin shortly” (GB.191/PV, p. II/1).
7. Two years later, in 1975, the WFTU requested the Chairperson to hold a special session
regarding events in Spain but he decided not to summon such a special meeting (see
attached internal JUR Note of 7 October 1975).
Document No. 19
ILO, Note concerning special Governing Body sessions –
Origin and evolution of applicable rules, September 2023

Special sessions of Governing Body – Origin and evolution of applicable rules
GB Standing Orders Constitution GB regular
members
Origin and rationale
1920 ARTICLE 10
Times of Meeting.
[…] Without prejudice to the
provisions of Article 393 of the
Treaty of Versailles the President
may also summon a special
meeting, should it appear
necessary to him to do so, and
shall be bound to summon a
special meeting on receipt of a
written request to that effect
signed by six members of the same
group.
*
50 per cent of the government
group, or a full non-governmental
group
ARTICLE 393
[…] A special meeting shall
be held if a written request
to that effect is made by at
least ten
members of the Governing
Body.
*
41 per cent of total number
of GB regular members (24)
12 G
6 Es
6 Ws
At the 2nd Session GB, Draft SO proposed but not
discussed, Appendix IX of the minutes
Then draft article 11proposed that a special session be
summoned “on receipt of a written request to that effect
signed by 10 or more Members, as provided in Article
393 of the Treaty of Versailles. Not less than 7 days'
notice shall be given of any special Session.”
At the 3rd Session GB, SO proposed by a special
committee and examined, GB.3/PV, p.16-18 and 60-61.
Article 11 proposed by the Special committee was
adopted as article 10.
The explanation for the evolution from the second to the
third sessions is found in an undated/ unsigned note
that comments on the proposed number of ten
members as follows:
« A ceci on peut objecter que, seul, le groupe des
représentants des Gouvernements serait à même de
provoquer une réunion et qu’aucun des autres groupes
n’aurait la possibilité de le faire. Il conviendrait de réduire le
nombre de membres exigés afin de permettre à tout group
qui le désirerait, de provoquer une session extraordinaire ».
1934 ARTICLE 11
2. Without prejudice to the
provisions of Article 7 of the
Constitution of the Organisation
(393), the Chairman may also
summon a special meeting, should
it appear necessary to him to do
so, and shall be bound to summon
a special meeting on receipt of a
written request to that effect
signed by eight members of the
Government group, or six members
of the employers' group, or six
members of the workers' group.
*
50 per cent of Government group,
or 75 per cent of a nongovernmental
group
Article 393 (amended by
the ILC at its 4th Session in
October 1922)
A special meeting shall be
held if a written request to
that effect is made by at
least twelve of the
representatives on the
Governing Body.
*
37.5 per cent of total
number of GB regular of
members (32)
Article 393
(amended)
16 G
8 Es
8Ws
GB.68/PV, pp. 80-81
“The Committee felt that in view of the increased
representation of overseas countries on the Governing
Body it would be difficult to obtain the signatures of all
the members of the employers' or workers' group for
the convocation of special meetings of the Governing
Body, so that if all the members of either of those
groups were required to sign a request, it would be
impossible for special meetings for urgent business ever
to be convened at short notice, except at the request of
the members of the Government group.
The Committee therefore proposed to increase the number
of members of the Government group to eight and to retain
the number of six in the case of the other two groups”.
1955 Article 20
2. Without prejudice to the
provisions of article 7 of the
Constitution of the Organisation,
the Chairman may also summon a
special meeting should it appear
necessary to him to do so, and
shall be bound to summon a
special meeting on receipt of a
written request to that effect
signed by ten members of the
Article 7(8) (amended by
the Conference at its 36th
Session in June 1953)
A special meeting shall be
held if a written request to
that effect is made by at
least sixteen of the
representatives on the
Governing Body.
Article 7(8)
(amended)
20 Gs
10 Es
10 Ws
GB.128/PV, p. 103 “The Committee further noted that
several articles of the Standing Orders refer to the
number of members of the Governing Body required to
validate particular action and considered that in the light
of the increase in the size of the Governing Body the
numbers in these provisions should be changed to
maintain the same or substantially the same
proportion”.
Government group, or seven
members of the Employers' group, or
seven members of the Workers'
group.
*
50 per cent of Government group,
or 70 per cent of a nongovernmental
group
*
40 per cent of total number
of GB regular members (40)
1974 Article 20
2. Without prejudice to the
provisions of article 7 of the
Constitution of the Organisation,
the Chairman may also summon a
special meeting should it appear
necessary to him to do so and shall
be bound to summon a special
meeting on receipt of a written
request to that effect signed by
sixteen members of the Government
group, or twelve members of the
Employers' group, or twelve
members of the Workers' group.
*
57 per cent of Government group,
or 85 per cent of a nongovernmental
group
Article 7(8)
Unchanged
Article 7(1)
(amended
in 1962
and 1972)
28 Gs
14 Es
14 Ws
GB.194/SC/5/4, para. 6(d) “Article 20, paragraph 2, which
provides that a special meeting of the Governing Body
shall be summoned on the written request of ten
members of the Government group, or seven of the
Employers' group, or seven members of the Workers'
group; until 1963 these figures were equivalent to half
the membership of the Government group and 70 per
cent of the Employers' or Workers' groups; from 1963,
they represented some 40 or 60 per cent respectively. In
both cases the figures are substantially less than the 16
members required for this purpose by the Constitution
(Article 7, paragraph 8), as fixed by the Constitution of
the International Labour Organisation Instrument of
Amendment, 1953, so as to maintain the previous
proportion to the total size of the Governing Body (40
per cent). In view of the constitutional provision
whereby it is not possible to require more than 16
signatures calling for a special session of the Governing
Body it is proposed that the figures "ten", “seven" and
"seven" should be replaced by the figures "sixteen",
"twelve" and "twelve”.
2005 3.2.2
Unchanged
Unchanged Unchanged GB.294/LILS/1 Renumbering as part of the publication of
the Compendium
2016 3.2.2. Without prejudice to the
provisions of article 7 of the
Constitution of the Organization,
the Chairperson may also convene,
after consultation with the other
Officers, a special meeting should
it appear necessary to do so, and
shall be bound to convene a
special meeting on receipt of a
written request to that effect
signed by sixteen members of the
Government group, or twelve
members of the Employers’ group, or
twelve members of the Workers’
group.
Unchanged Unchanged GB.326/LILS/2
Consultation with the other Officers was added,
codifying existing practice.
Conclusion
Art 7(8) of the Constitution provides for the holding of a special GB meeting at the request of a specified number of regular GB members irrespective
of the group to which they belong (representing approximately 40 per cent of the total number of regular members). This number was originally set
at 10 members, currently stands at 16 and will increase to 32 upon the entry into force of the 1986 amendment.
Art 7 of the Constitution also provides that the GB controls its own procedure. Within those limits, the GB has developed complementary rules
providing that a special meeting may also be convened at the initiative of the Chairperson or at the written request of a specific number of regular
members of one of the three groups. The number of group members required to convene a special meeting has evolved from 6-6-6 to 8-6-6, then 10-
7-7 and is currently set 16-12-12. The rationale underlying this complementary rule was that each of the three groups – and not only the government
group – should be empowered to provoke the convening of a special meeting.
Based on a combined reading of art 7(8) of the Constitution and para 3.2.2 of the Standing Orders, it is established that a special GB meeting (session
spéciale or session extraordinaire in French) may be convened in three distinct instances.
• First, at the request of at least 16 regular GB members regardless of the group (for instance, a written request signed by 8 G, 2 E and 6 W
members, or a request signed by 6 G and 10 E members, or a request signed by 7 E and 9 W members). No record of relevant practice.
• Second, at the discretion of the Chairperson if he/she considers it necessary after consulting the Vice-Chairpersons. Provision invoked on five
occasions; three special meetings convened.
• Third, at the request of the majority of the regular members of any of the three groups, i.e. 16 G members, or 12 E members, or 12 W members.
No record of relevant practice.
In sum, due to its extraordinary nature, a special GB meeting should be convened only if the Chairperson deems it necessary, or if a considerable
number of GB regular members of the same or different groups formally so requests. These are complementary, self-standing rules that can be
applied separately.

Document No. 20
ILO, Note concerning the binding legal effect of ICJ
advisory opinions, September 2023

The binding legal effect of ICJ advisory opinions
1. The question is often raised whether in case of referral to the ICJ, the advisory opinion
given by the Court would have binding effect, and if so, on what basis.
2. According to general legal theory, ICJ advisory opinions are judicial statements on legal
questions submitted to the Court by organs of the UN and other international bodies so
authorized. Advisory opinions do not constitute a decision within the meaning of article
59 of the ICJ Statute. Unlike contentious proceedings, advisory proceedings do not involve
parties to an inter-State dispute and are not vested with res judicata effect, meaning that
they do not result in a final and non appealable judgment precluding relitigation of the
same claim between the same parties.
3. However, advisory opinions relating to the interpretation of the ILO Constitution or of an
international labour Convention are endowed with binding effect because art 37(1)
expressly provides so (I). More broadly, there is strong support in State practice and legal
scholarship that the legal effect of an ICJ advisory opinion is in reality as authoritative as
a judgment and that the requesting organ is bound by the Court’s ‘advice’ (II).
I.
4. According to the International Court of Justice, “a distinction should thus be drawn
between the advisory nature of the Court's task and the particular effects that parties to
an existing dispute may wish to attribute, in their mutual relations, to an advisory opinion
of the Court, which, “as such, … has no binding force" (Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania, Advisory Opinion, ICJ Reports 1950, p. 71). These
particular effects, extraneous to the Charter and the Statute which regulate the
functioning of the Court, are derived from separate agreements; in the present case
Article VIII, Section 30, of the General Convention provides that "the opinion given by the
Court shall be accepted as decisive by the parties". (Immunity from Legal Process of a
Special Rapporteur of the Commission on Human Rights, Advisory Opinion, ICJ Reports 1999,
para. 25, p. 77)
5. As explained in the website of the Court, “contrary to judgments, and except in rare cases
where it is expressly provided that they shall have binding force (for example, as in the
Convention on the Privileges and Immunities of the United Nations, the Convention on
the Privileges and Immunities of the Specialized Agencies of the United Nations, and the
Headquarters Agreement between the United Nations and the United States of America),
the Court’s advisory opinions are not binding. The requesting organ, agency or organization
remains free to decide, as it sees fit, what effect to give to these opinions.”
6. In the case of the ILO, a ‘particular effect’ is attributed to the Court’s advisory opinions by
an express constitutional provision, i.e. article 37(1) that unambiguously provides for a
“decision” of the International Court of Justice. The ICJ has therefore been entrusted by
the drafters of the ILO Constitution with the responsibility of delivering “decisions” – and
not opinions – for the final settlement of interpretation disputes. It follows that by joining
the Organization, all Member States accept the binding nature of any “decision” that the
ICJ would deliver in response to a request made by the Organization under article 37(1).
7. As Roberto Ago, former President of the ICJ has written, “under certain provisions [advisory
opinions] “may pursue a more ambitious aim, namely, to settle a dispute to which one of
those institutions is a party. Examples of such provisions may be found in […] the
constituent instruments of certain of these organizations […] The essential common
feature of these provisions is that they characterize the opinion requested from the Court
as a “decision” in relation to the dispute at issue; that is, they confer “binding force” on
the opinion for the parties to the dispute”.1 While Shabtai Rosenne refers to “those
exceptional instances in which by collateral agreements States and international
organizations have agreed that the opinion will have binding force or will be decisive. In
those cases the obligation of compliance derives from the agreement”.2
8. Similar clauses providing for referral to the ICJ may be found in section 32 of the 1947
Convention on the Privileges and Immunities of the Specialized Agencies, that provides
that the opinion given by the Court shall be accepted as decisive, and former article XII of
the ILOAT Statute. Guillaume Bacot, making explicit reference to article 37(1) of the ILO
Constitution, notes that “il est habituellement admis que toutes ces dispositions signifient
que ces avis rendus par la Cour doivent être acceptés comme obligatoires”.3 While for
Robert Kolb, “the binding force of the Court’s pronouncement derives, as a matter of law,
not from the opinion itself, but from the collateral legal text that confers upon the opinion
a legal force it would not otherwise have had. In such a case, the opinion is a disguised
form of judgment, the Court’s advisory function being used to decide a dispute or a point
of law […] The parties cannot derogate from the Statute and Rules [of the Court] by
reducing their obligations under those texts […] However, they are perfectly entitled to
add to their obligations provided that their doing so does not conflict with the letter and
spirit of the texts”.4
9. The binding nature of ICJ advisory opinions delivered at the ILO’s own request has been
generally acknowledged and accepted for more than 100 years by all tripartite
constituents (governments, employers, workers) without exception. Indeed, ILO records
are replete with references of constituents (bur also of the Office and of supervisory
bodies) to “binding opinion”, “binding authority”, “binding ruling”, “the legal truth”,
“authoritative interpretation”, “authoritative ruling”, “definitive interpretation”, “final
decision”, “statement of the law in force” – all conveying the deep-rooted belief that article
37(1) confers a binding effect to advisory opinions obtained on that basis. A compilation
of statements to this effect is in the Annex. In essence, this opinio juris of the ILO tripartite
1 Roberto Ago, “Binding Advisory Opinions of the International Court of Justice”, American Journal of
International Law, vol. 85, 1991, p 439. As Ago notes, “the Court has never considered its task to be to
pronounce on whether these clauses conform with the criteria by which its Statute distinguishes between
the Court’s functions. Nor has it seen fit to comment on whether attributing the binding nature of a ‘decision’
to a text adopted as an ‘opinion’ is consistent with the intrinsically advisory character of the latter”; ibid, p.
443.
2 Shabtai Rosenne, The Law and Practice of the International Court, 1920-2005, 2006, vol. III, p. 1698.
3 Guillaume Bacot, “Réflexions sue les clauses qui rendent obligatoires les avis consultatifs de la CPJI et de la
CIJ”, Revue générale de droit international public, vol. 84, 1980, p.1034.
4 Robert Kolb, The International Court of Justice, 2014. pp. 1187-1188. See also Jochen Frowein; Karin Oellers-
Frahm, “Advisory opinions - Article 65” in A Zimmermann; C Tomuschat; K Oellers-Frahm (eds.), The Statute
of the International Court of Justice – A Commentary, 2006, p. 1416.
constituency reflects the fact that article 37(1) must be understood as a ‘compromissory
clause’ attributing decisive and conclusive effect to ICJ advisory opinions.
10. It was precisely this belief that motivated the six referral requests transmitted to the
Permanent Court of International Justice in the period 1922-1932. What would be the
purpose of debating and voting on these referral requests if there was no shared
understanding among ILO constituents that they would be obliged to abide by the ‘ruling’
of the Court? And who would know better the legal effect of advisory opinions than those
predecessors who have stood before the Court and explained the reasons of ILO’s referral
requests? When the first two interpretation questions were referred to the PCIJ in 1922,
Albert Thomas stated that “there was no authority more highly placed or in whose
judgement more reliance could be reposed than the Permanent Court of International
Justice for the purpose of settling disputes of this nature” and noted “the acceptance of
its obligatory jurisdiction [of the Permanent Court], [that had] the right of giving to any
international convention an official interpretation, having the same binding force as the
instrument itself”. As for Harold Butler, he noted ten years later in the written statement
to the Court the following: “The object of the present proceedings before the Court is to
secure an authentic interpretation. Once such an interpretation is given in whatever
sense, it will lead ipso facto to the disappearance of all divergences and inequalities, for
States bound by the Convention will be under an obligation to take the necessary
measures to give effect to the interpretation laid down by the Court”.
11. Apart from the express reference to “decision” in article 37(1), the biding effect of advisory
opinions is also grounded on institutional logic and common sense. If the Court’s opinion
were not accepted as binding, article 37 would become meaningless and its very purpose
as a dispute settlement clause would be defeated as there would be no authority
designated as competent to settle authoritatively an interpretation dispute. In that case,
what would be the need or utility of including article 37(1) in the ILO Constitution and why
would the Constitution require any dispute or question to be referred to the ICJ for
decision?
II.
12. At a more general level, it is generally admitted in State practice and legal scholarship
that ICJ advisory opinions, even though not formally binding, carry legal weight and may
be assimilated in many respects to binding judgments. As early as 1927, a committee of
the Permanent Court expressed the opinion that “the difference between contentious
cases and advisory opinions is only nominal. The main difference is the way in which the
cases come before the Court. So the view that advisory opinions are not binding is more
theoretical than real”.5
13. Writing in 1929, Charles De Visscher took the view that “dans les limites de la question qu’il
a posée à la Cour sur les aspects juridiques d’un différend, le Conseil [de la Société des
Nations] est forcément lié par l’avis rendu : cet avis n’est donc pas une consultation
5 Quoted in Leland Goodrich, “The nature of the advisory opinions of the Permanent Court of International
Justice”, American Journal of International Law, vol. 32, 1938, p. 739.
ordinaire, semblable à celle que le Conseil pourrait demander à un comité de juristes, par
exemple, et qu’il serait libre par la suite d’écarter à volonté”.6 And Georges Scelle, four years
later had this to say: “an advisory opinion is a statement of the law; it is self-contradictory,
and thus technically impossible, to declare that a subject of law […] when he knows what
the law has to say about a concrete case, can refuse to yield to it”.7
14. Legal writings have since confirmed that the authoritativeness of the Court’s opinions
renders them - for all intents and purposes - binding on the requesting organ. As it has
been observed, “an advisory opinion is not just advice or consultation […] There is no
fundamental difference between the intrinsic value of the content of the Court’s opinion
and that of a judgment given by the same Court, in the sense that both are authoritative
judicial pronouncements deciding questions that have been submitted to the Court”. 8 In
the words of another scholar, “no matter whether the Court’s advisory opinions are
formally binding on others, they are binding on the UN’s organs as regards the point of
law decided by the Court’s jurisdictional act. To the extent that such organs are obliged,
or deliberately choose, to adopt a legal solution to the point decided by the Court’s
opinion, that point of law becomes binding on the requesting organ”.9
15. There is also considerable evidence that States invariably accept the Court’s opinions as
final and refrain from questioning the Court’s legal reasoning. The statements of the
French and UK representatives at the UN General Assembly in reaction to the Reparation
for Injuries advisory opinion are eloquent illustrations in this regard. As Ms Bastid from
France stated, “the Assembly had requested an authoritative opinion of the International
Court of Justice, for it did not know exactly what legal conditions must be complied with
for the Secretary-General to be able to take action. The General Assembly was now in the
same condition as an individual who had consulted a jurist on a legal matter and who. On
the strength of his opinion and without discussing it, acted in conformity with that
experts’ conclusions”. As for Mr Fitzmaurice of the United Kingdom, he stated: “the Sixth
Committee could neither approve nor disapprove of the findings of the Court on a point
of law. The United Kingdom government greatly welcomed the opinion of the Court, not
because its findings were in accordance with the argument which the United Kingdom
had presented to the Court but because it believed they were in the best interests of the
United Nations itself”.10
16. It shall also be recalled that in its resolution A/RES/73/295, adopted on 22 May 2019 to
follow up on the advisory opinion given by the Court in the Chagos case, the General
Assembly “[considered] that respect for the Court and its functions, including in the
exercise of its advisory jurisdiction, is essential to international law and justice and to an
international order based on the rule of law”. In the same vein, the General Assembly in
6 Ch De Visscher, “Nature des avis consultatifs et limites de leur autorité”, Recueil des cours de l’Académie de
La Haye, vol. 26, 1929, p. 27.
7 Georges Scelle, “Règles générales du droit de la paix”, Recueil des cours de l’Académie de La Haye, vol 46,
1933, p. 581.
8 Georges Abi-Saab, Les exceptions préliminaires dans la procédure de la Cour international, 1967, p.75.
9 R Kolb, op cit, p. 1184.
10 Cited in Edvard Hambro, “The Authority of the Advisory Opinions of the International Court of Justice”,
International and Comparative Law Quarterly, vol. 3, 1954, pp. 16-17.
resolution A/RES/ES-10/15 adopted after the advisory opinion on the Wall case
“[considered] that respect for the Court and its functions is essential to the rule of law”
and “[called] upon all States Members of the United Nations to comply with their legal
obligations as mentioned in the advisory opinion”.
17. Moreover, the moral authority ICJ advisory opinions enjoy due to the stature of the judges
and the high esteem to which the Court is held can hardly be overestimated. The ICJ has
delivered landmark opinions which have been instrumental for the development of
international law in many different areas (for instance, the Genocide opinion of 1951, the
Reparation for injuries opinion of 1949, the Namibia opinion of 1971, the Nuclear Weapons
opinion of 1996).11 Not to mention that advisory opinions are often couched in terms that
leave little doubt as to the authoritativeness of the statements of law they contain. The
advisory opinions on the Construction of a Wall of 2004 and the Chagos Archipelago of
2009 are notable examples of legal ‘advice’ carrying the weight of legal pronouncement
erga omnes that compels compliance, especially with respect to duties and obligations of
UN Member States under international law.12
18. It is noteworthy that even the main point of distinction between judgments and advisory
opinions, namely the fact that only judgments are vested with res judicata effect (i.e.
adjudication is conclusive and matter cannot be relitigated), has recently been called into
question. In a Judgment of 2021 concerning maritime delimitation between Mauritius and
Maldives, the ITLOS argued that the 2019 advisory opinion on the Chagos archipelago
had resolved the dispute in favour of Mauritius, thus marking “the beginning of a new era
where international courts and tribunals recognize ICJ advisory opinions as precedents
having the (normative) authority to resolve a dispute”.13 Even before the ITLOS judgment,
however, it had been highlighted in academic writings that “an advisory opinion, like a
judgment in a contentious case, enjoys a kind of factual res judicata status, since there is
no mechanism for appealing against either. In short, the absence in an advisory opinion
of the force of res judicata, though often emphasized, has quite negligible practical
implications”.14
* * *
19. In conclusion, in contemplating a possible referral of the interpretation dispute on
Convention No 87 to the ICJ, due account should be taken of the fact that, for the reasons
explained above, the Court’s opinion on the legal question(s) put to it would be binding
for the Organization and its tripartite constituents. Clarity on this important parameter
would be a necessary condition for any referral decision-making process. To quote once
more from a seminal work on the Court’s functioning, “any other attitude would
11 On the normative effect of ICJ advisory opinions, see Teresa Mayr, Jelka Mayr-Singer, “Keep the wheels
spinning: The contributions of advisory opinions of the international Court of Justice to the development of
International Law”, ZaöRV, vol. 76, 2016, pp.425-449.
12 See Richard Falk, “Towards Authoritativeness: The ICJ Ruling on Israel’s Security Wall”, American Journal of
International Law, vol. 99, 2005, pp. 42-52.
13 Niccolo Lanzoni, “The authority of ICJ advisory opinions as precedents: The Mauritius/ Maldives Case”,
Italian Review of International and Comparative Law, 2022, p.321.
14 R Kolb, op cit, p. 1183.
undermine the Courts’ authority and prestige. In political terms, the two things are one:
either the requesting organ is ready to follow or be guided by the Court’s advisory
opinion, in which case it can ask for one, or it is not, in which case it must not ask for the
opinion in the first place. This is a major political responsibility resting on anybody
contemplating requesting an advisory opinion. It must obviously avoid embarrassing the
UN’s highest judicial organ”.15
20. As the current President of the ICJ put it in a recent statement, “States that are truly
committed to the rule of law must entrust international courts and tribunals with judicial
settlement of legal disputes. When a State avoids binding and compulsory third-party
dispute settlement, its invocations of the rule of law sound hollow […] The rule of law
requires States to comply systematically with decisions of international courts and
tribunals that are binding on them, even if they disagree with a decision.” It is difficult to
imagine why the rule of law principle would apply any differently to the ILO in relation to
an advisory opinion delivered by the ICJ at the ILO’s own request and on the basis of the
compulsory third-party dispute settlement clause that is found in its Constitution.
15 R Kolb, op cit, p. 1186.
Annex - Compilation of statements concerning the legal effect of advisory
Opinions requested under art. 37(1) of the ILO Constitution
I. Governments
In 1922, during the discussions at the Council of the League of Nations concerning
the possible referral to the PCIJ of the question on Agricultural Production (1922), the
representative of France delegate stated that “it would remove all possible difficulty if a
formal decision was obtained from the Court” (Official Bulletin, 1922, Vol. VI, No. 11, p. 384).
In 1931, the representative of Poland stated before the PCIJ in the context of the Free
City of Danzig and ILO advisory proceedings that it “awaits with deference the advisory
opinion of the Court. In the light of the reply given to the question put by the Council of the
League, Poland will take the necessary steps to meet the situation thus created” (Official
Bulletin, 1931, vol. XVI, No. 2, p. 239).
In 1932, in the context of the advisory proceedings on the Interpretation of the
Convention of 1919 concerning employment of women during the night, the representative
of Great Britain stated that “it became apparent that different interpretations were being
placed by different States (…), and in these circumstances His Majesty's Government moved the
Governing Body to invite the Council to obtain an authoritative ruling from the Court” (Official
Bulletin, 1933, vol. XVIII, No. 2, p. 84).
In 1989, the Government member of the Netherlands in the CAS stressed “the
necessity of close co-ordination between the lawyers of the Office and national jurists (because)
their interpretation of ILO standards might differ widely, although neither of them was
authoritative since, as was known, only the International Court of Justice was competent in this
regard” (ILC, Record of Proceedings, 1989, p. 26/4, para. 12).
In 1990, the Government member of Finland, speaking on behalf of the Nordic
governments, stated in the CAS that “according to the ILO Constitution, the competence for
giving definitive interpretations of Conventions, however, was vested in the International Court
of Justice” (ILC, Record of Proceedings, 1990, p. 27/8, para. 31).
In 1991, the Government member of France stated in the CAS that “the International
Court of Justice provided the final recourse for the interpretation of the Constitution and of
Conventions” (ILC, Record of Proceedings, 1991, p. 24/5, para. 21).
In 2010, the Government member of Venezuela, speaking on behalf of GRULAC,
expressed the view that “the Committee of Experts interpreted Conventions which was
delegated to the International Court of Justice in the Constitution” (ILC, Record of
Proceedings, 2010, Provisional Record No. 16, Report of the CAS, Part I, para. 64).
In 2014, the Government delegate of Venezuela stated in the ILC plenary that “Article
37(1) of the Constitution of the International Labour Organisation clearly and categorically
puts forward a solution in this regard. The issue must be referred to the International Court of
Justice, so that, once and for all, the Court can interpret Convention No. 87 and issue a binding
opinion in that regard” (ILC, Records of Proceedings, 2014, pp. 17/11-12).
II. Employers
In 1926, the representative of the International Organization of Industrial Employers
before the PCIJ in the Personal Work of Employers (1926) advisory proceedings, noted that
“it is futile to say that the Court can give only an Advisory Opinion. It is clear that here as in
other spheres the Court exercises a judicial function which consists in interpreting the law, and
its judgments must be considered as a statement of the law in force” (Official Bulletin, 1926,
vol. XI, No. 5, p. 223).
In 1989, the Employers’ member of Sweden in the CAS stated that “Only one body – the
International Court of Justice – could make authoritative interpretations of international labour
Conventions. Recourse to it had seldom been sought, probably because there had been
considerable satisfaction with the way the system functioned. Nonetheless, the role of the
International Court of Justice as the ultimate arbiter should always be borne in mind” (ILC,
Records of Proceedings, 1989, p. 26/6, para. 21).
In 1992, the Employers’ spokesperson to the CAS affirmed that “under the ILO
Constitution only the International Court of Justice may give a definitive interpretation of a
Convention” (ILC, Record of Proceedings, 1992, p. 27/4, para. 17).
In 1993, the Employers’ spokesperson observed that “every supervisory body examining
whether a State was fulfilling its obligations under a Convention had to undertake the task of
interpretation, although only one – the International Court of Justice – could do so with binding
authority” (ILC, Record of Proceedings, 1993, p. 25/4, para. 19).
In 1994, the Employers’ spokesperson remarked that “Only the International Court of
Justice may give binding interpretations” (ILC, Record of Proceedings, 1994, p. 25/8, para.
21).
In 1998, the Employers’ spokesperson reiterated that “According to the ILO Constitution,
only the International Court of Justice was empowered to give definitive interpretations” (ILC,
Record of Proceedings, 1998, p. 18/8, para. 17).
In 1999, the Employers’ spokesperson regretted that “It was therefore small consolation
that the only binding interpretation of legal texts could be made by the International Court of
Justice. In view of the absence of any decision by that Court, there was therefore no generally
binding interpretation of the two Conventions” (ILC, Record of Proceedings, 1999, p. 23/37,
para. 114).
In 2001, the Employer Vice-Chairperson of the CAS expressed the view that the CEACR
“should not develop jurisprudence, and it should certainly not assume responsibility for issuing
binding interpretations of standards. Under article 37 of the ILO Constitution, that is a power
reserved for the International Court of Justice” (ILC, Record of Proceedings, 2001, p. 22/4).
In 2002, the Employers spokesperson to the CAS emphasized that “only the
International Court of Justice had the authority to make binding interpretation of Conventions
and Recommendations, which clearly derived from article 37 of the ILO Constitution” (ILC,
Record of Proceedings, 2002, Provisional Record No. 28, Report of the CAS, Part I, p. 28/13,
para. 45).
In 2006, the Employers’ representative to the Selection Committee stated that “an
advisory opinion by the ICJ was a result which could be obtained in a relatively short time, and
it would be a binding ruling that could be enforced through the UN Security Council” (ILC,
Record of Proceedings, 2006, Provisional Record No. 3-2, Second Report of the Selection
Committee, p. 3-2/4).
In 2012, the Employers spokesperson to the CAS stated that “under article 37 of the ILO
Constitution, only the ICJ could give a definitive interpretation of international labour
convention” (ILC, Record of proceedings, 2012, Provisional Record No. 19(Rev.), Report of
the CAS, Part I, para. 82).
III. Workers
In 1932, in the context of the advisory proceedings concerning the Night Work
(Women) Convention, the representative of the International Confederation of Christian
Trade Unions stated that what he expected from the Court was « la vérité juridique sur le
texte en question, plus encore: la méthode d'interprétation des conventions qui sera le guide
des Etats, de l'Organisation internationale du Travail et des organisations professionnelles
dans tout le domaine des conventions » (Official Bulletin, 1933, vol. XVIII, No. 2, p. 147).
In 1991, the Workers’ spokesperson to the CAS considered “that neither the
assessments of the present Committee nor the views expressed by the Committee of Experts
had the force of law, although the opinion of the Committee of Experts was generally accepted
in view of the Committee's composition and working methods, subject to a definitive
interpretation by the International Court of Justice” (ILC, Record of Proceedings, 1991, p.
24/4, para. 16).
In 1992, the Workers’ member of Finland in the CAS stated that “until recently the
established interpretations made by the Committee of Experts have been considered binding
by member States until the International Court makes a final decision” (ILC, Record of
Proceedings, 1992, p. 27/5, para. 19).
IV. Committee of Experts
In 1977, the Committee of Experts stated that its “terms of reference do not require it to
give interpretations of Conventions, competence to do so being vested in the International
Court of Justice by article 37 of the Constitution.” (ILC, 1977, Report III, Part 4A, Report of the
Committee of Experts, General Report, para 32).
The Committee reiterated that “its terms of reference do not require it to give definitive
interpretations of Conventions, competence to do so being vested in the International Court of
Justice by article 37 of the Constitution” in 1987, 1990, 1991, 2006 and 2013 (ILC, 1987,
Report III, Part 4A, para 21; ILC, 1990, Report III, Part 4A, para 7; ILC, 1991, Report III, Part
4A, para 9; ILC, 2006, Report III, Part 1A, p. 2; ILC, 2013, Report III, Part 1A, para 26).
In 1991, the Committee noted that “It is essential for the ILO system that the views that
the Committee is called upon to express in carrying out its functions, in the conditions recalled
above, should be considered as valid and generally recognised, subject to any decisions of the
International Court of Justice which is the only body empowered to give definitive
interpretations of Conventions” (ILC, 1991, Report III, Part 4A, para 12).
V. The Office
In 1922, in the framework of the very first advisory opinion requested by the ILO, its
Director General, Sir Albert Thomas, stated that “It appeared to our Organisation and to our
Governments that there was no authority more highly placed or in whose judgement more
reliance could be reposed than the Permanent Court of International Justice for the purpose of
settling disputes of this nature.” (Official Bulletin, 1922, vol. VI, pp. 72-73)
In 1922, in the Office memorandum concerning the Competence of the ILO in regard to
International Regulation of the Conditions of the Labour of Persons Employed in Agriculture
(1922), it was noted that “until the creation of the Permanent Court of International Justice
and the acceptance of its obligatory jurisdiction, the right of giving to any international
convention an official interpretation, having the same binding force as the instrument itself, to
which it is assimilated, belonged exclusively to the signatory States” (Official Bulletin, 1922,
vol. VI, p. 325).
Following the advisory opinion of the Court, a letter was sent to several Governments
by which they were informed that the “controversy which was closed by the advisory opinion
given by the Permanent Court of International Justice” (Official Bulletin, 1923, Vol. VIII, Nos
1-2, p. 2).
In 1926, in the Office memorandum concerning the Personal Work of Employer, it was
noted that “of course, the preamble accompanying the question submitted to the Court is not
intended to be taken as in any way prejudicing the opinion the Court is invited to give. There is
no need to say that on the contrary the Governing Body of the International Labour Office will
bow to the decision of the Court” (Official Bulletin, 1926, Vol. XI, No. 5, p. 180).
In 1930, in the Office memorandum concerning the Free City of Danzig it was stated
that “the International Labour Office does not consider itself qualified to form any conclusion
on the subject, and awaits with respect the answer of the Court, with which the attitude of the
International Labour Organisation will not fail to comply” (Official Bulletin, 1931, vol. XVI, No.
2, p. 104).
In 1932, in his oral statement in the context of the proceedings concerning the Night
Work (Women) Convention, the ILO representative stated that “the object of the present
proceedings before the Court is to secure an authentic interpretation. Once such an
interpretation is given in whatever sense, it will lead ipso facto to the disappearance of all
divergences and inequalities, for States bound by the Convention will be under an obligation
to take the necessary measures to give effect to the interpretation laid down by the Court”
(Official Bulletin, 1933, vol. XVIII, No. 2, p. 116).
In 1969, the representative of the Legal Adviser explained to the members of the
Committee on Youth Schemes that, “according to article 37 of the Constitution, only the
International Court of Justice could authoritatively interpret Conventions” (ILC, Records of
Proceedings, 1969, p. 694, para. 59).
In 1978, the Legal Adviser of the Conference gave an opinion on the possible
admission of Namibia as a member of the ILO and stated that “the International Court of
Justice is, in accordance with article 37, paragraph 1 of the Constitution, alone competent to
give an authoritative answer” on any question or dispute regarding the interpretation of
the Constitution (ILC, Record of Proceedings, 1978, p. 24/20).
In his report to the 70th Session of the ILC in 1984, the Director-General recalled the
position of the Committee of Experts that “competence to give interpretations of Conventions
is vested in the International Court of Justice by article 37 of the Constitution. While, on account
of the standing and expertise of the members of the Committee of Experts, the Committee's
views merit the closest attention and respect and in the great majority of cases find acceptance
from the governments concerned, they do not have the force of authoritative pronouncements
of law. The Committee is not a court able to give decisions binding upon member States” (ILC,
Report of the Director-General, 1984, p. 30).
In 1990, the representative of the Secretary-General to the CAS indicated that the
opinions of the Committee of Experts “are not authoritative as concerns interpretations to
which they may give rise, [and that] this authority attaches exclusively to the International
Court of Justice” (ILC, Record of Proceedings, 1990, p. 27/9, para. 35).
In 2010, the representative of the Secretary-General to the CAS noted that the ICJ is
“the only body at present competent to provide the authoritative interpretation set forth in
article 37(1) of the Constitution” (ILC, Record of Proceedings, 2010, Provisional Record No.
16, Report of the CAS, Part I, para. 33).
(Source: GB.347/INS/5, para 13, footnote 11)

Document No. 21
ILO, Note concerning the legal basis for requesting an
advisory opinion, September 2023

Legal basis for requesting an advisory opinion
1. There are two concurrent legal bases for referring a matter to the ICJ; the first is in article
37(1) of the Constitution and the second in article IX(2) of the 1946 Agreement between
the United Nations and the International Labour Organization (also known as UN-ILO
relationship agreement).
2. Article 37(1), originally article 423 of the Treaty of Versailles, provides that any question
or dispute relating to the interpretation of the Constitution or of an international labour
Convention shall be referred for decision to the ICJ. As it currently reads, article 37(1)
suggests that referral of interpretation disputes to the ICJ is compulsory and that the
decision of the Court is final and binding (see GB.322/INS/5, para. 27).
3. Article IX(2) of the 1946 UN-ILO relationship agreement provides that “the General
Assembly authorizes the International Labour Organization to request advisory opinions
of the International Court of Justice on legal questions arising within the scope of its activities
other than questions concerning the mutual relationships of the Organization and the
United Nations or other specialized agencies.” This authorization was required since
under article 96(2) of the UN Charter only organs of the United Nations and specialized
agencies, which may at any time be so authorized by the General Assembly, may request
advisory opinions of the Court on legal questions arising within the scope of their
activities. Similarly, under article 65 of the ICJ Statute, “the Court may give an advisory
opinion on any legal question at the request of whatever body may be authorized by or
in accordance with the Charter of the United Nations to make such a request.”
4. The negotiating history of the 1946 UN-ILO relationship agreement confirms that the
intention was to secure the possibility to refer legal matters to the ICJ beyond the narrow
confines of questions of interpretation of the Constitution or of international labour
Conventions. Following the mandate given by the ILC, in its Resolution of 3 November
1945 concerning the relationship between the International Labour Organisation and the
United Nations, a negotiating delegation drew up a draft agreement which was later
signed by the Chairperson of the Governing Body on behalf of the Negotiating Delegation
on 30 May 1946 (Official Bulletin, vol. XXVII, No. 3, p. 914). During the 1946 Conference
discussions on that agreement, the President of the Delegation on constitutional
questions clarified that the Agreement provided for a blanket authorisation and did not
require a separate request to be made each time that an opinion was sought (ILC, 29th
Session, 1946, Official Bulletin, p. 842). At no point was mention made of article 37 or of
the need to align the relationship agreement with the constitutional provision. If this had
been the intention, the drafters would have simply made a cross-reference to article 37(1).
5. The broad scope of legal matters that may be referred to the ICJ was confirmed in a 1956
advisory opinion, in which the Court stated that an authorized specialized agency of the
United Nations “has the general power to ask for an Advisory Opinion of the Court on
questions within the scope of its activity” (Judgments of the Administrative Tribunal of the
ILO upon Complaints Made against the Unesco, Advisory Opinion, ICJ Reports 1956, p.
99).
6. The Court has further clarified that “three conditions must be satisfied in order to found
the jurisdiction of the Court when a request for an advisory opinion is submitted to it by
a specialized agency: the agency requesting the opinion must be duly authorized, under
the Charter, to request opinions from the Court; the opinion requested must be on a legal
question; and this question must be one arising within the scope of the activities of the
requesting agency” (see Legality of the Use by a State of Nuclear Weapons in Armed
Conflict, Advisory Opinion, ICJ Reports 1996, pp. 71–72).
7. It is therefore clear that the scope of legal matters that can be submitted to the ICJ under
article IX(2) of the 1946 UN-ILO relationship agreement is much wider than the questions
of interpretation that can be put to the Court under article 37(1) of the Constitution.
8. Within the UN system, there is nothing uncommon about this dual legal basis for referring
to the ICJ, on one hand, interpretation questions, and on the other, legal questions arising
within the scope of the organization’s activities; see, for instance,
• art 75 of the WHO Constitution and art X(2) of the 1948 UN-WHO agreement;
• art XVII(2) of the FAO Constitution and art IX(2) of the 1947 UN-FAO
agreement;
• arti XIV(2) of the UNESCO Constitution and art XI(2) of the 1947 UN-UNESCO
agreement.
9. It is interesting to note that in the case of certain specialized agencies, the relevant
provision of the relationship agreement is also expressly reflected in the Constitution; for
instance, articles 75 and 76 of the WHO Constitution read:
Article 75
Any question or dispute concerning the interpretation or application of this
Constitution which is not settled by negotiation or by the Health Assembly shall
be referred to the International Court of Justice in conformity with the Statute of
the Court, unless the parties concerned agree on another mode of settlement.
Article 76
Upon authorization by the General Assembly of the United Nations or upon
authorization in accordance with any agreement between the Organization and
the United Nations, the Organization may request the International Court of
Justice for an advisory opinion on any legal question arising within the
competence of the Organization.
Likewise, article XVII of the FAO Constitution reads:
Article XVII
1. Any question or dispute concerning the interpretation of this Constitution, if
not settled by the Conference, shall be referred to the International Court of
Justice in conformity with the Statute of the Court or to such other body as the
Conference may determine.
2. Any request by the Organization to the International Court of Justice for an
advisory opinion on legal questions arising within the scope of its activities
shall be in accordance with any agreement between the Organization and the
United Nations.
10. Specialized agencies have made use of that dual legal basis in past practice. For instance,
the request made by the WHO for an advisory opinion concerning the Legality of the Use
by a State of Nuclear Weapons in Armed Conflict was based on article 76 of the WHO
Constitution and article X(2) of the UN-WHO relationship agreement. Likewise, in the
advisory opinion on the Constitution of the Maritime Safety Committee, the
Intergovernmental Maritime Consultative Organization (IMCO) invoked article 56 of its
constituent instrument and article IX of the UN-IMCO relationship agreement.
11. If the ILO Constitution does not follow the same articulation importing the provision of
article IX/(2) of the UN-ILO relationship agreement into article 37, this is probably due to
the fact that, contrary to most UN agencies which were created alongside the UN, the ILO
predates the creation of the United Nations. The Constitution has never been modified to
align the text of article 37 with that of the UN Charter or the ICJ Statute, possibly because
the focus was at the time on the adoption of a new paragraph to article 37 to allow for
the establishment of an in-house tribunal.
12. In conclusion, article 37(1) is not the only legal basis for referring a legal question or
dispute to the ICJ for an advisory opinion. The UN-ILO relationship agreement, read in
conjunction with the UN Charter and the ICJ Statute, permits the ILO to refer legal
questions, other than questions of interpretation of the Constitution or of Conventions,
to the Court and establishes the jurisdiction of the Court to examine those questions. 1
1 Parenthetically, there are also other texts that provide for referral to the ICJ; for instance, section 32 of the
1947 Convention on the Privileges and Immunities of Specialized Agencies provides that any difference
arising out of the interpretation or application of the Convention shall be referred to the ICJ for advisory
opinion and that the opinion given by the Court shall be accepted as decisive. Mention may also be made of
former article XII of the ILOAT Statute which provided that an organization having recognized the Tribunal’s
jurisdiction could challenge the validity of a decision of the Tribunal for reasons of fundamental procedural
flaw by requesting an advisory opinion, to the ICJ.

Document No. 22
Comments of the Employers’ Secretariat concerning the
Office notes, October 2023

1
Employers’ Secretariat’s Preliminary Comments to Additional Notes on the ICJ Advisory
Opinions prepared by the Office
After a thorough examination of the Office’s three additional documents communicated to
the ILO tripartite constituents on 20 October 2023, the Employers’ secretariat unfortunately
has to conclude that the information and analysis contained therein is legally inconsistent and
can be strongly misleading for the following reasons. Comments on these three documents
will be addressed separately below:
1. The binding legal effect of ICJ advisory opinions
Paragraph 3 of this document states that “advisory opinions relating to the interpretation of
the ILO Constitution or of an international labour Convention are endowed with binding effect
because article 37(1) expressly provides so.” We consider this argument legally inconsistent.
The Office’s line of argument seems to be that, as indicated in paragraph 5, while apart from
rare cases ICJ advisory opinions are not binding, the “requesting organ, agency or organization
remains free to decide, as it sees fit, what effect to give to these opinions” and that the ILO
through Article 37(1) of ILO Constitution has determined for its constituents the binding
nature of ICJ advisory opinions.
It should be noted, however, that Article 37(1) is silent on the binding nature of ICJ advisory
opinions. Article 37(1) reads as follows: “Any question or dispute relating to the interpretation
of this Constitution or of any subsequent Convention concluded by the Members in pursuance
of the provisions of this Constitution shall be referred for decision to the International Court of
Justice.” Nowhere in the provision is provided that specifically ICJ advisory opinions are legally
binding.
In particular, no legally binding effect for an ICJ advisory opinion can be derived from the term
"decision". The term "decision" in Article 37(1) seems to be used as a generic term for all types
of pronouncements that can be obtained from the ICJ under this provision, which are not only
advisory opinions. For example, Article 37(1) may also be invoked by an individual member
State to obtain a ruling in the event of a dispute over the interpretation of a Convention with
another member State. A "decision" of the ICJ, which in this case would take the form of a
judgment in the contentious proceedings, would indeed be binding.1
Moreover, Article 37(2) provides that “Any applicable judgement or advisory opinion of the
International Court of Justice shall be binding upon any tribunal established in virtue of this
paragraph.” From the absence of a corresponding formulation in Article 37(1) can be
concluded that the binding nature of an ICJ advisory opinion is limited to any established
tribunal under Article 37(2), and there is no binding effect for ICJ advisory opinions in the case
of Article 37(1). This is also the view of the former ICJ President, Roberto Ago, who states that
1 ILO, International Labour Conference, Provisional Record 2, Ninety-fifth Session, Geneva, 2006, p..2/8, first
bullet point.
2
"As regards the ILO, however, the tribunal in question has never seen the light of day, and any
request by the ILO Governing Body to the International Court of Justice could accordingly lead
only to an advisory opinion, which, as such, would not have decisive effect .2
Third, given the sensitive nature of a possible binding effect of ICJ advisory opinions on
national sovereignty, the requirements for clarity and unambiguousness of the wording in the
relevant provisions should be rather high. As mentioned above, Article 37(1) is not clear and
unambiguous in this respect.
Fourth, it is important to note that the Office itself, in documents prepared for the Governing
Body in 2006 and 2007, has questioned the binding effect of ICJ advisory opinions for the ILO
and its constituents:
“However, apart from a question relating to the interpretation of the Convention, there
are other questions that the Governing Body may wish to consider in the event that an
advisory opinion is sought from the International Court of Justice. The first would concern
the interpretation of the ILO Constitution. To the extent that the Governing Body decides
to refer any question of interpretation to the International Court of Justice, it would be
logical to submit the complementary question as to whether such interpretation
sought in the form of an advisory opinion could or should be recognized as binding for
all Members under article 37(1) of the Constitution. This question, which has for some
time posed a theoretical issue, would immediately become of great practical significance
should the Governing Body decide to submit a request for an advisory opinion to the
Court.”3
“[t]hought could also be given to whether the Court could interpret article 37(1) as
providing a basis for an advisory opinion on a question of interpretation to be
considered as binding on the ILO and on the States parties to the Convention
involved”.4
As indicated above, it appears that the Office itself and also the former ICJ President were
much more cautious when it came to the question of the possible binding nature of ICJ
advisory opinions. In light of this, the Employers have doubts about the effectiveness of ICJ
advisory opinions to resolve disputes over the interpretation of ILO Conventions with
definitive legal certainty.
In any case, before any referral of the dispute on the right to strike is made to the ICJ under
Article 37(1), the International Labour Conference (ILC) should necessarily have the
opportunity to discuss and clarify the binding effect of a possible referral to the ICJ.
2. ICJ advisory proceedings – Relevant jurisprudence
As for this Office document, the Employers’ Secretariat believes that it is of little relevance for
the understanding of ICJ advisory opinions for ILO purposes. Most of the ICJ advisory opinions
2 Roberto Ago, “Binding” Advisory Opinions of the International Court of Justice, p.449, footnote 44.
3 ILO, Developments concerning the question of the observance by the Government of Myanmar of the Forced
Labour Convention, 1930 (No. 29), GB 298, March 2007, INS/5/2, para. 5.
4 ILO, Developments concerning the question of the observance by the Government of Myanmar of the Forced
Labour Convention, 1930 (No. 29), GB 297, November 2006, INS 8/2, para 9.
3
presented here concern legal questions that do not involve the interpretation of
Conventions.
It should also be noted that the ILO is unique and different from the UN and other UN
organizations in that its organs are composed not only of government representatives but also
of representatives of employers and workers. The ICJ advisory opinion jurisdiction concerning
the UN and other UN organizations should therefore be viewed with great caution for ILO
purposes.
Furthermore, while all ICJ advisory opinions that the ILO has sought in the past have been
followed up by consensual decisions either by the ILC or the Governing Body, there is no
automatism to declare ICJ advisory opinions legally binding.
3. Legal basis for requesting an advisory opinion
The Employers’ Secretariat notes from this document that Art IX(2) of the 1946 UN-ILO
Relationship Agreement is wider in scope than Article 37(1) of the ILO Constitution in that it
authorizes the ILO to request advisory opinions from the ICJ “on legal questions arising within
the scope of its activities” other than questions concerning the mutual relationships of the
Organizations and the UN or other specialized agencies.
It is not quite clear why the third document was produced in the context of the interpretation
dispute on the right to strike in C87. ICJ opinions issued on the basis of Art IX(2) of the 1946
UN-ILO Relationship Agreement are in any case not legally binding. This provision is
completely silent on the binding nature of ICJ advisory opinions and the ICJ has itself declared
that they are inherently not legally binding. 5
While there is a legal basis in Article 37(1) of the ILO Constitution for referring a legal question
or dispute concerning the interpretation of a Convention to the ICJ, there are other ways to
resolve legal questions and interpretation disputes using the existing ILO`s internal means of
action. In particular, the International Labour Conference (ILC), the ILO’s supreme body, has
the competence and legal authority to settle disputes related to the interpretation of
Conventions, through the adoption of revising Conventions or the adoption of Protocols.
Given the complexity and the multi-layered nature of the interpretation dispute on the scope
and limits of the right to strike, the ILC also appears to be the most appropriate authority to
settle this dispute as it allows all ILO constituents to actively contribute to and engage in the
process. In fact, it is the only body that can ensure that any solution would be based on
consensus or would enjoy broad support of ILO constituents, thus enhancing the desired legal
certainty.
5 ICJ, Advisory Jurisdiction “Contrary to judgments, and except in rare cases where it is expressly provided that
they shall have binding force (for example, as in the Convention on the Privileges and Immunities of the United
Nations, the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations, and
the Headquarters Agreement between the United Nations and the United States of America), the Court’s advisory
opinions are not binding.”

Document No. 23
IOE, Comments to the background report prepared by the
Office titled “Action to be taken on the request of the
Workers’ group and 34 governments to urgently refer the
dispute on the interpretation of the Freedom of
Association and Protection of the Right to Organise
Convention, 1948 (No 87), in relation to the right to strike
to the International Court of Justice for decision in
accordance with article 37(1) of the Constitution”, dated 6
October 2023

6 October 2023
Comments to the Background report prepared by the Office titled “Action to be taken on
the request of the Workers’ group and 34 governments to urgently refer the dispute on the
interpretation of the Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87) in relation to the right to strike to the International Court of
Justice for decision in accordance with article 37(1) of the Constitution”
Table of Contents
I. Introduction ........................................................................................................................ 2
II. General Remarks ................................................................................................................ 3
III. Understanding the long-standing dispute ......................................................................... 4
IV. Employers’ Position on the Right to Strike in the Context of C87 .................................... 5
V. The Core Elements of the Dispute ..................................................................................... 7
VI. The mandate of the CEACR .............................................................................................. 12
VII. The questions to be put to the Court .............................................................................. 14
VIII. Possible next steps ........................................................................................................... 14
IX. Conclusion ......................................................................................................................... 14
2
I. Introduc􀆟on
On 31 August 2023, the ILO Director General sent to all ILO Member States, along with an
invitation to provide comments before 6 October 2023, the background report prepared by
the Office entitled “Action to be taken on the request of the Workers’ group and 34
governments to urgently refer the dispute on the interpretation of the Freedom of Association
and Protection of the Right to Organise Convention, 1948 (No. 87) in relation to the right to
strike to the International Court of Justice for decision in accordance with article 37(1) of the
ILO Constitution”.
As the secretariat of the Employers’ group in the ILO, the International Organisation of
Employers (IOE) hereby provides preliminary comments on the background report. We note
that a slightly revised version of the background report was published on the ILO Governing
Body website on 18 September 2023 as an Appendix to a document for the 349th bis (Special)
Session of the Governing Body, scheduled for 10 November 2023.1 Furthermore, we reserve
the possibility of updating and supplementing our position in the light of the second content
of the background report that the Office is currently preparing for the 349th (Special) Session
of the Governing Body requested by the Employers and scheduled for 11 November, as well
as in light of any subsequent consultations with and feedback received from the Employers’
group and the discussions that will take place during the special meetings on 10-11 November
2023.
At the outset, the IOE considers that the title of the background report, which refers to “34
governments” is misleading. Article 7(8) of the Constitution2 and paragraph 3.2.2 of the
Standing Orders of the Governing Body,3 which the Workers’ group rely on to call for a special
meeting, mean only governments represented on Governing Body. We note that the first
version of the background report sent by the Office on 31 August 2023 contains in Appendix I
the letters received from supporting Governments. However, the letter from the European
Union (EU) and its member States, Iceland and Norway was only signed by the Permanent
Representative of the EU to the United Nations (UN) in Geneva and the Permanent
Representative of Spain to the UN in Geneva. There were no signatures and thus no “written
requests” from other EU member States. Apart from the fact that the EU is not an ILO member
State, not all the member States to the EU or EFTA countries (Iceland) are members of the
1 ILO, Action to be taken on the request of the Workers’ group and 36 governments to urgently refer the dispute
on the interpretation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.
87) in relation to the right to strike to the International Court of Justice for decision in accordance with article
37(1) of the Constitution, GB.349bis/INS/1, 18 September 2023.
2 ILO Cons􀆟tu􀆟on, Ar􀆟cle 7(8) reads “The Governing Body shall regulate its own procedure and shall fix its own
times of meeting. A special meeting shall be held if a written request to that effect is made by at least sixteen of
the representatives on the Governing Body.” (emphasis added)
3 ILO, Standing Orders of the Governing Body, p. 34-35, para 3.2.2, reads “Without prejudice to the provisions of
article 7 of the Constitution of the Organization, the Chairperson may also convene after consulting the Vice-
Chairpersons, a special meeting should it appear necessary to do so, and shall be bound to convene a special
meeting on receipt of a written request to that effect signed by sixteen members of the Government group, or
twelve members of the Employers’ group, or twelve members of the Workers’ group.”
3
Government group of the Governing Body.4 Likewise, South Africa, which also sent a
supporting letter, is not a member of the Government group of the Governing Body. The Office
should have only counted those member States that are members of the Governing Body. In
total, it seems only 23 members of the Workers’ and the Government groups of the
Governing Body out of those that made the request for a special meeting of the Governing
Body were actually entitled to do so,5 not 34 as indicated in the title of the Background report
or 36 as indicated in the version published on 18 September 2023.6
II. General Remarks
The Employers wish to the lack of objectivity and impartiality shown by the Office in preparing
the background report. Although the background report states that “its aim is not to provide
substantive answers to the long-standing controversy concerning the right to strike, to
assess the merits of the opposing views, or to express any views on the advisability of a
referral to the Court”,7 the Office partly provides a one-sided narrative that supports the
referral to the ICJ.
In particular, the background report does not reflect the views expressed by the Employers
regarding the Workers’ proposal in the recent letters they sent to the ILO Director General;
neither are these letters attached to the background report. There were in total seven letters
received by the ILO Director General at the time the background report was sent on 31 August
2023.8 These letters are highly relevant in providing ILO tripartite constituents with a complete
view of the various positions on this topic and align with the principles of transparency and
inclusivity.
Furthermore, the background report goes beyond providing information on the dispute, but
also seeks to pre-empt the outcome of the Governing Body discussions. This concerns in
4 EU member States that are GB 􀆟tular members are Germany, France, Romania, Italy and Czechia, and GB deputy
members are Croa􀆟a, Belgium, Croa􀆟a, Spain, Lithuania, Portugal, Sweden and Slovenia. EU member States that
are not GB members are Austria, Bulgaria, Cyprus, Denmark, Estonia, Finland, Greece, Hungary, Ireland, Latvia,
Luxemburg, Malta, Netherlands, Poland and Slovakia.
5 (Undated) Response from the Office to the “Note on procedural matters regarding the inclusion of an urgent
item in the agenda of the Governing Body” submited by the IOE on 20 August 2023, p.2.
6 ILO, Action to be taken on the request of the Workers’ group and 36 governments to urgently refer the dispute
on the interpretation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.
87) in relation to the right to strike to the International Court of Justice for decision in accordance with article
37(1) of the Constitution, GB.349bis/INS/1, 18 September 2023.
7 ILO, Action to be taken on the request of the Workers’ group and 34 governments to urgently refer the dispute
on the interpretation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.
87) in relation to the right to strike to the International Court of Justice for decision in accordance with article
37(1) of the Constitution, 31 August 2023, para 4.
8 ILO, Action to be taken on the request of the Workers’ group and 34 governments to urgently refer the dispute
on the interpretation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.
87) in relation to the right to strike to the International Court of Justice for decision in accordance with article
37(1) of the Constitution, 31 August 2023, Appendix I, which contains only the leters received by the Workers
and Governments.
4
particular the Draft Governing Body resolution in Appendix II9 and the chart advisory
procedure before the ICJ in Appendix IV.10 The draft resolution in Appendix II is misleading as
it presents the referral of the dispute on the right to strike to the ICJ under Art 37(1) of the
ILO Constitution as “the only viable option available” to end the dispute. In this way, the draft
resolution seeks to preclude the forthcoming discussions on this contentious point.
Appendices II and IV do not take into account the views that were previously expressed by the
various groups, nor do they recognise that no consensus was reached during the March 2023
Governing Body session. This is totally unacceptable.
III. Understanding the long-standing dispute
The background report depicts the interpretation dispute on the right to strike as a “dispute
between the ILO Employers’ and Workers’ group, which has lasted more than 30 years”.11
However, this is not accurate as it does not provide the full picture of the long-standing
dispute.
The dispute has its origin in ILO Committee of Experts on the Applications of Conventions
and Recommendations (CEACR)’s broad, detailed and extensive interpretation on the right
to strike in its observations on the application of C87 in its annual report. These
interpretations were subsequently supported by the Workers and challenged by the
Employers and some governments. The very fact that the CEACR has continued to further
develop these interpretations year after year against all the concerns expressed by
constituents has resulted in the ongoing dispute, which has now lasted for more than three
decades.
In that regard, the influential role of the Office on the CEACR interpretations should be noted.
The Office in that it prepares the drafts for the CEACR observations has ensured the continuity
and consistency of the interpretations over time irrespective of changes in the composition of
the CEACR.
It is clear that without the Office assisting the CEACR, the dispute between the Employers
and the Workers on the right to strike would not have arisen in the first place. The Employers
would recall once more that the CEACR, in line with its mandate and past practices, whenever
it identifies divergences in the interpretation of Conventions could bring these divergencies
9 See also ILO, Action to be taken on the request of the Workers’ group and 36 governments to urgently refer the
dispute on the interpretation of the Freedom of Association and Protection of the Right to Organise Convention,
1948 (No. 87) in relation to the right to strike to the International Court of Justice for decision in accordance with
article 37(1) of the Constitution, GB.349bis/INS/1, 18 September 2023, Annex I.
10 See also ILO, Action to be taken on the request of the Workers’ group and 36 governments to urgently refer the
dispute on the interpretation of the Freedom of Association and Protection of the Right to Organise Convention,
1948 (No. 87) in relation to the right to strike to the International Court of Justice for decision in accordance with
article 37(1) of the Constitution, GB.349bis/INS/1, 18 September 2023, Annex III.
11 ILO, Action to be taken on the request of the Workers’ group and 34 governments to urgently refer the dispute
on the interpretation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.
87) in relation to the right to strike to the International Court of Justice for decision in accordance with article
37(1) of the Constitution, 31 August 2023, para 7.
5
to the attention of the Governing Body and the International Labour Conference (ILC) so that
they can take the necessary action.12
IV. Employers’ Posi􀆟on on the Right to Strike in the Context of C87
It is important to clarify that the Employers recognise that the right to strike is guaranteed in
most jurisdictions and that countries have established diverse ways to determine its scope
and limits under national law. The Employers have also acknowledged that the right to take
industrial action by workers and employers in support of their legitimate industrial interests
is jointly recognised by the constituents of the ILO.13 Therefore, the Employers are not
challenging the right to strike at national level which is a reality. However, the Employers
firmly believe and have consistently done so in the past that the right to strike is not
provided for or regulated in C87 or any other ILO Convention. The recognition and regulation
of the right to strike in an ILO standard would require the implementation of a standardsetting
process with all its participatory approach, its procedural guarantees and its
established decision-making rules, which alone could adequately take into account the great
diversity of industrial relations systems in ILO member States.
The legislative history of C87 is indisputably clear that the right to strike was not overlooked
but that the tripartite constituents who were the drafters of the Convention intentionally did
not include the right to strike in any implicit or explicit way. As rightly pointed out in the
background report, at the time of the adoption of C87:
“Several Governments …have… emphasised, justifiably it would appear, that the
proposed Convention relates only to the freedom of association and not to the right
to strike, a question which will be considered in connection with Item VII (conciliation
and arbitration) on the agenda of the Conference. In these circumstances, it has
appeared to the Office to be preferable not to include a provision on this point in the
proposed Convention concerning freedom of association”.14
While Article 37(1) of the ILO Constitution provides that any question or dispute relating to
the interpretation of the Constitution or of any subsequent Convention shall be referred to
the ICJ, constituents have always favoured tripartite solutions except for one occasion: In
1932, the ILO referred a dispute over the interpretation of the term "women" in Art 3 of the
Night Work (Women) Convention, 1919 (No. 4) to the ICJ.
12 ILO, Action to be taken on the request of the Workers’ group and 34 governments to urgently refer the dispute
on the interpretation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.
87) in relation to the right to strike to the International Court of Justice for decision in accordance with article
37(1) of the Constitution, 31 August 2023, paras 79 and 86.
13 ILO, Tripartite Meeting on the Freedom of Association and Protection of the Right to Organise Convention, 1948
(No. 87), in relation to the right to strike and the modalities and practices of strike action at national level,
TMFAPROC/2015/2, 23 February 2015, Appendix I, p. 2.
14 ILO, Action to be taken on the request of the Workers’ group and 34 governments to urgently refer the dispute
on the interpretation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.
87) in relation to the right to strike to the International Court of Justice for decision in accordance with article
37(1) of the Constitution, 31 August 2023, para 43. See also ILO, Freedom of Association and Protection of the
Right to Organise: Report VII, ILC 31st Session, 29 June 1948, p. 87.
6
More importantly, the ICJ is not the only competent body available to provide legal
certainty.15 There is also the ILC, which is the executive body of the ILO, and which has full
authority and competence to clarify any interpretation through standard setting.
Furthermore, it is also important to highlight that ICJ advisory opinions are inherently not
legally binding, unless when otherwise explicitly indicated.16 While Article 37(2) of the ILO
Constitution indicates that “any applicable judgement of the ICJ shall be binding upon any
tribunal established in the virtue of this paragraph”, Article 37(1) is completely silent on the
legal effect of an ICJ decision.17 In other words, the binding nature of an ICJ advisory opinion
is limited to any established tribunal under Art 37(2), which to date does not exist. Considering
that – beyond this very marginal and theoretical exception – “the requesting organ, agency or
organization remains free to give effect to the opinion as it sees fit, or not to do so at all”,18
the ICJ can only provide limited legal certainty to the interpretation dispute. Therefore, any
legal impact of ICJ advisory opinions for the various ILO players involved in the dispute,
including the possibilities of creating a legally binding effect for ILO constituents, needs to be
carefully examined and discussed in the Governing Body or the ILC.
On the other hand, standard setting at the ILC can provide more legal certainty regarding
possible ILO rules on the right to strike, including legal obligations on these rules upon
member States that ratify the new instrument. Furthermore, only such a tripartite social
dialogue-based approach in addressing the right-to-strike issue would ensure inclusivity and
democracy, by allowing all ILO constituents to actively engage in the process; solutions would
be based on prior research (law and practice report) and consensus or at least a broad
majority; and outcomes adopted would be universally relevant and accepted. More
importantly, this approach is entirely consistent with the mandate of the ILO and upholds the
principles of tripartism and social dialogue.
It may be recalled that the Governing Body had a discussion in 1992 on the proposal by the
Government of Colombia to place a standard-setting item concerning the right to strike on
the agenda of the ILC in 1994.19 The Colombian proposal was justified in the following terms:
“The right to strike is one of the basic safeguards of the working class. This has been recognised
in the constitutions and legislation of countries having democratic systems of government,
including Colombia. However, within the International Labour Organisation itself, 72 years
after its establishment, no Convention of this kind has been adopted. … In reality, Convention
No. 87 only deals with the right of workers and employers to establish and join organisations;
15 ILO, Action to be taken on the request of the Workers’ group and 34 governments to urgently refer the dispute
on the interpretation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.
87) in relation to the right to strike to the International Court of Justice for decision in accordance with article
37(1) of the Constitution, 31 August 2023, para 14.
16 ICJ, Advisory Jurisdic􀆟on “Contrary to judgments, and except in rare cases where it is expressly provided that
they shall have binding force (for example, as in the Convention on the Privileges and Immunities of the United
Nations, the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations, and
the Headquarters Agreement between the United Nations and the United States of America), the Court’s advisory
opinions are not binding.”
17 Ar􀆟cle 37(1), ILO Cons􀆟tu􀆟on “Any question or dispute relating to the interpretation of this Constitution or of
any subsequent Convention concluded by the Members in pursuance of the provisions of this Constitution shall be
referred for decision to the International Court of Justice.”
18 ICJ, How the Court Works.
19 ILO, Minutes of the 253rd Session, GB. 253/PV(Rev.), 28 May 1992.
7
the right for such organisations to draw up their constitutions and rules and elect their
representatives in full freedom without being liable to be dissolved or suspended by
administrative authority; and their right to establish federations or confederations.”20
During the 1992 discussion, a number of countries supported this proposal recognising that
the right to strike was not regulated in ILO standards.
In particular, the Government member of Morocco stated:
“Since no instrument existed on the subject, there was a legal gap which had to be filled.
Though the right to strike was granted to workers in a large number of countries, only a few
countries had fixed the modalities of its implementation. It was essential to define the notion
of the right to strike, since there was no such thing as an absolute right to strike. It was
therefore important to define its limits, which concerned in particular the essential
services.”21
Likewise, the Government member of Venezuela, justified its position by affirming that “the
relevant ILO instruments, in particular Conventions No. 87 and No. 98, made no mention of the
right to strike. […] An international instrument on the right to strike was therefore
essential.”22
In this way, governments recognised that C87 does not contain the right to strike and
considered possible standard setting as the natural option to address this issue.
V. The Core Elements of the Dispute
A. Neither Convention 87 nor any ILO instruments to date provide for “the right to
strike”
It is important to emphasise that Employers, Workers and Governments, as well as ILO
standards supervisory bodies have all acknowledged on multiple occasions that neither C87
nor any ILO instruments provide for nor intended to include “the right to strike”.
First, at the time of the drafting and adoption of C87, the Office concluded that the right to
strike would not be included in such Convention.23 In line with this, the Workers’ and
Governments’ members of the drafting committee for the 1970 ILO Resolution concerning
trade union rights and their relation to civil liberties stated that, “while the right to strike was
provided for in certain instruments adopted by other international organisations, no ILO
instrument dealt with this right and the adoption of standards on this subject should be
considered by the ILO.”24
20 ILO, Agenda of the 81st (1994) Session of the Conference, GB.253/2/3(Rev.), Appendix I, p. 21-22.
21 ILO, Minutes of the 253rd Session, GB. 253/PV(Rev.), 28 May 1992, p. I/12- I/13.
22 ILO, Minutes of the 253rd Session, GB. 253/PV(Rev.), 28 May 1992, p. I/16.
23 ILO, Freedom of Association and Protection of the Right to Organise: Report VII, ILC 31st Session, 29 June 1948,
p. 87.
24 ILO, Record of Proceedings, ILC 54th Session, 22 June 1970, p. 580 & 583, paras 12 & 25.
8
Similarly, Governments have also acknowledged that C87 does not provide for the right to
strike. For example, during the discussion of the General Survey on C87 and 98 in 1973, the
Government of Switzerland indicated that the right to strike was not covered under C87, as
shown by the preparatory work leading to its adoption.25 The Government member of Japan
also pointed out that “there was no Convention or Recommendation or other decision of the
International Labour Conference defining the extent of the right to strike in the public sector.”26
Likewise, the Government member of Cyprus “considered that the position of a number of
governments on this matter was that they could not relinquish the sovereignty of the State.
His own conclusion was that the Convention on freedom of association was now inadequate
as far as public servants were concerned and that they should be re-examined with a view to
up-dating them”.27
During the discussion of the General Survey on C87 and 98 at the ILC in 1983, the Government
member of Tunisia challenged the Committee of Experts’ interpretations regarding a right to
strike in C87 stating that “his Government was not in agreement with the Committee of Experts
concerning the interpretation which the Committee had given to the concept of essential
services”.28
Likewise, in 1991 Governing Body session, the Government member of Sweden recognised
that“Not all aspects of Conventions were entirely clear, however, and one grey area surrounded the
right to strike, which was not mentioned in Conventions Nos. 87 and 98 and had not been covered in
the preparatory work of the International Labour Conference when it adopted them.”29
Furthermore, during the discussion in the Conference Committee on the Application of
Standards (CAS) in 1986, the Government member of the German Democratic Republic
stated “that no mention was made of the right to strike in any of the provisions of the
Convention” and referred to the view of the CEACR that “the prohibition of strikes was not in
conformity with Article 3 of the Convention” as a “personal interpretation” which as “a method
of work should be rejected”.30
The CEACR has also itself recognised that “the right to strike is not explicitly stated in the
ILO constitution or in the Declaration of Philadelphia, nor specifically recognized in
Conventions Nos. 87 and 98”.31 Likewise, the Fact-Finding and Conciliation Commission on
Freedom of Association recognised this by stating that “while in international law the right to
strike is explicitly recognized in certain texts adopted at the international and regional levels,
the ILO instruments do not make such a specific reference.”32
25 ILO, Record of Proceedings, ILC 58th Session, 22 June 1973, p. 544, para 27.
26 ILO, Record of Proceedings, ILC 58th Session, 22 June 1973, p. 544, para 26.
27 ILO, Record of Proceedings, ILC 58th Session, 22 June 1973, p. 544, para 27.
28 ILO, Record of Proceedings, ILC 69th Session, 17 June 1983, p. 31/13-31/14, para 62.
29 ILO, Minutes of the 251st Session, GB.251/PV(Rev.), 12 November 1991, p. III/8.
30 ILO, Record of Proceedings, ILC 72nd Session, 21 June 1986, p. 31/33.
31 ILO, Freedom of association and collective bargaining, ILC 81st Session, 1994, p. 62, para 142.
32 ILO, Action to be taken on the request of the Workers’ group and 34 governments to urgently refer the dispute
on the interpretation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.
87) in relation to the right to strike to the International Court of Justice for decision in accordance with article
37(1) of the Constitution, 31 August 2023, para 67.
9
Moreover, the Governing Body acknowledged that C87 does not include the right to strike.
In 1956, the Governing Body decided against revising the reporting form for C87 with a view
to adding specific questions on restrictions to the right to strike for public employees, precisely
because it considered that C87 did not cover the right to strike.33 To date, the reporting form
for C87 does not include any question relating to the right to strike. Likewise, the ILC also
made no mention of the right to strike during the 40th anniversary of the adoption of C87,
given that such right does not exist in the instrument.34
To sum up, it can be said that various ILO constituents and ILO bodies at different occasions
have acknowledged that C87 does not expressly or impliedly include the right to strike. The
background report should have provided a complete record of all the discussions that took
place on the right to strike in the ILO and in relation to C87, not only at the ILC.
B. Rules of Treaty Interpreta􀆟on under Vienna Conven􀆟on should be fully respected
The general rules of interpretations under Articles 31 and 32 of the Vienna Convention on Law
of Treaties (Vienna Convention) are explicitly clear and should be fully respected.35 There is
no disagreement about the applicability of the Vienna Convention to ILO Conventions, such
as C87. Other interpretation methods not recognized by the Vienna Convention should not
be accepted, as they would provide legal uncertainty and ambiguity.
1. Dynamic or evolutive interpretation
The Workers argue that “the possibility for ‘dynamic’ interpretation” is afforded by Article 31
of the Vienna Convention.36 Article 31(1) of the Vienna Convention reads as follows “A treaty
shall be interpreted in good faith in accordance with the ordinary meaning to be given to the
terms of the treaty in their context and in light of its object and purpose.” It appears that Art
31(1) clearly defines the criteria for valid interpretation and that there is no room for vague
concepts such as “dynamic” interpretation. In particular, to meet the criterion “the ordinary
meaning to be given to the terms of the treaty”, the words “right to strike” or similar terms
would have to use in C87, which is not the case.
2. Object and purpose
Second, the Workers’ group justified that dynamic interpretation is used “insofar as it requires
treaty provisions to be interpreted in light of the object and purpose of the treaty”. However,
at the time of the drafting of C87, it was indicated that “[s]everal Governments
…have…emphasised, justifiably it would appear, that the proposed Convention relates only to
the freedom of association and not to the right to strike”.37 Furthermore, the Chairman stated
clearly “the Convention was not intended to be a 'code of regulations' for the right to
33 ILO, Minutes of the 131st Session of the Governing Body, 1956, Appendix XXII, p. 188.
34 ILO, Resolutions adopted by the International Labour Conference, ILC 73rd Session, 1987.
35 UN, Vienna Convention on the Law of Treaties, 23 May 1969, Treaty Series, vol. 1155, p. 331.
36 ILO, Action to be taken on the request of the Workers’ group and 34 governments to urgently refer the dispute
on the interpretation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.
87) in relation to the right to strike to the International Court of Justice for decision in accordance with article
37(1) of the Constitution, 31 August 2023, para 10.
37 ILO, Freedom of Association and Protection of the Right to Organise: Report VII, ILC 31st Session, 29 June 1948,
p. 87.
10
organise, but rather a concise statement of certain fundamental principles".38 Therefore,
while it is clear that the “object and purpose” of C87 was to regulate freedom of association
and the right to organize, it was also explicitly stated that its “object and purpose” was not to
regulate the right to strike.
3. Subsequent agreement between the parties regarding the interpretation and
subsequent practice establishing agreement of the parties regarding the
interpretation
Third, the Workers’ group contends that:
“the terms of Convention No. 87 guaranteeing the right to organize must be understood
in the context of the relevant provisions of the Preamble to the ILO Constitution and of
the Declaration of Philadelphia and taking into account any subsequent practice that
establishes general agreement regarding their interpretation, such as the consistent case
law of the bodies responsible for overseeing the application of the Convention.”39
However, neither the Preamble nor the text of the ILO Constitution and of the Declaration of
Philadelphia expressly or impliedly include the right to strike, nor even the right to organise.
Therefore, the Workers’ argument that C87 includes the right to strike based on this “context”
is unfounded and invalid.
Concerning any subsequent agreement regarding this interpretation, the fact that several
ratifying States of C87 have at different points in time stated that neither C87 nor any other
ILO instrument provide for the right to strike illustrates that there is no such a general
agreement.40
As regards possible subsequent practice establishing agreement of the parties regarding the
interpretation, the ongoing non-compliance by most ratifying countries with one or more of
the CEACR’s interpretations on the right to strike, as reflected in the CEACR’s observations on
C87 in each annual report, is proof that such practice does not exist.
Furthermore, it is important to note that while CEACR observations are influential in national
courts, only 12 countries and one regional court have applied the CEACR interpretations on
the right to strike in their national court decisions.41 Given that 158 ILO member States have
38 Renate Hornung-Draus, 'The Right to Strike in the ILO System of Standards: Facts and Fiction' (2018) 39 Comp
Lab L & Pol'y J 531, p. 534.
39 ILO, Action to be taken on the request of the Workers’ group and 34 governments to urgently refer the dispute
on the interpretation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.
87) in relation to the right to strike to the International Court of Justice for decision in accordance with article
37(1) of the Constitution, 31 August 2023, para 10.
40 See for example Morocco, Venezuela, Germany, and Colombia, in 1992, as well as Sweden in 1991. ILO, Minutes
of the 253rd Session, GB. 253/PV(Rev.), 28 May 1992, p. I/12- I/13 and I/16; ILO, Agenda of the 81st (1994) Session
of the Conference, GB.253/2/3(Rev.), Appendix I, p. 21-22; ILO, Minutes of the 251st Session, GB.251/PV(Rev.), 12
November 1991, p. III/8.
41 Namely Botswana, Brazil, Burkina Faso, Canada, Colombia, European Court of Human Rights, Fiji, Kenya,
Nigeria, Peru, Russian Federa􀆟on, Senegal and South Africa. See ITC-ILO, Compendium of Court Decisions, under
“right to strike”.
11
ratified C87,42 application of the CEACR interpretations by 12 member States is far from
representing subsequent practice establishing agreement of the parties to C87 on the
interpretation regarding the right to strike.
Moreover, the Background report also notes that the Governing Body Committee on Freedom
of Association and its predecessor the Fact-Finding and Conciliation Commission on Freedom
of Association have affirmed that the right to strike is intrinsically linked to the principle of
freedom of association and is thus protected under C87.43 It is important to note that the
mandate of both of these bodies is to examine alleged infringement of the principles of
freedom of association and the effective recognition of the right to collective bargaining in the
ILO Constitution and Declaration of Philadelphia. The mandate does not include the
supervision of the application of C87.44 Both bodies provide recommendations and
conclusions that are decided on a case-by-case basis and do not form any legal precedents.
Occasional pronouncements by the Committee on Freedom of Association on the right to
strike for individual countries cannot replace a proper standard-setting process, whereby
the ILO tripartite constituents negotiate and decide on the content and scope of the
instruments.
Lastly, the Conference Committee on the Application of Standards (CAS) also for many years
did not make any references to the “right to strike” in its conclusions on cases concerning C87
due to the disagreement on the interpretation of C87.45
All this considered, it cannot be argued that an agreement on the interpretation of the right
to strike in C87 has been established through the subsequent practice of the parties.
4. Preparatory work of treaty
Finally, the Workers argued that “no recourse to the preparatory work is needed, as the
conditions of the Vienna Convention are not met; that is to say, the interpretation suggested
42 ILO, Ra􀆟fica􀆟ons of C087 - Freedom of Associa􀆟on and Protec􀆟on of the Right to Organise Conven􀆟on, 1948
(No. 87).
43 ILO, Action to be taken on the request of the Workers’ group and 34 governments to urgently refer the dispute
on the interpretation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.
87) in relation to the right to strike to the International Court of Justice for decision in accordance with article
37(1) of the Constitution, 31 August 2023, paras 61-67.
44 ILO, Compila􀆟on of decisions of the Commitee on Freedom of Associa􀆟on, para 1 “The Committee on
Freedom of Association (CFA) is a tripartite body set up in 1951 by the Governing Body (GB) of the International
Labour Organization (ILO). The CFA examines alleged infringements of the principles of freedom of association
and the effective recognition of the right to collective bargaining enshrined in the Constitution of the
International Labour Organization (Preamble), in the Declaration of Philadelphia and as expressed by 1970 ILC
Resolution.”
45 ILO, Committee on the Application of Standards, CAN/D.1, 5 May 2023, p. 7, para 32 “The conclusions regarding
individual cases are proposed by the Vice-Chairpersons and submitted by the Chairperson to the Committee for
adoption. The conclusions should take due account of the elements raised in the discussion and information
provided in writing by the government. The conclusions should be short, clear and specify the action expected of
governments. They may also include reference to the technical assistance to be provided by the Office. The
conclusions should reflect consensus recommendations. Divergent views can be reflected in the Committee’s
Record of Proceedings.”
12
in accordance with article 31 does not leave the meaning ambiguous or obscure nor does it
lead to a result that is manifestly absurd or unreasonable.”46
On this point, the Employers agree that the application of the interpretative means under
Article 31 does not leave the meaning of C87 relevant provisions ambiguous or obscure nor
does it lead to a result that is manifestly absurd or unreasonable. As argued above, C87
provisions are clear as to the non-inclusion of the right to strike.
However, it also needs clarifying that according to Article 32 of the Vienna Convention,
recourse to supplementary means of interpretation, such as preparatory works, can be
made “in order to confirm the meaning resulting from the application of article 31”.47 This
means that it will always be possible to resort to the preparatory works as a supplementary
means to confirm an interpretative outcome resulting from the application of means under
Article 31.
As the background report indicates, when responding to the questionnaire on the form and
content of possible international regulations concerning the right to freedom of association
and the right to organise, several governments indicated that the proposed instrument
should only relate to the freedom of association and not the right to strike.48 As a result, the
Office did not include a provision on the right to strike in the draft instrument and in the
discussion at the Conference the right to strike was not even mentioned. This fact confirms
the interpretation under Article 31 of the Vienna Convention that C87 does not include the
right to strike.
VI. The mandate of the CEACR
The mandate of the CEACR is clear. The CEACR is to “undertake an impartial and technical
analysis of how the Conventions are applied in law and practice by Member States, while
cognizant of different national realities and legal systems. In doing so, it must determine the
legal scope, content and meaning of the provisions of the Conventions. Its opinions and
recommendations are non-binding, being intended to guide the actions of national
authorities.”49 The ILC clarified in this regard that the CEACR “would have no judicial capacity
46 ILO, Action to be taken on the request of the Workers’ group and 34 governments to urgently refer the dispute
on the interpretation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.
87) in relation to the right to strike to the International Court of Justice for decision in accordance with article
37(1) of the Constitution, 31 August 2023, para 10.
47 Vienna Conven􀆟on on the Law of Trea􀆟es, Ar􀆟cle 32 “Recourse may be had to supplementary means of
interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to
confirm the meaning resulting from the application of article 31, or to determine the meaning when the
interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which
is manifestly absurd or unreasonable.”
48 ILO, Freedom of Association and Protection of the Right to Organise: Report VII, ILC 31st Session, 29 June 1948,
p. 67. See Netherlands and Sweden, who considered that the Conven􀆟on should not be concerned with ques􀆟ons
rela􀆟ng to the right to strike.
49 ILO, Tripartite Meeting on the Freedom of Association and Protection of the Right to Organise Convention,
1948 (No. 87), in relation to the right to strike and the modalities and practices of strike action at national level,
TMFAPROC/2015/2, 23 February 2015, Appendix I, p. 2.
13
nor would it be competent to give interpretations of the provisions of the Conventions nor
to decide in favour of one interpretation rather than of another.”50
It is important to note that the CEACR mentioned a right to strike for the first time in its third
General Survey on the subject in 1959 in only one paragraph and only with respect to public
services.51 However, the CEACR over time gradually expanded its views on the matters to
seven paragraphs in 1973, 25 in 1983 and with a separate chapter of no few than 44
paragraphs in 1994 and 2012, including a number of new subjects.52
Most worryingly, the CEACR in paragraph 145 of its 1994 General Survey stated that “in the
absence of an expression provision on the right to strike in the basic text, the ILO supervisory
bodies have had to determine the exact scope and meaning of the Convention on this
subject.”53 This statement testifies to a completely misguided and highly questionable
understanding of the CEACR of its tasks. It is by no means that the CEACR has the power or
even the duty to regulate by means of interpretation matters that were deliberately not
regulated in an ILO Convention. Such a competence has never been conferred on the CEACR,
neither by the Governing Body nor by the ILC.
The Government member of Denmark, who spoke on behalf of the Nordic Governments also
questioned the CEACR’s self-proclaimed authority by stating that:
“[P]erhaps the Committee of Experts went too far when it suggested that a government
which did not agree with its interpretation would have obtain a legally binding opinion
from the International Court of Justice, [since] this obligation was not within the spirit
of article 37 of the ILO Constitution.”54
Based on this mistaken assumption, the CEACR has provided observations on numerous cases
involving specific national provisions or practices restricting strike action. 55 In approximately
90% to 98% of these cases, the experts concluded that restrictions on strike action are not
compatible with C87. The CEACR gradually built a comprehensive body of broad, extensive
and detailed interpretations that provide a far-reaching, almost unrestricted freedom to
strike. The expansion of the CEACR’s interpretation on the right to strike, overtime, led to a
critical situation on which the Employers needed to become progressively vocal, at least, since
1987.
Therefore, the Employers consider that CEACR’s interpretations cannot and should not be
used as the basis for determining at the international level the scope and limits of the right
to strike nor should they be used as the basis for assessing or monitoring its implementation.
50 ILO, Record of Proceedings, ILC 8th Session, 1926, Appendix V, pp. 405–407.
51 ILO, Freedom of Association and Collective Bargaining, ILC 43rd Session, 1959, p. 114, para 68.
52 Renate Hornung-Draus, 'The Right to Strike in the ILO System of Standards: Facts and Fic􀆟on' (2018) 39 Comp
Lab L & Pol'y J 531, p. 533.
53 ILO, Freedom of association and collective bargaining, ILC 81st Session, 1994, p. 64, para 145.
54 ILO, Record of Proceedings, ILC 78th Session, 1991 p. 24/7, para. 33.
55 ILO, Action to be taken on the request of the Workers’ group and 34 governments to urgently refer the dispute
on the interpretation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.
87) in relation to the right to strike to the International Court of Justice for decision in accordance with article
37(1) of the Constitution, 31 August 2023, para 60.
14
VII. The ques􀆟ons to be put to the Court
The Employers take note that the Workers’ referral questions retain the same wording of
those proposed for the Governing Body discussion in November 2014.56 However, it should
have been pointed out here that the first question, whether a right to strike is part of C87,
can only be decided on the basis of the rules in Articles 31 and 32 of the Vienna Convention.
Regarding the second question on whether the CEACR was competent to specify certain
elements concerning the scope of the right to strike, its limits and the conditions for its
legitimate exercise in the context of C87, reference should also have been made to Articles 31
and 32 of the Vienna Convention. In fact, the CEACR has never been given an interpretative
mandate that would have dispensed it from complying with the rules in the Vienna
Convention. In other words, the competence of the CEACR to make specifications on the
scope, limits and the conditions of the right to strike in the context of C87 is limited by the
requirements of Articles 31 and 32 of the Vienna Convention, which the Committee needs to
respect in each individual case.
In any case, the two questions proposed by the Workers’ Group are insufficient as, among
many other points, the ICJ should also be asked to clarify the role of the ILC in relation to the
CEACR and the competence of the ILC to authoritatively settle interpretation disputes through
standard-setting.
VIII. Possible next steps
The Employers consider that it would be too simplistic to have just the Governing Body as the
responsible body for assessing referral requests and leave aside the State Parties to the C87.
We suggest that State parties to a Convention under which there is an interpretation dispute
(and their respective national social partners), as they could be directly affected by an ICJ
decision, should have a priority right to be involved in Art 37(1) referral decisions. This seems
necessary if only to promote their acceptance of an advisory opinion of the ICJ. Therefore, in
our view, no decision to refer an interpretation dispute to the ICJ should be made unless it
is based on the support of the State parties to the Convention concerned during the ILC.
IX. Conclusion
In conclusion, the IOE appreciates the opportunity to provide its comments to the background
report and its preliminary views on a possible referral for the dispute on the interpretation of
C87 in relation to the right to strike to the ICJ. The Employers have been clear: a referral to
the ICJ cannot settle the dispute on the right to strike in a conclusive manner and thus does
not provide for a viable way forward, as the right to strike is a multifaceted and complex
issue that cannot be separated from the widely diverging industrial relations systems and
56 ILO, Action to be taken on the request of the Workers’ group and 34 governments to urgently refer the dispute
on the interpretation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.
87) in relation to the right to strike to the International Court of Justice for decision in accordance with article
37(1) of the Constitution, 31 August 2023, para 100.
15
practices in ILO Member States. It is unclear how external and judicial bodies could possibly
develop a solution that would meet the diverse realities and needs of industrial relations
systems in member States and thus would be widely accepted by ILO constituents.
The Employers have expressed their firm belief that the solution to ending this dispute and
achieve legal certainty should remain in the hands of the ILO’s tripartite constituents. ILO
and its tripartite constituents need the necessary room for dialogue and cooperation to move
closer to consensus. While the ILO Constitution provides an avenue to referral to the ICJ to
resolve interpretation disputes, this does not appear to be a suitable one for the case of the
right to strike. On the contrary, standard setting on the right to strike would ensure that all
ILO constituents could actively engage in the process, that any solution achieved would be
based on consensus or at least a broad majority, and finally that any outcome adopted is
universally relevant and accepted.
It follows that, referral to external and judicial bodies, the ICJ or an ILO tribunal, should not
occur unless all possibilities of dialogue between the main ILO actors competent with
respect to ILO standards have been exhausted, which is not currently the case. In particular,
standard setting, which in the ILO is the most developed form of social dialogue for finding
common ground on labour and social issues, has never been used with regard to the right to
strike.
The Employers have expressed their commitment to social dialogue and tripartism, which are
the cornerstones of the ILO, and we look forward to the substantive discussions during the
Governing Body special meeting that will take place on 10 and 11 November 2023.

Document No. 24
ITUC, Comments on the Office background report
regarding the request of the Workers’ group to urgently
refer the dispute on the interpretation of Freedom of
Association and Protection of the Right to Organise
Convention, 1948 (No 87), in relation to the right to strike
to the International Court of Justice for decision in
accordance with article 37(1) of the Constitution, dated 6
October 2023

1 Jeffrey Vogt, et. al., THE RIGHT TO STRIKE IN INTERNATIONAL LAW (Hart Publishers, 2020).
2 Since 2012, for example, the Conference Committee on the Application of Standards (CAS) has been unable to reach
conclusions on the exercise of the right to strike and therefore not been able to provide guidance to Member States in
this regard.
3 We do not here attempt to address the merits of the dispute of interpretation, but only to note that one exists, and that
the ILO constitution obliges us to resort to the ICJ for an advisory opinion.
4 Noting, in line with para 104 of the Office Background report that “The Court has even taken the view that “in situations
in which political considerations are prominent it may be particularly necessary for an international organization to obtain
an advisory opinion from the Court as to the legal principles applicable with respect to the matter under debate”.
5 See para 14 of GB.343/INS/INF/5(Rev.1)
6 See para 44 of the Office Background report and further comments with reference to this issue below.
7 Id.
8 See the ILO 1998 Declaration “… Whereas the ILO is the constitutionally mandated international organization and the
competent body to set and deal with international labour standards, and enjoys universal support and acknowledgement
in promoting fundamental rights at work as the expression of its constitutional principles; 9 Whereas it is urgent, in a
situation of growing economic interdependence, to reaffirm the immutable nature of the fundamental principles and
rights embodied in the Constitution of the Organization and to promote their universal application…’

9 ILO, Work plan on the strengthening of the supervisory system: Proposals on further steps to ensure legal certainty and
information on other action points in the work plan, 16 Feb 2022 (GB344/INS/5), para 41.
10 ILO, Compilation of decisions of the Committee on Freedom of Association (Geneva, 6th edition, 2018), para 754.
11 Maina Kiai (Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association), Report of the
Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, para. 56, U.N. Doc. A/71/385
(Sept. 14, 2016).
12 See para 21 of GB.343/INS/INF/5(Rev.1)
13 The Office Background report mentions in para 15 the “firm and uncompromising positions”.
14 ILO, Draft minutes of the Institutional Section, 347th Session, Geneva, March 2023, paras 228-29.
15 ILO, Article 37, Paragraph 2, of the Constitution and the Interpretation of International Labour Conventions, Governing
Body, 256th Session, May 1993, GB256/2/2, paras 22-4.
16 A 2009 GB paper in para 31-33 restates the 1993 paper.
17 In addition to the legal and policy reasons to reject a protocol, the Employer proposal for standard setting on this issue
in 2024 is both legally, technically and politically impossible. The procedures for placing an item on a standard setting
track have not been followed, and it is inconceivable how the Office could possible prepare for such an exercise without
recourse to the rules and normal consideration of the ILO in this regard.
18 See https://www.ilo.org/gb/GBSessions/GB349bis/lang--en/index.htm
19 ILO Governing Body, Minutes, 50th Session, Oct. 1930, pp. 656-57.

20 See para 41 and 42 of the Qatar v UAE case (2018) and reference to …”(Application of the International Convention for
the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of
Racial Discrimination (Ukraine v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2019 (II), p. 575,
para. 24; Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment, I.C.J.
Reports 2018 (I), pp. 308-309, para. 48 https://www.icj-cij.org/public/files/case-related/172/172-20210204-JUD-01-00-
EN.pdf. The ICJ’s practice and rulings must also be read in light of the specific agreement between the United Nations
(UN) and the ILOregarding the ICJ’s jurisdiction.
21 See also the 23 February 2015 Joint Statement of the Workers’ and Employers’ Groups
https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_351479.pdf
22 See paras 117 – 127 of the 2012 General Survey of the ILO CEACR https://www.ilo.org/wcmsp5/groups/public/---
ed_norm/---relconf/documents/meetingdocument/wcms_174846.pdf
23 See para 117 of the 2012 General Survey
‟
24 See para 127 of the 2012 General Survey
25 See para 128 of the 2012 General Survey regarding comments on decisions of the Court of Justice of the European
Union (Viking, Laval, Ruffert and Luxembourg) on freedom of association rights and the effective recognition of collective
bargaining.
26 See para 119 of the 2012 General Survey
27 https://africanlii.org/akn/aa-au/statement/resolution/achpr/2004/73/eng@2004-12-07/source.pdf
28 https://corteidh.or.cr/docs/comunicados/cp_47_2021_eng.pdf
29 See para 78 of the Qatar v UAE case and references to (Maritime Delimitation in the Indian Ocean (Somalia v. Kenya),
Preliminary Objections, Judgment, I.C.J. Reports 2017, p. 29, para. 64) https://www.icj-cij.org/public/files/caserelated/
172/172-20210204-JUD-01-00-EN.pdf
30 See para 77 of the Qatar v UAE case including the following references (Ahmadou Sadio Diallo (Republic of Guinea v.
Democratic Republic of the Congo), Compensation, Judgment, I.C.J. Reports 2012 (I), p. 331, para. 13; pp. 334-335, para.
24; p. 337, para. 33, and pp. 339-340, para. 40; Questions relating to the Obligation to Prosecute or Extradite (Belgium v.
Senegal), Judgment, I.C.J. Reports 2012 (II), pp. 457-458, para. 101; Ahmadou Sadio Diallo (Republic of Guinea v.
Democratic Republic of the Congo), Merits, Judgment, I.C.J. Reports 2010 (II), pp. 663-664, para. 66; Legal Consequences
of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 179, para.
109, and pp. 192-193, para. 136)

Document No. 25
IOE, Comments to the background report prepared by the
Office titled “Action to be taken on the request of the
Employers’ group to urgently include a standard-setting
item on the right to strike on the agenda of the 112th
Session of the International Labour Conference”, dated
24 October 2023

24 October 2023
Comments to the Background report prepared by the Office titled “Action to be taken on
the request of the Employers’ group to urgently include a standard-setting item on the
right to strike on the agenda of the 112th Session of the International Labour Conference”
Executive Summary
The Employers are convinced that to resolve the long-standing dispute on the interpretation
of the right to strike in the context of Freedom of Association and the Right to Organise
Convention (C87), a solid and sustainable social dialogue-based solution determined by the
ILO tripartite constituents should be strived for, rather than resorting to external means for
the quickest possible solution.
The Employers are not challenging the right to strike at national level which is a reality in most
countries. However, the Employers firmly believe and have consistently argued in the past
that the right to strike is not provided for or regulated in C87 or any other ILO Convention.
Other ILO constituents as well as ILO standards supervisory bodies, including the Committee
of Experts (CEACR), have acknowledged that the right to strike is not explicitly stated or
recognised in C87 or any other ILO instruments. This means that there may be a regulatory
gap in the ILO body of standards on the right to strike and the only way to address this gap
would be through standard setting in the International Labour Conference (ILC). So far, the ILC
has not attempted to set standards for the right to strike or industrial action.
The Employers consider standard setting is the most obvious, appropriate and logical step
towards defining authoritative ILO rules on the right to strike, and thus resolving the dispute
over interpretation. Standard-setting is linked to the ILO's core mandate and reflects the ILO's
core values of tripartism and social dialogue. Only standard-setting will ensure that all ILO
constituents can actively engage in the process, that any solution achieved is based on
consensus or at least a broad majority, and that any outcome adopted is universally relevant
and accepted.
More concretely, the Employers propose that the International Labour Conference adopt a
legally binding instrument on the right to strike or more broadly on industrial action, in
particular a Protocol to C87. The objective of this Protocol would be to authoritatively
determine a right to strike in an international labour standard, and its scope and limits and in
this way put an end to the ongoing dispute about the interpretations on the right to strike.
Any inconvenience or difficulties for standard setting at an early date should not be a reason
for not pursuing the standard-setting option and leave the definition of rules on the right to
strike to external institutions such as Committee of Experts and the International Court of
Justice (ICJ). While the Employers have proposed standard-setting on the right to strike at the
earliest possible date, i.e. at the ILC in 2024, they would not oppose a later ILC on the condition
that there is no referral to the ICJ. It is important that no decision on a referral to an external
solution should be taken without proper consideration and discussion on this present
proposal.
2
Table of Contents
I. Introduction ........................................................................................................................ 2
II. General Remarks ................................................................................................................ 2
III. Proposed standard-setting on the right to strike .............................................................. 3
IV. Standard-setting in the form of a Protocol ....................................................................... 8
V. Placing a standard-setting item on the agenda of the ILC .............................................. 10
VI. Concluding observations .................................................................................................. 12
I. Introduction
On 13 September 2023, the Chairperson of the Governing Body decided that on 10 November
the 349th bis special session of the Governing Body would be held to discuss the Workers’
proposal for a referral to the International Court of Justice (ICJ). This decision was made
despite concerns regarding the agenda of this special session expressed by several groups.
Consequently, the Vice-Chair of the Employers’ Group announced to the Chairperson of the
Governing Body a letter signed by 14 regular members of the Employers’ Group for another
special session of the Governing Body under Article 3.2.2 of the ILO Governing Body Standing
Orders. The purpose of this special session would be to discuss the urgent inclusion of a
standard setting item on the right to strike or more broadly on industrial action on the agenda
of the 112th session of the International Labour Conference (ILC) in 2024.1
On 11 October 2023, the ILO Director General sent to all ILO Member States, along with an
invitation to provide comments, a background report prepared by the Office entitled “Action
to be taken on the request of the Employers’ group to urgently include a standard-setting item
on the right to strike on the agenda of the 112th Session of the International Labour
Conference”.
As the secretariat of the Employers’ group in the ILO, the International Organisation of
Employers (IOE) hereby provides preliminary comments on the background report. We
reserve the possibility of updating and supplementing our position in light of any subsequent
consultations with and feedback received from the Employers’ group and the discussions that
will take place during the 349th bis special session on the Workers’ proposal on 10 November
and the 349th ter special session on Employers’ proposal on 11 November 2023.
II. General Remarks
At the outset, the IOE would like to point out that the title of the background report is
inaccurate. The Government of Türkiye sent a letter to the Director General on the 22
September 2023 indicating their support to the Employers’ request. Therefore, like the
1 Employers Letter to Chair of the Governing Body, Request by 14 regular members of the Employers; Group for a
special meeting of the Governing Body under Article 3.2.2 of the ILO Governing Body Standing Order for the urgent
inclusion of a standard setting item on the right to strike on the agenda of the 112th session of the International
Labour Conference agenda, 12 September 2023.
3
Background Paper for the Worker’s proposal2 which indicates the supporting governments,
the Background Paper for the Employers’ proposal should have been titled as follows “Action
to be taken on the request of the Employers’ group and the government of Türkiye to urgently
include a standard-setting item on the right to strike on the agenda of the 112th Session of the
International Labour Conference”.
Furthermore, the IOE notes the unequal treatment of the two background reports and the
two special sessions. In particular, unlike the background report on the Workers’ Proposal3
which explicitly invites ILO member States to transmit comments before the set deadline of 6
October 2023, the background report on the Employers’ Proposal does not invite comments
from ILO tripartite constituents. Only the letter from the Director-General, sent out separately
on the same day, indicates that any comments should be addressed to the NORMES
department.4 However, the letter did not include a specific deadline, and indicated that the
comments would only be made available in their original language without a summary. The
Employers consider that, despite the short time available before the special session of the
Governing Body, a deadline should have been set for comments on the Employers' proposal,
and that the Office should in any case prepare a summary of the comments received. The
Employers would stress that the Governing Body must be equally informed of the ILO
constituents' views on both proposals in order to be able to take a meaningful decision, in
particular because both proposals represent related, but mutually exclusive approaches to the
issue of the right to strike.
III. Proposed standard-setting on the right to strike
1. Standard-setting is part of ILO’s core mandate and has been the preferred way to create
clear and binding rules on labour and social topics
The ILO Centenary Declaration declares that “[t]he setting, promotion, ratification and
supervision of international labour standards is of fundamental importance to the ILO. This
requires the Organization to have and promote a clear, robust, up-to-date body of
international labour standards and to further enhance transparency.”5
Almost every year, the ILC deals with standard setting, either the revision or the adoption of
new international standards related to the world of work. Over the past centenary, ILO has
adopted in total 405 instruments comprising of 191 Conventions, 6 Protocols and 208
Recommendations. Standard setting is considered a well-established procedure for creating
authoritative rules on important topics in the world of work.
2 ILO, Action to be taken on the request of the Workers’ group and 34 governments to urgently refer the dispute
on the interpretation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.
87) in relation to the right to strike to the International Court of Justice for decision in accordance with article
37(1) of the Constitution, 31 August 2023.
3 ILO, Action to be taken on the request of the Workers’ group and 34 governments to urgently refer the dispute
on the interpretation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.
87) in relation to the right to strike to the International Court of Justice for decision in accordance with article
37(1) of the Constitution, 31 August 2023, para 24.
4 ILO, Director General Letter to all member States of the ILO dated 11 October 2023.
5 ILO, ILO Centenary Declaration for the Future of Work, p. 8.
4
All tripartite constituents and the ILO standards supervisory bodies have acknowledged that
there is currently no ILO instrument providing for the right to strike.6 This means that there
may be a regulatory gap to be filled in the ILO body of standards on the right to strike, and the
only way to address this gap is through standard setting in the ILC.
In line with this understanding, the Government of Colombia proposed standard setting on
the right to strike for the first time in 1992. The Government of Morocco agreed stating that
“[s]ince no instrument existed on the subject, there was a legal gap which had to be filled. […]
It was essential to define the notion of the right to strike, since there was no such thing as an
absolute right to strike. It was therefore important to define its limits, which concerned in
particular the essential services.”7 Similarly, the Government of Venezuela stated that “An
international instrument on the right to strike was therefore essential.”8
Moreover, the experience with the Night Work (Women) Convention, 1919 (No. 4) indicates
that standard setting is the first and logical step to address interpretation disputes. In this
case, there was a divergence of views regarding the meaning of the term “women” in Article
3 of the Convention, regarding whether the protection provided in the Convention applied to
women manual workers only or to all women, including salaried employees. To solve the
dispute, a standard setting item was placed on the agenda of the 15th session of the ILC in
1931 to discuss a revising Convention. Ultimately, the revising Convention failed to be adopted
as it did not reach the two third majority in the final vote.9 Only after the ILC had tried to find
a solution in this way, the matter was then referred for an advisory opinion to the Permanent
Court of International Justice (PCIJ), the predecessor of the ICJ.10
6 ILO, Agenda of the 81st (1994) Session of the Conference, GB.253/2/3(Rev.), Appendix I, p. 21-22; ILO, Minutes
of the 253rd Session, GB. 253/PV(Rev.), 28 May 1992, p. I/12- I/13; ILO, Minutes of the 253rd Session, GB.
253/PV(Rev.), 28 May 1992, p. I/16; ILO, Record of Proceedings, ILC 54th Session, 22 June 1970, p. 580 & 583,
paras 12 & 25; ILO, Record of Proceedings, ILC 58th Session, 22 June 1973, p. 544, para 26-27; ILO, Minutes of the
251st Session, GB.251/PV(Rev.), 12 November 1991, p. III/8; ILO, Record of Proceedings, ILC 72nd Session, 21 June
1986, p. 31/33; ILO, Freedom of Association and Protection of the Right to Organise: Report VII, ILC 31st Session,
29 June 1948, p. 87; ILO, Freedom of association and collective bargaining, ILC 81st Session, 1994, p. 62, para 142;
ILO, Minutes of the 131st Session of the Governing Body, 1956, Appendix XXII, p. 188. Regarding the Fact-Finding
and Conciliation Commission see ILO, Action to be taken on the request of the Workers’ group and 34 governments
to urgently refer the dispute on the interpretation of the Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87) in relation to the right to strike to the International Court of Justice for decision
in accordance with article 37(1) of the Constitution, 31 August 2023, para 67. See also ILO, Action to be taken on
the request of the Workers’ group and of 36 governments to urgently refer the dispute on the interpretation of
Convention No 87 in relation to the right to strike to the International Court of Justice for decision in accordance
with article 37(1) of the Constitution – Summary of the comments received from constituents, GB.349bis/INS/2,
10 November 2023, p. 4, para 14.
7 ILO, Minutes of the 253rd Session, GB. 253/PV(Rev.), 28 May 1992, p. I/12- I/13.
8 ILO, Minutes of the 253rd Session, GB. 253/PV(Rev.), 28 May 1992, p. I/16.
9 League of Nations, International Labour Conference, 15th Session, 1931, p. 478.
10 ICJ, Advisory Opinion Interpretation of the Convention of 1919 concerning Employment of Women during the
night, 15 November 1932, p.366. The question asked to the PCIJ was whether the Convention concerning
employment of women during the night, adopted in 1919 by the International Labour Conference, apply, in the
industrial undertakings covered by the said Convention, to women who hold positions of supervision or
management and are not ordinarily engaged in manual work.
5
2. Only standard setting can provide legal certainty and set out legally binding rules on
the right to strike for ratifying countries.
The Employers firmly oppose the Office’s view that
“the only two mechanisms that can offer such certainty are explicitly set out in article
37. A consensus-based modality involving standard-setting cannot and does not
generate the legal certainty provided by article 37 of the ILO Constitution as the
consensus-based outcome of a Convention or Protocol would be binding only for those
Member States which have eventually ratified these. Legal uncertainty would therefore
continue to prevail in respect of Member States having ratified the Convention subject
to a legal dispute for as long as they are not in a position to ratify the newly adopted
Convention or Protocol.”11
Referral to the ICJ is not a solution as Article 37(1) is silent on the binding nature of ICJ
advisory opinions. Article 37(1) reads as follows: “Any question or dispute relating to the
interpretation of this Constitution or of any subsequent Convention concluded by the Members
in pursuance of the provisions of this Constitution shall be referred for decision to the
International Court of Justice.” Nowhere in the provision is provided that specifically ICJ
advisory opinions are legally binding.
Moreover, Article 37(2) provides that “Any applicable judgement or advisory opinion of the
International Court of Justice shall be binding upon any tribunal established in virtue of this
paragraph.” From the absence of a corresponding formulation in Article 37(1) can be
concluded that the binding nature of an ICJ advisory opinion is limited to any established
tribunal under Article 37(2), and there is no binding effect for ICJ advisory opinions in the case
of Article 37(1). This is also the view of the former ICJ President, Roberto Ago, who states that
"As regards the ILO, however, the tribunal in question has never seen the light of day, and any
request by the ILO Governing Body to the International Court of Justice could accordingly lead
only to an advisory opinion, which, as such, would not have decisive effect .12
Furthermore, the Office itself has questioned the binding effect of ICJ advisory opinions for
the ILO and its constituents back in 2007. In particular, the Office pointed out that
“However, apart from a question relating to the interpretation of the Convention, there
are other questions that the Governing Body may wish to consider in the event that an
advisory opinion is sought from the International Court of Justice. The first would concern
the interpretation of the ILO Constitution. To the extent that the Governing Body decides
to refer any question of interpretation to the International Court of Justice, it would be
logical to submit the complementary question as to whether such interpretation
sought in the form of an advisory opinion could or should be recognized as binding for
all Members under article 37(1) of the Constitution. This question, which has for some
time posed a theoretical issue, would immediately become of great practical significance
11 ILO, Action to be taken on the request of the Employers’ group to urgently include a standard-setting item on
the right to strike on the agenda of the 112th Session of the International Labour Conference, GB.349ter/INS/1,
11 November 2023, Appendix, para 57.
12 Roberto Ago, “Binding” Advisory Opinions of the International Court of Justice, p.449, footnote 44.
6
should the Governing Body decide to submit a request for an advisory opinion to the
Court.”13
On another occasion, the Office also noted that “[t]hought could also be given to whether the
Court could interpret article 37(1) as providing a basis for an advisory opinion on a question
of interpretation to be considered as binding on the ILO and on the States parties to the
Convention involved”.14
These remarks demonstrate the uncertainty regarding a binding effect of ICJ advisory opinions
for the ILO and its constituents, and thus put into question the ability of an ICJ advisory opinion
to bring about an effective resolution to the dispute over the right to strike in C.87.
On the other hand, through the adoption of a Convention or Protocol, the ILC can
authoritatively provide legal certainty on a particular issue. The Protocol to the Forced Labour
Convention (P29) is an excellent example on this point. Article 7 of P29 determined that “The
transitional provisions of Article 1, paragraphs 2 and 3, and Articles 3 to 24 of the Convention
shall be deleted.”.15 Accordingly, when P29 entered into force, these transitional provisions
were deleted from the text of C29. In other words, P29 clarified with legal certainty that the
transitional provisions no longer apply to any country, neither to countries that have ratified
P29, nor to countries that have only ratified C29.
It is therefore suggested that the proposed Protocol to the Convention 87 (P87) could contain
language either in the Preamble or in a subsequent Article explicitly stating that the purpose
of the Protocol is to settle definitively the dispute over the interpretation of C87 on the right
to strike and that the right to strike is regulated by P87 and not by C87 or any other ILO
Convention. In this way, a P87 could provide with authority and legal certainty that with the
entry into force of P87, namely i) only the rules on the right to strike in P29 apply to countries
that have ratified P29 and ii) the interpretations on the right to strike in C29 cease to exist at
the same time.
It can be assumed that the CEACR would need to follow the new provisions on the right to
strike in C87. The CEACR itself argued that it developed its rules on the right to strike to fill a
regulatory gap.16 With the adoption of P87, this gap would be filled and even in the CEACR’s
logic the justification for its own interpretations would no longer apply.17
Finally, it is also not unreasonable to assume that a well-designed P87 on the right to strike
would be ratified quickly by many member States, given its high visibility due to its linkage to
the fundamental Convention C87.
13 ILO, Developments concerning the question of the observance by the Government of Myanmar of the Forced
Labour Convention, 1930 (No. 29), GB 298, March 2007, INS/5/2, para. 5.
14 ILO, Developments concerning the question of the observance by the Government of Myanmar of the Forced
Labour Convention, 1930 (No. 29), GB 297, November 2006, INS 8/2, para 9.
15 ILO, Protocol of 2014 to the Forced Labour Convention, 1930.
16 International Labour Conference, 81st Session, 1994, Report III (Part 4B), Freedom of association and collective
bargaining, para. 145 “In the absence of an express provision on the right to strike in the basic texts, the ILO
supervisory bodies have had to determine the exact scope and meaning of the Conventions on this subject.”
17 Similarly, when P29 entered into force, the Committee of Experts in essence ended its interpretation on
human trafficking in the context of C29 as the topic was from then on covered by P29.
7
3. Standard setting aligns with the ILO fundamental values of social dialogue and
tripartism
The ILO Centenary Declaration declares that it is incumbent on the ILO to strengthen the
capacity of its tripartite constituents to “address all fundamental principles and rights at work,
at all levels, as appropriate, through strong, influential and inclusive mechanisms of social
dialogue.” Given that C87 expresses and develops in the form of specific rights and obligations
one of the fundamental principles and rights at work in the 1998 Declaration, namely freedom
of association, it is imperative that the solution to resolve the interpretation dispute must be
based on social dialogue.18 Standard-setting is the most advanced and developed form of
social dialogue at the ILO.
Many governments also agree that social dialogue is the preferred option to resolving the
right to strike. For example, during the 2014 GB discussion, the Government representative
of Lesotho also noted that social dialogue as “a central pillar of the ILO” should be given a
chance and emphasized that “[r]eferring the matter to the ICJ would signal the erosion of the
spirit of tripartism. Existing mechanisms should be used, and internal solutions exhausted
before turning to external remedies”.19 Similarly, the Government representative of Botswana
supported “an approach that would emphasize social dialogue as the ideal means of resolving
disputes”.20 Similarly, the Government representative of China speaking on behalf of ASPAG
also indicated that dispute resolution was best achieved through tripartite discussion in the
Governing Body or the ILC.21 Furthermore, the Government of India supported for the
continuation of a tripartite process considering that decisions regarding the Organization
should be taken by ILO Constituents. The Government representative of Indonesia also noted
that “[p]roblems within the ILO should be resolved using available mechanisms and the
Organization should avoid creating a precedent by referring the question of the right to strike
in relation to C87 to the ICJ”.22 The Government representative of Iran and the Government
representative of Jordan also stressed that tripartism should be given a real opportunity based
on mutual trust and willingness among constituents.23
Special reference should be also made to the Statement of the Government Group in 2015,
whereby governments indicated their readiness to discuss the right to strike within the ILO
framework.24 It reads as follows:
18 ILO, Social dialogue “All types of negotiation, consultation or simply exchange of information between, or
among, representatives of governments, employers and workers, on issues of common interest relating to
economic and social policy”.
19 ILO, Draft minutes of the 322nd Session of the Governing Body of the International Labour Office, GB.322/PV,
30 October-13 November 2014, p. 29, para 114.
20 ILO, Draft minutes of the 322nd Session of the Governing Body of the International Labour Office, GB.322/PV,
30 October-13 November 2014, p. 28, para 112.
21 ILO, Draft minutes of the 322nd Session of the Governing Body of the International Labour Office, GB.322/PV,
30 October-13 November 2014, p. 21, para 70.
22 ILO, Draft minutes of the 322nd Session of the Governing Body of the International Labour Office, GB.322/PV,
30 October-13 November 2014, p. 28, para 108.
23 ILO, Draft minutes of the 322nd Session of the Governing Body of the International Labour Office, GB.322/PV,
30 October-13 November 2014, p. 26, para 101, and p. 29, para 116.
24 Other frameworks in the ILO include tripartite meetings, expert meetings, technical meetings, informal
consultations etc.
8
“We are ready, right from this Tripartite Meeting, to consider discussing, in the
forms and framework that will be considered suitable, the exercise of the right to
strike. We believe that the complex body of recommendations and observations
developed in the past 65 years of application of Convention 87 by the various
components of the ILO supervisory system constitutes a valuable resource for such
discussions, which will also be informed by the multi-faceted regulations that States
and some regions have adopted to frame the right to strike.”25
It is important to highlight that while a background report on the right to strike and the
modalities and practices of strike action at national level was prepared by the Office in 2014,
a substantive discussion to determine the common ground on the scope and limits of the
strike never took place. Therefore, contrary to the arguments of some groups, social dialogue
has not yet been exhausted.
Most recently during the March 2023 GB session, the Government of China speaking on behalf
of majority of countries in ASPAG stated that any dispute in the world of work should be
resolved through tripartite social dialogue where possible, including matters relating to the
interpretation of ILO Conventions. Article 37 was a last resort and should only be used with
caution.26 The Government representative of China also reiterated that social dialogue was
the only channel for resolving disputes and ensuring the functioning of the supervisory
mechanism, by strengthening cooperation and avoiding confrontation. 27
Moreover, the Government of Brazil noted that while the ILO Constitution provided for
alternatives to that process, social dialogue had long been the preferred method of dispute
resolution at the ILO and no attempts should be made to block that process.28
Similarly, in their comments to the background report on the Workers’ proposal, some
governments have indicated their preference for continuing social dialogue, namely the
Governments of Indonesia, Kenya and Turkey.29
IV. Standard-setting in the form of a Protocol
The Employers propose a Protocol as a supplementary treaty to C87 to definitively end the
interpretation dispute on the right to strike in the context of C87. The purpose of this Protocol
is not to amend C87, which does not have language on the right to strike, but rather to define
in a separate instrument the scope and the limits of right to strike from a global perspective.
Like other protocols, only ratifying member States of C87 would be able to ratify P87 and only
those ratifying P87 would be bound by its provisions.
25 ILO, Tripartite Meeting on the Freedom of Association and Protection of the Right to Organise Convention, 1948
(No. 87), in relation to the right to strike and the modalities and practices of strike action at national level,
TMFAPROC/2015/2, 23 February 2015, Appendix II, para 5.
26 ILO, Minutes of the 347th Session of the Governing Body of the International Labour Office, GB.347/PV, 13–23
March 2023, p. 61, para 251.
27 ILO, Minutes of the 347th Session of the Governing Body of the International Labour Office, GB.347/PV, 13–23
March 2023, p. 62, para 258.
28 ILO, Minutes of the 344th Session of the Governing Body of the International Labour Office, GB.344/PV, March
2022, p. 46, para 155.
29 ILO, Summary of the comments received from constituents, GB. 349th bis/INS/1/2, 13 October 2023, para 4.
9
Although none of the existing ILO Protocols adopted so far was aimed at settling a dispute
with respect to the interpretation of provisions of the related Convention,30 this does not
mean that the Governing Body cannot adopt a new Protocol to C87 that would do just that.
In fact, the Employers consider that the experience with the Protocol to the Forced Labour
Convention (P29) are similar to the present situation concerning the right to strike and the
lessons learnt should be considered by the Governing Body for the following reasons.
First, the Forced Labour Convention (C29) was adopted in 1930 and it does not contain
expressly or impliedly any reference to human trafficking in the preamble or the body of the
text.31 Despite the absence of any references to human trafficking in C29, the CEACR over time
made comments on human trafficking when examining the Convention.32 Similar to this case,
over time the CEACR developed detailed interpretations on the right to strike when examining
C87 even though the right to strike is not mentioned in the text and expressly excluded by the
drafters of the instrument.
Second, P29 was proposed to fill a gap identified in the body of ILO standards by adding
regulatory content to the standards of C29. During the Tripartite Meeting of Experts on Forced
Labour and Trafficking for Labour Exploitation in February 2013 (‘2013 Tripartite Meeting of
Experts’), the experts agreed that there was a gap in the ILO body of standards to address
human trafficking and agreed the adoption of supplementary measures to address effectively
eradication of forced labour in all its forms.33 Similarly, there is agreement by all ILO
stakeholders that C87 nor any ILO instruments provide for the right to strike.34 In other words,
there may be a gap in the ILO body on standards on the right to strike. This gap should not be
filled by CEACR interpretations, but rather through standards that are negotiated and adopted
by the ILC.
Third, P29 showed that standard setting is the normal internal approach to address gaps in
the ILO body of standards. During the 2013 Tripartite Meeting of Experts, the Experts agreed
that gaps should be addressed through standard setting action by the ILO.35 In particular, the
Workers’ spokesperson stressed that “This standard-setting approach was essential and could
contribute to the adoption of systematic, coherent and coordinated methods at the
international level.” Furthermore, the Workers’ spokesperson stated that “It would be
damaging to the ILO, as a tripartite organization, not to act in a field which came within its
mandate, thereby running the risk of having obligations imposed on States by other
30 ILO, Action to be taken on the request of the Employers’ group to urgently include a standard-setting item on
the right to strike on the agenda of the 112th Session of the International Labour Conference, GB.349ter/INS/1,
11 November 2023, Appendix, para 62.
31 ILO, Final report, TMELE/2013/7, 11-15 February 2013, p. 11-12, para 47.
32 ILO, Tripartite Meeting of Experts on Forced Labour and Trafficking for Labour Exploitation, TMELE/2013, 11-
15 February 2013, p. 39, para 138.
33 ILO, Final report, TMELE/2013/7, 11-15 February 2013, p. 41, paras 26-27.
34 ILO, Action to be taken on the request of the Workers’ group and of 36 governments to urgently refer the dispute
on the interpretation of Convention No 87 in relation to the right to strike to the International Court of Justice for
decision in accordance with article 37(1) of the Constitution – Summary of the comments received from
constituents, GB.349bis/INS/2, 10 November 2023, p. 4, para 13.
35 ILO, Final report, TMELE/2013/7, 11-15 February 2013, p. 41, para 27.
10
international or regional organizations outside of the tripartite framework.”36 Applying the
same logic, the solution for filling a gap on the right to strike in the ILO body of standards is
not through referral to the ICJ and running the risk of having obligations imposed on member
States by the ICJ, but rather through standard setting by the ILC.
V. Placing a standard-setting item on the agenda of the ILC
1. Placing a standard-setting item in 2024 ILC is legally feasible under the statutory
framework
To respond to the sense of urgency expressed by the Workers and regional government
groups for solving the dispute on the right to strike to the ICJ, the Employers have proposed
that the Governing Body place an item on the right to strike on the agenda of the ILC at the
earliest possible date, which is 2024. This may be difficult to realize in practice but contrary to
the Office’s analysis of the statutory framework,37 there are no legal obstacles for doing so.
First, the decision to place a standard setting item on the right to strike on the agenda of the
ILC can be taken by simple majority and does not require unanimous consent. Article 5.1.1 of
the Governing Body Standing Orders does not apply. It reads as follows:
"When a proposal to place an item on the agenda of the Conference is discussed for
the first time by the Governing Body, the Governing Body cannot, without the
unanimous consent of the members present, take a decision until the following
session."38
This is not the first time the Governing Body is proposing a standard setting item on the right
to strike in the Governing Body. Already at the 253rd session of the Governing Body in 1992,
on the proposal of the Government of Colombia, the possible inclusion of an item on the right
to strike in the agenda of the ILC was discussed.
Second, the Governing Body can approve a standard-setting item with a programme of
reduced intervals like past practices for other protocols under two provisions,39 if a question
has been included in the ILC agenda for a standard setting under the double discussion
procedure less than 18 months before the opening of the ILC session.40 Therefore, it is entirely
feasible for the Governing Body to decide on a programme of reduced intervals for a standardsetting
item to be placed for the 2024 ILC session.
36 ILO, Final report, TMELE/2013/7, 11-15 February 2013, p. 31, para 122.
37 ILO, Action to be taken on the request of the Employers’ group to urgently include a standard-setting item on
the right to strike on the agenda of the 112th Session of the International Labour Conference, GB.349ter/INS/1,
11 November 2023, Appendix, paras 1-4.
38 It should be noted that Article 5.1.1 does not require that a proposal “must be discussed at two successive
sessions” of the Governing Body. Paragraph 54 of the Introductory note, which contains such wording cannot
overrule Article 5.1.1 given that the Introductory note itself provides that it “reflects certain practices without
fixing them as legal rule”, See ILO, Governing Body Standing Order, Introductory Note, para. 1.
39 ILO, Action to be taken on the request of the Employers’ group to urgently include a standard-setting item on
the right to strike on the agenda of the 112th Session of the International Labour Conference, GB.349ter/INS/1,
11 November 2023, Appendix, para 10. See Protocol of 2014 to the Forced Labour Convention 1930 (No. 29) and
Protocol to the Seafarers’ Identity Documents Convention 1958 (No. 108).
40 See ILO, International Labour Conference Standing Orders, Article 46(5) and similar Article 45(4).
11
Third, Article 5.1.1 of the Governing Body Standing Orders seems only relevant in case an
urgent item is to be referred to the ILC for a single discussion.41 However, it appears that if the
Governing Body decides to refer an urgent standard-setting item to the ILC for a double
discussion, a majority of three fifths of votes would not be required, so simply majority would
suffice.
If the Governing Body considers that the right to strike needs to be addressed as a matter of
priority and urgency, it could place it on 2024 ILC agenda and defer an item already on the ILC
agenda to a subsequent ILC. For instance, the Governing Body could decide to postpone the
standard setting item on the occupation safety and health protection against biological
hazards until a later date (ie 2026). Unlike the right to strike issue that may require urgent
attention to end the interpretation dispute, none of the groups have expressed an urgent
need for standards on biological hazards. It is important to indicate that the Governing Body
always has the prerogative to make changes to its past decisions where it deems necessary.
2. A referral of the right to strike to the ICJ would hardly bring earlier results
For a referral to the ICJ of the complex issue on right to strike, the Governing Body would also
need time to carry out possibly several rounds of consultations, collection and assessment of
various documents. Following this, for proper governance, the ILC would also need to approve
the referral questions either in June 2024 or 2025. Based on advisory procedure before the
ICJ which the Office prepared, the ICJ procedure would also take some time, probably 12 – 18
months. 42 Following this, the ILC may then need to discuss again appropriate steps to take
following this opinion, which the earliest opportunity would then be 2025 or 2026 ILC. It is
important to note that there has been no agreement for this advisory procedure to date.
3. In order to enable thorough preparation, placing an item on the right to strike on the
agenda of a later ILC could be considered
If the Governing Body decides that more preparation time is necessary, then placing a
standard-setting item in a later conference could also be considered. For instance, the
Governing Body could, at its March 2024 session, place an item on the right to strike on the
2025 or 2026 ILC agenda for standard setting under the double-discussion procedure, which
would provide sufficient time for preparation, and which could be done without having to
remove items already on the ILC agenda.
In any case, any difficulties of placing the matter on the 2024 ILC agenda must not be used as
a pretext to discard this option altogether and to decide in favour of a referral to the ICJ under
Article 37(1) of the ILO Constitution.
41 ILO, Governing Body Standing Orders, Article 5.1.5 reads “In the cases of special urgency or where other special
circumstances exist, the Governing Body may, by a majority of three fifths of the votes cast, decide to refer a
question to the Conference for a single discussion with a view to the adoption of a Convention or
Recommendation.”
42 ILO, Action to be taken on the request of the Workers’ group and of 36 governments to urgently refer the dispute
on the interpretation of Convention No 87 in relation to the right to strike to the International Court of Justice for
decision in accordance with article 37(1) of the Constitution – Summary of the comments received from
constituents, GB.349bis/INS/2, 10 November 2023, Annex III.
12
VI. Concluding observations
The Employers firmly believe that standard setting is the most appropriate tripartite social
dialogue-based solution that will ensure that all ILO constituents could actively engage in the
process, that any solution achieved would be based on consensus or at least a broad majority,
and finally that any outcome adopted is universally relevant and accepted.
The aim and purpose of the proposed protocol to C87 would be to determine the scope and
limits of the right to strike at the international level, as far as is possible and fill the regulatory
gap that currently exists in the ILO body of standards. In doing so, the Protocol would make it
clear that rules on the right to strike are only contained in P87 and not in C87.
In the same way as the tripartite constituents can decide on the scope and limits of the right
to strike, they can determine the sources for their consideration. The Employers would stress
that the starting point and most important source should be, as is the case for any standardsetting
discussion, the national law and practice on the right to strike in ILO member States.
Once the ILC decides to adopt a Protocol on the right to strike, it can be expected that the
CEACR faithfully follows the authoritative decision of the ILC and the intentions of the drafters
of P87. There would be no room whatsoever for the CEACR to maintain its own views on the
right to strike in C87.
There are no legal obstacles to putting a standard-setting item on the right to strike on the
2024 ILC agenda under a programme of reduced intervals. The Employers proposed standard
setting in 2024 to accommodate the urgency of the requests from certain groups. However,
the Employers have not opposed to a later standard-setting on the condition that there would
be no referral to the ICJ on the interpretation dispute and if preference is given to the
standard-setting option on a later date could facilitate the preparations.
Finally, the Employers have expressed their commitment to social dialogue and tripartism,
which are the cornerstones of the ILO, and they look forward to the substantive discussions
during the two Governing Body special sessions that will take place on 10 and 11 November
2023.
Document No. 26
ITUC, Comments to the Office background report on
“Action to be taken on the request of the Employers’
group to urgently include a standard-setting item on the
right to strike on the agenda of the 112th Session of the
International Labour Conference”, dated 27 October
2023

COMMENTS BY THE INTERNATIONAL TRADE UNION CONFEDERATION
(ITUC) TO THE OFFICE BACKGROUND REPORT ON “ACTION TO BE TAKEN
ON THE REQUEST OF THE EMPLOYERS’ GROUP TO URGENTLY INCLUDE A
STANDARD-SETTING ITEM ON THE RIGHT TO STRIKE ON THE AGENDA OF
THE 112TH SESSION OF THE INTERNATIONAL LABOUR CONFERENCE”
(See Office background paper (GB. 349ter/INS/1))
Introduction and chronology
1. At the 347th Session of the Governing Body meeting of 13-23 March 2023, the Vice
Chairperson of the Workers Group gave notice regarding the interpretation dispute on
the right to strike, stating that “It was already clear that any Member of the
Organization could raise an issue of interpretation and submit a request to the
Director-General to ask him to put the issue before the Governing Body for referral
to the ICJ. One specific issue of interpretation had been waiting long enough and her
group could not wait much longer for it to be resolved. Indeed, it was considering
submitting a request to the Director-General in the coming months to put the issue
before the Governing Body at its 349th Session and hoped to receive the support of
governments in this respect. There needed to be a debate on that specific issue as soon
as possible.1”
2. Following this notice, on 12 July 2023, the Workers Vice Chairperson of the
Governing Body addressed a letter to the Director-General, formally requesting that
the long-standing dispute over the interpretation of the Freedom of Association and
Protection of the Right to Organise Convention, 1948 (No. 87), in relation to the right
to strike be referred urgently to the International Court of Justice for decision, in
accordance with article 37(1) of the ILO Constitution, and therefore to include the
matter for discussion and decision on the agenda of the Governing Body of November
2023. This request was supported with letters to the DG by initially 32 and in the
meantime 37 Governments.
3. The Workers’ group request was challenged by the Employers’ group without any
legal basis. Following the efforts of the Employers’ group to block the request of the
Workers’ group for a discussion at the Governing Body regarding the referral of the
long-standing interpretation dispute on the right to strike to the ICJ, on 9 August 2023
the Workers’ group submitted a request to the Chairperson of the Governing Body for
a special meeting on the matter, in accordance with the constitution of the ILO and the
standing orders of the Governing Body. The Workers’ group has always acted in good
faith in its endeavours to have this long-standing dispute settled, in order to provide
legal certainty to Member States and constituents and avoid further damage to the
ILO’s supervisory system.
1 See Para 345 here
https://www.ilo.org/wcmsp5/groups/public/@ed_norm/@relconf/documents/meetingdocument/wc
ms_884393.pdf
4. Regrettably, on this matter, the Employers’ group has, in the view of the ITUC, not
been constructive nor acted in good faith, trying to prevent any step in the direction of
having this interpretation dispute addressed, in disregard of the ILO’s institutional
framework and rule of law. We say this for a number of reasons. First, in spite of the
fact that the Workers’ group invoked a request under article 37(1) of the ILO
constitution which is akin to an ILO constitutional complaint, the Employers’ group
blocked its automatic referral to the Governing Body of November for discussion and
decision, trying to exercise a veto power over this constitutional request. Second,
when the Workers’ group realised that the Employers’ group would not allow the
normal procedures to be followed, and decided to proceed under article 7(8) of the
ILO Constitution in conjunction with paragraph 3.2.2 of the Standing Orders of the
Governing Body by requesting a special meeting of the Governing Body, the
Employers’ group continued to challenge both the legality and legitimacy of the
process and made every effort to prevent any decision regarding the scheduling of the
meeting.
5. In view of the compulsory nature of the request by the Workers’ group under article
7(8) of the constitution and paragraph 3.2.2. of the Standing orders of the GB, and
after the decision taken by the GB Chair that such a meeting therefore should take
place, a screening group meeting was called to determine the modalities for the special
meeting requested by the Workers’ group.
6. At that meeting, held on 13 September 2023, the Employers group suddenly submitted
a request under paragraph 3.2.2 of the Standing Orders of the Governing Body for a
special meeting to urgently include a standard-setting item on the right to strike on the
agenda of the 112th Session of the International Labour Conference. This, while they
were still challenging the legality and legitimacy of the procedure they were now also
using themselves. More concretely, the Employers’ group proposed that the
Conference adopt in June 2024 a Protocol to the Freedom of Association and
Protection of the Right to Organise Convention, 1948 (No. 87) on the right to strike.
The Employers’ group also insisted that their request should be discussed before the
other special meeting, ignoring the constitutional nature of the request tabled by the
Workers’ Group and a considerable number of governments and the fact that the GB
Chair had already decided on the special meeting requested by the Workers’ group
that this special meeting should take place, whereas their request had just been tabled
and clearly required further decision making.
7. The Screening group decided on 13 September 2023 that the special meeting to discuss
the ICJ referral would take place on Friday, November 10th. In a next meeting on 28
September, the Screening group decided that the special meeting to discuss the
proposal regarding the addition of a standard setting item on the right to strike to the
ILC agenda of 2024 would be discussed the day after (Saturday, November 11th).
8. While recognizing that the Standing Orders in 3.2.2. do not require any conditions to
be in place in order to be granted a special meeting, it is important to emphasize
however the difference between the two requests, one invoking the Constitution, under
articles 7(8) and pursuant to settling an interpretation dispute under article 37(1), and
the other clearly not. And in this regard, one wonders why the Employers’ group put
forward their request to add an item to the ILO’s standard setting agenda in the form
of a special meeting instead relying on the normal Governing Body process for
including items on the Conference agenda.
9. In our view, this proposal by the Employers’ group for a Protocol to C87, given all
the legal, technical and practical infeasibility and unsoundness, must be seen and
discussed in light of all the past and present efforts by the Group to prevent any
discussions on the dispute in a manner that would bring about legal certainty and
stability as well as strengthen the supervisory system while at the same time,
continuing to permanently attack the key bodies in the supervisory system, i.e. the
CEACR, CAS and CFA, for their guidance which ensures consistency in the scope,
meaning and application of C87 with regard to the right to strike and thereby
weakening the supervisory system and undermining its important work on freedom
of association and right to organize.
10. It is worth recalling that, so far, Governments, the Employers’ group and the
Workers’ group all agree that this dispute on the right to strike regarding C87 is an
interpretation dispute. This means that we cannot disregard the clear and
authoritative language of article 37(1) which expressly and unambiguously obliges
the Governing Body, once it has come to the determination that a dispute is one of an
interpretation of a Convention or the Constitution (noting, as a reasonable first step,
that dialogue was not able to settle the dispute), to resort to the International Court of
Justice (ICJ) for the settlement of the dispute. The constitution does not provide
standard setting as the remedy in that circumstance. The authoritative and conclusive
nature of the decision of the ICJ in this regard is not in doubt whether looking at it
from the perspective of precedent, good governance or the hierarchy of norms and
judicial decisions, taking into account the effect of such an ICJ decision on a judicial
tribunal (a lower body to the ICJ) of the kind proposed under article 37.22. In view of
the respect ILO constituents have for the rule of law, it is our view that the decision
of the ICJ will settle this dispute and enable the ILO to find a path forward from it.
11. The ITUC emphasises the need to act in the interest of the institutional objectives of
the ILO and its constitutional purpose of protecting workers and of living up to the
spirit of good faith and constructive social dialogue. Good faith social dialogue also
requires the understanding that when social partners are unable to agree, for reasons
of an underlying dispute on the legal aspects of a situation, it is logical to resort to an
available dispute settlement mechanism. In the context of the ILO this is the
obligatory recourse to the ICJ based on art 37 (1) of the Constitution.
2 The hierarchy of any such tribunal vis-a -vis the ICJ must also be seen in light of article 9(2) of the UNILO
Agreement of 1946.
Rationale for rejecting the Employers’ group request to urgently include a standard-setting
item on the right to strike on the agenda of the 112th Session of the International Labour
Conference
12. The proposal of the Employers’ group for a standard setting activity in the form of a
Protocol to C87 is in our view legally, technically and politically impossible and an
unfeasible idea, which is not suitable for nor capable of achieving the necessary legal
certainty and stability, for the following reasons;
A Protocol on the right to strike would not resolve the interpretation dispute
13. Protocols are international treaties attached to existing Conventions. A Protocol can
only be ratified by those States which are already bound by the Convention to which
the Protocol is attached.
14. The origin of Protocols in the ILO context dates back from the 1979 report of the
Ventejol Working Party on the Revision of Standards. Prior to 1982, the only method
for both total and partial revision of Conventions had been the drafting of a new
Convention based on either a single or double Conference discussion.
15. To date, six Protocols have been adopted by the ILO. Based on past practice, as
indicated in the Office background paper (para 41), Protocols adopted so far had the
following purpose:
- introducing flexibility and potentially reducing the scope of the Convention with
a view to facilitating ratification (Protocol to Convention No. 110);
- expanding the scope and coverage of the Convention (Protocol to Convention No.
81);
- allowing for a widening of exemptions to facilitate a transition towards standards
that reflect changing circumstances in the world of work (Protocol to Convention
No. 89)
- updating certain regulatory aspects in the Convention they partially revise
(Protocol to Convention No. 147)
- adding regulatory content to the standards in the Convention they partially revise
with a view to closing implementation gaps (Protocols to Conventions Nos 29 and
155).
16. None of the six Protocols adopted so far aimed at settling a dispute with respect to the
intepretation of provisions of the related Convention (see para 62 of the Office
background paper).
17. It should be noted that, as rightly indicated in the Office background paper as well as
in the March 2022 GB Paper 3, the adoption of a “consensus-based modality involving
standard-setting cannot and does not generate the legal certainty provided by article
37 of the ILO Constitution as the consensus-based outcome of a Convention or
Protocol would be binding only for those Member States which have eventually
ratified these. Legal uncertainty would therefore continue to prevail in respect of
Member States having ratified the Convention subject to a legal dispute, for as long
as they are not in a position to ratify the newly adopted Convention or Protocol” (para
55).Therefore, a Protocol on the right to strike would generate more legal uncertainty,
as it would create “alternative legal regimes” on the right to strike, based on whether
Member States have ratified Convention No. 87 and whether they have additionally
ratified the proposed Protocol.
18. Such a Protocol would also lead to further uncertainty regarding its impact on the
review by the Committee of Experts and other supervisory bodies of the application
of Convention No. 87 by those Member States that would eventually decide not to
become parties to the said Protocol. While the Committee of Experts would have to
take fully into account the provisions of the Protocol vis-à-vis the Member States that
have ratified it, it will have to decide, as an independent body, how to proceed vis-àvis
Member States which have not ratified the Protocol and are bound only by the
Convention.
19. In this context, and most importantly, it should be added that Protocols create legal
obligations for ratifying States without retroactive effect. This means that the guidance
of the Committee of Experts will continue to apply to those Member States who have
ratified the Convention and not the Protocol. The legal uncertainty will therefore
remain in the body of international labour standards linked to Convention 87 and the
principle of freedom of association.
20. In the ILO, there is a reality of reliance on freedom of association as including the
right to strike which is inherent in the Constitution of the ILO. There is also a reality
of reliance on the coherent application of Convention 87 by the supervisory bodies as
protecting the right to strike for over 70 years. The proposal of the Employers’ group
that such protection for workers can be removed by standard-setting enters uncharted
territory and is out-of-place in the context of the institutional objectives and
constitutional theory and framework of the ILO. Such an action will turn the raison
d'être of the ILO and its Conventions on its head4.
3 GB paper entitled “Work plan on the strengthening of the supervisory system: Proposals on further steps to
ensure legal certainty and information on other action points in the work plan”, para. 65.
4 The preamble of the ILO Constitution is clear as to the institutional purpose of the ILO “Whereas universal
and lasting peace can be established only if it is based upon social justice; And whereas conditions of labour
exist involving such injustice, hardship and privation to large numbers of people as to produce unrest so great
that the peace and harmony of the world are imperilled; and an improvement of those conditions is urgently
required; … recognition of the principle of freedom of association…”(emphasis added).
21. It must be emphasized that C87 plays a pivotal role in the ILO’s institutional set up as
a fundamental convention, which moreover has been characterized together with C98
as providing for enabling rights that are of key importance to workers around the world
to ensure that other labour rights are respected. The current long-standing legal
uncertainty with regard to its scope and meaning in such a fundamental area as the
right of workers to collective action is very detrimental to all ILO’s constituents.
There is no clarity on the questions to be addressed by a Protocol on the right to
strike
22. The denial by the Employers’ group that Convention 87 protects the right to strike
raises the following fundamental question: since Protocols aim at partially revising
existing Conventions, which provisions of Convention No. 87 would need to be
revised, how would they be identified and what role will the existing guidance of the
supervisory system play?
23. As recalled by the Office in the background paper (para. 65), it appears from the
review of the six existing Protocols that at least two Protocols – those linked to
Conventions Nos 29 and 147 – explicitly built on the Committee of Experts comments
and general surveys to update and add regulatory content to the provisions of the
Conventions concerned.
24. The comments and observations of the ILO supervisory bodies constitute fundamental
guidance for ILO constituents when considering the revision of Conventions through
Protocols. Therefore, given that for decades both the Committee of Experts and the
Committee on Freedom of Association have progressively developed “a number of
principles relating to the right to strike” on the basis of Convention No. 87, the
proposed Protocol normally would consolidate the guidance of the ILO supervisory
bodies.
25. However, given the Employers’ repeated opposition to the comments of the
Committee of Experts on the right to strike, the Employers’ group expects the content
of the proposed Protocol to reverse the Experts comments on the issue, which would
not only create even further legal uncertainty but also create in fact a legal ‘monstrum’,
as they basically argue in favour of adopting a Protocol to a Convention with the sole
objective of undoing the authoritative guidance of the ILO’s supervisory system,
developed over the last 70 years, on that Convention.
26. Finally, the Employers’ rationale5 to adopt a Protocol on the right to strike to
circumscribe and limit the interpretive authority of the Committee of Experts is also
from a technical perspective totally flawed. In line with its mandate to determine the
scope, meaning and content of Conventions, the Committee of Experts would have
to review the implementation of the Protocol and therefore determine the legal
scope, content and meaning of its provisions. Again, the Employers’ proposed
Protocol defeats the purpose of ensuring definitive legal certainty on the matter.
27. In sum, it is our strong view that a Protocol on the right to strike would not resolve
the interpretation dispute, as the discussion on possible standard setting would
expose the same fundamental and persistent disagreement on interpretation, thus
preventing consensus. In addition, it would lead to even more legal uncertainty and
is in essence legally unsound.
The timeframe put forward for the adoption of the proposed standard setting activity
for a Protocol to C87 is not feasible
The standard setting process and the applicable timeframe
28. The standard setting procedure is regulated by the Standing Orders of the International
Labour Conference (in articles 45 and 46) which provide for statutory time limits for
the preparatory stages of a double or single discussion.
29. These preparatory stages include:
- the preparation of a preliminary report on the national law and practice with a
questionnaire (to be sent to the governments not less than 18 months before the
opening of the Conference at which the discussion will take place)
- the communication of replies by constituents (to be received by the Office not less
than 11 months before the opening of the Conference at which the discussion will
take place)
- and the preparation of a further report of the Office with draft conclusions which
in principle serve as a basis for the first Conference discussion (to be
communicated not less than 4 months before the opening of the Conference at
which the discussion will take place)
30. These arrangements apply in cases in which the question has been included in the
agenda of the Conference not less than 26 months before the opening of the session of
the Conference at which it is to be discussed in respect of a single discussion, or not
less than 18 months before the opening of the session of the Conference in the case of
a double discussion. When the standard-setting item is placed on the agenda of the
Conference less than 26 months for a single discussion or less than 18 months for a
double discussion, a programme of reduced intervals must be approved by the
Governing Body.
5 As recalled in the Office background paper (para. 59), the Employers’ declared objective is “to ensure that the
Committee of Experts does not create new obligations beyond those intended by the tripartite constituents at the
Conference. The Committee of Experts should refer difficult questions or gaps in a Convention to the
constituents for them to resolve; its failure to do so in the case of the right to strike had led to the current dispute.”
31. It is clear that the Employers’ proposal would not allow for the respect of the
requirements set out in the standing orders, as in practical terms it would mean that
the time available between the placing of the item of the ILC agenda (Nov 2023) and
the first discussion in June 2024 would be only seven (7) months.
32. Even if one would then try to argue in favour of the GB approving a programme of
reduced intervals, in our view this would not be feasible, taking into account the need
to respect procedural requirements that are there to ensure the full participation and
contribution of the tripartite constituents in the preparatory process, as well as past
practice and the amount of preparatory work that would be required from the Office
(Law and Practice report, Report with draft conclusions and draft text). It would be
absolutely impossible to complete all this preparatory work within 7 months.
33. As indicated in the Office background paper (para. 72), all ILO Protocols were placed
on the agenda of the Conference between 15 and 19 months before the opening of the
session at which they would be discussed, except for the Protocol to Convention No.
147. However, this had been prepared in the context of an earlier technical meeting. A
programme of reduced intervals was adopted for the preparation of the two most recent
Protocols to Conventions Nos 155 and 29 in line with article 38, paragraph 3 (now
article 45, paragraph 4) of the Standing Orders of the Conference.
34. Reduced intervals only work when there is broad consensus on the issue(s) and the
preparation for standard setting.
35. In addition, four of the six Protocols adopted by the Conference have been preceded
by technical or tripartite meetings of experts which facilitated the preparatory work of
the Office, and ensured the involvement of tripartite constituents in the process. This
preparatory work, consisting in in-depth technical analyses and tripartite debates, has
been demonstrated to be essential in developing sound and well-informed standards.
36. It is clear that no preparatory work on any regulatory approach to the right to strike
has been conducted. The existing technical analysis and guidance of the supervisory
system, which would normally form a consensus basis for the preparatory work, is
rejected by the Employers’ group. Taking into account the existing statutory
timeframes, past practice, the need to respect tripartite involvement as well as practical
considerations, the Employers’ proposal to have a Protocol on the right to strike
discussed at the 2024 ILC is simply not feasible. This is in addition to the fact that in
our view as argued above the proposal is legally unsound.
There is no space in the already approved agendas of the forthcoming sessions
of the International Labour Conference (See GB 349/INS/2)
37. The responsibility for setting the agenda of the Conference lies with the Governing
Body. Proposals to place an item on the Conference agenda must be considered at two
successive sessions of the Governing Body, unless there is unanimous consent to place
a proposed item on the agenda of the Conference when it is discussed for the first time
by the Governing Body (paragraph 5.1.1 of the Governing Body Standing Orders).
38. The Agenda of the 2024 ILC has already been decided by the GB in previous sessions,
and the following items, in additional to the standing items, have been placed on the
agenda:
- Occupational safety and health protection against biological hazards – standardsetting
(first discussion) [decided in March 2021]
- Recurrent discussion on the strategic objective of fundamental principles and
rights at work.
- Decent work and the care economy – general discussion. [decided in March 2022]
- Abrogation of Conventions Nos 45, 62, 63 and 85. [decided in November 2021]
39. According to the established practice of having three technical committees plus the
General Affairs Committee (GAC - to be convened when necessary), there is therefore
no possible slot for an additional standard setting item in the 2024 ILC Agenda.
40. For all the reasons stated above, the Employers’ proposal to adopt a Protocol relies on
a flawed rationale and defeats its own declared purpose of providing an easier path to
consensus and more legal certainty on the right to strike.
A Protocol would not resolve the interpretation dispute regarding the right to strike as
it is legally, practically and politically impossible.
41. Preserving the unique nature of the ILO as a normative tripartite organization
requires that legal certainty is restored to ILO constituents and the supervisory
system with regard to this long-standing dispute on the interpretation of C87.
Therefore the Governing Body must decide now to resolve this dispute by referring
it to the ICJ under article 37(1) of the ILO Constitution and not through the adoption
of a Protocol to C87 (see text in box below).
Taking the unique tripartite governance structure of the ILO into account
The Employers’ group has argued that their request for standard setting as the preferred way to settle the
interpretation dispute is based on the fact that standard setting is the only social dialogue based solution in
the ILO or the highest form of social dialogue in the ILO. This is erroneous.
The ILO is according to its Constitutional mandate a tripartite social dialogue based normative organization
with a sound system of interrelationships between its governance, legislative and supervisory systems aimed
at protecting workers, achieving social justice and realising universal peace.
In view of the dialogue that takes place between tripartite social partners at the national level and the regular
supervisory system at the ILO through reporting under article 19, 22 and 23 of the ILO constitution aimed
at better implementing ratified Conventions, it is improper to suggest that this supervisory system is not social
dialogue based.
Also, given the role that the International Labour Conference and the Governing Body play regarding the
work of the supervisory bodies under the Constitution of the ILO; and the role specifically played by the
Governing Body (which is also a tripartite structure) regarding the deliberations and decision to refer a
question or dispute to the ICJ under article 37(1), it is equally improper to suggest that the process to refer
a dispute to the ICJ does not inherently include social dialogue.
The advisory opinion of the ICJ, when delivered, will also not constitute an external imposition on the ILO
and its constituents. Iin order to ensure legal certainty and predictability associated with the rule of law, the
ILO will deal with the advisory opinion of the ICJ on the basis of its constitution and precedents, which
prescribe the need to bring a dispute of interpretation to the ICJ for decision and therefore consider the
outcome to be conclusive and binding on the organisation.
It is worth noting that social dialogue systems in many ILO Member States also include dispute settlement
mechanisms, on the basis of the law or agreed in advance by social partners, which provide for resorting to
judicial settlement of disputes of a legal nature arising in social dialogue.
The ILO is a normative organization founded on a culture of social dialogue which includes its dispute
settlement mechanism, and this makes it unique. It must also be emphasised, that the ILO’s uniqueness is
equally in the fact that its supervisory system does not impose decisions on Member States. The CEACR as
an independent body undertakes an impartial and technical analysis of how ratified Conventions are applied
in law and practice by Member States, while cognizant of different national realities and legal systems, and
provides non-binding guidance through continuing dialogue with governments taking into account
information provided by employers’ and workers’ organizations. The CFA arrives at conclusions and makes
recommendations to Member States on a tripartite basis. These bodies, in continuing dialogue with Member
States and constituents, work to guide the actions of national authorities in the application of international
labour standards and principles, in law and practice. Member States, in voluntarily becoming members of
the ILO by ascribing to its constitution, and in voluntarily ratifying ILO conventions, engage in this dialogue
with the supervisory bodies.
It is therefore misleading to caricature the supervisory system as external to and imposing its will on Member
States and constituents. It is also misleading to caricature any decision of the ICJ in such a manner as ‘an
imposition’ or ‘foreign to the ILO’ for the same reasons already stated above.
Finally, arguing that social dialogue would have to be preferred over any dispute settlement mechanism
would lead to a situation where a deadlock in social dialogue would persist ad infinitum, giving the party
that blocks access to dispute settlement in practice a veto. This would certainly not be in line with basic
principles of social dialogue and the tripartite governance structure of the ILO.

Document No. 27
GB.349/INS/18/5(Rev.1), Fifth Supplementary Report
of the Director-General: Arrangements for the 349th bis
and 349th ter Special Sessions of the Governing
Body, November 2023

 GB.349/INS/18/5(Rev.1)
To minimize the environmental impact of ILO activities, Governing Body documents published before or after the sessions are not printed. Only documents
issued in-session are printed in limited numbers and distributed to Governing Body members. All Governing Body documents are available at www.ilo.org/gb.
Governing Body
349th Session, Geneva, 30 October–9 November 2023
Institutional Section INS
Date: 1 November 2023
Original: English
Eighteenth item on the agenda
Report of the Director-General
Fifth Supplementary Report: Arrangements for the 349th bis and
349th ter Special Sessions of the Governing Body
 Introduction
1. At the screening group meeting of 28 September 2023, the Office was requested to provide
information on the practical modalities of the two upcoming special meetings of the Governing
Body scheduled for 10–11 November 2023 in the event the Governing Body were to decide at
its 349th Session (October–November 2023) to meet, in part, as a Committee of the Whole. This
document has been prepared in response to this request with a view to facilitating the
Governing Body’s consideration and decision.
2. It is recalled that in accordance with article 7(8) of the ILO Constitution and paragraph 3.2.2 of
the Standing Orders of the Governing Body, two special meetings of the Governing Body shall
be held on 10 and 11 November 2023; the 349th bis Special Session on the possible referral of
the dispute concerning Convention No. 87 in relation to the right to strike to the International
Court of Justice for decision, as requested by the Workers’ group and 36 governments, and the
349th ter Special Session on the inclusion of a standard-setting item on the right to strike on
the agenda of the 112th Session (June 2024) of the Conference, as requested by the Employers’
group. In discussing the date and duration of the special meetings, some constituents have
expressed the view that in the interest of inclusiveness, the Governing Body should meet as a
Committee of the Whole.
 GB.349/INS/18/5(Rev.1) 2
3. The possibility for the Governing Body to meet as a Committee of the Whole is provided for in
article 4.3.1 of its Standing Orders, which reads as follows:
The Governing Body may decide to meet as a Committee of the Whole in order to hold an
exchange of views, in which representatives of governments that are not represented on the
Governing Body may, in the manner determined by it, be given an opportunity to express their
views with respect to matters concerning their own situation. The Committee of the Whole shall
report to the Governing Body.
4. Should the Governing Body decide to convene either or both special meetings, in part, as a
Committee of the Whole, consideration could be given to the following practical arrangements,
it being understood that the Chairperson, in consultation with the Vice-Chairpersons, may
decide on any adjustments as may be necessary for the efficient conduct of the discussion:
• During the morning sitting (10.30 a.m. to 1.00 p.m.), the Governing Body shall hold an
exchange of views on the agenda item with the full participation of governments which are
not represented in the Governing Body and which will be entitled to make no more than one
statement not exceeding three minutes.
• Governing Body members representing governments will be entitled to make no more than
one statement not exceeding three minutes.
• The following time limits could apply to other participants: 15 minutes for the opening and
closing statements of the Employer and Worker spokespersons; and 5 minutes for the
statements made on behalf of government groups.
• The Chairperson may reduce the time limits where the situation warrants it, for instance if
there is a very long list of speakers.
• Delegates wishing to take the floor during the morning sitting should be registered at least
24 hours in advance at [email protected].
• In the afternoon (3.30 p.m. to 6.30 p.m.), the Governing Body shall meet in plenary sitting to
conclude the discussion and take a decision on the agenda item. The plenary sitting will
begin with an oral report by the Chairperson on the exchange of views held in the Committee
of the Whole. The afternoon sitting may be extended into the evening, if necessary.
 Draft decision
5. The Governing Body approved the arrangements for its 349th bis and 349th ter Special
Sessions as set out in paragraph 4 of GB.349/INS/18/5(Rev.1) and requested that those
arrangements be promptly brought to the knowledge of all Member States and be
published on the public webpage of the Governing Body.
Document No. 28
Draft Minutes of the 349th Session of the Governing
Body, paras 686-737

 GB.349/INS/PV/Draft
Governing Body
349th Session, Geneva, 30 October–9 November 2023
Institutional Section INS
Warning: this document is a draft and may contain omissions or errors. It is made available solely for the purpose
of verification and correction. Persons referred to in this document are not to be regarded as bound by statements
attributed to them. The ILO declines all responsibility for any errors or omissions which this document may contain,
or for any use which may be made of it by third parties. Governing Body members may send corrections to their
own interventions by 14 January 2024 to [email protected].
Draft minutes of the Institutional Section
Contents
Page
Opening remarks ..................................................................................................................................... 5
1. Approval of the minutes of the 348th Session of the Governing Body
(GB.349/INS/1) ................................................................................................................... 8
Decision .............................................................................................................................. 8
2. Agenda of future sessions of the International Labour Conference
(GB.349/INS/2) ................................................................................................................... 8
Decision .............................................................................................................................. 16
3. Matters arising out of the work of the 111th Session (2023) of the
International Labour Conference ................................................................................... 17
3.1. Plan of action for the implementation of the Quality Apprenticeships
Recommendation, 2023 (No. 208) (GB.349/INS/3/1) .................................................... 17
Decision .............................................................................................................................. 23
3.2. Follow-up to the resolution concerning the second recurrent discussion
on labour protection (GB.349/INS/3/2) .......................................................................... 23
Decision .............................................................................................................................. 31
3.3. Follow-up to the resolution concerning a just transition towards environmentally
sustainable economies and societies for all (GB.349/INS/3/3) ................................... 31
Decision .............................................................................................................................. 39
 GB.349/PV/Appendix I 137
• Follow-up to the Fifth Global Conference on the Elimination of Child Labour in Durban
(GB.349/POL/INF/1);
• Agreements concluded with other international organizations (GB.349/LILS/INF/1);
• Voluntary contributions and gifts (GB.349/PFA/INF/1);
• Update on the headquarters building renovation project (GB.349/PFA/INF/2);
• Update on the premises for the ILO Regional Office for Africa and Country Office for
Côte d’Ivoire, Benin, Burkina Faso, Mali, Niger and Togo in Abidjan (GB.349/PFA/INF/3).
(GB.349/INS/18/4, paragraph 3)
18.5.Fifth Supplementary Report: Arrangements for the 349th bis and
349th ter Special Sessions of the Governing Body
(GB.349/INS/18/5 and GB.349/INS/18/5(Rev.1))
686. The Chairperson invited the members of the Governing Body to indicate in their statements
whether they supported the first option of the draft decision, of holding the morning sittings
of each special session as a Committee of the Whole, or the second option, of conducting both
special sessions as normal sittings of the Governing Body.
687. The Employer Vice-Chairperson thanked the Government of Switzerland for having proposed
the format of the Committee of the Whole in order to make the discussion inclusive and
representative, which her group considered absolutely necessary. However, the time frame
should be flexible, as half a day might be insufficient to allow all governments that wished to
speak to take the floor. As the decision on a referral to the ICJ could be incompatible with the
decision on a Protocol to the Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87), the Employers’ group proposed that the Governing Body should
meet as a Committee of the Whole for the entire day for both special sessions to ensure full
transparency and representativeness. The proposed time limits for non-members of the
Governing Body, a maximum of two statements of two minutes each, were sufficient. The
afternoon sitting of each special session should not exceed normal working hours; if the
discussions did not reach a conclusion by the end of normal working hours on 11 November
2023, they should be continued at the next Governing Body session, in March 2024. In any
event, the Committee of the Whole format could not replace a discussion and decision by the
International Labour Conference. As Convention No. 87 was a fundamental Convention, the
outcome of any decision on the interpretation dispute would affect all ILO constituents,
including employers and workers who would not participate in the Committee of the Whole. It
was therefore crucial for the sound, democratic governance of the Organization that the final
decision on whether to refer the issue of the right to strike to the ICJ should be taken by the
Conference, not the Governing Body.
688. The Employers’ group could support the first option of the draft decision, provided that the
following changes were made to paragraph 4 of document GB.349/INS/18/5: “During the
morning sitting (10.30 a.m. to 1.00 p.m.)” should be replaced with “During the morning and
afternoon sittings”; “In the afternoon (3.30 p.m. to 6.30 p.m.)” should be replaced with “At the
end of each session”; and the last sentence, “The afternoon sitting may be extended into the
evening, if necessary”, should be deleted. The words “as amended” should then be inserted in
the draft decision, after the reference to “paragraph 4 of GB.349/INS/18/5”.
 GB.349/PV/Appendix I 138
689. The Worker Vice-Chairperson sought clarification from the Office on whether amendments
could be proposed to the body of the document, as opposed to the draft decision.
690. A representative of the Director-General (Legal Adviser) clarified that amendments could be
proposed to the draft decision only. For any possible changes to be made to the document
itself, for instance on the proposed modalities set out in paragraph 4, the Office would need
to issue a revised version for the Governing Body’s consideration the following day. The draft
decision could then be adopted without the words “as amended”.
691. The Worker Vice-Chairperson noted that, as the Committee of the Whole format affected the
participation of Governments and not Employers and Workers, she would reserve her position
on it until the Government members had spoken. As to the remaining issues, she recalled as
background that, in July 2023, the Workers’ group had sent a letter requesting an urgent
discussion and decision on a referral to the ICJ of the issue of the right to strike, and had
requested the Office to prepare a background report and seek the views of all Member States
to ensure that the process was inclusive. The group was therefore in favour of inclusivity.
However, limited numbers of contributions had been received from governments and
employers’ organizations. The group doubted the need to convene a Committee of the Whole,
as the Governing Body had received the mandate to refer matters of interpretation of
international labour standards to the ICJ in 1949. While improvements were still possible to the
democratic composition of the Governing Body, it was already much more democratic than it
had been 100 or 50 years ago. The Employers’ group’s proposal to hold both special sessions
entirely in the Committee of the Whole format was intended to prevent any decision-making
and the Workers’ group was strongly opposed to it. As to the time frame, the Workers’ group
supported decent working hours; however, as two special sessions had now been organized,
and given the urgency of the decisions to be taken, the possibility of having extended sittings
should not be ruled out in advance.
692. Speaking on behalf of GRULAC, a Government representative of Mexico restated the group’s
support for inclusive discussions in all areas of the ILO, without undermining the decisionmaking
capacity of the Governing Body. On that understanding, GRULAC agreed to applying
the Committee of the Whole format for the morning sittings of both special sessions. As
appropriate time management was important, the group proposed that the speaking time
limits of individual Governments for both members and non-members of the Governing Body
should be harmonized to be one statement of three minutes, rather than two statements of
two minutes each. GRULAC supported the proposal to convene a Committee of the Whole in
the morning sitting, followed by an afternoon sitting with an oral report by the Chairperson to
the Governing Body and a discussion and decision on the item on the agenda of each special
session. Subject to the change it had proposed, GRULAC could support the first option of the
draft decision.
693. Speaking on behalf of ASPAG, a Government representative of the Islamic Republic of Iran
said that, considering the importance of inclusiveness and the broad impact of the decisions
on all Member States of the ILO, her group supported the format of a Committee of the Whole,
as an exceptional practice. She encouraged participants to exercise effective time
management. The oral report by the Chairperson on the exchange of views should be
considered at the sitting of the Governing Body in the afternoon, to ensure inclusiveness in
decision-making on such crucial issues. A majority of ASPAG supported the proposal for the
International Labour Conference to make a decision at its 2024 session on both a potential
referral to the ICJ and standard-setting, to ensure that all views were considered.
 GB.349/PV/Appendix I 139
694. Speaking on behalf of the Africa group, a Government representative of Algeria stated that
her group supported the decision to convene a Committee of the Whole in the mornings of the
special sessions. That option was provided for in the Standing Orders of the Governing Body,
and would ensure inclusivity and transparency, and therefore the credibility of the process.
Member States who so wished should be involved in the discussion to make for greater
diversity in opinions and perspectives, leading to more balanced decisions on a very important
issue for all Member States, especially for those who had ratified Convention No. 87 but were
not members of the Governing Body and could not otherwise participate in decision-making.
Accordingly, the Africa group supported the first option of the draft decision.
695. Speaking on behalf of the EU and its Member States, a Government representative of Spain
said that Albania, Bosnia and Herzegovina, North Macedonia, Republic of Moldova,
Montenegro, Serbia, Georgia, Iceland, Norway and Armenia aligned themselves with his
statement. He recalled that on 14 July 2023, the EU and its Member States and Iceland and
Norway had sent the Director-General a letter requesting that, as a matter of utmost
importance, an item be placed on the agenda of the Governing Body on the referral to the ICJ
of the dispute regarding the interpretation of Convention No. 87 in relation to the right to strike
and indicating that legal clarity was urgently required after more than a decade of failed
attempts to find a solution. He commended the Office for its impartial and transparent
management of the process, and the inclusive approach of providing all constituents with an
opportunity to submit written comments. Given the shortage of time available for the special
sessions, the EU and its Member States supported the second option of the draft decision, of
holding the sessions as normal sittings under the Standing Orders of the Governing Body. They
did not support the proposed amendments of the Employers’ group.
696. A Government representative of Bangladesh noted that as long as the 1986 Instrument for
the Amendment of the ILO Constitution was not in force, the Governing Body could not be
considered to be truly representative of ILO Member States. As any interpretation or standardsetting
concerning Convention No. 87 would have an impact on all ILO Member States, all
Governments should participate actively in the discussions to reach a consensus-based,
tripartite decision. He supported the convening of both special sessions as a Committee of the
Whole.
697. A Government representative of Switzerland, who had been authorized to speak by the
Officers of the Governing Body in accordance with paragraph 1.8.3 of the Standing Orders,
said that as Convention No. 87 was a fundamental Convention and therefore binding on all ILO
Member States, all governments – or at least all which had ratified the Convention – could be
invited to participate in the proceedings before the ICJ. Accordingly, all Member States should
be actively involved in discussions on whether to refer the issue to the ICJ and, if so, the
question to be put to the Court, and also on whether to include a standard-setting item on the
agenda of a session of the International Labour Conference. Written submissions were
insufficient. His Government therefore supported the first option, of convening a Committee
of the Whole, which had been proposed by the Office at the March 2023 session of the
Governing Body. Those arrangements would ensure that the discussions were inclusive and
representative, while enabling the available time to be managed appropriately. The
Government of Switzerland had been advocating for greater democracy within the Governing
Body for many years. The number of ILO Member States had increased significantly since 1949,
when the Governing Body had received the mandate to submit requests to the ICJ for advisory
opinions. It therefore seemed appropriate that that authority should now be returned to the
Conference.
 GB.349/PV/Appendix I 140
698. The Worker Vice-Chairperson cautioned against using the argument of democratization in
the context of the current discussion. The Workers’ group fully supported the democratization
of the Governing Body and the abolition of the status of countries of chief industrial
importance. However, the arguments were unconvincing in relation to the question of who
should discuss a possible referral to the ICJ. The Conference had given the Governing Body a
mandate in 1949, which remained in force and which formed the legal basis for the potential
referral to the ICJ. There was no need to have the decision of the Governing Body discussed or
validated by the Conference; indeed, that would provide an opportunity for constituents to
lobby against the Governing Body’s decision. Nor would a Conference discussion be more
inclusive. Governing Body members were representatives, who participated in group meetings
so as to represent the views of the groups before the Governing Body. There was no reason
why the Governing Body should be incapable of taking a decision on the items to be discussed
at the special sessions on the basis of its formal mandate, which it should be trusted to exercise
responsibly. Although the Workers’ group did not support convening a Committee of the
Whole, it could agree to it, given that many, though not all, Governments favoured it to allow
for broader contributions. However, as a Committee of the Whole would increase the number
of Governments that could participate, but not the number of representatives of the social
partners, it would not necessarily be more democratic. There was also a risk that much time
would be devoted to repeated positions. Moreover, as only ten Governments had submitted
comments in writing, there might be limited interest in participating among Governments that
were not members of the Governing Body. In that case, the Chairperson should have the
discretion to assess the situation, with the help of the Office, in the 24 hours prior to the start
of each special session and to shorten the Committee of the Whole to allow the Governing
Body more time for decision-making. In any event, the Committee of the Whole should not
extend beyond the morning sitting. The suggestion made by the representative of GRULAC to
allow Governments to make one statement not exceeding three minutes would be helpful, but
the group could also accept the approach of two two-minute statements. The Workers’ group
could accept the first option of the draft decision.
699. The Employer Vice-Chairperson stated that responsible decisions were those which
strengthened the ILO as a tripartite organization of social dialogue, which was why the
Employers’ group had advocated for a tripartite and inclusive discussion of the item at a
session of the International Labour Conference. No discussion on the substance of the matter
had ever taken place at the Conference, nor had the 2015 meeting of experts on the right to
strike, where participation was very limited, discussed the substance. The Government group
of that meeting of experts had adopted a statement, supported by the social partners, that
they were ready to undertake inclusive discussions on the substance, but those discussions
had never taken place. Hence, the only responsible decision would be to discuss the substance
of the matter through social dialogue at the Conference.
700. As to the special sessions, strict time management for all speakers was important, provided
that all Governments wishing to speak during the Committee of the Whole were allowed to do
so. However, her group’s position was not dogmatic; the sitting could be longer or shorter than
planned, and the reference to 10.30 a.m. to 1 p.m. could be removed from paragraph 4 of the
document to allow for more flexibility.
701. The Worker Vice-Chairperson noted that the most important principle was that there would
be a Committee of the Whole at the morning sitting of each special session. If there were many
speakers, they would have shorter speaking times and if there were fewer speakers, they could
have more time. In any event, the Committee of the Whole would end by 1 p.m. to allow the
Governing Body, as the only decision-making organ for the issues at hand, to hold its sitting.
 GB.349/PV/Appendix I 141
The remaining issues raised by the Employers’ group would be discussed at the special
sessions.
702. The Chairperson observed that there was convergence on convening a Committee of the
Whole. If necessary, the speaking times could be adjusted depending on the number of
speakers. It was also important to leave sufficient time for the preparation of the oral report
before each Governing Body sitting in the afternoon.
703. Speaking on behalf of the EU and its Member States, a Government representative of Spain
said that Albania, North Macedonia, Montenegro, Iceland, Norway and Armenia aligned
themselves with the statement. While they originally supported the holding of a normal session
of the Governing Body, with a view to achieving consensus the EU and its Member States could
support the option of convening a Committee of the Whole in the morning sittings. They also
supported the proposal of the representative of GRULAC to allow all individual Governments
to make one statement of up to three minutes.
704. The Worker Vice-Chairperson sought clarification on whether the proposal made by GRULAC
to have one statement of three minutes could be adopted.
705. The Employer Vice-Chairperson said that, on the understanding that all Governments
wishing to speak would be allowed to do so, a decision on the time limits for individual
governments did not yet need to be made.
706. Speaking on behalf of GRULAC, a Government representative of Mexico clarified that, as it
had been unclear which Governments would have the opportunity to speak twice, her group
had suggested a harmonized limit of one statement of three minutes for all member and nonmember
Governments, which should allow sufficient time for everyone to participate in the
Committee of the Whole.
707. The Employer Vice-Chairperson agreed that, during the meetings of the Committee of the
Whole, no distinction should be made between Governing Body members and non-members.
However, further consideration should be given to the number and duration of their
statements.
708. The Director-General noted that Governments who were not members of the Governing Body
needed to be informed of the arrangements for the Committee of the Whole, therefore a
prompt decision was required. A degree of flexibility was needed with regard to time limits.
Given that the overall timings would depend on the number of speakers in a given sitting, the
Chairperson should have the discretion to reduce the time limits, if required; however, a
minimum of two minutes would be necessary. In that respect, three minutes in total could be
more appropriate than two statements of two minutes. Unless the Governing Body decided
that the sitting must end at 1 p.m., it could be extended slightly beyond that time, without
jeopardizing the normal sitting of the Governing Body in the afternoon.
709. The Worker Vice-Chairperson said that, as a Committee of the Whole would allow more
Governments to participate but not additional Employers’ and Workers’ groups, the speaking
times were a matter for the Government representatives to decide. She agreed that the
Chairperson should be given the flexibility to arrange the morning sitting to allow all
participants to contribute; the main concern for the Workers’ group was that nothing should
jeopardize the smooth running of the normal Governing Body sitting in the afternoon.
710. A Government representative of India agreed that all Member States should be given equal
time to speak during the meetings of the Committee of the Whole, whether they were
Governing Body members or not, but was flexible on the exact time limits. Governments
 GB.349/PV/Appendix I 142
should avoid repetition in their statements; allocating one speaking slot to each would allow
the sitting to finish on time.
711. The Chairperson observed that there was clear support for harmonizing the time limits for
members and non-members of the Governing Body during the meetings of the Committee of
the Whole, and proposed that one statement of three minutes would be preferable to two
statements of two minutes, which would be four minutes for each Government. The
Chairperson would be allowed some flexibility in reducing the time limits if necessary. He asked
whether the Governing Body was ready to reach agreement on the draft decision.
712. A representative of the Director-General (Legal Adviser) recalled that, before the draft
decision could be adopted, it was first necessary to change paragraph 4 of document
GB.349/INS/18/5 to reflect the wishes of the Governing Body on the number of interventions,
speaking times and the additional flexibility. The Office would make the change and circulate
a revised version of the document.
713. The Employer Vice-Chairperson agreed that paragraph 4 should be amended to reflect the
Governing Body’s discussion. It should provide for flexibility on the timings and remove the
distinction between Governing Body members and non-members.
714. The Worker Vice-Chairperson said that once the revised version of the document had been
published, the Governing Body could easily approve the draft decision. She emphasized,
however, that the afternoon sitting must remain a normal sitting of the Governing Body.
715. The Chairperson noted that the Office had prepared a revised version of the document, in
which paragraph 4 had been amended to reflect the consensus on the practical arrangements
for the two special sessions and to specify that the Chairperson could make adjustments as
necessary. He invited the Governing Body to adopt the draft decision.
716. The Employer Vice-Chairperson recalled that her group had made three proposals, namely:
to extend the Committee of the Whole into the afternoon sitting to allow all Governments that
wished to take the floor to do so; to allow Governments to make two statements of no more
than two minutes; and to set a time limit for the afternoon sitting of 8 p.m. to ensure decent
working conditions. However, the revised version of the document did not take those
proposals into account. It did not provide for an extension of the Committee of the Whole and
stated that, at each afternoon sitting, the Governing Body should conclude the discussion and
take a decision on the agenda item, which was not what had been agreed. She insisted that
the full Conference should make the final decision on whether to refer the matter of the right
to strike to the ICJ, given the impact of the issue on all constituents. The lack of compromise
and openness from the Office to consider the Employers’ group’s concerns had not resulted in
a balanced and constructive document, and had set an unhelpful tone for the difficult
discussions to come during the special sessions. The problem could have been avoided if the
Office had enabled the screening group to discuss the practical arrangements prior to the
present session of the Governing Body. The Employers’ group could not accept the
arrangements as reflected in paragraph 4 of the revised version of the document and wished
to continue the discussion in order to reach consensus.
717. The Worker Vice-Chairperson said that the draft decision – to which no amendments had
been proposed – should have been adopted when the matter was first discussed. As had been
made clear in the discussion on the Programme and Budget for 2024–25 at previous sessions,
the Governing Body could not make amendments to the Office document. The revised version
issued by the Office was a fair attempt to reflect the discussion that had taken place, notably
the agreement that the Chairperson, in consultation with the Vice-Chairpersons, would enjoy
 GB.349/PV/Appendix I 143
a degree of flexibility on arrangements for the morning sittings. Her group had stated clearly
that such flexibility could not extend to arranging an entire day of the Committee of the Whole;
it was extremely important that the afternoon sittings should be normal sittings of the
Governing Body.
718. The objection to the wording in paragraph 4 on the need to conclude the discussion and take
a decision on the agenda item was misplaced, as the Office had explained that, however a
special session was conducted, it had to result in a decision. The wording did not prejudice the
outcome of the special sessions in any way. Furthermore, convening a Committee of the Whole
required a decision by the Governing Body to do so; if the Employers’ group did not agree on
the arrangements for it, the Governing Body could not decide to convene a Committee of the
Whole and the special sessions would therefore have to be held as normal sittings of the
Governing Body. The Workers’ group would not agree to anything other than the
arrangements reflected in the revised version of the document.
719. The Employer Vice-Chairperson clarified that her position was that the wording of the last
bullet point under paragraph 4 of the revised document was very open, whereas her group
had stated clearly that it must not mean that a vote would be taken in order to conclude the
discussion. There was no reference in the revised version of the document to ending the
meeting at a reasonable time or to the flexibility for the Chairperson to accommodate requests
for the floor, including in the event that Governments wished to speak a second time. The
arrangements related not only to the format of the Committee of the Whole, but to the entirety
of the special sessions. She asked to hear the views of the Chairperson, including on whether
he wished to have such flexibility on time management, and whether a commitment could be
made to ensure that the special sessions finished at a reasonable time.
720. The Worker Vice-Chairperson emphasized that she had stated clearly that the flexibility on
time management was limited by the need to hold both a Committee of the Whole and a
normal sitting of the Governing Body. Moreover, it was for the Governing Body, under the
leadership of the Chairperson, to determine whether to make a decision or hold a vote. The
Workers’ group was certainly very much in favour of decent working hours, but the discussions
might become difficult and would require time; limiting that time in advance was seemingly an
attempt to prevent any decision from being made.
721. The Chairperson observed that the Governing Body had previously appeared to be close to
reaching consensus. The Office had reflected the elements discussed in the revised document.
He suggested that, while the document might not be perfect in the view of the Employers’
group, the wording reflected the agreements reached on how the special sessions should be
run. Moreover, it was the Chairperson’s prerogative to make decisions concerning time
management.
722. The Director-General emphasized that to accommodate the desires to hold both a Committee
of the Whole and a normal sitting of the Governing Body, flexibility was required on the
speaking times and on the timing of the afternoon sitting. The Chairperson needed the
flexibility to reduce or extend speaking times in order to accommodate the number of requests
for the floor, and the start time for the normal sitting of the Governing Body would depend on
when the Committee of the Whole finished, and would need to take into account the time
required to prepare the oral report. The afternoon sitting was therefore likely to be an
extended sitting by default. Furthermore, the reference in the document to a decision did not
state which kind of decision would be made. It was nevertheless necessary to have an outcome
of each special session.
 GB.349/PV/Appendix I 144
723. The Employer Vice-Chairperson noted that it was not usual to state that a meeting had to
conclude a discussion, since the decision made could be to continue the discussion. Her group
read the phrase “to conclude the discussion and take a decision on the agenda item” as an
intention to force a vote, and it was therefore not neutral wording. If that phrase were deleted,
and agreement reached that any extension of the normal sitting into the evening would be
within reasonable time limits, her group stood ready to accept the draft decision.
724. The Worker Vice-Chairperson reiterated that the changes proposed by the Employers’ group
constituted amendments to a part of the document that was not open to amendments. A
decision to continue a discussion was clearly also a decision; if the Governing Body were to
refer the matter to the Conference – as desired by the Employers’ group – that would also
require a decision to be made. The issue of whether there would be enough time for
Governments that wished to take the floor was indeed an area of concern, particularly since
many Governments had stated their interest in holding the debate urgently, in November.
Since the request to place the item on the agenda of the ordinary session of the Governing
Body as a matter of urgency had not been granted, the Workers’ group had requested a special
session to discuss the matter and make a decision. She cautioned against becoming mired in
issues of wording.
725. The Employer Vice-Chairperson replied that the request to add an item to the agenda of the
ordinary session of the Governing Body had not been submitted to the screening group, which
would have had time to determine the arrangements. The current wording on the
arrangements for the special sessions did not contemplate the possibility of a decision to
continue the discussion. A conclusion of a discussion could not be forced. The rules applicable
to the Governing Body obliged the Chairperson to seek consensus, which normally meant at
least two normal sessions at which to discuss controversial issues without undue pressure. The
Employers’ group objected to the wording on the conclusion of the meeting, which pre-empted
a scenario requiring a vote.
726. Speaking on behalf of the EU and its Member States, the Government representative of
Spain recalled that his group’s strong preference had originally been for the special sessions
to be conducted as normal sessions of the Governing Body, but it had agreed to a Committee
of the Whole in the morning in the interest of consensus. The Governing Body had
endeavoured to fine-tune the aspects set out in paragraph 4 of the document, and the
consensus reached had been reflected in the revised version. He urged the Governing Body to
adopt the decision.
727. A Government representative of Namibia decried the absence of trust among participants.
The Governing Body had to be given a fair opportunity to discuss the important substantive
matters of a potential referral to the ICJ and potential standard-setting. She implored members
to find a way to enable it to discuss those matters.
728. The Chairperson expressed the view that, although there needed to be an outcome of the
special sessions, the reference in the document to a decision in no way pre-empted what that
decision would be.
729. The Employer Vice-Chairperson sought assurances from the Chairperson that he would be
flexible on speaking times, that there would be an inclusive discussion, that the substance
would be discussed, that he would seek consensus and that, if no consensus was reached, the
Governing Body could decide to continue the discussion.
730. The Worker Vice-Chairperson observed that it was inappropriate to seek such guarantees
from the Chairperson. It would be difficult to reach consensus on the complex matters at hand,
 GB.349/PV/Appendix I 145
but the Chairperson would endeavour to achieve it. Any member was entitled to request a
vote, even if there was a clear majority, but the Governing Body had never been forced to hold
a vote. She sought clarification as to whether the absence of a decision by the Governing Body
on the arrangements for the Committee of the Whole would mean that the meeting must take
the form of a normal Governing Body session.
731. The Chairperson assured the Governing Body that the meeting would be run fairly and that
everyone would be heard. It was impossible to predict in advance precisely how the meeting
would unfold, but the discussion would need to be concluded at some point. It would be for
the members of the Governing Body to determine, together and on the basis of the discussion,
any decision to be taken.
732. The Employer Vice-Chairperson noted that a vote had indeed been forced in the past. In
March 2023, a vote was to be taken regarding the referral to the ICJ, against the strongly
expressed wishes of the Employers’ group and a significant number of Governments, but was
ultimately not conducted. She therefore sought assurances that the Chairperson would avoid
a repetition of that situation and would seek consensus before any vote was held. Once her
group had received such assurances, it could agree to the draft decision.
733. A representative of the Director-General (Legal Adviser), responding to the Worker Vice-
Chairperson’s question, recalled that as per standard practice, the new draft decision included
in the revised version of the document had to be either adopted or modified, as the Governing
Body deemed appropriate. He added that a decision on the specific practical arrangements
was required, as the Director-General needed to inform all Member States of those specific
modalities in advance of the special sessions. He explained that the Office had prepared a
revised version of the document to reflect the discussion. The flexibility clause allowing the
Chairperson to make any necessary adjustments, in consultation with the Vice-Chairpersons,
applied to both the morning and afternoon sittings, and thus covered the possibility of
extending the Committee of the Whole to the beginning of the afternoon sitting as well as any
adjustments to speaking times. The Office had considered that, in the light of the flexibility
provided for, no further textual amendments would be necessary.
734. The Worker Vice-Chairperson said that the document was adequate for managing the
arrangements for the special sittings. She reiterated that it was the prerogative of each
member of the Governing Body to request a vote. The Workers’ group would prefer to avoid a
vote, as a decision should be able to be taken where a clear majority was evident.
735. The Employer Vice-Chairperson conceded that, as the Chairperson had provided assurances
that he would conduct the meeting fairly, including with respect to speaking times, and would
seek consensus and a constructive atmosphere based on trust, her group could accept the
draft decision.
736. The Chairperson reiterated that consensus remained the common objective and urged all
members of the Governing Body to work towards that goal.
Decision
737. The Governing Body approved the arrangements for its 349th bis and 349th ter (Special)
Sessions as set out in paragraph 4 of document GB.349/INS/18/5(Rev.1) and requested
that those arrangements be promptly brought to the knowledge of all Member States
and published on the public web page of the Governing Body.
(GB.349/INS/18/5(Rev.1), paragraph 5)
Document No. 29
GB.349bis/INS/1/1, Action to be taken on the request of
the Workers’ group and of 36 governments to urgently
refer the dispute on the interpretation of Convention
No. 87 in relation to the right to strike to the
International Court of Justice for decision in accordance
with article 37(1) of the Constitution – Office
background report, September 2023

 GB.349bis/INS/1/1
To minimize the environmental impact of ILO activities, Governing Body documents published before or after the sessions are not printed. Only documents
issued in-session are printed in limited numbers and distributed to Governing Body members. All Governing Body documents are available at www.ilo.org/gb.
Governing Body
349th bis (special) Session, Geneva, 10 November 2023
Institutional Section INS
Date: 14 September 2023
Original: English
First item on the agenda
Action to be taken on the request of the Workers’
group and of 36 governments to urgently refer the
dispute on the interpretation of Convention No. 87
in relation to the right to strike to the International
Court of Justice for decision in accordance with
article 37(1) of the Constitution
Office background report
This document has been prepared for the purposes of the special meeting of the Governing Body convened under
article 7(8) of the ILO Constitution following the request of the Workers’ group and of 36 governments to refer
urgently the dispute over the interpretation of the Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87), in relation to the right to strike to the International Court of Justice for decision in
accordance with article 37(1) of the Constitution. A background report is appended that provides factual
information on the origins and scope of the long-standing dispute in order to facilitate the discussion and
decision-making of the Governing Body. The Governing Body is invited to take note of the background report and
provide guidance on action to be taken in relation to the referral requests (see the draft decision in paragraph 27).
Relevant strategic objective: None.
Main relevant outcome: Outcome 2: International labour standards and authoritative and effective
supervision.
Purpose of the document
 GB.349bis/INS/1/1 2
Policy implications: None.
Legal implications: None at this stage.
Financial implications: None at this stage.
Follow-up action required: Depending on the decision of the Governing Body.
Author unit: Office of the Legal Adviser (JUR).
Related documents: GB.347/PV(Rev.); GB.347/INS/5; GB.323/INS/5/Appendix III; GB.322/INS/5.
 GB.349bis/INS/1/1 3
 Introduction
1. Under the ILO Constitution and the Standing Orders of the Governing Body, a special meeting
of the Governing Body may be convened when a minimum number of regular members of the
Governing Body so request in writing, or when the Chairperson of the Governing Body
considers it necessary.
2. Concretely, article 7(8) of the Constitution provides that: “… A special meeting [of the Governing
Body] shall be held if a written request to that effect is made by at least sixteen of the
representatives on the Governing Body.”
3. In addition, paragraph 3.2.2 of the Standing Orders of the Governing Body provides as follows:
Without prejudice to the provisions of article 7 of the Constitution of the Organization, the
Chairperson may also convene after consulting the Vice-Chairpersons, a special meeting
should it appear necessary to do so, and shall be bound to convene a special meeting on receipt
of a written request to that effect signed by sixteen members of the Government group, or
twelve members of the Employers’ group, or twelve members of the Workers’ group.
4. Accordingly, the holding of a special meeting is either compulsory, when a written request is
made by 16 regular members regardless of group, by 16 regular Government members or by
12 regular Employer members or 12 regular Worker members, or voluntary when convened at
the Chairperson’s discretion. 1
5. To date, special meetings have been convened on three occasions, in September 1932,
October 1935 and May 1970, all under the discretionary authority of the Chairperson of the
Governing Body. 2
 Chronology
6. By a letter dated 12 July 2023 addressed to the Director-General, the Worker Vice-Chairperson
of the Governing Body formally requested that the long-standing dispute over the
interpretation of the Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87), in relation to the right to strike be referred urgently to the
International Court of Justice for decision, in accordance with article 37(1) of the
ILO Constitution. To this end, the Worker Vice-Chairperson requested the Office to take all
necessary steps to place an item on the agenda of the 349th Session of the Governing Body
(October–November 2023), for discussion and decision, regarding the request to the
International Court of Justice for an advisory opinion, and also requested the Office to prepare
a comprehensive report to facilitate an informed decision by the Governing Body at that
session.
7. In the days and weeks following the receipt of the Worker Vice-Chairperson’s letter, the
Director-General received similar letters on behalf of the Governments of the Member States
1 For more information, see the Office note on the origin and evolution of rules on convening special Governing Body
sessions.
2 For more information, see the Office note on past practice on special Governing Body sessions.
 GB.349bis/INS/1/1 4
of the European Union and Iceland and Norway, and from the Governments of Angola,
Argentina, Barbados, Brazil, Colombia, Ecuador and South Africa requesting that the matter be
discussed urgently at the next session of the Governing Body with a view to deciding on
whether to refer it to the International Court of Justice for an advisory opinion. Echoing the
request of the Workers’ group, the aforementioned Governments asked the Office to prepare
and circulate ahead of the Governing Body’s discussion a background report with all the
necessary elements and to bring their letters to the attention of all constituents of the
Organization.
8. By circular letter dated 17 July 2023, the Director-General informed all Member States of the
referral requests that had thus far been received and indicated that, pending confirmation by
the Officers of the Governing Body, the Office was looking into all necessary arrangements,
including preparing a comprehensive report to be circulated well in advance of the next
Governing Body session.
9. The referral requests were transmitted to the Officers of the Governing Body for confirmation
that the matter would be discussed at the 349th Session, on the understanding that the
tripartite screening group should subsequently be convened to agree on any necessary
adjustments to the agenda. In transmitting the requests to the Officers, the Office clarified
that, as the request at hand related to the implementation of a constitutional procedure, it
should be directly and immediately transmitted to the Governing Body for its consideration
and that the Officers and the other members of the screening group had no authority to block
or delay the transmission of the request to the Governing Body. It also clarified that any
substantive objections to the referral in general, or to the questions to be put to the Court in
particular, could and should be raised during the Governing Body discussion, and not at the
level of the Officers, whose only task at that stage was to confirm that the matter would be
discussed at the next Governing Body session.
10. By letters dated 18 July and 2 August 2023 addressed to the Director-General, the Employer
Vice-Chairperson of the Governing Body expressed her group’s opposition to the requests and
made reference to paragraph 3.1.3 of the Standing Orders of the Governing Body, which
requires consultations with the tripartite screening group before the provisional agenda is
updated. Accordingly, the Employer Vice-Chairperson requested the Director-General to place
an item on the agenda of the 350th Session (March 2024) regarding proposals on further steps
to ensure legal certainty on the interpretation of the “right to strike” in the context of
Convention No. 87. She also asked the Office to prepare a note that examines in detail all
possible proposals to resolve the existing interpretation issue through social dialogue within
the framework of established ILO procedures and rules. In his reply dated 3 August 2023, the
Director-General indicated that since the proposal of the Employers’ group did not invoke a
constitutional procedure but rather sought to add a new item to the agenda of the March 2024
Governing Body session, it would need, as per standard practice, to be considered by the
screening group when it reviewed the provisional agenda of that session.
11. By circular letter dated 4 August 2023, the Director-General informed all Member States of one
additional referral request, of the letter of 2 August of the Employer Vice-Chairperson and of
the Office note dated 13 July 2023 containing legal clarifications on the procedure to be
followed.
12. The Officers held two meetings, on 2 and 9 August 2023, regarding the process. At the second
meeting, the attention of the Officers was drawn to the fact that the conditions of article 7(8)
of the Constitution had been met, thus rendering any continued discussion about process
unnecessary, since in essence, the referral request related to the implementation of a
 GB.349bis/INS/1/1 5
constitutional procedure set out in article 37(1) and, therefore, the Officers had no authority to
withhold or delay its transmission to the Governing Body for examination and decision. At the
same meeting, the Chairperson received a letter dated 9 August 2023 signed by the 14 regular
Worker members of the Governing Body requesting him to convene a special meeting in
accordance with paragraph 3.2.2 of the Standing Orders in the event that the Officers were
unable to reach agreement.
13. In light of these considerations, it was determined that a special meeting would be held in late
autumn in conjunction with the 349th Session of the Governing Body, in accordance with the
original request of the Workers’ group and of a number of governments that an additional
item be included on the agenda of that session. 3
14. By a circular dated 10 August 2023, the Director-General informed all Member States of two
additional referral requests and of the decision taken at the end of the second Officers’ meeting
to hold a special meeting in late autumn, in conjunction with the 349th Session of the
Governing Body, regarding the referral request of the Workers’ group and of a number of
governments. The Director-General further indicated that the Office’s comprehensive report
to facilitate the forthcoming Governing Body discussion was expected to be circulated to all
Member States by 8 September and that any comments received by 6 October would be
summarized and made available ahead of the special meeting.
15. Between 25 August and 15 September, the Office received identical letters from six national
employers’ organizations drawing its attention to the failure of their respective governments
to undertake tripartite consultations, as required under the Tripartite Consultation
(International Labour Standards) Convention, 1976 (No 144), with respect to the referral
request addressed to the ILO, and requesting that the Director-General intervene urgently to
remind the respective governments of the need to comply with their obligations under that
Convention. The Office forwarded copies of those communications to the governments
concerned with the indication that, in accordance with established practice, the observations
of the employers’ organizations, as well as any comments that the governments might wish to
make on the matters raised in those observations, would be brought to the attention of the
Committee of Experts on the Application of Conventions and Recommendations at its next
session (November–December 2023). One of those employers’ organizations subsequently
withdrew its communication.
16. By email dated 20 August 2023, the Secretary-General of the International Organisation of
Employers transmitted a “Note on procedural matters regarding the inclusion of an urgent
item in the agenda of the Governing Body” detailing the Employers’ group’s position as follows:
(a) placing an urgent item on the agenda can only be done through the screening group and
therefore the screening group procedure should not be bypassed;
(b) article 37 matters cannot be treated in the same way as representations under article 24
and complaints under article 26;
(c) article 7(8) of the Constitution for special sessions is not applicable to article 37(1) matters,
and in any case there is no real urgency or necessity for a special meeting;
3 Confirmation was subsequently sought and received from those governments that their requests should be understood as
referring to an urgent Governing Body discussion regardless of the specific format this discussion might take for procedural
reasons.
 GB.349bis/INS/1/1 6
(d) convening a special meeting under paragraph 3.2.2. of the Standing Orders is not justified
or appropriate, and in any case there must be agreement on the agenda of that special
session by the screening group;
(e) the past referrals under article 37(1) are so different that they are not at all comparable.
17. In its reply dated 29 August 2023, the Office provided clarifications on the following points:
(a) the authority of the Officers and of the tripartite screening group is limited in relation to
the implementation of constitutional procedures;
(b) the compulsory holding of a special meeting under article 7(8) of the Constitution and
paragraph 3.2.2 of the Standing Orders is self-triggered and the only condition to which
it is subject is the minimum number of members submitting the request;
(c) the six referrals to the Permanent Court of International Justice are relevant and could
unquestionably be considered to serve as a precedent.
The Office concluded by indicating that the applicable legal framework had been scrupulously
observed, that the compulsory holding of a special meeting had been confirmed by the Officers
on the basis of article 7(8) of the Constitution since the threshold of 16 regular members
making such a request had been attained, and that the Chairperson was bound to convene a
special meeting since the 14 regular Worker members had made a written request to that
effect, as provided for in paragraph 3.2.2 of the Standing Orders.
18. By circular letter dated 12 September 2023, the Director-General informed all Member States
of two additional referral requests, and of a communication received from the Government of
the Swiss Confederation in which it recalled that its position with regard to the possible referral
of the dispute around Convention No. 87 to the International Court of Justice was that the
International Labour Conference should approve the referral and the question or questions to
be put to the Court, that the relevant discussions should be open to all Member States, and
that the States parties to Convention No. 87 must be involved in the discussions concerning
the question or questions to be put to the Court. Moreover, the Swiss Government requested
that the Officers of the Governing Body schedule a discussion at the Governing Body in the
form of a Committee of the Whole.
19. At a meeting held on 13 September 2023, the tripartite screening group decided that the
special meeting would be held on 10 November 2023, immediately after the closure of the
349th Session, with only one item on its agenda: Action to be taken on the request of the Workers’
group and of 36 governments to urgently refer the dispute on the interpretation of Convention No.
87 in relation to the right to strike to the International Court of Justice for decision in accordance
with article 37(1) of the Constitution.
20. At the meeting of the screening group, the Employer Vice-Chairperson of the Governing Body
handed the Chairperson of the Governing Body a letter dated 12 September and signed by the
14 regular members of the Employers’ group requesting a special meeting under paragraph
3.2.2 of the Standing Orders of Governing Body on the urgent inclusion of a standard-setting
item on the right to strike on the agenda of the 112th Session (June 2024) of the International
Labour Conference. The purpose of the special meeting would be to pave the way for the
adoption of a Protocol to Convention No. 87 on the right to strike, or on industrial action more
broadly, which would authoritatively determine the scope and limits of the right to strike in the
context of Convention No. 87 and would thus settle the ongoing dispute.
21. By circular letter dated 15 September 2023, the Director-General informed all Member States
that the 349th bis (special) Session of the Governing Body would be held on 10 November 2023
 GB.349bis/INS/1/1 7
to discuss the referral request of the Workers’ group and of 36 governments, and also that a
request had been received from the 14 regular Employer members of the Governing Body for
a special meeting for the urgent inclusion of a standard-setting item on the right to strike on
the agenda of next year’s Conference.
 Office background report
22. As specifically requested in the referral request of the Workers’ group and of a number of
governments, the Office has prepared a background report to facilitate the deliberations of
the Governing Body. The report, which is appended, describes the origins and scope of the
dispute and the legal and procedural aspects of a possible referral to the International Court
of Justice for an advisory opinion. 4 Its sole purpose is to provide information and explain the
various aspects of the matter to enable the tripartite constituents to make an informed
decision on a possible referral to the International Court of Justice. It does not provide
substantive answers to the long-standing controversy concerning the right to strike, nor does
it assess the merits of the opposing views, or express any views on the advisability of a referral
to the Court.
23. The background report focuses on the two key aspects of the dispute – the interpretation of
Convention No. 87 and the mandate of the Committee of Experts on the Application of
Conventions and Recommendations – and provides the factual context for the ongoing debate.
It also offers brief explanations of the questions that might be put to the Court for an advisory
opinion and the procedural steps that that would entail.
24. The report was communicated to all ILO Member States on 31 August 2023, together with an
invitation to transmit before 6 October 2023 any comments they may wish to make in respect
of the issues at hand after consulting the most representative employers’ and workers’
organizations. A summary of the comments received will be published as a separate document.
 Next steps
25. Against this background, the special meeting of the Governing Body will examine the request
for the urgent referral of the interpretation dispute to the International Court of Justice, that
is, whether or not it is necessary to bring the matter before the Court with a view to obtaining
an advisory opinion and, if so, which question or questions should be put to the Court with a
view to settling the dispute. Accordingly, the special meeting will offer an opportunity for a full
exchange of views and an informed decision on what, if anything, needs to be done, including
but not limited to a request for an advisory opinion from the International Court of Justice.
26. It is believed that as currently worded, the item on the agenda of the special meeting invites
reflection and allows scope to debate all possible outcomes, for instance: a referral to the
International Court of Justice, whether immediate or conditional; the continuation of the
4 The report should be read in conjunction with the following documents: The Standards Initiative – Appendix III: Background
Document for the Tripartite Meeting on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87),
in relation to the Right to Strike and the Modalities and Practices of Strike Action at National Level (revised) (Geneva, 23–25 February
2015), GB.323/INS/5/Appendix III, paras 1–59; GB.322/INS/5, paras 7–53 and GB.347/INS/5, paras 9–27.
 GB.349bis/INS/1/1 8
discussion and postponement of a decision until a future meeting; or agreement on means of
pursuing a settlement of the interpretation dispute other than a referral to the Court.
 Draft decision
27. Further to the request of the Workers’ group and of 36 governments to urgently refer
the dispute on the interpretation of the Freedom of Association and Protection of the
Right to Organise Convention, 1948 (No. 87), in relation to the right to strike to the
International Court of Justice for decision in accordance with article 37(1) of the
Constitution, the Governing Body decided to
[decision to be taken at the end of the special meeting]
 GB.349bis/INS/1/1 9
 Appendix
The dispute on the interpretation of Convention No. 87 in relation
to the right to strike – Background report
Executive summary
For over 70 years, the ILO Committee of Experts on the Application of Conventions and
Recommendations, consisting of independent experts responsible for monitoring the application of
ratified Conventions by Member States, has taken the view that the right to strike is a corollary to the
right to freedom of association, and that, as such, it is recognized and protected by the Freedom of
Association and Protection of the Right to Organise Convention, 1948 (No. 87).
In around 1989, the Employers’ group began to question the Committee of Experts’ interpretation of
Convention No. 87 and to challenge the Committee’s authority to interpret Conventions.
The controversy gradually intensified and in 2012 gave rise to a major institutional crisis, with the
Conference Committee on the Application of Standards being prevented for the first time from
exercising its supervisory functions.
There is a widespread sentiment that the persistent disagreement over such key aspects of the ILO’s
normative mandate impacts negatively on the credibility of the supervisory system and the ILO’s
reputation as a standard-setting organization.
Under the applicable rules, a legal question arising within the scope of ILO activities, such as the
interpretation of an international labour Convention, may be referred to the International Court of
Justice for an advisory opinion either by the International Labour Conference or by the Governing
Body, which has been specifically authorized by the Conference to make such a referral.
The legal questions on which the two non-governmental groups of the ILO disagree and which could
potentially be put to the Court are: first, whether the right to strike may be considered to flow from
Convention No. 87 as an internationally recognized workers’ right even though not explicitly provided
for in the Convention; and second, whether the Committee of Experts has been acting within its
powers when affirming that the right to strike is inherent to freedom of association and thus protected
by Convention No. 87 or when reviewing whether limits or conditions for the exercise of the right to
strike may be such as to impede the exercise of the right to freedom of association contrary to the
Convention.
If the Governing Body decides to refer the matter to the International Court of Justice, this would be
the seventh time that the ILO has requested an advisory opinion under article 37 of its Constitution
but only the second time with regard to the interpretation of an international labour Convention.
This report provides an overview of the underlying issues to help the tripartite constituents to make
an informed decision on a possible referral to the International Court of Justice.
 GB.349bis/INS/1/1 10
Contents
Page
I. Understanding the long-standing dispute ..................................................................................... 11
I.1. The two opposing views at a glance ....................................................................................... 11
I.2. Chronology of the legal dispute .............................................................................................. 13
II. The core elements of the dispute .................................................................................................... 21
II.1. ILO Convention No. 87 and the right to strike ...................................................................... 21
II.1.1. The negotiating history of Convention No. 87 ........................................................... 21
II.1.2. Subsequent practice: ILO supervisory bodies and the right to strike .................... 24
II.1.3. Rules and practice of treaty interpretation ................................................................ 30
II.2. The mandate of the Committee of Experts ........................................................................... 32
II.2.1. Establishment and evolution of the Committee’s responsibilities .......................... 32
II.2.2. Interpretative functions of ILO supervisory bodies and secretariat....................... 36
II.2.3. Implied powers of human rights monitoring bodies: A broader debate............... 38
III. The question(s) to be put to the Court ........................................................................................... 39
IV. Possible next steps ............................................................................................................................ 41
V. Concluding observations .................................................................................................................. 43
Annexes
I. Draft Governing Body resolution .................................................................................................... 45
II. Interpretation requests filed with the Permanent Court of International Justice
(1922–32) under article 14 of the Covenant of the League of Nations ...................................... 47
III. Advisory procedure before the International Court of Justice .................................................... 49
 GB.349bis/INS/1/1 11
I. Understanding the long-standing dispute
I.1. The two opposing views at a glance
1. The dispute between the ILO Employers’ and Workers’ groups, which has lasted more than
30 years, has two dimensions: one relates to the interpretation per se – whether literal or
dynamic – of certain provisions, in particular Articles 3 and 10, of Convention No. 87, and the
other concerns the authority of the Committee of Experts to engage in such interpretation and
the limits of any such authority.
2. On the question of the interpretation of Convention No. 87, the Employers’ group advances
two main arguments: first, that Convention No. 87 does not contain any provision whose
ordinary or literal meaning would imply – in accordance with the customary rule of treaty
interpretation enshrined in article 31 of the Vienna Convention on the Law of Treaties – the
existence of a right to strike; and, second, that the preparatory work that led to the adoption
of Convention No. 87 – which, under article 32 of the Vienna Convention, may serve as
supplementary means of interpretation – confirms that the intention of the drafters was clearly
not to include the right to strike within the scope of Convention No. 87. 5
3. As regards the competence of the Committee of Experts to interpret Conventions, the
Employers’ group’s position is that, despite the Committee’s attempts to de facto widen its
mandate, since its establishment its tasks have been purely technical and not judicial.
Moreover, the Employers’ group contends that the Committee’s findings cannot be regarded
as binding pronouncements since, under article 37 of the ILO Constitution, only the
International Court of Justice may give a binding interpretation of international labour
standards. The Employers’ group therefore consistently objects to what it considers a
“dogmatic” acceptance by the Committee of Experts of a universal, explicit and detailed right
to strike and the Committee’s attempts to produce new “jurisprudence” despite lacking lawmaking
power or the authority to issue binding rulings on the application of national laws and
regulations. 6 According to a publication of the International Organisation of Employers:
[A] right to strike is not provided for in ILO Conventions 87 or 98 – nor did the tripartite
constituents intend there to be one at the time of the instruments’ creation and adoption …
Despite this background, the ILO Committee of Experts on the Application of Conventions and
Recommendations (CEACR) maintains that the right to strike is based on Art. 3 of Convention
No. 87 … and Art. 10 … On the basis of this interpretation, every year, the CEACR looks into
numerous cases involving specific national provisions or practices restricting strike action. In
approximately 90 to 98 per cent of these cases, the Experts conclude that restrictions on strike
action, be they de facto or de jure, are not compatible with the Convention. Thus they have
formulated a comprehensive corpus of minutely-detailed strike law which amounts to a farreaching,
almost unrestricted, freedom to strike. 7
4. The Workers’ group defends diametrically opposite positions on both issues. While agreeing
that the interpretation rules set out in the Vienna Convention represent customary
international law and therefore apply to Convention No. 87, the Workers’ group focuses on the
possibility for “dynamic” interpretation afforded by article 31 of the Vienna Convention, insofar
5 International Labour Conference (ILC), 81st Session, 1994, Record of Proceedings, 25/31–35. See also Alfred Wisskirchen, “The
standard-setting and monitoring activity of the ILO: Legal questions and practical experience”, International Labour Review
144, No. 3 (2005): 283–285.
6 ILC, 81st Session, 1994, Record of Proceedings, 28/8–10. See also Wisskirchen, 271–273.
7 IOE, Do ILO Conventions 97 and 98 recognise a right to strike?, October 2014, pp. 1–2.
 GB.349bis/INS/1/1 12
as it requires treaty provisions to be interpreted in their context and in the light of the object
and purpose of the treaty. Accordingly, the Workers’ group contends that the terms of
Convention No. 87 guaranteeing the right to organize must be understood in the context of
the relevant provisions of the Preamble to the ILO Constitution and of the Declaration of
Philadelphia and taking into account any subsequent practice that establishes general
agreement regarding their interpretation, such as the consistent case law of the bodies
responsible for overseeing the application of the Convention. In addition, the Workers’ group
argues that no recourse to the preparatory work is needed, as the conditions of the Vienna
Convention are not met; that is to say, the interpretation suggested in accordance with article
31 does not leave the meaning ambiguous or obscure nor does it lead to a result that is
manifestly absurd or unreasonable. 8
5. With respect to the mandate of the Committee of Experts, the Workers’ group considers that
all ILO bodies involved in supervision necessarily interpret the meaning of standards, and that
therefore the Committee of Experts – as well as Commissions of Inquiry examining article 26
complaints, tripartite committees examining article 24 representations and the Committee on
the Application of Standards – may occasionally perform interpretative functions, subject to
any binding interpretation being issued by the International Court of Justice. 9
6. As for the possible way forward, the Employers’ group often recalls that it ”proposed to discuss
the question of whether a right to strike should be included in an ILO instrument at the
[International Labour Conference] [but] there was no follow up” and notes that this is “despite
the fact that, with its unique tripartite structure, the ILO would be the appropriate and
legitimate arena for solving this issue”. 10 At the 344th Session of the Governing Body (March
2022), while discussing the work plan on the strengthening of the supervisory system and
proposals to ensure legal certainty, the Employer spokesperson stated that:
[A]rticle 37 [did not provide] a viable way forward, as the right to strike was a multifaceted and
complex issue that could not be separated from the widely diverging industrial relations
systems and practices in ILO Member States. It was doubtful that recourse to the options under
article 37 could achieve legal certainty, as it was unclear how external and judicial bodies could
possibly develop a solution that would be widely accepted by ILO constituents on such a
complex matter … There was significant room for dialogue and cooperation among those
stakeholders to move closer to consensus. Referral to external and judicial bodies, the
International Court of Justice or an ILO tribunal should not occur unless all possibilities of
dialogue between the main ILO actors competent with respect to ILO standards had been
exhausted, which was not currently the case. 11
7. Addressing the same question of legal certainty one year later at the 347th Session of the
Governing Body (March 2023), the Employer spokesperson reiterated that “referral to the
International Court of Justice should be a last resort. It would be preferable to seek internal
solutions that received wide support from the constituents”. 12
8. In contrast, the Workers’ group argues that those who wish to continue challenging the right
to strike have two options under the ILO Constitution: to seek a referral of the matter by the
ILO Governing Body to the International Court of Justice for an advisory opinion (article 37(1) of
8 ITUC, The right to strike and the ILO: The legal foundations, March 2014, pp. 74–88.
9 ITUC, pp. 35–40.
10 IOE, p. 11.
11 Minutes of the 344th Session of the Governing Body of the International Labour Office, GB.344/PV, para. 139.
12 GB.347/PV(Rev.), para. 231.
 GB.349bis/INS/1/1 13
the ILO Constitution) or to agree to the establishment of an internal, independent tribunal to
provide for the expeditious determination of the dispute or question relating to the
interpretation of Convention 87 (article 37(2)). 13 When the question of implementing article 37
of the Constitution came before the Governing Body in March 2022, the Worker spokesperson
indicated that “[t]he only way to solve the persisting interpretation dispute concerning
Convention No. 87 and the right to strike, in a manner that provided legal certainty and was in
line with the ILO Constitution, was to refer it to the International Court of Justice”. 14 A year
later, at the March 2023 session of the Governing Body, the Worker spokesperson stated that:
The ILO had a conflict resolution mechanism in its own Constitution. … [T]oo much time had
already been devoted to the matter and [there was] no merit in continuing social dialogue on
the matter when consensus had not been achievable. Consensus could not be achieved if
positions were mutually exclusive: members either accepted there was a relationship between
Convention No. 87 and the right to strike – as previously established not only by the Committee
of Experts, but also by the tripartite Committee on Freedom of Association – and respected the
authority of the ILO’s supervisory system and the Committee of Experts – or they did not. Some
disagreements could not be resolved through dialogue but only by turning to an authority. The
ILO had such an authority in its Constitution, and that was the ICJ. … The ILO should make good
use of the conflict resolution it had in its system. 15
I.2. Chronology of the legal dispute
9. Although the dispute over the interpretation of Convention No. 87 in relation to the right to
strike is commonly believed to have emerged in the last ten years, in reality it has fuelled
political and legal debate for over half a century, mainly within the Conference Committee on
the Application of Standards. It is characterized by firm and uncompromising positions that
put to the test the basic principles of the ILO’s supervisory system and constitutional order.
10. The first instance of the scope of Convention No. 87 in relation to the right to strike being
questioned can be traced back to 1953, when the Employer spokesperson of the Committee
on Freedom of Association stated that there was “no international instrument regulating the
right to strike which would authorise bodies related to the I.L.O. to pass judgment on the
national regulations in force in any given country”. 16 This point was next raised during the
discussions of the Committee on the Application of Standards at the 58th Session of the
Conference (1973) concerning the right to strike in the public sector. The Worker member of
Japan indicated that, “while it was often stated that the right to strike was not protected by
international labour Conventions, Convention No. 87 did provide for the right of trade unions
to organize their activities and formulate their programmes, and thus implicitly guaranteed
the right to strike”. In contrast, the Employer member of Japan stated that “in no case had the
13 ITUC, p. 4.
14 GB.344/PV, para. 145. In the same vein, the representative of the group of industrialized and market economy countries
expressed the view that “[t]ripartite consensus-based modalities had thus far only generated temporary political consensus
and could not provide the requisite legal certainty to ensure the effective and efficient functioning of the supervisory system.
Efforts should therefore be made to seek a resolution under article 37 of the Constitution. … [The] group looked forward to
engaging in a tripartite process on the formulation of a balanced question to be referred to the International Court of Justice
and on the process for compiling the dossier” (paras 150–151).
15 GB.347/PV/(Rev.), para. 278. Along the same lines, the representative of the European Union and its Member States
considered that “[t]he protracted disagreement on the right to strike, in the context of Convention No. 87, should be resolved
under the provisions of article 37(1). The ICJ was well placed to examine that dispute, and … the Governing Body [should]
refer the dispute without delay.” (para. 254). Similar views were expressed by the representatives of the group of Latin
American and Caribbean countries (para. 247) and the group of industrialized and market economy countries (para. 250).
16 Minutes of the 121st Session of the Governing Body (March 1953), p. 38.
 GB.349bis/INS/1/1 14
Committee on Freedom of Association ever referred to the right to strike as an absolute right,
particularly in essential services and in the public service”, while the Government member of
Switzerland indicated that the right to strike was not covered under Convention No. 87, as
shown by the preparatory work leading to its adoption. 17
11. In 1986, in the context of a discussion concerning the application of Convention No. 87 by the
Syrian Arab Republic, the Government member of the German Democratic Republic recalled
that:
[N]o mention was made of the right to strike in any of the provisions of the Convention. Further,
the Committee of Experts had noted that the prohibition of strikes was not in conformity with
Article 3 of the Convention. This conclusion was not based on the text of the Convention but
rather should be considered as a personal interpretation of the Committee of Experts. Such a
method of work should be rejected because it was in direct contradiction with the principle
which required governments to report upon the instruments they had ratified. Any other
conclusion would lead to uncertainty and legal insecurity which would dissuade new
ratifications because States would be unable to know in advance the interpretations which
would be given to the Conventions. 18
12. In 1989, the Employer member of Sweden of the Committee on the Application of Standards
observed that:
[O]nly one body – the International Court of Justice – could make authoritative interpretations
of international labour Conventions. … [T]he role of the International Court of Justice as the
ultimate arbiter should always be borne in mind. A Convention had to be interpreted in line
with the principles laid down in the Vienna Convention on [the Law of] Treaties (1969). … [T]his
year's report of the Committee of Experts unfortunately contained a number of overinterpretations,
especially regarding basic human rights Conventions and in particular
Convention No. 87. 19
13. At the closure of the general discussion at the same session, the representative of the
Secretary-General stated, inter alia, that:
[I]t was within the power of governments disagreeing with the interpretations given by the
supervisory bodies to have recourse to the International Court of Justice. In two cases, the
Committee of Experts had drawn attention to this option. On the questions of the right to strike
and essential services, it could be said that the jurisprudence of the supervisory bodies was
consistent. On the right to strike, both the Committee of Experts and the Committee on
Freedom of Association had considered this right to be one of the essential means available to
workers and their organisations to promote and to defend their economic and social interests.
This principle had always been supported by both supervisory bodies which, over time, had
fixed the conditions in which this right could be exercised. 20
14. In 1990, part of the general discussion at the Committee on the Application of Standards was
devoted to the relationship between the supervisory bodies and the interpretation of
Conventions. In reacting to the Committee of Experts’ position that its views on the content
and meaning of provisions of Conventions should be considered as valid and generally
recognized insofar as they were not contradicted by the International Court of Justice, and that
17 ILC, 58th Session, 1973, Record of Proceedings, p. 544, para. 26.
18 ILC, 72nd Session, 1986, Record of Proceedings, 31/33.
19 ILC, 76th Session, 1989, Record of Proceedings, 26/6, para. 21.
20 ILC, 76th Session, 1989, Record of Proceedings, 26/6–7, para. 23.
 GB.349bis/INS/1/1 15
the acceptance of those considerations was indispensable for the certainty of law and the
principle of legality, the Employer members considered that:
[T]he opinion of the Committee of Experts that its evaluations are binding unless corrected by
the International Court of Justice, could not be correct. … A legal reason was that this was
contradicted by the ILO Constitution and by the Standing Orders of the Conference concerning
the submission of governments’ reports and the terms of reference of the Conference
Committee, which had an independent competence to examine reports.
…
In this connection, the Employers’ members recalled that they had a different interpretation
from the Experts, for instance on the question of the right to strike. Although this question was
not expressly settled by any Convention or Recommendation (except the very special case dealt
with in the Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92)), the Experts
had progressively deduced from Convention No. 87 a right to strike which was hardly limited.
The Employers’ members could not accept this, not only because they considered the Experts’
opinion questionable in law but also because the issue touched directly on employers’
interests. 21
15. In the following three years, the Employer members of the Committee on the Application of
Standards regularly put on record their principled objection to the interpretative function of
the Committee of Experts, in particular as regards Convention No. 87 and the right to strike.
For instance, in 1991, the Employer members stated that:
[T]he Experts were required to follow the criteria of interpretation laid down in the 1969 Vienna
Convention on the Law of Treaties. The criteria of interpretation contained in this instrument
cannot be set aside by simply recognising that there is a similarity of opinion between different
ILO bodies, as is done for instance with the Committee on Freedom of Association … The
application of the Vienna Convention was uncontested in international law … Another
uncontested principle of international law was in dubio mitius (i.e. if the wording of a treaty
provision is not clear, in choosing between several admissible interpretations, the one which
involves the minimum of obligations for the Parties should be adopted). The Employers’
members did not insist on this principle for its own sake, but because of its concrete bearing
on the manner in which important issues are interpreted and applied in practice, such as the
right to strike, which was not even written into the relevant Convention but had become the
subject of minutely elaborated principles derived by way of interpretation. 22
In the same vein, the Employer member of the United States noted that:
[I]t was inappropriate for the Experts to function as a supranational legislature if their
interpretation was not within the contemplation of the tripartite Committee which drafted the
Convention. It was in acting without restraint that the Committee of Experts might introduce
the very legal uncertainty which it considered as undermining the “proper functioning of the
standard-setting system of the ILO”. … It was inappropriate for the Committee of Experts to
adopt in full the decisions of the Committee on Freedom of Association, which were founded
on general principles and were not limited to the terms of the Freedom of Association and
Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and
Collective Bargaining Convention, 1949 (No. 98), thus extending the scope of these Conventions
beyond what was intended by their drafters, as reflected in their texts and legislative history. 23
21 ILC, 77th Session, 1990, Record of Proceedings, 27/6, paras 22–23.
22 ILC, 78th Session, 1991, Record of Proceedings, 24/6, para. 26.
23 ILC, 78th Session, 1991, Record of Proceedings, 24/6, para. 28.
 GB.349bis/INS/1/1 16
16. At the same session, the Government member of Denmark, speaking on behalf of the Nordic
Governments, expressed the view that:
[P]erhaps the Committee of Experts went too far when it suggested that a government which
did not agree with its interpretation would have to obtain a legally binding opinion from the
International Court of Justice, [since] this obligation was not within the spirit of article 37 of the
ILO Constitution. 24
17. In 1993, during a discussion of the advisability of setting up an in-house tribunal under article
37(2) of the Constitution, the Employer members of the Committee on the Application of
Standards recalled that “[t]he report of the Conference Committee that had led to the creation
of the Committee of Experts stated that it would have no judicial capacity or competence to
give interpretations of Conventions” and also indicated that their position had remained
consistent, because as early as 1953 the “Employers’ spokesman, Pierre Waline, had clearly
rejected the deduction of a detailed right to strike from Conventions Nos. 87 and 98“. Further,
they reiterated that “Convention No. 87 does not regulate the right to strike [as] [t]he text of
the Convention did not mention it, and the preparatory work showed the Conference had
reached no consensus on the matter”. 25
18. Also at the 1993 session, the Worker members expressed the view that:
[T]he ordinary meaning of the terms of a Convention concerning human rights (such as
Convention No. 87) must be found in their context and in the light of the object and purpose of
the Convention. Human rights Conventions must necessarily be interpreted progressively as
living instruments. 26
and observed that:
The right to strike was inseparable from the notion of freedom of association … [V]arious
principles of freedom of association were regarded as part of customary law; the Committee
of Experts’ interpretation of the right to strike in Convention No. 87 had been accepted over
many years, and this made it relevant under article 31 (3) (c) of the Vienna Convention. … [T]he
right to strike had to be seen in the light of the principle of ubi jus ibi remedium as a last resort
means of exercising the substantive rights of Conventions Nos. 87 and 98. 27
19. In 1994, the publication of the Committee of Experts’ General Survey on Conventions Nos 87
and 98 provided an opportunity for a fresh exchange of views on the right to strike within the
Committee on the Application of Standards. 28 The Employer members indicated that “they
absolutely could not accept that the Committee of Experts deduced from the text of the
Convention a right so universal, explicit and detailed”. 29 Making specific references to the
Conference proceedings that had led to the adoption of Conventions Nos 87 and 98 and of
Recommendation No. 92, the Employer members stated that:
[I]t was incomprehensible to the Employers that the supervisory bodies could take a stand on
the exact scope and content of the right to strike in the absence of explicit and concrete
provisions on the subject. … The Committee of Experts had put into practice here what was
called in mathematics an axiom and in Catholic theology a dogma: that is complete,
unconditional acceptance of a certain and exact truth from which everything else was
24 ILC, 78th Session, 1991, Record of Proceedings, 24/7, para. 33.
25 ILC, 80th Session, 1993, Record of Proceedings, 25/5, paras 20, 21; 25/9, para. 58.
26 ILC, 80th Session, 1993, Record of Proceedings, 25/5, para. 23.
27 ILC, 80th Session, 1993, Record of Proceedings, 25/10, para. 61.
28 ILC, 81st Session, 1994, Record of Proceedings, 25/31–41, paras 114–148.
29 ILC, 81st Session, 1994, Record of Proceedings, 25/32, para. 116.
 GB.349bis/INS/1/1 17
derived. … [T]he right to strike had not been forgotten during the elaboration of these
instruments: attempts had been made to incorporate this right into the Conventions but had
been rejected in the absence of a majority in favour. … As regards the statement of the Workers’
member of Poland that Conventions should be interpreted in a dynamic and functional
manner, the Employers’ members saw in this an admission that there was no legal basis for the
right to strike in ILO instruments. 30
20. Countering those arguments, the Worker members stated once again that:
[T]he right to strike was an indispensable corollary of the right to organize [that was] protected
by Convention No. 87 and by the principles enunciated in the ILO Constitution. Without the
right to strike, freedom of association would be deprived of its substance. It was enough to go
through the preparatory works of Convention No. 87, the multiple conclusions and
recommendations of the Committee on Freedom of Association and the successive general
surveys elaborated by the Committee of Experts on this subject to be convinced of this. In its
1994 survey, the Committee of Experts formally and unambiguously confirmed this
relationship by dedicating a separate chapter to the principles and modalities of the right to
strike. 31
21. In the ensuing 15 years, the Employer members continued to systematically raise reservations
on the Committee of Experts’ interpretation of Convention No. 87 in relation to the right to
strike. For instance, in 1999, the Employer members of the Committee on the Application of
Standards stated that:
[T]hey entertained substantial doubts concerning the interpretation of the Conventions, which
had deviated widely from their wording. It was therefore small consolation that the only
binding interpretation of legal texts could be made by the International Court of Justice. In view
of the absence of any decision by that Court, there was therefore no generally binding
interpretation of the two Conventions. 32
22. In 2002, the Employer members expressed the view that:
[I]t was misleading in many respects to think that the individual recommendations made by
the Committee on Freedom of Association could create a jurisprudence on the right to strike.
The Employer members had repeated throughout the last 12 years, but also going back to
1953, that a right to strike in labour disputes could not be derived from Conventions Nos. 87
and 98 concerning freedom of association and collective bargaining. This view was based on
three grounds: the wording of the standards, the correct application of binding rules of
interpretation concerning international treaties, and the documents containing evident
declarations on their scope when the standards or instruments were elaborated and
adopted. 33
23. In the same vein, in 2004, the Employer members recalled that:
[N]othing should be interpreted which was not to be interpreted. The International Court of
Justice had also found that the Vienna Convention upheld this principle. The basis of
interpretation was the text itself, i.e. the wording of a Convention according to its usual and
natural meaning under the so-called “ordinary meaning rule”. The preparatory materials
(travaux préparatoires) to a Convention were only of importance if the wording of a text
remained unclear. 34
30 ILC, 81st Session, 1994, Record of Proceedings, 25/32–35, paras 119, 124–125.
31 ILC, 81st Session, 1994, Record of Proceedings, 25/38, para. 136.
32 ILC, 87th Session, 1999, Record of Proceedings, p. 23/37, para. 114.
33 ILC, 90th Session, 2002, Record of Proceedings, p. 28/14, para. 48.
34 ILC, 92nd Session, 2004, Record of Proceedings, 24/20, para. 79,
 GB.349bis/INS/1/1 18
while in 2010, they “once again asked the Committee of Experts to reconsider their
interpretation on the right to strike that had progressively expanded since 1959 and that had
no basis in Conventions Nos 87 and 98”. 35
24. In 2012, the persistent disagreement over the Committee of Experts’ interpretation of
Convention No. 87 in relation to the right to strike caused an institutional crisis. For the first
time since the establishment of the Committee on the Application of Standards, the Employers’
and Workers’ groups could not agree on the list of cases of non-compliance to be examined by
the Committee. The Employer members objected in the strongest terms to the interpretation
by the Committee of Experts of Convention No. 87 and the right to strike in its General Survey
of 2012, and indicated that “their views and actions in all areas of ILO action relating to the
Convention and the right to strike would be materially influenced”. 36 Accordingly, without any
clarification regarding the mandate of the Committee of Experts with respect to the General
Survey, “they could not accept the supervision of Convention No. 87 cases that included
interpretations by the Committee of Experts regarding the right to strike”. 37 However, the
Workers’ group considered that this was not acceptable, 38 and as a result, the Committee on
the Application of Standards ended its work without discussing any cases of non-compliance. 39
25. In November–December 2012, in view of the direct challenge to its authority and the
Employers’ group’s request that the report of the Committee of Experts should include a
disclaimer regarding the right to strike, the Committee of Experts presented its views
regarding its mandate. It considered, in particular, that monitoring the application of
Conventions:
logically and inevitably requires an assessment, which in turn involves a degree of
interpretation of both the national legislation and the text of the Convention. … The
Committee’s combination of independence, experience, and expertise continues to be a
significant further source of legitimacy within the ILO community. … [I]t has been consistently
clear that its formulations of guidance … are not binding. … The Committee’s non-binding
opinions or conclusions are intended to guide the actions of ILO member States by virtue of
their rationality and persuasiveness [and] their source of legitimacy …. 40
The Committee concluded that a disclaimer was not necessary, as it “would interfere in
important respects with its independence”. 41
26. At the 102nd Session of the Conference (2013), a note was inserted in the conclusions of all
individual cases examined by the Committee on the Application of Standards in relation to the
application of Convention No. 87 stating: “The Committee did not address the right to strike in
35 ILC, 99th Session, 2010, Provisional Record, Part I/18, para. 57.
36 ILC, 101st Session, 2012, Record of Proceedings, Part I/22, para. 82.
37 ILC, 101st Session, 2012, Record of Proceedings, Part I/36, para. 150.
38 ILC, 101st Session, 2012, Record of Proceedings, Part I/41, para. 171.
39 On the institutional crisis of 2012, see, among others: Françis Maupain, “The ILO supervisory system: A model in crisis?”,
International Organizations Law Review 10, No. 1 (2013): 117–165; Lee Swepston, “Crisis in the ILO Supervisory System: Dispute
over the Right to Strike”, International Journal of Comparative Law and Industrial Relations 29, No. 2 (2013): 199–218; Janice R.
Bellace, “The ILO and the right to strike”, International Labour Review 153, No. 1 (2014): 29–70; Keith D. Ewing, “Myth and Reality
of the Right to Strike as a ‘Fundamental Labour Right’”, International Journal of Comparative Labour Law and Industrial Relations
29, No. 2 (2013): 145–166; and Paul Mackay, “The Right to Strike: Commentary”, New Zealand Journal of Employment Relations
38, No. 3 (2014): 58–70.
40 ILC, 102nd Session, 2013, Report of the Committee of Experts on the Application of Conventions and Recommendations, Report
III (Part 1A), paras 33–36.
41 ILC, 102nd Session, 2013, Report of the Committee of Experts, para. 36.
 GB.349bis/INS/1/1 19
this case as the Employers do not agree that there is a right to strike recognized in Convention
No. 87”. 42
27. In November–December 2013, the Committee of Experts discussed again the question of a
disclaimer and decided to insert the following paragraph, which has since become a standard
paragraph of its report:
Mandate
The Committee of Experts on the Application of Conventions and Recommendations is an
independent body established by the International Labour Conference and its members are
appointed by the ILO Governing Body. It is composed of legal experts charged with examining
the application of ILO Conventions and Recommendations by ILO member States. The
Committee of Experts undertakes an impartial and technical analysis of how the Conventions
are applied in law and practice by member States, while cognizant of different national realities
and legal systems. In doing so, it must determine the legal scope, content and meaning of the
provisions of the Conventions. Its opinions and recommendations are non-binding, being
intended to guide the actions of national authorities. They derive their persuasive value from
the legitimacy and rationality of the Committee’s work based on its impartiality, experience and
expertise. The Committee’s technical role and moral authority is well recognized, particularly
as it has been engaged in its supervisory task for over 85 years, by virtue of its composition,
independence and its working methods built on continuing dialogue with governments taking
into account information provided by employers’ and workers’ organizations. This has been
reflected in the incorporation of the Committee’s opinions and recommendations in national
legislation, international instruments and court decisions. 43
28. At the 103rd Session of the Conference (2014), the Committee on the Application of Standards
was unable to adopt conclusions in 19 individual cases due to the disagreement on the
question of the right to strike. 44
29. In view of the impasse, the Governing Body considered at its October–November 2014 session
a document on the modalities, scope and costs of action under article 37 of the Constitution. 45
During the discussion, the Worker spokesperson indicated that the group “had reached the
inescapable conclusion that referral of the interpretation dispute to the International Court of
Justice for an advisory opinion, as a matter of urgency, was the necessary way forward if the
ILO supervisory system was to remain relevant and continue to function”. 46 However, the
Employer members did not support a referral to the Court and favoured a resolution through
tripartite discussions, as it “was more efficient time-wise, and was also far cheaper, more
inclusive and more flexible than a referral to the [International Court of Justice], which would
be a clear acknowledgment not only that tripartism and social dialogue had failed but also that
social dialogue had not even been given a chance to resolve the dispute.” 47 Among the
Governments, the group of Latin American and Caribbean countries, the group of
industrialized market economy countries and the European Union and its Member States
supported the proposed referral to the International Court of Justice, while the Asia and Pacific
42 ILC, 102nd Session, 2013, Record of Proceedings, 16, Part I.
43 ILC, 103rd Session, 2014, Report of the Committee of Experts on the Application of Conventions and Recommendations, Report
III (Part 1A), para. 31.
44 ILC, 103rd Session, 2014, Record of Proceedings 13, Part I/50–56, paras 201–219.
45 ILO, The Standards Initiative: Follow-up to the 2012 ILC Committee on the Application of Standards, GB.322/INS/5, Appendix I.
46 ILO, Minutes of the 322nd Session of the Governing Body of the International Labour Office, GB.322/PV, para. 50.
47 GB.322/PV, para. 58.
 GB.349bis/INS/1/1 20
group preferred tripartite discussions and the Africa group was of the view that recourse to
the International Court of Justice should be a last resort. 48
30. Against this background, the Governing Body decided to convene a tripartite meeting, which
would report to it at its March 2015 session, on the question of Convention No. 87 in relation
to the right to strike and the modalities and practices of strike action at the national level. The
meeting took place from 23 to 25 February 2015. At the meeting, the Workers’ and Employers’
groups presented a joint statement concerning a package of measures to find a possible way
out of the existing deadlock in the supervisory system. 49 This joint statement acknowledged
that the right to take industrial action by workers and employers in support of their legitimate
industrial interests is recognized by the constituents of the International Labour Organization
and that this international recognition by the International Labour Organization requires the
Workers’ and Employers’ groups to address specific systemic questions, such as the mandate
of the Committee of Experts and the working methods of the Committee on the Application of
Standards (adoption of the list and of conclusions). The joint statement did not include specific
follow-up on the question of Convention No. 87 in relation to the right to strike. The
Government group issued two statements. In the first, it expressed its common position on
the right to strike, recognizing that “the right to strike is linked to freedom of association which
is a fundamental principle and right at work of the ILO. … [W]ithout protecting a right to strike,
Freedom of Association, in particular the right to organize activities for the purpose of
promoting and protecting workers’ interests, cannot be fully realized”. It also noted, however,
that the right to strike “is not an absolute right [and] the scope and conditions of this right are
regulated at the national level”. In its second statement, the Government group acknowledged
the joint statement of the Employers’ and Workers’ groups and called for a comprehensive
discussion in the Governing Body. 50
31. The three statements were presented to the Governing Body at its March 2015 session as
constituting the outcome of the tripartite meeting. At the session, the Employer members
reiterated their view that the “right to strike” was not recognized in Convention No. 87, and
that the joint statement was considered as a commitment to continue to work together to
strengthen the supervisory system despite the differences of view. The Worker members
confirmed that the joint statement was only intended to allow the ILO to resume the
supervision of standards. They maintained that the right to strike was protected by Convention
No. 87. In the light of the outcome of the tripartite meeting, the Governing Body decided “not
to pursue for the time being any action in accordance with article 37 of the Constitution to
address the interpretation question concerning Convention No. 87 in relation to the right to
strike”. At the same time, the Governing Body took a number of decisions in relation to the
supervisory system and the establishment of the Standards Review Mechanism. 51
32. At the 104th Session of the Conference (2015), only one of the conclusions of the Committee
on the Application of Standards relating to the application of Convention No. 87 included views
on the right to strike. The absence of any reference to the right to strike is the modus vivendi
which has prevailed to date in the Committee. The Employer members have nonetheless
48 GB.322/PV, paras 64, 70, 78, 82.
49 ILO, The Standards Initiative: Addendum, GB.323/INS/5(Add.); ILO, The Standards Initiative – Appendix I,
GB.323/INS/5/Appendix.I, Annex I.
50 GB.323/INS/5/Appendix I, Annex II and Annex III.
51 ILO, Minutes of the 323rd Session of the Governing Body of the International Labour Office, GB.323/PV, paras 51, 52, 84.
 GB.349bis/INS/1/1 21
continued to raise their objections to the comments of the Committee of Experts addressing
the conditions for the exercise of the right to strike. 52
33. In conclusion, the following observations can be made. First, at the heart of the legal challenge
is both whether the right to strike is a legitimate means of defending workers’ interests that is
recognized and protected by Convention No. 87 and whether the Committee of Experts is
empowered to develop, while carrying out its supervisory functions, an expanded and
elaborate framework for reviewing and commenting upon the conditions of the exercise of
that right. Second, more generally, the main focus of the disagreement has been whether the
Committee of Experts has the authority to create new legal obligations for States that have
ratified international labour Conventions through its incidental, or functional, interpretation of
those Conventions when carrying out its supervisory responsibilities. Third, there is broad
agreement that Convention No. 87 should be interpreted in accordance with the principles of
treaty interpretation under customary international law codified in the 1969 Vienna
Convention on the Law of Treaties, and also that the power to make authoritative and binding
pronouncements on the interpretation of international labour Conventions lies exclusively with
the International Court of Justice.
II. The core elements of the dispute
34. To better understand the deeply divided views of the Employers’ and Workers’ groups on the
issue, it is important to examine more closely, first, Convention No. 87, its negotiating history
and the manner in which it has been interpreted by the ILO supervisory bodies and, second,
the Committee of Experts, especially how its mandate and working methods have evolved in
matters related to the interpretation of international labour Conventions.
II.1. ILO Convention No. 87 and the right to strike
II.1.1. The negotiating history of Convention No. 87
35. Convention No. 87 originated from a request made in 1947 by the United Nations Economic
and Social Council in accordance with the 1946 Agreement between the United Nations and
the International Labour Organization. 53 As a result, at its 30th Session (1947), the
International Labour Conference held a first discussion on the question of freedom of
association and industrial relations, and adopted a resolution concerning freedom of
association and protection of the right to organize and to bargain collectively, which defined
the fundamental principles on which freedom of association should be based. 54 The
Conference also decided to place on the agenda of its 31st Session (1948) the questions of
freedom of association and of the protection of the right to organize, for consideration under
the single-discussion procedure. 55
36. The Office prepared a summary report on the proceedings of the 30th Session of the
Conference, together with a questionnaire seeking constituents’ views on the form and content
52 For instance, ILC, 110th Session, 2022, Records of Proceedings 4A, Part One, paras 113–114, 127, 233. See also ILC,
110th Session, 2022, Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III
(Part 1A), paras 17, 20.
53 ECOSOC adopted a resolution transmitting to the ILO documents submitted by the World Federation of Trade Unions and
the American Federation of Labor, with a request that an item on trade unions rights be placed upon the agenda of the
forthcoming session of the International Labour Conference; see ECOSOC, fourth session, 1947, Resolution 52/IV.
54 ILC, 30th Session, 1947, Record of Proceedings, Appendix XIII, pp. 587–588.
55 ILC, 30th Session, 1947, Record of Proceedings, Appendix XIII, p. 589.
 GB.349bis/INS/1/1 22
of possible international regulations concerning freedom of association and the protection of
the right to organize. The questionnaire invited comments on, among other things, whether
“it would be desirable to provide that the recognition of the right of association of public
officials by international regulation should in no way prejudge the question of the right of such
officials to strike”. 56 Several respondents (Australia, Austria, Belgium, Bulgaria, Canada,
Denmark, Ecuador, Finland, France, Hungary, India, Switzerland, the Union of South Africa and
the United States) were in favour, one country (Mexico) opposed it, and two countries (the
Netherlands and Sweden) considered that the Convention should not be concerned with
questions relating to the right to strike. 57
37. Based on the views expressed, the Office concluded that:
Several Governments … have … emphasised, justifiably it would appear, that the proposed
Convention relates only to the freedom of association and not to the right to strike, a question
which will be considered in connection with Item VIII (conciliation and arbitration) on the
agenda of the Conference. In these circumstances, it has appeared to the Office to be
preferable not to include a provision on this point in the proposed Convention concerning
freedom of association. 58
38. As a result, there was no focused or substantive discussion on the right to strike during the
negotiations that led to the adoption of Convention No. 87. In fact, the only explicit references
to the right to strike throughout the Conference proceedings were in relation to a draft
amendment submitted by the Government representative of India in 1947 with a view to
excluding the police and the armed forces from the field of application of freedom of
association “because they were not authorised to take part in collective negotiations and had
not the right to strike” 59 and to a statement of the Government representative of Portugal in
1948 expressing support for those countries that had “stated more or less explicitly that we
should avoid any drafting which might imply the idea that we were granting public servants
the right to strike”. 60
39. Indeed, the record shows that, from its inception, Convention No. 87 was intended to affirm
and codify general principles pertaining to freedom of association and not to provide a detailed
regulatory framework. As the Office explained in its first report to the Conference:
The documentary enquiry on freedom of association had disclosed the fact that the legislation
concerning trade associations differed considerably in detail and in form from country to
country, but that the fundamental questions were dealt with on a fairly uniform basis.
The Office therefore preferred, instead of submitting to the Conference a draft scheme of
detailed regulations which would have obliged the majority of countries to amend their
legislation, to frame the essential elements of the problem in a number of precise formulae,
56 ILC, 31st Session, 1948, Freedom of Association and Protection of the Right to Organise: Questionnaire, p. 15.
57 ILC, 31st Session, 1948, Freedom of Association and Protection of the Right to Organise: Report VII, p. 67.
58 ILC, 31st Session, 1948, Report VII, p. 87. Indeed, the law and practice report on industrial relations contained a section on
strikes and lockouts in the context of conciliation and arbitration procedures; see ILC, 31st Session, 1948, Industrial Relations,
Report VIII(1), pp. 111–118.
59 The amendment was ultimately rejected; see ILC, 30th Session, 1947, Record of Proceedings, p. 570. At the next session of
the Conference, the Government of India presented a new amendment aiming at excluding the armed forces and the police
from the scope of the Convention “on the ground that most countries would not find it possible to ratify a Convention which
required absolute freedom of association and organisation to be granted to members of the armed forces and the police,
having regard to the responsibility of Governments for defending the law and assuring the maintenance of public order”. The
clause was modified during the discussion and finally adopted as Article 9 of Convention No. 87; see ILC, 31st Session, 1948,
Record of Proceedings, p. 478.
60 ILC, 31st Session, 1948, Record of Proceedings, p. 232.
 GB.349bis/INS/1/1 23
the adoption of which would have constituted a sufficient guarantee for the free functioning of
employers’ and workers’ associations.
The draft submitted to the Conference was limited to a guarantee, on the one hand, of the
freedom of workers and employers to organise for the collective defence of their occupational
interests and, on the other hand, of the freedom of trade associations to pursue their objects
by all means not contrary to law or to the regulations enacted for the maintenance of public
order. 61
40. It is precisely because of this intended level of generality of Convention No. 87 that reference
is often made to Article 3, which lays down the principle that workers’ and employers’
organizations are free to choose the means of action for defending their interests, and which
has therefore been interpreted to also cover the right to strike. Article 3 reads as follows:
1. Workers’ and employers’ organisations shall have the right to draw up their constitutions
and rules, to elect their representatives in full freedom, to organize their administration
and activities and to formulate their programmes.
2. The public authorities shall refrain from any interference which would restrict this right or
impede the lawful exercise thereof.
41. The Office questionnaire explained that the object of this Article was to supplement the
guarantee with regard to the establishment of organizations with a guarantee of the right of
such organizations to organize their internal and external life in full autonomy; the word
“lawful” in the text aimed to declare that employers’ and workers’ organizations were bound,
in the exercise of their rights, to respect the general laws of the country. 62
42. During the discussion at the 1948 session of the Conference, all proposed amendments to
Article 3 to include references to national legislation setting minimum conditions for the
constitution or operation of organizations were withdrawn after the Chairman of the
Conference Committee stated that “the Convention was not intended to be a ‘code of
regulations’ for the right to organise, but rather a concise statement of certain fundamental
principles”. 63
43. Another oft-cited provision in the debate on the interpretation of Convention No. 87 in relation
to the right to strike is Article 10, which reads: “In this Convention the term organisation means
any organisation of workers or of employers for furthering and defending the interests of
workers or of employers.” This provision was the outcome of discussions of various proposals
to insert a definition of “workers’ and employers’ organisations”. It originated from an
amendment submitted by the Government of the United Kingdom of Great Britain and
Northern Ireland to define the term “organisation” as “any organisation of workers or of
employers for furthering or defending the interests of workers and employers respectively,
except any trust or cartel as defined by national law or regulations”. The reference to trusts
and cartels was eventually deleted. It was generally understood that trade union activity was
not limited to the professional field alone and that the definition should not be interpreted as
restricting the right of trade union organizations to take part in political activities. 64
44. Four other developments after Convention No. 87 was adopted provide additional context.
First, in 1953, the Director-General informed the Governing Body that he had considered that
it would be inappropriate to express an opinion on the interpretation of Conventions Nos 87
61 ILC, 30th Session, 1947, Freedom of Association and Industrial Relations: Report VII, pp. 16–17.
62 ILC, 31st Session, 1948, Questionnaire, pp. 8–9. See also ILC, 31st Session, 1948, Report VII, pp. 24–31, 90–91.
63 ILC, 31st Session, 1948, Record of Proceedings, p. 477.
64 ILC, 31st Session, 1948, Record of Proceedings, p. 476.
 GB.349bis/INS/1/1 24
and 98, owing to the existence of a special procedure laid down by the Governing Body for
dealing with complaints concerning alleged infringements of freedom of association. 65
Second, in 1956, the Governing Body decided against revising the report form on the
application of Convention No. 87 with a view to adding specific questions on restrictions to the
right to strike for public employees, as it considered that Convention No. 87 did not cover the
right to strike. 66 Third, in 1987, the Conference issued a resolution concerning the 40th
anniversary of the adoption of Convention No. 87, in which no mention was made of the right
to strike. 67 Fourth, in 1991, the Governing Body discussed a proposal to place a standardsetting
item concerning the right to strike on the agenda of the Conference but ultimately
decided against it. 68
II.1.2. Subsequent practice: ILO supervisory bodies and the right to strike
45. In the 75 years since the adoption of Convention No. 87, various ILO supervisory bodies
entrusted with either regular supervision or special procedures have spoken to the linkages
between the right to strike and the principle of freedom of association enshrined in Convention
No. 87. As outlined below, they have invariably affirmed that the right to strike is intrinsically
linked to the principle of freedom of association and is thus protected under Convention
No. 87.
Committee of Experts on the Application of Conventions and Recommendations
46. The Committee of Experts first expressed a view on the right to strike in relation to Convention
No. 87 in its General Survey of 1959. In commenting on the right of employers’ and workers’
organizations to organize their activities and to formulate their programmes under Article 3(1)
of Convention No. 87, the Committee observed that:
[T]he prohibition of strikes by workers other than public officials acting in the name of the
public powers … may run counter to Article 8, paragraph 2, of [Convention No. 87], according
to which “the law of the land shall not be such as to impair, nor shall it be so applied as to
impair, the guarantees provided for” in the Convention, and especially the freedom of action
of trade union organisations in defence of their occupational interests. 69
47. The Committee of Experts made further comments on the right to strike in subsequent General
Surveys. For instance, in 1973, the Committee expressed the view that:
A general prohibition of strikes constitutes a considerable restriction of the opportunities open
to trade unions for furthering and defending the interests of their members (Article 10 of
Convention No. 87) and of the right of trade unions to organise their activities (Article 3); it
should be recalled, in this connection, that Article 8 of the Convention establishes that the law
65 ILO, Minutes of the 122nd Session of the Governing Body (May–June 1953), p. 110.
66 ILO, Minutes of the 131st Session of the Governing Body, March 1956, Appendix XXII, p.188.
67 See Resolutions adopted by the International Labour Conference at the 73rd Session (1987). In contrast, the 1957
Resolution concerning the Abolition of Anti-Trade Union Legislation in the States Members of the International Labour
Organisation makes reference to the “unrestricted exercise of trade union rights, including the right to strike, by the workers”,
while the 1970 Resolution concerning Trade Union Rights and Their Relation to Civil Liberties calls for systematic studies of
the law and practice in matters concerning freedom of association and trade union rights, including the right to strike.
68 See ILO, Agenda of the 81st (1994) Session of the Conference, GB.253/2/3(rev.), paras 14 and 35–38 and Appendix I.
69 ILC, 43rd Session, 1959, Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III
(Part IV), pp. 101–29, para. 68.
 GB.349bis/INS/1/1 25
of the land shall not be such as to impair nor shall it be so applied as to impair the guarantees
provided for in the Convention, including the right of trade unions to organise their activities. 70
48. Furthermore, citing the Committee on Freedom of Association, the Committee of Experts
indicated that “the conditions which have to be fulfilled, under the law, in order to render a
strike lawful, should be reasonable and, in any event, not such as to place a substantial
limitation on the means of action open to trade union organisations”. 71
49. In 1983, the Committee of Experts stated that “the right to strike is one of the essential means
available to workers and their organisations for the promotion and protection of their
economic and social interests”. 72 It reiterated the position it had expressed in 1973 with
respect to the right to strike and Articles 3 and 10 of the Convention, and stressed that “[a]
general ban on strikes … is … not compatible with the principles of freedom of association”. 73
50. In 1994, the Committee of Experts described the right to strike as a “basic right” and as a
“general principle”. 74 It noted that “[a]lthough the right to strike is not explicitly stated in the
ILO Constitution or in the Declaration of Philadelphia, nor specifically recognized in
Conventions Nos. 87 and 98, it seemed to have been taken for granted in the report prepared
for the first discussion of Convention No. 87” but that, “during discussions at the Conference
in 1947 and 1948, no amendment expressly establishing or denying the right to strike was
adopted or even submitted”. 75 According to the Committee of Experts, “[i]n the absence of an
express provision on the right to strike in the basic texts, the ILO supervisory bodies have had
to determine the exact scope and meaning of the Conventions on this subject”. 76
51. The Committee explained that the position it had expressed since 1959 was “based on the
recognized right of workers’ and employers’ organizations to organize their activities and to
formulate their programmes for the purposes of furthering and defending the interests of
their members (Articles 3, 8 and 10 of Convention No. 87)”. 77 In particular, from a combined
reading of Articles 3 and 10 of the Convention, the Committee concluded that strike action is
included within the concepts of “activities” and “programmes” of organizations pursuant to
Article 3. 78 As such, the Committee “confirm[ed] its basic position that the right to strike is an
intrinsic corollary of the right to organize protected by Convention No. 87”. 79
52. In 2012, the Committee of Experts noted that, “[i]n the absence of an express provision in
Convention No. 87”, both it and the Committee on Freedom of Association had for decades
70 ILC, 58th Session, 1973, General Survey on the Application of the Conventions on Freedom of Association and on the Right to
Organise and Collective Bargaining, Report III (Part 4B), para. 107.
71 ILC, 58th Session, 1973, General Survey, para 108. The Committee also addressed cases where, under certain conditions,
the right to strike could be prohibited or limited (paras 109–111).
72 ILC, 69th Session, 1983, Freedom of Association and Collective Bargaining: General Survey, Report III (Part 4 B), paras 200–201.
73 ILC, 69th Session, 1983, General Survey, para. 205. The Committee of Experts continued also to develop its views on
conditions for the prohibition or limitation of the right to strike (paras 204–226).
74 ILC, 81st Session, 1994, Freedom of Association and Collective Bargaining: General Survey of the Reports on the Freedom of
Association and the Right to Organize Convention (No. 87), 1948 and the Right to Organize and Collective Bargaining Convention
(No. 98), 1949, Report III (Part 4B), paras 137, 159.
75 ILC, 81st Session, 1994, General Survey, para. 142.
76 ILC, 81st Session, 1994, General Survey, para. 145.
77 ILC, 81st Session, 1994, General Survey, para. 147.
78 ILC, 81st Session, 1994, General Survey, paras 148–149.
79 ILC, 81st Session, 1994, General Survey, para. 151. At the same time, the Committee emphasized that “the right to strike
cannot be considered as an absolute right”, and went on to describe prohibitions and restrictions applicable to the right to
strike; paras 151–179.
 GB.349bis/INS/1/1 26
progressively developed “a number of principles relating to the right to strike” on the basis of
Articles 3 and 10 of that Convention. 80 In response to the views expressed by the Employers’
group in the Committee on the Application of Standards at the 99th Session (2010) of the
Conference, the Committee asserted that “the absence of a concrete provision [on the right to
strike in Convention No. 87] is not dispositive” and that while “the preparatory work is an
important supplementary interpretative source when reviewing the application of a particular
Convention in a given country, it may yield to the other interpretative factors, in particular, in
this specific case, to the subsequent practice over a period of 52 years (see Articles 31 and 32
of the Vienna Convention on the Law of Treaties)”. 81 Accordingly, the Committee “reaffirm[ed]
that the right to strike derives from [Convention No. 87]” 82 and went on to specify “a series of
elements concerning the peaceful exercise of the right to strike, its objectives and the
conditions for its legitimate exercise”. 83
53. In the same General Survey, the Committee reiterated that its position on the right to strike
“lies within the broader framework of the recognition of this right at the international level”,
citing provisions of the International Covenant on Economic, Social and Cultural Rights; the
Charter of the Organization of American States; the Charter of Fundamental Rights of the
European Union; the Inter-American Charter of Social Guarantees; the European Social
Charter; the Additional Protocol to the American Convention on Human Rights in the area of
Economic, Social and Cultural Rights; and the Arab Charter on Human Rights. 84 In addition, it
noted that other international labour standards – such as the Abolition of Forced Labour
Convention, 1957 (No. 105), and the Voluntary Conciliation and Arbitration Recommendation,
1951 (No. 92) – and resolutions adopted in different contexts at the ILO also made reference
to the right to strike. 85
54. In addition to the General Surveys cited above, the Committee of Experts has, over the past 65
years, made numerous country-specific comments on the right to strike in the context of
regular supervision and the examination of reports submitted under article 22 of the
Constitution. As part of its monitoring of the application of Convention No. 87, in the last two
years, the Committee addressed 75 observations to Member States concerning the exercise of
the right to strike. 86
Committee on Freedom of Association
55. By and large, the Committee of Experts’ comments concerning the right to strike reflect
relevant pronouncements of the Governing Body’s Committee on Freedom of Association,
which has, over the years, developed a body of detailed decisions to ensure that legislation
and practices reviewed in relation to the scope and conditions of exercise of that right comply
80 ILC, 101st Session, 2012, Giving Globalization a Human Face: General Survey on the fundamental Conventions concerning rights
at work in light of the ILO Declaration on Social Justice for a Fair Globalization, 2008, Report III (Part 1B), para. 117.
81 ILC, 101st Session, 2012, General Survey, para. 118.
82 ILC, 101st Session, 2012, General Survey, para. 119.
83 ILC, 101st Session, 2012, General Survey, paras 122–161.
84 ILC, 101st Session, 2012, General Survey, para. 120.
85 ILC, 101st Session, 2012, General Survey, para. 121.
86 ILC, 110th Session, 2022, Report of the Committee of Experts on the Application of Conventions and Recommendations, Report
III (Part A), pp. 97–318, and ILC, 111st Session, 2023, Report of the Committee of Experts on the Application of Conventions and
Recommendations, Report III (Part A), pp. 101–342.
 GB.349bis/INS/1/1 27
with the principles of freedom of association and collective bargaining. 87 In fact, the
Committee on Freedom of Association was the first supervisory body that recognized the right
to strike as a trade union right; when examining a complaint lodged against the Government
of Jamaica (Case No. 28) in March 1952, it stated that “[t]he right to strike and that of organising
union meetings are essential elements of trade union rights, and measures taken by the
authorities to ensure the observance of the law should not, therefore, result in preventing
unions from organising meetings during labour disputes”. 88
56. Among its numerous decisions, the Committee on Freedom of Association has affirmed that
“[p]rotests are protected by the principles of freedom of association only when such activities
are organized by trade union organizations or can be considered as legitimate trade union
activities as covered by Article 3 of Convention No. 87”. 89
57. The Committee has further stated that “[w]hile [it] has always regarded the right to strike as
constituting a fundamental right of workers and of their organizations, it has regarded it as
such only in so far as it is utilized as a means of defending their economic interests”. 90 As
regards Convention No. 87, the Committee has regularly taken the view that “[t]he right to
strike is an intrinsic corollary to the right to organize protected by Convention No. 87” and that
“[t]he prohibition on the calling of strikes by federations and confederations is not compatible
with Convention No. 87”. 91
58. In addition, the Committee has found that ”[t]he dismissal of workers because of a strike
constitutes serious discrimination in employment on grounds of legitimate trade union
activities and is contrary to Convention No. 98” and that “[i]n certain cases … it is difficult to
accept as a coincidence unrelated to trade union activity that heads of departments should
have decided, immediately after a strike, to convene disciplinary boards which, on the basis of
service records, ordered the dismissal not only of a number of strikers, but also of members
of their union committee”. 92
87 The mandate of the Committee “consists in determining whether any given legislation or practice complies with the
principles of freedom of association and collective bargaining laid down in the relevant Conventions”. In cases where
countries have ratified one or more Conventions on freedom of association, the Committee of Experts is normally entrusted
with the examination of the effect given to the recommendations of the Committee on Freedom of Association, which draw
the attention of the Committee of Experts to discrepancies between national laws and practice and the terms of the
Conventions, or to the incompatibility of a given situation with the provisions of these instruments; see Compendium of rules
applicable to the Governing Body, Annex II, Special procedures for the examination in the International Labour Organization
of complaints alleging violations of freedom of association, paras 14 and 72.
88 See Sixth report of the Committee on Freedom of Association, para. 68. In its Eighth report , when examining a complaint against
the Government of Japan (Case No. 60), the Committee presented a synthesis of its views at the time on the right to strike:
53. The Committee considers that it is not called upon to give an opinion on the question as to how far the right to strike in
general – a right which is not specifically dealt with in the Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87), or in the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) – should be regarded
as constituting a trade union right. In several earlier cases and, in particular, in that relating to Turkey, the Committee has
observed that the right to strike is generally accorded to workers and their organisations as an integral part of their right to
defend their collective interests. In another case … the Committee recommended the Governing Body to draw the attention of
the Government of Brazil to the importance which it attached, in cases in which strikes were prohibited in essential occupations,
to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of "an essential means of
defending occupational interests”.
89 See Compilation of decisions of the Committee on Freedom of Association, Sixth edition, 2018, paras 204, 210.
90 Compilation of decisions, para. 751.
91 Compilation of decisions, paras 754, 757.
92 Compilation of decisions, paras 957 and 1110.
 GB.349bis/INS/1/1 28
59. Moreover, the Committee on Freedom of Association has developed an extensive set of
decisions in specific cases on various aspects of strike action, including the objective of the
strike, the types of strike action, the prerequisites, cases in which strikes may be restricted or
even prohibited and the related compensatory guarantees to be afforded to the workers
concerned or the questions of sanctions, both in the event of a legitimate strike and in the
event of abuse while exercising the right to strike. 93
Fact-Finding and Conciliation Commission on Freedom of Association
60. Another mechanism competent to examine alleged violations of freedom of association, the
Fact-Finding and Conciliation Commission on Freedom of Association, expressed similar views
in relation to the right to strike in two cases. 94 The first case concerned allegations of
infringements of trade union rights by Japan. In its report published in January 1966, the
Commission:
endorse[d] the principles established by the Governing Body Committee on Freedom of
Association … that, where strikes by workers in essential services or occupations are restricted
or prohibited, such restriction or prohibition should be accompanied by adequate guarantees
to safeguard to the full the interest of the workers thus deprived of an essential means of
defending occupational interests. 95
61. The second case concerned allegations brought against South Africa (which, at that time, was
not a Member of the ILO). In its report published in May 1992, the Commission summarized
the situation as follows:
While in international law the right to strike is explicitly recognised in certain texts adopted at
the international and regional levels, the ILO instruments do not make such a specific
reference. Article 3 of Convention No. 87, providing as it does for the right of workers'
organisations “to organise their administration and activities and to formulate their
programmes”, has been the basis on which the supervisory bodies have developed a vast
jurisprudence relating to industrial action. In particular they have stated as the basic principle
that the right to strike is one of the essential means available to workers and their organisations
for the promotion and protection of their economic and social interests. The exercise of this
right without hindrance by legislative or other measures has been consistently protected by
the ILO principles. At the same time certain restrictions have been seen as acceptable in the
circumstances of modern industrial relations. 96
Article 26 complaints and article 24 representations
62. In three instances, Commissions of Inquiry set up to examine complaints concerning the
observance of Convention No. 87 have addressed whether the right to strike is protected under
93 It has been noted that “[a] reading of the reports of the Committee of Experts and the [Committee on Freedom of
Association (CFA)] since 1952 reveals that the CFA, not the Committee of Experts, has taken the lead role in delineating the
meaning of the right to strike“. See Janice R. Bellace, “The Committee on Freedom of Association: Making freedom of
association a reality, in Karen Curtis, Oksana Wolfson (eds), 70 Years of the ILO Committee on Freedom of Association: A Reliable
Compass in Any Weather, 2022, p. 16.
94 The Commission was originally the first body established by the Governing Body in January 1950, under the procedure for
the examination of allegations concerning the infringement of trade union right agreed between the ILO and ECOSOC; see
Minutes of the 110th Session of the Governing Body, Appendix VI. Unlike the complaints submitted to the Committee on Freedom
of Association, no allegations could be communicated to the Commission without the consent of the Government concerned.
95 ILO, Report of the Fact-Finding and Conciliation Commission on Freedom of Association concerning Persons Employed in the Public
Sector in Japan, Official Bulletin, Special supplement, Vol. XLIX, No.1, January 1966, p. 516.
96 ILO, Report of the Fact-Finding and Conciliation Commission on Freedom of Association concerning the Republic of South Africa,
GB.253/15/7, June 1992, para. 303.
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the Convention. In 1968, the Commission of Inquiry appointed to examine complaints
concerning the observance by Greece of Conventions Nos 87 and 98 noted that:
Convention No. 87 contains no specific guarantee of the right to strike. On the other hand, …
an absolute prohibition of strikes would constitute a serious limitation of the right of
organisations to further and defend the interest of their members (Article 10 of the Convention)
and could be contrary to Article 8, paragraph 2, of the Convention, under which ”the law of the
land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees
provided for in this Convention”, including the right of unions to organise their activities in full
freedom (Article 3). 97
63. Similarly, in its report published in 1984, the Commission of Inquiry instituted to examine a
complaint on the observance by Poland of Conventions Nos 87 and 98 concluded that:
Convention No. 87 provides no specific guarantee concerning strikes. The supervisory bodies
of the ILO, however, have always taken the view – which is shared by the Commission – that
the right to strike constitutes one of the essential means that should be available to trade union
organisations for, in accordance with Article 10 of the Convention, furthering and defending
the interests of their members. 98
64. Lastly, in 2009, the Commission of Inquiry established to examine complaints concerning the
observance by Zimbabwe of Conventions Nos 87 and 98, while reviewing the national law and
practice in relation to the right to strike, “confirm[ed] that the right to strike is an intrinsic
corollary of the right to organize protected by Convention No. 87”. 99
65. Moreover, to date, four representations under article 24 of the Constitution have pertained to
the exercise of the right to strike. In examining those representations, the Committee on
Freedom of Association reaffirmed that the right to strike is a legitimate means of defending
the workers’ interests 100 and that nobody should be deprived of their liberty or subjected to
penal sanctions for the mere fact of organizing or participating in a peaceful strike. 101 The
Committee also had occasion to recall that the right to strike could be restricted or prohibited
in the public service only for public servants exercising authority in the name of the State or in
essential services in the strict sense of the term. 102 Furthermore, the Committee concluded
that excessive restrictions on the right to strike imposed on workers constitute a serious
97 ILO, Report of the Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organization
to examine the complaints concerning the observance by Greece of the Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), para. 261.
98 ILO, Report of the Commission of Inquiry instituted under article 26 of the Constitution of the International Labour Organization
to examine the complaint on the observance by Poland of the Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), para. 517.
99 ILO, Report of the Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organization
to examine the observance by the Government of Zimbabwe of the Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), para. 575.
100 Case No. 1364 (1987), Representation against the Government of France pursuant to article 24 of the Constitution made
by the General Federation of Labour, para. 140.
101 Case No. 1304 (1985), Representation made by the Confederation of Costa Rican Workers (CTC), the Authentic
Confederation of Democratic Workers (CATD), the Unity Confederation of Workers (CUT), the Costa Rican Confederation of
Democratic Workers (CCTD) and the National Confederation of Workers (CNT), under article 24 of the ILO Constitution,
alleging the failure by Costa Rica to implement several international labour conventions including Conventions Nos. 11, 87,
98 and 135, para. 99.
102 Case No. 1971 (1999), Representation against the Government of Denmark presented by the Association of Salaried
Employees in the Air Transport Sector (ASEATS) and the Association of Cabin Crew at Maersk Air (ACCMA) under article 24 of
the ILO Constitution alleging non-observance by Denmark of the Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), para. 55.
 GB.349bis/INS/1/1 30
violation of the principles of freedom of association and that such limitations would be
justifiable only if the strike were to lose its peaceful character. 103
II.1.3. Rules and practice of treaty interpretation
66. At the heart of the controversy, there is a divergence of views on the method of interpretation
that should be used to determine whether the right to strike is protected under Convention
No. 87. As noted above, the Employers’ group seems to strongly favour a textual or literal
interpretation based on the natural meaning of the terms of the Convention, whereas the
Workers’ group supports a dynamic interpretation, along the lines followed by the Committee
of Experts and other ILO supervisory organs, that gives precedence to the effective
achievement of the declared or apparent object and purpose of the provisions of Convention
No. 87.
67. Under a textual approach, the aim and focus of interpretation should be limited to determining
or confirming the ordinary meaning of the terms of a treaty. In contrast, according to a
dynamic (often called teleological or evolutive) method of interpretation, 104 treaty provisions
need to be understood in the light of their purpose and the goals that they aim to achieve.
Both methods are reflected in article 31 of the 1969 Vienna Convention on the Law of Treaties,
which is generally recognized to embody customary international law. 105
68. Article 31 of the Vienna Convention advocates a good-faith search for the ordinary meaning of
the terms of a treaty, read in their context. 106 At the same time, the reference to the “object
and purpose” of a treaty in article 31(1) opens up the possibility for dynamic, extra-textual
103 Case No. 1810 (1996), Representation made by the Confederation of Turkish Trade Unions (TURK-IS) under article 24 of
the ILO Constitution alleging non-observance by Turkey of the Freedom of Association and Protection of the Right to Organize
Convention, 1948 (No. 87), para. 61.
104 The rationale of this type of interpretation is that certain terms are not static but may be given a meaning that changes
over time so as to adapt to evolving realities. The advisory opinion of the International Court of Justice in the Namibia case
and the judgment of the European Court of Human Rights in the Tyrer case are often cited as prominent examples; see Legal
Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276(1970), Advisory Opinion of 21 June 1971, ICJ Reports 1971, para. 53, and Tyrer v United Kingdom, Judgment of 25
April 1978. See also Aegean Sea Continental Shelf Case, Judgment of 19 December 1978, ICJ Reports 1978, para. 80; Dispute
regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment of 13 July 2009, ICJ Reports 2009, para. 64; Case
concerning Pulp Mills on the River Uruguay, Judgment of 20 April 2010, ICJ Reports 2010, para. 204.
105 The International Court of Justice stated for the first time in 1991 that “Articles 31 and 32 of the Vienna Convention … may
in many respects be considered as a codification of existing customary international law on the point”; see Arbitral Award of
31 July 1989 (Guinea-Bissau v. Senegal), Judgment, ICJ Reports 1991, para. 48. More recently, the Court confirmed the same in
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), Judgment, ICJ Reports 2007, para. 160; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports
2010, para. 65. Accordingly, as articles 31 and 32 are universally binding as customary international law, they apply to all
treaties outside the scope of the Vienna Convention, namely treaties concluded before 1969 and also treaties between States
non-parties to the Vienna Convention.
106 In the only advisory opinion requested thus far with respect to an international labour Convention, the Permanent Court
of International Justice noted with regard to Article 3 of Convention No. 4: “The wording of Article 3, considered by itself, gives
rise to no difficulty; it is general in its terms and free from ambiguity or obscurity … If, therefore, Article 3 … is to be interpreted
in such a way as not to apply to women holding posts of supervision and management and not ordinarily engaged in manual
work, it is necessary to find some valid ground for interpreting the provision otherwise than in accordance with the natural
sense of the words”. The Court went on to say that an examination of the preparatory work also confirmed the textual
interpretation and that, therefore, “there is no good reason for interpreting Article 3 otherwise than in accordance with the
natural meaning of the words”; see Interpretation of the Convention of 1919 concerning employment of women during the night,
Advisory opinion, 15 November 1932, pp. 373, 380.
 GB.349bis/INS/1/1 31
interpretation and the application of the principle of effectiveness. 107 In relation to the “general
rule” of interpretation set out in article 31, it has been observed that:
This provision merges the principles of textuality, ordinary meaning, and integration, as well
as the teleological principle of “object and purpose” (which is itself generally regarded as
incorporating the principle of “effectiveness”), into a single rule. Even though they are
presented in an order that may accord some primacy to the text, if only as a starting point, a
hierarchy among the various components of the rule is far from categorically, or even clearly,
expressed. 108
69. Furthermore, article 31(3) of the Vienna Convention provides that, for the purpose of the
interpretation of a treaty, in addition to the context, account should be taken of any
subsequent agreement and subsequent practice of the parties. 109 “Subsequent agreement”
refers to an agreement reached after the conclusion of a treaty on the interpretation or
application of the treaty, whereas “subsequent practice” consists of conduct which establishes
the agreement of the parties regarding the interpretation of the treaty. Subsequent agreement
and subsequent practice offer objective evidence of the understanding of the parties as to the
meaning of the treaty. A subsequent agreement must reflect unequivocally a ”meeting of the
minds”; therefore, conflicting positions regarding interpretation expressed by different parties
to a treaty preclude the existence of an agreement. Subsequent practice may consist of any
conduct (actions or omissions) of the organs of a State, whether in the exercise of executive,
legislative, judicial or other functions, official statements, judgments, enactment of domestic
legislation or conclusion of international agreements. The interpretative weight of a
subsequent agreement or subsequent practice depends on criteria such as its clarity and
specificity, and on whether and how it is repeated.
70. Of particular interest is the weight that the pronouncements of expert bodies responsible for
monitoring the application of a treaty may carry in interpreting that treaty. Although these
pronouncements, views or comments cannot in and of themselves constitute a subsequent
agreement or subsequent practice, they may give rise to a subsequent agreement or practice
of the parties themselves that may in turn be reflected in, for instance, resolutions of organs
of international organizations or of Conferences of States parties. In the Diallo case, the
International Court of Justice considered that, in the interest of clarity, consistency and legal
security, “it should ascribe great weight to the interpretation adopted by this independent
body [the Human Rights Committee] that was established specifically to supervise the
application of that treaty [the International Covenant on Civil and Political Rights]”. 110 Regional
107 The principle of effectiveness (ut res magis valeat quam pereat) is based on the assumption that a treaty is meant to achieve
something and therefore needs to be interpreted in a manner that advances its aims.
108 Malgosia Fitzmaurice, “Interpretation of Human Rights Treaties”, in Dinah Shelton (ed.), The Oxford Handbook of
International Human Rights Law, 2013, p. 746. In the words of the European Court of Human Rights, under the general rule of
article 31 of the Vienna Convention, “the process of interpretation of a treaty is a unity, a single combined operation; this rule,
closely integrated, places on the same footing the various elements enumerated in the four paragraphs of the Article”. Golder
v. United Kingdom Judgment, 21 February 1975, para. 30. See also Richard Gardiner, Treaty Interpretation, 2008, pp. 161–202.
109 See Oliver Dörr and Kirsten Schmalenbach (eds), Vienna Convention on the Law of Treaties: A Commentary, 2012, pp. 552–
560; Olivier Corten and Pierre Klein (eds), The Vienna Conventions on the Law of Treaties: A Commentary, 2011, Vol. I, pp. 825–
829; Gardiner, Treaty Interpretation, pp. 203–249. See also United Nations International Law Commission, “Draft conclusions
on subsequent agreements and subsequent practice in relation to the interpretation of treaties, with commentaries”, 2018,
pp. 23–33.
110 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, ICJ Reports 2010, para. 66. In
another case, the Court made reference to the “constant practice” of the Human Rights Committee to support its own
interpretation of the extraterritorial applicability of the International Covenant on Civil and Political Rights; see Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, para. 109.
 GB.349bis/INS/1/1 32
human rights courts also draw on pronouncements of expert bodies when interpreting the
relevant human rights treaties. 111
71. Moreover, article 32 of the Vienna Convention provides that, as supplementary means of
interpretation, the preparatory work of the treaty and the circumstances of its conclusion may
be used to determine the meaning of the terms of a treaty when the result of an interpretation
according to the general rule leaves the meaning ambiguous or obscure or leads to an absurd
or unreasonable result. 112 In this connection, under a general reservation clause in article 5 of
the Vienna Convention, the basic rules of interpretation are without prejudice to any specific
rules, practices or procedures applicable to treaties adopted within international
organizations. In the case of the ILO, such specific rules could include the special importance
attached to the preparatory work in view of the tripartite inputs and negotiations involved in
standard-setting.
72. Against this background, and without pre-empting the Governing Body’s decision on whether
to refer the matter to the International Court of Justice, the points relating to the recognition
of the right to strike under Convention No. 87 that the Court might consider it necessary to
look into could include the following:
(a) Should terms and expressions such as “right to organize”, “guarantees” and “defending
the interests”, used in Articles 3, 8 and 10 of Convention No. 87, be understood textually
or evolutively?
(i) Can the ordinary meaning of any of those terms and expressions in their context
and in the light of their object and purpose be considered to cover industrial action,
and in particular, strike action?
(ii) What is the legal effect of the preparatory work that led to the adoption of
Convention No. 87 and how decisive is the intention of the drafters in relation to the
interpretation of the provisions in question?
(b) What is the legal weight of subsequent practice, especially in the form of comments and
conclusions of supervisory organs such as the Committee of Experts, in the interpretation
of Convention No. 87?
II.2. The mandate of the Committee of Experts
II.2.1. Establishment and evolution of the Committee’s responsibilities
73. The Committee of Experts, together with the Committee on the Application of Standards, was
established in 1926 by a resolution of the International Labour Conference, 113 in which the
Conference requested the Governing Body to appoint “a technical Committee of experts,
111 For instance, the Inter-American Court of Human Rights has drawn on the findings of the Human Rights Committee to
confirm its view that corporal punishment is incompatible with international guarantees against cruel, inhuman or degrading
treatment; see Caesar v. Trinidad and Tobago, Judgment of March 11, 2005, paras 60–63. The European Court of Human Rights
has referred to the ILO Committee of Experts’ role as “a point of reference and guidance for the interpretation of certain
provisions of the Convention [for the Protection of Human Rights and Fundamental Freedoms]”; see National Union of Rail,
Maritime and Transport Workers v. the United Kingdom, Judgment, 8 April 2014, para. 97.
112 See Dörr and Schmalenbach, pp. 571–578; Corten and Klein, pp. 846–859.
113 ILC, Eighth Session, 1926, Record of Proceedings, Appendix VII, p. 429. The draft resolution submitted to the Conference
provided for the establishment of the Committee of Experts by the Governing Body. During the Conference, it was also
decided that the Conference would appoint at each of its session its own Committee to examine the summary prepared by
the Director-General and the report of the Committee of Experts.
 GB.349bis/INS/1/1 33
consisting of six or eight members, for the purpose of making the best and fullest use of this
information [summary of reports from Member States] and of securing such additional data
as may be provided for in the forms approved by the Governing Body”. 114 In relation to the
nature and scope of the Committee’s competence, in particular as regards the interpretation
of Conventions, the Conference agreed that:
[It] would have no judicial capacity nor would it be competent to give interpretations of the
provisions of the Conventions nor to decide in favour of one interpretation rather than of
another. It could not therefore encroach upon the functions of the Commissions of Enquiry and
of the Permanent Court of International Justice in regard to complaints regarding the nonobservance
of ratified Conventions or in regard to their interpretation. … It will note the cases
where the information supplied appears to be inadequate for a complete understanding of the
position either generally, or in a particular country. … Its examination will certainly reveal cases
in which different interpretations of the provisions of Conventions appear to be adopted in
different countries. The Committee should call attention to such cases. … [I]t would present a
technical report to the Director, who would communicate this report … to the Conference. 115
74. The Committee of Experts was appointed by the Governing Body at its 33rd Session (October
1926) for an initial trial period of two years, and became a permanent body in 1928. 116 Eight
experts were initially appointed for the duration of the two-year trial period. As from 1934, the
experts were appointed for a period of three years. 117 In 1939, the Committee of Experts had
13 members: nine from European countries and four from non-European countries.
75. In its early years, the Committee of Experts merely identified divergences in the interpretation
of Conventions, and usually invited the Office to contact the Government concerned. When the
difficulties were considered to be substantial – for instance, where they affected the national
legislation of several countries – the Committee brought them to the Governing Body’s
attention. The Committee on the Application of Standards could also note the difficulties, and
in turn, bring them to the attention of the Conference. The Committee on the Application of
Standards and the Governing Body could also call on the Committee of Experts to pay special
attention to differences of interpretation.
76. In 1947, the respective mandates of the Committee on the Application of Standards and of the
Committee of Experts were broadened, further to the adoption of the constitutional
amendment of 1946. 118 This was a major institutional development for both Committees, not
only because their mandate had been expanded to include the examination of additional
114 The Conference also considered that the Committee members “should essentially be persons chosen on the ground of
expert qualifications and on no other ground whatever” and that “the sort of qualifications that [it] had in mind was
knowledge of international legislation and experience of international labour conditions”; ILC, Eighth Session, 1926, Record
of Proceedings, p. 239. This reflected the proposal set out in a note prepared by the Office for the discussion of the Conference,
which provided that: “Members should be chosen who possess intimate knowledge of labour conditions and of the
application of labour legislation. They should be persons of independent standing, and they should be so chosen as to
represent as far as possible the varying degrees of industrial development and the variations of industrial methods to be
found among the States Members of the Organisation.” (Appendix V, p. 401).
115 ILC, Eighth Session, 1926, Record of Proceedings, Appendix V, pp. 405–407.
116 ILO, Minutes of the 42nd Session of the Governing Body, October 1928, p. 546.
117 ILO, Minutes of the 68th Session of the Governing Body, September 1934, pp. 292, 409.
118 Under the 1946 constitutional amendment, the obligations of Governments to submit reports were extended to include
reports on measures taken to bring standards adopted by the Conference before the competent authorities, and on the
difficulties which prevented or delayed more widespread ratification of Conventions and acceptance of Recommendations.
In addition, Governments were required to communicate copies of their report to representative organizations of employers
and workers.
 GB.349bis/INS/1/1 34
standards-related reports submitted by Member States, but also because this expansion
reflected an explicit acknowledgment of the importance of their work for the Organization. 119
77. At its 102nd Session (June–July 1947), when the Governing Body decided to transmit to the
Conference an amendment to its Standing Orders to broaden the terms of reference of the
Committee on the Application of Standards, it noted that “the proposed extension of the terms
of reference of the Conference Committee on the Application of Conventions will render
necessary a corresponding extension of the terms of reference of the Committee of Experts
on the Application of Conventions, which prepares the ground for the work of the Conference
Committee”. 120 The Conference broadened the terms of reference of the Committee on the
Application of Standards at its 30th Session (June–July 1947). At its 103rd Session (December
1947), the Governing Body adopted the “corresponding widening of the terms of reference of
the Committee of Experts”. 121
78. From the early 1950s, the sessions of the Committee of Experts were lengthened to an average
of one and a half weeks and its composition was increased from 13 to 17 members. The
Committee’s composition was increased again in 1979 to its current level of 20 experts, while
the current duration of its annual session is four weeks. 122
79. The mandate of the Committee of Experts has remained unchanged since 1947. Nevertheless,
its working methods have developed considerably, in particular concerning the interpretation
of international labour Conventions. As was noted before the Governing Body:
By comparison with this original mandate, it is clear that the Committee has taken on a more
independent role regarding interpretation, as it also has in other fields, without raising
objections of principle. This enlarged role is in fact a response to the inherent needs of its work
and to the conditions in which it is called upon to examine a constantly increasing number of
reports concerning Conventions that are also growing in number. 123
80. This evolution resulted in no small measure from the requirement for Governments to submit
reports on the effect given to unratified Conventions and Recommendations, which gave rise
to the General Surveys of the Committee of Experts and their subsequent consideration by the
Committee on the Application of Standards. 124 In the first General Surveys, the Committee of
119 ILO, Minutes of the 102nd Session of the Governing Body, June–July 1947, p. 234. The extension of the scope of the
constitutional supervisory procedures was suggested by the Committee on the Application of Standards in the form of a
resolution adopted in 1945; see ILC, 27th Session, 1945, Record of Proceedings, p. 441.
120 ILO, Minutes of the 102nd Session of the Governing Body, p. 233.
121 ILO, Minutes of the 103rd Session of the Governing Body, December 1947, pp. 56–59 and 172–173. At that time, it was
recognized “from the outset that the technical examination of the annual reports carried out by the Experts is an
indispensable preliminary to the over-all survey of application conducted by the Conference through its Committee on the
Application of Conventions”.
122 ILO, Minutes of the 344th Session of the Governing Body, para. 729.
123 ILO, Article 37, paragraph 2, of the Constitution and the Interpretation of International Labour Conventions, GB.256/SC/2/2,
para. 26.
124 In November 1955, the Governing Body decided that the Committee of Experts should undertake a study of general
matters, such as positions on the application of certain Conventions and Recommendations by all governments, to provide
the basis for the discussion by the Committee on the Application of Standards. Such studies were intended to cover the
Conventions and Recommendations selected for the submission of reports under article 19 of the Constitution. As the reports
requested under article 19 were grouped around one or two central themes each year, it was proposed that the reports
provided under article 22 of the Constitution might also be taken into consideration; see Minutes of the 129th Session of the
Governing Body, May–June 1955, pp. 90–91, and Minutes of the 130th Session of the Governing Body, November 1955, pp. 44,
134–135.
 GB.349bis/INS/1/1 35
Experts continued to limit itself to highlighting divergences in the interpretation of certain
provisions of Conventions, but it progressively began to clarify their meaning in greater detail.
81. Before long, the interpretative function of the Committee of Experts came under scrutiny. In
particular, from 1962 to 1989 the socialist countries raised concerns, pointing out that the
Constitution did not authorize “judgments and condemnations” or “the interpretation of the
provisions of Conventions”. 125 In response, on the occasion of its 50th anniversary, the
Committee of Experts recalled that its “terms of reference do not require it to give
interpretations of Conventions, competence to do so being vested in the International Court
of Justice by article 37 of the Constitution” but that “to carry out its function of evaluating the
implementation of Conventions, [it had] to consider and express its views on the meaning of
certain provisions of Conventions”. 126
82. In its 1987 report, 127 the Committee of Experts returned to the subject of interpretation,
making a similar statement, which led to a number of comments by members of the
Committee on the Application of Standards. The socialist countries, in particular, considered
that the Committee of Experts had gone beyond its terms of reference and had “converted
itself into a kind of supra-national tribunal”, 128 and proposed the establishment of a set of rules
for the Committee. This proposal was rejected by the Employer spokesperson, the Worker
members and by a number of Member States, who recalled that the report of the Committee
of Experts “in which it evaluates the effect given to Conventions from a strictly legal point of
view, is a basis for the dialogue which takes place in the Conference Committee”. 129
Nonetheless, as from 1989 the Employer members began to voice concerns regarding the
tendency of the Committee of Experts to “over-interpret” Conventions despite the fact that,
under the ILO Constitution, only the International Court of Justice could make authoritative
interpretations of international labour Conventions. 130
83. When explaining the rationale and limits of its interpretative function, the Committee of
Experts has always acknowledged that the International Court of Justice is the competent body
under the Constitution to interpret international labour Conventions. At the same time, it has
consistently emphasized that the fulfilment of its mandate requires it to clarify the meaning of
the provisions of Conventions, building on the expertise of its members and guided by the key
principles of independence, objectivity and impartiality. The report of its 81st Session
(November–December 2010) sets out clearly the Committee’s position:
In accordance with the mandate given to it by the Governing Body, its task consists of
evaluating national law and practice in relation to the requirements of international labour
Conventions … [Its members] are appointed in a personal capacity and are selected on the basis
of their independent standing, impartiality and competence. The members are drawn from all
parts of the world and possess first-hand experience of different legal, economic and social
systems. …
Against this background, the Committee reiterates the functional approach that it has followed
with regard to its role when examining the meaning of the provisions of Conventions. Although
the Committee’s mandate does not require it to give definitive interpretations of Conventions,
125 ILC, 46th Session, 1962, Record of Proceedings, p. 417; ILC, 66th Session, 1980, Record of Proceedings, 37/3, para. 8; ILC, 69th
Session, 1983, Record of Proceedings, 31/40; ILC, 71st Session (1985), Record of Proceedings, 30/5, para. 25.
126 ILC, 63rd Session, 1977, Summary of Reports on Ratified Conventions, Report III (Part 1), General Report, para. 32.
127 ILC, 73rd Session, 1987, Summary of Reports, Report III (Parts 1, 2 and 3), para. 21.
128 ILC, 73rd Session, 1987, Record of Proceedings, 24/6, para. 26.
129 ILC, 73rd Session, 1987, Record of Proceedings, 24/6, para. 27.
130 ILC, 76th Session, 1989, Record of Proceedings, 26/6, para. 21.
 GB.349bis/INS/1/1 36
it has to consider and express its views on the legal scope and meaning of certain provisions
of these Conventions, where appropriate, in order to fulfil the mandate with which it has been
entrusted of supervising the application of ratified Conventions. The examination of the
meaning of the provisions of Conventions is necessarily an integral part of the function of
evaluating and assessing the application and implementation of Conventions. …
[T]he Committee reiterates that it constantly and consistently bears in mind all the different
methods of interpreting treaties recognized under international public law, and in particular
under the Vienna Convention on the Law of Treaties, 1969. In particular, the Committee has
always paid due regard to the textual meaning of the words in light of the Convention’s purpose
and object as provided for by Article 31 of the Vienna Convention, giving equal consideration
to the two authentic languages of ILO Conventions, namely the English and French versions
(Article 33 of the Vienna Convention). In addition, and in accordance with Articles 5 and 32 of
the Vienna Convention, the Committee takes into account the Organization’s practice of
examining the preparatory work leading to the adoption of the Convention. This is especially
important for ILO Conventions in view of the tripartite nature of the Organization and the role
that the tripartite constituents play in standard setting. 131
II.2.2. Interpretative functions of ILO supervisory bodies and secretariat
84. Without recourse to the International Court of Justice under article 37 of the Constitution, the
ILO supervisory bodies, and even the International Labour Office, the Organization’s
secretariat, have occasionally exercised what might be called “interpretative functions”. In the
case of the supervisory organs, interpretation is incidental to the exercise of their
responsibilities for monitoring the application of ratified Conventions, whereas in the case of
informal opinions of the Office, interpretative explanations are normally sought by
governments, usually prior to the ratification of a Convention. As the Office noted in a 1993
report, an interpretation machinery “has developed in parallel to fill the gaps … which to a
certain extent makes it possible to settle day-to-day difficulties without having to go through
the complex procedure of requesting an advisory opinion of the Court”. 132
85. The interpretative pronouncements of supervisory bodies are invariably based on the premise
that a degree of interpretation is inherent in any function responsible for monitoring
compliance. As stated above, the Committee of Experts has noted that monitoring the
application of ratified Conventions “logically and inevitably requires an assessment, which in
turn involves a degree of interpretation of both the national legislation and the text of the
Convention”. 133 The pronouncements of supervisory organs, such as the Committee of Experts
or a Commission of Inquiry, carry considerable moral force due to the stature of their members
and the quasi-judicial nature of their function. They may vary from practical guidance seeking
to clarify the meaning of abstract terms and flexibility clauses to dynamic interpretation of key
provisions of Conventions. 134
131 ILC, 100th Session, 2011, Report of the Committee of Experts on the Application of Conventions and Recommendations, Report
III (Part 1A), paras 10–12.
132 GB.256/SC/2/2, para. 10. However, as the same report concludes, despite the “rare degree of diversity and richness” of the
different types of interpretation machinery, “none of them meets all the conditions necessary to enable it to provide a
definitive settlement of controversies concerning the meaning to be given to the provisions of a Convention” (para. 33).
133 ILC, 102nd Session, 2013, Report III (Part 1A), para. 33.
134 See Claire La Hovary, “The ILO’s supervisory bodies’ ‘soft law jurisprudence’” in Adelle Blackett and Anne Trebilcock (eds),
Research Handbook on Transnational Labour Law, 2015, pp. 316–328.
 GB.349bis/INS/1/1 37
86. Examples of such guidance include the explanations of the Committee of Experts of the
meaning of “substantial equivalence” under Article 2(a) of Convention No. 147, 135 its
clarification of the concept of “consultation” in Convention No. 169, 136 and its guidance on the
conditions under which labour of prisoners in private prisons may be compatible with
Convention No. 29. 137 Further examples include the finding of the Commission of Inquiry
concerning Myanmar that the prohibition of forced labour had become a peremptory norm in
international law, 138 and the conclusion of a tripartite committee examining an article 24
representation as to what should be understood by “reasonable duration” under Article 2(2) of
Convention No. 158. 139
87. The views and findings of ILO supervisory bodies have been directly invoked by international
courts. For example, the European Court of Human Rights considered that “in defining the
meaning of terms and notions in the text of the [Convention for the Protection of Human Rights
and Fundamental Freedoms], [it] can and must take into account elements of international law
other than the Convention, the interpretation of such elements by competent organs, and the
practice of European States reflecting their common values” 140 and has taken into account the
position of the ILO supervisory mechanism regarding the right to strike. 141 Concerning the
disclaimer included in the reports of the Committee of Experts, the European Court of Human
Rights “[did] not consider that this clarification requires it to reconsider this body’s role as a
point of reference and guidance for the interpretation of certain provisions of the
Convention”. 142
88. Similarly, the Inter-American Court of Human Rights has stated that it would take into
consideration, in its interpretation of the American Convention on Human Rights, additional
sources of international law, “as well as opinions and recommendations from the ILO
Committee on Freedom of Association and Committee of Experts on the Application of
Conventions and Recommendations, to develop a harmonious interpretation of international
obligations established under these [international instruments of labor law]”. 143 Observations
of the Committee of Experts have also been used by different human rights treaty bodies 144
135 ILC, 77th Session, 1990, Labour standards on merchant ships: General Survey of the Reports on the Merchant Shipping (Minimum
Standards) Convention (No. 147) and the Merchant Shipping (Improvement of Standards) Recommendation (No. 155), 1976, Report
III (Part 4B), paras 65–79.
136 ILC, 100th Session, 2011, Report of the Committee of Experts on the Application of Conventions and Recommendations, Report
III (Part 1A), pp. 783–788.
137 ILC, 89th Session, 2001, Report of the Committee of Experts on the Application of Conventions and Recommendations, Report
III (Part 1A), paras 82–146.
138 ILO, Official Bulletin, Vol. LXXXI, 1998, Series B, Special Supplement, para. 203.
139 ILO, GB.300/20/6, paras 65–72.
140 Demir and Baykara v. Turkey, Judgment, 12 November 2008, para. 85.
141 Enerji Yapi-Yol Sen v. Turkey, Judgment, 21 April 2009, para. 24.
142 National Union of Rail, Maritime and Transport Workers v. the United Kingdom, Judgment, 8 April 2014, para. 97.
143 Inter-American Court of Human Rights, Advisory Opinion OC-27/21, Right to Freedom of Association, Right to Collective
Bargaining and Right to Strike, and their Relation to other Rights, with a Gender Perspective, 5 May 2021, paras 52, 98. See also
Former Employees of the Judiciary v. Guatemala, Judgment of 17 November 2021, (Preliminary Objections, Merits and
Reparations), paras 107, 109.
144 United Nations Human Rights Committee, Views, 31 October 2005, CCPR/C/85/D/1036/2001, paras 4.7 and 4.8; United
Nations Economic and Social Council, Committee on Economic, Social and Cultural Rights, General comment No. 23 (2016) on
the right to just and favourable conditions of work (article 7 of the International Covenant on Economic, Social and Cultural Rights),
27 April 2016, E/C.12/GC/23, para. 19, footnote 15.
 GB.349bis/INS/1/1 38
and National Contact Points for the OECD Guidelines for Multinational Enterprises, 145 while
views of the Committee on Freedom of Association have been used by arbitrators, among
others. 146
89. Informal opinions have always been considered part of the administrative assistance that
Member States may receive from the Office, subject to the understanding that the Constitution
does not confer upon the secretariat any special competence to interpret international labour
Conventions. 147 As such, informal opinions have no binding legal effect and are without
prejudice to the views of the ILO supervisory bodies. 148 Until 2002, a total of 147 unofficial
interpretations by the Office were communicated to the Governing Body and published in the
Official Bulletin, but this practice has since been discontinued. Informal opinions of the Office
have sometimes been taken into account or confirmed by the Committee of Experts. 149
II.2.3. Implied powers of human rights monitoring bodies: A broader debate
90. The dispute over the interpretative powers of the ILO Committee of Experts is reminiscent of
a much broader debate concerning the supervision of international human rights law, and in
particular the role and function of the UN human rights treaty bodies.
91. At present, there are ten international human rights treaty bodies (committees) tasked with
monitoring compliance with their respective treaties. These committees are composed of
independent experts and are responsible for examining reports from States parties and
adopting “General Comments” and country-specific ‘‘Views”. The General Comments of the
committees that monitor compliance with the two international covenants on human rights –
the International Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights – have given rise to highly diverging views on their
legitimacy. In the relevant literature, some authors consider that the committees’ authority is
part of their inherent competence, or “implied powers”, in accordance with the dictum of the
145 See, for instance, Norwegian National Contact Point, Norwegian United Federation of Trade Unions (Fellesforbundet) v.
Kongsberg Automotive, Final Statement, 28 May 2009; French National Contact Point, SHERPA and European Centre for
Constitutional and Human Rights v. Devcot, Final Statement, 21 September 2012.
146 See, for instance, Arbitral Panel Established Pursuant to Chapter Twenty of the Dominican Republic–Central America–
United States Free Trade Agreement in the Matter of Guatemala – Issues Relating to the Obligations Under Article 16.2.1(a)
of the CAFTA-DR, Final Report, 14 June 2017, para. 427; Report of the Panel of Experts: Proceeding constituted under article
13.15 of the EU–Korea Free Trade Agreement, 20 January 2021, para. 138.
147 See C.W. Jenks, “The interpretation of international labour Conventions by the International Labour Office”, British Yearbook
of International Law, 20, 1939, pp. 132–141; C.H. Dillon, International Labor Conventions – Their Interpretation and Revision, 1942,
pp.135–149.
148 It has been argued, however, that continuous, unchallenged practice has established the Office as the principal organ for
rendering authoritative opinions concerning the interpretation of international labour standards and that those opinions,
once communicated to the Governing Body and published in the Official Bulletin, are tacitly accepted and presumed binding;
see J.F. McMahon, “The legislative techniques of the International Labour Organisation”, British Yearbook of International Law,
41, 1965–66, pp. 90, 99; E. Osieke, Constitutional Law and Practice in the International Labour Organisation, 1985, pp. 207–210.
The practice was reviewed on two occasions, with a view to enhancing the formality of Office interpretations, including
through the approval of the Governing Body, but no change was introduced; see Minutes of the Ninth Session of the Governing
Body, October 1921, p. 309, and Minutes of the 57th Session of the Governing Body, April 1932, p. 345.
149 One recent example is the Committee of Experts’ general observation, published in 2019, that under the Maritime Labour
Convention, 2006, as amended, a seafarer’s continuous shipboard service without leave may not exceed 11 months, which
draws upon an informal opinion provided by the Office in 2016. See also ILC, 87th Session, 1999, General Survey on the reports
on the Migration for Employment Convention (Revised) (No. 97), and Recommendation (Revised) (No. 86), 1949, and the Migrant
Workers (Supplementary Provisions) Convention (No. 143), and Recommendation (No. 151), 1975, Report III(Part 1B), para. 168;
ILC, 93rd Session, 2005, Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III
(Part 1A), p. 387; ILC, 97th Session, 2008, General Survey concerning the Labour Clauses (Public Contracts) Convention, 1949 (No.
94) and Recommendation (No. 84), Report III(Part 1B), para. 70.
 GB.349bis/INS/1/1 39
International Court of Justice in the Reparations for Injuries case of 1949, while critics regard
General Comments as an attempt to attribute to treaty provisions a meaning which they do
not have. 150
92. An important aspect of this debate concerns the limits of “functional” interpretation, that is,
any interpretation exercise necessary for the meaningful discharge of supervisory
responsibilities, or, in other words, tracing the boundaries between interpretation stricto sensu
and law-making through interpretation. 151 This aspect is gaining in importance as
international and domestic courts are increasingly referencing the pronouncements of expert
bodies, often according them determinative legal weight. 152
III. The question(s) to be put to the Court
93. As indicated above, the last time the ILO considered in detail the procedure for referring the
dispute to the International Court of Justice for an advisory opinion was in November 2014.
The document submitted to the Governing Body at that time noted:
There are clearly two questions that dominate the relevant discussions: (1) the substantive
question as to whether the Convention concerning Freedom of Association and Protection of
the Right to Organise, 1948 (No. 87), can be interpreted as protecting the right to strike; and
(2) whether the Committee of Experts’ mandate gives it the authority to make such
interpretations and, if so, whether such interpretations can go beyond general principles by
specifying certain details regarding the application of the principle. It would appear that both
of those questions need to be answered to settle the current dispute and create the legal
certainty necessary for the supervisory system to fully function again. 153
150 The extensive literature on the subject includes: Dinah Shelton, “The Legal Status of Normative Pronouncements of Human
Rights Treaty Bodies” in Coexistence, Cooperation and Solidarity, 2012; Philip Alston, “The Historical Origins of the Concept of
‘General Comments’ in Human Rights Law”, in Laurence Boisson de Chazournes and Vera Gowlland-Debbas (eds), The
International Legal System in Quest of Equity and Universality, Liber amicorum Georges Abi–Saab, pp. 763–776; Laurence R. Helfer,
“Pushback Against Supervisory Systems: Lessons for the ILO from International Human Rights Institutions” in George P.
Politakis, Tomi Kohiyama, Thomas Lieby (eds), ILO100: Law for Social Justice, pp. 257–278; Linos-Alexandre Sicilianos, “Le
dialogue entre la Cour européenne des droits de l’homme et les autres organes internationaux, juridictionnels et quasijuridictionnels”
in Linos-Alexandre Sicilianos, Iulia A. Motoc, Róbert Spanó, Roberto Chenal (eds), Intersecting Views on National
and International Human Rights Protection, Liber amicorum Guido Raimondi, 2019, pp. 871–893; Helen Keller and Leena Grover,
“General Comments of the Human Rights Committee and their legitimacy” in Helen Keller, Geir Ulfstein (eds), UN Human
Rights Treaty Bodies: Law and Legitimacy, 2012, pp. 116–133.
151 It has been observed that, while there are limits marking the difference between norm interpretation and norm creation
that need to be respected, “international human rights law is formulated invariably as principles and general norms, which
necessarily require further development when applying them to specific circumstances. Thus it is inherent in the interpreter’s
task to elaborate, detail, and develop the norm.”; Cecilia Median, “The role of international tribunals: Law-making or creative
interpretation?” in Dinah Shelton (ed.), The Oxford Handbook of International Human Rights Law, 2013, p. 651. For others,
“disregard for rules of interpretation raises the question of where a committee draws the line between interpreting a treaty
and developing new law for which it does not have a mandate. Although playing a general promotional role is part of a treaty
body’s overall mandate …, a conflation of the promotion and the interpretation of rights and obligations endangers the
credibility and significance of the treaty body monitoring system, which depends on the persuasiveness of its output.” Kerstin
Mechlem, “Treaty Bodies and the Interpretation of Human Rights”, in Vanderbilt Journal of Transnational Law 42(3) (2009): 946.
152 For more on the use of treaty body findings by international courts and tribunals, see International Law Association, Final
Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies, 2004, pp. 29–38. The International Law
Commission has found that expert pronouncements could be considered as subsequent agreement or subsequent practice
within the meaning of article 31(3) of the Vienna Convention on the Law of Treaties, as judicial decisions or teachings for the
purpose of identifying customary international law, or as subsidiary means for the determination of rules of international
law; see International Law Commission, Draft conclusions on identification of customary international law, with
commentaries, 2018; International Law Commission, First report on subsidiary means for the determination of rules of
international law, 13 February 2023, A/CN.4/760.
153 GB.322/INS/5, para. 49.
 GB.349bis/INS/1/1 40
94. These key aspects of the interpretation dispute do not appear to have changed substantially
over the past ten years. Indeed, the proposed questions in the referral request presented by
the Workers’ group on 12 July 2023 retain the same wording of those proposed for the
purposes of the Governing Body’s discussion in November 2014:
1. Is the right to strike of workers and their organizations protected under the Freedom of
Association and Protection of the Right to Organise Convention, 1948 (No. 87)?
2. Was the Committee of Experts on the Application of Conventions and Recommendations
(CEACR) of the ILO competent to:
(a) determine that the right to strike derives from the Freedom of Association and
Protection of the Right to Organise Convention, 1948 (No. 87), and
(b) in examining the application of that Convention, specify certain elements concerning
the scope of the right to strike, its limits and the conditions for its legitimate exercise?
95. Recent position statements of the Workers’ and Employers’ groups seem to confirm that the
contentious issues remain the same. For instance, at the March 2023 session of the Governing
Body, the Worker spokesperson affirmed that “[t]here was currently only one serious and
persistent problem of interpretation within the Organization, namely on Convention No. 87, in
relation to the right to strike, and the competence of the Committee of Experts to provide
guidance on the matter”, 154 while the Employer spokesperson declared that her group’s
objective was “to ensure that the Committee of Experts did not create new obligations beyond
those intended by the tripartite constituents at the Conference. The Committee of Experts
should refer difficult questions or gaps in a Convention to the constituents for them to resolve;
its failure to do so in the case of the right to strike had led to the current dispute”. 155
96. Without prejudice to the Governing Body’s decision on the question or questions to be put to
the Court, a number of observations may be made at this juncture. First, from a procedural
point of view, the question must be legal in nature and must have arisen within the sphere of
competence of the Organization. As the Court has noted, questions framed in terms of law and
raising problems of international law are by their very nature susceptible of a reply based on
law and are questions of a legal character. 156 The case law of the Court confirms that the term
“legal question” is not to be interpreted narrowly and that the Court may give an advisory
opinion on any legal question, whether abstract 157 or even purely academic or historical. 158 To
date, there has been only one case in which the Court has declined to give the requested
opinion, on the ground that the question fell outside the competence of the organization
concerned and that, therefore, “an essential condition of founding its jurisdiction in the present
case [was] absent”. 159
97. Second, the question needs to capture the different aspects of the dispute concisely and
directly. The Court has taken the view that a lack of clarity in the drafting of a question does
154 GB.347/PV(Rev.), para. 238.
155 GB.347/PV(Rev.), para. 230.
156 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, para. 13, citing Western Sahara, Advisory
Opinion, ICJ Reports 1975, para. 15.
157 Admission of a State to the United Nations, Advisory Opinion, ICJ Reports 1948, p. 61.
158 Western Sahara, paras 18–19.
159 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Reports 1996, para. 31.
 GB.349bis/INS/1/1 41
not deprive it of jurisdiction and has recalled, in this respect, that it has often been required to
broaden, interpret and even reformulate the questions put. 160
98. Third, the fact that a referral may be politically motivated is not in itself an obstacle to the
Court’s jurisdiction. The Court has observed on several occasions that “the fact that a legal
question also has political aspects (as, in the nature of things, is the case with so many
questions that arise in international life) does not suffice to deprive it of its character as a ‘legal
question’”. 161 It has also considered that “the political nature of the motives which may be said
to have inspired the request and the political implications that the opinion given might have
are of no relevance in the establishment of its jurisdiction”. 162 The Court has even taken the
view that “in situations in which political considerations are prominent it may be particularly
necessary for an international organization to obtain an advisory opinion from the Court as to
the legal principles applicable with respect to the matter under debate”. 163
99. Fourth, while the Court may, at its discretion, decline to reply to a question put to it for reasons
of judicial propriety, it has noted that it is mindful that its answer to a request for an advisory
opinion represents its participation in the activities of the organization, and that it should not,
in principle, refuse to give an advisory opinion unless compelling reasons dictate otherwise. 164
In recent cases, the Court has not accepted as a compelling reason any of the arguments
supporting the view that the Court should decline to give an advisory opinion. For instance, the
Court has dismissed arguments concerning the motives behind the request; the vague or
abstract nature of the question asked; and the fact that the opinion might adversely affect
ongoing negotiations, could impede a negotiated solution, or would lack any useful purpose.
IV. Possible next steps
100. The advisory jurisdiction of the Court is open to those specialized agencies authorized to this
effect by the United Nations General Assembly. This includes the ILO, which received such
authorization under article IX(2) of the 1946 Agreement between the United Nations and the
International Labour Organization. The question put to the Court must be legal in nature,
directly related to the activities of the organization and refer to issues falling within its sphere
of competence.
101. As has been explained on previous occasions, advisory proceedings are initiated by a request
for an advisory opinion, which has to be made in writing and transmitted to the Court. 165
According to article 65(2) of the Statute of the Court, “[q]uestions upon which the advisory
opinion of the Court is asked shall be laid before the Court by means of a written request
containing an exact statement of the question upon which an opinion is required, and
160 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, para.
38; Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ
Reports 2010, para. 50.
161 Threat or Use of Nuclear Weapons, para. 13; Wall, 2004, para. 41; Kosovo, 2010, para. 27.
162 Threat or Use of Nuclear Weapons, para. 13.
163 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, ICJ Reports 1980, para. 33.
164 Threat or Use of Nuclear Weapons, para. 14; Wall, 2004, para. 44.
165 ILO, GB.322/INS/5, paras 14–15 and GB.347/INS/5, para. 10. General information on the advisory jurisdiction of the
International Court of Justice can be found in The International Court of Justice: Handbook, 2019, pp. 81–93, and the Registry’s
Note for States and international organizations on the procedure followed by the Court in advisory proceedings. See also
Khawar Qureshi, Catriona Nicol and Joseph Dyke, Advisory Opinions of the International Court of Justice, 2018; Hugh Thirlway,
“Advisory Opinions” in Max Planck Encyclopedia of Public International Law, 2006.
 GB.349bis/INS/1/1 42
accompanied by all documents likely to throw light upon the question”. 166 To date, all requests
submitted to the Court have taken the form of a formal resolution adopted by the competent
organ of the requesting organization. These resolutions follow a common pattern consisting
of preambular paragraphs providing the context of the problem on which advice is sought,
followed by the question or questions to be answered by the Court. 167
102. Accordingly, if the Governing Body decides to proceed with the request for an advisory opinion,
it would need to adopt in the normal manner – either by consensus or by a majority vote – a
resolution formally submitting to the International Court of Justice the legal question or
questions on which its authoritative guidance is requested. A draft Governing Body resolution
is included in Annex I. The request would be addressed to the Court by the Governing Body
pursuant to the 1949 resolution authorizing the Governing Body to request advisory opinions
of the Court on legal questions arising within the scope of the activities of the Organization. 168
103. Participation in advisory proceedings consists in submitting written statements and, if the
Court decides to hold hearings, presenting oral arguments. The Court is prepared to expedite
the advisory proceedings in accordance with Article 103 of the Rules of Court, if expressly
requested to do so. In deciding which States, international organizations or other entities
should be invited to participate in advisory proceedings under article 66(2) of its Statute, the
Court seeks to ensure that all actors likely to provide information that may not otherwise be
available to the Court are involved in the proceedings. Adopting a pragmatic approach, the
Court is prepared to accept the participation of actors other than intergovernmental
organizations and States, if this is in the interest of obtaining the most accurate and factual
information possible or if the special circumstances of the case necessitate it. Requests for
advisory opinions carry very limited costs (document reproduction and mission costs for
participation in any oral proceedings), as the expenses of the Court are borne by the United
Nations.
104. In the event that the matter is referred to the International Court of Justice, it would be the
seventh time that the Organization has had recourse to the procedure provided for in article
37(1) of the Constitution with a view to resolving an interpretation dispute and the second time
that an advisory opinion has been requested with respect to the interpretation of a Convention.
A summary of the six requests made to the Permanent Court of International Justice under
article 14 of the Covenant of the League of Nations in the period 1922–32 is in included in
Annex II. A graphic representation of the advisory procedure before the International Court of
Justice is included in Annex III.
166 According to Rule 104, the documents, or dossier, must be transmitted to the Court at the same time as the request or as
soon as possible thereafter, in the number of copies required by the Registry. The Court is not officially seized of the case
until the transmission letter is received by the Registry.
167 From 1948 to 2022, the International Court of Justice rendered a total of 27 advisory opinions in response to requests
submitted by the United Nations and four specialized agencies: the United Nations Educational, Scientific and Cultural
Organization; the International Maritime Organization; the World Health Organization and the International Fund for
Agricultural Development. The full text of all advisory opinions is available at https://icj-cij.org/decisions. The most recent
request for an advisory opinion was made by the United Nations General Assembly through resolution 77/276 of 29 March
2023, which was transmitted to the President of the Court by letter of the United Nations Secretary-General dated 12 April
2023.
168 ILC, 32nd Session, 1949, Resolution concerning the Procedure for Requests to the International Court of Justice for
Advisory Opinions.
 GB.349bis/INS/1/1 43
V. Concluding observations
105. As indicated in the introduction, the purpose of the present report is not to address the
substance of the dispute, but merely to set out the various aspects of it, with a view to assisting
constituents in making an informed decision as to whether, on account of the institutional
importance of the question, a referral to the International Court of Justice for an advisory
opinion in accordance with article 37(1) of the Constitution is warranted. In the light of the
preceding analysis, a number of concluding observations may be made:
(a) There is a serious and persistent disagreement within the ILO’s tripartite constituency
concerning the interpretation of Convention No. 87 with respect to the right to strike, and
as a result, legal uncertainty prevails in this respect. Constituents’ positions are
entrenched and there are no prospects for convergence.
(b) The long-standing dispute may be summed up in two questions: whether Convention No.
87 may be interpreted as recognizing or protecting the right to strike; and whether, and
to what extent, the Committee of Experts may, in the discharge of its supervisory
functions, engage in incidental interpretation of Convention No. 87, in particular
regarding the permissible conditions for the exercise of the right to strike.
(c) Both questions are legal in nature, are directly related to the activities of the Organization
and refer to issues falling within its sphere of competence.
(d) Authoritative guidance may be requested from the International Court of Justice on both
questions, under article 37(1) of the ILO Constitution and article IX(2) of the Agreement
between the United Nations and the International Labour Organization. The authoritative
legal answers of the Court could have implications beyond the ILO, as they would address
questions such as treaty interpretation and the system of monitoring of compliance with
international human rights instruments.
(e) The request for an advisory opinion may be validly addressed to the Court by the
Governing Body pursuant to the delegated authority it has received from the Conference.
(f) In considering a possible referral, constituents may wish to pay particular attention to:
(i) the advantages and disadvantages of maintaining the status quo;
(ii) the impact of the current state of affairs on the supervisory system;
(iii) the prospect for ensuring legal certainty through judicial settlement;
(iv) the potential for the governments of all Member States and for the secretariats of
the two non-governmental groups to participate fully and autonomously in the
advisory proceedings of the Court;
(v) the significance of having recourse to article 37 of the Constitution some 90 years
after having last done so, in particular having regard to governance and the principle
of the rule of law.
 GB.349bis/INS/1/1 45
Annex I
Draft Governing Body resolution
The Governing Body,
Conscious that there is serious and persistent disagreement within the tripartite
constituency of the International Labour Organization (ILO) on the interpretation of the
Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), with
respect to the right to strike,
Recalling that at the origin of the dispute is a disagreement among the Organization’s
tripartite constituents concerning the long-standing position of the Committee of Experts on
the Application of Conventions and Recommendations that the right to strike is protected
under Convention No. 87, and whether the Committee of Experts has exceeded its authority in
taking such a position,
Noting that not only the Committee of Experts but also the tripartite Committee on
Freedom of Association have maintained the view that the right to strike is a corollary to the
fundamental right to freedom of association, and that the findings of these supervisory bodies
have been widely echoed in judgments of international human rights courts,
Seriously concerned about the implications that this dispute has on the functioning of the
ILO’s supervisory machinery and the credibility of its system of standards,
Affirming the necessity of resolving the dispute definitively and restoring legal certainty
in accordance with the Organization’s constitutional theory and practice,
Recalling that under article 37, paragraph 1, of the ILO Constitution, “[a]ny question or
dispute relating to the interpretation of this Constitution or of any subsequent Convention
concluded by the Members in pursuance of the provisions of this Constitution shall be referred
for decision to the International Court of Justice”,
Convinced that seeking the Court’s authoritative legal guidance is the only viable option
available, since attempts to reach a generally acceptable understanding through tripartite
dialogue have failed,
Acknowledging the final and binding nature of any advisory opinion so obtained,
Expressing the hope that, in view of the ILO’s unique tripartite structure, not only the
governments of ILO Member States but also the international employers’ and workers’
organizations enjoying general consultative status in the ILO would be invited to participate
directly and on an equal footing in the written proceedings and any oral proceedings before
the Court,
1. Decides, in accordance with article 96, paragraph 2, of the Charter of the United Nations;
article 37, paragraph 1, of the Constitution of the International Labour Organization;
article IX, paragraph 2, of the Agreement between the United Nations and the
International Labour Organization, approved by resolution 50(I) of the General Assembly
of the United Nations on 14 December 1946; and the Resolution concerning the Procedure
for Requests to the International Court of Justice for Advisory Opinions, adopted by the
International Labour Conference on 27 June 1949, to request the International Court of
Justice to render urgently an advisory opinion on the following questions:
 GB.349bis/INS/1/1 46
[1. Is the right to strike of workers and their organizations protected under the Freedom of
Association and Protection of the Right to Organise Convention, 1948 (No. 87)?
2. Was the Committee of Experts on the Application of Conventions and Recommendations
of the ILO competent:
(a) to determine that the right to strike derives from the Freedom of Association and
Protection of the Right to Organise Convention, 1948 (No. 87), and
(b) in examining the application of that Convention, to specify certain elements
concerning the scope of the right to strike, its limits and the conditions for its
legitimate exercise?]
2. Instructs the Director-General to:
(a) transmit this resolution to the International Court of Justice, accompanied by all
documents likely to throw light upon the questions, in accordance with article 65,
paragraph 2, of the Statute of the Court;
(b) respectfully request that the International Court of Justice allow for the participation
in the advisory proceedings of the employers’ and workers’ organizations that enjoy
general consultative status with the ILO;
(c) respectfully request that the International Court of Justice consider possible steps to
accelerate the procedure, in accordance with Article 103 of the Rules of Court, so as
to render an urgent answer to this request;
(d) inform the United Nations Economic and Social Council of this request, as required
under article IX, paragraph 4, of the Agreement between the United Nations and the
International Labour Organization, 1946.
 GB.349bis/INS/1/1 47
Annex II
Interpretation requests filed with the Permanent Court of International Justice
(1922–32) under article 14 of the Covenant of the League of Nations
1. Designation of the Workers’ delegate for the Netherlands at the third session of the
International Labour Conference
Advisory opinion of 31 July 1922
Request introduced by a Conference resolution of 18 November 1921.
Referral decided by unanimous Governing Body agreement (January 1922).
Duration of proceedings: 2.5 months (from 22 May to 31 July 1922).
Three international organizations were invited to participate:
• International Association for the Legal Protection of Workers;
• International Federation of Christian Trades Unions;
• International Federation of Trades Unions.
Two organizations provided oral statements.
2. Competence of the ILO in regard to international regulation of the conditions of labour of
persons employed in agriculture
Advisory opinion of 12 August 1922
Request introduced through a motion submitted by the Government of France directly to the Council of the
League of Nations (January 1922).
Request discussed by the Governing Body based on an oral report from the Director, but no decision was made.
Duration of proceedings: 3 months (22 May to 12 August 1922).
Eight international organizations were invited to participate:
• International Federation of Agricultural Trades Unions;
• International League of Agricultural Associations;
• International Agricultural Commission;
• International Federation of Christian Unions of Landworkers;
• International Federation of Land-workers;
• International Institute of Agriculture;
• International Federation of Trades Unions;
• International Association for the Legal Protection of Workers.
Several organizations submitted written statements and also participated in the oral proceedings.
3. Competence of the ILO to examine proposals for the organization and development of the
methods of agricultural production
Advisory opinion of 12 August 1922
Request introduced by the Government of France through a letter addressed directly to the Secretary-General
of the League of Nations on 13 June 1922.
The Office submitted a report to the Governing Body (July 1922) but there was no discussion or decision.
Duration of proceedings: 24 days (from 18 July to 12 August 1922).
One international organization was invited to participate: the International Institute of Agriculture, which sent
a separate communication.
 GB.349bis/INS/1/1 48
4. Competence of the ILO to regulate, incidentally, the personal work of the employer
Advisory opinion of 23 July 1926
Request introduced by the Employers’ group to the Governing Body through a letter of 8 January 1926.
Referral was discussed by the Governing Body and decided by vote (30th Session, January 1926).
Duration of proceedings: 4 months (from 20 March to 23 July 1926).
Three international organizations were invited to participate:
• International Organization of Industrial Employers;
• International Federation of Trades Unions;
• International Confederation of Christian Trades Unions.
Two submitted written memoranda and all three participated in the hearings.
5. Free City of Danzig and the ILO
Advisory opinion of 26 August 1930
Request introduced by the Office following a letter from the Government of Poland of 20 January 1930
requesting that the Free City of Danzig be admitted to the ILO.
Referral was discussed by the Governing Body and decided by vote (48th Session, April 1930).
Duration of proceedings: 4.5 months (from 15 April to 26 August 1930).
No international organizations were invited to participate.
6. Interpretation of the Night Work (Women) Convention, 1919 (No. 4), concerning
employment of women during the night
Advisory opinion of 15 November 1932
Request introduced by the Government of the United Kingdom of Great Britain and Northern Ireland through a
letter addressed to the Governing Body Chairman on 20 January 1932.
Referral was discussed by the Governing Body and decided by vote (57th Session, April 1932).
Duration of proceedings: 6 months (from 10 May to 15 November 1932).
Three international organizations were invited to participate:
• International Federation of Trades Unions;
• International Confederation of Christian Trades Unions;
• International Organization of Industrial Employers.
Two submitted written statements and also participated in the oral proceedings.
The full text of the advisory opinions of the Permanent Court of International Justice and the pleadings, oral
arguments and documents submitted to the Court may be consulted on the International Court of Justice
website.
 GB.349bis/INS/1/1 49
Annex III
Advisory procedure before the International Court of Justice
Governing Body
Based on an Office report, discusses and decides on
whether to refer the dispute to the Court for an
advisory opinion and, if so, the legal question(s) to
be put to the Court
Despite the 1949 delegation of authority, the
Governing Body may decide to submit its decision
to the next Conference session for validation
Resolution of Governing Body or Conference
The referral decision takes the form of a resolution
that provides context, sets out the question(s),
instructs the Director-General on the file to be
transmitted and the measures to be taken pending
issuance of the advisory opinion
ILO Director-General
Writes to the President or Registrar of the Court to
transmit the resolution of the Governing Body or
the Conference, request the participation of
employers’ and workers’ organizations, and if
necessary, request accelerated procedure
Submits Office dossier with factual information
Court proceedings
Initiation of advisory proceedings (arts 65–66
Statute, arts 102–106 of Rules of Court)
No case to be adjudicated, no parties
Court invites entities to participate, and decides on
form and time limits for comments
Employers’ and workers’ organizations
If the Court considers that they can provide specific
information, may be invited to submit written and
oral statements within 2- to 6-month time limit
Right to reply to statements of others, if authorized
(art. 66(4) Statute, art. 105 Rules of Court)
All Member States
Receive general notification from the Court, may
seek permission to submit written and oral
statements within 2- to 6-month time limit set by
the Court
Right to reply to statements of others, if authorized
(art. 66(4) Statute, art. 105 Rules of Court)
Advisory Opinion
Delivered in public sitting, copy transmitted to the
ILO Director-General
Last operative paragraph contains the Court’s
findings on the question(s); separate/dissenting
opinions are appended
Advisory opinion has binding effect under ILO
constitutional theory and practice
Document No. 30
GB.349bis/INS/1/2, Action to be taken on the request of
the Workers’ group and of 36 governments to
urgently refer the dispute on the interpretation of
Convention No. 87 in relation to the right to strike to
the International Court of Justice for decision in
accordance with article 37(1) of the ILO Constitution –
Summary of the comments received from constituents,
October 2023

 GB.349bis/INS/1/2
To minimize the environmental impact of ILO activities, Governing Body documents published before or after the sessions are not printed. Only documents
issued in-session are printed in limited numbers and distributed to Governing Body members. All Governing Body documents are available at www.ilo.org/gb.
Governing Body
349th bis (special) Session, Geneva, 10 November 2023
Institutional Section INS
Date: 13 October 2023
Original: English
First item on the agenda
Action to be taken on the request of the Workers’
group and of 36 governments to urgently refer the
dispute on the interpretation of Convention No. 87
in relation to the right to strike to the International
Court of Justice for decision in accordance with
article 37(1) of the ILO Constitution
Summary of the comments received from constituents
 Introduction
1. In circulating the Office Background report (GB.349bis/INS/1/1, Appendix) to inform the special
session of the Governing Body on the request of the Workers’ group and of 36 governments
to urgently refer the dispute on the interpretation of the Freedom of Association and
Protection of the Right to Organise Convention, 1948 (No. 87), in relation to the right to strike
to the International Court of Justice (ICJ), the Director-General invited Member States and,
through them, the national employers’ and workers’ organizations concerned, to transmit any
comments they might wish to make on the issue. The intention was to facilitate inclusive
deliberations on a matter of particular institutional significance, including by offering the
opportunity to Members not currently represented in the Governing Body to express their
views.
 GB.349bis/INS/1/2 2
2. As of 11 October 2023, the Office had received communications from 10 governments, the
secretariats of 2 non-governmental groups, 14 national employers’ organizations and
101 national workers’ organizations. The names of the constituents that sent comments
appear in the appendix. The full text of all the comments received is posted on the web page
of the 349th bis (special) Session of the Governing Body.
 Summary of the constituents’ comments
3. On the principal question of whether or not the Organization should refer the interpretation
dispute to the ICJ for decision under article 37(1) of the ILO Constitution, three governments
(Eritrea, Niger and Somalia) 1 expressed support for the proposal of the Workers’ group. The
main reason cited was the need for governments to have legal certainty about the obligations
arising from their ratification of ILO Conventions. They also noted that the ongoing controversy
impacted negatively on the ILO’s standard-setting system.
4. Three Governments (Indonesia, Kenya and Türkiye) did not support a referral to the ICJ and
expressed their preference for continuing dialogue. Indonesia, while recognizing the right to
strike as a fundamental human right and recognizing the authority vested in the Committee of
Experts on the Application of Conventions and Recommendations (“Committee of Experts”) to
interpret Conventions, took the view that the most prudent course of action was to seek
tripartite consensus and urged the Governing Body to consider including an item to this effect
on the agenda of the 112th Session (June 2024) of the International Labour Conference. The
aim would be to examine the issue comprehensively and the potential development of a
framework or standard that would delineate the boundaries and provisions of the right to
strike within the context of Convention No. 87. Should achieving tripartite consensus prove
unattainable, the route to the ICJ remained available in accordance with article 37(1) of the
ILO Constitution. Similarly, Türkiye, while noting that the right to strike was an integral part of
fundamental principles and rights at work but not an absolute right, expressed support for the
pursuit of a resolution within the existing structures of the ILO, promoting active engagement
and open dialogue. This approach would be conducive to yielding a balanced, globally
acceptable outcome. Kenya expressed the wish that the dispute be brought to an amicable
resolution, recalling that it recognized and promoted freedom of association and the right to
strike although it had not yet ratified Convention No. 87.
5. Costa Rica stated that it was in favour of the proposal of the Workers’ group that the matter be
referred to the ICJ, without prejudice to other possible solutions, such as holding a discussion
at the next session of the International Labour Conference on the possible adoption of a
protocol, or any other alternative which might arise out of the forthcoming 349th bis and
349th ter special Sessions of the Governing Body.
6. Switzerland reiterated its continuous preference for the establishment of an in-house tribunal
under article 37(2) of the ILO Constitution to resolve interpretation disputes. As far as the
possible referral to the ICJ was concerned, Switzerland expressed doubts as to whether the two
questions proposed by the Workers’ group were indeed questions of interpretation. In any
event, States parties to Convention No. 87 should be thoroughly involved in the discussions
concerning the content of the question to be put to the Court. As for the referral decision,
1 The names of Members that have ratified Convention No. 87 appear in italics.
 GB.349bis/INS/1/2 3
Switzerland considered that, notwithstanding the Governing Body’s delegated authority, and
for reasons of inclusivity and representativeness, it would be for the International Labour
Conference to take the decision. The composition of the Governing Body no longer reflects the
current composition of the ILO as was the case in 1949 when the resolution under which the
Governing Body was authorized by the Conference to request an advisory opinion from the
Court was adopted.
7. Similarly, Malaysia took the view that while article 37(1) of the ILO Constitution provides an
avenue to resolve interpretation disputes, the referral to the ICJ should be undertaken only
when all other efforts to resolve the dispute have failed. It was preferable to seek solutions
within the ILO, notably through the establishment of an internal, independent tribunal to
provide for the expeditious determination of interpretation disputes.
8. Japan considered that it was essential to first have a discussion among tripartite constituents
and that referral to the ICJ should be considered only as a last resort. As regards the question
to be put to the Court, it should reflect the fact that the right to strike was not an absolute right.
No question should be submitted to the Court as regards the competence of the Committee
of Experts as it should be discussed further by ILO constituents. Accordingly, the Government
proposed some modifications to the draft resolution included in Annex I of the Background
report.
9. The employers’ organizations indicated that they did not support a referral of the dispute to
the ICJ even though the Constitution did provide an avenue for a referral to the Court to resolve
interpretation disputes. In essence, three reasons were put forward: firstly, the possibilities for
resolving the dispute internally had not been exhausted, such as, for instance, holding a debate
at the Conference with a view to adopting an international labour standard; secondly, an
advisory opinion would tend to create additional legal uncertainty as regards the scope of the
right to strike, and would be detrimental to “social peace” in general within the ILO; and thirdly,
an advisory opinion would adversely affect the reputation and the credibility of the ILO. The
right to strike is a multifaceted issue that requires thorough discussion by the tripartite actors
in the world of work. Consensus-based solutions would enable all constituents to actively
engage in the process and would lead to an outcome that would be acceptable to all.
10. While generally recognizing the existence of the right to strike, the employers’ organizations
reiterated their position that Convention No. 87 does not include the right to strike within its
scope neither explicitly nor implicitly. The legislative history documents that the right to strike
was intentionally excluded from the scope of the Convention. The Committee of Experts has
no mandate to change the Convention in relation to the right to strike or to interpret the
Convention as if it contained such a provision and create a body of interpretations outside the
tripartite decision-making structure. The Committee on Freedom of Association does not have
a mandate to interpret the scope or supervise Convention No. 87.
11. For their part, the workers’ organizations expressed support for a referral of the dispute to the
ICJ, emphasizing the paramount importance of the right to strike for workers and their
organizations as well as for labour rights in general, arguing that legal certainty through a
binding advisory opinion of the Court is urgently required. The inability of the ILO to supervise
the application of the right to strike under Convention No. 87 due to the ongoing dispute, has
had an adverse impact on labour relations at the national level. The proposed protocol to
Convention No. 87 would not have any added value given that, as elaborated by the
ILO supervisory bodies, Convention No. 87 already guarantees the right to strike as a
fundamental principle and right at work. The adoption of a protocol would not bring legal
certainty and would, on the contrary, exacerbate the dispute.
 GB.349bis/INS/1/2 4
12. For the workers’ organizations, the protection of the right to strike is inherent in the ILO’s
constitutional mandate and, as such, it was included within the scope of Convention No. 87.
More broadly, the right to strike is an integral part of international law and its protection at the
international level is critical. Convention No. 87 and the views expressed by the Committee of
Experts and the Committee on Freedom of Association had gained resonance, notably through
national and international court decisions, multinational enterprises’ codes of conduct and free
trade instruments, and this could explain the change in the position of the Employers’ group
after more than 60 years of those views remaining unchallenged.
 Comments submitted by the International Organisation of
Employers
13. The International Organisation of Employers (IOE) considers that the source of the dispute lies
in the broad interpretation of the right to strike made by the Committee of Experts, and noted
the role the Office has played in that respect. The Employers acknowledge that the right to
strike exists at the national level but are firmly of the view that neither Convention No. 87 nor
any other Convention for that matter, provide for the right to strike or regulated its exercise.
While the referral to the ICJ of any question or dispute on interpretation was set forth in
article 37(1) of the Constitution, ILO constituents had repeatedly favoured tripartite solutions
with the single exception concerning the interpretation of the Night Work (Women)
Convention, 1919 (No. 4). An important point is that the ICJ is not the only competent body and
in fact, it can only provide limited legal certainty as regards interpretation disputes as its
advisory opinions are inherently not legally binding. On the other hand, standard-setting
action would provide more legal certainty as regards the right to strike and would ensure
inclusivity and democracy by allowing all constituents to actively participate in the process. This
option was consistent with the mandate of the ILO and upheld the principles of tripartism and
social dialogue.
14. With regard to Convention No. 87 and the right to strike, the IOE stated that the legislative
history of Convention No. 87 was indisputably clear; when developing the Convention, the
tripartite constituents intentionally did not include that right, either explicitly or implicitly.
Many official documents of governments, employers, workers, and also the ILO supervisory
bodies, acknowledge that neither Convention No. 87 nor any other Convention addressed the
right to strike. The rules of treaty interpretation set out in Articles 31 and 32 of the Vienna
Convention on the Law of Treaties, 1969, should be fully respected. In particular, the ordinary
meaning of the relevant provisions was clear and left no room for vague concepts such as
“dynamic” interpretation. Convention No. 87 does not contain the term “right to strike” or
similar terms. Neither could it be argued that there had been agreement between the parties
to Convention No. 87 on the interpretation of the right to strike established through
subsequent agreement or practice, as demonstrated by the fact that several ratifying States
had at different points in time stated that neither Convention No. 87 nor any other ILO
instrument provided for the right to strike. On the other hand, recourse to supplementary
means of interpretation, such as the preparatory work, could be made to confirm the meaning
resulting from the application of Article 31.
15. With respect to the mandate of the Committee of Experts, it was clear that it was limited to an
impartial and technical analysis and that its opinions and recommendations were non-binding.
Further, when it was established in 1926, the Conference had clarified that the Committee
 GB.349bis/INS/1/2 5
would not be competent to interpret Conventions. Yet, the Committee of Experts gradually
built a comprehensive body of broad, extensive and detailed interpretations that provided for
far-reaching, almost unrestricted freedom to strike.
16. With respect to the questions to be put to the Court, the IOE considered that reference should
have been made to Articles 31 and 32 of the Vienna Convention as both the interpretation of
Convention No. 87 in relation to the right to strike and the competence of the Committee of
Experts should be decided having regard to the requirements of these provisions. In any event,
the two questions proposed by the Workers were insufficient as, among other things, the ICJ
should be asked to clarify the role of the Conference both as regards the Committee of Experts
and on the competence of the Conference to settle authoritatively interpretation disputes
through standard-setting.
17. With regard to the possible next steps, the IOE considers that no decision to refer an
interpretation dispute to the ICJ should be made without the support of the State parties to the
Convention and that this support should be expressed within the framework of the
International Labour Conference. Referral to the Court should not be considered until all
possibilities for dialogue between the main ILO actors competent in the area of ILO and
international labour standards have been exhausted.
18. The full text of the comments submitted by the IOE is posted on the web page of the 349th bis
(special) Session of the Governing Body.
 Comments submitted by the International Trade Union
Confederation
19. The International Trade Union Confederation (ITUC) recalled that since the institutional crisis
broke out in 2012, the governments and social partners have engaged unsuccessfully in
several efforts to resolve the interpretation dispute through social dialogue. It is of the view
that further dialogue will not break this impasse. The dispute and the lack of legal certainty has
undermined the functioning of the supervisory system. Settling the legal question of the scope
of Convention No. 87 regarding the right to strike and affirming the authoritative guidance of
the Organization’s supervisory organs should be prioritized as the most reasonable, efficient
and effective way to proceed. The Constitution provides for an efficient and available
mechanism to resolve this legal dispute through article 37(1).
20. The Employers’ group is the only group which disputes the legal validity of the guidance of the
supervisory organs regarding the right to strike and the scope of Convention No. 87. Yet this
guidance was based on the long-standing view that the right to strike for workers and their
organizations is a fundamental and intrinsic corollary of freedom of association and the right
to organize. This legal interpretation had been consistently applied and had informed national
legislation and practice but also international courts, multilateral organizations as well as
national, international and regional human rights bodies.
21. The rationale for invoking article 37(1) was that as the interpretation question would impact
the exercise of a fundamental right and the smooth functioning of the supervisory system of
the ILO and beyond, it would be most prudent and appropriate to have recourse to the
constitutional procedure set out in article 37(1). Unless the Employers’ group recognized the
widely held legal interpretation and principle regarding the fundamental link between the right
to strike and freedom of association and right to organize and their protection under
 GB.349bis/INS/1/2 6
Convention No. 87 as well as the authoritativeness of the body of legal guidance of the
supervisory bodies including the Committee of Experts, it was necessary to seek legal certainty
through recourse to article 37(1).
22. There is no constitutional basis for the suggestion of the Employers’ group that the dispute
should be discussed at the Conference. With respect to the proposed adoption of a protocol,
any effort to address this interpretation dispute through a standard-setting activity, while the
uncertainty remained, would not effectively address the scope of Convention No. 87 in relation
to the right to strike.
23. With respect to the two proposed questions to be put to the Court, the intention was to cover
all aspects of the interpretation dispute. Obtaining an affirmative answer to the first question
but also legal certainty on the mandate of the Committee of Experts would be critical to
resolving the dispute.
24. With regard to the role of the preparatory work that led to the adoption of Convention No. 87,
the ITUC recalled the position of the Committee of Experts that the absence of a concrete
provision is not dispositive, as the terms of the Convention must be interpreted in the light of
its object and purpose.
25. The ITUC supported the draft resolution appended to the Background report contending that
the ICJ is the only mechanism that could provide the necessary legal certainty and clarity to an
issue with such broad implications.
26. The full text of the comments submitted by the ITUC is posted on the web page of the 349th bis
(special) Session.
 Conclusion
27. Despite the early circulation of the Background report, the response rate, especially on the
part of governments, has been low.
28. The comments confirm that the dispute is not so much about the recognition of the right to
strike but rather on the interpretation of Convention No. 87 and the authority of the Committee
of Experts to develop authoritative guidance with respect to the conditions for the exercise of
the right to strike and the limits to that right.
29. As might be expected, the comments from national employers’ and workers’ organizations
reflect the clear division of opinion between the Employers’ group and the Workers’ group on
the advisability of referring the dispute to the International Court of Justice for decision under
article 37(1) of the ILO Constitution.
 GB.349bis/INS/1/2 7
 Appendix
Governments
Costa Rica
Eritrea
Indonesia
Japan
Kenya
Malaysia
Niger
Somalia
Switzerland
Türkiye
Employers’ organizations
International Organisation of Employers (IOE)
Confederación de Cámaras Industriales de los Estados Unidos Mexicanos (CONCAMIN)
Confederación Patronal de la República Mexicana (COPARMEX)
Confederation of Danish Employers (DA)
Confederation of Finnish Industries (EK)
Confederation of Norwegian Enterprise (NHO)
Confederation of Portuguese Business (CIP)
Confederation of Swedish Enterprise (SN)
Comité Coordinador de Asociaciones Agrícolas, Comerciales, Industriales y Financieras (CACIF)
(Guatemala)
Fédération des entreprises de Belgique (FEB)
Hellenic Federation of Enterprises (SEV)
Japan Business Federation (Keidanren)
Malaysian Employers Federation (MEF)
Union patronale suisse (UPS)
Union tunisienne de l’industrie, du commerce et de l’artisanat (UTICA)
 GB.349bis/INS/1/2 8
Workers’ organizations
International Trade Union Confederation (ITUC)
All Indonesian Trade Union Confederation (KSBSI)
All Nepal Federation of Trade Unions (ANTUF)
All-Poland Alliance of Trade Unions (OPZZ)
Australian Council of Trade Unions (ACTU)
Bangladesh Free Trade Union Congress (BFTUC)
Bangladesh Jatiyatabadi Sramik Dal DAL-BJSD
Bangladesh Labour Federation (BLF)
Botswana Federation of Trade Unions (BFTU)
Canadian Labour Congress (CLC)
Central Autónoma de Trabajadores del Perú (CATP)
Central Autónoma de Trabajadores Salvadoreños (CATS)
Central de Trabajadores/as de la Argentina Autónoma (CTA-A)
Central Organisation of Finnish Trade Unions (SAK)
Central Organization of Trade Unions – Kenya (COTU-K)
Central Unitaria de Trabajadores/as de Chile (CUT-Chile)
Central Unitaria de Trabajadores del Perú (CUT-Perú)
Confederação Geral dos Trabalhadores Portugueses (CGTP)
Confederación Auténtica de Trabajadores de la República Mexicana (CAT)
Confederacíon Autónoma Sindical Clasista (CASC) (Dominican Republic)
Confederación de Trabajadores de México (CTM)
Confederación de Unificación Sindical (CUS) (Nicaragua)
Confederación General del Trabajo de la República Argentina (CGT-RA)
Confederación Intersindical Galega (CIG) (Spain)
Confederación Nacional de Unidad Sindical (CNUS) (Dominican Republic)
Confederación Nacional de Unidad Sindical Independiente (CONUSI) (Panama)
Confederación Sindical de Comisiones Obreras (CCOO) (Spain)
Confederația Națională Sindicală (Cartel Alfa) (Romania)
Confédération des syndicats autonomes du Sénégal (CSA)
Confédération des Travailleurs des Secteurs Publique et Privé (CTSP) (Mauritius)
Confédération française démocratique du travail (CFDT)
Confédération générale autonome des travailleurs en Algérie (CGATA)
Confédération libre des travailleurs de Mauritanie (CLTM)
 GB.349bis/INS/1/2 9
Confédération luxembourgeoise des syndicats chrétiens (LCGB)
Confédération nationale des travailleurs du Burkina (CNTB)
Confédération nationale des travailleurs du Sénégal (CNTS)
Confederation of Autonomous Trade Unions of Serbia (CATUS)
Confederation of Ethiopian Trade Unions (CETU)
Confederation of Free Trade Unions of Macedonia (KSS)
Confederation of Free Trade Unions of Ukraine (KVPU)
Confederation of Independent Trade Unions in Bulgaria (CITUB)
Confederation of Progressive Trade Unions of Turkey (DISK)
Confederation of Public Employees’ Trade Unions (KESK) (Türkiye)
Confederation of Trade Unions of Albania (KSSH)
Confederation of Trade Unions of Montenegro (CTUM)
Confederation of Turkish Trade Unions (TÜRK-İŞ)
Confederation of Unions for Professionals (Unio) (Norway)
Confédération syndicale des travailleurs du Togo (CSTT)
Confédération syndicale du Congo (CSC) (Democratic Republic of the Congo)
Confédération syndicale indépendante du Luxembourg (OGBL)
Consejo Nacional del Trabajadores Organizados (CONATO) (Panama)
Construction and Building Materials Industry Workers’ Union of Ukraine (PROFBUD)
Czech Moravian Confederation of Trade Unions (ČMKOS)
Federación Sindical de Trabajadores Independientes (FSTIES) (El Salvador)
Fédération nationale des syndicats des ouvriers et des employés du Liban (FENASOL)
Federation of Independent Trade Unions of Russia (FNPR)
Federation of Iraq Trade Unions (FITU)
Federation of Korean Trade Unions (FKTU)
Federation of Somali Trade Unions (FESTU)
Federation of Trade Unions of Macedonia (SSM)
Federation of Trade Unions of the Republic of Kazakhstan (FPRK)
Federation of Trade Unions of Ukraine (FPU)
General Federation of Bahrain Trade Unions (GFBTU)
General Workers’ Union (UGT) (Portugal)
Georgian Trade Union Confederation (GTUC)
German Confederation of Trade Unions (DGB)
Greek General Confederation of Labour (GSEE)
 GB.349bis/INS/1/2 10
Hind Mazdoor Sabha (HMS) (India)
Independent and Self-Governing Trade Union Solidarność (NSZZ “Solidarność”) (Poland)
Independent Trade Unions of Croatia (NHS)
Italian Confederation of Workers’ Trade Unions (CISL)
Italian General Confederation of Labour (CGIL)
Italian Labour Union (UIL)
Japanese Trade Union Confederation (JTUC–RENGO)
Kilusang Mayo Uno (KMU) (Philippines)
Korean Confederation of Trade Unions (KCTU)
Liberia Labour Congress (LLC)
National Trade Union Confederation (NTUC) (Mauritius)
Netherlands Trade Union Confederation (FNV)
Pakistan Workers’ Federation (PWF)
Pan-Cyprian Federation of labour (PEO) (Cyprus)
Randrana Sendikaly USAM-SVS (Madagascar)
Singapore National Trades Union Congress (SNTUC)
Swedish Confederation of Professional Associations (SACO)
Swedish Confederation of Professional Employees (TCO)
Swedish Trade Union Confederation (LO)
Syndicat des enseignants du supérieur solidaires (SESS) (Algeria)
Swiss Trade Union Confederation (SGB/USS)
Trade Union Congress (TUC) (United Kingdom of Great Britain and Northern Ireland)
Trade Union Congress of Namibia (TUCNA)
Trade Union Congress of Swaziland (TUCOSWA)
Trade Union Confederation “Nezavisnot” (Nezavisnost) (Serbia)
Trade Union Confederation of the Republic of Srpska (Bosnia and Herzegovina)
Unión General de los Trabajadores del Brazil (UGT)
Unión General de Trabajadoras y Trabajadores de España (UGT-E) (Spain)
Unión Nacional de Trabajadores (UNT) (Mexico)
Union nationale des syndicats des travailleurs du Bénin (UNSTB)
Union nationale des travailleurs de Guinée-Bissau (UNTG-CS)
Union of Autonomous Trade Unions of Croatia (UATUC)
Union of Free Trade Unions of Montenegro (UFTUM)
Union of Independent Trade Unions of Albania (BSPSH)
Zimbabwe Congress of Trade Unions (ZCTU)
Document No. 31
Draft Minutes of the 349th bis (Special) Session of
the Governing Body, November 2023

 GB.349bis/PV/Draft
Governing Body
349th bis (Special) Session, Geneva, 10 November 2023
Warning: this document is a draft and may contain omissions or errors. It is made available solely for the purpose
of verification and correction. Persons referred to in this document are not to be regarded as bound by statements
attributed to them. The ILO declines all responsibility for any errors or omissions which this document may contain,
or for any use which may be made of it by third parties. Governing Body members may send corrections to their
own interventions by 25 January 2024 to [email protected].
Draft minutes of the 349th bis (Special) Session of
the Governing Body of the International Labour
Office
Contents
Page
Institutional Section
1. Action to be taken on the request of the Workers’ group and of 36 governments
to urgently refer the dispute on the interpretation of Convention No. 87 in
relation to the right to strike to the International Court of Justice for decision
in accordance with article 37(1) of the Constitution (GB.349bis/INS/1/1 and
GB.349bis/INS/1/2) ................................................................................................................. 3
Committee of the Whole................................................................................................................ 3
Governing Body .............................................................................................................................. 17
Decision ................................................................................................................................... 34

 GB.349bis/PV/Draft 3
 Institutional Section
1. Action to be taken on the request of the Workers’ group and of
36 governments to urgently refer the dispute on the interpretation of
Convention No. 87 in relation to the right to strike to the International
Court of Justice for decision in accordance with article 37(1) of the
Constitution (GB.349bis/INS/1/1 and GB.349bis/INS/1/2)
Committee of the Whole
1. The Chairperson recalled that the 349th bis (Special) Session of the Governing Body had been
convened pursuant to article 7(8) of the Constitution of the International Labour Organization
and paragraph 3.2.2 of the Standing Orders of the Governing Body. At its 349th Session, the
Governing Body had approved the arrangements for the special session. They included a
sitting as a Committee of the Whole, in accordance with article 4.3 of the Standing Orders, to
hold a broad exchange of views with the participation of governments not represented on the
Governing Body, on the understanding that any decisions would be made by the Governing
Body in its ordinary plenary composition after the Committee of the Whole had been
concluded.
2. The 349th bis (Special) Session was devoted to an in-depth discussion with a view to making an
informed decision on the request of the Workers’ group and of 36 governments to urgently
refer the dispute on the interpretation of the Freedom of Association and Protection of the
Right to Organise Convention, 1948 (No. 87), in relation to the right to strike to the
International Court of Justice (ICJ) for decision in accordance with article 37(1) of the
ILO Constitution. He called on participants not to address the substance of the disagreement
concerning Convention No. 87 and the right to strike, but to focus on the advantages or
disadvantages of referring the dispute to the ICJ for decision, which was the subject of the
request under consideration.
3. He noted that the following amended draft decision and draft resolution had been proposed
by a group of 44 countries from various regions and circulated by the Office: 1
Further to the request of the Workers’ group and of 36 governments to urgently refer the
dispute on the interpretation of the Freedom of Association and Protection of the Right
to Organise Convention, 1948 (No. 87), in relation to the right to strike to the
International Court of Justice for decision in accordance with article 37(1) of the
Constitution, the Governing Body decided to adopt the following resolution:
The Governing Body,
Conscious that there is serious and persistent disagreement within the tripartite
constituency of the International Labour Organization (ILO) on the interpretation of the
1 Argentina, Australia, Austria, Barbados, Belgium, Brazil, Bulgaria, Canada, Colombia, Costa Rica, Croatia, Chile, Cyprus,
Czechia, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania,
Luxembourg, Malta, Montenegro, Netherlands, North Macedonia, Norway, Poland, Portugal, Romania, Slovakia, Slovenia,
South Africa, Spain, Sweden, Ukraine, United Kingdom of Great Britain and Northern Ireland, United States of America.
 GB.349bis/PV/Draft 4
Freedom of Association and Protection of the Right to Organise Convention, 1948
(No. 87), with respect to the right to strike,
Recalling that at the origin of the dispute is a disagreement among the Organization’s
tripartite constituents concerning whether the right to strike is protected under
Convention No. 87,
Noting that ILO supervisory bodies have consistently observed that the right to strike is a
corollary to the fundamental right to freedom of association,
Seriously concerned about the implications that this dispute has on the functioning of the
ILO and the credibility of its system of standards,
Affirming the necessity of resolving the dispute consistent with the Constitution of the
ILO,
Recalling that under article 37, paragraph 1, of the ILO Constitution, “[a]ny question or
dispute relating to the interpretation of this Constitution or of any subsequent
Convention concluded by the Members in pursuance of the provisions of this Constitution
shall be referred for decision to the International Court of Justice”,
Recalling the consensual decision of the 320th Governing Body in March 2014, welcoming
“the clear statement by the Committee of Experts of its mandate as expressed in the
Committee’s 2014 report”:
“The Committee of Experts on the Application of Conventions and
Recommendations is an independent body established by the International Labour
Conference and its members are appointed by the ILO Governing Body. It is
composed of legal experts charged with examining the application of ILO
Conventions and Recommendations by ILO member States. The Committee of
Experts undertakes an impartial and technical analysis of how the Conventions are
applied in law and practice by member States, while cognizant of different national
realities and legal systems. In doing so, it must determine the legal scope, content
and meaning of the provisions of the Conventions. Its opinions and
recommendations are non-binding, being intended to guide the actions of national
authorities. They derive their persuasive value from the legitimacy and rationality of
the Committee’s work based on its impartiality, experience and expertise. The
Committee’s technical role and moral authority is well recognized, particularly as it
has been engaged in its supervisory task for over 85 years, by virtue of its
composition, independence and its working methods built on continuing dialogue
with governments taking into account information provided by employers’ and
workers’ organizations. This has been reflected in the incorporation of the
Committee’s opinions and recommendations in national legislation, international
instruments and court decisions”.
Noting that, despite protracted attempts, no consensus has been reached through
tripartite dialogue,
Emphasising that Article 37.1 of the Constitution establishes that any referral to the
International Court of Justice is for decision on the question or dispute referred,
Expressing the hope that, in view of the ILO’s unique tripartite structure, not only the
governments of ILO Member States but also the international employers’ and workers’
organizations enjoying general consultative status in the ILO would be invited to
participate directly and on an equal footing in the written proceedings and any oral
proceedings before the Court,
Decides, in accordance with article 37, paragraph 1, of the Constitution of the
International Labour Organization,
1. To request the International Court of Justice to render urgently an advisory
opinion under Article 65, paragraph 1, of the Statute of the Court, and under
Article 103 of the Rules of Court, on the following question:
 GB.349bis/PV/Draft 5
Is the right to strike of workers and their organizations protected under the
Freedom of Association and Protection of the Right to Organise Convention, 1948
(No. 87)?
2. Instructs the Director-General to:
(a) transmit this resolution to the International Court of Justice,
accompanied by all documents likely to throw light upon the question, in
accordance with article 65, paragraph 2, of the Statute of the Court;
(b) respectfully request that the International Court of Justice allow for the
participation in the advisory proceedings of the employers’ and workers’
organizations that enjoy general consultative status with the ILO;
(c) respectfully request that the International Court of Justice consider
possible steps to accelerate the procedure, in accordance with Article 103
of the Rules of Court, so as to render an urgent answer to this request;
(d) inform the United Nations Economic and Social Council of this request, as
required under article IX, paragraph 4, of the Agreement between the
United Nations and the International Labour Organization, 1946.
4. The Worker Vice-Chairperson noted that freedom of association was at the heart of the ILO’s
100-year mandate, enshrined in its Constitution and reaffirmed in the Declaration of
Philadelphia. It had been further developed in Convention No. 87, and in 1951 the Committee
on Freedom of Association had been established to supervise its application. It was an enabling
right and, together with the right to collective bargaining, was essential for achieving all other
rights. Yet, it was the most frequently violated fundamental right.
5. The right to strike had long been recognized both in the ILO and beyond as an intrinsic
corollary of freedom of association. That right must be available as a last resort, providing
organized workers with a countervailing power to that of their employer. However, during the
2012 session of the International Labour Conference, the Employers’ group had challenged the
competence of the Committee of Experts on the Application of Conventions and
Recommendations to derive the right to strike from Convention No. 87 and refused to
cooperate in the Committee on the Application of Standards when it discussed any cases
concerning Convention No. 87 in which the Committee of Experts had made observations on
the right to strike. That had caused the Committee on the Application of Standards to fail to
adopt conclusions for the first time since its establishment in 1926. Despite numerous efforts
by the Office and the tripartite constituents, the dispute had remained unresolved, thus calling
into question the existence and protection of a fundamental right, eroding the supervisory
capacity of the ILO and creating legal uncertainty for Member States that had ratified
Convention No. 87. It had also engendered an atmosphere of antagonism within the ILO,
hampering its effectiveness.
6. Exchanges between the Workers’ group and governments in recent months had revealed a
general recognition of the importance of freedom of association, with the right to strike as a
corollary, and the understanding that there was indeed an urgent need to resolve the
outstanding conflict in the interest of all constituents. However, positions diverged as to how.
As all other attempts to resolve it had failed, the Workers’ group believed that there was no
alternative to referring the dispute to the ICJ. The group had therefore written to the
Director-General on 12 July 2023 invoking article 37(1) of the ILO Constitution, which
recognized the ICJ as the organ with exclusive jurisdiction to interpret authoritatively the
ILO Constitution and Conventions, and which unambiguously established an obligation for the
ILO to submit any interpretation dispute to the ICJ for decision. The Workers’ group reiterated
its commitment to accept, in accordance with the ILO’s constitutional theory and practice, the
decision of the ICJ as authoritative and final. The group expected the ICJ to confirm the law and
 GB.349bis/PV/Draft 6
practice in the ILO, in which case the ILO supervisory system would continue its work, including
by providing authoritative guidance to Member States and social partners at the national level
on how to interpret and implement Convention No. 87. The Workers’ group did not seek to
change the status quo regarding the right to strike, which, it recognized, was not an absolute
right.
7. In response to the argument put forward by the Employers’ group and some governments that
the matter should be resolved by social dialogue as a referral to the ICJ would be viewed as a
failure of tripartism, the Workers’ group contended that there was no realistic chance of
consensus in a situation of mutually exclusive positions that were so persistent. The Employers’
group’s proposal to include on the agenda of the 2024 session of the Conference a
standard-setting item on a Protocol to Convention No. 87 was fundamentally flawed, as it was
legally, technically and politically unsound and untenable. First, it was unclear whether the
legal starting point would be that the right to strike was or was not covered by Convention
No. 87. Second, it was legally contradictory for the Employers’ group to maintain both that
Convention No. 87 did not enshrine a right to strike and that that a Protocol to the Convention
could be developed to govern the right to strike. Third, in advocating such a Protocol, the
Employers’ group’s stated aim was to annul the existing authoritative guidance of the
supervisory bodies. That would create a two-tier legal system, thus reducing legal certainty.
Fourth, the effect of the proposal of the Employers’ group would be to eliminate fundamental
rights, which it would then offer to renegotiate afresh. Fifth, the proposal of the Employers’
group to include the contentious item on the Conference agenda for 2024 would violate all
existing rules and procedures in the ILO designed to safeguard full tripartite involvement in
the development of standards. Finally, as discussed by the Governing Body at its 344th Session
(March 2022), the only way to achieve legal certainty was through legal means, which involved
invoking article 37 of the Constitution. That discussion had also shown that there was very little
support in the Governing Body for the further development of a possible internal tribunal on
the basis of article 37(2).
8. As to the legal question or questions that the ICJ should address, the Worker Vice-Chairperson
said that, as the Employers’ group had challenged both the existence of a right to strike under
Convention No. 87 and the opinion of the Committee of Experts that the right to strike derived
from Convention No. 87, those two aspects of the conflict were closely linked. Furthermore,
the interpretation dispute challenged the validity of the guidance of the supervisory bodies
regarding the constitutional principle of freedom of association and the right to strike, seen as
its intrinsic corollary and therefore covered by Convention 87. It was therefore sufficient that
one question be put to the ICJ: whether the right to strike of workers and their organizations
was protected under Convention No. 87. The Workers’ group expected the Governing Body to
request the ICJ to allow the autonomous participation of the International Trade Union
Confederation (ITUC) and the International Organisation of Employers (IOE) in the
proceedings.
9. As to whether the Governing Body had the mandate to decide on the referral, the Workers’
group considered that there could be no doubt that it did, and that it was the most appropriate
structure to make any such decision. Article IX(2) of the 1946 agreement between the
United Nations and the ILO explicitly authorized the ILO to request an advisory opinion from
the ICJ on legal questions arising within the scope of its activities. Furthermore, at its
32nd Session (1949), the Conference had mandated the Governing Body, through the
Resolution concerning the Procedure for Requests to the International Court of Justice for
Advisory Opinions, to decide on requests for referral to the ICJ, and that delegated authority
 GB.349bis/PV/Draft 7
remained valid. It was also the Governing Body that had been following up on the matter
since 2012.
10. The proceedings since the Workers’ group’s submission in July had been inclusive. The dispute
was also urgent, since the legal uncertainty about governments’ obligations under Convention
No. 87 left doubt as to the extent of the protection of workers. A referral to the ICJ by the
Governing Body was the only practical, efficient, quick, decisive, inclusive, fair and reasonable
way forward. The argument that the Conference should play a role by validating the decision
of the Governing Body on the basis that it was purportedly undemocratic was unsound, as the
Governing Body had been making decisions for over 100 years; it was inappropriate to
challenge selective decisions as being undemocratic. Adding another layer of decision-making
could create further confusion and delay, and the precedent thus set might erode the
recognition of the authority and competencies of the Governing Body.
11. The role of the Governing Body was to govern, and a decision was needed that day. It would
be preferable for the decision to be reached by consensus, but a vote might be required. In
that event, Governing Body members should not vote against the protection of a fundamental
workers’ right and certainly not against the exercise of a constitutional obligation. Future
generations would hold the members of the Governing Body accountable for their decision on
the matter. For social justice to prevail, the judiciary was occasionally required to provide
authoritative guidance on the legal basis underlying the Organization’s important work.
12. The Workers’ group supported the amended draft decision proposed by the group of
44 countries.
13. The Employer Vice-Chairperson said that she profoundly disagreed with how the item had
found its way onto the Governing Body agenda; the special session had not been convened in
accordance with established governance rules and practice. Furthermore, the information and
guidance provided by the Office was biased in favour of the referral of the dispute to the ICJ,
which was not the position of all constituents. The Office had failed in its duty to be impartial
and had colluded with one group, which did not bode well.
14. She noted that although the Worker Vice-Chairperson had said that there was no alternative
to requesting a referral to the ICJ as no solution had been found through dialogue, it was the
Workers’ group that had continually refused to hold a substantive discussion on the scope and
limits of the right to strike. The Government group had stated during the tripartite meeting
held in February 2015 that it was ready to consider discussing the exercise of the right to strike,
and the Employers’ group had consistently called for social dialogue on the topic. Universally
applicable rules and boundaries defining the right to strike had never been discussed or
adopted by the International Labour Conference. Several international legal instruments
stated that a right to strike existed, but was defined by national law; there were no universally
applicable definitions or rules.
15. The Employers’ group strongly opposed a referral to the ICJ. According to article 37(1) of the
ILO Constitution, referrals to the ICJ required an interpretation dispute. However, there could
be no dispute over the interpretation of Convention No. 87, as it did not include any reference
to a “right to strike” or even the term “strike”. The drafters of the Convention had deliberately
excluded the subject from its scope, as they considered that it had to be regulated in a separate
standard.
16. At issue was the illegitimate interpretation of Convention No. 87 by the Committee of Experts,
which had used the terms “activities” and “defending the interests of workers” in Articles 3 and
10 to justify its development of comprehensive and excessive rules on the scope and conditions
 GB.349bis/PV/Draft 8
of the right to strike. The detail and length of the catalogue of rules – 44 paragraphs of the
2012 General Survey on Convention No. 87 – demonstrated that it was not an interpretation,
but an extension of the scope of the Convention to fill a regulatory gap. However, only the
Conference was competent to fill normative gaps.
17. Not only would a referral to the ICJ not resolve the dispute, it would have negative effects for
the ILO and its supervisory mechanism. Any finding that Convention No. 87 did provide for the
right to strike – despite the fact that its drafters had expressly excluded it and many
governments had recognized that it was not included – would have implications for ratification
of standards. Confidence in the reliability of obligations under ratified ILO Conventions would
be lost, and constituents might be reluctant to set new standards. It would set a very bad
precedent, undermining efforts to resolve differences of opinion through social dialogue and
mutual agreement.
18. An advisory opinion from the ICJ would bring into sharper focus the many incompatibilities
between national law and practice, on the one hand, and the excessive rules of the Committee
of Experts, on the other. One example was that the Committee of Experts had stated that
political strikes, sympathy strikes and strikes by public service officials must be allowed, and
that essential services had to be defined extremely restrictively. Governments with national
regulations and practices prohibiting certain types of strikes would face strong pressure to
align their national laws, or even their constitutional law, with the so-called interpretations of
the Committee of Experts or risk a complaint being brought before one of the supervisory
bodies. In addition, an ICJ referral could further deter countries that had not yet ratified the
Convention from doing so.
19. An ICJ referral would also send a very negative message to the public about the ILO’s ability to
settle divergences on important substantive matters, which could suggest that difficult matters
would be decided through litigation rather than consensus. Irrespective of an advisory opinion,
the Employers’ group would not agree with broad, detailed and excessive opinions of the
Committee of Experts on the right to strike, so the problem would remain unresolved.
20. There were also procedural questions that remained open. The Employers’ group believed that
the Conference played a crucial role in the governance process by ensuring the participation
of all States parties to a given Convention. Although the 1949 resolution had authorized the
Governing Body to request advisory opinions, fewer than one third of the current 187 Member
States had been party to that decision, which therefore lacked democratic legitimacy and
should be revisited. The Employers’ group also expressed concern that the International
Labour Standards Department might not be impartial, given that the dispute originated in a
report of the Committee of Experts, which the department played a key role in preparing.
21. The group was convinced that a referral to the ICJ for an advisory option could not resolve the
dispute, irrespective of the questions put to it. The right to strike was a multifaceted and
complex issue that could not be separated from the widely diverging and deeply rooted
industrial relations systems and practices in all ILO Member States. Any determination of
international rules on the right to strike would have to take those differences into account.
That could only be done by the tripartite constituents, within the framework of established
ILO procedures, at the Conference.
22. Furthermore, advisory opinions from the ICJ were inherently not legally binding, and it was
highly doubtful whether article 37(1) of the Constitution made them so for the ILO and its
constituents. Doubts in that regard had previously been raised by the Office itself, and also by
a former President of the ICJ; many governments had also shared those doubts. While the
Employers’ group respected the crucial role of the ICJ in settling disputes between countries
 GB.349bis/PV/Draft 9
and the persuasive power of its advisory opinions, the group would not accept an advisory
opinion that recognized a right to strike in Convention No. 87 and approved the interpretations
of the Committee of Experts, as those had never been discussed and approved in a tripartite
standard-setting process. The Employers’ group would continue to refuse to adopt conclusions
on the right to strike in the Committee on the Application of Standards and other supervisory
bodies.
23. It would be highly problematic to impose a referral to the ICJ by means of a vote when opinion
was so divided. In its note on the binding legal effect of ICJ advisory opinions, the Office had
stated that the ILO should be “ready to follow or be guided by the Court’s advisory opinion”,
otherwise “it must not ask for the opinion in the first place”. Given that many constituents did
not believe that a referral to the ICJ was the appropriate way to resolve the dispute, the option
should be abandoned.
24. Comprehensive, inclusive social dialogue at the Conference was the only way to achieve a
sustainable and legally sound solution. In the past, the adoption of a Recommendation,
Convention, Protocol or resolution had been the only recognized way to develop international
rules on labour matters that were clear and transparent, based on tripartite participation and
support, and that respected national sovereignty by allowing Member States the choice of
whether to ratify them or not. In 1992, Colombia, supported by Germany, Morocco and
Venezuela, had proposed standard-setting on the right to strike. Many other Governments had
voiced support for tripartite social dialogue solutions on the topic of the right to strike, as well
as some workers’ organizations.
25. Article 37 was intended to be used only as a last resort, once all tripartite social dialogue
procedures had been exhausted, which was not yet the case. A discussion at the Conference,
taking into account some of the views of the Committee of Experts, would lead to a solid
tripartite consensus on universally applicable rules regarding the right to strike and its basic
principles and boundaries. Such a fresh approach would be the best way forward and would
provide a legal certainty that could no longer be challenged. The Governing Body could not
replace the Conference, as it had limited representation. She therefore urged all constituents
to reach consensus to refer the matter to the International Labour Conference as the supreme
decision-making body of the ILO, and not the ICJ.
26. Speaking on behalf of the group of 44 countries, a Government representative of Colombia
noted with appreciation the amount and quality of the work of the Office aimed at facilitating
the important discussion and expressed the hope that the proposal would open a path towards
resolving the dispute. As the ongoing dispute fell within the scope of article 37(1) of the
ILO Constitution, the amended draft decision proposed that the Governing Body should
request the ICJ urgently to render an advisory opinion on the question.
27. Speaking on behalf of the European Union (EU) and its Member States, a Government
representative of Spain said that North Macedonia, Montenegro, Georgia, Norway and Iceland
aligned themselves with her statement. She recalled that on 14 July 2023, the EU and its
Member States had sent the Director-General a letter requesting that, as a matter of utmost
importance, an item be placed on the agenda of the Governing Body on the referral to the ICJ
of the dispute regarding the interpretation of Convention No. 87 in relation to the right to strike
and indicating that legal clarity was urgently required after more than a decade of failed
attempts to find a solution. The group recognized the Committee of Experts as an independent
body established by the Conference to analyse the application of Conventions by Member
States, and that the opinions and recommendations of the Committee were non-binding. The
group agreed that the advisory opinions of the ICJ were judicial statements on the legal
 GB.349bis/PV/Draft 10
questions submitted by authorized organizations and that, in the case of the ILO, such advisory
opinions were binding pursuant to article 37(1) of the ILO Constitution. The group supported
referral of the dispute to the ICJ to ensure legal certainty. In so doing, it also sought to uphold
the authority of the Committee of Experts, as agreed by the Governing Body in 2014, and to
safeguard the supervisory system. The group was thankful to the Office for all the support
provided in preparation of the special session and stood ready to decide on the adoption of a
resolution on the referral to the ICJ.
28. Speaking on behalf of the Association of Southeast Asian Nations (ASEAN), a Government
representative of Indonesia stated that her group had chosen to address the dispute through
the internal mechanism provided by the ILO, rather than resorting to the ICJ. However, that
should not be misconstrued as a denial of the fundamental right to strike. The provision under
the ILO Constitution allowing for a referral to the ICJ in cases of differing interpretations of a
Convention must be a last resort. The dispute should be resolved through internal channels to
arrive at a comprehensive, agreeable and inclusive resolution. The group was confident in the
collective capacity of the Conference to reach consensus internally, thereby achieving a
credible solution that would enhance the ILO supervisory system.
29. Her group proposed agreeing on a time frame during which all stakeholders would seek a
common and thorough understanding through tripartite meetings. Only if there was no
resolution after the time frame had elapsed should the matter be referred to the ICJ. The
outcomes of the two special sessions should be presented to the International Labour
Conference for further deliberation and determination. There had been profound changes in
the 74 years since the Conference resolution had authorized the Governing Body to request
an advisory opinion of the ICJ. As the supreme and the most representative body of the
tripartite constituency of the ILO, the Conference was the most suitable platform to hold a
comprehensive, substantive and in-depth discussion of the interpretation of the Convention in
the spirit of democratization and fair representation.
30. Speaking on behalf of the Arab group, a Government representative of Qatar said that the
holding of two special sessions of the Governing Body on the interpretation of Convention
No. 87 in relation to the right to strike reflected the importance of the matter and the intent of
the ILO’s tripartite constituents to resolve the long-standing dispute. Dialogue within the ILO
was the best way to achieve legal certainty for any dispute on the interpretation of
ILO Conventions; therefore, all internal means should be exhausted before referring the
matter to the ICJ. There was still an opportunity to achieve consensus through social dialogue
at the International Labour Conference. All Member States should be given the necessary time
to consider the alternatives, including the option of standard-setting to be discussed the
following day. In any case, the Conference should have the final word on the matter.
31. A Government representative of Bulgaria said that, as no consensus-based solution had
been found to the long-standing dispute on the interpretation of the fundamental Convention
No. 87 with regard to the right to strike, the matter should be referred to the ICJ. The ongoing
dispute had a negative impact on the functioning of the ILO as a whole, especially its
supervisory bodies, and the credibility of its body of standards. Adopting a Protocol to the
Convention would not provide the necessary legal certainty, as it would only have legal effect
on States that ratified the Protocol, thereby risking the creation of a two-tier system and
greater legal uncertainty. A constructive spirit must be maintained, as the effective
implementation of international labour standards was the common goal of all constituents.
32. A Government representative of Egypt said that it was important to have legal certainty on
the interpretation of Convention No. 87 in relation to the right to strike, but tripartite dialogue
 GB.349bis/PV/Draft 11
within the ILO took precedence; referring the matter to the ICJ should be a last resort, after
exhausting all other means and examining all points of view discussed during both special
sessions of the Governing Body. It was important to allow sufficient time for all constituents to
examine the proposal, and further consultations should be conducted on the formulation of
the referral and the question or questions it would include, which should then be presented to
the Conference for adoption. Approval from the Conference would ensure the participation of
all ratifying countries in the decision-making. The mandate granted to the Governing Body by
the 1949 resolution was aimed at dealing with matters that could not wait until the next session
of the Conference. Since the current dispute had been ongoing for more than 12 years, another
six months should not be an obstacle.
33. A Government representative of the Netherlands said that, as a founding Member of the
ILO, his country supported finding solutions through social dialogue. However, that had
proved to be impossible in the issue at hand, so it was time to turn to the ICJ for legal clarity. It
was important to prevent the ongoing dispute from undermining the ILO’s credibility, its
supervisory functions and its reputation as a standard-setting body. Article 37(1) of the
ILO Constitution empowered the Organization to ask the ICJ for a decision on any dispute
relating to the interpretation of a Convention, which was precisely what was required. Any
Protocol that the Conference might adopt to address the issue would apply only to Member
States that ratified it, and thus would not provide the necessary legal certainty or universality.
34. A Government representative of Norway said that her Government had maintained the
position since 2014 that the dispute should be referred to the ICJ and that there was no need
for supplementary action. Principles relating to the right to strike had been progressively
developed by the Committee on Freedom of Association and the Committee of Experts, and all
the ILO’s supervisory bodies had operated within their mandates. To promote and defend their
interests, workers required a means by which they could apply pressure in order to have their
demands met. It was natural that the right to strike could be derived from Convention No. 87.
In addition, the ILO and its supervisory bodies did not exist in isolation: several international
covenants regulated the right to strike, providing a broader legal framework within which to
interpret the Convention. It would be paradoxical if the United Nations specialized agency for
labour did not recognize the right to strike in its own Conventions.
35. A Government representative of Panama noted that an ICJ decision would have an impact
not only on the implementation of other Conventions, but also on the supervisory system as
whole. Care must be taken not to set a precedent by immediately having recourse to the ICJ
without first exhausting other means. Freedom of association was based on three inseparable
rights: the right to organize, the right to collective bargaining and the right to strike. Strikes
were a powerful instrument of trade union negotiation as a means of resolving conflicts, but
should be used with care and responsibility. If there was no other way forward than to refer
the question to the ICJ, the standards supervisory system must remain active at the same time.
36. A Government representative of Paraguay said that the right to strike or engage in work
stoppages was explicitly recognized in his country’s constitution for both public and private
sector workers, and also for employers, but did not extend to members of the armed forces,
the police or essential public services. It was important to resolve any disputes within the
Organization through social dialogue. He therefore urged the Governing Body to continue
efforts to promote cooperation on tripartite initiatives.
37. A Government representative of South Africa said that his Government was driven by the
desire to rectify the legal ambiguity regarding the interpretation of Convention No. 87 with
respect to the right to strike and by its unwavering commitment to strengthening the ILO’s
 GB.349bis/PV/Draft 12
supervisory systems. Referring the matter to the ICJ would bring legal certainty, which would
in turn empower the supervisory systems to fulfil their duties without their authority being
called into question. The right to strike could not be divorced from the broader notion of
freedom of association.
38. A Government representative of Switzerland said that her Government respected the
request made by the Workers’ group. It was regrettable that the document submitted by the
Office had not contained a critical analysis of the questions raised by that group, particularly
as they were the same as those raised by the Office in 2014 in document GB.322/INS/5; her
Government could not, therefore, accept that an analysis thereof threatened the Office’s
neutrality and impartiality. For constituents to make an informed decision, all necessary
information must be provided in a transparent, objective and comprehensive manner. Neither
the wording nor the substance of the question to be put to the ICJ had ever been discussed by
the Governing Body. In the interest of tripartism and the cohesion of the Governing Body, the
suggested questions must be discussed in an inclusive manner.
39. The first question was not sufficiently precise and did not reflect the problem at hand, as a
decision on whether or not Convention No. 87 protected the right to strike would not shed
light on the conditions for its exercise. If it was decided that the Convention protected the right
to strike without regulating it, it would then be necessary to ask who determined how that
right could be exercised, which would be a matter concerning the interpretation of the ILO
Constitution, not the Convention. The ICJ should instead be asked whether it was for tripartite
legislators, the supervisory bodies, the ICJ’s judges or domestic court judges to make a binding
decision on the conditions for the exercise, and possible limits of, the right to strike when those
elements were not addressed in existing legislation. The second question did not constitute a
question relating to the interpretation of the Convention as envisaged in article 37 of the
Constitution.
40. If the decision of the ICJ was to be legally binding, all tripartite constituents should be involved
in the discussion of the matter and in decision-making. As such, once the contents of the
question to be put to the ICJ had been agreed, the International Labour Conference should
have the opportunity to make the final decision on referring the matter to the ICJ.
41. A Government representative of Tunisia underscored the importance of permitting all
Member States, in particular those that had ratified Convention No. 87, to express their views
on the matter. The Governing Body should ask itself whether all avenues for dialogue had truly
been exhausted and whether it was appropriate for the Organization to press for a decision
from the ICJ in the light of the differences in opinion displayed and the implications of that
divergence in opinion on the eventual acceptance and ownership of a decision of the ICJ.
42. Dialogue was an effective way to arrive at consensual decisions, which were more likely to be
accepted and applied. The matter should therefore be included on the agenda of the
forthcoming session of the International Labour Conference, which would allow discussions to
continue in an inclusive manner. The Conference must have the opportunity to give its view on
any Governing Body decision. While the 1949 resolution authorized the Governing Body to
request an opinion from the ICJ, it did not prevent the Conference from making decisions on
whether to refer matters thereto. In highlighting that fact, she was not intending to cast doubt
on the legitimacy of the Governing Body’s role in the process, but pointing out that some issues
were of such importance that they deserved to be examined by all Member States. It would be
crucial to bear in mind that it was not for the ICJ to make judgments on matters beyond the
scope of article 37(1) of the Constitution.
 GB.349bis/PV/Draft 13
43. A Government representative of Türkiye expressed satisfaction with the decision to discuss
the matter in a Committee of the Whole. While his Government recognized the importance of
safeguarding the right to strike as a fundamental labour right, it had reservations regarding
the interpretation of Convention No. 87 in that respect. Social dialogue was a proven and
effective approach to dispute resolution and ensured that robust and sustainable solutions
could be achieved with the participation of all parties. His Government therefore supported
the idea of resolving the dispute through the ILO’s existing mechanisms and structures rather
than referring it to the ICJ, which could potentially weaken the Organization’s tripartite
mechanisms.
44. A Government representative of Zimbabwe said that her Government noted the legitimate
request of the Workers’ group and wished to obtain legal certainty regarding the matter, which
had negatively affected the smooth functioning of the ILO’s supervisory system since 2012,
and would be interested in hearing the advisory opinion of the ICJ, particularly since the
supervisory system had not been objective in its analysis of cases for many years.
45. The legal advice provided by the Office was appreciated. However, the authority delegated to
the Governing Body in the 1949 resolution was outdated, and the Organization and its
membership, as well as that of the Governing Body, had evolved since its adoption. The
decision-making power should therefore rest with the Conference as the body that had
delegated that authority. Moreover, the Governing Body was not currently representative of
the ILO membership, given that countries of chief industrial importance remained permanent
members. It was concerning that some members of the Governing Body had not ratified
Convention No. 87 yet had the right to vote on the matter, while some ratifying countries were
not permitted to vote as they were not Governing Body members. The Conference, which
comprised all Member States of the ILO, should therefore make the final decision.
46. A Government representative of Algeria said that engaging in tripartite dialogue on an issue
of such importance would help to prevent institutional crises and ensure legal certainty within
the ILO. Any question to be put to the ICJ must focus on whether the right to strike was
recognized under Convention No. 87, as broadening the scope of that question would only
accentuate the differences in opinion and would not reflect the essence of article 37(1) of the
Constitution. Decisions to refer to the ICJ any cases concerning the interpretation of a
fundamental Convention must be approved by the Conference, as that was the only way of
including all Member States in decision-making and ensuring that the positions of all parties
would be taken into consideration. Securing the approval of the Conference would strengthen
the credibility of the referral process and restore trust among constituents.
47. A Government representative of Australia said that the uncertainty caused by the dispute
could not continue, and referral of the matter to the ICJ was the appropriate way to deliver
legal certainty. Her Government did not support consideration of standard-setting on the
subject while the dispute remained unresolved.
48. A Government representative of Bangladesh said that, under the ILO Constitution,
standard-setting was the mandate of the International Labour Conference. The
1949 resolution had not permanently delegated authority on matters relating to international
labour standards to the Governing Body, and there was considerable doubt as to whether the
word “activities” in the resolution included direct or indirect standard-setting. The Conference
must have full jurisdiction; the Governing Body could not presume a permanent authority in
that regard. Referral to the ICJ was a last resort and should not be invoked at present. The
inherent authority of the Conference on matters of standard-setting must not be diluted. The
1949 resolution did not require the Conference to approve the Governing Body’s decision to
 GB.349bis/PV/Draft 14
refer a matter to the ICJ since the Governing Body’s mandate in that regard had been bestowed
by the Conference itself. The ILO’s internal dispute resolution procedures had not yet been
exhausted; it would therefore be necessary to resort to the supreme authority of the
Conference. The right to strike was not explicitly mentioned in Conventions Nos 87 or 98. Legal
obligations must be explicitly stated in legislation or in a Convention; if there was no such
statement, therefore, the legal obligation did not exist.
49. A Government representative of Barbados said that, during consultations held earlier in the
year, his Government had added its voice to the call for article 37 of the ILO Constitution to be
invoked, noting that social dialogue did not always lead to consensus. It was unacceptable that
the ILO could not speak authoritatively to Member States on issues relating to Conventions
and on a matter as important as the right to strike. Indeed, the ILO’s normative function was
weakened by that shortcoming. The uncertainty surrounding the situation had lasted far too
long; the matter should now be referred to the ICJ.
50. A Government representative of Cameroon said that tripartism, the principle at the heart of
the ILO, remained the best way to resolve the dispute and secure legal certainty regarding the
interpretation of Convention No. 87 and the right to strike. Her Government was convinced
that there was still scope to resolve the issue internally. Referral to the ICJ should be a measure
of last resort once all internal avenues for tripartite dialogue had been exhausted, and would
thus be a premature move at the present juncture. In the interest of peace, social justice and
democracy, all Member States – especially those that had ratified Convention No. 87 – should
be able to participate in discussions and decision-making on whether to refer the matter to the
ICJ. The matter should therefore be placed on the agenda of the forthcoming session of the
International Labour Conference, which should make the final decision.
51. A Government representative of Canada expressed concern about the negative implications
that the dispute was having on the functioning of the ILO’s supervisory system. It would be
important to have clarity on the scope of Convention No. 87 so that governments that had
ratified, or were considering ratifying, the Convention were aware of the nature and extent of
obligations arising from ratification and could adapt national law and practice accordingly. The
dispute must therefore be resolved without further delay.
52. Her Government was a strong supporter of social dialogue and had previously advocated for
a tripartite, negotiated resolution to the dispute. However, after careful consideration, it was
now of the view that all avenues for social dialogue had been exhausted, given that the
impasse had persisted for over a decade and the views of ILO constituents on the subject were
diametrically opposed. Her Government therefore supported, on an exceptional basis and as
a last resort, referral to the ICJ. An authoritative advisory opinion would allow constituents to
move forward with legal clarity on the matter.
53. A Government representative of Chile emphasized his Government’s support for the ILO’s
normative function. The right to strike had been recognized in Chilean legislation and
jurisprudence as an integral element of freedom of association in the scope of Convention
No. 87. His Government therefore believed that the ILO should request the ICJ to urgently issue
an advisory opinion on protection of the right to strike in the context of Convention No. 87.
54. A Government representative of China said that the International Labour Conference should
make the final decision on any recommendations or conclusions reached by the Governing
Body at its current session. His Government maintained the position that disputes should be
resolved through consultation and dialogue. Referring the dispute to the ICJ was not the only
option for the Organization, much less the best option. The ILO should further improve its
 GB.349bis/PV/Draft 15
internal mechanisms in a spirit of tripartism and inclusive social dialogue to reach
comprehensive workable solutions that addressed the concerns of all parties.
55. A Government representative of Colombia, welcoming the decision to allow all governments
to express their views on the matter, said that the way forward would be to refer the dispute
to the ICJ. The matter had been addressed in compliance with the norms and regulations
guiding the Governing Body, which was therefore within its rights to take a decision, and the
Office had acted impartially in enforcing that normative framework. The Governing Body’s
mandate should not be called into question, nor should that of the Committee of Experts, and
the legitimacy of the ILO’s supervisory bodies must not be jeopardized as all constituents
benefited from their decisions, considerations and recommendations. Their role was crucial to
the promotion of tripartism, which contributed towards successful social dialogue and was an
example to other organizations in the United Nations system. His Government was confident
that the ICJ would be able to settle the dispute and that, once a decision had been handed
down, the Organization would find a way to address the matter to the satisfaction of all parties
and in line with international labour standards. If necessary, the Organization could then
pursue other avenues.
56. A Government representative of Eswatini said that the right to strike had never been
challenged at the national level in Eswatini. However, he recognized that the long-standing
international dispute had serious repercussions on the work of the ILO’s supervisory bodies.
The urgency of current efforts to resolve the interpretation dispute went against the ILO’s
ideals of social dialogue and consultation. Furthermore, making a decision within the
Governing Body excluded many who would be affected by the outcome of the discussion,
especially those Member States that had ratified Convention No. 87. He urged the Governing
Body to utilize all available options, including tripartite consultations, and defer its decision to
March 2024.
57. A Government representative of India said that the matter in question was not just about
freedom of association, but rather about setting precedent for future issues. She recalled that
the Committee of Experts had interpreted Convention No. 87 as including the right to strike.
Moreover, in terms of process, the current dispute clearly lay within the jurisdiction of the
International Labour Conference; so that those who were not members of the Governing Body
would not be excluded from decision-making that would affect them. She therefore called for
a discussion at the International Labour Conference; the dispute should only be referred by
the Conference to the ICJ if it was not resolved. The ILO must uphold the principle of democratic
decision-making.
58. A Government representative of Mexico said that his Government had repeatedly stated the
need to guarantee legal certainty and to strengthen the ILO’s supervisory system. It was
important to appropriately implement the provisions set out in the ILO Constitution, especially
article 37(1). Referring the ongoing dispute to the ICJ would provide legal certainty and
strengthen human rights, labour rights and the principles of tripartism and social dialogue.
The outcome would provide a strong basis for the implementation of Convention No. 87 and
protect workers’ rights. He therefore supported the amendments to the draft decision
proposed by the Government representative of Colombia on behalf of a cross-regional group
of countries.
59. A Government representative of Namibia recalled that the persistent dispute over the right
to strike and the interpretation of Convention No. 87 had undermined the ILO’s normative
mandate and the credibility of its supervisory system. No resolution had been attained through
social dialogue. It was clear that the ongoing discussion constituted a “question or dispute” as
 GB.349bis/PV/Draft 16
provided for in article 37(1) of the ILO Constitution, and as such should be referred to the ICJ
without delay. Such a decision would be an act of good faith and would provide legal certainty
for the supervisory system.
60. A Government representative of Niger said that it was deplorable that the long-standing
dispute had not been resolved through social dialogue and had been allowed to affect the
operation of the ILO’s supervisory system. He supported referring the dispute to the ICJ
because the resulting advisory opinion would be recognized as definitive and binding by all
parties. However, given the importance of the subject matter, the decision to make such a
referral should be made by the International Labour Conference in 2024, irrespective of the
authority granted to the Governing Body in 1949. All constituents should agree to implement
the ICJ’s opinion with mutual respect. He commended the support provided to constituents by
the Office of the Legal Adviser in preparing for the current discussion. In light of the differing
approaches to the application of article 37(1) of the ILO Constitution, he requested the
Director-General to prepare rules of procedure for the application of that provision and others
of a similar nature. He supported the draft resolution but would prefer that paragraphs 2 and
3 were deleted prior to its adoption.
61. A Government representative of Nigeria said that embarking on a strike without following
agreed procedures and without recourse to dispute resolution had a negative impact on the
economy and the enterprises concerned. In his country, questions of legislative interpretation
and ambiguity were referred to an independent body. Thus, the provision contained in
article 37 of the ILO Constitution to refer the dispute to the ICJ could serve to resolve the
current dispute. It was time for the Governing Body to decide which ILO governance body
should make the decision for such a referral, and to adopt an updated version of the draft
resolution originally presented in 2014.
62. A Government representative of Pakistan stressed the importance of tripartism and
dialogue within the ILO. He asked whether an international norm recognized by one legal
instrument, such as the right to strike within the International Covenant on Social, Economic
and Cultural Rights, should be recognized by others without further consideration. As a human
rights standard, the right to strike should be considered as a labour standard. In terms of
implementation and supervision, he said that the supervisory system guided the
implementation of such standards, but that the stipulations made by supervisory bodies were
advisory, and they were unable to create new obligations. He expressed the hope that the
current dispute could be resolved through negotiation and dialogue.
63. A Government representative of the Russian Federation said that the use of external
measures to resolve internal differences should only be considered as a last resort, and that
internal social dialogue mechanisms had not yet been exhausted in the current case. The
dispute had not been considered by the International Labour Conference, and as such a
majority of Member States had been unable to participate in discussions on the matter. While
he recognized that the Governing Body had been authorized to request advisory opinions of
the ICJ, it was also true that the membership and decision-making procedures of the ILO had
evolved significantly and as such the 1949 resolution did not automatically provide grounds
for such action. Moreover, no time frame had been set for dialogue, and the dispute had gone
beyond interpretation to encompass institutional aspects of the functioning of the ILO. Finally,
he did not agree that an advisory opinion of the ICJ would provide legal certainty. Such an
opinion was, by nature, advisory, and would inevitably lead to future disputes about its legal
nature. He therefore did not support the proposal to refer the dispute to the ICJ and he did not
support the amendments to the draft decision proposed by the Government representative of
Colombia on behalf of a cross-regional group of countries.
 GB.349bis/PV/Draft 17
64. A Government representative of Sudan noted the request of the Workers’ group to seek an
advisory opinion from the ICJ on the interpretation of Convention No. 87 and the right to strike.
He said that a referral to the ICJ should only be made when all other mechanisms had been
exhausted, including a discussion at the International Labour Conference in which all Member
States could participate. He expressed the hope that such a discussion would provide legal
clarity and certainty and protect the principle of social dialogue. He proposed that the
Governing Body should set a time frame for those discussions so that further steps could be
taken if necessary.
65. A Government representative of the United States of America said that the right to strike
was protected by Convention No. 87. That said, given the long-standing disagreement with
respect to that interpretation, and the damaging impact of that dispute on the integrity of the
ILO supervisory system, her Government was open to referring the matter to the ICJ. However,
it was not necessary or appropriate to refer the question of whether the Committee of Experts
was competent to determine the scope and derivation of the right to strike. Her Government
fully supported the work of the Committee of Experts as a key part of the supervisory system,
especially its work to provide non-binding observations and recommendations addressing the
protection, scope and parameters of the right to strike. She expressed the hope that the
current discussion would lead to a clear plan to resolve the dispute.
66. The Worker Vice-Chairperson said that she welcomed the information provided by Member
States and noted the widespread commitment to finding a solution to the ongoing dispute.
67. The Employer Vice-Chairperson said that using the Committee of the Whole format had led
to rich discussion, despite prior opposition to it. She noted that no Government had denied
that the right to strike was a fundamental right and reiterated that the central issue was
whether a Convention, which had explicitly excluded the right to strike, could be used as a
basis for extensive interpretation of that right by one of the supervisory bodies – the
Committee of Experts – and not the others. The issue was one of democratic legitimacy. Since
adopting the 1949 resolution, the membership of the ILO had grown from 61 to 187 Members.
Thus, in the opinion of her group, the 1949 resolution was not a democratically legitimate basis
for action.
68. The Director-General said that disagreement between constituents and the Office was an
expected part of the democratic process. However, using such disagreement as a basis for
unfounded allegations of bias, partiality and even collusion by the Office was inexcusable;
particularly in the light of the work done by the Office to prepare for the current discussions.
He expressed the hope that those allegations would be withdrawn.
Governing Body
69. The Governing Body had before it a subamendment to the amendment to the draft resolution
that had been proposed by the Government of Colombia on behalf of a group of 44 countries.
The subamendment had been proposed by the Employers’ group and circulated by the Office
and read:
Further to the request of the Workers’ group and of 36 governments to urgently refer the
dispute on the interpretation of the Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87), in relation to the right to strike to the International Court
of Justice for decision in accordance with article 37(1) of the Constitution, the Governing Body
decided to adopt the following resolution:
The Governing Body,
 GB.349bis/PV/Draft 18
Conscious that there is serious and persistent disagreement within the tripartite
constituency of the International Labour Organization (ILO) on the interpretation of the
Freedom of Association and Protection of the Right to Organise Convention, 1948
(No. 87), with respect to the right to strike,
Recalling that at the origin of the dispute is a disagreement among the Organization’s
tripartite constituents concerning whether the right to strike is protected under
Convention No. 87, and whether the Committee of Experts has exceeded its authority in
providing non-binding opinions and recommendations on the right to strike.
Noting that ILO supervisory bodies have consistently observed that the right to strike is a
corollary to the fundamental right to freedom of association,
Noting that the issue under consideration is about the scope of C. 87 and the opinions
expressed by the CEACR on the right to strike,
Seriously concerned about the implications that this dispute has on the functioning of the
ILO and the credibility of its system of standards,
Affirming the necessity of resolving the dispute consistent with the Constitution of the
ILO,
Recalling that under article 37, paragraph 1, of the ILO Constitution, “[a]ny question or
dispute relating to the interpretation of this Constitution or of any subsequent
Convention concluded by the Members in pursuance of the provisions of this Constitution
shall be referred for decision to the International Court of Justice”,
Recalling the consensual decision of the 320th Governing Body in March 2014, welcoming
“the clear statement by the Committee of Experts of its mandate as expressed in the
Committee’s 2014 report“:
“The Committee of Experts on the Application of Conventions and
Recommendations is an independent body established by the International Labour
Conference and its members are appointed by the ILO Governing Body. It is
composed of legal experts charged with examining the application of ILO
Conventions and Recommendations by ILO member States. The Committee of
Experts undertakes an impartial and technical analysis of how the Conventions are
applied in law and practice by member States, while cognizant of different national
realities and legal systems. In doing so, it must determine the legal scope, content
and meaning of the provisions of the Conventions. Its opinions and
recommendations are non-binding, being intended to guide the actions of national
authorities. They derive their persuasive value from the legitimacy and rationality of
the Committee’s work based on its impartiality, experience and expertise. The
Committee’s technical role and moral authority is well recognized, particularly as it
has been engaged in its supervisory task for over 85 years, by virtue of its
composition, independence and its working methods built on continuing dialogue
with governments taking into account information provided by employers’ and
workers’ organizations. This has been reflected in the incorporation of the
Committee’s opinions and recommendations in national legislation, international
instruments and court decisions“.
Noting that, despite protracted attempts, no consensus has been reached through
tripartite dialogue,
Acknowledging the role of the International Labour Conference as the supreme body of
the ILO composed of tripartite delegations of its Member States, that has the authority to
adopt international labour standards and provide guidance on the world of work.
Emphasising that Article 37.1 of the Constitution establishes that any referral to the
International Court of Justice is for decision on the question or dispute referred,
Expressing the hope that, in view of the ILO’s unique tripartite structure, not only the
governments of ILO Member States but also the international employers’ and workers’
organizations enjoying general consultative status in the ILO would be invited to
 GB.349bis/PV/Draft 19
participate directly and on an equal footing in the written proceedings and any oral
proceedings before the Court, if a referral were to be decided.
The Governing Body requests the Office to place an item at the 112th session of the
International Labour Conference (2024), to discuss and decide about options to provide
legal certainty, including through:
(A) appropriate measures to be taken by the International Labour Conference
(B) a referral to the International Court of Justice for an advisory opinion on the
interpretation of Convention No. 87 in relation to the right to strike and if so
required, decide on necessary follow-up actions after receiving the advisory opinion.
Decides, in accordance with article 37, paragraph 1, of the Constitution of the
International Labour Organization,
1. To request the International Court of Justice to render urgently an advisory opinion
under Article 65, paragraph 1, of the Statute of the Court, and under Article 103 of
the Rules of Court, on the following question:
Is the right to strike of workers and their organizations protected under the
Freedom of Association and Protection of the Right to Organise Convention, 1948
(No. 87)?
2. Instructs the Director-General to:
(a) transmit this resolution to the International Court of Justice, accompanied by all
documents likely to throw light upon the question, in accordance with article 65,
paragraph 2, of the Statute of the Court;
(b) respectfully request that the International Court of Justice allow for the
participation in the advisory proceedings of the employers’ and workers’
organizations that enjoy general consultative status with the ILO;
(c) respectfully request that the International Court of Justice consider possible
steps to accelerate the procedure, in accordance with Article 103 of the Rules of
Court, so as to render an urgent answer to this request;
(d) inform the United Nations Economic and Social Council of this request, as
required under article IX, paragraph 4, of the Agreement between the United
Nations and the International Labour Organization, 1946.
70. The Chairperson, as required by article 4.3 of the Standing Orders and as reflected in the
arrangements for the special session adopted by the Governing Body at its 349th Session,
provided the following oral report on the exchange of views in the Committee of the Whole:
Pursuant to article 4.3. of the Governing Body’s Standing Orders, and as reflected in the special
arrangements adopted for this special session, I have the honour to report to the Governing
Body on the exchange of views that took place this morning.
The Committee of the Whole offered the opportunity for a rich exchange of views that involved
a total of 35 speakers, including 12 governments not represented in the Governing Body. A
number of participants welcomed the Committee of the Whole format to ensure transparency
and inclusiveness, which are crucial on a matter of great institutional significance.
On the principal question of whether or not the Organization should seek an urgent advisory
opinion from the International Court of Justice (ICJ) under article 37(1) of the Constitution, the
Employers’ and Workers’ groups reaffirmed their respective positions.
The Workers’ group recalled that the dispute concerned a fundamental principle and right at
work, and that the right to strike was an essential means – and in certain cases the only means
– through which workers’ organizations could defend their interests. The ILO was a fortress for
the workers of the world, and the prolonged legal uncertainty was detrimental to the workers.
To date, there was no other option but to refer the dispute to the ICJ. There was no realistic
chance of resolving the dispute through social dialogue because the Employers’ group did not
recognize that the right to strike was included under Convention No. 87, nor the corresponding
 GB.349bis/PV/Draft 20
authoritative legal guidance of the supervisory bodies. Settling the legal question of the scope
of Convention No. 87 regarding the right to strike and affirming the authoritative guidance of
the Organization’s supervisory organs should be prioritized through the applicable
constitutional means, namely article 37(1) of the Constitution.
With respect to the two proposed questions to be put to the Court, the Workers’ group
explained that the intention was to cover all aspects of the interpretation dispute. Yet, the
group considered that the single question proposed by some governments on the right to
strike would suffice to resolve the dispute, on the understanding that the ICJ would be provided
with all relevant documentation. And finally, the 1949 delegation of authority was still valid, and
thus the Governing Body had the authority to refer the dispute to the ICJ for decision. The group
would accept any ICJ determination as final and authoritative.
The Employers’ group reiterated its strong opposition to a referral of the dispute to the ICJ.
There was no dispute of interpretation of Convention No. 87 since that Convention did not
address the right to strike. The broad, detailed and extensive so-called “interpretations” of the
Committee of Experts on the right to strike were the real issue at stake, as well as the fact that
the Committee of Experts had filled a regulatory gap, a function that belonged only to the
Conference. A referral to the Court would set a bad precedent as it would be a public admission
by the ILO that it cannot resolve disputes internally.
The Employers’ group reiterated the view that advisory opinions of the ICJ were inherently not
binding and that they would not accept any advisory opinion of the ICJ, irrespective of its
content. They would continue to disagree with the detailed and excessive views of the
Committee of Experts and to refuse to discuss matters related to the right to strike in the
context of the Conference Committee on the Application of Standards. The Employers’ group
further noted that the proposed questions were not sufficient and should include also the role
of the Conference. The Conference should discuss and adopt international rules concerning
the right to strike as it was the competent forum to find a solution. The right to strike was a
multifaceted issue that required thorough discussion by the tripartite actors in the world of
work. Standard-setting action by the Conference was the only way forward.
A wide majority of governments reaffirmed the importance of freedom of association and the
right to strike, with many highlighting their national laws and practice in that regard.
An important number of governments expressed clear support for a referral of the
interpretation dispute to the Court, underlining that governments needed legal certainty on
the scope of the obligations resulting from the ratification of Convention No. 87. While
reaffirming their support for solutions based on social dialogue, they considered that such
solutions had not yielded results to resolve a dispute that had been going on for too long. The
current deadlock concerning a fundamental principle and right at work should come to an end.
It was necessary to prevent the ongoing dispute from further undermining the ILO’s credibility,
especially its standard-setting and supervisory functions. These governments expressed their
strong belief that the recourse to the ICJ was the avenue for achieving legal certainty. In that
connection, most recalled that the advisory opinion would be binding on the ILO. They further
considered that the standard-setting proposed by the Employers’ group and other
governments could not provide legal certainty as non-ratifying members would still face the
current uncertainty arising from the dispute under Convention No. 87. Some governments
highlighted that room for social dialogue would exist in following up on the ICJ’s decision, as
might be necessary.
With regard to the questions to be put to the ICJ, support was expressed for the first question.
No government expressed support for the second question included in the Workers’ group’s
request. One government considered that the first question, on the right to strike, did not fully
capture the dispute, while the second one, on the mandate of the Committee of Experts, could
not be considered a question of interpretation under article 37(1) of the ILO Constitution.
A number of governments, while recognizing that the Constitution provided for a referral to
the Court in case of an interpretation dispute, did not support a referral to the Court, which
they believed should be a last resort to be contemplated only after all other means had failed.
 GB.349bis/PV/Draft 21
For some of those governments, standard-setting action by the Conference was the most
transparent, appropriate and logical method for formulating authoritative ILO regulations
concerning the right to strike. Standard-setting reflected the ILO’s core principles of tripartism
and social dialogue and could deliver a well-balanced, globally acceptable outcome. Should a
solution through tripartite dialogue prove impossible, the route to the ICJ remained available
in accordance with article 37(1) of the ILO Constitution, in the last instance.
Regardless of whether they were in favour of, or against, the referral to the ICJ, many
participants took the view that the matter should preferably be debated and decided at the
International Labour Conference. They indicated that while the Governing Body was duly
authorized in 1949 to request advisory opinions, changes in the ILO membership made it
necessary that the issue be discussed by the supreme deliberative organ for reasons of
legitimacy. An equally large number of speakers, including those sponsoring the amendment,
considered that the Governing Body was an appropriate forum to take such a decision.
In closing, I think nobody would be surprised if I said that there seems to exist convergence on
the diagnosis but not on the cure. The exchange of views brought to the forefront the diversity
and divergence of views in this matter.
The openness of the exchange of views that the Committee of the Whole format offered was
welcomed and appreciated by all participants. I hope that this report has done justice to the
quality of the exchange of views and to the engagement and sense of responsibility shown by
all three groups.
I trust that the Governing Body plenary will now be able to take over and engage in a
constructive debate on the possible way forward.
71. The Employer Vice-Chairperson, responding to the oral report, clarified that although her
group could not accept the Office’s view that advisory opinions of the ICJ were legally binding,
or accept or recognize the ICJ’s approval of the opinions of the Committee of Experts on the
right to strike, that did not mean that it would not accept any of the ICJ’s advisory opinions.
Moreover, her group had not stated that standard-setting was the only viable solution,
although the International Labour Conference, as the Organization’s supreme body, should
have the freedom to decide on the forum for deliberations and decisions.
72. There were questions surrounding the Office’s impartiality. As had been noted by the
Government of Switzerland, although the referral questions proposed by the Workers’ group
were identical to those contained in document GB.322/INS/5, the Office had refused to
undertake a legal analysis of them, citing reasons of neutrality. In recent months, the Office
had bypassed procedural and governance rules to assist the Workers’ group in its aims,
sidelining the Employers’ group and disregarding the ILO’s tripartite balance. For example, the
Office had allowed the Workers’ group to place an item on the Governing Body’s agenda
without first submitting it to the Screening Group, while denying a similar request made by the
Employers’ group. Similarly, the background documents relating to the Employers’ and
Workers’ groups did not contain the same level of detail; while the document relating to the
proposal from the Workers’ group contained letters of support from governments, such letters
had been excluded from the document on her group’s proposals. The Office had also sidelined
the governments by failing to share all relevant information with them. The Office’s unfair
treatment of its constituents, which owed to its political leadership rather than
unprofessionalism on the part of its staff, was completely unacceptable.
73. The original draft resolution was inappropriate and biased, reflecting only the position of the
Workers’ group and seeking to pre-empt the Governing Body’s discussions. In the past, many
governments had voiced the opinion that such a serious issue should be dealt with by the
International Labour Conference, rather than the Governing Body. She disagreed with the
assertion in the original draft resolution that the dispute’s origins lay in a disagreement among
 GB.349bis/PV/Draft 22
the tripartite constituents regarding whether the right to strike was protected under
Convention No. 87; rather, it had been triggered by the gradual and unsolicited development
by the Committee of Experts of rules on the right to strike that had referred to that Convention,
despite the Conference’s intentional exclusion of the right to strike from it during the drafting
and adoption process. She also strongly disagreed with the statement in the that “the Court’s
authoritative legal guidance [was] the only viable option” and on “the final and binding nature
of any advisory opinion so obtained”. Although the amendments proposed by the group of
44 countries omitted those phrases, they had been used by governments in their statements.
74. The amendments to the draft resolution proposed by the group of 44 countries also made
reference to the mandate of the Committee of Experts, and she wished to highlight that the
Committee had exceeded its mandate by providing extensive opinions on the right to strike
that could not be considered interpretation because they went beyond the scope of
Convention No. 87. Furthermore, the proposed replacement of the reference to the Committee
on Freedom of Association with “ILO standards supervisory bodies” was factually incorrect
since those bodies included the Committee on Freedom of Association, which did not supervise
the application of standards such as Convention No. 87, and the Committee on the Application
of Standards, which did not agree that the right to strike was covered by that Convention.
75. While she supported the removal of the reference to restoring legal certainty, as proposed by
the group of 44 countries, she disagreed with the proposed wording “despite protracted
attempts, no consensus has been reached through tripartite dialogue” since there had been
no attempts to discuss the right to strike at the Conference owing to the persistent refusal by
the Workers’ group to place a substantive discussion on its agenda. The resolution concerning
the procedure for requests to the ICJ for advisory opinions was outdated because the
Organization had changed significantly since its adoption in 1949. The Conference retained the
right to request advisory opinions at any time, particularly with regard to such important
matters as the right to strike. Her group could therefore not support the original resolution or
the amendments proposed by the group of 44 countries. Her group’s subamendments
reflected the majority view in the Committee of the Whole that the matter should be put to the
Conference.
76. The Worker Vice-Chairperson recalled that the task that faced the Governing Body was to
decide whether it would refer the outstanding dispute to the ICJ, recognizing the relevance of
article 37 in that context. She also recalled that the Director-General had launched a strong
appeal to refrain from certain language, to wide support. He had requested the Employers’
group to withdraw its allegation of collusion. That had not happened; quite the contrary. It was
extremely problematic to challenge the stated impartiality of the Office simply because certain
constituents adhered more closely to a certain view than others.
77. The Employers’ group had stated earlier that the question to be resolved was not a matter of
interpretation. However, the contribution of the IOE on 24 October 2023 had proposed
standard-setting in 2024 with a view to the adoption of a Protocol. The Office had accordingly
prepared a report on the proposal. More importantly, the document submitted by the
Employers’ group had expressed the conviction that solid and sustainable dialogue should be
pursued to resolve the long-standing dispute on the interpretation of the right to strike, in the
context of Convention No. 87. The Employers’ group had therefore started with the recognition
of an interpretation dispute, going on to state that standard-setting was the most obvious
means of resolving the dispute. The Employers’ group had then expressed a desire for a quick
resolution rather than resorting to external means. That implied an awareness of urgency.
 GB.349bis/PV/Draft 23
78. The Workers’ group was not expecting the ICJ to create more obligations than were intended
by the text of Convention No. 87. For over 70 years, the supervisory bodies had found that the
right to strike was a corollary of freedom of association, embodied in the ILO Constitution and
in Convention No. 87. The Workers’ group merely wished the ICJ to affirm that long-standing
view without amendment. Some countries had strong concerns that if a question were asked
as to whether the right to strike was protected under Convention No. 87, it would create an
absolute right to strike. The Workers’ group asserted that, in its view, the ICJ would never
overstep the practice in the ILO itself. The ICJ was simply being requested to affirm the
propriety of the action of the ILO and the supervisory bodies on the basis of Convention No. 87.
The ICJ was unlikely to create an absolute right to strike or grant more power to the Committee
of Experts. The mandate of the Committee of Experts was decided by the ILO itself and not by
the ICJ. The amendment proposed by the group of 44 countries referred to it solely to clarify
that the mandate had been agreed to by all and underpinned current work in the supervisory
system.
79. The Employers’ group continued to refer to the fact that the right to strike had not been
included in, or had been explicitly excluded from, the preparatory work prior to the adoption
of Convention No. 87. According to that logic, the preparatory work of any legal text could be
used to clarify and find evidence of the intent of its drafters. Nonetheless, the Vienna
Convention on the Law of Treaties stated, and the ICJ had recently affirmed, that the history of
a legal text only became relevant for the purposes of interpretation if the ordinary meaning of
the provision in its context and in light of its object and purpose led to absurd results. The ICJ
had also used the preparatory work as a secondary source to confirm its interpretation of a
text where needed. The negotiating history of Convention No. 87 showed that the preparatory
work was not conclusive. It could not help to resolve the dispute because it provided no
evidence of whether the delegates to the Conference had expressly intended to exclude the
right to strike from Convention No. 87. In contrast, the questionnaires administered by the
Office had indicated that several governments, certainly not the majority, had preferred that
Convention No. 87 only relate to freedom of association and not to the right to strike. The
delegates to the Conference who had raised an issue in that regard were only concerned by
the possible exercise of a right to strike in the public sector and not with a right to strike of
workers in general. The Conference had finally decided to adopt general principles regarding
freedom of association without any further detail. Accordingly, since the preparatory work did
not show that the delegates to the Conference had intended to exclude the right to strike from
Convention No. 87, it was not considered dispositive. Therefore, according to the Vienna
Convention it was important primarily to consider the subsequent practice in the ILO and its
Member States, as foreseen by the Vienna Convention. The subsequent practice in the ILO was
the work of the supervisory bodies. Moreover, at the time of adopting Convention No. 87, the
Constitution of the ILO and the Declaration of Philadelphia had already enshrined freedom of
association. Furthermore, according to the Committee on Freedom of Association, whose
mandate was based on the Constitution of the ILO, the right to strike was protected under the
constitutional principle of freedom of association as well as under Convention No. 87. The
jurisprudence contained in the Compilation of decisions of the Committee on Freedom of
Association should be consulted.
80. The Worker Vice-Chairperson expressed concern that the issue of democratization or the level
of democracy of the Governing Body was seeping into other debates, including that of the legal
mandate to refer disputes to the ICJ. The Workers’ group was strongly committed to democracy
in general and to democratization as a process in the ILO. All other avenues having been
exhausted, the time had come to refer the dispute to the ICJ. Tripartite debates should be
engaged after a decision by the ICJ. As its social partner, the Workers’ group was the
 GB.349bis/PV/Draft 24
counterpart of the Employers’ group for further dialogue, if that were desired, and
consensus-seeking. There had been extensive debate on the issue, without resolution. Further
debate was pointless.
81. The Employers’ group had stated during the sitting of the Committee of the Whole that it would
not respect the decision of the ICJ – which was an outrageous statement contrary to the
principle of the rule of law – but it had fortunately later qualified its position. The Workers’
group disagreed with all the amendments tabled by the Employers’ group.
82. Speaking on behalf of a majority of Asia and Pacific group (ASPAG) countries, a
Government representative of the Islamic Republic of Iran urged the Office and Governing
Body to consider the fact that the States most affected by the potential consequences of any
decision on the right to strike were not Governing Body members; her group would therefore
prefer such a decision to be made by the Conference, and any outcome from the current
meeting should be submitted for further consideration by the Governing Body before
submission to the Conference for a final decision.
83. Tripartite consensus built on social dialogue should, nevertheless, remain the first port of call
for resolving disputes linked to the world of work. Moreover, internal solutions, which were
the only way to ensure that all ILO constituents engaged actively in the process, should be
prioritized and exhausted before referrals were made to the ICJ. Internal ILO processes and
tripartism must therefore be strengthened. Her group proposed that tripartite meetings
should be convened urgently to reach a fair solution that addressed the request of the Workers’
group as well as the concerns of the Employers’ group and the Governments. A voluntary
Protocol to Convention No. 87 could be developed to ensure that States that had adopted the
Convention in 1948 were not obliged to accept new interpretations. Her group would not
accept any amendments or decisions that were inconsistent with its position.
84. Speaking on behalf of Argentina, Brazil, Chile and Colombia, a Government representative
of Chile expressed surprise that more than 100 years since its founding, the ILO continued to
discuss whether the right to strike was covered by its normative framework. That right was
inextricably linked to freedom of association, a universal right that protected both employers
and workers. Although social dialogue should be used to resolve disputes linked to the
interpretation of labour standards, the tripartite constituents had the right to make use of all
available mechanisms to seek a solution when the limits of such dialogue were reached,
including referrals to the ICJ. He supported such a step in the interests of gaining vital legal
certainty on the right to strike. The Office had always acted professionally and impartially and
in line with the Standing Orders of the Governing Body.
85. Speaking on behalf of a group consisting of the Arab group countries, a majority of
ASPAG countries, 17 African countries and 3 European countries, a Government
representative of Sudan said that tripartite dialogue within the ILO remained the best means
of resolving the dispute. While referral to the ICJ was a constitutional right after all internal
processes and tripartite dialogue had been exhausted, legal certainty should be reached
through an inclusive process. Since it was necessary for all Member States to participate in
discussions and in the decision-making process with regard to the proposed referral, that
decision must be approved by the Conference. Moreover, the resolution that allowed for such
referrals to be made by the Governing Body had been adopted in 1949, when there were
significantly fewer Member States, and did not negate the Conference’s right to adopt such
decisions. Discussions of the issue should therefore continue at the Governing Body’s next
session, and the Office should convene tripartite meetings on the subject in the meantime. His
group did not support the draft decision.
 GB.349bis/PV/Draft 25
86. Speaking on behalf of the EU and its Member States, a Government representative of Spain
expressed full support for the Office’s exhaustive work to prepare for the discussions. The
amendments proposed by the group of 44 countries were the way to garner the broadest
possible support. The referral to the ICJ might result in confirmation that the right to strike was
covered by Convention No. 87, in accordance with the interpretation of the ILO supervisory
bodies. The involvement of the International Labour Conference in the referral decision risked
prolonging an already long-standing dispute without providing new solutions, and he did not
support, therefore, the subamendments proposed by the Employers’ group.
87. A Government representative of Argentina, noting that the matter at hand was long
standing and affected the functioning of the ILO supervisory bodies, supported the request of
the Workers’ group for an advisory opinion from the ICJ. That step was permitted under the
ILO Constitution, which took precedence over all other normative or procedural provisions.
Although there was no doubt that such an important right as the right to strike was covered in
Convention No. 87, legal certainty on the matter was required to better uphold collective rights.
He welcomed the recognition by the Workers’ group that it was no longer necessary to address
the second of its questions, and he supported the draft decision.
88. A Government representative of Barbados said that, until there was a change in the
Constitution or the rules governing the Governing Body, the rules remained in place, including
that of delegated authority. There was an inescapable inequality of power between employers
and workers. The weaker party’s right to associate would be essentially meaningless if that
right did not also include the right to use the available tools to be seen, heard and respectfully
engaged. Whether or not the Convention as it stood, and as many Member States had
assumed, included the right to strike was a matter on which the ILO should provide guidance
to its Member States.
89. The representative expressed concern about the credibility of the ILO’s supervisory system.
The ILO and its Member States should clearly understand the tenor of the ILO Conventions.
The ILO had endeavoured in vain to resolve the dispute for many years. It therefore had to
have recourse to the methods envisaged in its Constitution, unless the dispute resolution
envisaged had clearly proven to be unreasonable, unreliable or unjust. Barbados did not
believe that to be the case. It believed that the matter should be referred to the ICJ and
supported the draft decision proposed by the group of 44 countries.
90. A Government representative of Brazil expressed his understanding that there was no
doubt under article 37 of the ILO Constitution as to the legality of referring the dispute to the
ICJ. The opposing views of the Workers’ and Employers’ groups appeared to be entrenched.
However, obtaining legal certainty and clarity on the scope of Convention No. 87 was urgent.
The draft resolution in the Office document focused on two crucial questions: the
interpretation of Convention No. 87 and the mandate of the Committee of Experts. The referral
to the ICJ was a last resort to guarantee legal certainty to all tripartite constituents and was
consistent with the ILO’s Constitution. Social dialogue, which Brazil favoured, had failed after
11 years. The essence of Convention No. 87 was closely related to democracy in the workplace
establishing a balance of power between workers and employers. By not taking a decision on
the right to strike, constituents had been perpetuating violations of that fundamental principle.
The right to strike was interlinked with the right to freedom of association and collective
bargaining, undeniable values that protected both workers and employers and ensured
normative and social stability to governments. Brazil endorsed the amended resolution
presented by Colombia on behalf of the group of 44 countries and strongly supported the
mandate of the special session of the Governing Body.
 GB.349bis/PV/Draft 26
91. A Government representative of Colombia said that the right to strike was intrinsic to
freedom of association, the right to organize and collective bargaining – a principle upheld by
the courts and legislation in democratic societies. It was an enabling right, to be used when
there were no other options. In his country, various aspects governing strikes took into account
the recommendations of the ILO. Governments therefore required legal certainty with regard
to their obligations under Convention No. 87. The Committee of Experts was independent,
impartial and objective and had to interpret standards as part of its supervisory duties.
Questioning the mandate or findings of the Committee of Experts would undermine the
credibility of the ILO and create a lack of legal certainty, in turn reducing its persuasive effect
over States for the effective application of international labour standards. As various means to
resolve the dispute had been attempted over several decades, the ILO must now have recourse
to the procedure under article 37(1) of the ILO Constitution and request the ICJ to urgently
issue an advisory opinion on whether the right to strike was protected under Convention
No. 87. He had therefore submitted an amendment on behalf of a group of 44 countries with
a resolution to that effect, and did not support the subamendment proposed by the Employers’
group.
92. A Government representative of Ecuador said that, prior to referring the dispute to the ICJ
if the Governing Body democratically decided to do so, all efforts to resolve it within the ILO
through social dialogue must first be exhausted. Another option would be to establish a
temporary quasi-judicial body to supervise the application of the provisions of Convention
No. 87. Ecuador could also support the adoption of a Protocol for Member States to ratify. That
would allow for more flexibility concerning Convention No. 87 or broaden its obligations.
93. A Government representative of Gabon said that her country supported the referral to the
ICJ in order to obtain a definitive ruling on the long-running dispute. However, given the
particular nature of such a procedure and the potential consequences for countries’ legislation,
a referral should be made only following a consideration of the matter at the next session of
the International Labour Conference so as to secure a specific mandate from all constituents.
She therefore supported a referral to the ICJ if the Conference, not the Governing Body, so
decided.
94. A Government representative of India said that the fundamental disagreement had global
implications and far-reaching consequences. As such, it would be neither equitable nor fair for
the Governing Body to take the decision on a referral to the ICJ. The discussion should be
widened to allow all Members of the ILO to participate, at the International Labour Conference.
She therefore supported the statement made by the Government representative of Sudan on
behalf of a group of countries.
95. A Government representative of Japan said that tripartite discussions should be exhausted
before any referral to the ICJ. The ICJ should be a last resort, as a referral would set a precedent.
Nevertheless, the dispute had been exhaustively discussed, as demonstrated by the statement
of the Workers’ group and in the amended draft decision introduced by Colombia on behalf of
a group of countries. The right to strike was not an absolute right, as it was restricted for certain
categories of workers and certain situations. Moreover, no provisions concerning the right to
strike had been included in Convention No. 87 when it was adopted, and even after
158 Member States had ratified the Convention, there was still no consistent agreement
among them on the scope of the right to strike. He sought clarification from the Office on
whether the discussion was proceeding on the principle, outlined in the Government group
statement at the 2015 tripartite meeting on Convention No. 87 in relation to the right to strike,
that the right to strike was not absolute and that the scope and conditions of the right were
regulated at the national level.
 GB.349bis/PV/Draft 27
96. A Government representative of Malaysia supported an internal solution to resolving the
dispute, with a referral to the ICJ only as a last resort. She urged the Office to establish an
internal independent tribunal to provide for the expeditious determination of the dispute. The
uncertainty had led to difficulties for constituents in regulating strikes. If the dispute
continued, it could affect the supervisory system and the credibility of the ILO as a body that
set international labour standards, as well as efficacy in the application of international
standards.
97. A Government representative of Mexico emphasized the importance of implementing
article 37(1) of the ILO Constitution, because it would provide legal certainty with regard to a
long-standing controversy. An advisory opinion would strengthen international law, human
rights, tripartism and social dialogue by providing a sound basis for the implementation of
Convention No. 87, benefiting the rights of workers. The Governing Body was authorized to
refer the dispute to the ICJ through the 1949 resolution, therefore it was unnecessary to
channel the referral through the Conference. Mexico supported the amendment proposed by
the group of 44 countries, without the subamendment proposed by the Employers’ group.
98. A Government representative of Namibia said that the dispute over the interpretation of
Convention No. 87 with respect to the right to strike had undermined the Organization’s
normative mandate and the credibility of its supervisory system. As the issue was legal, rather
than political, it was appropriate to invoke article 37(1) of the ILO Constitution for a legal
settlement. He therefore supported the amendment proposed by the group of 44 countries,
but rejected the subamendment proposed by the Employers’ group.
99. A Government representative of Niger supported a referral to the ICJ, while highlighting the
importance of ensuring the participation of all parties concerned, in particular, States that had
ratified Convention No. 87. He sought clarification on the potential consequences in the event
that an advisory opinion recognized that the right to strike was protected by Convention No. 87
on States that had ratified the Convention but did not recognize the right to strike and,
conversely, the potential consequences for States that had ratified the Convention and
recognized the right to strike if the ICJ considered that the right was not protected under
Convention No. 87.
100. A Government representative of Nigeria acknowledged the advantages of further dialogue,
but stressed the need to resolve the current uncertainty by finding a way forward. He therefore
suggested holding consultations with a view to continuing the discussion at the 350th Session
(March 2024) of the Governing Body and the 112th Session (June 2024) of the International
Labour Conference. His Government could be flexible on the modalities, as long as an
agreement could be reached on how to resolve the issue. He requested more information on
whether the Conference had the mandate to decide on a referral to the ICJ, and guidance on
the potential intended and unintended consequences of the proposed resolution.
101. A Government representative of the Russian Federation said that, given the clear division
within the Governing Body on the matter, continued social dialogue was the only way forward.
He therefore did not support any decision on a referral to the ICJ that was not supported by at
least a substantial proportion of participants, and agreed with the statements made on behalf
of members of ASPAG, ASEAN and the group of countries represented by Sudan.
102. A Government representative of the United Kingdom of Great Britain and Northern
Ireland agreed on the importance of social dialogue. However, in exceptional cases where
repeated attempts at tripartite dialogue had proven unsuccessful for a long period of time,
alternatives should be considered to move forward as an Organization. He therefore reiterated
 GB.349bis/PV/Draft 28
his Government’s support for the amendment proposed by the group of 44 countries, namely
to pursue a referral to the ICJ under article 37(1) of the ILO Constitution.
103. The Director-General, replying to the question from the Government representative of Niger,
said that it was not possible to speculate on the content or implications of any advisory opinion
from the ICJ. As to the comments made by the Employers’ group on what it viewed as a lack of
impartiality by the Office, he said that the Office would provide a written and detailed response
to all members of the Governing Body.
104. A representative of the Director-General (Director, International Labour Standards
Department), responding to the question from the Government representative of Japan,
confirmed that the Committee of Experts had always stated that the right to strike was not an
absolute right.
105. Another representative of the Director-General (Legal Adviser), in response to the queries
from the Government representative of Nigeria, explained that there were two concurrent
legal bases, or “titles of jurisdiction”, for seeking advisory opinions from the ICJ. The first was
article 37(1) of the ILO Constitution – originally Article 423 of the Treaty of Versailles – which
made provision for the Organization to seek advisory opinions from the ICJ regarding the
interpretation of the Constitution or of international labour Conventions. The second was
Article IX(2) of the 1946 Agreement between the United Nations and the International Labour
Organization (also known as the UN–ILO relationship agreement), which provided that the
UN General Assembly authorized the Organization to request advisory opinions of the ICJ on
legal questions arising within the scope of its activities. Paragraph 3 of the same article
provided that such requests could be addressed either by the International Labour Conference
or by the Governing Body acting in pursuance of an authorization by the Conference. That
authorization had been granted three years later, in 1949. The Conference and the Governing
Body had, therefore, a standing authorization by the UN General Assembly, under article 96 of
the UN Charter, to seek advisory opinions from the ICJ.
106. As to the implications of the amendment and subamendment, he said that the amendment
proposed by the group of 44 countries, if adopted, would imply an immediate referral of the
legal question or questions to the ICJ for an urgent advisory opinion. The subamendment
proposed by the Employers’ group, however, sought to place an item on the agenda of the
112th Session of the Conference (June 2024). Unless a decision to place an item on the
Conference agenda achieved consensus, paragraph 5.1.1 of the Standing Orders required that
a second discussion be held at the subsequent session of the Governing Body.
107. Concerning the query from the Government representative of Niger, he echoed the
Director-General’s view that it was not possible to speculate on the impact or legal
ramifications of a future advisory opinion, especially when the Governing Body had not
finalized the question or questions to be put to the ICJ. Once an advisory opinion had been
issued, it would need to be analysed and to be brought before the Governing Body, which
would be the requesting organ – or to the Conference – for debate and decision on possible
next steps. The ICJ had clarified on numerous occasions that its role was to render legal
assistance to the requesting organ, and that it was for each requesting organ to decide on the
actions to be taken subsequently.
108. The Worker Vice-Chairperson said that the decision to request a referral to the ICJ had not
been taken lightly. Indeed, a great deal of work had been done since the Employers’ group had
first started to challenge the interpretation of Convention No. 87 in 2012, including the
development of the work plan on the strengthening of the supervisory system. Some
Governments had expressed concerns regarding the impact of making such a referral to the
 GB.349bis/PV/Draft 29
ICJ, but consideration should also be given to the enormous harm the ongoing dispute was
causing to the exercise of a fundamental right by workers, and the insecurity that that
generated in terms of union protection. In addition, the supervisory bodies had faced huge
restrictions in giving guidance on that fundamental right. Since an agreement could not be
reached, it was only natural to go to the ICJ. Nothing in the Constitution suggested that all
other avenues must be exhausted before a referral to the ICJ; in any case, the issue had been
under discussion for many years already. It was time for the Governing Body to take a decision,
although that would not preclude any further discussions, as the democratic approach of the
Organization could always be improved. She therefore requested that the amendment of the
group of 44 countries containing a draft resolution be put to a vote.
109. Speaking on behalf of the Arab group, a Government representative of Morocco noted the
explanation that the Conference, as well as the Governing Body, could decide to refer a matter
to the ICJ. The Conference was a more inclusive forum than the Governing Body, so it made
sense to submit such a fundamental issue there first; to refuse to take the issue to the
Conference went against the image of the ILO as a place of dialogue.
110. The group therefore proposed a subamendment, to add at the beginning of the first operative
paragraph of the resolution, the wording “to submit to the 112th Session of the International
Labour Conference, for consideration, in accordance with article 37, paragraph 1, of the
Constitution of the ILO, the question of whether”, which would then continue “to request the
International Court of Justice…”; and to subamend the chapeau of the second operative
paragraph to read “According to the result obtained at the International Labour Conference,
instructs the Director-General, if it is so decided, to:”. The group was not calling into question
the ILO Constitution or any other established legal basis for its governance, but merely seeking
a way to move closer to consensus. In that context, he asked the Office what conditions would
need to be fulfilled to place the item on the agenda of the Conference.
111. The Worker Vice-Chairperson asked whether subamendments could still be proposed, given
that she had called for a vote.
112. A representative of the Director-General (Legal Adviser) clarified that requests for a vote
were noted by the Chairperson, but, as per established practice, did not require an immediate
decision. While it was the Chairperson’s prerogative under the Standing Orders to determine
if and when to put a question to a vote, the usual ILO practice was for the Chairperson to
continue seeking convergence where possible, which might involve the submission of further
subamendments, as in the current case.
113. The Employer Vice-Chairperson also noted that, as the Legal Adviser had made clear, the
authorization granted to the Governing Body to request advisory opinions of the ICJ in 1949
did not take away the power of the Conference to do the same. The reason for the
long-standing dispute was the consistent refusal of the Workers’ group to discuss the matter
at the Conference, even though it had been the intention of the drafters of Convention No. 87
to have a separate standard to regulate the right to strike, and proposals had been made
throughout the years to hold a standard-setting exercise. Everyone recognized the value of the
principle of freedom of association, and the Employers’ group and the Workers’ group had
issued a joint statement in 2015 stating that the right to strike was a legitimate instrument to
defend the interests of workers. The Employers’ group had not sought a referral to the ICJ as
it believed the matter should be settled in a standard-setting exercise through social dialogue
at the Conference, which would allow all constituents to express their views. If the
subamendment proposed by the Arab group would achieve consensus, the Employers’ group
 GB.349bis/PV/Draft 30
could support it. She urged other Governing Body members to support it in order to avoid
further division and to prevent further harm to the work of the Organization.
114. Speaking on behalf of a majority of ASPAG countries, a Government representative of the
Islamic Republic of Iran expressed support for the subamendment proposed by the Arab
group and the call for a vote.
115. The Worker Vice-Chairperson said that the proposed subamendment appeared to suggest
that all the work leading up to the special session had not been sufficient. Having an open
discussion on the matter at the Conference would not produce a clear outcome. The dispute
concerned a fundamental issue eroding the protection of a fundamental workers’ right. The
Governing Body had the responsibility and the mandate to decide to refer the matter to the
ICJ. She therefore urged the Chairperson to call a vote.
116. Speaking on behalf of the Arab group, the Government representative of Morocco clarified
that the subamendment that he had proposed simply requested that the decision be taken in
the most inclusive way possible. He asked why the Governing Body was against an inclusive
approach. Referring the decision to the Conference for approval would send a positive
message to the outside world that the decision had been taken by a majority.
117. The Worker Vice-Chairperson said that the notion of inclusivity was highly complex. The ILO
was a tripartite Organization, and the voices of workers and employers of all Member States
were represented on the Governing Body by the spokespersons. While Governments wanted
to participate in the discussion, the format of the Committee of the Whole was not necessarily
more inclusive for workers. No consideration was being given to the serious concerns that the
Workers’ group had been voicing for the past 11 years.
118. Article 37(1) of the ILO Constitution obliged all bodies – whether the Governing Body or the
Conference – to refer interpretation disputes to the ICJ. There would be no added value in
asking the same question to the Conference. While the Workers’ group was committed to
discussing measures to improve inclusivity, it was not a good reason to further delay a decision
by deferring the discussion to the Conference. She would therefore not support the
subamendment proposed by the Arab group.
119. The Employer Vice-Chairperson said that the International Labour Conference was the only
place where all governments, employers and workers were present and had a vote. Although
the Committee of the Whole had been useful, only additional governments could speak, not
additional representatives of the social partners; it could therefore not replace the Conference.
She did not understand the Workers’ group’s objection to having the item discussed in the
most representative forum.
120. There were now two proposals on the table to place an item on the agenda of the Conference,
and, according to paragraph 5.1.1 of the Standing Orders of the Governing Body, when a
proposal to place an item on the agenda of the Conference was discussed for the first time by
the Governing Body, it could not, without the unanimous consent of the members present,
take a decision until the following session. Therefore, if there was a divergence of views, there
would need to be a further discussion at the next session of the Governing Body.
121. A Government representative of India first asked for clarification from the Legal Adviser as
to whether the authorization from the Conference for the Governing Body to refer legal
questions to the ICJ was an overarching approval for all cases and for all time, with no scope
for any constitutional exceptions. Second, she noted that the jurisprudence suggested that
when an issue impacted the principal organ, decisions taken in its absence by any body to
which it delegated power might not be entirely valid or even ethical. The Governing Body could
 GB.349bis/PV/Draft 31
not presume that ILO Members would not want to be part of the wider, more inclusive
decision-making at the Conference. Moreover, if discussions at two sessions of the Governing
Body were required before an item could be placed on the agenda of the Conference, she
asked whether the discussion held at the March 2023 session of the Governing Body on a
procedural framework for referral of interpretation disputes to the ICJ under article 37(1) of
the Constitution would count as the first discussion. She supported the subamendment
proposed by the Arab group.
122. A representative of the Director-General (Legal Adviser) said that Article IX of the
UN–ILO relationship agreement of 1946 was very clear: the UN General Assembly authorized
the ILO to request advisory opinions of the ICJ on legal questions arising within the scope of
its activities and that such requests could be addressed to the ICJ by either the International
Labour Conference or by the Governing Body acting in pursuance of an authorization by the
Conference. There was no other qualification, so both bodies had explicit authorization and
could validly refer interpretation disputes or questions to the ICJ. As to whether it could be
presumed that the tripartite delegates at the annual session of the Conference would like to
be part of the decision-making process, that was not a legal question and he should therefore
refrain from expressing any view.
123. He confirmed that, according to paragraph 5.1.1 of the Standing Orders of the Governing Body,
when a proposal to place an item on the agenda of the Conference was discussed for the first
time by the Governing Body, the Governing Body could not, without the unanimous consent
of the members present, take a decision until the following session. The discussion by the
Governing Body at its 347th Session (March 2023) on the procedural framework set out in
Appendix I to document GB.347/INS/5 for the referral of interpretation questions or disputes
to the ICJ – which proposed non-binding guidelines for future use – did not address at all the
possibility of referring to the ICJ the concrete dispute around the interpretation of Convention
No. 87 in relation to the right to strike and could thus not qualify as the first discussion of the
proposal to place an item on that matter on the agenda of the Conference.
124. Referring to the subamendment proposed by the Arab group, he observed that it was
inaccurate to say that the Governing Body could decide, in accordance with article 37(1) of the
Constitution, to submit a question for consideration by the Conference. That article related to
the referral of questions for decision by the ICJ. As he understood it, the intention of the
subamendment was to place an item on the agenda of the Conference and he therefore
suggested that the text be redrafted accordingly.
125. The Worker Vice-Chairperson said that, since her group had first written to the
Director-General in July 2023 invoking article 37(1), all Member States had been informed of
the situation and invited to comment on the Office background report, in what could only be
described as an inclusive process. The Committee of the Whole had been organized so that
any Member State that wished to participate could do so. However, the whole of the ILO’s
constituency did not need to be involved in all the complexities of the Governing Body’s work.
Acknowledging that the Chairperson could continue to seek convergence following a request
for a vote, she said that the continued discussions on the subamendment proposed by the
Employers’ group – which her group could not accept – were not leading to convergence.
126. Speaking on behalf of the Arab group, a Government representative of Morocco proposed
that the subamendment put forward by his group could be edited to take into account the
comments made by the Legal Adviser.
 GB.349bis/PV/Draft 32
127. A representative of the Director-General (Legal Adviser) suggested that, for the sake of
accuracy, the words “in accordance with article 37, paragraph 1, of the Constitution of the ILO”
should be placed after the word “request”.
128. A Government representative of Namibia noted that, according to paragraph 5.7.3 of the
Standing Orders of the Governing Body, the Chairperson had the right to determine the order
in which amendments would be discussed and decided upon. Taking a vote on the
subamendment proposed by the group of 44 countries would be the most efficient way to
proceed. It was important to avoid undemocratic manoeuvres that did not respect the
procedures of the Governing Body. The cost for governments of sending delegations to
meetings at which the substance of a matter was not discussed should be taken into
consideration.
129. A Government representative of Brazil said that, although a decision by the Conference
would no doubt be more democratic, the decision was on the agenda of the Governing Body
and needed to be taken by the Governing Body. Given the high cost of his participation in the
sessions of the Governing Body for his Government, he could not return to his country without
a decision having been made. The matter should be put to a vote.
130. The Employer Vice-Chairperson said that the process to date had been far from inclusive; the
Workers’ group had written to the Director-General on the matter in July – when many people
had been on holiday – giving her group and the Governments very little time to consult and
take decisions. She recalled that taking a vote should be a mechanism of last resort. Indeed,
taking a vote on such an important substantive matter would undermine the house. It would
also not be a mechanism of last resort, because social dialogue on the matter had never taken
place, as the Workers’ group had refused to allow an item to be put on the agenda of the
Conference to discuss the substance of the right to strike. It was precisely in the interest of
social dialogue that the Employers’ group now wanted to refer the matter to the Conference.
She was opposed to the principle of voting on the matter and requested the Chairperson to
continue working towards a convergence of views, even if that was not achieved until the
350th Session (March 2024) of the Governing Body.
131. Speaking on behalf of a majority of ASPAG countries, a Government representative of the
Islamic Republic of Iran said that many Governments had not yet finalized their internal
tripartite consultations on the matter. The Governing Body should refer the matter to the
Conference for a final, inclusive, decision.
132. Speaking on behalf of the group of 44 countries, a Government representative of Colombia
said, with reference to the subamendment proposed by the Arab group, that it would be a
waste of time to include the item on the Conference agenda, as the only possible outcome
would be for the Conference to refer the matter to the ICJ. He was not opposed to inclusivity
or democratization. There had been enough discussion to take the decision under
consideration and the Governing Body should not continue going around in circles. He
therefore called for a vote.
133. A Government representative of Bangladesh said that, as the outcome of the dispute on
interpretation would be applicable to all countries, an inclusive approach of taking the matter
to the Conference would be preferable.
134. A Government representative of China, emphasizing that the principle of tripartism should
be upheld, expressed support for the subamendment proposed by the Arab group, which was
constructive, practical, impartial and inclusive, and likely to be the most acceptable solution.
 GB.349bis/PV/Draft 33
135. The Chairperson observed that the Governing Body had before it one amendment and two
subamendments and that, following lengthy discussions and unfruitful attempts to seek
convergence or flexibility, the Workers’ group and a number of Governments had called for a
vote. Under the circumstances, taking a decision by vote appeared inevitable.
136. The Clerk of the Governing Body reiterated that, according to paragraph 5.7.3 of the Standing
Orders, it was for the Chairperson to determine the order in which the amendments and
subamendments should be discussed and decided upon. He suggested that the Governing
Body could first decide on the subamendment proposed by the Employers’ group. If that was
not accepted, it could then decide on the subamendment proposed by the Arab group. If that
was not accepted, it could then decide on the original amendment.
137. The Chairperson called a vote by show of hands on the subamendment proposed by the
Employers’ group.
138. The Clerk of the Governing Body explained the voting procedure, noting that no regular
Government members were disqualified from voting by reason of arrears in the payment of
contributions.
(The subamendment proposed by the Employers’ group was rejected, with 14 votes in favour,
29 votes against and 10 abstentions.)
139. The Clerk of the Governing Body said that the Governing Body should proceed with a vote
by show of hands on the subamendment proposed by the Arab group.
(The subamendment proposed by the Arab group was rejected, with 23 votes in favour, 29 votes
against and 4 abstentions.)
140. The Employer Vice-Chairperson asked the Office to verify the number of votes in favour of
the subamendment proposed by her group; she was under the impression that it had received
a higher number of votes in favour.
141. The Chairperson said that, in the light of the concern raised by the Employers’ group, the vote
on the subamendment proposed by that group would be retaken in order to protect the
integrity of the process.
142. A Government representative of the United States, raising a point of order, said that
retaking the vote on the subamendment proposed by the Employers’ group could prejudice
the results of the votes on the amendment and other subamendments, and requested
clarification on the process.
143. The Legal Adviser indicated that, according to paragraph 6.1.2 of the Standing Orders of the
Governing Body, the Chairperson had the prerogative to request that a vote be retaken in case
of doubt as to the result. However, if the Chairperson was satisfied that there was nothing
demonstrably problematic in the manner in which the vote had been conducted or the votes
had been counted, he could confirm the results already announced.
144. The Worker Vice-Chairperson requested clarification on the status of the vote on the
subamendment proposed by the Employers’ group.
145. The Clerk of the Governing Body said that, as per the Chairperson’s decision, the Governing
Body would proceed to retake the vote by show of hands on the amendment proposed by the
Employers’ group so that there would be no doubt about the transparency and integrity of the
voting process.
(The subamendment proposed by the Employers’ group was rejected, with 16 votes in favour,
30 votes against and 8 abstentions.)
 GB.349bis/PV/Draft 34
146. The Clerk of the Governing Body said that the Governing Body would next proceed to take a
vote by show of hands on the amendment proposed by the group of 44 countries.
(The amendment proposed by the group of 44 countries was accepted, with 33 votes in favour,
21 votes against and 2 abstentions.)
Decision
147. Further to the request of the Workers’ group and of 36 governments to urgently refer
the dispute on the interpretation of the Freedom of Association and Protection of the
Right to Organise Convention, 1948 (No. 87), in relation to the right to strike to the
International Court of Justice for decision in accordance with article 37(1) of the
Constitution, the Governing Body decided to adopt the following resolution:
The Governing Body,
Conscious that there is serious and persistent disagreement within the tripartite
constituency of the International Labour Organization (ILO) on the interpretation of the
Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87),
with respect to the right to strike,
Recalling that at the origin of the dispute is a disagreement among the Organization’s
tripartite constituents concerning whether the right to strike is protected under
Convention No. 87,
Noting that the ILO’s supervisory bodies have consistently observed that the right to
strike is a corollary to the fundamental right to freedom of association,
Seriously concerned about the implications that this dispute has on the functioning of
the ILO and the credibility of its system of standards,
Affirming the necessity of resolving the dispute in a manner consistent with the
Constitution of the ILO,
Recalling that, under article 37(1), of the ILO Constitution, “[a]ny question or dispute
relating to the interpretation of this Constitution or of any subsequent Convention
concluded by the Members in pursuance of the provisions of this Constitution shall be
referred for decision to the International Court of Justice”,
Recalling the consensual decision of the Governing Body at its 320th Session
(March 2014), welcoming “the clear statement by the Committee of Experts of its
mandate as expressed in the Committee’s 2014 report”:
“The Committee of Experts on the Application of Conventions and Recommendations
is an independent body established by the International Labour Conference and its
members are appointed by the ILO Governing Body. It is composed of legal experts
charged with examining the application of ILO Conventions and Recommendations
by ILO member States. The Committee of Experts undertakes an impartial and
technical analysis of how the Conventions are applied in law and practice by member
States, while cognizant of different national realities and legal systems. In doing so,
it must determine the legal scope, content and meaning of the provisions of the
Conventions. Its opinions and recommendations are non-binding, being intended to
guide the actions of national authorities. They derive their persuasive value from the
legitimacy and rationality of the Committee’s work based on its impartiality,
experience and expertise. The Committee’s technical role and moral authority is well
recognized, particularly as it has been engaged in its supervisory task for over
85 years, by virtue of its composition, independence and its working methods built
on continuing dialogue with governments taking into account information provided
by employers’ and workers’ organizations. This has been reflected in the
incorporation of the Committee’s opinions and recommendations in national
legislation, international instruments and court decisions”,
 GB.349bis/PV/Draft 35
Noting that, despite protracted attempts, no consensus has been reached through
tripartite dialogue,
Emphasizing that article 37(1) of the ILO Constitution establishes that any referral to the
International Court of Justice is for decision on the question or dispute referred,
Expressing the hope that, in view of the ILO’s unique tripartite structure, not only the
governments of ILO Member States but also the international employers’ and workers’
organizations enjoying general consultative status in the ILO would be invited to
participate directly and on an equal footing in the written proceedings and any oral
proceedings before the Court,
Decides, in accordance with article 37(1) of the ILO Constitution,
1. To request the International Court of Justice to render urgently an advisory
opinion under Article 65, paragraph 1, of the Statute of the Court, and under
Article 103 of the Rules of Court, on the following question:
Is the right to strike of workers and their organizations protected under the
Freedom of Association and Protection of the Right to Organise Convention,
1948 (No. 87)?
2. Instructs the Director-General to:
(a) transmit this resolution to the International Court of Justice,
accompanied by all documents likely to throw light upon the question,
in accordance with Article 65, paragraph 2, of the Statute of the Court;
(b) respectfully request that the International Court of Justice allow for the
participation in the advisory proceedings of the employers’ and
workers’ organizations that enjoy general consultative status with the
ILO;
(c) respectfully request that the International Court of Justice consider
possible steps to accelerate the procedure, in accordance with
Article 103 of the Rules of Court, so as to render an urgent answer to this
request;
(d) inform the United Nations Economic and Social Council of this request,
as required under Article IX, paragraph 4, of the Agreement between
the United Nations and the International Labour Organization, 1946.
(GB.349bis/INS/1/1, paragraph 27, as amended by the Governing Body)
148. The Employer Vice-Chairperson thanked the Governments that had participated in the
discussion, in particular those that had spoken in favour of social dialogue. It was disappointing
that the Chairperson had forced a vote on the matter, despite the fact that the Governing Body
would discuss a very similar matter at its 349th ter Session the following day. Furthermore, the
vast majority of countries that had taken the floor earlier that day in the Committee of the
Whole had spoken in favour of social dialogue and against referral of the matter to the ICJ.
Many had also voiced doubts as to whether it was appropriate for the Governing Body to take
a decision on the matter in the light of concerns regarding the democratic nature of its
composition.
149. The 33 votes in favour of referring the matter to the ICJ represented a very small percentage –
she estimated 4 or 5 per cent – of the number of potential votes that could have been cast had
the decision been put to the International Labour Conference. The vast majority of the ILO’s
constituents had therefore been deprived of the opportunity to engage in dialogue and to take
a decision on the matter with full legitimacy and inclusivity.
150. She noted with deep regret that the Governments that had led social dialogue in the past had
lost the legitimacy to do so, as they had not involved the Employers’ group in their
 GB.349bis/PV/Draft 36
consultations or tried to achieve tripartite consensus, setting a new precedent in that regard.
The adoption of the decision by force would prove to be a disaster for the Organization.
151. The Worker Vice-Chairperson objected to the suggestion that only the Governments
supporting the position of the Employers’ group were in favour of social dialogue. Neither did
she accept that the Chairperson had been forced to call for a vote; the Workers’ group had
been within its right to ask for a vote to be taken in a situation where consensus had been
unachievable. The members of the Governing Body had been delegated by those that they
represented to speak and take decisions on their behalf. While it was clear that further
discussion on the democratization of the Governing Body was needed, she disagreed with the
suggestion that it lacked decision-making authority, which in effect constituted a challenge to
the Organization’s governance structure.
152. For the ILO to maintain its credibility, it was important not to allow conflicts to remain
unresolved. She expressed hope that constituents on all sides of the debate would participate
in an appropriate manner in the examination of the matter by the ICJ and that, after the
conclusion of those proceedings, the Governing Body would hold serious discussions on how
to follow up on the outcome of that process.
153. She thanked all Governments that had participated in the discussion and expressed
appreciation for the commitment of those that had proposed the amendment. She welcomed
the professionalism, expertise and commitment demonstrated by the Office and its staff in its
efforts to organize and manage the special session, and thanked the Chairperson for leading
the debate to a solid outcome.
154. A Government representative of Pakistan, speaking in explanation of vote, said that his
delegation’s position on the amendment proposed by the group of 44 countries should be
viewed in the context of the declaration made by his Government on its acceptance of the
jurisdiction of the ICJ regarding disputes arising under a multilateral treaty.
Document No. 32
GB.349ter/INS/1, Action to be taken on the request of
the Employers’ group to urgently include a standardsetting
item on the right to strike on the agenda of
the 112th Session of the International Labour
Conference, October 2023

 GB.349ter/INS/1
To minimize the environmental impact of ILO activities, Governing Body documents published before or after the sessions are not printed. Only documents
issued in-session are printed in limited numbers and distributed to Governing Body members. All Governing Body documents are available at www.ilo.org/gb.
Governing Body
349th ter (special) Session, Geneva, 11 November 2023
Institutional Section INS
Date: 11 October 2023
Original: English
First item on the agenda
Action to be taken on the request of the Employers’
group to urgently include a standard-setting item
on the right to strike on the agenda of the 112th
Session of the International Labour Conference
This document has been prepared for the purposes of the special meeting of the Governing Body convened under
paragraph 3.2.2 of the Standing Orders of the Governing Body following the request of the Employers’ group to
urgently include a standard-setting item on the right to strike on the agenda of the 112th Session (June 2024) of
the International Labour Conference. Its aim is to serve as a background report for the discussion. It contains
information on the ILO statutory framework for placing a standard-setting item on the Conference agenda, ILO
practice regarding the adoption of Protocols, an account of the origins of the standard-setting proposal on the
right to strike and concluding observations summarizing the possible implications of the above for the proposed
standard-setting item. The Governing Body is invited to take note of this background report and provide guidance
on action to be taken in relation to the proposal for placing a standard-setting item on the agenda of next year’s
Conference (see the draft decision in paragraph 16).
Relevant strategic objective: Standards and fundamental principles and rights at work.
Main relevant outcome: Outcome 2: International labour standards and authoritative and effective
supervision.
Policy implications: None at this stage.
Legal implications: None at this stage.
Financial implications: None at this stage.
Purpose of the document
 GB.349ter/INS/1 2
Follow-up action required: Depending on the decision of the Governing Body.
Author unit: International Labour Standards Department (NORMES).
Related documents: GB.349bis/INS/1; GB.349/INS/2.
 GB.349ter/INS/1 3
 Contents
Page
Introduction .............................................................................................................................................. 5
Chronology ................................................................................................................................................ 5
Office background report ....................................................................................................................... 6
Draft decision ............................................................................................................................................ 7
Appendix .................................................................................................................................................... 9
Standard-setting on the right to strike in the form of a Protocol – Background report ......... 9
I. The statutory framework for placing a standard-setting item on the agenda of
the International Labour Conference...................................................................................... 9
Placing a standard-setting item on the agenda of the International Labour
Conference ................................................................................................................................. 9
Preparing a standard-setting discussion on a Protocol ...................................................... 10
Agendas of the forthcoming sessions of the Conference ................................................... 11
II. Standard-setting in the form of a Protocol ............................................................................ 11
A. Protocols to international labour Conventions in general ............................................ 11
A.1. Legal nature, purpose and effects of a Protocol ..................................................... 11
A.2. Overview of ILO Protocols .......................................................................................... 12
Protocol of 1982 to the Plantations Convention, 1958 (P110) .............................. 12
Protocol of 1990 to the Night Work (Women) Convention (Revised),
1948 (P89) ...................................................................................................................... 13
Protocol of 1995 to the Labour Inspection Convention, 1947 (P81) .................... 14
Protocol of 1996 to the Merchant Shipping (Minimum Standards)
Convention, 1976 (P147) ............................................................................................. 14
Protocol of 2002 to the Occupational Safety and Health Convention,
1981 (P155) ................................................................................................................... 15
Protocol of 2014 to the Forced Labour Convention, 1930 (P29) ........................... 16
III. Proposed standard-setting on the right to strike: Origins of the proposal ...................... 17
IV. Final considerations ................................................................................................................... 22
Purpose and aim of an ILO Protocol on the right to strike ................................................. 22
A synergetic relationship between the Committee of Experts’ independent
supervisory functions and the standard-setting function of the Conference .................. 23
Adoption process and timeframe ........................................................................................... 24
V. Concluding observations ........................................................................................................... 24
 GB.349ter/INS/1 5
 Introduction
1. Under the Constitution of the ILO and the Standing Orders of the Governing Body, a special
meeting of the Governing Body may be convened when a minimum number of regular
members of the Governing Body so request in writing, or when the Chairperson of the
Governing Body considers it necessary.
2. In particular, article 7(8) of the Constitution provides that:
A special meeting [of the Governing Body] shall be held if a written request to that effect is
made by at least sixteen of the representatives on the Governing Body.
3. In addition, paragraph 3.2.2 of the Standing Orders of the Governing Body provides as follows:
Without prejudice to the provisions of article 7 of the Constitution of the Organization, the
Chairperson may also convene after consulting the Vice-Chairpersons, a special meeting
should it appear necessary to do so, and shall be bound to convene a special meeting on receipt
of a written request to that effect signed by sixteen members of the Government group, or
twelve members of the Employers’ group, or twelve members of the Workers’ group.
4. Accordingly, the holding of a special meeting is either compulsory, when a written request is
made by 16 regular members regardless of group, by 16 regular Government members, or by
12 regular Employer members or 12 regular Worker members; or voluntary when convened at
the Chairperson’s discretion. 1
5. To date, special meetings have been convened on three occasions: in September 1932,
October 1935 and May 1970, all under the discretionary authority of the Chairperson of the
Governing Body. 2
 Chronology
6. In a communication dated 12 September 2023 to the Chairperson of the Governing Body, the
14 regular Employer members of the Governing Body requested the holding of a special
meeting under paragraph 3.2.2 of the Standing Orders of the Governing Body in order to
decide on the urgent inclusion of a standard-setting item on the right to strike on the agenda
of the 112th Session (June 2024) of the International Labour Conference.
7. More concretely, the Employers’ group proposed that the Conference adopt a Protocol to the
Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The
Protocol would concern the right to strike or more broadly, industrial action. 3 The adoption of
the Protocol would authoritatively determine the scope and limits of the right to strike in the
1 For more information, see the Office note on the origin and evolution of rules on convening special Governing Body
sessions.
2 For more information, see the Office note on past practice on special Governing Body sessions.
3 It is recalled that in their 2015 joint statement, the Employers’ and Workers’ groups referred to the right to take industrial
action. Based on a series of comments on the issue by ILO supervisory bodies and on several domestic laws, industrial action
may be understood as a term that encompasses: (i) different types of strike actions carried out by workers and their
organizations according to their modalities (including, for instance, down tools, go-slow, working to rule etc.); and/or (ii) both
strike actions by workers and their organizations and lockouts by employers.
 GB.349ter/INS/1 6
context of Convention No. 87. The obligations under the Protocol would become binding for
those parties to the Convention that ratified the Protocol. In this way, the adoption of the
Protocol would settle the ongoing dispute about the interpretations on the right to strike.
8. The communication by the Employer members also indicates that the adoption of a Protocol
to Convention No. 87 on the right to strike would thus demonstrate that a lasting solution to
the conflict over the interpretations of the right to strike is possible through dialogue within
the tripartite structures of the ILO and that a referral to the International Court of Justice (ICJ)
is not necessary.
9. The communication was handed to the Governing Body screening group by the Employer Vice-
Chairperson at a meeting called on 13 September 2023 in order to discuss the convening of a
special meeting to address a request of the Workers’ group and of 36 governments to urgently
refer the dispute on the interpretation of Convention No. 87 in relation to the right to strike to
the ICJ for decision in accordance with article 37(1) of the Constitution. 4
10. In their communication, the Employer members requested that a special meeting on a possible
Protocol to Convention No. 87 on the right to strike be organized before the holding of the
special meeting requested by the Workers’ group and 36 governments, in order to ensure that
the possibility of standard-setting on the right to strike is not rendered obsolete by a referral
of the matter to the ICJ.
11. By circular letter dated 15 September 2023, the Director-General informed all Member States
of the request of the Employers’ group and of the screening group decision.
12. On 25 September 2023, the Office received a note verbale from the Permanent Mission of the
Republic of Türkiye to the United Nations Office in Geneva welcoming the request for a special
meeting to address the inclusion of a standard-setting item regarding the right to strike on the
agenda of the 112th Session of the Conference and the preparation of a Protocol associated
with Convention No. 87, and adding that the primary objective of the Protocol would be to
establish precise and authoritative parameters governing the scope and limitations of the right
to strike, thereby ultimately resolving the ongoing disagreement. The note verbale was
communicated to all Member States by a circular letter of the Director-General dated
26 September 2023.
13. On 28 September 2023, the tripartite screening group decided that the special meeting to
discuss the request of the Employers’ group would be held on 11 November. The decision of
the screening group was communicated to all Member States by a circular letter of the
Director-General dated 29 September 2023.
 Office background report
14. Against this background, the special meeting of the Governing Body will examine the request
of the Employers’ group. The special meeting will offer an opportunity for a full exchange of
views and an informed decision considering its aim, purpose and proposed timing.
15. Accordingly, the Office has prepared a background report to facilitate the deliberations of the
Governing Body. The report provides information on: (i) the ILO statutory framework for
placing a standard-setting item on the Conference agenda; (ii) ILO practice regarding
4 The chronology of events is explained in detail in document GB.349bis/INS/1, paras 6–21.
 GB.349ter/INS/1 7
Protocols; (iii) an account of the origins of the standard-setting proposal on the right to strike;
(iv) final considerations on the possible implications of the proposed standard-setting item and
(v) concluding observations.
 Draft decision
16. Further to the request of the Employers’ group and of the Republic of Türkiye to urgently
include a standard-setting item on the right to strike on the agenda of the 112th Session
of the International Labour Conference (2024), the Governing Body decided to
[decision to be taken at the end of the special meeting]
 GB.349ter/INS/1 9
 Appendix
Standard-setting on the right to strike in the form of a Protocol –
Background report
I. The statutory framework for placing a standard-setting item on the agenda of the
International Labour Conference
Placing a standard-setting item on the agenda of the International Labour Conference
1. The proposed inclusion of a standard-setting item on the agenda of the 112th Session of the
International Labour Conference (June 2024) must be considered in light of the legal and
procedural framework for placing a standard-setting item on the Conference agenda that is
set out in the Constitution, the Standing Orders of the International Labour Conference and
the Standing Orders of the Governing Body. 1
2. The main responsibility for setting the agenda of the Conference lies with the Governing Body.
Proposals to place an item on the Conference agenda must be considered at two successive
sessions of the Governing Body, unless there is unanimous consent to place a proposed item
on the agenda of the Conference when it is discussed for the first time by the Governing Body
(paragraph 5.1.1 of the Governing Body Standing Orders).
3. Paragraphs 54–56 of the Introductory note of the Governing Body Standing Orders read as
follows:
54. The items to be placed on the agenda of the Conference are considered at two successive
sessions of the Governing Body, so that the decision is taken two years prior to the opening of
the session of the Conference in question.
55. The first stage of the discussion, which takes place at the November session, consists in
identifying the subjects from which a choice could be made. For this purpose the Governing
Body bases its discussion on a paper containing all the information necessary on the items
proposed by the Director-General.
56. The second stage, which takes place at the March session, consists in adopting a definitive
decision. The paper serving as the basis for this discussion covers any additional items
proposed by the Governing Body during the first stage of the discussion. If a decision cannot
be taken at the March session, it is still possible to adopt a definitive decision at the following
November session. However, to allow for full preparation by the Office, such third discussion
should remain an exceptional practice.
4. Standard-setting items are regarded as having been referred to the Conference for a double
discussion unless the Governing Body decides otherwise (paragraph 5.1.4 of the Governing
Body Standing Orders). Paragraph 5.1.5 of Governing Body Standing Orders provides that in
cases of special urgency or where other special circumstances exist, the Governing Body may,
by a majority of three fifths of the votes cast, decide to refer a question to the Conference for
a single discussion with a view to the adoption of a Convention or Recommendation. So far, all
1 See ILO Constitution, art. 14(1); Standing Orders of the International Labour Conference, arts 44–52; Standing Orders of the
Governing Body, art. 5.1; as well as the Introductory Note of the Compendium of rules applicable to the Governing, paras 54–
to 56.
 GB.349ter/INS/1 10
Protocols except for one (the Protocol of 1990 to the Night Work (Women) Convention
(Revised), 1948 (No. 89), were adopted on the basis of a single Conference discussion.
Preparing a standard-setting discussion on a Protocol
5. Standard-setting items are generally placed on the agenda of the Conference more than two
years before the opening of the Conference session at which the item is discussed, by reason
of specific time limits applicable to the preparatory stages of a double or single-discussion
procedure set forth in the Standing Orders of the Conference (articles 45–46 of the Standing
Orders of the Conference). As detailed below, these preparatory stages include the preparation
of a preliminary report on the national law and practice with a questionnaire, the
communication of replies by constituents, and the preparation of a further report of the Office
with draft conclusions which in principle serve as a basis for the first Conference discussion.
6. As per articles 45 and 46 of the Standing Orders of the Conference, when a standard-setting
item is placed on the agenda of the Conference for either a single or a double discussion, the
Office shall prepare as soon as possible a preliminary report setting out the law and practice
in the different countries and any other useful information, together with a questionnaire
requesting the governments to consult the most representative organizations of employers
and workers before finalizing their replies and to give reasons for their replies. The Office shall
communicate the report and questionnaire to the governments so as to reach them not less
than 18 months before the opening of the session of the Conference at which the first
discussion is to take place. The replies should reach the Office as soon as possible and not less
than 11 months before the opening of the session of the Conference at which the first
discussion is to take place. On the basis of the replies received, the Office shall prepare a
further report indicating the main questions which require consideration by the Conference.
This report shall be communicated by the Office to the governments as soon as possible and
every effort shall be made to ensure that the report reaches them not less than four months
before the opening of the session of the Conference at which the first discussion is to take
place.
7. A detailed flowchart presentation of the statutory timeline of a standard-setting discussion is
available here.
8. These arrangements shall apply only in cases in which the question has been included in the
agenda of the Conference not less than 26 months before the opening of the session of the
Conference at which it is to be discussed in respect of a single discussion (article 45(4) of the
Conference Standing Orders) or not less than 18 months before the opening of the session of
the Conference in the case of a double discussion (article 46(5) of the Conference Standing
Orders).
9. When the standard-setting item is placed on the agenda of the Conference less than 26 months
for a single discussion or less than 18 months for a double discussion, a programme of reduced
intervals shall be approved by the Governing Body.
10. The Governing Body last approved a programme of reduced intervals for a single discussion
of a Protocol in March 2013 (GB.317/PV, paragraph 25(b)) when it decided to place on the
agenda of the 2014 session of the Conference a standard-setting item to supplement the
Forced Labour Convention, 1930 (No. 29), which led to the adoption of the Protocol of 2014 to
the Forced Labour Convention, 1930 (No. 29). Another example was the approval by the
Governing Body of reduced intervals in March 2002 (GB.283/PV, page I/7 and GB.283/16/3)
when it decided to place on the agenda of the 2003 session of the Conference, a standardsetting
item with a view to considering a Protocol to the Seafarers’ Identity Documents
 GB.349ter/INS/1 11
Convention, 1958 (No.108), that led to the adoption of the Seafarers’ Identity Documents
Convention (Revised), 2003, as amended (No. 185).
11. According to ILO records, no standard-setting leading to the adoption of a Protocol has been
completed in a timeframe shorter than 14–15 months from the date the item was placed on
the Conference agenda, except for the Protocol of 1996 to the Merchant Shipping (Minimum
Standards) Convention, 1976 (No. 147), which had been prepared in a prior technical
conference.
Agendas of the forthcoming sessions of the Conference
12. Under the second item of its Institutional Section, the Governing Body considers proposals for
the agenda of the Conference based on a strategic and coherent approach which it approved
at its 322nd Session (October–November 2014). 2
13. At its 341st Session (March 2021), the Governing Body placed on the agenda of the 112th and
113th Sessions (2024 and 2025) of the Conference an item related to occupational safety and
health protection against biological hazards (standard-setting – double discussion). 3
14. As indicated in the document GB.349/INS/2, which will be discussed at the 349th Session of the
Governing Body (October–November 2023), the agenda of next year’s Conference was
completed by the Governing Body at its 344th Session (March 2022) when the Governing Body
decided to place on it a general discussion item on decent work and the care economy. 4
15. At its 347th Session (March 2023), the Governing Body completed the agenda of the
113th Session (2025) of the Conference with the addition of a standard-setting item on the
platform economy and a general discussion item on innovative approaches to tackling
informality and promoting transitions towards formality to promote decent work. 5
16. The Governing Body is invited at its 349th Session (October–November 2023) to consider
placing on the agenda of either the 114th Session (June 2026) or the 115th Session (June 2027)
of the Conference a standard-setting item on the consolidation of instruments on chemical
hazards based on a double discussion. In view of the statutory time limits recalled above, to
place a standard-setting item on the consolidation of instruments on chemical hazards based
on a double discussion on the agenda of the 114th Session (June 2026), the Governing Body
should take a decision no later than at its 350th Session (March 2024). 6
II. Standard-setting in the form of a Protocol
A. Protocols to international labour Conventions in general
A.1. Legal nature, purpose and effects of a Protocol
17. Protocols are international treaties, subject to ratification by ILO Member States. Each Protocol
is linked to an existing Convention. Protocols enter into force in accordance with the conditions
set out in their final provisions and create legal obligations for ratifying States without
retroactive effect. Protocols are subject to the same reporting requirements as the
2 GB.322/PV, para. 17, and GB.322/INS/2, paras 11–19.
3 GB.341/INS/3/1(Rev.2)/Decision.
4 GB.344/INS/3/1 and GB.344/INS/3/1/Decision.
5 GB.347/INS/2/1 and GB.347/INS/2/1/Decision.
6 GB.349/INS/2 para. 15.
 GB.349ter/INS/1 12
Conventions to which they are attached and may give rise to complaint and representation
procedures. 7
18. A Protocol can only be ratified by those States which are already bound by the Convention to
which the Protocol is attached. As for the States that decide not to ratify the Protocol, they
remain bound by the provisions of the relevant Convention in its original reading. This is
consistent with Article 40(4) of the Vienna Convention on the Law of Treaties, which provides
that an “amending agreement does not bind any State already a party to the treaty which does
not become a party to the amending agreement”.
19. The main advantage of a Protocol is that it has a circumscribed scope and that it preserves the
ratifications of the Convention to which it is attached, which remains open to new ratifications.
It is a simple and flexible instrument particularly useful for partially amending or
supplementing a specific part or a limited number of provisions of an existing Convention.
20. To date, the ILO has adopted six Protocols to international labour Conventions. The first
Protocol was adopted in 1982 and aimed at revising the Plantations Convention, 1958 (No 110).
The intention was to introduce a limited amendment in a simplified format, avoiding the need
for drafting a new Convention or reproducing the whole text of the Convention. 8
21. This innovation originated in the 1979 report of the Ventejol Working Party on the Revision of
Standards. Prior to 1982, the only method for both total and partial revision of Conventions
had been the drafting of a new Convention based on either a single or double Conference
discussion. In fact, all revision exercises since 1950 had followed the general procedure used
for the adoption of new standards.
A.2. Overview of ILO Protocols
22. A short overview of the six Protocols adopted by the ILO is provided below. The purpose is to
take stock of past practice with regard to the purpose and content of Protocols, as well as the
time frame and process for their adoption. This review will inform the final considerations set
out at the end of the report.
Protocol of 1982 to the Plantations Convention, 1958 (P110)
23. Purpose and content: The Protocol aims at amending the scope of application of Convention
No. 110 by allowing Member States to exclude from the coverage of the Convention, after
consultation with organizations of employers and workers, undertakings the area of which
covers not more than 5 hectares, and which employ not more than ten workers at any time
during a calendar year.
24. Adoption process: At its 214th Session (November 1980), the Governing Body decided to place
on the agenda of the 68th Session (1982) of the Conference an item concerning the limited
revision of Convention No. 110 under the single-discussion procedure. A law and practice
report accompanied by a questionnaire were prepared so as to reach governments not less
than 12 months before the opening of the 68th Session. Replies were to be sent not later than
7 ILO, Strengthening Action to End Forced Labour, ILC.103/IV/1, 2014, 67, and Records of Proceedings, PR 9(Rev.), International
Labour Conference,103rd Session, 2014, para. 580.
8 ILO, Revision of the Plantations Convention (No. 110) and Recommendation (No. 110), 1958, Report VII(2), 24; and “Report of the
Committee on Plantations”, Provisional Record No. 18, International Labour Conference, 68th Session, 1982, para. 9
 GB.349ter/INS/1 13
2 October 1981. No programme of reduced intervals was adopted as the item was placed on
the agenda in accordance with the time limits set forth in the Conference Standing Orders. 9
25. Ratification: To date, the Protocol has been ratified by two of the ten countries that are bound
by Convention No. 110.
Protocol of 1990 to the Night Work (Women) Convention (Revised), 1948 (P89)
26. Purpose and content: The Protocol aims at broadening the possibilities for exemptions from
the prohibition of the night work of women in industry and introduce variations in the duration
of the night period provided, as envisaged in the Night Work (Women) Convention (Revised),
1948 (No. 89). This was considered necessary to accommodate the changing role of women in
the world of work and the sharp increase in women’s labour force participation in the 42 years
that elapsed since the Convention’s adoption. Exemptions rely on the elaboration of
consensual policies aimed at striking a balance between on the one hand, measures which
limit women’s freedom of choice regarding working time and reduce their ability to compete
with men in the labour market, and on the other hand, measures aimed at providing protection
tailored narrowly to meet a demonstrated need for protection in certain contexts. 10 A meeting
of experts which had preceded the adoption of the Protocol, had underlined the complexity of
the subject involving conflicting values and competing legal doctrines on preventing
discrimination in employment and ensuring the safety and health of workers. The Protocol was
adopted in parallel to the Night Work Convention, 1990 (No. 171), in an attempt to reconcile
the various perspectives and doctrines into a coherent policy. 11 The Protocol served to ease
prohibitions on night work of women while maintaining restrictions still considered valid in
certain contexts. For countries that were ready to move towards an approach focused on equal
treatment between women and men, Convention No. 171 provided measures of protection for
all night workers without discrimination including in relation to many aspects of special
concern to women.
27. Adoption process: At its 238th Session (November 1987) the Governing Body decided to place
on the agenda of the 76th Session (1989) of the Conference, the question of night work under
the double-discussion procedure. A law and practice report accompanied by a questionnaire
were prepared so as to reach governments not less than 12 months before the opening of the
76th Session. Replies were to be sent not later than 6 October 1988. No programme of reduced
intervals was adopted as the item was placed on the agenda in accordance with the time limits
set forth in the Conference Standing Orders.
9 At the time, article 38, para. 1 which read as follows:
When a question is governed by the single-discussion procedure the International Labour Office shall communicate to
the governments, so as to reach them not less than 12 months before the opening of the session of the Conference at
which the question is to be discussed, a summary report upon the question containing a statement of the law and practice
in the different countries and accompanied by a questionnaire drawn up with a view to the preparation of Conventions
or Recommendations. This questionnaire shall request governments to give reasons for their replies. Such replies should
reach the Office as soon as possible and not less than eight months before the opening of the session of the Conference
at which the question is to be discussed.
Article 38, para. 3 read as follows:
These arrangements shall apply only in cases in which the question has been included in the agenda of the Conference
not less than 18 months before the opening of the session of the Conference at which it is to be discussed.
10 ILO, Night Work for Women in Industry, Report III (Part 1B), International Labour Conference, 89th Session, 2001, para. 24.
11 ILO, Meeting of Experts on Special Protective Measures for Women and Equality of Opportunity and Treatment, MEPMW/1989/7,
1989, 1.
 GB.349ter/INS/1 14
28. Ratification: The Protocol has been ratified by 3 of the 44 Member States that are still bound
by Convention No. 89.
Protocol of 1995 to the Labour Inspection Convention, 1947 (P81)
29. Purpose and content: The Protocol brings within the scope of the Labour Inspection
Convention, 1947 (No. 81), all categories of workplaces that are not considered as industrial or
commercial. The need was felt to subject the non-commercial services sector to an “equally
effective and impartial system of labour inspection”, and to harmonize the scope of Convention
No. 81 with that of the Occupational Safety and Health Convention, 1981 (No. 155), and the
Occupational Health Services Convention, 1985 (No. 161), which cover all branches of economic
activity. The experience following the Convention’s adoption had demonstrated that many of
the concerns expressed originally about the cost and difficulty of inspection in the noncommercial
services sector had proved to be not insuperable or even unfounded. 12
30. Adoption process: At its 258th Session (November 1993) the Governing Body decided to place
on the agenda of the 82nd Session (1995) of the Conference the question of extension of
Convention No. 81 to activities in the non-commercial services sector under the singlediscussion
procedure. A law and practice report accompanied by a questionnaire were
prepared so as to reach governments not less than 12 months before the opening of the
82nd Session. Replies were to be sent not later than 30 September 1994. No programme of
reduced intervals was adopted as the item was placed on the agenda in accordance with the
time limits set forth in the Conference Standing Orders.
31. Ratification: To date, the Protocol has been ratified by 12 of the 148 Member States that are
bound by Convention No. 81.
Protocol of 1996 to the Merchant Shipping (Minimum Standards) Convention, 1976 (P147)
32. Purpose and content: The Protocol aimed at updating the Convention through a partial
revision of its Appendix drawing on the conclusions of a Tripartite Meeting on Maritime Labour
Standards which had taken place two years earlier, in 1994. The Merchant Shipping (Minimum
Standards) Convention, 1976 (No. 147), listed in an Appendix the standards that ratifying States
had to apply in the maritime context. It required “substantial equivalence” in applying the listed
standards, insofar as Member States were not otherwise bound by their provisions, notably by
having ratified these instruments. The Protocol replaced the list of Conventions in the
Appendix with up-to-date Conventions concerning seafarers’ social security, identity
documents, repatriation and so on. The revision drew, among other things, on lessons learned
from the regular supervision of implementation of the Convention by the Committee of Experts
on the Application of Conventions and Recommendations in examining both article 22 reports
and the article 19 reports submitted for the 1990 General Survey. 13
33. Adoption process: At its 262nd Session (March–April 1995) the Governing Body examined the
Report of the Tripartite Meeting on Maritime Labour Standards (November–December 1994)
and decided to include on the agenda of the 84th (Maritime) Session of the Conference to be
held in January 1996 an item on the partial revision of Convention No. 147. At the time, it was
considered that the proposed agenda item had been the subject of a preparatory technical
12 ILO, Extension of the Labour Inspection Convention, 1947 (No. 81), to Activities in the Non-commercial Services sector, Report
VI(1), International Labour Conference, 82nd Session, 1995, 33.
13 ILO, Partial Revision of the Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147), Report IV, International Labour
Conference, 84th (Maritime) Session, 1996, 5–6.
 GB.349ter/INS/1 15
Conference within the meaning of the applicable Conference Standing Orders provision. 14 As
a result, rather than communicating a report and questionnaire to the governments, the Office
was requested to draw up a final report on the basis of the work of the Tripartite Meeting. The
84th (Maritime) Session of the Conference took place in October 1996.
34. Ratification: Until the adoption of the Maritime Labour Convention, 2006 (MLC, 2006), that
revised Convention No. 147 and its Protocol, the Protocol had received 24 ratifications among
the 56 States parties to Convention No. 147. At its 111th Session (June 2023), the Conference
decided to withdraw the Protocol which was no longer in force as it had in the meantime been
denounced by all ratifying Member States following ratification of the MLC, 2006. 15
Protocol of 2002 to the Occupational Safety and Health Convention, 1981 (P155)
35. Purpose and content: The Protocol addressed an implementation gap in Convention No. 155,
that is the “absence of reliable information about the incidence of occupational accidents and
disease … a major obstacle to curbing the appalling toll of work-related deaths and injuries
that continues to plague humankind”. 16 Concretely, the Protocol complemented Article 11
which gives effect to Article 4 of Convention No. 155 by providing that each ratifying State must,
in consultation with the most representative organizations of employers and workers,
establish and periodically review requirements and procedures for the recording and
notification of occupational accidents, occupational diseases; and as appropriate, dangerous
occurrences, commuting accidents and suspected cases of occupational diseases and must
also publish compiled statistics on an annual basis. The relevance and importance of the
questions addressed in the Protocol is illustrated by the fact that occupational injury rates
currently serve as a target, monitoring progress made towards protecting labour rights and
promoting safe and secure working environments in the context of the 2030 Agenda for
Sustainable Development (target 8.8. and indicator 8.8.1 of the Sustainable Development Goals
(SDGs)). When the Conference designated Conventions Nos 155 and 187 as fundamental
instruments in 2022, it did not do the same for the Protocol to Convention No. 155, nor was
the prospect of doing so considered at length in the discussions at the Conference.
36. Adoption process: At its 279th Session (November 2000) the Governing Body decided to place
on the agenda of the 90th Session (2002) of the Conference an item on the recording and
notification of occupational accidents and diseases under the single-discussion procedure. A
law and practice report accompanied by a questionnaire were communicated to governments
in February 2001 and replies were to be received by 30 September 2001. A programme of
reduced intervals was endorsed by the Governing Body, as provided for in the Conference
Standing Orders. 17
14 Article 38, para. 4, read as follows:
If a question on the agenda has been considered at a preparatory technical conference the Office, according to the
decision taken by the Governing Body in this connection, may either (a) communicate to the governments a summary
report and a questionnaire as provided for in paragraph 1 above; or (b) itself draw up on the basis of the work of the
preparatory technical conference the final report provided for in paragraph 2 above.
15 ILO, Abrogation of One International Labour Convention and Withdrawal of Four Conventions, One Protocol and 18
Recommendations, ILC.111/VII/1, 2023.
16 ILO, Recording and Notification of Occupational Accidents and Diseases and ILO list of Occupational Diseases, Report V(1),
International Labour Conference, 90th Session, 2002, 3.
17 Following amendments to the Standing Orders adopted in 1994, article 38, para. 3 read as follows:
These arrangements shall apply only in cases in which the question has been included in the agenda of the Conference
not less than 26 months before the opening of the session to the Conference at which it is to be discussed. If the question
has been included in the agenda less than 26 months before the opening of the session of the Conference at which it is
 GB.349ter/INS/1 16
37. Ratification: To date, the Protocol has been ratified by 17 of the 75 Member States that are
bound by Convention No. 155.
Protocol of 2014 to the Forced Labour Convention, 1930 (P29)
38. Purpose and content: The Protocol aims at reinforcing efforts to realize the elimination of
forced labour by setting standards for prevention, protection and compensation measures,
thereby closing implementation gaps identified. The Protocol drew on lessons learned from
the supervision of the Convention’s implementation by the Committee of Experts both through
article 22 reports and article 19 reports submitted for the 2012 General Survey. 18 The
conference discussion of the Protocol was preceded by a Tripartite Meeting of Experts on
Forced Labour and Trafficking for Labour Exploitation held in Geneva on 11–15 February 2013,
which itself resulted from a recurrent discussion on fundamental principles and rights at work
at the 101st Session of the Conference. 19 A central objective of the Protocol has been to
address contemporary forms of slavery and human trafficking which are the subject of
widespread international concern despite near universal ratification of Convention No. 29. As
indicated in the relevant Conference report, while forced labour imposed by state authorities
continued to be a concern in certain countries, its scale had become dwarfed by the use of
forced labour at the hands of private individuals and enterprises operating outside the rule of
law. 20 The Protocol therefore provides that the definition of forced or compulsory labour
includes trafficking and that “the measures referred to in this Protocol shall include specific
action against trafficking in persons for the purposes of forced or compulsory labour”. It also
complements Convention No. 29 by adding provisions on the prevention of forced or
compulsory labour, and the protection, rehabilitation, remediation and compensation of
victims. The Protocol has been designated a fundamental instrument. It serves as a basis for a
global alliance to eradicate forced labour, modern slavery, human trafficking and child labour
under SDG target 8.7.
39. Adoption process: At its 317th Session (March 2013), the Governing Body decided to place on
the agenda of the 103rd Session (2014) of the Conference an item on forced labour under the
single-discussion procedure. A programme of reduced intervals was approved by the
Governing Body as provided for in the Conference Standing Orders. A law and practice report
accompanied by a questionnaire had to be sent by 15 July 2013; the replies to the questionnaire
had to be received by 31 December 2013 and the final report had to be communicated by
March 2014.
40. Ratification: To date, the Protocol has been ratified by 60 of the 181 countries that are bound
by Convention No. 29.
to be discussed, a programme of reduced intervals shall be approved by the Governing Body; if the Officers of the
Governing Body do not consider it practicable for the Governing Body to approve a detailed programme, it shall be in
their discretion to agree on a programme of reduced intervals with the Director-General.
18 ILO, Giving Globalization a Human Face: General Survey on the Fundamental Conventions concerning Rights at Work in light of
the ILO Declaration on Social Justice for a Fair Globalization, 2008, ILC.101/III/1B, 2012. The 2014 law and practice report
indicates that “The Committee of Experts has examined trafficking and forced labour of children under Convention No. 182
since that instrument entered into force in 2000. Since 2001, it has systematically examined the issue of trafficking in its
comments under Convention No. 29 and has requested information on the measures taken by governments to prevent,
suppress and punish trafficking in persons.” ILO, Strengthening Action to End Forced Labour, ILC.103/IV/1, 2014, para. 37. See
also, paras 57, 86, 126, 168 and 189 among numerous references.
19 TMELE/2013/6.
20 ILO, Strengthening Action to End Forced Labour, ILC.103/IV/1, 2014, para. 3.
 GB.349ter/INS/1 17
41. In summary, Protocols have so far been adopted for different purposes, namely:
(a) introducing flexibility and potentially reducing the scope of the Convention with a view to
facilitating ratification (Protocol to Convention No. 110);
(b) expanding the scope and coverage of the Convention (Protocol to Convention No. 81);
(c) allowing for a widening of exemptions to facilitate a transition towards standards that
reflect changing circumstances in the world of work (Protocol to Convention No. 89);
(d) updating certain regulatory aspects in the Convention they partially revise (Protocol to
Convention No. 147);
(e) adding regulatory content to the standards in the Convention they partially revise with a
view to closing implementation gaps (Protocols to Conventions Nos 29 and 155).
42. This points to the importance of determining the purpose of a Protocol to Convention No. 87
on the basis of any of the options mentioned above or any other purpose to be decided upon.
III. Proposed standard-setting on the right to strike: Origins of the proposal
43. With respect to the right to strike, the background report, prepared to discuss the request of
the Workers’ group and of 36 governments to urgently refer the matter to the ICJ for decision,
provides a comprehensive account of the controversy which emerged as from 1989 around
the view adopted by the Committee of Experts that the right to strike is an intrinsic corollary
of the rights to organize protected by Convention No. 87. 21
44. In relation to the request of the Employers’ group to include a standard-setting item on the
right to strike in the agenda of the next session of the Conference, this section of the document
provides an account of previous Governing Body discussions on the right to strike during which
the possibility of the inclusion of such a standard-setting item was raised.
45. A standard-setting item on the right to strike was proposed for the first time for inclusion in
the agenda of the International Labour Conference at the Governing Body’s 253rd Session, in
May–June 1992. 22 The proposal originated in a letter from the Minister of Labour and Social
Security of Colombia to the ILO Director-General requesting, on the basis of article 10,
paragraph 1 and article 14, paragraph 1 of the Constitution, that the item be brought to the
Governing Body’s attention for its consideration. At the time, several governments and the
Workers’ group were categorically against the proposal while the Employers’ group, who had
initiated a parallel proposal for a general discussion on the resolution of industrial disputes,
“thought that it was more appropriate to discuss this question in the wider framework of
labour disputes. Neither strikes nor lockouts were desirable methods of solving labour
disputes. It was preferable to explore all means that could lead to avoiding a strike, which
inevitably had negative consequences. The Employers’ group would like to focus on the
exchange of experiences with a view to finding mechanisms which would resolve disputes
without recourse to strike action, the legitimacy of which was not contested. They suggested
that prior to proceeding to the adoption of an instrument, the Conference should have the
opportunity to debate the matter in a general discussion. That might help to avoid the
formalisation of the opposing views of the various parties.” 23
21 GB.349bis/INS/1.
22 GB.253/2/3(Rev.), paras 35–38 and Appendix I.
23 GB.253/PV(Rev.), I/11.
 GB.349ter/INS/1 18
46. Discussions on a possible general discussion or standard-setting item regarding the
settlement of industrial disputes continued over the years including, from 1999, for a general
discussion under the heading “New trends in the prevention and resolution of labour
disputes”. 24 The proposal was discussed for the last time by the Governing Body at its
303rd Session (November 2008) 25 and given the lack of interest, it was eventually taken off the
list of potential items for a general discussion. 26
47. The controversy over the right to strike intensified in 2012 when the Conference Committee
on the Application of Standards was prevented for the first time from exercising its supervisory
functions. This was followed by several informal tripartite consultations in 2013 and 2014
paving the way for the Governing Body discussion in November 2014 on “the standards
initiative”. 27
48. Further to the wide-ranging discussion held under the fifth item on the agenda of the
Institutional Section entitled The standards initiative: Follow-up to the 2012 ILC Committee on the
Application of Standards, the Governing Body 28 decided in November 2014 to:
(1) convene a three-day tripartite meeting in February 2015, open to observers with speaking
rights through their group, to be chaired by the Chairperson of the Governing Body and
composed of 32 Governments, 16 Employers and 16 Workers with a view to reporting to
the 323rd Session (March 2015) of the Governing Body on:
• the question of the Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87), in relation to the right to strike; and
• the modalities and practices of strike action at national level;
(2) place on the agenda of its 323rd Session, the outcome and report from this meeting on
the basis of which the Governing Body will take a decision on the necessity or not for a
request to the International Court of Justice to render an urgent advisory opinion
concerning the interpretation of the Freedom of Association and Protection of the Right
to Organise Convention, 1948 (No. 87), in relation to the right to strike;
(3) take the necessary steps to ensure the effective functioning of the Committee on the
Application of Standards at the 104th Session of the International Labour Conference, and
to this end reconvene the Working Group on the Working Methods of the Conference
Committee on the Application of Standards to prepare recommendations to the
323rd Session of the Governing Body in March 2015, in particular with regard to the
establishment of the list of cases and the adoption of conclusions;
(4) defer at this stage further consideration of the possible establishment of a tribunal in
accordance with article 37(2) of the Constitution;
24 see for instance, GB.276/PV and GB.303/3/2, 22.
25 GB.303/PV. On that occasion, the Governments of Canada, China, Cuba, India, Mexico, the Russian Federation and Thailand
expressed support for an item on new trends in the prevention and resolution of industrial disputes while neither the
Employer nor the Worker groups referred to it.
26 The more recent proposal for a general discussion on “access to labour justice: prevention and resolution of labour
disputes” focuses on the functioning of the institutions responsible for the prevention and resolution of labour disputes,
notably labour justice, and does not pertain to the right to strike.
27 The standards initiative: Follow-up to the 2012 ILC Committee on the Application of Standards: GB.322/INS/5,
GB.322/INS/5(Add.), GB.322/INS/5(Add.1), GB.322/INS/5(Add.2), GB.322/INS/5(Add.3) and GB.322/PV.
28 GB.322/INS/5(Add.2), para. 1, as amended according to the discussion.
 GB.349ter/INS/1 19
(5) as part of this package, refer to the 323rd Session of the Governing Body the following:
(a) the launch of the Standards Review Mechanism (SRM), and to this effect establish a
tripartite working party composed of 16 Governments, eight Employers and eight
Workers to make proposals to the 323rd Session of the Governing Body in March
2015 on the modalities, scope and timetable of the implementation of the SRM;
(b) a request to the Chairperson of the Committee of Experts on the Application of
Conventions and Recommendations (CEACR), Judge Abdul Koroma (Sierra Leone),
and the Chairperson of the Committee on Freedom of Association (CFA),
Professor Paul van der Heijden (Netherlands), to jointly prepare a report on the
interrelationship, functioning and possible improvement of the various supervisory
procedures related to articles 22, 23, 24 and 26 of the ILO Constitution and the
complaints mechanism on freedom of association.
49. The Tripartite Meeting on the Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No.87), in relation to the right to strike and the modalities and practices of
strike action at national level, took place from 23 to 25 February 2015. Part I of the background
document prepared by the Office for that meeting provided factual background on the
adoption and supervision of the application of Convention No. 87 in relation to the right to
strike and the relevant rules of international law on treaty interpretation. Part II provided a
broad overview of modalities concerning strike action at the national level in both law and
practice. 29
50. As reported to the Governing Body in March 2015, the Tripartite Meeting was conducted in a
constructive atmosphere. 30 The Workers’ and Employers’ groups presented a joint statement
concerning a package of measures to find a possible way out of the existing deadlock in the
supervisory system. 31 In their statement, the Workers and Employers recognize the mandate
of the Committee of Experts as defined in its report of 2015 (paragraph 29) according to which
”[I]ts opinions and recommendations are non-binding, being intended to guide the actions of
national authorities. They derive their persuasive value from the legitimacy and rationality of
the Committee’s work based on its impartiality, experience and expertise”. They do not include
any specific follow-up on the question of Convention No. 87 and the right to strike. The
Government group expressed its common position on the right to strike in relation to freedom
of association 32 and also delivered a second statement in response to the social partners’ joint
statement. 33
51. Noting the outcome and report of the Tripartite Meeting, the Governing Body decided not to
pursue for the time being any action in accordance with article 37 of the Constitution to
address the interpretation question concerning Convention No. 87 in relation to the right to
strike. It further adopted the Standards Initiative which aimed at strengthening the supervisory
system, including through legal certainty and at maintaining a clear, robust and up-to-date
body of international labour standards through the Standards Review Mechanism.
52. In the framework of the implementation of the Standards Initiative, the Employers’ and
Workers’ groups, while reaffirming their joint statement of 23 February 2015, observed in
29 GB.323/INS/5/Appendix III.
30 GB.323/INS/5/Appendix.I.
31 See Annex I, GB.323/INS/5/Appendix.I.
32 See Annex II, GB.323/INS/5/Appendix.I.
33 See Annex III, GB.323/INS/5/Appendix.I.
 GB.349ter/INS/1 20
March 2017 that “divergent views and disputes about the interpretation of Conventions
continue to be a reality” and recognized that to advance legal certainty there could be value in
a tripartite exchange of views on the elements and conditions necessary for the operation of
an independent body under article 37(2) of the ILO Constitution. 34
53. The Governing Body provided further preliminary guidance on the issue of legal certainty in
November 2017 and March 2018. Some Government members underlined the need to pursue
measures to enhance legal certainty based on article 37(2), while other Government members
preferred to continue “exploring avenues for consensus-based interpretation of Conventions”.
The Worker and Employer members supported a proposal to have informal consultations on
this first. 35
54. In November 2018, the Governing Body decided to request the Office to provide concrete
proposals to prepare the discussion on consideration of further steps to ensure legal certainty
– including, but not limited to, organizing a tripartite exchange of views on article 37(2). In
March 2019, the Governing Body decided to hold informal consultations in January 2020 and,
to facilitate that tripartite exchange of views, requested the Office to prepare “a paper on the
elements and conditions for the operation of an independent body under article 37(2) and of
any other consensus-based options”. 36
55. On that occasion, in March 2019, the Employers’ group made a statement supporting the
proposal to hold informal tripartite consultations on the issue of legal certainty “… in a
comprehensive manner, considering all options and not limiting the discussion to article 37(2)”.
For the Employers, “the Office document and the related consultations should focus on
consensus-based options. The Office should explore approaches to address possible
disagreements regarding the interpretation of Conventions before they developed into major
controversies. The ILO constituents had the primary responsibility for the functioning of the
standards supervisory system. Related decisions should not be easily outsourced to a new
body, as would be the case if the chosen option were article 37(2). Nevertheless, the Employers
were keen to engage in discussions regarding all possible options”. 37 For their part, with
regard to the parameters of a possible tripartite exchange of views on legal certainty, the
Workers maintained that the Office document should focus on the necessary elements for the
operation of an independent body under article 37(2), rather than on other possible solutions.
It was necessary to fully explore options under articles 37(1) and (2) before considering other
suggestions. 38 Some Government members considered that it was appropriate to explore
consensus-based options. 39
56. The Governing Body discussion on proposals on further steps to ensure legal certainty
resumed in March 2022 informed by a paper on the elements and conditions for the operation
of an independent body under article 37(2) and of any other consensus-based options, as well
as the article 37(1) procedure. 40 Paragraphs 60 to 65 of the document GB.344/INS/5 addressed
the role of tripartite consensus-based modalities as a modality to either: (i) attempt reconciling
34 GB.335/INS/5, para. 47 and GB.329/PV, Appendix II, Joint Position of the Workers’ and Employers’ groups on the ILO
Supervisory Mechanism, 194.
35 GB.335/INS/5, para. 48.
36 GB.335/INS/5, paras 48 and 84(g).
37 GB.335/PV, para. 243.
38 GB.335/PV, para. 241.
39 GB.335/PV, paras 244, 247 and 248.
40 GB.344/INS/5.
 GB.349ter/INS/1 21
diverging views through tripartite discussion prior to referral of the matter for interpretation
to the ICJ or an internal tribunal; or (ii) to follow-up on the advisory opinion of the ICJ or the
award of an internal tribunal. It also clarified that if legal certainty in matters of interpretation
is understood as the ability to obtain final pronouncements on the scope and meaning of
conventional provisions, the only two mechanisms that can offer such certainty are explicitly
set out in article 37. A consensus-based modality involving standard-setting cannot and does
not generate the legal certainty provided by article 37 of the ILO Constitution as the consensusbased
outcome of a Convention or Protocol would be binding only for those Member States
which have eventually ratified these. Legal uncertainty would therefore continue to prevail in
respect of Member States having ratified the Convention subject to a legal dispute for as long
as they are not in a position to ratify the newly adopted Convention or Protocol. 41
57. The Employers’ group expressed views on these possible options and included a reference to
normative action: “The Employers’ group would have liked to have seen the option of tripartite
consensus-based modalities addressed in greater depth … . They should be the first option to
resolve diverging views on interpretation and would maintain the competence of the tripartite
constituents to determine the content of international labour standards. The purpose of a
consensus-based option would not be to find a legally binding solution based on legal process,
but a solution based on the authority arising from the support of a majority of the tripartite
constituents. A dispute over a particular interpretation of an ILO Convention could be placed
on the agenda of the International Labour Conference, which could decide to discuss the
matter in a committee which would make a recommendation on the interpretation or on
further action to address the issue. Another possibility would be to organize a process whereby
constituents would be requested to provide their views in writing on a contentious
interpretation, which would indicate the level of acceptance of the interpretation and help
settle the dispute. The Committee of Experts should then take into account the outcomes of
those processes in its future comments on Convention No. 87. If such options did not lead to
a settlement, a final possibility could be to consider the initiation of a standard-setting process
which could establish a Protocol to the respective Convention setting out the interpretation
considered to be the appropriate one, which would have to receive a two-thirds majority of the
International Labour Conference. Such a Protocol would become binding only for those
countries that ratified it”. 42
58. For their part, the Workers were categorically opposed to the suggestion that the ILO could
adopt a new standard to address an interpretation dispute as, in their view, the same
disagreement on interpretation would persist in the development of the new standard, thus
preventing consensus. 43 As for the Governments, some emphasized the need to take
measures to strengthen legal certainty based on article 37, while others reiterated their
conviction that social dialogue could pave the way to consensus, recalling that responsibility
for adopting and monitoring the application of standards lay primarily with the tripartite
constituents. 44
59. In March 2023, the Employers’ group stressed once again that the core issue underlying
discussions was the interpretation by the Committee of Experts of the right to strike in the
context of Convention No. 87 and that it was necessary for the Office to provide the groups
41 GB.344/INS/5, para. 65.
42 GB.344/PV, para. 142.
43 GB.344/PV, para. 148.
44 GB.344/PV, paras 150 et seq.
 GB.349ter/INS/1 22
with all possible means to resolve interpretation issues internally, such as a tripartite technical
meeting or a dedicated discussion at the International Labour Conference: “… [t]he Employers’
objective was to ensure that the Committee of Experts did not create new obligations beyond
those intended by the tripartite constituents at the Conference. The Committee of Experts
should refer difficult questions or gaps in a Convention to the constituents for them to resolve;
its failure to do so in the case of the right to strike had led to the current dispute”. 45 In their
proposed amendments the Employers’ group referred to “further proposals to ensure legal
certainty and strengthen the supervisory system, including by placing an item for discussion
on the agenda of the International Labour Conference”. 46 The Workers’ group reiterated that
legal certainty could only be achieved through referral to the International Court of Justice and
that the ILO should make good use of the conflict resolution mechanism laid down in its
Constitution. They recalled that the situation had lasted too long and that the lack of consensus
meant that an authoritative solution had now to be found. 47 Similar views were expressed by
a number of Government representatives. 48
IV. Final considerations
60. As indicated in the introduction, the purpose of the present report is to recap the background
against which the request of the Employers’ group to urgently include a standard-setting item
on the right to strike in the form of a Protocol on the agenda of the Conference in June 2024
as well as to set out the various aspect of the request with a view to assisting constituents in
making an informed decision thereon. In the light of the preceding analysis, a few final
considerations may guide the discussion of the Governing Body.
Purpose and aim of an ILO Protocol on the right to strike
61. The purpose and aim of the proposed Protocol to Convention No. 87, as proposed by the
Employer’s group, would be to authoritatively determine the scope and limits of the right to
strike in the context of Convention No. 87, thereby setting out the interpretation considered to
be the appropriate one.
62. The review of the six Protocols adopted by the Organization to date points out that none of the
Protocols adopted so far by the Conference aimed at settling a dispute with respect to the
interpretation of provisions of the related Convention. 49
63. As noted above, ILO Protocols need to be ratified by those Member States already bound by
the Convention to which they are attached to have a binding effect. Consequently, Members
States which do not ratify the Protocol remain bound by the Convention concerned in its
original form and the Protocol does not affect the obligations arising from the ratification of
45 GB.347/PV(Rev.), paras 229–230.
46 GB.347/PV(Rev.), para. 235.
47 GB.347/PV(Rev.), paras 278. See also GB.349bis/INS/1, Appendix, background report, para.8.
48 GB.347/PV(Rev.), paras 247 et seq., and GB.349bis/INS/1, Appendix, background report, footnote 15.
49 A possibility exists under general international law for parties to a treaty to adopt a Protocol of Signature as an instrument
subsidiary to the treaty in order to address ancillary matters including the interpretation of particular clauses of the treaty.
However, such Protocol is usually adopted at the same time as the treaty and ratification of the latter will ipso facto involve
ratification of the Protocol. This naturally serves to ensure the treaty’s coherent application among the parties: United Nations
Treaty Collection (UNTC).
 GB.349ter/INS/1 23
the Convention. Legal uncertainty would therefore persist in respect of those Member States
that would decide not to ratify the newly adopted Protocol. 50
64. This also raises the question of the extent to which consideration is given to the comments
made by the Committee of Experts since the beginning of its examination of the application of
Convention No. 87 by ILO Member States in relation to the right to strike. 51
A synergetic relationship between the Committee of Experts’ independent supervisory
functions and the standard-setting function of the Conference
65. It appears from the review of the six existing Protocols that at least two Protocols – those linked
to Conventions Nos 29 and 147 – explicitly drew on the Committee of Experts comments and
general surveys, to update and add regulatory content to the provisions of the Conventions
concerned.
66. The proposed purpose and aim of a Protocol on the right to strike or on industrial action may
suggest that the Committee of Experts comments and the five general surveys on Convention
No. 87 which reviewed the application by ILO Member States in relation to the right to strike
would not inform the standard-setting discussion. In this respect, it is to be recalled that the
Committee of Experts’ comments by and large draw upon the conclusions of the Committee
on Freedom of Association adopted through tripartite consensus, thereby ensuring coherence
and consistency across supervisory bodies.
67. Another aspect to be considered is the incidence a Protocol on the right to strike or on
industrial action would have on the review by the Committee of Experts and other supervisory
bodies of the application of Convention No. 87 by those Member States that would eventually
decide not to become parties to the said Protocol.
68. While the Committee of Experts would have to take fully into account the provisions of the
Protocol vis-à-vis the Member States that have ratified it, it will have to decide, as an
independent body, how to proceed vis-à-vis Member States which have not ratified the
Protocol and are bound only by the Convention.
69. By way of example, reference may be made to the adoption of the 2014 Protocol to Convention
No. 29 and its incidence on the supervision of the application of this Convention. The adoption
of this Protocol in 2014 led to a differentiation by the Committee of Experts between Members
that have ratified the Protocol and those that have not. Prior to the adoption of the 2014
Protocol, the Committee of Experts would systematically raise questions related to trafficking,
prevention and compensation/remediation of victims in its comments under Convention
No. 29, based on the acknowledgment in the travaux préparatoires of the Convention that these
aspects are an integral part of the obligations entrenched in the Convention. By consolidating
this interpretation, the Protocol of 2014 enabled the Committee of Experts to pursue a detailed
examination of these questions in Member States bound by the Protocol while addressing
comments of a more general nature vis-à-vis Member States bound only by the Convention.
50 GB.344/INS/5, para. 65.
51 With regard to the source of data and materials serving as background for the revision, an additional question is whether
this would include the work of ILO supervisory bodies other than the Committee of Experts. These supervisory bodies include
the Conference Committee on the Application of Standards, the Committee on Freedom of Association, the Fact-Finding and
Conciliation Commissions on Freedom of Association, the ad hoc tripartite committees established for the examination of
representations under article 24 of the ILO Constitution and Commissions of Inquiry established to examine complaints
under article 26 of the ILO Constitution. These sources contain valuable guidance based on findings and recommendations
including on the right to strike provided over several decades.
 GB.349ter/INS/1 24
70. In one case, the Conference explicitly addressed a question related to the purpose of a
Convention and effectively influenced the way in which the Committee of Experts exercised its
supervision, by adopting a resolution, namely, the 2006 resolution concerning asbestos, at its
95th Session (2006). The Asbestos Convention, 1986 (No. 162), prioritizes prevention and
control in the use of asbestos (Article 3) and does not require the outright ban of all types of
asbestos. 52 At the same time, the Occupational Cancer Convention, 1974 (No. 139), requires
Member States to periodically determine the carcinogenic substances and agents to which
occupational exposure shall be prohibited (Article 1). Noting that all forms of asbestos,
including chrysotile, are classified as human carcinogens by the International Agency for
Research on Cancer (IARC), and expressing its concern that workers continue to face serious
risks from asbestos exposure, the Conference underlined, among other things, that the ILO
Convention concerning Safety in the Use of Asbestos, No. 162, should not be used to provide
a justification for, or endorsement of, the continued use of asbestos.
71. Following up on the resolution adopted by the Conference, the Governing Body instructed the
Office to continue encouraging Member States to ratify and give effect to Conventions Nos 162
and 139 and the Committee of Experts took the guidance contained in the resolution fully into
account in exercising its supervisory function over the application of Convention No. 162. 53
Adoption process and timeframe
72. As per the statutory timeline provided for in articles 45 and 46 of the Standing Orders of the
Conference, all existing Protocols were placed on the agenda of the Conference between
15 and 19 months before the opening of the session at which they would be discussed, except
for the Protocol to Convention No. 147 which had been prepared in the context of an earlier
technical meeting. A programme of reduced intervals was adopted for the preparation of the
two most recent Protocols to Conventions Nos 155 and 29 in line with article 38, paragraph 3
(now article 45, paragraph 4) of the Standing Orders of the Conference. The question of the
feasibility of the current proposal for a discussion at the 112th Session of the Conference, that
is in less than seven months from the date of the special meeting, must be debated in the light
of those factual parameters.
73. In addition, it is to be noted that of the six Protocols adopted by the Conference, four have
been preceded by technical or tripartite meetings of experts. This preparatory work, consisting
in in-depth technical analyses and tripartite debates, has been demonstrated to be essential in
developing sound and well-informed standards for the purpose of the protection of workers
and taking into account the needs of sustainable enterprises.
V. Concluding observations
74. In considering the request of the Employers’ group, constituents may wish to pay particular
attention to:
(a) the advantages and disadvantages of a legislative process that may result in a negotiated
instrument open to voluntary ratification;
52 Art. 10 provides that Member States shall provide for total or partial prohibition in the use of asbestos where necessary to
protect the health of workers and technically practicable and Art. 11 prohibits crocidolite.
53 See for example, CEACR, Convention No. 162: Plurinational State of Bolivia, Observation, 2021; Montenegro, Direct Request,
2019; Portugal, Observation, 2017; and Brazil, Observation, 2015.
 GB.349ter/INS/1 25
(b) the aim and purpose of the proposed Protocol on the right to strike or on industrial action
vis-à-vis Convention No. 87. Questions that would have to be addressed include, for
example: the exact provision or provisions of Convention No. 87 that the prospective
Protocol would revise; the level of detail of the provisions to be inserted in the Protocol;
the scope of the revision; the content of the regulatory provisions; the source of data and
information for the revision, etc.;
(c) the extent to which consideration is given to the comments made by the Committee of
Experts and other supervisory bodies in their examination of the application of
Convention No. 87 by ILO Member States in relation to the right to strike;
(d) the incidence of a Protocol on the right to strike or on industrial action on the examination
by the Committee of Experts and other supervisory bodies of the application of
Convention No. 87 by Member States not bound by the said Protocol;
(e) the statutory timelines for placing a standard-setting item on the Conference agenda and
preparing a draft instrument;
(f) the decisions previously taken by the Governing Body in respect of the agenda of the
International Labour Conference.

Document No. 33
Draft Minutes of the 349th ter (Special) Session of the
Governing Body, November 2023

 GB.349ter/PV/Draft
Governing Body
349th ter (Special) Session, Geneva, 11 November 2023
Warning: this document is a draft and may contain omissions or errors. It is made available solely for the purpose
of verification and correction. Persons referred to in this document are not to be regarded as bound by statements
attributed to them. The ILO declines all responsibility for any errors or omissions which this document may contain,
or for any use which may be made of it by third parties. Governing Body members may send corrections to their
own interventions by 25 January 2024 to [email protected].
Draft minutes of the 349th ter (Special) Session of
the Governing Body of the International Labour
Office
Contents
Page
Institutional Section
1. Action to be taken on the request of the Employers’ group to urgently include a
standard-setting item on the right to strike on the agenda of the
112th Session of the International Labour Conference (GB.349ter/INS/1) ................... 3
Committee of the Whole................................................................................................................ 3
Governing Body .............................................................................................................................. 10
Decision ................................................................................................................................... 20
Closing remarks .............................................................................................................................. 20

 GB.349ter/PV/Draft 3
 Institutional Section
1. Action to be taken on the request of the Employers’ group to urgently
include a standard-setting item on the right to strike on the agenda of
the 112th Session of the International Labour Conference
(GB.349ter/INS/1)
Committee of the Whole
1. The Chairperson recalled that the 349th ter (Special) Session of the Governing Body had been
convened pursuant to article 7(8) of the Constitution of the International Labour Organization
and paragraph 3.2.2 of the Standing Orders of the Governing Body. At its 349th Session, the
Governing Body had approved the arrangements for the special session. They included a
sitting as a Committee of the Whole, in accordance with article 4.3 of the Standing Orders, to
hold a broad exchange of views with the participation of governments not represented on the
Governing Body, on the understanding that any decisions would be made by the Governing
Body in its ordinary plenary composition after the Committee of the Whole had been
concluded.
2. At its 349th bis (Special) Session, the Governing Body had decided to refer the dispute on the
interpretation of the Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87), in relation to the right to strike to the International Court of Justice
(ICJ) for decision in accordance with article 37(1) of the ILO Constitution. The 349th ter (Special)
Session was dedicated to a discussion of the request made by the Employers’ group to urgently
include an item on the agenda of the International Labour Conference concerning the
adoption of a Protocol to Convention No. 87, with a view to authoritatively determining the
scope and limits of the right to strike or, more broadly, industrial action, in the context of that
Convention. The Office had prepared a document containing information on the ILO statutory
framework for placing a standard-setting item on the Conference agenda, ILO practice
regarding the adoption of Protocols, an account of the origins of the standard-setting proposal
on the right to strike and concluding observations summarizing the possible implications of
the foregoing for the proposed standard-setting item. Member States and national employers’
and workers’ organizations had been invited to submit their comments on the issues raised in
the document, and those comments had been published on the Governing Body’s website. The
Governing Body was invited to provide guidance on action to be taken.
3. The Committee of the Whole had before it two amended versions of the draft decision, which
had been circulated by the Office. The first, which had been proposed by the Employers’ group,
read:
Further to the request of the Employers’ group and of the Republic of Türkiye to urgently
include a standard-setting item on the right to strike on the agenda of the 112th Session of the
International Labour Conference (2024), the Governing Body decided to follow up on the
outcome of the Tripartite Meeting on the Freedom of Association and Protection of the Right
to Organise Convention, 1948 (No. 87), in relation to the right to strike and the modalities and
practices of strike action at national level that took place in 2015; and
 GB.349ter/PV/Draft 4
1) place on the agenda of the 112th, 113th or 114th Session of the Conference (2024, 2025
or 2026) an item for standard setting (Protocol to Convention
No. 87/Recommendation/Convention) on the right strike and/or industrial action;
OR
2) place on the agenda of the 112th, 113th or 114th Session of the Conference (2024, 2025
or 2026) an item for a general discussion on the right to strike and/or industrial action;
OR
3) convene a meeting of experts with the view to discussing the right to strike and/or
industrial action at the earliest opportunity;
OR
4) continue to discuss all possible proposals on further steps to ensure legal certainty at the
350th session of the Governing Body with the view to reaching agreement on the way
forward.
4. The second amended version of the draft decision had been proposed by the Workers’ group
and read:
Further to the request of the Employers’ group and of the Republic of Türkiye to urgently
include a standard-setting item on the right to strike on the agenda of the 112th Session of the
International Labour Conference (2024), the Governing Body decided to that no further action
was needed.
5. The Employer Vice-Chairperson expressed profound disappointment at the outcome of the
349th bis (Special) Session of the Governing Body, which marked the beginning of what would
be an extremely difficult period for the ILO. It was regrettable that, despite the Chairperson’s
assurances that he would strive to achieve consensus, he had been persuaded to force a vote
on the matter under consideration. It was also regrettable that certain governments, while
claiming to be champions of social dialogue, had refused to engage with her group. Some had
even violated their obligations under the Tripartite Consultation (International Labour
Standards) Convention, 1976 (No. 144), by not consulting national employer organizations on
the matter.
6. Most of the governments participating in the Committee of the Whole had been in favour of
resolving the dispute through social dialogue – which was the cornerstone of the ILO – in the
context of the Conference, a state of affairs that had not been reflected in the vote,
undermining the relevance of a large number of Member States that were not Governing Body
members. As a consequence, her group would take further steps to enhance the
democratization and inclusiveness of decision-making processes at the ILO, including by
calling for further discussions on the issue at forthcoming sessions of the Governing Body and
the Conference. A minority of governments should not be allowed to impose their political
agenda on technical matters that had an impact on the rest of the world. Social dialogue had
been seriously damaged and the Organization’s values had been jeopardized, affecting the
credibility and pertinence of many ILO initiatives. Furthermore, the refusal by the Workers’
group to engage fully in tripartite social dialogue, to take action to fill the gap in the normative
framework, and to engage in social dialogue on the right to strike set a worrying precedent for
the work of the Organization.
7. The dispute would not be resolved through the referral of one question to the ICJ. The right to
strike was a multifaceted and complex issue, and the different industrial relations systems and
practices in place among Member States must be taken into account when determining
international rules on the subject. Such rules should be developed by the tripartite constituents
in the framework of the established procedures of the ILO. Therefore, regardless of the
 GB.349ter/PV/Draft 5
advisory opinion to be issued by the ICJ, there would still be a need for standard-setting if the
right to strike was to be regulated at the international level.
8. Her group remained of the view that standard-setting by the Conference was the most
appropriate and logical way to definitively end the dispute. The tripartite constituents, as well
as the ILO’s supervisory bodies, had acknowledged that there was currently no ILO instrument
expressly providing for the right to strike. The only way to address the regulatory gap was
through regulatory means. Furthermore, standard-setting was a well-established procedure
for creating authoritative rules on important topics in the world of work. It had been the first
step towards addressing a dispute concerning the interpretation of the Night Work (Women)
Convention, 1919 (No. 4), for example. The matter had been referred to the predecessor of the
ICJ only after efforts had been made to resolve it by placing a standard-setting item on the
subject on the agenda of the Conference. The Conference could authoritatively provide legal
certainty on a particular issue, which a non-binding advisory decision of the ICJ could not. Only
the standard-setting route would ensure that all ILO constituents would be able to actively
engage in the process, that any solution would be based on consensus or a majority vote of all
ILO constituents, and that any outcome would be universally relevant and accepted.
Conversely, an advisory opinion of the ICJ would not stop her group and many governments
from disagreeing with the excessive interpretations and opinions on the right to strike issued
by the Committee of Experts on the Application of Conventions and Recommendations.
9. To resolve the dispute, the Employers’ group was proposing the development of a Protocol to
Convention No. 87. Its intention would not be to amend the Convention, but rather to define
in a separate instrument the scope and limits of the right to strike from a global perspective.
Her group would not be opposed to standard-setting through another type of instrument.
However, on the basis of lessons learned from the development and implementation of the
Protocol of 2014 to the Forced Labour Convention, 1930, a Protocol would be the most
appropriate instrument with which to regulate the right to strike. Following the adoption of
such an instrument, the Committee of Experts would be expected to faithfully comply with the
decision of the Conference and the intentions of its drafters, and would be unable to continue
issuing excessive and inappropriate views on the right to strike with reference to
Convention No. 87.
10. Her group had requested the inclusion of a standard-setting item on the agenda of the
Conference in 2024 to accommodate the urgency of the requests made by the Workers’ group
and a number of governments. There would be no legal obstacles to that measure if the
Governing Body decided to adopt a programme of reduced intervals for the preparatory
process. There was precedent for such a proposal, as one had been made in 1992. Her group
was not opposed to including the item on the agenda of the Conference in 2025 or 2026
instead, if doing so would facilitate preparations. Challenges in respect of including the issue
on the agenda of the Conference in 2024 must not be used as a pretext for discarding that
option altogether.
11. The discussions at the 112th Session (2024) of the Conference would not be easy. Her group
would be more vocal in its disagreement with the Committee of Experts and she anticipated
that a request would be made to hold a special session of the Committee on the Application of
Standards to discuss the matter. The decision taken by the Governing Body at its 349th bis
(Special) Session would also have a negative impact on the recurrent discussion on the
fundamental principles and rights at work and on the work of the Committee on Freedom of
Association.
 GB.349ter/PV/Draft 6
12. While standard-setting was the most appropriate solution to the problem, her group remained
flexible regarding other options – such as holding a general discussion or a tripartite meeting
of experts on the matter – and regarding the outcomes and timing of standard-setting action.
Its proposals were fully aligned with the ILO’s values of tripartism and social dialogue. She
called on all governments to demonstrate their commitment to those values and to give their
views on the options presented in her group’s amended version of the draft decision.
13. The Worker Vice-Chairperson acknowledged that standard-setting was central to the ILO’s
mandate. Faithful to the ILO’s mandate as set out in its Constitution, the Governing Body
contributed to that work by constantly striving to improve standards. However, the proposal
put forward by the Employers’ group – set out in the Employers’ group’s comments on the
Office document – would have the opposite effect, as it would involve adopting a Protocol with
the sole objective of undoing the long-standing authoritative guidance of the ILO supervisory
system regarding Convention No. 87. Moreover, the attempt to limit the interpretative
authority of the Committee of Experts would not work in practice, as the Committee would still
have to review the implementation of the Protocol and determine the legal scope, content and
meaning of its provisions. The proposed Protocol would not therefore provide definitive legal
certainty on the matter, and the discussion on standard-setting required to establish it would
expose the same fundamental and persistent disagreements regarding interpretation.
14. There were no gaps in the protection and regulation of the right to strike at the international
level. However, in order to address the disagreement between the Employers’ group on the
one hand, and the Workers’ group and a large number of governments on the other, a decision
had been taken to request the ICJ to render an advisory opinion on whether the right was
protected under Convention No. 87. In view of the mutually exclusive and opposing positions
on the issue, it would be impossible to advance any initiative of a normative nature without
first having settled the issue through an authoritative and binding decision of the ICJ.
15. Protocols were generally introduced as a flexible way to partially revise certain provisions of
existing Conventions, so in the current case it would be necessary to identify which provisions
of Convention No. 87 required revision or clarification. However, if, as the Employers’ group
claimed, the right to strike was not in any way addressed in Convention No. 87, then it would
neither be logical nor consistent with the ILO’s constitutional theory and practice to link such
a Protocol to that Convention.
16. It was legally and technically impossible to annul the authoritative guidance on
Convention No. 87 provided under the supervisory system and replace it with binding
provisions under the proposed Protocol, which would effectively silence the Committee of
Experts. Moreover, it was deeply concerning that the Employers’ group had expressed
repeated opposition to the comments of the Committee of Experts on the right to strike and
was proposing to reverse them; that would only create further legal uncertainty. It would also
result in a two-tier system: one for countries that had ratified only Convention No. 87, and
another for countries that had ratified both the Convention and its Protocol. The Committee of
Experts would then have to provide guidance on both, which could lead to divergent outcomes.
17. The Workers’ group objected to the argument by the Employers’ group that standard-setting
was the only viable solution to the dispute as that would allow a “a tripartite social
dialogue-based solution” that was “based on consensus or at least a broad majority”. Given the
fundamental disagreement underlying the dispute, it was difficult to see how such a consensus
or broad majority could be achieved. The Employers’ group simply appeared to be attempting
to take away the existing fundamental right and protection currently afforded to workers
under Convention No. 87, forcing the ILO’s constituents to renegotiate that fundamental
 GB.349ter/PV/Draft 7
principle and right at work. That was unacceptable to the Workers’ group and the wider
international trade union movement, and was unlikely to be supported by Governments. The
constitutional objective and mandate of the ILO was to protect the rights of workers;
standard-setting to undo or reverse existing rights ran counter to that objective and mandate.
18. In practical terms, the proposal by the Employers’ group to include a standard-setting item on
the right to strike on the agenda of the 112th Session of the Conference in 2024, just seven
months later, showed little respect for the procedures of the Organization. As explained in the
Appendix to document GB.349ter/INS/1, such a move would be unfeasible, even if a
programme of reduced intervals was approved, especially given the preparatory work required
to ensure the full participation of the tripartite constituents. In making such a proposal, the
Employers’ group also showed scant respect for previous decisions of the Governing Body
regarding the Conference agenda, which had been developed through consensus based on
the recommendations of the Standards Review Mechanism Tripartite Working Group.
19. As well as rejecting the Employers’ group’s standard-setting proposal, her group also objected
to its proposed amendment to the draft decision, which made little sense in the light of the
decision to refer the dispute to the ICJ, and again failed to recognize the normal procedure for
placing items on the Conference agenda. No debate should be held at the Conference until the
ICJ had delivered its opinion on the matter. Convening a meeting of experts would also be
counterproductive at the current stage and would not constitute a sufficiently inclusive
procedure. The final element of the amendment, according to which the Governing Body
would continue to discuss further steps to ensure legal certainty, was simply unnecessary. The
Workers’ group was of the view that the Governing Body should wait for guidance from the ICJ
before taking any further action, and had proposed an amended version of the draft decision
to that effect.
20. Speaking on behalf of the European Union (EU) and its Member States, a Government
representative of Spain said that Montenegro, Iceland and Norway aligned themselves with
his statement. He reiterated the importance of obtaining legal certainty on the question of
whether Convention No. 87 provided for the right to strike, but stressed that standard-setting
– including by introducing a Protocol to the Convention – would not help in that regard. Not
only was the scope and added value of such a Protocol unclear, but it might also further
challenge the authority of the ILO’s supervisory bodies. Moreover, it did not seem possible to
introduce a Protocol on the right to strike to a Convention that was the subject of an ongoing
dispute in relation to that right. Scheduling a new standard-setting item for next year’s session
of the International Labour Conference would also leave insufficient time for the ILO
constituents to prepare. His group did not therefore support the request to include a
standard-setting item on the right to strike on the agenda of the 112th Session of the
Conference.
21. A Government representative of Austria said that the current discussion was no longer
necessary, as no further action should be taken until the advisory opinion from the ICJ had
been received. Her Government did not support the request to hold a standard-setting
discussion on the right to strike.
22. A Government representative of Switzerland said that her Government respected the
request made by the Employers’ group. However, in the light of the decision taken by the
Governing Body at its 349th bis (Special) Session, which her Government respected, it would
refrain from entering into consideration of any potential legal instrument regarding the right
to strike until the ICJ had delivered its advisory opinion, as requested. Her Government
maintained that establishing whether or not Convention No. 87 protected the right to strike
 GB.349ter/PV/Draft 8
would not shed light on the conditions for its exercise. If it was decided that the Convention
protected the right to strike without regulating it, it would then be necessary to ask who
determined how that right could be exercised, namely whether that fell to the tripartite
legislators, the supervisory bodies, the ICJ’s judges or domestic court judges to make a binding
decision on the conditions for the exercise. In conclusion, she recalled the common position
expressed by the Government group in 2015: “[T]he right to strike, albeit part of the
fundamental principles and rights at work of the ILO, is not an absolute right. The scope and
conditions of this right are regulated at the national level.” She also asked the Office what
would happen to current cases concerning the right to strike before the Committee on
Freedom of Association or the Committee of Experts, notably whether they would be
suspended.
23. A Government representative of Türkiye emphasized the importance of safeguarding the
right to strike as an integral element of labour rights and principles and reiterated that, while
the right to strike was fundamental, it did not constitute an absolute right. The scope and
conditions of that right should therefore be regulated at the national level. His Government
maintained that disputes regarding the interpretation of Convention No. 87 should be resolved
through the Organization’s existing mechanisms. That said, while it would have been
preferable to refer the issue to the Conference, it should nevertheless be possible to reach a
positive outcome for all parties on the basis of the Governing Body’s decision to refer the
dispute to the ICJ. A constructive and collaborative approach within the ILO’s tripartite
framework should always be the first resort to find practical solutions and increase
understanding of the diverse perspectives among its constituents.
24. A Government representative of Algeria expressed regret regarding the lack of consensus
on the issue, which had divided the Organization and must be addressed in a constructive and
pragmatic manner in accordance with the ILO’s values, while maintaining the clarity and
coherence of international labour standards. Any standard-setting discussion pertaining to
Convention No. 87 should be carried out through a transparent, balanced and mutually
beneficial process grounded in social dialogue and in accordance with the relevant procedures.
Discussions on the development of a Protocol or similar instrument must ensure that relations
between employers and workers would not be compromised. An in-depth discussion should
be held on the implications of standard-setting actions on the scope of the Convention, which
should provide an avenue for the resolution of the dispute.
25. A Government representative of Colombia said that it would have been preferable for the
discussions held at the 349th bis (Special) Session of the Governing Body to have resulted in
consensus. The right to strike was inextricably linked to the rights to collective bargaining and
freedom of association. His Government was in the process of applying the recommendations
of the Committee of Experts and the Committee on Freedom of Association on the right to
strike in its labour legislation reform process and thus valued the legal certainty that could be
provided by the ILO in that regard. Dialogue should continue to be strengthened as a pillar of
the ILO; however, when consensus was unachievable, the Organization should make use of
the mechanisms available to it. He thanked the Chairperson for his efforts to seek convergence
among constituents, and the Office for enabling the discussion, noting that both had acted in
an impartial manner. He expressed support for the draft decision as amended by the Workers’
group, noting that no further action should be taken until the ICJ had issued an opinion on the
matter.
26. A Government representative of Japan said that, in the light of the decision taken by the
Governing Body at its 349th bis (Special) Session, it would be premature to evaluate the
proposal made by the Employers’ group given the uncertainty regarding the content of a
 GB.349ter/PV/Draft 9
Protocol to Convention No. 87. His Government could therefore not support the draft decision
as amended by the Employers’ group. He suggested subamending the amendment proposed
by the Workers’ group to include “for the moment” at the end, since the Governing Body might
need to consider its options after the ICJ had issued its opinion.
27. Speaking on behalf of the group of Latin American and Caribbean countries (GRULAC), a
Government representative of Mexico thanked the Office, under the leadership of the
Director-General, for its work, which had been conducted with integrity and impartiality. She
also recognized the skill of the Chairperson in guiding the discussions.
28. The Government representative of Mexico, speaking in her national capacity, said that the
right to strike was an inherent part of the exercise of freedom of association. She welcomed
the proposal from the Employers’ group to adopt explicit provisions to regulate the right to
strike on the basis of Convention No. 87. However, before agreeing to such a discussion, the
ILO’s tripartite constituents needed to have the legal certainty that would be provided by the
advisory opinion of the ICJ. The various options contained in the Employers’ group’s proposed
amendment were appreciated, and some of them could be helpful in the future, once the
advisory opinion had been received. Having legal certainty regarding Convention No. 87 would
strengthen the ILO’s bodies, tripartism and social dialogue, and enable them to strengthen the
fundamental rights of workers.
29. A Government representative of the Russian Federation began by thanking the
Chairperson for his leadership in steering the Governing Body through difficult debates. The
right to strike was recognized in the overwhelming majority of, if not all, Member States,
including the Russian Federation. However, legal provisions regulating the right to strike varied
from State to State, which meant that an international instrument would be unlikely to be able
to consolidate all approaches. Therefore, he could not support the proposal to develop an
international instrument, but did not rule out the possibility of working on one in the future.
An item could be put on the agenda of a future session of the Conference, on the
understanding that the discussions would not lead to the development of a legally binding
instrument.
30. A representative of the Director-General (Director, International Labour Standards
Department), responding to a question from the Government representative of Switzerland,
referred back to document GB.347/INS/5, particularly to paragraph 27 in the main body of the
document and paragraph 17 of the procedural framework contained in Appendix I, which said
that “[t]he referral of an interpretation question or dispute to the Court and the ensuing
advisory proceedings may not suspend, or otherwise affect, the supervision of the application
of any Convention(s) which may be the subject of those proceedings.” The supervisory bodies
would of course remain free to decide the course of action they would deem appropriate in
that regard.
31. The Worker Vice-Chairperson said that she was concerned that some of the issues raised by
the Government representative of Switzerland might not have been developed in strong
tripartite consensus, although, unlike the Employers’ group, she did not want to suggest that
any government was violating Convention No. 144. It was important to agree that the
long-running dispute would not disrupt the work of the ILO supervisory bodies any more than
it already had. The prevailing view was that the right to strike was covered by Convention
No. 87, and it was only the Employers’ group that had challenged that, without any broad
support among governments, so the supervisory system should have been able to continue
functioning on that basis. The disruptive effect of the dispute had, however, resulted in the
need to take the matter to the ICJ. Hopefully, the question regarding the functioning of the
 GB.349ter/PV/Draft 10
supervisory system had highlighted what a sensitive issue it was, but everybody needed to
understand, as just clarified by the Office, that requesting an opinion from the ICJ did not stand
in the way of the supervisory bodies continuing to work as usual, until told otherwise by the
Court. The system should not be eroded any further.
32. A Government representative of Switzerland said that governments had a right to request
clarifications from the Office and asking a question about whether a referral to the Court had
a suspensory effect did not entail calling into question the ILO’s supervisory system. Her
Government’s position, submitted to the Office in response to its background report, had been
very clear from the start, and had been developed in consultation with Swiss social partners.
Swiss social partners had also sent their own response to the Office. She therefore requested
the Worker Vice-Chairperson to withdraw her comment casting doubt on their consultation
with the Swiss social partners, and her comment suggesting that her query had called into
question the ILO’s supervisory system.
33. The Worker Vice-Chairperson said that if the Government of Switzerland had consulted on
the matter recently, she would withdraw her suggestion that there had been no consultation.
However, her group had heard during the early stages of the process that unions were not
happy about what had been happening in Switzerland. She fully accepted everybody’s right to
ask the Office questions. She just wanted to make it very clear that the issue was very sensitive,
and in that regard she thanked the Government representative of Switzerland for asking the
question and said she appreciated the clarification from the Office.
34. The Employer Vice-Chairperson deplored the fact that the decision taken during the 349th bis
(Special) Session the previous day had derailed the discussions at the 349th ter (Special)
Session, and that both alternatives could not have been discussed calmly through social
dialogue. Having heard mostly from non-Governing Body members during the Committee of
the Whole, she would reserve her closing statement until she had heard from the Governing
Body members.
Governing Body
35. The Governing Body had before it two amended versions of the draft decision, proposed by
the Employers’ group and the Workers’ group, which had been discussed in the Committee of
the Whole.
36. The Chairperson, as required by article 4.3 of the Standing Orders and as reflected in the
arrangements for the special session adopted by the Governing Body at its 349th Session,
provided the following oral report on the exchange of views in the Committee of the Whole:
Pursuant to article 4.3 of the Standing Orders of the Governing Body, and as reflected in the
special arrangements adopted for this special session, I have the honour to report to the
Governing Body on the exchange of views that took place this morning.
The Committee of the Whole offered the opportunity for a constructive exchange of views that
involved a total of 11 speakers, including governments not represented in the Governing Body.
On the principal question of whether or not the Organization should urgently include a
standard-setting item on the right to strike on the agenda of the International Labour
Conference at its 112th Session (June 2024), the Workers’ and Employers’ groups reaffirmed
their respective positions.
The Employers’ group expressed its profound regret and disappointment at the outcome of
the 349th bis (Special) Session of the Governing Body, as they considered that social dialogue
had been severely damaged. Social dialogue, not litigation, was the cornerstone of the ILO.
 GB.349ter/PV/Draft 11
The Employers’ group also expressed its thanks for the support expressed by many
governments for a solution based on tripartite dialogue in the context of the International
Labour Conference and regretted that its views and those of many governments had not been
taken into account and that a vote in favour of referral to the International Court of Justice (ICJ)
had been forced. As a consequence, the Employers’ group would take further steps at the next
sessions of the Governing Body and International Labour Conference to enhance the
democratization and inclusiveness of ILO procedures.
The Employers’ group considered that the questions related to the right to strike were
multifaceted and that neither the ICJ nor the Committee of Experts on the Application of
Conventions and Recommendations were able to address such properly and conclusively.
In the light of the absence of ILO standards addressing the issue and the fact that the existing
international instruments concerning the right to strike referred to the role of domestic
legislation, there was a need to adopt an international regulation. That was fully consistent with
the normative role of the ILO.
The Employers’ group reiterated its view that a standard-setting process involving all ILO
constituents was the only appropriate manner to solve interpretation disputes, which would
result in legal certainty and authoritative rules that would have to be followed by the
Committee of Experts. In contrast, ICJ advisory opinions were not legally binding and would not
prevent the Employers’ group from continuing to oppose the detailed positions developed by
the Committee of Experts on the right to strike.
The proposed Protocol would not amend the Freedom of Association and Protection of the
Right to Organise Convention, 1948 (No. 87), which did not include a right to strike, but would
define rules applicable to that right, binding only those who would ratify it. The Employers’
group would, however, not oppose other standard-setting options, such as a Recommendation
or a Convention.
The Employers’ group stated that it was possible for the Governing Body in March 2024 to put
a standard-setting item concerning the right to strike on the agenda of the 112th Session (2024)
of the International Labour Conference. Alternatively, it could be discussed at the 2025 and
2026 sessions of the Conference. The Employers’ group was also open to other options, such
as a general discussion or a tripartite meeting of experts.
The Workers’ group recalled that standard-setting was at the heart of the ILO and that the
Organization had been created to reduce poverty and to safeguard human dignity through the
improvement of rights and working conditions. The Workers’ group could therefore not accept
proposals aimed at lowering standards on the right to strike and undermining or reversing the
authoritative guidance of the Committee of Experts in this respect. A Protocol would not resolve
the dispute at stake. On the contrary, it would lead to more legal uncertainty as a Protocol
would create two separate legal regimes, one for those members having ratified Convention
No. 87 only and the other for those ratifying both the Convention and the Protocol. No initiative
would be relevant before the advisory opinion of the ICJ had been delivered. It was not clear
either how a Protocol on the right to strike could be linked to a Convention which, according to
the Employers, did not cover the right to strike.
The Workers’ group stated that it would be difficult to reach tripartite consensus at the
Conference, as dialogue had not resulted in consensus so far. The attempts to undo or take
away existing fundamental rights were contrary to the objectives and mandate of the ILO and
would never be acceptable to the trade union movement nor to many governments. The
Workers’ group also raised procedural issues in view of the items already decided by the
Governing Body, as well as the preparatory standard-setting processes. The alternative options
to the Protocol contained in the Employers’ amendment were not valid either. In the opinion of
the Workers’ group, the only possible approach was to await the guidance of the ICJ, which
would clarify whether the right to strike was covered by Convention No. 87. This could
jeopardize the work of the ILO system or other discussions. On the contrary, that was the only
means to put an end to the dispute.
 GB.349ter/PV/Draft 12
All governments reaffirmed the importance of freedom of association and the right to strike.
Many highlighted that the right to strike was an intrinsic corollary of freedom of association
and a fundamental principle and right at work.
A significant number of governments was of the view that, following the decision to refer the
dispute on the right to strike to the ICJ for an advisory opinion, it was premature to discuss the
question of placing a standard-setting item on the agenda of the Conference. Some added that
it was not possible to discuss standard-setting on the right to strike as long as the dispute on
whether the right to strike was contained in Convention No. 87 was not resolved.
Some governments expressed regret at the decision to refer the dispute to the ICJ, which, in
their view, precluded social dialogue as the normal means through which disputes should be
settled in the ILO. Other governments were of the view that legal certainty was in the interest
of the Organization as a whole, including the tripartite constituents and the supervisory bodies.
Some governments referred to the prospect of resuming tripartite dialogue, possibly through
standard-setting at the Conference or through other means, once the advisory opinion from
the ICJ was received. They expressed the wish that a solution garnering tripartite support would
eventually be found.
Several speakers noted that the right to strike was not an absolute right and should be
regulated at the national level. A view expressed in that regard was that the ICJ was not in a
position to address the question of the modalities for the exercise of the right to strike.
According to certain speakers, the modalities for the exercise of the right to strike could be
addressed through social dialogue after the advisory opinion was delivered.
Some speakers expressed the wish to revert to the Conference at a later stage, with a view to
arriving at a balanced outcome and pragmatic solutions, taking into account divergent views.
All the speakers emphasized the importance of social dialogue and expressed the hope that it
would be safeguarded and shored up within the ILO.
Finally, in reply to a question from a government, the Office indicated that the referral of the
dispute to the ICJ would not have a suspensive effect on the regular functioning of the ILO
supervisory mechanism (see document GB.347/INS/5, paragraph 27, and paragraph 17 of the
procedural framework in its Appendix I).
I hope that this report has done justice to the quality of the exchange of views and to the
engagement and sense of responsibility shown by all three groups.
I trust that the Governing Body, meeting in plenary, will now be able to take over and engage
in a constructive debate on the possible way forward.
37. The Employer Vice-Chairperson said that the Committee of the Whole was an important and
useful format for the discussion of fundamental issues. She reiterated that her group’s aim
was to allow the International Labour Conference to discuss and decide on potential
international regulations regarding the definition, scope and boundaries of the right to strike.
Such regulations could be issued only by the tripartite constituents, within the framework of
established ILO procedures, and not by the ICJ or the Committee of Experts.
38. In determining whether Convention No. 87 covered the right to strike, the ICJ should consider
the continued refusal of the Workers’ group and of certain governments to allow
standard-setting on that right. A matter that the Workers’ group did not wish to be explicitly
regulated in an instrument could not be implicitly regulated in the Convention. In its
amendment, the Employers’ group had set out four different options for inclusive discussion
on the right to strike. The key difference between the two proposed amendments was that
while the Employers’ group had proposed an unprecedented discussion at the Conference, the
Workers’ group had unilaterally forced its position, going against the spirit of social dialogue.
39. The first option proposed by her group was flexible standard-setting, whether in the form of
Recommendations, Protocols or Conventions. Although her group had proposed that those
 GB.349ter/PV/Draft 13
efforts should take place in 2024, that was only to take account of the urgency alleged by the
Workers’ group, and her group would be satisfied if they were deferred to a later session of
the Conference in order to better prepare for the discussion. The second option was a general
discussion on the right to strike and industrial action in the Conference which would be
substantive and involve all Member States and social partners. The meeting of experts
proposed in the third option would entail substantive discussion, unlike the meeting of experts
held in 2015. The fourth option was to continue to discuss, at the next Governing Body session,
all possible proposals on further steps to ensure legal certainty.
40. The amendment proposed by the Workers’ group, meanwhile, indicated complete disregard
for the Conference and for the ILO as a whole. The group’s refusal to place the matter on the
Conference’s agenda demonstrated an unwillingness to resolve the issue, instead preferring
to set a standard forcibly, through external means. Although the Workers’ group claimed that
the proposed Protocol would be substantially inferior to existing standards, that could not be
true since the right to strike was not yet regulated at the global level. Moreover, while
Convention No. 87 did not contain the word “strike”, the Workers’ group was opposed to filling
that regulatory gap through standard-setting. Furthermore, all international treaties dealing
with the right to strike referred to national law and practice, and any ILO instrument could
either confirm or diverge from the opinions of the Committee of Experts. Any standard
developed by the Conference, the most authoritative body of the ILO, would enjoy legitimacy
and ownership by the ILO as a whole. A starting point for resolving the dispute might be to
acknowledge the unique role of the Conference as the creator of standards on all labour issues,
including the right to strike.
41. The Forced Labour Convention, 1930 (No. 29), contained no explicit or implied reference to
trafficking in persons. Nonetheless, over time, the Committee of Experts had made comments
on trafficking when examining its application, and that regulatory gap had been filled by a
Protocol. The standard-setting via a Protocol proposed by her group was therefore wholly
consistent with previous practice, since the Committee of Experts had similarly developed
detailed opinions on the right to strike when examining the application of Convention No. 87,
even though the right to strike had been expressly excluded from it.
42. A number of governments had referred to her group’s proposals as possible options to be
considered at a later stage. She therefore reiterated her group’s intention to bring the matter
before the Conference at a future session, as well as to reaffirm its views on the opinions of
the Committee of Experts on the right to strike during the next session of the Conference,
particularly since the Office had indicated that the referral to the ICJ would not have a
suspensive effect and that the Committee of Experts could therefore continue to express its
views on the matter.
43. The Worker Vice-Chairperson said that she remained dissatisfied with the Employer
Vice-Chairperson’s response to her urgent request for clarification of the statement that the
decision adopted by the Governing Body at its 349th bis (Special) Session would have
consequences for the Conference’s 2024 session. She sought assurances that all ILO
constituents would participate faithfully in tripartite discussion at that session of the
Conference. In the absence of such assurances, her group would cease engaging in genuine
social dialogue in the ILO owing to the disingenuous stance of the Employers’ group.
44. The Workers’ group took a different view of the precedent relating to Convention No. 4, that
had been used by the Employers’ group to make the case for standard-setting. Prior to the
referral to the ICJ of the dispute concerning the interpretation of that Convention, which had
related to the definition of women workers, there had been considerable disagreement within
 GB.349ter/PV/Draft 14
the Governing Body as to its possible resolution. The Governing Body’s initial decision to
engage in standard-setting had failed because persistent disagreement on the definition had
prevented the required majority from being reached in the Conference, demonstrating the
need for the ICJ’s guidance before the Convention could be revised. It was clear, therefore, that
when views on the interpretation of a Convention varied greatly, legal clarity must be sought
before standard-setting could be efficient or desirable.
45. The Employers’ group had repeated its arguments time and time again, and little progress had
been made. The strong support for standard-setting voiced by the Employers’ group
represented a dramatic, albeit welcome, change to its stance over the previous decade. The
idea that all issues should be resolved through standard-setting ran counter to the
long-standing position of the Employers’ group, and the Workers’ group believed that such an
approach was inappropriate, particularly given that the ICJ was yet to issue its advisory opinion.
Lastly, while there had been general recognition of a regulatory gap in relation to Convention
No. 29, leading to the development of a Protocol on the basis of guidance from the Committee
of Experts, in the case of Convention No. 87 there was disagreement as to the existence of a
gap, and the Protocol proposed by the Employers’ group would not be based on the guidance
of the Committee of Experts, but obliterate it.
46. Speaking on behalf of a majority of Asia and Pacific group (ASPAG) countries, a
Government representative of the Islamic Republic of Iran expressed strong support for the
timely inclusion of a standard-setting item on the right to strike on the agenda of the
112th Session of the International Labour Conference. The proposed Protocol to Convention
No. 87, while voluntary, would provide legal certainty on a long-standing issue and represent
meaningful progress by creating binding obligations regarding the right to strike for States
that ratified it, and it could also serve to update the Convention. Disagreements on key
provisions should be resolved through tripartite dialogue and standard-setting, and the
governments on whose behalf he was speaking stood ready to participate actively in tripartite
discussion and technical preparations for the standard-setting item. It was, however,
disappointing that the decision to request an advisory opinion of the ICJ had been taken
through a Governing Body vote rather than at the International Labour Conference, which had
been the preference stated by most ILO Member States in the Committee of the Whole.
Tripartism, consensus and standard-setting procedures represented the best means of
following up the advisory opinion in line with countries’ particular circumstances.
47. Speaking on behalf of a group of 45 countries, 1 a Government representative of Colombia
highlighting his group’s commitment to reaching consensus through social dialogue and
tripartism and noting that it would not be possible to adopt the necessary measures until the
advisory opinion of the ICJ had been received, proposed a subamendment to the Workers’
proposed amendment that read:
16. The Governing Body decided:
(a) Ffurther to the request of the Employers’ group and of the Republic of Türkiye to
urgently include a standard-setting item on the right to strike on the agenda of the
1 Argentina, Australia, Austria, Barbados, Belgium, Brazil, Bulgaria, Canada, Colombia, Costa Rica, Croatia, Chile, Cyprus,
Czechia, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia,
Lithuania, Luxembourg, Malta, Montenegro, Netherlands, North Macedonia, Norway, Poland, Portugal, Romania, Slovakia,
Slovenia, South Africa, Spain, Sweden, Ukraine, United Kingdom of Great Britain and Northern Ireland, United States of
America.
 GB.349ter/PV/Draft 15
112th Session of the International Labour Conference (2024), not to include such an
item; and
(b) that after having received the advisory opinion of the International Court of Justice as
requested by the Governing Body at its 349thbis (special) Session, it would consider
appropriate follow-up action.decided that no further action was needed.to
48. Speaking on behalf of a majority of ASPAG countries, another Government representative
of the Islamic Republic of Iran proposed another subamendment to the amendment proposed
by the Workers’ group, to replace the words “decided that no further action was needed” by
“recommended a follow-up to the International Court of Justice advisory opinion by placing an
item, at the earliest session of the International Labour Conference, to conduct an in-depth
discussion on the possible follow-up.”
49. A Government representative of Argentina highlighted that a standard-setting item could
not be placed on the agenda of the next session of the Conference because it was not for States
to establish the scope of the right to strike, which was linked to the defence of workers’
interests and therefore constituted a human right. Moreover, the requests of the Employers’
group might be impacted by the fact that the right to strike was enjoyed solely by workers.
States could only place limits on the right to strike when it affected the human rights of other
groups or endangered life, security or health, or in other specifically determined
circumstances. Those situations could be regulated only by States, in line with national
legislation and the relevant international instruments, including Convention No. 87; they could
not be regulated by means of an international treaty. Should a Protocol to Convention No. 87
be developed, the right to strike would be limited only in States that ratified it, thereby
undermining coherence in the multilateral system.
50. There were also procedural barriers to placing a standard-setting item on the Conference’s
agenda. For example, it was not appropriate to address the matter before the ICJ had issued
its advisory opinion, and there was insufficient time before the 112th Session of the Conference
to respect the procedural timeframes set out in the Standing Orders of the Governing Body
and the Conference.
51. A Government representative of Bangladesh voiced concern at the fact that the decision on
the referral to the ICJ had been taken via a vote by the Governing Body, excluding many
Member States, and at the apparent division within the Organization; the situation
strengthened the argument for the democratization of the Governing Body. A standard-setting
discussion was necessary given that the ICJ would not rule on the extent to which governments
should allow strikes, or in which circumstances. The issue had arisen from the unmandated
interpretation of Convention No. 87 by the Committee of Experts, and the divergence in
opinions related to how, rather than whether, the right to strike should be enjoyed. Given that
most national legislation permitted strike action, it was likely that most governments would be
willing to contribute to the process of determining the scope and limits of the right to strike.
The contribution of all ILO constituents would be vital in developing the proposed Protocol. He
supported the subamendment proposed by a majority of ASPAG countries.
52. A Government representative of Brazil drew attention to the need to strengthen social
dialogue, given the obstacles to it that had led to the current situation. His Government
engaged in social dialogue on a daily basis through tripartite working groups, and it would
welcome further discussion of the right to strike, for example via a tripartite technical group
and at a future session of the Conference, provided that the Governing Body adopted a
decision to that effect and only after the ICJ had concluded its legal assessment.
 GB.349ter/PV/Draft 16
53. A Government representative of Indonesia stressing the importance of social dialogue in
the ILO’s decision-making, said that in the interest of fairness, the proposal of the Employers’
group should be afforded equal attention to that of the Workers’ group. She supported the
subamendment proposed by a majority of ASPAG countries.
54. A Government representative of India highlighted that although the decision on the referral
to the ICJ had been arrived at by means of a vote by the Governing Body, the majority of
Member States had believed that it should be discussed by the Conference. Nevertheless, the
subamendment proposed by a majority of ASPAG countries recognized the need to move
forward constructively and collectively by placing the ICJ’s advisory opinion before the
Conference, a step that would democratize the decision-making process. That proposed
subamendment also addressed the Governing Body’s responsibility to the Conference, which
was particularly relevant given that most Member States that would be affected had not been
able to voice an opinion.
55. Speaking on behalf of the Arab group, a Government representative of Morocco supported
the subamendment proposed by a majority of ASPAG countries.
56. The Employer Vice-Chairperson clarified that her group’s proposed amendment was not
intended to lower established standards; rather, the proposal was for the International Labour
Conference to have a discussion thereon. The issue of the definition of women workers in
Convention No. 4 had been referred to the ICJ only after the Conference had failed to reach a
majority decision; that procedure should be followed in the current circumstances. The
subamendments proposed by the group of 45 countries and by a majority of ASPAG countries
demonstrated a desire for a more inclusive discussion of the right to strike.
57. A representative of the Director-General (Legal Adviser) recalled that the ICJ’s advisory
opinion would be delivered to the Governing Body as the requesting organ. It would then fall
to the Governing Body to analyse it and consider possible follow-up, which could include
bringing the matter before the Conference. That aspect was addressed in paragraphs 18–20
of the procedural framework for the referral of interpretation questions or disputes to the ICJ
under article 37(1) of the Constitution, contained in Appendix I to document GB.347/INS/5.
58. The Employer Vice-Chairperson raised a point of order, since the Governing Body was aware
of the legal procedures, and the Legal Adviser should not intervene in policy discussions.
59. The Director-General said that the intention had been to ensure that all Governing Body
members were aware of the procedure.
(The Governing Body resumed its consideration of the item following a brief suspension of the
sitting.)
60. The Worker Vice-Chairperson expressed support for the subamendment proposed by the
group of 45 countries.
61. The Employer Vice-Chairperson rejected the subamendment proposed by the group of
45 countries, as her group wished to secure a firm commitment to discussing the issue of the
right to strike at the International Labour Conference. That decision was completely separate
from the decision on referral to the ICJ taken at the 349th bis (Special) Session of the Governing
Body, although the Employers’ group recognized that discussion of the right to strike at the
Conference should naturally take place after the ICJ had delivered its advisory opinion. She
therefore supported the subamendment proposed by a majority of ASPAG countries, which
captured the need for an inclusive discussion on the right to strike. Another acceptable option
would be to merge the two subamendments by retaining the element whereby the Governing
 GB.349ter/PV/Draft 17
Body would consider appropriate follow-up action, but adding wording to the effect that such
action would include placing an item on the agenda of the Conference. She called on the
Governing Body to show flexibility by considering that solution, which represented a
compromise between two opposing positions.
62. The Worker Vice-Chairperson said that her group had not accepted referral to the Conference
as part of the decision taken at the 349th bis (Special) Session of the Governing Body, and would
not accept it in any decision taken at the current session. The parameters of any follow-up
action taken by the Governing Body should not be fixed before the ICJ had delivered its
advisory opinion. In that context, she asked the Employer Vice-Chairperson to clarify her
position regarding the Conference in the light of the decision to refer the issue to the ICJ.
63. The Employer Vice-Chairperson said it was regrettable that her attempt to seek a
compromise had been rejected by the Workers’ group and certain governments. The
Employers’ group was ready to make concessions, but had met with obstruction from the other
parties; that did not generate confidence in the Organization’s capacity for tripartite dialogue.
Given the disastrous state of debate at recent Governing Body sessions, the Office leadership
should give careful consideration to how the proceedings were conducted.
(The Governing Body resumed its consideration of the item following a brief suspension of the
sitting.)
64. The Worker Vice-Chairperson said that, following a discussion in which various options to
avoid a vote had been explored, her group had decided that, due to the seriousness of the
situation, it could not compromise. Its attempts to find solutions through social dialogue over
the past 11 years had been blocked by the Employers’ group. Any recognition that there was a
persistent and deep-rooted dispute and that the Workers’ group wanted access to justice had
been denied. The Employers’ group was demonstrating a serious lack of trust towards the
Workers and Governments and towards the Office. She therefore called for a vote.
65. The Employer Vice-Chairperson requested the opportunity to review the draft minutes of the
session to ensure their accuracy.
66. A Government representative of Morocco said that, when he had first participated in the
work of the Governing Body, he had been told that the Governing Body always found solutions
through discussion and that voting was extremely rare. That appeared to no longer be the
case. Voting meant that there were winners and losers. In reality, the biggest loser would be
tripartism and the Organization itself, which would be blocked every time an important
decision needed to be made. It was important to look to the future. The members of the
Governing Body could not continue to work together if they did not trust one another.
67. Sincere efforts to find consensus could still be made, based on the subamendment proposed
by the group of 45 countries. Although the Workers’ group was within its rights to call for a
vote, he appealed to it to reconsider the importance of social dialogue and to make one final
attempt to find a solution together. In that regard, he proposed that the phrase “, including
possible discussions at the Conference” could be added at the end of subparagraph (b) of the
subamendment proposed by the group of 45 countries.
68. The Worker Vice-Chairperson said that her group had already explored all the options and
none of them were acceptable. The issue would not be resolved through a discussion at the
Conference. She reiterated her call for a vote.
69. The Employer Vice-Chairperson thanked the Government representative of Morocco for his
tireless efforts to achieve consensus and recalled the willingness of her group and others to
 GB.349ter/PV/Draft 18
compromise. Nonetheless, the Workers’ group remained completely inflexible. The situation
was disastrous and did not bode well for the future. Regrettably, she needed to leave the
meeting, but another Employer spokesperson would take her place.
70. Speaking on behalf of a majority of ASPAG countries, a Government representative of the
Islamic Republic of Iran agreed that votes should be carried out only in exceptional situations
and urged all participants to consider the cost to the ILO and to tripartism of taking that route.
She supported the proposed addition by Morocco, but suggested the deletion of the word
“possible”.
71. The Worker Vice-Chairperson speaking on a point of order, said that the special session was
being held at the request of the Employers’ group, and all participants had made their weekend
available and been told to be prepared for extended sittings. It showed an extreme disregard
for the work of the Governing Body that, before the discussions had ended, the Employer
Vice-Chairperson had decided to leave.
72. Speaking on behalf of the group of 45 countries, a Government representative of Colombia
welcomed the efforts that had been made to reach consensus, but noted with regret that all
avenues had been exhausted. He called for a vote to be taken.
73. The Employer Vice-Chairperson said that the remarks made by the Worker Vice-Chairperson
were completely unacceptable. There was a good reason behind why she had been obliged to
change her travel plans and leave the meeting early. It was not for the Worker Vice-Chairperson
to criticize how the Employers’ group organized itself.
74. The Worker Vice-Chairperson presented her apologies to the Employer Vice-Chairperson.
Nonetheless, it would have been polite to have given the Governing Body advance notice of
her early departure.
75. Speaking on behalf of the Government group, a Government representative of Namibia
urged all participants to focus on the issues before the Governing Body, think of the process
and respect the systems that were in place.
76. The Chairperson invited the Workers’ and Employers’ spokespersons, the Government
representatives of Colombia and the Islamic Republic of Iran, and the Chairperson of the
Government group to attend an informal meeting.
(The Governing Body resumed its consideration of the item following a brief suspension of the
sitting.)
77. Speaking on behalf of the group of 45 countries, a Government representative of Spain
noted the complexity and the deep-rooted nature of the issue. His group sought to obtain legal
certainty as well as support for the supervisory mechanisms of the ILO, the legitimacy of which
should not be questioned. Other questions had been raised, including on inclusivity and
democratization, which also contributed to the current impasse. However, it was not
appropriate to conflate issues that were completely disparate and could not be mixed with
negotiations that had to follow a different path. A discussion by the Conference should not be
the only avenue for legitimizing a decision. The Governing Body should wait for the advisory
opinion of the ICJ and then decide what to do.
78. Speaking on behalf of GRULAC, a Government representative of Mexico noted that, while she
was grateful to the Chairperson for his efforts to reach agreement on the issue, any informal
meetings held in the margins of the plenary sitting should be inclusive and involve the
coordinators of all regional groups.
 GB.349ter/PV/Draft 19
79. The Chairperson took note of the comment by GRULAC and explained that the attendees at
the informal meeting had been selected in a bid to find consensus.
80. Speaking on behalf of the group of 45 countries, a Government representative of Spain
requested information on the order in which the Governing Body would discuss the proposed
subamendments.
81. A Government representative of Morocco said that, as his proposal had not met with
consensus, he wished to withdraw it.
82. The Chairperson referring to the subamendments to the Workers’ proposed amendment, said
that the Governing Body would decide first on the subamendment proposed by the group of
45 countries, and then on the one proposed by a majority of ASPAG countries.
83. The Clerk of the Governing Body invited the Governing Body to proceed with a vote by show
of hands on the subamendment proposed by the group of 45 countries.
(The subamendment proposed by the group of 45 countries was accepted, with 30 votes in favour,
19 votes against and 6 abstentions.)
84. The Worker Vice-Chairperson raising a point of order, requested clarification as to the
rationale for the upcoming vote on the subamendment proposed by a majority of ASPAG
countries; that subamendment should have fallen after the adoption of the one proposed by
the group of 45 countries.
85. Speaking on behalf of a majority of ASPAG countries, a Government representative of the
Islamic Republic of Iran confirmed that ASPAG had not withdrawn its subamendment.
86. A representative of the Director-General (Legal Adviser) clarified that the subamendment
proposed by a majority of ASPAG countries conflicted with the one proposed by the group of
45 countries that had just been adopted. Therefore, the former had fallen upon the acceptance
of the latter. He suggested that the Governing Body could proceed to decide on the
amendment proposed by the Workers’ group – it could be accepted by consensus or by a vote.
87. The Employer spokesperson said that the implications of the vote had not been clearly
explained before the vote. She asked whether it would be possible for the Governing Body to
hold another vote, on which of the two proposed subamendments it wished to accept.
88. The Chairperson acknowledged that Governing Body members may not have been clear
about the voting process. The vote would therefore be retaken in order to protect the integrity
of the process. The two subamendments would be put to a vote against each other, as
expressly provided for in the Standing Orders.
89. The Clerk of the Governing Body said that the Governing Body would proceed to a vote by
show of hands on which of the two proposed subamendments it wished to accept.
(There were 30 votes in favour of the subamendment submitted by the group of 45 countries,
22 votes in favour of the amendment submitted by a majority of ASPAG countries and 3 abstentions.)
90. The Chairperson announced the results, noting that the subamendment proposed by the
group of 45 countries was accepted and the one proposed by a majority of ASPAG countries
was rejected. Accordingly, and in the absence of any objection, he took it that the Governing
Body was prepared to adopt the amendment proposed by the Workers’ group, as subamended
by the group of 45 countries.
 GB.349ter/PV/Draft 20
Decision
91. The Governing Body decided:
(a) further to the request of the Employers’ group and of the Republic of Türkiye to
urgently include a standard-setting item on the right to strike on the agenda of the
112th Session of the International Labour Conference (2024), not to include such an
item; and
(b) that after having received the advisory opinion of the International Court of Justice,
as requested by the Governing Body at its 349th bis (Special) Session, it would
consider appropriate follow-up action.
(GB.349ter/INS/1, paragraph 16, as amended by the Governing Body)
Closing remarks
92. The Worker Vice-Chairperson said that, while her group was supportive of the International
Labour Conference, past experience had demonstrated that a calm discussion of the right to
strike would not be possible, and her group could not trust the unclear motives behind such
proposals. The Employers’ group had proposed standard-setting that aimed to void 70 years
of the Committee of Experts’ jurisprudence. She invited those who had accused her group and
others of failing to respect democracy or adhere to the values of social dialogue to consider
their own actions in their countries.
93. She welcomed the recognition by the group of 45 countries that the only appropriate outcome
of the current session was to await the ICJ’s advisory opinion before submitting it for
assessment by the Governing Body. Thanking the Chairperson for guiding an extremely
complicated session and other participants for engaging in respectful, tripartite social
dialogue, she called on the Employers’ group to engage in further discussion so as to avoid
future conflict.
94. The Employer spokesperson while expressing deep disappointment at the outcome of the
two special sessions, thanked the participants that had supported her group’s positions. While
she welcomed the efforts made to reach consensus, the outcome of the two special sessions
was disastrous for the ILO and indicated significant division. Not for the first time, the
Governing Body had resorted to voting rather than consensus, severely compromising its
credibility and integrity. The tone and content of debate in the Governing Body should be
respectful, and she took great exception to the false accusations levelled at her group by the
Workers’ group.
95. Given that many governments had stressed the importance of inclusivity and democratic
decision-making, the right to strike must be placed on the agenda of the Governing Body’s
next session to ensure that it was discussed at the Conference, which was the Organization’s
supreme body. Her group believed that one of the underlying reasons for the current situation
was some governments’ reluctance to make progress towards democratization and to
strengthen the role of the Conference. The mistrust of the outcome of the Conference on the
part of the Workers’ group was regrettable.
96. She commended the Chairperson for his work in such difficult circumstances and thanked the
Office for its support. She also thanked the Employer Vice-Chairperson for her commitment to
defending her group’s views, which were informed by its desire to take decisions acceptable to
all; the importance of those decisions meant that the Governing Body must endeavour to
accommodate opposing views and reach consensus.
 GB.349ter/PV/Draft 21
97. Speaking on behalf of the Africa group, a Government representative of Morocco thanked
the Office for its unfailing support and the Chairperson for his impartial steering of the
349th Session and 349th bis and ter (Special) Sessions of the Governing Body.
98. Speaking on behalf of the Government group, a Government representative of Namibia
commended the Chairperson for his leadership, the participants for their openness to
considering differing views and negotiating in good faith, and the Office for its continued
support.
99. Speaking on behalf of a majority of ASPAG countries, a Government representative of the
Islamic Republic of Iran clarified that the countries on whose behalf she was speaking had not
withdrawn their proposed subamendment because they maintained that the International
Labour Conference must remain the Organization’s supreme body. All ASPAG countries
thanked the Office for its efforts.
100. A representative of the Director-General (Legal Adviser) explained that the Director-General
would, in the coming days, formally transmit the Governing Body’s resolution in which it
decided to refer the question of the interpretation of Convention No. 87 to the ICJ, requesting
that the ICJ authorize the participation in advisory proceedings of international employers’ and
workers’ organizations that enjoyed general consultative status at the ILO. He would also
request that the ICJ consider, if possible, an accelerated procedure. The Director-General would
also write to the United Nations Economic and Social Council to inform it of the request, as
required under article IX(4) of the 1946 Agreement between the United Nations and the
International Labour Organization (also known as the UN-ILO relationship agreement).
101. Upon receipt of the Director-General’s communication, the Registrar of the ICJ would give
notice of the referral request to all ILO Member States and notify any international
organization considered by the ICJ as likely to be able to furnish information on the question.
The ICJ would then determine the form and time limit for written submissions and decide
whether to hold oral hearings, setting a date if necessary. The Office would shortly begin
preparing a comprehensive dossier of documentation likely to shed light on the matter for
submission to the ICJ. That dossier and other relevant information would be published on a
dedicated page of the ILO’s website. The Office would provide detailed information as the
process progressed.
102. The Chairperson thanked all participants for their valuable contributions and commendable
dedication.

Document No. 34
GB.322/INS/5, The standards initiative: Follow-up to the
2012 ILC Committee on the Application of Standards,
October 2014

This GB document is printed in limited numbers to minimize the environmental impact of the ILO's activities and processes, contribute to climate
neutrality and improve efficiency. GB members and observers are kindly requested to bring their copies to meetings and to avoid asking for
additional ones. All GB documents are available on the Internet at www.ilo.org.
INTERNATIONAL LABOUR OFFICE
Governing Body
322nd Session, Geneva, 30 October–13 November 2014
GB.322/INS/5
Institutional Section INS
Date: 16 October 2014
Original: English
FIFTH ITEM ON THE AGENDA
The standards initiative: Follow-up
to the 2012 ILC Committee on the
Application of Standards
Purpose of the document
The document sets out the possible modalities, scope and costs of action under article 37 of
the ILO Constitution to address a dispute or question that may arise in relation to the interpretation
of an ILO Convention. It also addresses further outstanding issues in respect of standards policy
and the supervisory system (see the draft decision in paragraph 125).
Relevant strategic objective: Promote and realize standards and fundamental principles and rights at work.
Policy implications: This document relates to the ongoing discussions on the international labour standards policy of the
Organization.
Legal implications: Those associated with the possible implementation of article 37 (paragraphs 1 and 2) of the ILO
Constitution, including a possible request to the International Court of Justice for an advisory opinion and the possible
establishment of an in-house tribunal for the expeditious settlement of interpretation disputes. The possible
establishment of a standards review mechanism would have significant legal implications.
Financial implications: To be determined, depending on the decisions taken.
Follow-up action required: Depends on the decisions taken.
Author unit: Office of the Director-General (CABINET).
Related documents: GB.309/LILS/4; GB.310/LILS/3/1(Rev.); GB.312/LILS/5; GB.320/LILS/4.

GB.322/INS/5
GB322-INS_5_[CABIN-141013-1]-En.docx iii
Contents
Page
Introduction ....................................................................................................................................... 1
Section I. Modalities, scope and costs of action under article 37 (paragraphs 1 and 2)
of the ILO Constitution ................................................................................................... 1
A. Article 37, paragraph 1: Taking the matter to the International Court of Justice 2
A.1. Advisory function of the International Court of Justice:
Procedural aspects ................................................................................. 3
A.1.1. General remarks ...................................................................... 3
A.1.2. Initiation of proceedings ......................................................... 4
A.1.3. Notification, invitation to participate in proceedings ............. 5
A.1.4. Written observations and oral arguments ............................... 5
A.1.5. Urgent requests ....................................................................... 6
A.1.6. Public reading of the advisory opinion ................................... 7
A.1.7. Legal effect of an advisory opinion ........................................ 7
A.1.8. Costs ....................................................................................... 8
A.1.9. Institutional follow-up ............................................................ 9
A.2. Object of the request for an advisory opinion:
Jurisdiction and admissibility ................................................................ 9
A.2.1. The Court’s jurisdiction to examine a request for
an advisory opinion ................................................................. 9
A.2.2. The Court’s discretionary power to refuse to give
an advisory opinion ................................................................. 10
A.3. Participation of international employers’ and workers’ organizations
in advisory proceedings ......................................................................... 11
A.4. Current situation: Drafting the question ................................................ 14
B. Article 37, paragraph 2: Setting up a permanent in-house tribunal ..................... 15
B.1. The tribunal ............................................................................................ 15
B.1.1. Establishment .......................................................................... 15
B.1.2. Competence ............................................................................ 16
B.1.3. Composition ............................................................................ 16
B.1.4. Selection and appointment ...................................................... 17
B.1.5. Panel constitution .................................................................... 18
B.1.6. Incompatibility ........................................................................ 18
B.1.7. Resignation, withdrawal and removal .................................... 18
B.1.8. Replacements and vacancies ................................................... 19
B.1.9. Status....................................................................................... 19
B.1.10. Honoraria ................................................................................ 19
B.1.11. Administrative arrangements .................................................. 19
B.2. Procedure ............................................................................................... 20
B.2.1. Initiation of proceedings ......................................................... 20
B.2.2. Participation in proceedings.................................................... 21
GB.322/INS/5
iv GB322-INS_5_[CABIN-141013-1]-En.docx
B.2.3. Conduct of proceedings .......................................................... 21
B.2.4. Phases of proceedings ............................................................. 22
B.2.5. Notification and written proceedings ...................................... 22
B.2.6. Oral proceedings ..................................................................... 23
B.2.7. Publicity .................................................................................. 23
B.2.8. Adoption of decisions, quorum, effect of tribunal’s award .... 23
B.3. Costs ...................................................................................................... 24
Section II. Addressing further outstanding issues in respect of standards policy and the
supervisory system .......................................................................................................... 25
A. Designing a Standards Review Mechanism ......................................................... 26
B. Functioning of the Conference Committee on the Application of Standards ...... 27
C. Matters related to regular and complaint-based supervision ................................ 27
D. Matters related to the functioning of the Committee of Experts on the
Application of Conventions and Recommendations ............................................ 28
Appendices
I. Draft resolution of the ILO Governing Body .................................................................. 31
II. Draft Statute .................................................................................................................... 33
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Introduction
1. In March 2014, following a broad consultative process with all groups, the Governing
Body was invited to give its direction on concrete proposals that address the main
outstanding issues in relation to the standards supervisory system. In view of the urgency
and gravity of the situation, the Governing Body felt it was necessary to give further
consideration to the options under article 37 (paragraphs 1 and 2) of the ILO Constitution
and requested the Director-General to prepare a document for its 322nd Session in
November 2014 setting out the possible modalities, scope and costs of action under
article 37 of the ILO Constitution to address a dispute or question that may arise in relation
to the interpretation of an ILO Convention. 1 The Governing Body also recognized that a
number of steps could be examined with a view to improving the working methods of the
standards supervisory system and requested the Director-General to present to the
322nd Session of the Governing Body a timeframe for the consideration of remaining
outstanding issues in respect of the supervisory system and for launching the Standards
Review Mechanism.
2. This document is accordingly divided in two sections. Section I focuses on the practical
modalities of the two courses of action envisaged in article 37 of the Constitution, namely
a request for an advisory opinion of the International Court of Justice and the
establishment of an in-house tribunal for the expeditious settlement of interpretation
disputes. Section II addresses a number of outstanding issues in respect of the standards
policy and the supervisory system.
Section I. Modalities, scope and costs of action under
article 37 (paragraphs 1 and 2) of the ILO
Constitution
3. Part A of this section reviews the main characteristics and procedural aspects of the
advisory function of the International Court of Justice, emphasizing issues of particular
importance to the ILO, such as the possibility of international employers’ and workers’
organizations being granted direct access to Court proceedings. To facilitate discussion, it
also includes proposed wording of possible questions that might be brought before the
International Court of Justice on the right to strike and the mandate of the Committee of
Experts on the Application of Conventions and Recommendations and a draft Governing
Body resolution containing the questions to be put to the Court (Appendix I).
4. Part B provides proposals for the establishment of a tribunal for the expeditious
determination of any dispute or question relating to the interpretation of ILO Conventions.
These proposals take into account the specificities of ILO Conventions and the tripartite
nature of the Organization, and aim at devising a cost-efficient mechanism for the rapid
settlement of interpretation issues. A draft statute (Appendix II) has been prepared building
on prior discussions and extensive research on the functioning of existing international
1 GB.320/LILS/4, para. 41(a). The question of interpretation of international labour Conventions,
and the possible implementation of article 37 has been the subject of recurrent discussions in the
past four years; see Non-paper on interpretation of international labour Conventions (February
2010); Informal exploratory paper on interpretation of international labour Conventions (October
2010); The ILO supervisory system: A factual and historical information note (September 2012);
Information paper on the history and development of the mandate of the Committee of Experts on
the Application of Conventions and Recommendations (February 2013). Copies of these documents
are found at https://www.ilo.org/public/english/bureau/leg/art37.htm.
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courts and tribunals. Practical indications of cost estimates and the possible duration of the
proceedings are also presented.
5. It needs to be clarified at the outset that the possibilities provided for in article 37
(paragraphs 1 and 2) of the ILO Constitution are complementary and not mutually
exclusive. Article 37(1), which refers to the advisory function of the International Court of
Justice, is part of the Constitution as originally drafted in 1919, whereas article 37(2),
which provides for the establishment of an internal judicial body, was introduced at the
time of the constitutional amendment of 1946. As it currently reads, article 37 is based on
the postulate that the most critical questions relating to the interpretation of ILO
Conventions and any question relating to the interpretation of the Constitution itself should
be brought before the International Court of Justice, while requests for the interpretation of
ILO Conventions that might be less complex or more amenable to expeditious
determination could be submitted to an internal tribunal.
6. Even though this document addresses, in line with the Governing Body decision, the two
options under article 37 of the ILO Constitution, it should be recalled that the Governing
Body could also consider other options, including the possibility of holding a tripartite
discussion on the issues that have arisen in relation to the right to strike, the application of
that right and limitations to its exercise. Such a tripartite discussion could take the form,
for example, of a debate during the Governing Body, a meeting convened by the
Governing Body for this purpose, a specific item placed on the agenda of the International
Labour Conference, or a dedicated session of the Conference Committee on the
Application of Standards.
A. Article 37, paragraph 1: Taking the matter
to the International Court of Justice
7. Article 37(1) of the ILO Constitution provides for the referral of “any question or dispute”
(questions ou difficultés in French) relating to the interpretation of the Constitution or of
any international labour Convention adopted by member States pursuant to the provisions
of the Constitution to the International Court of Justice “for decision” (appréciation in
French). Despite the inconsistency between the English and French texts, article 37(1)
gives expression to the clear intention of the drafters to entrust the settlement of any
dispute or question relating to the interpretation of the Constitution or of an international
labour Convention, as a last resort, to the highest judicial authority of the United Nations
system and to recognize its pronouncements as decisive. As a matter of constitutional
theory and practice, article 37(1) has always been understood as conferring a binding and
decisive effect to advisory opinions obtained on that basis.
8. In its early years, the ILO – in reality, the League of Nations acting at the Organization’s
request – had recourse to the advisory function of the Permanent Court of International
Justice on six occasions between 1922 and 1932 (one specifically requesting the
interpretation of an international labour Convention) but has not so far sought any advisory
opinion from the International Court of Justice. 2 All six requests were submitted to the
2 The Permanent Court of International Justice (PCIJ) – the predecessor to the International Court of
Justice – held its inaugural sitting in 1922 and was dissolved in 1946. During this period, the PCIJ
dealt with 29 contentious cases between States and delivered 27 advisory opinions. The six requests
for advisory opinions that concerned the ILO were: Designation of the Workers’ Delegate for the
Netherlands at the Third Session of the International Labour Conference (1922); Competence of the
ILO in regard to International Regulation of the Conditions of Labour of Persons Employed in
Agriculture (1922); Competence of the ILO to Examine Proposals for the Organization and
Development of the Methods of Agricultural Production (1922); Competence of the ILO to Regulate
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Court through the Council of the League of Nations pursuant to Article 14 of the Covenant
of the League of Nations.
9. In fact, Article 14 of the Covenant, which called for the establishment of a Permanent
Court of International Justice, also provided that the Court “may give an advisory opinion
upon any dispute or question referred to it by the Council or by the Assembly”. As
interpreted in practice, and eventually also reflected in article 82 of the Rules of Court of
1936, two types of advisory opinion were envisaged; one was an opinion related to a
“dispute” (différend), which was largely related to a contentious case, while the other was
an opinion related to a non-contentious “question” (point).
10. In the event, article 14 of the Covenant was replaced by article 96 of the United Nations
Charter, which follows the same pattern as it grants the right to initiate advisory
proceedings “on any legal question” to two principal organs of the United Nations, namely
the General Assembly and the Security Council, and to specialized agencies that the
General Assembly would authorize to request advisory opinions “on legal questions arising
within the scope of their activities”. Basically the same provision is reproduced in
article 65 of the Statute of the International Court of Justice, which succeeded the
Permanent Court of International Justice. There is a significant element of continuity
between the two Courts, and this may impact positively on any request for an advisory
opinion that might be initiated by the ILO.
A.1. Advisory function of the International Court of
Justice: Procedural aspects
A.1.1. General remarks
11. Contrary to the contentious jurisdiction of the International Court of Justice, the purpose of
its advisory function is not to settle inter-state disputes (even if it can contribute to such a
settlement) but to provide legal advice to the organs and institutions requesting the
opinion. 3 The provisions governing advisory proceedings are set out in articles 65 and 66
of the Statute of the Court and articles 102 to 109 of its Rules. 4
12. The main distinction is, however, that in an advisory procedure there is no “case” to be
adjudicated and consequently there are no “parties”; what is submitted to the Court is a
request for legal guidance, and the Court must ensure that it obtains all necessary
information through written statements and/or hearings before it delivers its opinion. An
important consequence thereof is that the consent of the parties to a dispute, which is the
basis of the Court’s jurisdiction in contentious cases, is not required in advisory
proceedings.
Incidentally the Personal Work of the Employer (1926); Free City of Danzig and the ILO (1930);
Interpretation of the Convention of 1919 concerning Employment of Women during the Night
(1932). For a brief account on these cases, see S.M. Schwebel: “Was the capacity to request an
advisory opinion wider in the Permanent Court of International Justice than it is in the International
Court of Justice?”, in British Yearbook of International Law (1991, Vol. 62), pp. 87–90.
3 On the procedural aspects of the advisory function of the International Court of Justice, see
S. Rosenne: The law and practice of the International Court 1920–2005, 4th edition (2006, Vol.
III), pp. 1653–1703; C.F. Amerasinghe: Jurisdiction of specific international tribunals (2009), pp.
199–254; R. Kolb: The International Court of Justice (2013), pp. 1102–1111; M. Pomerance: The
advisory function of the International Court in the League and U.N. Eras (1973), pp. 277–329.
4 The full text of the Court’s Statute and Rules of Court and the text of all advisory opinions and
background documents can be accessed at www.icj-cij.org. Additional information on the advisory
function of the Court may be found at https://www.ilo.org/public/english/bureau/leg/art37.htm.
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13. According to the Statute of the Court, the formal request for an advisory opinion has to
emanate from a body that is authorized by the United Nations Charter to make such a
request, as noted above. 5 Given the fact that, in accordance with article 96(2) of the United
Nations Charter, the General Assembly has duly authorized the ILO to request advisory
opinions, it is probable that in the event of a request for an advisory opinion submitted by
the Organization, the Court will base its jurisdiction primarily on article IX(2) of the 1946
Agreement between the United Nations and the ILO, which explicitly authorizes the ILO
to request an advisory opinion, and UN General Assembly Resolution 50(I) of
14 December 1946 by which the General Assembly approved the UN–ILO Agreement. 6
A.1.2. Initiation of proceedings
14. The advisory procedure starts with the request for an advisory opinion, which has to be
made in writing and transmitted to the Court. It is for the requesting organization to
determine how the question is to be formulated and how the decision to request an
advisory opinion may be made. According to article 65(2) of the Statute, “questions upon
which the advisory opinion of the Court is asked shall be laid before the Court by means of
a written request containing an exact statement of the question upon which an opinion is
required, and accompanied by all documents likely to throw light upon the question”. 7
This documentation should contain all background information on the underlying dispute
and may also relate to the debate that led to the adoption of the decision requesting the
opinion. 8
15. To date, all requests submitted to the Court have taken the form of a formal resolution
adopted in the normal manner by the requesting organ. Following a common pattern, these
resolutions contain a few preambular paragraphs contextualizing the problem on which
5 According to the International Court of Justice Yearbook (2010–11), pp. 107–108, three United
Nations organs besides the Security Council and the General Assembly, as well as 16 organizations,
are at present authorized to request advisory opinions. To date, only four specialized agencies have
sought advisory opinions of the Court: the United Nations Educational, Scientific and Cultural
Organization, the International Maritime Organization, the World Health Organization and the
International Fund for Agricultural Development.
6 Article IX(3) of the UN–ILO Agreement provides that a request may be addressed to the Court by
the Conference or by the Governing Body acting in pursuance of an authorization by the
Conference. Such an authorization was given in 1949; see International Labour Conference,
“Resolution concerning the procedure for requests to the International Court of Justice for advisory
opinions”, Official Bulletin (1949, XXXII), pp. 388–389. In addition, under article IX(4) of the
Agreement, in the event of a request to the International Court of Justice for an advisory opinion,
the ILO has to inform the United Nations Economic and Social Council. A draft letter to the UN
Secretary-General is at https://www.ilo.org/public/english/bureau/leg/art37.htm.
7 In addition, according to Rule 104, “the documents … shall be transmitted to the Court at the same
time as the request or as soon as possible thereafter, in the number of copies required by the
Registry”. As a matter of practice, the Court does not necessarily wait, before fixing time limits for
the submission of written statements, to receive the whole of the relevant documentation from the
chief administrative officer of the requesting organization.
8 The adoption of the request by the requesting organ is the first step, but the Court is not officially
seized of the case until the transmission letter is received in the Registry; the date of the receipt of
the original copy thereof is the date of the institution of the proceedings. Although infrequent, the
request may not be notified immediately after adoption; in the IMCO case the request was adopted
on 19 January 1959 but was sent to the Court on 23 March, while in the Nuclear Weapons/WHO
case, the request was adopted on 14 May 1993 and was transmitted to the Court on 3 September. A
draft transmission letter to the Registrar of the ICJ is found at
https://www.ilo.org/public/english/bureau/leg/art37.htm.
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advice is sought, followed by the question or questions to be answered by the Court.
Sometimes the resolutions include instructions to the executive head of the organization
that files the request regarding the documentation to be transmitted to the Court, measures
to be taken pending the opinion and follow-up action once the opinion is received. 9
A.1.3. Notification, invitation to participate in proceedings
16. Article 66(1) of the Statute provides that “the Registrar shall forthwith give notice of the
request for an advisory opinion to all States entitled to appear before the Court”.
Article 66(2) adds that “the Registrar shall also, by means of a special and direct
communication, notify any State entitled to appear before the Court or international
organization considered by the Court, or, should it not be sitting, by the President, as likely
to be able to furnish information on the question, the Court will be prepared to receive,
within a time limit to be fixed by the President, written statements, or to hear, at a public
sitting to be held for the purpose, oral statements relating to the question”.
17. Whereas all States entitled to appear before the Court automatically receive the general
notification of requests for advisory opinions set out in article 66(1), only those States and
international organizations that in the Court’s view may be in a position to provide specific
information receive the special notification provided for in article 66(2). It should be noted
that States or organizations specially notified under article 66(2) are entitled to participate
in any written and oral phase of the proceedings if they so wish, but they have no
obligation to do so. It should also be noted that, as explained in greater detail below, every
time an opinion concerning the ILO has been requested, international employers’ and
workers’ organizations have been allowed to participate in the proceedings.
18. The Court has always placed particular importance on ensuring that the information
available to it is sufficiently comprehensive and adequate for it to fulfil its judicial
function. The Court’s constant concern, in fact, is whether it “has before it sufficient
information and evidence to enable it to arrive at a judicial conclusion upon any disputed
question or fact the determination of which is necessary for it to give an opinion in
conditions compatible with its judicial character” (Wall, 2004, para. 56). Bearing in mind
that an advisory opinion states the law on the basis of the facts as made available to the
Court at the time of the decision (Nuclear Weapons/UN, 1996, para. 97), it would be very
important to ensure that in the event of an ILO request for an advisory opinion, as many
member States as possible – from all regions and representing all legal systems – actively
participate in the proceedings and communicate relevant information to the Court.
A.1.4. Written observations and oral arguments
19. The Court fixes by order the time limit for any submission of written statements by those
States and international organizations that have been invited to participate. This time limit
varies in practice between two and six months. The Court may decide to extend the time
limit and may also decide to hold a round of written comments on written statements of
others. 10
9 As reflected in the Court’s case law, the Court often draws on the indications included in the
preamble of the resolution in order to determine the object of the request and the character of the
question; see Rosenne, op. cit., Vol. II, p. 965; and Amerasinghe, op. cit., p. 204.
10 There seems to be no theoretical obstacle to a State submitting written observations on behalf of a
regional group. In the Wall case (2004), Ireland, ensuring the rotating European Union Presidency at
the time, filed a written statement on behalf of the European Union.
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20. The Court's Statute provides for the possibility of entities participating in the advisory
proceedings to be granted the right to reply to the statements presented by other entities.
According to article 66(4), “states and organizations having presented written or oral
statements or both shall be permitted to comment on the statements made by other States
or organizations in the form, to the extent, and within the time limits which the Court …
shall decide in each particular case”. In addition, article 105 of the Rules of Court provides
as follows: “Written statements submitted to the Court shall be communicated by the
Registrar to any States and organizations which have submitted such statements. The
Court, or the President if the Court is not sitting, shall: (a) determine the form in which,
and the extent to which, comments permitted under article 66, paragraph 4, of the Statute
shall be received, and fix the time limit for the submission of any such comments in
writing; (b) decide whether oral proceedings shall take place at which statements and
comments may be submitted to the Court under the provisions of article 66 of the Statute,
and fix the date for the opening of such oral proceedings”.
21. The Court may at its discretion decide to hold public hearings for oral arguments. 11 In
contrast, when the proceedings are urgent or time constraints so require, the Court may
dispense with public hearings completely. There is no obligation for participants who have
communicated written statements to take part in the oral proceedings; conversely,
participation in hearings is not limited to participants in any previous written phase. While
in advisory proceedings there are technically no “parties” and States do not appoint
“agents” to present their views (these terms are used only in contentious cases), yet, in
practice, advisory proceedings may be conducted in a manner that resembles very closely
the modalities followed in contentious cases. 12
22. Under article 106 of its Rules, the Court may, in the course of the proceedings, make
accessible to the public the written statements/comments and any annexed documents. As a
matter of practice, as soon as the oral proceedings begin, the Court makes public these
documents by posting them on the Court’s website. 13
A.1.5. Urgent requests
23. Article 103 of the Rules provides that “when the body authorized by or in accordance with
the Charter of the United Nations to request an advisory opinion informs the Court that its
request necessitates an urgent answer … the Court shall take all necessary steps to
accelerate the procedure, and it shall convene as early as possible for the purpose of
11 The length of hearings depends, inter alia, on the number of entities that indicated their intention
to make statements. Participants may have between 45 minutes and one hour to make oral
statements. The judges may ask participants to provide written answers to questions they pose
during the hearings. To date, there has been only one case in which although the Court had decided
to hold hearings, no such hearings were held because no State had requested to be heard.
12 There is no uniform pattern regarding the order of speaking in the public hearings but the
representative of the chief administrative officer of the requesting organization has always
addressed the Court first. Representatives of requesting organizations normally limit their
interventions to providing background information or general explanations on the secretariat’s point
of view.
13 The practice as to the number of written statements/comments and oral interventions that the
Court has to consider varies considerably. In the Wall case (2004), the Court received written
statements from 48 entities and heard oral arguments from 15 of them; In the Nuclear weapons/UN
case, it received 28 written statements, written comments from three States on the written
statements of others, and heard 21 oral arguments; while in the Kosovo case the Court received
35 written statements as well as 14 written comments on written statements of others, and heard
29 oral arguments.
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proceeding to a hearing and deliberation on the request”. 14 The need for expeditious
advice is examined by the Court on a case-by-case basis and there are no specific
provisions in the Court’s Rules on how it may accelerate the proceedings. When the Court
recognizes the urgency of a particular request, it normally fixes rather short time limits for
any written statements and/or comments and/or for the opening of the oral proceedings.
The Court has not so far dispensed with written or oral proceedings in urgent advisory
cases.
A.1.6. Public reading of the advisory opinion
24. The Court delivers its opinion in a public sitting. Currently, the reading of the opinion is
retransmitted live on the Court’s website. In a more or less standardized format used in
contentious and advisory cases alike, the text of an advisory opinion contains the
composition of the Court, a summary account of the proceedings, the various positions and
arguments, the reasoning of the Court, and in the final paragraph, known as dispositif, the
Court’s response to the question(s) asked. The opinion further indicates the judges who
voted for and against the Court’s main findings and also names the judges who appended
separate or dissenting opinions. At the end of the reading of the opinion, one copy duly
signed and sealed is handed to the representative of the organization which requested the
opinion, another is sent to the UN Secretary-General, and a third is placed in the archives
of the Court.
A.1.7. Legal effect of an advisory opinion
25. Advisory opinions are neither final nor binding, as those terms are used in articles 59 and
60 of the Court’s Statute with respect to contentious cases. 15 However, advisory opinions
may be accepted as binding through specific Conventions or acts of international
organizations. For instance, advisory opinions relating to the review of judgments of the
ILO Administrative Tribunal are given binding effect by Article XII of the Tribunal’s
Statute. Similarly, article IX (section 32) of the 1947 Convention on the Privileges and
Immunities of the Specialized Agencies provides that, should a difference arise between a
specialized agency and a member concerning the interpretation or application of the
Convention, a request shall be made for an advisory opinion on any legal question and “the
opinion given by the Court shall be accepted as decisive by the parties”. Be that as it may,
the Court has consistently pointed out that such clauses do not affect the nature of the
Court’s advisory function, nor do they affect the reasoning by which the Court forms its
opinion or the content of the opinion itself. The Court has always drawn a distinction
between the advisory nature of the Court’s task and the particular effects that parties to an
existing dispute may wish to attribute to an advisory opinion (Immunity from Legal
Process, 1999, para. 25).
14 For instance, requests for urgent answers were made in the Wall case (2004), the Nuclear
Weapons/UN case (1996) and the WHO/Egypt case (1980). At times, no specific reference is made
to article 103, but the opinion is asked to be delivered “urgently”, “on a priority basis”, “at an early
date”, or “taking into account the time constraint”.
15 As the Court has stated in several cases, “these opinions are advisory, not binding [and] are
intended for the guidance of the United Nations” (Privileges and Immunities, 1989, para. 31).
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■
Advisory proceedings: What and how
■ The advisory jurisdiction of the Court is open to the United Nations General Assembly, the Security
Council (on any legal question) and other bodies so authorized by the General Assembly (on legal
questions arising within the scope of these bodies’ activities).
■ The request for an advisory opinion must be based on a decision of the competent organs of the
organization concerned containing the question to be asked to the Court.
■ The request must be accompanied by a dossier containing all the background documents that, in the view
of the organization concerned, should be brought to the knowledge of the Court.
■ Advisory opinions are intended to give legal advice to the organization that initiated the request.
■ In deciding to whom participation in the advisory proceedings should be open, the Court’s main concern is
to ensure that all relevant actors are, as far as possible, involved and that accordingly all relevant
information is available.
■ The Court has shown that it is prepared to accept the participation of actors other than intergovernmental
organizations and States if: (a) this is in the interest of obtaining the most accurate and factual information
possible; or (b) the special circumstances of the case at hand so necessitate.
■ Advisory proceedings consist of written submissions – which may include comments on the statements of
other participants – and/or hearings.
■ The Court is prepared to expedite the advisory proceedings, if expressly requested to do so.
26. Even though advisory opinions have no binding force, nor do they produce the effects of
res judicata, they reflect the state of international law and benefit from the authority of the
International Court of Justice, the principal judicial organ of the United Nations: as such
they carry important legal weight. It should be recalled that certain advisory opinions
contain judicial pronouncements of major significance and are viewed today as milestones
in the development of international law, such as the 1949 Reparation for Injuries opinion
with regard to the capacity of intergovernmental organizations to bring international
claims; the 1951 Genocide opinion in relation to the concept of peremptory norms of
international law imposing obligations erga omnes; the 1962 Certain Expenses opinion for
the broad interpretation of the functions and powers of the General Assembly, including in
matters relating to the maintenance of peace and security; and the 1971 Namibia opinion in
connection with the obligation of States not to recognize an illegal situation resulting from
a serious breach of international law.
27. As regards the ILO, reference should be made to the 1922 advisory opinion of the
Permanent Court of International Justice concerning the nomination of the Workers’
delegate at the third session of the International Labour Conference, which still today
stands as the only authoritative guidance on matters relating to representativeness of
workers’ organizations and on which the Conference Credentials Committee
systematically builds its case law. It should also be noted that the rationale underlying
article 37 of the ILO Constitution is to recognize the referral to the International Court of
Justice as the ultimate recourse in matters of interpretation disputes and to accept the
Court’s “decision” as final settlement of any such dispute. It is clear, therefore, that
according to the letter and the spirit of the ILO Constitution, advisory opinions obtained
from the International Court of Justice enjoy extra legitimacy and authority for all
members of the Organization.
A.1.8. Costs
28. Requests for advisory opinions carry minimal costs. No provision is made for any
administration or Court fees for filing a request with the International Court of Justice.
According to article 33 of the Statute, the expenses of the Court are borne by the United
Nations. The budget of the Court is in fact part of the budget of the United Nations. The
only expenses relate to the reproduction of the dossier in the number of copies required by
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the Registry (45 in English and 45 in French), and the mission cost of the representative of
the requesting organization who may participate in the oral proceedings.
A.1.9. Institutional follow-up
29. The Court has consistently taken the view that the practical utility of the advisory opinion
is a matter exclusively for the requesting organ to consider, and that once it has spelled out
the law, it is for the body that initiated the request to draw the conclusions from the Court’s
findings. As stated in a recent case, “the Court cannot substitute its assessment of the
usefulness of the opinion requested for that of the organ that seeks such opinion” (Wall,
2004, para. 62). In some cases, especially when the decision to request an advisory opinion
is made in a highly polarized political context or is a result of a divisive vote,
implementing the Court’s advice may prove particularly challenging. According to
standard United Nations practice, the Secretary-General distributes the advisory opinion to
all member States, publishes it in the official records and ensures that an appropriate item
is included in the agenda of the requesting organ. The Secretary-General may also have to
comply with any special instructions included in the resolution embodying the request. In
most cases, on receipt of an advisory opinion, the General Assembly adopts one or more
resolutions expressing its appreciation to the Court, taking note of the Court’s advice and
extending recommendations to member States for the implementation of the Court’s
findings. 16
30. As regards the ILO, in the case of the six advisory opinions delivered at its request, all of
them were published in the ILO Official Bulletin and referred to in the Director-General’s
Report to the Conference. They were also given effect, according to the issue concerned, in
the subsequent practice of the Organization. For instance, following the Court’s advisory
opinion relating to the interpretation of the ILO’s Night Work (Women) Convention, 1919
(No. 4), the Governing Body decided in 1933 to propose the revision of the Convention
that was eventually adopted by the Conference in 1934. 17
A.2. Object of the request for an advisory opinion:
Jurisdiction and admissibility
31. When seized of a request for an advisory opinion, the Court first considers whether it has
jurisdiction and, if so, also whether there is any reason why in its discretion it should
decline to exercise such jurisdiction. As the Court has said: “The Court cannot exercise its
discretionary power if it has not first established that it has jurisdiction in the case in
question: if the Court lacks jurisdiction, the question of exercising its discretionary power
does not arise” (Nuclear Weapons/WHO, 1996, para. 14).
A.2.1. The Court’s jurisdiction to examine a request for an
advisory opinion
32. The Court has consistently pointed out that it is a precondition of its competence that the
advisory opinion be requested by an organ duly authorized to seek, that it be requested on a
legal question, and, when the request does not emanate from the General Assembly or the
16 In general, these resolutions reflect full acceptance and utmost respect for the Court’s opinion. It
is not infrequent, however, that a certain number of States vote against these resolutions and do not
accept to comply with the judicial pronouncements of the Court, in which case the advisory opinion
is seriously weakened and basically leaves the divisive issue at the origin of the request unresolved.
17 See Minutes of the Governing Body, 64th Session (1933), p. 20; and International Labour
Conference, 18th Session, Record of Proceedings (1934), pp. 196, 202.
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Security Council, that the question should be one arising within the scope of the activities
of the requesting organ (Wall, 2004, para. 14; Kosovo, 2010, para. 19).
33. With respect to the legal nature of the question, the Court has remarked that questions
framed in terms of law and raising problems of international law are by their very nature
susceptible to a reply based on law and are questions of a legal character (Nuclear
Weapons/UN, 1996, para. 13). The jurisprudence of the Court confirms that the term “legal
question” is not to be interpreted narrowly and that the Court may give an advisory opinion
on any legal question, whether abstract (Conditions for Admission, 1948, p. 61) or even
purely academic or historical (Western Sahara, 1975, paras 18–19).
34. The Court has observed on several occasions that the fact that a legal question also has
political aspects (as, in the nature of things, is the case with so many questions that arise in
international life) does not suffice to deprive it of its character as a legal question (Kosovo,
2010, para. 27; Wall, 2004, para. 41). It has further considered that the political nature of
the motives that may be said to have inspired the request, and the political implications that
the opinion given might have, are of no relevance in the establishment of its jurisdiction
(Nuclear Weapons/UN, para. 13). The Court has even taken the view that in situations in
which political considerations are prominent it may be particularly necessary for an
international organization to obtain an advisory opinion from the Court as to the legal
principles applicable with respect to the matter under debate (WHO/Egypt, 1980, para. 33).
35. The Court has also taken the view that lack of clarity in the drafting of a question does not
deprive the Court of jurisdiction and recalled, in this respect, that the Court has often been
required to broaden, interpret and even reformulate the questions put (Wall, 2004, para. 38;
Kosovo, 2010, para. 50).
36. When the request for an advisory opinion emanates from a body other than the General
Assembly or the Security Council, the Court, in establishing its jurisdiction, must ascertain
not only that the request relates to a legal question but also that the question arises within
the scope of the activities of the organization requesting the advisory opinion. To date,
there has been only one case in which the Court has declined to give the requested opinion,
on the ground that the question asked fell outside the competence of the organization
concerned and that therefore “an essential condition of founding its jurisdiction was
absent” (Nuclear Weapons/WHO, 1996, para. 31). 18
A.2.2. The Court’s discretionary power to refuse to give an
advisory opinion
37. As to the Court’s discretion to exercise its jurisdiction and decline to reply to a question
put to it for reasons of judicial propriety, the Court’s consistent position is that while
enjoying a wide margin of appreciation in this respect, it is mindful that its answer to a
request for an advisory opinion represents its participation in the activities of the
organization, that it should not, in principle, refuse to give an advisory opinion, and that
only compelling reasons could lead it to such a refusal (Nuclear Weapons/UN, para. 14;
Wall, 2004, para. 44). In fact, there has never been a refusal, based on the discretionary
18 While reaffirming that international organizations enjoy “implied powers” (that is, powers
conferred by necessary implication as being essential to the performance of their duties), the Court
recalled that specialized agencies were autonomous organizations invested with sectoral powers and
responsibilities. Those responsibilities, however, were necessarily restricted to the sphere of
specialty of the organization concerned (for instance, public health in the case of WHO) and could
not encroach on the responsibilities of other parts of the United Nations system (for example, in the
same case, the legality of the threat or use of nuclear weapons and nuclear disarmament).
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power of the Court, to act upon a request for advisory opinion in the history of the
International Court of Justice. 19
Object of the request: Key points
■ The question put to the Court must be legal in nature.
■ The question must be directly related to the activities of the requesting organization and must refer to
issues falling within its sphere of competence or speciality.
■ The fact that the question may have political dimensions, or is abstract or unclear, does not, in principle,
suffice for the Court to decline to give an opinion.
■ The Court may reformulate or interpret the question, as it may deem appropriate, for the purposes of
rendering its opinion.
38. In recent cases, the Court has not accepted as compelling reason any of the arguments
raised in support of the view that the Court should decline to give an advisory opinion. The
Court dismissed, for instance, arguments concerning the motives behind the request; the
vague or abstract nature of the question asked; and the fact that the opinion might
adversely affect ongoing negotiations, could impede a negotiated solution, or would lack
any useful purpose. In this respect, the Court has made clear that it is for the organ that
requests the opinion, and not for the Court, to determine whether it needs the opinion for
the proper performance of its functions (Wall, 2004, para. 62; Kosovo, 2010, para. 34).
A.3. Participation of international employers’ and
workers’ organizations in advisory proceedings
39. The question whether the social partners could participate in the advisory proceedings has
been central to the debate about the possible referral of a dispute regarding the
interpretation of a Convention to the International Court of Justice. 20
40. The uncertainty stems from article 66(2) of the Statute of the Court, which provides that
“the Registrar shall ... notify any State entitled to appear before the Court or international
organization considered by the Court ... as likely to be able to furnish information on the
question, that the Court will be prepared to receive ... written statements, or to hear ... oral
statements relating to the question”. Indeed, the term “international organization” under
this article of the Statute has been applied by the Court narrowly with the principal aim of
excluding the participation of non-governmental organizations. In the context of the
advisory proceedings concerning the Legality of the Threat or Use of Nuclear Weapons,
19 The PCIJ did it only once, in view of “the very particular circumstances of the case, among which
were that the question directly concerned an already existing dispute, one of the States parties to
which was neither a party to the Statute of the Permanent Court nor a Member of the League of
Nations, objected to the proceedings, and refused to take part in any way (Status of Eastern Carelia,
PCIJ, Series B, No. 5)” (Nuclear Weapons/UN, 1996, para. 14).
20 In 1993, an Office paper on the interpretation of international labour Conventions noted that
“there is probably good reason to consider that it is even more important, in order to ensure that the
specificity of the Organisation and of international labour Conventions is taken adequately into
account at the Court, to ensure appropriate access for the social partners to enable them to assert
their interests and intentions, than to be concerned with the methods and principles of interpretation
that may be applied at the Court”; see GB.256/SC/2/2, para. 48. The same document indicated,
however, that “it is unclear whether, in the current context of the Statute of the International Court
of Justice the term ‘international organization’ could continue to be given such a wide interpretation
as to enable international employers’ and workers’ organizations to be consulted and heard directly”
(ibid., para. 42).
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the Court received a high number of unsolicited submissions from non-governmental
organizations, and as a result it adopted in 2004 Practice Direction XII, which suggests that
the terms “international organization” and “intergovernmental organization” are
co-extensive. 21
41. However, it is unlikely that the Court applies the same narrow interpretation of the term
“international organization” in relation to the possible participation of international
employers’ and workers’ organizations in advisory proceedings initiated by the ILO. In
fact, there are good reasons to believe that the Court may decide to invite a limited number
of international employers’ and workers’ organizations to participate autonomously in such
proceedings.
42. First, as a matter of established practice, numerous international employers’ and workers’
organizations were permitted to submit information in relation to advisory proceedings
concerning the ILO at the time of the League of Nations. In fact, article 66(2) of the Statute
reproduces article 73 of the Revised Rules of the Permanent Court of International Justice
– the precursor to the International Court of Justice. The Permanent Court allowed
employers’ and workers’ organizations to participate in advisory proceedings concerning
the ILO in the period 1922–32. 22 As the Court’s President Loder put it at the time,
“practice had created a precedent of admitting great industrial organizations, whether of
workers or of employers, which would be difficult to exclude owing to their very great
21 Practice Direction XII further provides that “where an international non-governmental
organization submits a written statement and/or document in an advisory opinion case on its own
initiative, such statement and/or document is not to be considered as part of the case file. … Written
statements and/or documents submitted by international non-governmental organizations will be
placed in a designated location in the Peace Palace. All States as well as intergovernmental
organizations presenting written or oral statements under article 66 of the Statute will be informed
as to the location where statements and/or documents submitted by international non-governmental
organizations may be consulted”. It has been suggested, however, that a recourse to the travaux
préparatoires of articles 66 and 67 of the Statute leads to the conclusion that the omission of the
word “public” in these provisions was deliberate, and was designed to include also nongovernmental
international organizations among the entities that could have access to the Court in
advisory proceedings and furnish information if the Court so wishes. See E. Jiménez de Aréchaga,
“The participation of international organizations in advisory proceedings before the International
Court of Justice”, in Communicazioni e Studi (1975, Vol. 14), p. 419.
22 In 1922, in the advisory proceedings concerning the Designation of the Workers’ Delegate for the
Netherlands at the Third Session of the International Labour Conference, the Court invited the
International Association for the Legal Protection of Workers, the International Federation of
Christian Trade Unions, and the International Federation of Trade Unions. In the advisory
proceedings relating to the Competence of the ILO in regard to International Regulation of the
Conditions of the Labour of Persons Employed in Agriculture, the Court invited the following six
organizations to participate: the International Federation of Agricultural Trade Unions, the
International League of Agricultural Associations, the International Federation of Christian Trade
Unions of Landworkers, the International Federation of Landworkers, the International Federation
of Trade Unions, and the International Association for the Legal Protection of Workers. In the 1926
advisory proceedings on the Competence of the International Labour Organization to Regulate
Incidentally the Personal Work of the Employer, three organizations were permitted to participate:
the International Organization of Industrial Employers, the International Federation of Trade Unions
and the International Confederation of Christian Trade Unions. It is indicative that the third annual
report of the PCIJ, published in 1927, contains a list of the international organizations permitted to
submit information to the Court under article 73 that consists almost entirely of international trade
unions; cited in D. Shilton, “The participation of non-governmental organizations in international
judicial proceedings”, in American Journal of international Law (1994, Vol. 88), p. 623.
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importance, although admittedly these great organizations were at any rate indirectly
recognized as constituting elements of the ILO”. 23
43. Second, recent case law supports the view that the Court is prepared to open up its
advisory proceedings to actors – other than States and international intergovernmental
organizations – every time the participation of such actors is substantively and
procedurally essential considering the concrete context of the case, in light of
considerations of fairness and justice, but also bearing in mind the need to obtain the
fullest information possible.
44. In 2003, for instance, the United Nations General Assembly asked the International Court
of Justice to give an advisory opinion on the consequences of the construction by Israel of
a wall in the Occupied Palestinian Territory. In authorizing Palestine to submit a written
statement and to take part in the hearings, the Court took into account, among other
considerations, “the fact that [Palestine] is co-sponsor of the draft resolution requesting the
advisory opinion” (Wall, 2004, para. 4). Similarly, in 2007, when the General Assembly
requested the Court to give an advisory opinion on whether the unilateral declaration of
independence by the provisional institutions of self-government of Kosovo was in
accordance with international law, the Court decided to invite the authors of the
declaration to participate in the written and oral proceedings “taking into account the fact
that the unilateral declaration of independence by the Provisional Institutions of Self-
Government of Kosovo of 17 February 2008 is the subject of the question submitted to the
Court for an advisory opinion [and therefore] the authors of the above declaration are
considered likely to be able to furnish information on the question” (Kosovo, 2010,
para. 3).
45. The same case law seems to confirm that the Court is open to the participation of entities
that are directly interested in a dispute and likely to be affected by the outcome of the
proceedings; they are also likely to provide information that may not be available to the
Court otherwise. 24
46. In any event, it is now widely recognized that the Court adopts a pragmatic approach so as
to ensure that all interests at stake can be expressed, and shows a certain flexibility to hear
actors other than States. 25 It is also commonly admitted that in the case of the ILO, the
23 Cited in Y. Ronen, “Participation of non-State actors in ICJ proceedings”, in The Law and
Practice of International Courts and Tribunals (2012), p. 88. It has been suggested that the reason
for this “preferential” treatment of the ILO may have been the specific provision in the ILO
Constitution designating the Court as a dispute settlement forum with respect to complaints of nonobservance
of ILO Conventions and their interpretation – “a special invitation to the Court to take
up requests for advisory opinions. If the Court wished to respond to this invitation affirmatively and
fulfil the role assigned to it in a persuasive manner, it could not disregard the modus operandi of the
ILO” (ibid., p. 93).
24 It is important to note, in this respect, that in the hearings of the Wall and Kosovo proceedings, the
representatives of Palestine and the authors of the declaration of independence of Kosovo were
listed first and second respectively in the list of speakers and were allocated three hours for their
oral statements, i.e. four times more than other participants.
25 See, for instance, Pierre-Olivier Savoie, “La CIJ, l’avis consultatif et la fonction judiciaire: entre
décision et consultation”, in Canadian Yearbook of International Law (2004), p. 71. In the words of
another commentator, “at least in cases in which non-governmental organizations enjoy
international legal rights and duties – from employers’ and employees’ organizations in the ILO
Statute to the ICRC in international humanitarian law – the Court may consider allowing those
organizations to furnish information”; see Andreas Paulus, “Article 66”, in A. Zimmermann,
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potential for participation of non-state actors in advisory opinions on the basis of prior
practice is particularly pronounced, as industrial organizations are represented within the
ILO’s tripartite structure and may therefore be regarded as constituting elements of the
Organization. 26
47. Finally, it should be noted that, irrespective of whether the Court would grant permission
to any international employers’ and workers’ organizations to participate autonomously in
the proceedings, the Office could include in the dossier to be submitted together with the
request any briefs, position papers or other documents that the Employers’ and Workers’
groups might wish to bring to the knowledge of the Court. In any event, failing direct
invitation by the Court, nothing prevents employers’ and workers’ organizations from
submitting their views as uninvited briefs. Moreover, it cannot be excluded that, in
preparing their written statements, some member States may consult national employers’
and workers’ organizations and properly reflect their views as part of the information
communicated to the Court.
A.4. Current situation: Drafting the question
48. In formulating the question that the Governing Body might decide to ask the Court in
connection with the current dispute on the right to strike and the mandate of the Committee
of Experts, it would be important to take into account the following parameters: (a) the
question needs to capture all the different aspects of the ongoing controversy for which
legal advice is sought; (b) it must give expression in a direct and concise manner to the
differing views expressed; (c) it must be clearly worded so as to limit the need for the
Court to engage in its own interpretation of the question; and (d) it should be susceptible of
an unequivocal answer that gives immediate, practical guidance to ILO organs as to the
limits of their action in matters covered by the request.
49. There are clearly two questions that dominate the relevant discussions: (1) the substantive
question as to whether the Convention concerning Freedom of Association and Protection
of the Right to Organise, 1948 (No. 87), can be interpreted as protecting the right to strike;
and (2) whether the Committee of Experts’ mandate gives it the authority to make such
interpretations and, if so, whether such interpretations can go beyond general principles by
specifying certain details regarding the application of the principle. It would appear that
both of those questions need to be answered to settle the current dispute and create the
legal certainty necessary for the supervisory system to fully function again. It also appears
appropriate to formulate the two following questions separately:
(1) Is the right to strike of workers and their organizations protected under the Freedom
of Association and Protection of the Right to Organise Convention, 1948 (No. 87)?
(2) Was the Committee of Experts on the Application of Conventions and
Recommendations of the ILO competent to:
(a) determine that the right to strike derives from the Freedom of Association and
Protection of the Right to Organise Convention, 1948 (No. 87); and
(b) in examining the application of that Convention, specify certain elements
concerning the scope of the right to strike, its limits and the conditions for its
legitimate exercise?
C. Tomuschat and K. Oellers-Frahm (eds): The Statute of the International Court of Justice: A
commentary (2006), pp. 1435, 1440.
26 See Ronen, op. cit., pp. 88–89.
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B. Article 37, paragraph 2: Setting up a permanent
in-house tribunal
50. This section aims to outline a concrete structure set up within the Organization for the
expeditious determination of disputes or questions relating to the interpretation of ILO
Conventions. To this effect, the Office drew upon earlier discussions and consultations on
the subject, 27 and undertook a comprehensive review of the structure of major
international courts and tribunals in operation. 28
51. The following paragraphs provide a commentary to the draft Statute of a tribunal
established in accordance with article 37(2) of the Constitution and describe the elements
necessary for the operation of an independent tribunal that enjoys the support of the
tripartite ILO constituency and adequately reflects the specificities of ILO Conventions.
Combining expeditiousness and cost-efficiency, the tribunal is designed as a readily
available on-call body that may be activated only when a question or dispute is referred to
it.
52. The Statute would first need to be examined and agreed upon by the Governing Body
before being submitted to the Conference for approval. The same procedure would apply
to any amendment to the Statute. Given that this procedure derives from the text of
article 37(2), it is not deemed necessary to include specific provisions in the Statute
regarding amendments.
53. In view of the time needed for an in-depth examination of the draft Statute – should the
Governing Body decide to pursue its consideration of the possible establishment of a
tribunal under article 37, paragraph 2, of the Constitution – it could appoint a working
party to prepare recommendations, on the basis of the proposed draft Statute, to be
submitted to the Governing Body at a future session. Such a working party could be
composed of eight members from each group and hold three two-day meetings (for
instance, in January, March and June 2015). 29
B.1. The tribunal
B.1.1. Establishment
54. The tribunal would be established under the authority provided by article 37(2) of the ILO
Constitution. It is proposed that its seat be the International Labour Office in Geneva. This
27 See, in particular, GB.256/SC/2/2, GB.256/PV(Rev.); Non-paper on interpretation of
international labour Conventions (February 2010); Informal exploratory paper on interpretation of
international labour Conventions (October 2010). Copies of these documents are at
https://www.ilo.org/public/english/bureau/leg/art37.htm.
28 The statutes and rules of procedure of the following courts and tribunals were consulted:
International Court of Justice; International Tribunal for the Law of the Sea; International Criminal
Court; International Criminal Tribunal for Rwanda; International Criminal Tribunal for the former
Yugoslavia; Inter-American Court of Human Rights; European Court of Human Rights; African
Court on Human and People’s Rights; ILO Administrative Tribunal. Other relevant documents
included the World Intellectual Property Organization Arbitration and Expedited Arbitration Rules,
the Agreement establishing the World Trade Organization (WTO), the WTO Understanding on
Rules and Procedures Governing the Settlement of Disputes, and the UNCITRAL Arbitration Rules.
29 The estimated cost assuming that two of its meetings would take place on the margins of the
323rd and 324th Sessions of the Governing Body (March and June 2015) would be approximately
157,600 Swiss francs (CHF).
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would both minimize operation costs and facilitate the protection of the tribunal’s status
and necessary immunities, including the inviolability of its archives.
B.1.2. Competence
55. As set out in article 37(2), the tribunal would be competent to determine any question or
dispute relating to the interpretation of an ILO Convention referred to it by the Governing
Body or in accordance with the terms of the Convention. 30 To date, no international labour
Convention provides for such referral but consideration could be given to drafting an
appropriate standard clause to be included in future instruments in case an article 37(2)
tribunal is established.
56. Referral of an interpretation dispute or question to the tribunal should not be viewed as a
precondition to the submission of a request for an advisory opinion to the International
Court of Justice. Both mechanisms would be available to address questions and disputes,
the choice depending on the nature and importance of the subject matter. While the
Organization should opt for the International Court of Justice to address a broader variety
of legal matters, including matters of a constitutional nature, the in-house tribunal, once
established, would afford a more technically specialized mechanism tailored to the
expeditious determination of specific, and possibly less sensitive, interpretation requests.
57. It has been long argued that ILO Conventions have specificities that should be borne in
mind in an interpretation exercise. The question has also been raised whether the general
rules of treaty interpretation, as embodied in the Vienna Convention on the Law of
Treaties, 1969, meet entirely the special features of international labour Conventions, and
in particular the unique role of employers’ and workers’ organizations in the adoption
process. In this regard, it should be recalled that Article 5 of the Vienna Convention
recognizes that the rules of the Convention apply “to any treaty adopted within an
international organization without prejudice to any relevant rules of the organization”. The
proposed Statute thus requires the tribunal to bear in mind the specificities of ILO
Conventions as international treaties. This acknowledges the importance of giving full
consideration to the tripartite process followed for the adoption of international labour
Conventions.
B.1.3. Composition
58. In order to ensure a suitable composition for the tribunal, the draft Statute sets out a
number of requisites for judges based on common requirements found in the statutes of
other international courts and tribunals. First, the elementary qualities required of any
adjudicator: high moral character and independence. Second, sufficient professional
qualifications such as those required for appointment to high judicial offices or necessary
to be considered a jurist of recognized competence. Third, adequate competence on the
subject matter, in particular, demonstrated expertise in labour law and international law.
Fourth, fluency in one of the official languages of the tribunal (English, French and
Spanish) and passive knowledge of another official language.
59. As is the case in most tribunals and with a view to facilitating decision-making, questions
or disputes referred to the tribunal would need to be examined by an odd number of judges.
While three judges would be the minimum necessary, a larger odd number, such as five,
would seem advisable given the authority required to determine the interpretation of an
ILO Convention, which may have been the subject of long-standing comments by
supervisory bodies or of widely differing views by constituents. Furthermore, as it may
30 The terms “question” and “dispute” are used interchangeably to cover any interpretation issue that
might be the subject of a request referred to the tribunal.
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happen that the tribunal remains inactive for a certain period of time, it cannot be expected
that all judges will be immediately available at any given time to participate in full-time
proceedings at short notice. Consequently, it would be advisable to appoint a larger
number of judges to be able to draw from whenever a referral is made by the Governing
Body.
60. It is therefore proposed that 12 judges be appointed to the tribunal and that each request for
interpretation be handled through a smaller panel of five judges. This structure would
provide several advantages. First, a five-member panel and the diversity it encompasses
would endow the tribunal with adequate authority, greater than that of three adjudicators.
Second, a group of five judges would still be small enough so that it would not entail large
costs nor undue complexities, in particular given that the tribunal would only be in session
if a referral were made to it and its members would need to be rapidly engaged and
deliberate efficiently. Third, bearing in mind the on-call nature of the tribunal, the
availability of seven additional judges would facilitate the swift constitution of a panel, and
any replacements needed during the process. Having a larger number of judges appointed
would not entail any additional cost to the Organization. Moreover, it would ensure the
expeditious and continued operation of the tribunal, which would not be compromised nor
delayed should vacancies occur. Fourth, a panel of five judges would allow for a quorum
and minimum majority for awards that combines both practicability for the expeditious
conduct of proceedings and adequate support for final decisions (see Part B.2.8).
61. Finally, it is proposed that its composition demonstrate to the greatest extent possible
gender balance, representation of the principal legal systems and geographical distribution.
It is also suggested that judges should be of different nationalities. These are standard
criteria found in many constitutive texts of existing international courts and tribunals.
B.1.4. Selection and appointment
62. It is foreseen that members of the tribunal be appointed by the International Labour
Conference for a period of six years. This would be consistent with the general principle
that an adequate length of appointment safeguards the independence of adjudicators.
Moreover, it seems both efficient and fully consistent with the nature of an article 37(2)
tribunal. Given its uncertain workload and possible inactivity for prolonged periods, it
would be advisable not to overburden the Conference and the Governing Body with
carrying out the selection and appointment procedure at short intervals.
63. In the proposed Statute, the Officers of the Governing Body are given special
responsibilities concerning the preparation of nomination proposals for the appointment of
members of the tribunal and the constitution of panels. However, other options could be
envisaged, especially with a view to ensuring broader participation of constituents.
64. Under one possible selection and appointment process, the Director-General could be
responsible for submitting to the Officers of the Governing Body a proposed list of
nominations that would ensure: (a) that candidates conform to the qualifications and
expertise requirements; and (b) that the composition of the tribunal reflects to the largest
extent possible the abovementioned criteria of gender balance, representation of legal
systems and geographical distribution. In this connection, the Director-General could
receive suggestions or proposals from any member of the Governing Body and would
consider those suggestions or proposals before communicating the proposed nominations
to the Officers.
65. The Officers of the Governing Body could subsequently assess the proposed nominations
and prepare a proposal for the composition of the tribunal to be submitted to the Governing
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Body. Where necessary, the Officers could seek the assistance of the Director-General in
order to identify additional candidates.
66. The composition proposals of the Officers would need to be approved by the Governing
Body for submission to the Conference. All members of the tribunal would thus enjoy, as
independent judges, the confidence of the three groups.
B.1.5. Panel constitution
67. Promptly after an interpretation dispute or question is referred by the Governing Body to
the tribunal, a five-member panel would be constituted to examine it. In order to determine
the composition of the panel, it is proposed to have a default designation mechanism while
allowing for ad hoc designations in the case of full tripartite consensus.
68. By default, the five judges would be drawn randomly by the Officers of the Governing
Body. To foster rotation, the panel so constituted would not include more than two judges
having served in the previous case, unless this were necessary to constitute a full
five-judge panel (for example, due to the limited availability of judges). This default
mechanism would provide an expeditious and reliable procedure for the constitution of the
panel, and avoid a potentially time-consuming decision as to who might be best placed to
sit in a particular panel. Moreover, the rule preventing more than two repeat judges would
foster rotation while not rendering predictable the composition of the following panel.
69. Nevertheless, the proposed Statute could also allow for flexibility in the designation
mechanism to adapt panel composition where the circumstances would so warrant, subject
to tripartite consensus. This could be achieved by allowing the Officers of the Governing
Body – based on a unanimous decision – to depart from the default mechanism and
designate one or more judges to the panel. It is also provided that this possibility should
not unreasonably delay the expeditious constitution of the panel, so that in the absence of a
swift and unanimous decision from the Officers, the panel would be constituted in
accordance with the default mechanism.
70. Once constituted, the panel would elect its President. The President would have a casting
vote (see Part B.2.8) and could be entrusted with any function necessary for the
expeditious conduct of the proceedings. This could expedite the adoption of procedural
decisions, such as on special requests for participation.
B.1.6. Incompatibility
71. In order to safeguard the judges’ independence and impartiality, exercising the duties of a
judge would not be compatible with being appointed as an ILO official or sitting in any
capacity in another ILO body.
B.1.7. Resignation, withdrawal and removal
72. The proposed Statute acknowledges the different circumstances under which the
composition of the tribunal may need to be altered, drawing on common rules found in
other statutes of international courts and tribunals. Judges may resign at any time by
notifying their decision to the Director-General, who would inform the Governing Body in
order to launch the procedure to fill the vacancy. Judges should withdraw from any case in
which their impartiality might reasonably be doubted for any reason. They should be
removed, temporarily or permanently, as the case may be, if they are unable or unfit to
exercise their functions. Any question relating to the withdrawal or removal of a judge
would be brought forth by the judge concerned or, where necessary, decided by the
tribunal.
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B.1.8. Replacements and vacancies
73. If a judge needs to be replaced after the panel has already been constituted, for example
due to unforeseen circumstances rendering the judge unfit to perform their duties, the
replacement method would be the same with that used to constitute the panel. Similarly,
the procedure to fill vacancies would be the same one used for the appointment of judges,
the duration of appointment being limited to the remainder of the term.
B.1.9. Status
74. Just like members of other special ILO bodies, such as commissions of inquiry, the
members of the tribunal would be deemed experts entrusted with a special mission by the
Organization, that is the settlement of disputes relating to the interpretation of ILO
Conventions. This entails the enjoyment of certain privileges and immunities necessary for
the effective exercise of their functions, provided for in Annex I to the Convention on the
Privileges and Immunities of the Specialized Agencies. These include, most importantly,
the immunity from legal process in respect of words spoken or written, or acts committed,
in the performance of their official functions.
B.1.10. Honoraria
75. As is customary in other international courts, provision is made for the payment of
compensation for the performance of duties by judges, as well as travel and subsistence
expenses for their official meetings. The Governing Body would be granted the authority
to approve the rate of such compensation and to update that rate as necessary. The
applicable amounts would be reproduced as an annex to the Statute (see Part B.3). Bearing
in mind the stand-by nature of the proposed tribunal, the underlying principle is that
honoraria would be provided only for the eventual participation of judges in a panel. There
would be no honoraria linked to the mere appointment of judges, which of course limits
the cost implications of the tribunal.
B.1.11. Administrative arrangements
76. The Director-General would be responsible for making administrative arrangements
necessary for the operation of the tribunal. Taking into account the fact that the tribunal
would only be in session when a dispute or question is referred to it, and in order to avoid
fixed costs, it is proposed that no permanent registry should be envisaged. The proposed
Statute does not presuppose the existence of any fixed administrative framework, nor the
appointment of a registrar, and thus affords the flexibility for the tribunal to operate with
minimal cost implications. No provision is made, therefore, for permanent appointments or
for new posts related to the functioning of the tribunal.
77. Instead, a number of alternative options can be considered to ensure adequate support for
the tribunal’s work. For instance, similar to what occurs for commissions of inquiry, ILO
staff could be detached as necessary for the provision of any secretarial assistance to the
tribunal (for example administrative staff for the support that the tribunal may require). As
the tribunal would most likely only hear one case at a time, it may suffice at first to detach,
on a part-time basis, one P staff and one G staff member for the duration of the
proceedings. Alternatively, external recruitment of the necessary support staff could be
envisaged for the duration of the proceedings. In order to maximize cost-efficiency, it is
proposed to provide all support necessary through the part-time detachment of staff
members. Considering that tribunal cases could have an estimated maximum duration of
six months, this would entail no more than three work-months of a G staff and a P staff
member (see Part B.3).
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78. The proposed Statute also acknowledges that a number of administrative arrangements
could be set up to enhance the expeditious and cost-effective operation of the tribunal, in
particular through IT means, enabling electronic communications and performance of
certain duties remotely by judges. This could include the use of an online electronic
platform for efficient transmission of notifications and communications to participants. In
this regard, to promote expeditiousness and reduce costs, the tribunal could decide that,
unless otherwise requested by the participants, documents be submitted and made available
to them in electronic form. Similarly, the use of technological means could allow the
members of the tribunal to communicate and perform certain of their tasks remotely, thus
limiting the duration and cost implications of their meetings in Geneva.
B.2. Procedure
79. The proposed Statute sets out a procedure that combines the need to ensure tripartite access
to the tribunal and the objectives of expeditious settlement and reasonable cost. It also
seeks to afford a degree of flexibility to adapt, where necessary, the tribunal’s operation to
the specific circumstances of the question or dispute referred to it.
B.2.1. Initiation of proceedings
80. While the tribunal is designed to be permanently available to receive and examine an
interpretation request, it would only be in session when a question or dispute is referred to
it by the Governing Body. Judges would not be expected to carry out any duties, and the
tribunal would not be functioning until a panel is constituted to hear a case.
81. Under article 37(2) of the Constitution, the referral of interpretation-related questions or
disputes to the tribunal is a prerogative of the Governing Body. Therefore the Statute does
not attempt to define how the Governing Body might assess the appropriateness of
referring a particular matter to the tribunal. In assessing whether to make an interpretation
request, the Governing Body may consider all practical, legal and political circumstances it
deems pertinent, such as whether the matter has already been the subject of comments by
an ILO organ or by another body; the nature of the interpretative question or dispute and
its implications, including in relation to the ILO supervisory system; whether any requests
for clarification have been made and by whom; and the usefulness of obtaining an
authoritative interpretation.
82. The proposed Statute does not regulate either how the consideration of a question or
dispute could be brought before the Governing Body. It would be difficult to anticipate all
possible scenarios, while the Standing Orders of the Governing Body already provide for
an adequate tripartite framework, in particular through the screening group. 31 Several
courses of action can, nevertheless, be envisaged as to how a question or a dispute might
be brought before the Governing Body for possible submission to the tribunal. For
example, the ILO supervisory bodies, in particular the Committee of Experts on the
Application of Conventions and Recommendations or the Conference Committee on the
Application of Conventions and Recommendations, may in their respective reports express
the view that the Governing Body should refer a specific matter to the tribunal.
Consideration of an interpretation issue could also be included in a session of the
Governing Body by the screening group, whose mandate to draw up the agenda of the
Governing Body would allow the matter to be introduced whenever it was deemed
suitable. Moreover, the Governing Body itself could decide to include in its agenda an item
on a possible referral to the tribunal. Furthermore, in case of urgency, the existing rules
31 See section 3.1 of the Standing Orders of the Governing Body and paragraphs 28 to 34 of the
Introductory note to the Compendium of Rules applicable to the Governing Body.
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allow the Officers, following consultations with the other members of the screening group,
to include in the agenda of the Governing Body matters of urgent importance that may
arise either between or during sessions. In short, existing procedures applicable to
Governing Body agenda setting provide an adequate and comprehensive framework, which
safeguards the discretionary power of the Governing Body and its flexibility in considering
requests for interpretation.
83. When referring a request for interpretation, the Governing Body should agree on the
question to be communicated to the tribunal. The accompanying documents would be
provided to it by the Director-General.
B.2.2. Participation in proceedings
84. In keeping with the ILO’s tripartite structure, the tribunal proceedings need to allow for
full tripartite participation. It is proposed that participation rights be granted to the
governments of all member States of the ILO, to Employer and Worker members of the
Governing Body and to organizations enjoying general consultative status. 32 The tribunal
or the Governing Body could also invite other organizations or persons to participate in the
proceedings. For example, in a case where the request for interpretation concerns a
technical or sectoral matter, the Governing Body could provide for the participation of the
international employers’ and workers’ organizations directly concerned. The Governing
Body could also transmit invitations to international organizations, such as the United
Nations, specialized agencies, or regional organizations, having an interest in the matter
referred to the tribunal. Where appropriate, the Governing Body could consider granting
standing invitations to certain organizations. 33
85. In addition, similarly to the statutes of other courts allowing for interested parties to
request participation, it is proposed that international intergovernmental or nongovernmental
organizations, in particular employers’ and workers’ organizations, having
an interest in the question or dispute should be allowed to submit a request to the tribunal
to participate in the proceedings. It is also proposed to ensure flexibility by affording the
tribunal sufficient discretion to decide on whether to grant such participation, and to fix the
relevant conditions. The tribunal could, for instance, allow and set the conditions for the
submission of amicus curiae briefs. Finally, the proposed Statute also acknowledges that
participation may be exercised collectively. This could contribute to the expeditious
determination of the interpretation request.
B.2.3. Conduct of proceedings
86. The draft Statute seeks to ensure the expeditiousness of the proceedings by means of two
types of provisions: first, provisions on general time limits, which would apply
automatically so that judges do not need to take administrative or procedural decisions; and
second, provisions calling upon the tribunal to make orders for the expeditious conduct of
the proceedings, including with regard to the form and volume of written submissions or
the length of oral presentations. Time could also be gained through the extensive use of IT
means, for example the posting of all procedural notifications and communications on a
dedicated web page.
87. Based on a comparative analysis of the time schedule provided for under the statutes of
other courts and tribunals, it could be reasonably expected that proceedings not exceed six
32 See Compendium of Rules applicable to the Governing Body, Annex V.
33 For example, relevant public international organizations, or non-governmental international
organizations enjoying regional consultative status or included in the Special List.
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months from the date the Governing Body submits a formal request for interpretation to
the date the tribunal delivers its award. 34 This is the default time frame foreseen in the
proposed Statute. If a specific question or dispute required a different time frame, for
instance in the light of the complexity of the subject matter, or proceedings were delayed,
for instance due to the withdrawal or replacement of one or several judges, it should be
possible for the Governing Body or the tribunal to adapt time limits accordingly.
88. It is proposed that the official languages of the tribunal be the official languages of the ILO
– English, French and Spanish. Written and oral submissions may be made in any of the
official languages. Simultaneous interpretation in the three official languages would be
provided during the oral hearings.
89. The proposed Statute is sufficient for the tribunal to be fully operational. However, it is
likely that, once in operation, the members of the tribunal may wish to further regulate its
functioning and procedure in the form of more detailed rules. It is proposed, therefore, that
the Statute should provide for the possible adoption of rules of procedure. These would
draw upon suggestions by the judges and practical experience. The adoption of rules of
procedure, a common practice in most international courts and tribunals, would allow the
Statute to be complemented with respect to the detailed aspects of procedure or
organization of the tribunal, without the need to formally amend the Statute and go through
the approval of the Conference.
B.2.4. Phases of proceedings
90. Most statutes of international courts and tribunals provide for both written and oral phases.
Although an oral phase could increase the length and cost of the proceedings, the views
expressed during earlier discussions have emphasized the need to ensure the adversarial
character of the proceedings and thus hold oral hearings. However, in some instances, the
exchange of written statements may provide sufficient opportunity for a comprehensive
debate, as all participants would have access to the submissions of others and would have
the opportunity to make comments. It is suggested, therefore, that the procedure should
consist of written proceedings followed by oral hearings, unless the tribunal were to decide
otherwise (for example, if it deemed that the latter would not provide a useful contribution
to the examination of the case).
B.2.5. Notification and written proceedings
91. As a general principle, the draft Statute provides that requests for interpretation should be
notified to all participants entitled to take part in the proceedings. Notification would allow
to ensure that all participants are aware of the opening of the proceedings and, if the
tribunal so decides, of the time limit to submit written statements. In the absence of a
specific time limit, the Statute provides for a default time limit of 45 days.
92. In order to ensure an effective exchange of arguments and thus enhance the adversarial
character of the procedure before the tribunal, the proposed Statute further provides that
upon the expiry of the period to submit written statements, the submissions received shall
be made available. In accordance with the suggested rule on publicity (see Part B.2.7)
submissions will normally be made available to the public, unless the tribunal decides
otherwise, for example to limit access to other participants only, if special circumstances
34 For example, under the WTO Dispute Settlement Understanding, Annex II, the panel must issue
its reports within six months (article 12.8) and the appellate body must circulate its report within 60
days (article 17.5). The WIPO Expedited Arbitration Rules provide that the final award must be
made within four months (article 58), while under the ICC Arbitration Rules the final award must be
rendered within six months (article 30).
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so warrant. Participants having presented written statements would thus be permitted to
comment on the statements of others within the time limits decided by the tribunal. Again,
should the tribunal deem it unnecessary to specify a different time limit, the proposed
Statute provides for a default time limit of 30 days.
B.2.6. Oral proceedings
93. As noted above, the draft Statute proposes to offer the possibility of holding hearings,
unless the tribunal decides otherwise. Should it decide to hold hearings, the tribunal would
fix the dates and form of such proceedings. The draft Statute provides for a default time
frame of five days. This appears to be sufficient to hear the views of all participants
authorized to take part in the proceedings and of such other persons as the tribunal may
decide to hear (such as experts or other persons who may provide a valuable contribution
to the tribunal’s expeditious determination).
B.2.7. Publicity
94. The proposed Statute recalls the public nature of the proceedings. Unless the tribunal
decided otherwise for specific reasons, documents deposited with the tribunal would be
accessible to the public and hearings would be public. This would be consistent with the
rules of other courts and tribunals. Such presumption of publicity is also reflected in the
provision on making available the submissions received by the tribunal.
B.2.8. Adoption of decisions, quorum, effect of tribunal’s award
95. A balance is sought between promoting the efficient operation of the tribunal and ensuring
that its awards reflect broad agreement among judges to sustain their authority. The Statute
thus proposes a quorum of three judges. This applies to any decision relating to the
proceedings as well as to the award. All questions would be decided by a majority of the
judges present and the President or replacing member would have a casting vote in the
event of equality of votes. This approach follows the practice of numerous courts. As to the
tribunal’s award, it is proposed to require the concurrence of at least three judges.
96. Awards of the tribunal, including any interpretation of specific provisions of an ILO
Convention and other judicial pronouncements made in the context of determining the
dispute referred to it, would be binding which means that they would be opposable to all,
only subject to any relevant judgment or advisory opinion of the International Court of
Justice. 35 Moreover, as a corollary to the authoritative nature of awards, the proposed
Statute requires all ILO organs to give effect to the interpretations provided by the tribunal.
97. As provided for in article 37(2), the tribunal’s award would need to be circulated to the
Members of the ILO and any observations that they might make thereon would need to be
brought before the Conference. This constitutional requirement is closely linked to the
binding nature of the award, allowing member States to provide their views and the
Conference to consider any follow-up action it deems appropriate (for example, through a
35 As reflected in the travaux préparatoires, the Tripartite Conference Delegation on Constitutional
Questions that discussed article 37(2) in 1946 stressed the need for uniformity of interpretation and
expressed the view that any award of the tribunal should be binding on all member States. During
these discussions, Wilfred Jenks, confirming similar observations made by the constituents, noted
that “uniform interpretations were needed, binding on all countries”; see Official Bulletin (1946,
Vol. XXVII, No. 3), p. 768. When the question was raised that the proposed amendment to the
Constitution did not specify that the awards would be binding, the Chairperson responded that this
“would be provided by the rules laid down by the Governing Body”; see ibid., p. 771.
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discussion as to whether standard-setting action would be necessary as a result of an
award).
98. Consistent with the spirit of article 37(2), no right of appeal is provided for in the draft
Statute, as this would run counter to the expeditious settlement of a question or dispute.
However, nothing would prevent the same question or dispute from being submitted to the
International Court of Justice.
B.3. Costs
99. Under the proposed configuration of the tribunal, the costs would be kept fairly low. While
members of the tribunal would be appointed for a renewable term of six years, they would
not receive any honoraria unless selected to sit on a panel. Similarly, support and registry
services would be solicited only when needed. Once an interpretation request is referred by
the Governing Body to the tribunal, two financial questions would need to be addressed.
100. The first question relates to the payment of appropriate compensation to judges. The
Governing Body would need to approve an honorarium amount, which could be calculated
either on the basis of time spent or as a lump sum per case. The judges would also need to
be provided with a subsistence allowance and travel expenses for their meetings. As to
compensation, it is proposed that it be provided on a case-by-case basis. While a
multiplicity of payment methods abound in international tribunals, 36 providing for a fixed
amount on a case-by-case basis allows for a more standardized calculation of the
operational costs of the tribunal. Having assessed the compensation provided by other
international tribunals and similar bodies, 37 and bearing in mind the likely duration of each
case, it is proposed that the amount offered by case, which could be updated as necessary
by the Governing Body, be CHF4,000–7,000 per case. This would entail a predictable and
reasonable cost and retain the symbolic nature of such compensation. 38 As to allowance
and travel expenses for their meetings, it is proposed that judges should receive the same
treatment and should be subject to the same rules applicable to Governing Body members.
An estimate of the minimum cost, based on the working hypothesis of two trips from
different regions for five judges and a total stay of two weeks in Geneva, is given in
table 1.
36 For example, the judges of the ILO Administrative Tribunal receive US$3,000 per decision
drafted and US$750 per decision signed. In the WTO, the Dispute Settlement Body panellists
receive CHF600 per day worked in Geneva and CHF600 per eight hours of preparation work, while
the Appellate Body members receive a monthly retainer fee of CHF9,031 and a monthly
administrative fee of CHF330. The judges of the International Court of Justice, the International
Criminal Tribunal for Rwanda, and the International Criminal Tribunal for the former Yugoslavia
receive a base salary of approximately US$166,000 and a post adjustment.
37 For example, the compensation of CHF4,000 that the members of the Committee of Experts on
the Application of Conventions and Recommendations (CEACR) receive per session serves as a
useful comparison.
38 The compensation of CHF4,000–7,000 is comparable to the amount received by the ILO
Administrative Tribunal judges per decision drafted, the remuneration of the WTO Dispute
Settlement Body panellists for two weeks of work, and the honorarium for the CEACR members.
The compensation is considerably less than the salary of the International Court of Justice judges
and the retainer fee for the WTO Appellate Body members, reflecting the symbolic nature of the
compensation.
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Table 1. Estimated minimum cost per case
Expenses Calculation Amount (CHF)
Compensation CHF4 000–7,000 per judge x five judges 20 000–35 000
Daily subsistence allowance CHF380 per day per judge x 14 days x five judges 26 600
Travel expenses
Africa CHF4 000 per trip x two trips 8 000
Americas CHF4 000 per trip x two trips 8 000
Asia CHF4 000 per trip x two trips 8 000
Europe CHF500 per trip x two trips 1 000
Average of the four regions CHF3 125 per trip x two trips 6 250
Translation costs Three translators x ten days 11 250
Interpretation costs Five days of hearings 35 000
Total per case 124 100–139 100
101. The second financial question concerns administrative costs. As noted above, the aim
would be to minimize and, to the extent possible, absorb them within existing Office
budgetary allocations. It is proposed that the Office support be provided through part-time
detachment of two ILO officials. Assuming that a case would have an average duration of
six months, that one staff member at the P4 level and another at G6 level would be
sufficient to cover the needs, and that the total time spent on a case would not exceed half
of their working hours, the cost for these two positions would not be more than three
working months of each staff member per case. 39 Other operating expenses, such as any
necessary document services, IT infrastructure or archival support, would be absorbed by
the departmental budgets of the relevant ILO services. Finally, it is recalled that the
operation of the tribunal in all three ILO official languages necessarily implies significant
translation and interpretation expenses 40 that most likely could not be covered by existing
budgetary allocations.
Section II. Addressing further outstanding issues in
respect of standards policy and the
supervisory system
102. In addition to discussing the issue of how to address a dispute or question arising in
relation to the interpretation of an ILO Convention, the Governing Body has, at recent
sessions, discussed a number of other items concerning the standards policy and the
supervisory system and asked for a time frame to be proposed for considering them.
39 For the current biennium, the standard cost per work month is US$19,020 for a P4 staff member
and US$13,890 for a G6 staff member.
40 Translation and interpretation costs remain, however, very difficult to estimate as they depend on
several variables, such as the number of submissions received and the linguistic capacities of panel
members.
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A. Designing a Standards Review Mechanism
103. In particular, the Governing Body has given importance to the launching of a Standards
Review Mechanism (SRM). It will be recalled that, at its 312th Session (November 2011),
the Governing Body took a decision in principle to establish such a mechanism as a
component of the standards policy agreed at its 309th Session (November 2010). However,
the Governing Body also asked the Office to hold “further consultations on the modalities
of the SRM with a view to identifying and resolving the concerns in relation to such a
mechanism and to make a proposal to the Governing Body in March 2012 on the options
set out in GB.312/LILS/5, bearing in mind the views expressed by the Governing Body
members under this agenda item”.
104. The Office, as requested, undertook such consultations in order to build the trust and
confidence among the tripartite constituents that would be required if the substantive issues
associated with the SRM were to be effectively addressed.
105. In March 2012, the Governing Body invited the Office “to continue the consultations
already begun, including on the modalities of the Standards Review Mechanism, and to
make a proposal to the Governing Body at its 316th Session (November 2012) on the
options set out in GB.312/LILS/5, bearing in mind the views expressed by the Governing
Body members under this agenda item”.
106. In the course of these discussions, there was consensus that the 2008 ILO Declaration on
Social Justice for a Fair Globalization provided the overarching framework for the
implementation of an ILO standards policy and specifically that an SRM was the means to
give effect to the Declaration’s requirements that the Organization must “promote the
ILO’s standard-setting policy as a cornerstone of ILO activities by enhancing its relevance
to the world of work, and ensure the role of standards as a useful means of achieving the
constitutional objectives of the Organization”.
107. The Governing Body has also agreed that the standards initiative suggested by the
Director-General in his Report to the International Labour Conference in 2013 should be
implemented as a single endeavour, with the SRM as an integral part of it.
108. Nevertheless, the controversies concerning the right to strike and related matters that have
appeared with particular force since the 2012 session of the International Labour
Conference have obstructed progress towards the implementation of the SRM. Up to this
point, the absence of the necessary confidence and understanding between ILO
constituents, which has resulted from these controversies, has not allowed for substantive
action to follow up on the decisions of principle already taken.
109. The question before the Governing Body is therefore how to respect the commitment to the
standards initiative as a single endeavour with the SRM as a key component in
circumstances of continued controversy over the right to strike. Obviously, the difficulty
would be largely or wholly resolved in the event of agreement on the options set out in the
first section of this document. But even without that, the Governing Body may take the
view that progress can in any case be made in respect of the SRM, beginning at its session
in March 2015.
110. Specifically, further work on the design of an SRM, building on the significant discussions
and decisions taken by the Governing Body in 2011, is necessary and could now be
undertaken so that the SRM could become operational as soon as decisions taken in other
areas provide the necessary preconditions for the success of its work.
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111. In this regard, consideration of a time frame for the SRM should properly address not only
the timing of its initiation but also of its completion, not least in the light of the ambitious
and demanding methodology under consideration in 2011.
B. Functioning of the Conference Committee on the
Application of Standards
112. In addition to the question of the SRM, constituents continue to draw attention to the
possible need to further improve some aspects of the work of the Conference Committee
on the Application of Standards. While it may be recalled that decisions on the list of cases
to be considered by the Committee were reached in due time in 2014, even if it was not
possible to adopt conclusions on most of them, interest continues to be expressed in
continued examination of the issues involved, it being recognized that the composition of
the list remains the prerogative of the Workers’ and Employers’ groups.
113. The Governing Body may take the view that it would therefore be useful to reconvene the
tripartite Working Group on the Working Methods of the Committee on the Application of
Standards, which met in the framework of the Governing Body sessions up until
November 2011, but whose work has been discontinued since. This Working Group could
meet as soon as the Governing Body considered convenient and either during or between
Governing Body sessions.
C. Matters related to regular and complaint-based
supervision
114. In the course of discussions on the standards supervisory system since 2012, a number of
ideas have been tabled concerning the appropriate use of articles 22, 23 and 24 of the ILO
Constitution, the routing of reports and representations arising from them to different
organs of the supervisory system, and the proper relationship and division of
responsibilities between them. Some of these ideas have been linked to concerns about the
continually increasing workload facing the supervisory system. In that context, some
attention has been given to the institutional arrangements that have been developed in
some member States on a tripartite basis to facilitate resolution at the national level of
issues that might otherwise be referred directly to the ILO while preserving the right of
access to the supervisory system.
115. These issues were the subject of some discussion in the Governing Body at its
320th Session (March 2014). Nevertheless, the views expressed to date do not indicate
significant convergence of ideas on the matters involved or indeed the utility of giving
further detailed attention to them at this stage, it being apparent that they could involve farreaching
and complex discussions at a time when the Governing Body must already
address a series of demanding standards-related issues.
116. This being the case, the Governing Body would need to provide further concrete guidance
as the basis for a proposal of any time frame for action on this area.
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D. Matters related to the functioning of the
Committee of Experts on the Application of
Conventions and Recommendations
117. The Office has continued to give active attention to the strengthening of its support to the
Committee of Experts on the Application of Conventions and Recommendations, to
enhance the discharge of the Committee’s mandate.
118. At its session in November–December 2013, the Committee of Experts decided to
reconvene at its 2014 session its Subcommittee on Working Methods to discuss its
working methods in the light of the issues which have arisen since 2012. The Office has
prepared an internal working document to facilitate those discussions, based on the
guidance given by the experts. As of 2013, at the request of the Committee of Experts, its
annual session has been extended by one day (to include the last Saturday of the session).
The associated cost has been absorbed within existing resources. At the request of the
Committee, the Office revised the working schedule in order to improve time management,
enabling a better balance between individual examination by the members of the
Committee of the files for which they are responsible and the plenary sittings of the
Committee.
119. The Office has supported the Committee in establishing working parties since 2012 to deal
with a consolidated set of reports concerning specific matters. Through the establishment
of a password protected IT platform, the members of the Committee of Experts have, since
2013, had easy access to all the information and documents relating to reports for which
they are responsible well in advance of the session of the Committee. Since 2012, new
members of the Committee have been invited to in-depth briefings prior to the first session
of the Committee in which they participate and on arrival for their first session. Since
2013, new members have been paired with senior members of the Committee during their
first session. The preparatory work for the filling of vacancies is undertaken in a timely
manner for submission by the Director-General to the Officers of the Governing Body.
120. A proposal has been submitted to the Officers of the Governing Body at the current session
concerning the possibility of increasing by two the number of members of the Committee,
which would, if accepted, increase the composition of the Committee to 22 members. This
increase is in response to the concerns expressed by the Experts themselves regarding their
increasing workload due to the increased ratification levels of ILO Conventions in recent
years, the increased compliance by countries of their reporting obligations and the followup
undertaken by the Committee at the request of the other supervisory bodies of the
Organization, as well as the importance they need to give to ensuring the quality and
coherence of their comments.
121. The Office has also enhanced its support to the experts by revising and preparing new tools
for staff supporting the work of the experts with a view to contributing to greater quality
control and coherence.
122. At the current session of the Governing Body, its Officers will also have before them
proposals for the filling of a number of vacancies in the Committee of Experts. There are
currently three vacancies, one of which has been notified to the Director-General only
recently.
123. The Governing Body will be aware that there has already been considerable discussion by
its Officers in recent months of the most appropriate method of providing
recommendations to the Governing Body on appointments to the Committee. Under
current arrangements, a long and a short list of candidates are presented by the
Director-General to the Officers of the Governing Body and they in turn are called upon to
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report to the Governing Body on their recommendation. Delays have sometimes arisen in
the filling of recent vacancies because it has proven difficult for the Officers to agree on
recommendations in the light of the information presented to them.
124. Further consideration of this matter will be reported by the Officers to the Governing Body
at its current session.
Draft decision
125. The Governing Body may wish to decide on any or all of the following measures:
(a) the adoption of the resolution in Appendix I to the present document
requesting the International Court of Justice to urgently give an advisory
opinion in accordance with article 37, paragraph 1, of the Constitution;
(b) the establishment of a tribunal under article 37, paragraph 2, of the
Constitution and to this end, the appointment of a working party, as set out
in paragraph 53 of the present document, to prepare recommendations, on
the basis of the draft Statute in Appendix II of the present document, to be
submitted to the Governing Body at its 325th Session (November 2015);
(c) action to be taken with respect to the Standards Review Mechanism;
(d) the reactivation of tripartite consultations aimed at resolving outstanding
issues in relation to the functioning of the supervisory system, in particular
with regard to the functioning of the Committee on the Application of
Standards at the 104th Session (2015) of the International Labour
Conference.

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Appendix I
Draft resolution of the ILO Governing Body
The Governing Body,
Conscious that the International Labour Organization is facing a serious institutional
crisis that puts at risk the functioning of the Organization’s supervisory system and has
over the past three years twice prevented the Conference Committee on the Application of
Standards from discharging its responsibilities,
Recalling that at the origin of the deepening controversy lies the decision of one part
of the ILO constituency to challenge the long-standing position of the Committee of
Experts on the Application of Conventions and Recommendations – as expressed in the
2012 General Survey on the fundamental Conventions – that the right to strike is protected
under the Freedom of Association and Protection of the Right to Organise Convention,
1948 (No. 87), and to affirm that in so doing the Committee of Experts has exceeded its
mandate and has improperly engaged in interpretive functions,
Noting that other parts of the ILO constituency maintain to the contrary that the right
to freedom of association is commonly understood to include the right to strike, that
comments to this effect made not only by the Committee of Experts but also by the
tripartite Committee on Freedom of Association remained unchallenged for 40 years, and
that the findings of these supervisory bodies are now largely echoed in judgments of
international human rights courts,
Affirming that the ILO supervisory system that has been in operation for the past
88 years is based on the complementarity of the Committee of Experts and the tripartite
Conference Committee on the Application of Standards and is often regarded as being
among the most effective in the multilateral system,
Mindful of the need for the ILO to continue to have a strong supervisory system
enjoying the support of all parties, and aware that the absence of satisfactory responses to
unresolved issues and persistent concerns would damage the functioning and strength of
the system,
Recognizing the need to receive authoritative legal guidance from the International
Court of Justice as the sole organ that may decide any question or dispute relating to the
interpretation of the Constitution or of an international labour Convention under article 37,
paragraph 1, of the ILO Constitution, and acknowledging the decisive effect of any
advisory opinion so obtained,
Expressing the hope that in view of the ILO’s unique tripartite structure, not only
governments but also international employers’ and workers’ organizations would be
invited to participate directly and on an equal footing in any procedure aimed at clarifying
the current situation,
1. Decides, in accordance with article 96, paragraph 2, of the Charter of the
United Nations, article 37, paragraph 1, of the ILO Constitution, article IX, paragraph 2, of
the Agreement between the United Nations and the ILO, approved by Resolution 50(I) of
the General Assembly of the United Nations on 14 December 1946, and the Resolution
concerning the Procedure for Requests to the International Court of Justice for Advisory
Opinions, adopted by the International Labour Conference on 27 June 1949, to request the
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International Court of Justice to urgently render an advisory opinion on the following
questions:
(1) Is the right to strike of workers and their organizations protected under the Freedom
of Association and Protection of the Right to Organise Convention, 1948 (No. 87)?
(2) Was the Committee of Experts on the Application of Conventions and
Recommendations of the ILO competent to:
(a) determine that the right to strike derives from the Freedom of Association and
Protection of the Right to Organise Convention, 1948 (No. 87), and
(b) in examining the application of that Convention, specify certain elements
concerning the scope of the right to strike, its limits and the conditions for its
legitimate exercise?
2. Instructs the Director-General to:
(a) transmit this resolution to the International Court of Justice, accompanied by all
documents likely to throw light upon the question, in accordance with article 65,
paragraph 2, of the Statute of the Court;
(b) respectfully request the International Court of Justice to allow for the participation in
the advisory proceedings of the employers’ and workers’ organizations enjoying
general consultative status with the ILO;
(c) respectfully request the International Court of Justice to consider possible steps to
accelerate the procedure, in accordance with article 103 of the Rules of the Court, so
as to render an urgent answer to this request;
(d) prepare, after the Court has given its opinion, concrete proposals to give effect to that
opinion;
(e) inform, as required under article IX, paragraph 4, of the 1946 United Nations–ILO
Agreement, the United Nations Economic and Social Council of this request.
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Appendix II
Draft Statute
I. THE TRIBUNAL
ARTICLE 1
Establishment
1. A Tribunal for the expeditious determination of disputes or questions relating to
the interpretation of ILO Conventions is established pursuant to article 37, paragraph 2, of
the ILO Constitution.
2. The seat of the Tribunal shall be the International Labour Office in Geneva,
Switzerland.
ARTICLE 2
Competence
1. The Tribunal shall be competent to determine any question or dispute relating to
the interpretation of an ILO Convention referred to it by the Governing Body or in
accordance with the terms of the Convention.
2. When determining any dispute or question, the Tribunal shall take into account
the specificities of ILO Conventions as international treaties.
ARTICLE 3
Composition
1. The Tribunal shall be composed of a body of judges appointed from among
independent persons of high moral character. They shall possess the qualifications required
for appointment to high judicial offices or shall be jurists of recognized competence, and
shall have demonstrated expertise in labour law and international law. They shall be fluent
in at least one of the official languages of the Tribunal and shall have passive knowledge
of at least another.
2. The Tribunal shall consist of 12 judges and shall sit in a panel of five judges.
3. The Tribunal’s composition shall reflect to the greatest extent possible gender
balance, representation of the principal legal systems, and geographical distribution.
Judges shall be of different nationalities.
ARTICLE 4
Selection and appointment
1. The judges of the Tribunal shall be appointed by the International Labour
Conference for a term of six years, and may be re-appointed.
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2. Candidate nominations meeting the criteria set out in article 3 shall be submitted
by the Director-General to the Officers of the Governing Body. Before submitting the
nominations, the Director-General shall consider any suggestions or proposals made by
any member of the Governing Body.
3. The Officers shall assess the nominations and prepare a proposal for the
composition of the Tribunal. Where necessary, the Officers may request the Director-
General to provide additional candidates.
4. The proposal for composition of the Tribunal shall be approved by the Governing
Body for submission to the International Labour Conference.
ARTICLE 5
Panel constitution
1. A five-judge panel shall be promptly constituted when the Governing Body refers
a question or dispute to the Tribunal.
2. The judges in the panel shall be drawn randomly by the Officers of the
Governing Body or whomever they delegate to. The panel shall not include more than two
judges having served in the previous case, unless necessary to constitute a full five-judge
panel.
3. Notwithstanding the foregoing, the Officers may by unanimous decision
specifically designate one or more judges to the panel. This decision shall not
unreasonably delay the prompt constitution of the panel.
4. Each panel shall elect its President. The panel may delegate to the President any
function necessary for the expeditious conduct of the proceedings.
ARTICLE 6
Incompatibility
Judges may not be appointed as ILO officials or sit in any capacity in another ILO
body.
ARTICLE 7
Resignation, withdrawal and removal
1. A judge may resign at any time by notifying the Director-General, who shall
inform the Governing Body.
2. Judges shall withdraw from any case in which their impartiality might reasonably
be doubted.
3. Judges shall be removed, temporarily or permanently as the case may be, if they
are unable or unfit to exercise their functions.
4. Any question relating to the withdrawal or removal of a judge shall be brought
forth by the judge concerned or decided by the Tribunal.
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ARTICLE 8
Replacements
Any necessary replacements of panel judges shall take place in accordance with the
panel constitution procedure.
ARTICLE 9
Vacancies
Vacancies to the Tribunal shall be filled in accordance with the appointment
procedure. The duration of appointment shall be the remainder of the term.
ARTICLE 10
Status
When performing their duties for the Tribunal, judges shall have the status of experts
on mission enjoying the privileges and immunities provided for in Annex I to the
Convention on the Privileges and Immunities of the Specialized Agencies.
ARTICLE 11
Honoraria
1. Judges shall receive a compensation for the performance of their duties in the
proceedings in which they are engaged, as well as a subsistence allowance and travel
expenses for their official meetings in the seat of the Tribunal.
2. Rates for compensation and travel and subsistence expenses shall be approved by
the Governing Body and annexed to this Statute.
ARTICLE 12
Administrative arrangements
The Director-General shall make any administrative arrangements necessary for the
expeditious operation of the Tribunal, including registry services, the use of technological
means and the possibility for judges to perform certain of their duties remotely.
II. PROCEDURE
ARTICLE 13
Initiation of proceedings
1. The Tribunal shall only be in session when a question or dispute is referred to it.
2. The Governing Body shall refer questions or disputes to the Tribunal by means of
a request for interpretation.
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3. The Director-General shall submit to the Tribunal any documents and other
information relevant to the request for interpretation.
ARTICLE 14
Participation in proceedings
1. Governments of ILO Members, Employer and Worker members of the
Governing Body, and non-governmental international organizations enjoying general
consultative status, as well as any other organizations or persons invited by the Governing
Body or by the Tribunal, shall be entitled to participate in the proceedings. Participation
may be exercised collectively.
2. International organizations or non-governmental international organizations, in
particular employers’ and workers’ organizations, having an interest in the question or
dispute may submit a request to the Tribunal to be permitted to participate in the
proceedings. The Tribunal shall decide on the extent and time limits of this participation.
ARTICLE 15
Conduct of proceedings
1. The Tribunal shall make orders for the expeditious conduct of the proceedings,
including as to the form and time for written and oral submissions.
2. The proceedings shall not exceed six months from the date the Governing Body
submits a request for interpretation to the date the Tribunal circulates its award. Different
time limits may be established when specifically requested by the Governing Body or
otherwise decided by the Tribunal.
3. The Tribunal may, at any stage of the proceedings, call upon the participants to
produce documents or provide other contributions.
4. The official languages of the Tribunal shall be English, French and Spanish.
Written and oral submissions may be made in any of the official languages. The award
shall be given in the three official languages, all three texts being equally authoritative.
5. Subject to the provisions of the present Statute, the Governing Body may adopt
rules of procedure for the Tribunal.
ARTICLE 16
Phases of proceedings
The procedure before the Tribunal shall consist of written proceedings, followed by
oral proceedings unless the Tribunal decides otherwise.
ARTICLE 17
Notification
Requests for interpretation shall be promptly notified to those entitled to participate in
the proceedings pursuant to article 14.1.
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ARTICLE 18
Written proceedings
1. Unless the Tribunal decides otherwise, the initial notification shall include an
invitation to submit written statements within a time limit of 45 days.
2. Submissions received shall be made available upon expiry of the period to submit
written statements.
3. Participants having presented written statements shall be permitted to comment
on the statements of others. Unless the Tribunal decides otherwise, the time limit for
comments shall be of 30 days from the end of the period to submit written statements.
ARTICLE 19
Oral proceedings
1. The Tribunal shall decide whether oral proceedings shall take place and fix the
dates and form. Unless the Tribunal decides otherwise, hearings shall not exceed five days.
2. The oral proceedings shall consist of the hearing by the Tribunal of those
authorized to take part in the proceedings pursuant to article 14, and of such others as the
Tribunal may decide to hear.
ARTICLE 20
Publicity
Unless the Tribunal decides otherwise, hearings shall be public and documents
deposited with the Tribunal shall be accessible to the public.
ARTICLE 21
Adoption of decisions
1. The quorum for adoption of decisions by the Tribunal shall be three judges.
2. All questions shall be decided by majority of the judges present. In the event of
equality of votes, the President shall have a casting vote.
3. The adoption of an award shall require the affirmative vote of three judges.
ARTICLE 22
Award
The Tribunal shall decide a request for interpretation with an award. The award shall
be circulated to the member States and any observations which they make thereon shall be
brought before the Conference.
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ARTICLE 23
Effect
1. The awards of the Tribunal shall be binding and shall be given effect by all ILO
bodies.
2. The foregoing is without prejudice to the provisions of the ILO Constitution, or
to any applicable judgment or advisory opinion of the International Court of Justice, which
shall be binding upon the Tribunal.
Document No. 35
Minutes of the 322nd Session of the Governing Body,
October–November 2014, paras 47–209

GB322_PV-[RELME-150323-1]-En.docx
INTERNATIONAL LABOUR OFFICE
Governing Body
322nd Session, Geneva, 30 October–13 November 2014
GB.322/PV
Minutes of the 322nd Session
of the Governing Body of the
International Labour Office
GB.322/PV
GB322_PV-[RELME-150323-1]-En.docx 17
Fifth item on the agenda
The standards initiative: Follow-up to the 2012 ILC
Committee on the Application of Standards
(GB.322/INS/5, GB.322/INS/5(Add.), GB.322/INS/5(Add.1),
GB.322/INS/5(Add.2) and GB.322/INS/5(Add.3))
47. The Chairperson recalled that a serious institutional crisis was jeopardizing the functioning
of the Organization’s supervisory system and had, over the previous three years, twice
prevented the Conference Committee on the Application of Standards from discharging its
responsibilities. Efforts now had to be made to reach a sustainable solution.
48. The Director-General said that intensive consultations had taken place since the ILC
session in June 2014, in strict accordance with the instructions of the Governing Body in
March 2014. Despite the divided opinions, there was unanimity with regard to the overall
objective of establishing full tripartite consensus on the operation of a strong and
authoritative standards system and to the fundamental importance of that objective to the
successful functioning of the ILO. In the light of the failures of the past two years, the
Governing Body had to demonstrate its capacity to move forward. The current impasse had
already damaged the ILO and its work, and would cause further damage if it continued.
However, since June, although there had been numerous expressions of frustration about
the lack of progress – particularly from governments – there had also been a renewed
commitment to find solutions and recognition of the shared responsibility to do so. The
effort now had to be made to find common ground, through negotiation and compromise,
on the issues, which were of fundamental importance. Pragmatic solutions had to be found
that would allow the integrity of the ILO’s principles to be upheld.
49. The matters addressed in the two sections of the Office document were interrelated and
that added to the difficulty of the task, given the complexity of the issues. However, that
also provided an opportunity to take the broadest possible approach, to find negotiating
space and to accommodate differing views on a wide spectrum of issues rather than
focusing on one part or one set of points. He recalled that at the June 2013 session of the
ILC he had presented the standards initiative covering the issue under discussion as part of
a single endeavour. The Governing Body should use all the opportunities at its disposal
during the session so that agreement could be reached on the course of action to be taken.
To that end, he and his colleagues would be available to work with members informally.
He thanked the many governments that had offered facilities and services to expedite the
process of reaching agreement. The draft decision in paragraph 125 had been left open
deliberately, to offer an opportunity to construct a package of decisions that could form the
basis of agreed solutions
50. The Worker Vice-Chairperson said that his group had reached the inescapable conclusion
that referral of the interpretation dispute to the International Court of Justice (ICJ) for an
advisory opinion, as a matter of urgency, was the necessary way forward if the ILO
supervisory system was to remain relevant and continue to function. The ILO’s supervision
of the application of its Conventions and Recommendations relied on the full support of its
tripartite constituents. However, in 2012 the Employers had challenged the existence of the
right to strike as protected under the Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87), a right that had long been recognized to exist by all
ILO constituents. They had also challenged the authority of the Committee of Experts on
the Application of Conventions and Recommendations (CEACR), and recently had done
so in connection with a number of Conventions other than Convention No. 87 and had
refused to reach consensual conclusions in the cases supervised by the Committee on the
Application of Standards. The drafters of the ILO Constitution had foreseen that disputes
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might arise concerning the interpretation of a Convention, and had therefore made
provision for the referral of such questions to the ICJ for an advisory opinion. Taking
advantage of the legal expertise of the ICJ did not demonstrate a failure of the ILO’s
supervisory system; quite the contrary, the Court was an integral and necessary part of that
system and it was unquestionable that the Court was competent to adjudicate on the matter.
An opinion issued by it would allow the ILO to proceed in an atmosphere of greater legal
certainty. What mattered was that the questions referred to it should be clear, direct and
concise and that the Court should be able to understand the legal problem or problems on
which guidance was sought. International workers’ and employers’ organizations,
including the ITUC and the IOE, would be allowed to participate autonomously in the
proceedings.
51. As for the mandate of the CEACR, the Workers’ group would be open to reformulating the
question set out in paragraph 1(2) of the draft resolution in Appendix I, concerning the
competence of the CEACR. Regarding a dialogue approach, the Workers appreciated the
arguments in favour of further dialogue. They believed in social dialogue, and had
participated in good faith in a series of bipartite and tripartite meetings since May 2012.
However, experience had shown that further discussion would not resolve the current
dispute. It would be valueless for the Governing Body to issue a statement recognizing that
the right to strike existed in national law and practice, since the employers challenged the
international protection of that right under Convention No. 87. There was also no value in
a tripartite meeting related to the modalities of exercising the right to strike at the national
level. Further delay in resolving the question would weaken the ILO’s supervisory system,
perhaps permanently.
52. The proposal to establish a tribunal under article 37(2) of the Constitution could be
explored as a potential long-term solution but would only be acceptable subject to certain
guarantees. The group could agree to the appointment of a working party to prepare
recommendations on that issue.
53. The proposed Standards Review Mechanism would require an atmosphere of trust and
mutual respect between the three groups, which was lacking at present. It was hard to see
how a review would work successfully if one group disagreed with the observations of the
experts on more than one ILO Convention. If the Governing Body decided to refer the
present dispute to the ICJ for an advisory opinion, his group could, however, consider
further discussions on the design of such a mechanism – including on its scope and
modalities. As indicated in paragraph 111, further discussions would be required on the
methodology under consideration in 2011 and possible other options.
54. His group could also agree to the reconvening of the tripartite Working Group on the
Working Methods of the Committee on the Application of Standards. However, the
possibility suggested by the Employers in June 2014 of non-consensual conclusions would,
if applied to cases considered by the Committee, undermine the supervisory system and
legal clarity with detrimental consequences for workers and also governments. It would
also enable one group to veto the application of a Convention or certain of its provisions.
55. With respect to regular and complaint-based supervision, he recalled that no overlaps had
been found in the work of the different supervisory bodies and that his group had
expressed opposition in the past to proposals related to the rebalancing of the system. At
the current stage, it was more urgent to focus on resolving the dispute by agreeing on a
referral to the ICJ and ensuring a proper functioning of the Committee on the Application
of Standards in 2015. The group therefore did not believe that a discussion should be
opened at the current stage on the use of the different supervisory procedures set out in the
Constitution. The group supported the proposal to increase the membership of the CEACR
to 22.
GB.322/PV
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56. Should the Governing Body agree to refer the dispute to the ICJ, his group would be
willing to engage in a dialogue with the other groups on a possible package deal covering
the other issues addressed in the document.
57. The Employer coordinator made a number of proposals on the right to strike issue and on a
broader reform package to demonstrate his group’s efforts to find a solution to the current
impasse and to improve the system.
58. The Employers believed that the right to strike was recognized at the national level in
different national jurisdictions. As a first step, the Governing Body could make a tripartite
declaratory statement recognizing the existence of a right to strike under national law and
practice. The ILO could organize a tripartite meeting of experts in January 2015, to
identify the problems relating to the modalities of exercising the right to strike at the
national level, and evaluate possible areas of future ILO action on the issue, including
standard setting. The meeting could be composed of two Government experts per region
and one Employer and one Worker expert per region, be chaired by an international
personality to be defined by the Officers of the Governing Body, and take place over the
course of a week. It should prepare reports to be submitted for consideration by the
Governing Body in March 2015. That discussion could then be taken up at the ILC in June
2015. While such discussions were in progress, it would not make sense to continue
dealing with right to strike cases, which should be suspended across the supervisory
system. The scenario he was proposing was more efficient time-wise, and was also far
cheaper, more inclusive and more flexible than a referral to the ICJ, which would be a
clear acknowledgment not only that tripartism and social dialogue had failed but also that
social dialogue had not even been given a chance to resolve the dispute.
59. His group considered that if the ICJ decided that Convention No. 87 did include the right
to strike and allowed for the modalities developed by the CEACR, countries that had
ratified the Convention would be obliged to revise their laws and practices accordingly,
which might affect national sovereignty in industrial relations. An ICJ opinion to the
contrary would damage the credibility of the ILO’s supervisory system, by calling into
question the status of the Committee’s observations and reports. Similarly, if the ICJ
decided that the ILO constitutional principle of freedom of association as developed in
Chapter 10 of the Digest of decisions and principles of the Freedom of Association
Committee included the right to strike, then all ILO member States, regardless of
ratification, would be obliged to revise their national laws and practices in compliance,
which might also affect national sovereignty in industrial relations. An opinion to the
contrary would damage the credibility of the ILO’s supervisory system by calling into
question the status of the Digest. In any event, difficult issues would remain, regardless of
the opinion issued by the ICJ, and further discussion would be required by the Governing
Body on the way forward.
60. Referring to the need to focus on a broader reform package, he proposed depoliticizing the
list of cases for the Committee on the Application of Standards by having the CEACR
prepare a draft list of cases according not only to their urgency but also to their distribution
by region and type of Convention, as well as other rules to ensure balance. The Employers’
and Workers’ groups could agree on changes, otherwise the draft list would be submitted
for adoption to the Conference Committee on the Application of Standards in 2015. The
Employers were ready to reach agreement on that proposal.
61. At its next session, the Governing Body should agree on a time frame for launching the
Standards Review Mechanism, as well as its initial work programme and its administrative
and logistical arrangements.
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62. He proposed a tripartite discussion, to be held without delay, on a new informal ad hoc
procedure for settling issues concerning the disputed interpretation of ILO Conventions,
and the expression of divergent views within the ILO supervisory system. Another
tripartite discussion should be held with the CEACR on tackling its increased workload,
including with regard to prioritization. As to the mandate of the CEACR, the group
expected the statement inserted in the report submitted to the 2014 session of the
Conference confirming the non-binding nature of the comments of the CEACR to be
respected. The statement should be faithfully reproduced in all future publications.
63. The Employers were also open to considering other issues on a tripartite basis. It was
hoped that mutual trust could be rebuilt and new impetus given to the Organization
through the revival of social dialogue. The Employers aimed to see the supervisory system
as a whole and to achieve an improvement that would reinforce its credibility, efficiency
and sustainability. Their objective was by no means to undermine or destroy the ILO’s
supervisory system. The desired reforms should strengthen and modernize the
Organization and maintain its relevance to all constituents.
64. Speaking on behalf of GRULAC, a Government representative of Cuba supported the
proposal to refer the question of the interpretation of Convention No. 87 with respect to the
right to strike to the ICJ. He stressed, however, that the three groups of constituents should
be fully involved in the proceedings before the Court. He emphasized that the ICJ should
be informed of the urgency of the matter, that an expedited advisory opinion should be
sought and that that should be done through a resolution in conformity with the rules
applicable to the Governing Body.
65. GRULAC did not support the establishment of a permanent in-house tribunal under
article 37(2) of the Constitution. In that regard, the group would only agree to the
appointment of a working party, as proposed in point (b) of the draft decision in
paragraph 125 of the document, if that working party was created for the purpose of
discussing the implementation of any advisory opinion issued by the Court. It should
comprise 16 Government members, eight Employer members and eight Worker members.
Should such a working party be appointed, and should the Governing Body decide to
pursue the examination of the establishment of a tribunal under article 37(2) of the
Constitution, the matter could also be considered by that working party.
66. GRULAC regretted that the Standards Review Mechanism had yet to be launched and that
no time frame had been presented for the consideration of remaining outstanding issues in
respect of the supervisory system and for launching the Standards Review Mechanism to
the current session of the Governing Body, despite the decision in that regard at the
320th Session. It trusted that progress would be made with respect to the time frame by
March 2015.
67. There was an imperative need to further improve some aspects of the work of the
Conference Committee on the Application of Standards. As for the composition of the list
of cases remaining the prerogative of the Workers’ and Employers’ groups, he reiterated
the views that had been expressed on behalf of GRULAC at the 320th Session of the
Governing Body with respect to document GB.320/LILS/4. 2 With regard to reconvening
the tripartite Working Group on the Working Methods of the Committee on the
Application of Standards, he recalled the decision that any future outcomes from that
working group should be integrated into the work of the Working Party on the Functioning
of the Governing Body and the International Labour Conference (GB.322/WP/GBC/1).
2 GB.320/PV, paras 585–586.
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68. Concerning matters related to regular and complaint-based supervision, GRULAC would
add article 26 of the Constitution and cases submitted to the Committee on the Freedom of
Association to the list mentioned in paragraph 114. He reiterated the group’s concern about
the simultaneous use of different components of the system to consider cases, which could
weaken the functioning of the ILO supervisory bodies. The greatest attention possible had
to be given to that issue, even if it involved far-reaching and complex discussions, and a
time frame for action was necessary.
69. He noted the contents of paragraphs 117–122 and was confident that the CEACR could
enhance the discharge of its mandate through informal dialogue with the Committee on the
Application of Standards, continued meetings with tripartite constituents and informal
discussions with government representatives. Lastly, he noted the information in
paragraph 123 on the filling of vacancies in the CEACR and recalled the decision of March
2014 “ … to propose any adjustments to the relevant procedures to facilitate this
objective”. 3 GRULAC would continue to pay attention to discussions on the issue and
reserve its right to make any further statements it deemed necessary.
70. Speaking on behalf of ASPAG, a Government representative of China reiterated that
dispute resolution was best achieved through tripartite discussions. He considered that
governments had not yet been part of tripartite discussions in the Governing Body or the
ILC. His group was concerned that referral to the ICJ would take the matter outside of ILO
hands and could destroy the good practice of tripartism. ASPAG supported the Employers’
proposal for tripartite discussions to find a long-term solution to the issues surrounding the
right to strike and that should be done by June 2015. Therefore, efforts should be made to
solve the issue internally up to the last minute before turning to the ICJ. His group felt that
the question of whether the right to strike was an international rule or not could be solved
through time-bound tripartite discussions based on consensus.
71. His group did not support the establishment of an in-house tribunal, not least because that
tribunal’s decisions could be challenged, which would create a need to resort to the ICJ
again.
72. ASPAG supported the idea of solving all standards-related issues as a package and the
reconvening of the Working Group on Working Methods of the Committee on the
Application of Standards to further enhance transparency, objectivity and fairness. The
criteria for determining the lists of cases should be observed and balance ensured across
regions and Conventions. ASPAG encouraged the Office to provide the Governing Body
with a time frame for implementation of the Standards Review Mechanism. Overlapping in
the coverage of cases by the different mechanisms should be avoided in the future. ASPAG
also encouraged the selection of more candidates from the ASPAG region for the current
vacancies in the CEACR to ensure a balance across regions and across developing and
developed countries.
73. Speaking on behalf of the Africa group, a Government representative of Kenya said that his
group was in favour of giving consideration to all possible options, including tripartite
discussions on the various issues at stake, either through the Governing Body, as an ILC
agenda item or a dedicated session of the Committee on the Application of Standards.
74. In order to settle the current dispute and create the legal certainty necessary for the
supervisory system to function fully again, two questions had to be answered: whether
Convention No. 87 should be interpreted as providing for or protecting the right to strike;
and whether the CEACR’s mandate gave it the authority to make such interpretations and,
3 GB.320/PV, para. 597(d).
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if so, whether such interpretations could go beyond general principles and give details
regarding the application of the principle.
75. Prevailing circumstances were not conducive to establishing an in-house tribunal and
referral to the ICJ should be a last resort, after all issues had been exhausted through
tripartite dialogue and consultations between the parties. His group therefore endorsed
point (d) of the draft decision to reactivate tripartite discussions to resolve outstanding
issues relating to the functioning of the supervisory system. An Office paper on the reform
of the supervisory system and the functioning of the Committee on the Application of
Standards could be referred to the Governing Body for initial examination at its
323rd Session (March 2015) before adoption at the 104th Session of the ILC. The group
would propose an amendment to point (c) of the draft decision after circulating the text
among the social partners.
76. His group hoped that issues relating to the right to strike would not hamper further
progress on the Standards Review Mechanism, on which more discussions were envisaged
for March 2015. It would be useful to reconvene the tripartite Working Group on the
Working Methods of the Committee on the Application of Standards, which should meet
as soon as members of the Governing Body considered it convenient, either during or
between Governing Body sessions. He noted, with appreciation, improvements made to the
functioning of the CEACR.
77. Speaking on behalf of IMEC, a Government representative of Canada said that IMEC
continued to believe that maintaining the strength and authority of the supervisory system
was fundamental to the Organization and directly related to ensuring the relevance of
international labour standards in the contemporary world. The draft decision offered
elements for a constructive and well-balanced package solution.
78. IMEC had always stressed the importance of tripartite participation in restoring consensus
in the process and was ready to discuss at the current session the request for an advisory
opinion from the ICJ. Having listened to the different views, it believed that, against a
backdrop of uncertainty, receiving authoritative guidance from the ICJ to inform and build
further tripartite discussions was a clear next step. Before making a referral to the ICJ,
however, there should be tripartite discussion and consensus on the exact question to be
put to the ICJ. To that end, IMEC suggested the immediate establishment of an ad hoc
drafting group. A referral to the ICJ was not a failure of tripartism; rather, it was one part
of a solution built entirely through tripartism and consensus.
79. It was premature to consider the establishment of a tribunal under article 37(2) and IMEC
would welcome further elaboration by the Office or a tripartite working party, so that the
matter could be considered by the Governing Body in March 2015. In particular, more
options regarding the selection and appointment of judges and the constitution of panels
should be explored and cost details provided.
80. She reiterated IMEC’s support for launching a Standards Review Mechanism and
reconvening the Working Group on the Working Methods of the Committee on the
Application of Standards. The remaining work on the design of the mechanism should be
resumed immediately and the tripartite consultations reactivated to resolve the outstanding
issues regarding the functioning of the supervisory system.
81. Speaking on behalf of the EU and its Member States, a Government representative of Italy
said that Montenegro, Serbia, Albania, the Republic of Moldova and Georgia aligned
themselves with her statement. She expressed support for the statements of the
Government group and IMEC. As the ILO supervisory system contributed to the
promotion and protection of human rights and affected the EU and its policies directly, the
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EU attached great importance to the ILO’s impartial supervision of compliance with
international labour standards.
82. The EU was ready to support a request for an advisory opinion from the ICJ which could
provide authoritative guidance to inform and guide further tripartite discussions including
possibly at the ILC level. The questions to be referred to the ICJ should concentrate on the
main point at issue, namely the protection of the right to strike by Convention No. 87, and
the competence of the CEACR to determine that right under Convention No. 87. Therefore
paragraph 1(2)(b) of the draft resolution in Appendix I, concerning the determination by
the CEACR of limits to the scope of the right to strike and the conditions for its legitimate
exercise, should be deleted. If constituents required more time to reach a consensual text,
an ad hoc drafting group could be set up for that purpose. The authoritative character of an
ICJ advisory opinion had to be recognized.
83. It was premature to consider the establishment of an in-house tribunal, and further
elaboration by the Office or by a tripartite working group of Part B of section I of the
document was proposed for consideration by the Governing Body in March 2015. Other
possible ways of selecting and appointing judges and constituting panels should be
explored and more details about costs would also be welcome.
84. A Governing Body working party should be instructed to make proposals, including a
timetable, regarding the setting up of a Standards Review Mechanism for presentation to
the 323rd Session of the Governing Body. The EU supported the reactivation of the
Working Group on the Working Methods of the Committee on the Application of
Standards. In order to maintain the ILO’s credibility, the social partners must make sure
that the Committee functioned smoothly by agreeing on the list of cases for discussion and
adopting consensual conclusions. A transitional mechanism was needed until a sustainable
solution could be found. The EU renewed its commitment to filling vacancies on the
CEACR as soon as they arose.
85. A Government representative of the Bolivarian Republic of Venezuela said that the ICJ
should be asked to interpret Convention No. 87 with respect to the right to strike, since it
alone had competence to interpret ILO Conventions; the opinions and comments of the
CEACR were not legal interpretations. Establishing an in-house tribunal was not
necessary, would entail additional costs and might not guarantee the requisite objectivity
and impartiality. While his Government was always open to dialogue, given the opposing
views of Employers and Workers, it had reasonable doubt as to whether the tripartite
discussion on the right to strike mentioned in paragraph 6 of the document prepared by the
Office could yield positive results, and such a discussion could result in time being lost.
86. He welcomed the establishment of a Standards Review Mechanism and looked forward to
receiving the timetable that could allow progress to be made. The Conference Committee
on the Application of Standards needed to act in accordance with the principles of legality,
legitimacy, objectivity, transparency, efficiency and without regard to particular political
interests. Concerning the different components of the supervisory system, his Government
looked forward to receiving the timetable mentioned in paragraph 116. His Government
reserved its position on Appendix I, pending the submission of amendments thereto. It did
not support point (b) of the draft decision or Appendix II concerning the establishment of a
tribunal under article 37(2) of the Constitution.
87. A Government representative of the Dominican Republic said that as two years of
discussions had not produced an answer to the crucial issue of whether the CEACR was
competent to interpret Conventions and Recommendations, that question should be
referred as a matter of urgency to the ICJ under article 37(1) of the Constitution. The list of
countries that were requested to provide information to the Conference Committee on the
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Application of Standards had to be chosen by the constituents in a transparent manner. She
urged constituents to make an effort to reach consensus on the draft decision.
88. A Government representative of Algeria said that the constituents should discuss the
competence of the CEACR to interpret Conventions, bearing in mind the wider context of
deliberations concerning the reform and improvement of the functioning of the Conference
Committee on the Application of Standards.
89. A Government representative of France said that the effective implementation of
international labour standards was an essential means to safeguard the social dimension of
globalization. The ILO’s credibility depended on its ability to establish and ensure
universal compliance with those standards. That credibility had been called into question
by what was essentially a political crisis. All constituents had the responsibility to show
that tripartism was useful and effective. The first step would be a largely consensual
decision on the process for overcoming the crisis. His Government supported the adoption
of a package including all the different aspects of the supervisory system.
90. His Government supported referral of a question limited to the interpretation of
Convention No. 87 in respect of the right to strike to the ICJ for an urgent advisory
opinion. As it would be impractical to refer every question or dispute concerning the
interpretation of a Convention to the Court, his Government had long been in favour of
establishing an in-house interpretative body under article 37(2) of the Constitution. It
should be a flexible, low-cost mechanism that would convene at the express request of the
Governing Body. A tripartite working party could be instructed to present proposals on
such a mechanism’s functioning and composition and on the terms and conditions for
referral to it to the 323rd Session of the Governing Body. The launching of a Standards
Review Mechanism would likewise send a positive signal that the ILO constituents
intended to guarantee international labour standards effectively in an up-to-date manner.
By adopting the draft decision, the Governing Body would revamp the system for
overseeing compliance with standards.
91. A Government representative of Brazil said that the opinions of the CEACR were not
binding and were intended only to guide the action of national authorities. Her
Government therefore did not consider that the interpretative function of the CEACR was
an issue. Since a question had arisen with regard to the interpretation of Convention
No. 87, namely whether it recognized the right to strike, that matter should be referred to
the ICJ for an advisory opinion, after which there would still be need for dialogue and
decision-making. The Court should not, however, be consulted on the competence of the
CEACR. The question set out in paragraph 1(2) of the draft resolution in Appendix I
should therefore not be included. It was premature to discuss the establishment of an inhouse
tribunal. The limited number of difficulties concerning the interpretation of ILO
Conventions suggested that there was no need to establish such a tribunal which could
undermine dialogue and tripartism and foster recourse to such an institution. Therefore, her
Government did not support point (b) of the draft decision in paragraph 125 of the
document.
92. A Government representative of China said that his Government was in favour of pursuing
dialogue in order to resolve the issue under consideration. It was only if that dialogue
proved fruitless that consideration should be given to adopting the measures set out in
article 37 of the Constitution. It was not, however, in favour of establishing an in-house
tribunal. In addition to cost considerations, constituents might turn to it whenever a dispute
arose, undermining consultation and dialogue. In the end, if recourse to the ICJ was
supported by the majority, they would not object. An effective Standards Review
Mechanism should be established in the near future, as such a mechanism was of vital
importance in ensuring that international labour standards were always up to date and
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served constituents’ needs. He supported the reconvening of the tripartite Working Group
on the Working Methods of the Committee on the Application of Standards and urged the
Director-General to fill the vacancies on the CEACR.
93. A Government representative of Germany highlighted that the ILO was currently at a
critical juncture and it was urgent to find a solution. The ILO was running the risk of
losing its unique role in the supervision of standards. To prevent other bodies from
stepping in and filling that void, it was necessary for all constituents to voice their opinions
rather than sit back and wait. Although consensus was a great asset, when it was lacking,
there needed to be other pragmatic options. Her Government supported the solution of
turning to the ICJ. That would not imply the bankruptcy of the principle of tripartism
because going to the ICJ would provide a framework in which action would be hinged on
tripartism. She proposed reformulating the questions to be put to the ICJ, to make them
more concise. A tripartite approach was needed to that end. Further consensus was needed
so that an advisory opinion might be accepted as binding. A temporary mechanism should
be identified, also on the basis of consensus, for the interim period, which would permit
the Conference and the Committee on the Application of Standards to function until a
definitive decision had been reached. Although the Employers’ group had suggested
drafting a statement affirming the existence of the right to strike in national legislation, the
utility of such a statement was not clear, as countries in the EU, as did others, already
guaranteed citizens the right to strike. If there was consensus among the three parties that
in principle the right to strike was contained in Convention No. 87, there could be tripartite
discussion on many issues. However, in the absence of such consensus, turning to the ICJ
seemed the only option. She strongly urged to break the deadlock on the matter at the
current Governing Body session and agreed that establishing a working group on the
questions at stake would be a sensible step forward. A decision of principle had to be taken
without further delay.
94. A Government representative of the United Arab Emirates said that the resolution of
disputes among ILO constituents could and should be achieved through constructive
dialogue within the ILO. Resorting to external mechanisms would place the future of
tripartite dialogue at risk and adversely affect the credibility of the ILO as a leading UN
organization. His delegation called for continued dialogue on a tripartite basis and the
appointment of a working party to formulate recommendations for reaching consensus.
95. A Government representative of Panama, pointing out that the ILO had already consulted
international courts for an advisory opinion on six occasions, expressed his country’s
support for the draft decision in paragraph 125, except for point (b).
96. A Government representative of the United Kingdom said that it was crucial to use the
current situation as a catalyst for reinvigorating the Standards Review Mechanism with a
clear time frame and tripartite commitment. The Committee on the Application of
Standards should be fully operational in 2015, backed by pragmatic plans. His delegation
was prepared to support referral to the ICJ, although it would have been preferable if the
social partners had found a solution based on dialogue. Tripartite agreement should be
reached on the questions to be asked and a clear plan put in place for handling the
outcome.
97. A Government representative of Zimbabwe said that, since the dispute had first arisen in
2012, the Office had engaged in informal consultations with the Employers and Workers,
but Governments had not had the opportunity to officially express their views. Tabling the
issue of the right to strike for discussion at the following session of the ILC would enable
an inclusive tripartite discussion and provide the Organization with direction, either to
resolve the matter internally or, once all internal mechanisms had been exhausted, through
the ICJ. He also proposed adding the issue of the mandate of the CEACR as an agenda
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item at the following session of the ILC and requested the Office to provide guidance on
the topic in a paper. His Government looked forward to a holistic approach that
strengthened the Organization.
98. A Government representative of Argentina expressed his delegation’s support for point (a)
of the draft decision, regarding the request to the ICJ, but said that the second question in
paragraph 49 of the document prepared by the Office was inappropriate, since the nonbinding
nature of the role of observations of the CEACR had already been sufficiently
clarified. It was also too early to consider appointing a tribunal, as provided for in point (b)
of the draft decision. He continued to trust in tripartite social dialogue.
99. A Government representative of Japan said that the supervision of standards was the
Organization’s most essential function. It was inappropriate to apply to the ICJ
immediately. First, the ICJ would not be able to deliver a fundamental solution as, even
after receiving the advisory opinion, the ILO would need to continue consultations on how
to deal with the opinion in-house. Such consultation would not be successful unless mutual
trust between the Employers and the Workers was restored. Second, the established
practice of tripartite decision-making within the ILO would be seriously damaged by the
request, as it would be akin to declaring to the international community that the ILO had
no ability to solve its own problems. At the same time, Japan did not favour continuing
consultations without any prospect of compromise. It could support consultations with a
concrete and focused procedure with a fixed time frame. To create new dynamics so as to
advance discussions in a tripartite framework, his Government proposed adopting a
tripartite resolution on the agreed interpretation of Convention No. 87 at the session of the
ILC in June 2015. Although there were many issues to be resolved, it would be better to
limit aims to resetting the atmosphere and reopening constructive consultations. His
delegation expressed its support for points (c) and (d) of the draft decision, but not (a)
and (b).
100. A Government representative of Mexico said that even though his Government believed
that tripartite dialogue was the most effective tool for finding a solution, it was also
convinced that using the same methods would only generate the same results, which, to
date, had fallen short. The ILO Constitution already offered the legal tools for a solution.
Mexico therefore supported requesting the ICJ to rule on the right to strike and the
competency of the CEACR.
101. A Government representative of the Islamic Republic of Iran recalled the decision made by
the Governing Body at its 312th Session (November 2011) to establish the Standards
Review Mechanism as well as the Governing Body agreement that the standards initiative
should be implemented as a single endeavour, including the Standards Review Mechanism.
He called on the Office to prepare for implementation of the Standards Review Mechanism
by the next Governing Body session (March 2015) and to step up its work on the
mechanism’s design. Constituents should strive to find a consensual solution. His
Government disagreed that tripartite discussions on the right to strike had already failed.
Tripartism should be given a real opportunity based on mutual trust and willingness among
constituents. On the functioning of the Conference Committee on the Application of
Standards, his Government supported reconvening the tripartite Working Group on the
Working Methods of the Committee on the Application of Standards.
102. Speaking on behalf of IMEC, a Government representative of Canada said that, regarding
the issue of the right to strike, her group wished to clarify that it was ready to discuss at the
current session the request for an advisory opinion from the ICJ, under article 37(1) of the
ILO Constitution.
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103. A Government representative of Turkey said that before considering recourse to the ICJ,
the Governing Body should explore all ways of reaching a solution through tripartite
consensus. Article 37 of the ILO Constitution did not classify or specify the disputes to be
referred to the ICJ or a tribunal, and the draft statute concerning the latter provided no
further clarification or legal criteria. Regarding the Standards Review Mechanism, a
comprehensive review of existing standards should take the concerns of all parties into
consideration and should be established with the full confidence of the tripartite
constituents. The Governing Body should establish a time frame and promote mutual
understanding on outstanding issues. The required principles for a Standards Review
Mechanism were included in the ILO Declaration on Social Justice for a Fair
Globalization. Discussions on the Standards Review Mechanism should not be delayed any
longer.
104. A Government representative of Bulgaria said that her Government was convinced that
consulting the ICJ would not undermine tripartite dialogue. It would bring the necessary
dynamic to the issue and provide clarity on the ILO supervisory mechanisms.
105. A Government representative of the Republic of Korea said that regarding the
interpretation of Convention No. 87 in relation to the right to strike, the main focus should
be on making a decision objectively and in an acceptable way. Her Government did not
consider it useful to refer the matter of the mandate of the CEACR to the ICJ or to an inhouse
tribunal. The latter would be established by an ILC decision, and doubts could be
raised as to its authority over the CEACR. Indeed, in its report submitted to the Conference
in June 2014, the CEACR had clarified that its mandate included the non-binding
interpretation of the scope and contents of national laws as well as the meaning of relevant
Articles of Conventions. Accordingly, her Government supported points (c) and (d) of the
draft decision and requested the Office to provide a timeline for reconvening the tripartite
Working Group on the Working Methods of the Conference Committee.
106. A Government representative of India reiterated his Government’s request for an in-depth
analysis of the current system and the reason for its failure. It also wished to be informed
of the proportion of cases involving the question related to the right to strike being an
integral element of Convention No. 87, and disputes on other international labour
standards, or disagreement on the interpretation of other Conventions which could not be
resolved by the Committee on the Application of Standards. It supported the continuation
of a tripartite process, considering that decisions regarding the Organization should be
taken by ILO constituents. The ILC was the supreme forum for decisions on any matter
pertaining to the world of work and it had the authority to amend the standards it had
adopted. Disagreement on the interpretation of any Convention by the Committee had to
be brought back to the ILC. An in-house tribunal and referral to the ICJ would add to
multiplicity without improving clarity. Either a specific item on the ILC agenda or a
discussion in the Conference Committee on the Application of Standards would provide
the ideal means of reaching a solution. The social partners should continue working to
determine a list of cases and criteria should be developed to ensure balance regionally and
in terms of category of Convention. Other international agencies should continue to deal
with subjects within their mandate and those should not be related to core labour issues.
Issues of compliance concerning non-member countries would also need to be addressed.
His Government looked forward to strengthening the CEACR, including through filling
vacancies.
107. Speaking on behalf of the Nordic countries (Denmark, Finland, Iceland, Norway and
Sweden) and the Netherlands, a Government representative of Norway expressed support
for the EU statement. He observed that it was of the utmost importance for the ILO to
unblock the blockage and to continue to have a well-functioning supervisory system that
enjoyed the support of all constituents. While the ILO Constitution provided a way to solve
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disputes relating to interpretation of Conventions, the advisory opinion from the ICJ was
one step in the context of a bigger picture. Technical adjustments to the supervisory system
were also needed. The draft decision provided a constructive and well-balanced solution.
He called for a tripartite decision on all elements of the draft decision at that session. It was
crucial that a decision should be taken on point (a) of the draft decision in paragraph 125,
to request the Court to give an urgent advisory opinion, preferably on the question set out
in paragraph 1(1) of the draft resolution in Appendix I. With respect to point (b) of the
draft decision in paragraph 125, he was not in favour of establishing an in-house tribunal
but would not oppose the appointment of a working party to prepare recommendations in
that regard. He supported point (c) of the draft decision, concerning the parallel action to
be taken with regard to the Standards Review Mechanism and proposed to include in the
draft decision the appointment of a working party to prepare recommendations, including a
timetable for concrete actions, to be submitted to the following session of the Governing
Body. He supported point (d) of the draft decision, on the reactivation of tripartite
consultations on the outstanding issues. The draft decision presented a balanced package in
which the legal question on whether the right to strike was included in Convention No. 87
was not negotiable: legal questions required legal answers. Recourse to the ICJ did not
amount to a failure in social dialogue as it was a measure enshrined in the Organization’s
Constitution and there was a precedent for such action.
108. A Government representative of Indonesia said that her Government fully supported the
reactivation of tripartite consultations. Problems within the ILO should be resolved using
available mechanisms and the Organization should avoid creating a precedent by referring
the question of the right to strike in relation to Convention No. 87 to the ICJ. Establishing
an internal tribunal would create a financial burden and undermine the existing
mechanism. Her Government was in favour of the Standards Review Mechanism; ILO
standards should be relevant to socio-economic development and applicable to its
constituents.
109. A Government representative of Ethiopia said that article 37 of the ILO Constitution
provided a last-resort measure. Under normal circumstances, the Organization should rely
on its supervisory system and its constituents rather than on third parties. She supported
point (d) of the draft decision in paragraph 125, concerning the reactivation of tripartite
consultations.
110. A Government representative of Belgium said that the Governing Body should take a
decision on the interpretation of Convention No. 87 during the current session and should
request an opinion from the ICJ. Furthermore, at its next session the Committee on the
Application of Standards should adopt by consensus a list of cases and conclusions.
111. A Government representative of Colombia said that her Government supported a
comprehensive solution to restore the supervisory system. It hoped that social dialogue and
improved working methods would provide the way forward. The involvement of
governments was an essential element of tripartism.
112. A Government representative of Botswana said that the question of the interpretation of
Convention No. 87 was a symptom of a broader problem relating to the functioning of the
ILO supervisory system. As the problem centred on the rationale for the existence of the
ILO it required a policy rather than a legal solution. It should be ILO constituents who
decided on the ILO’s objectives. Her Government therefore supported an approach that
would emphasize social dialogue as the ideal means of resolving disputes.
113. A Government representative of Spain said that, given the complexity of the issue, a
solution would only be found through tripartite consensus on a clear, comprehensive and
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coherent package of measures and a clear timeline. The Organization should approach the
issue as an opportunity to perfect the ILO’s supervisory system in a sustainable manner.
114. A Government representative of Lesotho said that social dialogue, a central pillar of the
ILO, should be given a chance. Referring the matter to the ICJ would signal the erosion of
the spirit of tripartism. Existing mechanisms should be used and internal solutions
exhausted before turning to external remedies. Accordingly, her Government fully
supported the proposal for further consultations to reach consensus and mutual
understanding.
115. A Government representative of Poland said that if the ILO was to discharge its
responsibilities, it was essential to have an effective and efficient supervisory system that
also contributed meaningfully to the promotion and implementation of universal human
rights. It was therefore necessary to find a practical solution as quickly as possible through
“trialogue” and consensus rather than referring the matter to the ICJ. However, if a general
agreement was reached within the house on the referral to the Court, his Government was
ready to support it in a spirit of consensus.
116. A Government representative of Jordan observed that no real tripartite discussions had so
far been held and that the active participation of governments could help diffuse tensions.
Any decision or opinion from the ICJ would come back to the Governing Body for
implementation, and there could be a problem of interpretation of the decision which could
create further difficulties. Constituents should continue giving a chance to tripartism as a
fundamental pillar of the Organization.
117. A Government representative of Angola called for a decision based on consensus. He
suggested that the various options set out in the document should be considered, taking
into account the tripartite nature of the ILO. He expressed the hope that a decision could be
reached that would satisfy all parties.
118. A Government representative of Switzerland said that the Director-General had encouraged
member States to hold consultations at the national level. Her Government had done so
with its social partners. She underscored the importance of finding a long-term solution
based on dialogue and trust. It was crucial to find an immediate solution and also to
remedy underlying issues. Her Government, if requested, would do everything in its power
to help the ILO quickly find a solution that was satisfactory to all parties.
119. The Employer coordinator said that he remained optimistic and reaffirmed his group’s
commitment to moving forward. It was too early to draw any conclusions. His group
looked forward to contributing to any activity that would allow the situation to move
forward.
120. The Worker Vice-Chairperson said that all the parties had recognized the critical nature of
the issue, the importance of an effective supervisory system for the ILO and all
constituents, and the need to act urgently to resolve the dispute. An advisory opinion from
the ICJ was required in order to resume, in good faith, tripartite discussions on the
supervisory system in an environment of greater legal certainty. His group was
appreciative of the Governing Body members that had indicated support for referral to the
ICJ, were open to the idea or would not stand in the way of a majority. The issue had been
discussed in bipartite and tripartite forums since 2012 and all constituents had had the
opportunity to express their views, yet no consensus had been reached. The ILO
Constitution was clear regarding what to do where views on the interpretation of a
Convention differed; referral to the ICJ was an integral part of the ILO supervisory system.
Issues of interpretation were not within the remit of the ILC, which had a legislative, not a
judicial, role. Further discussion would only serve to defer the conclusion of the matter.
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The last-resort moment had arrived. Although it would be necessary to discuss the impact
of the advisory opinion, it would break the deadlock. If the ICJ were to affirm the position
of the CEACR on the existence of the right to strike, there would be no change in the legal
obligations of the member States that had ratified Convention No. 87. The advisory
opinion would not apply directly to the member States but would provide a final
interpretation of the Convention. Member States whose legislation was not considered to
be in line with Convention No. 87 had already been receiving comments from the CEACR.
The nature and content of the observations formulated by the CEACR concerning the right
to strike would not be affected by a positive decision from the ICJ. No country’s
sovereignty would be affected. The Workers’ group was committed to finding a way
forward. The Governing Body had been given the power by the ILC to decide whether to
refer disputes to the ICJ. There was no reason why a decision could not be made at the
present session of the Governing Body.
121. The Director-General said that the ILO had been working with full tripartite participation
aimed at finding consensus on difficult issues. There seemed to be support for a package
solution on all sides. Willingness and flexibility had been expressed in terms of assembling
the package. There was not, however, an obvious, emerging consensus on which to base a
decision. Yet, the circumstances did not permit further inaction. There was a clear need for
a substantive decision at the present session of the Governing Body. He proposed that the
Office would carefully go over the statements made and, based on them, draw up a
document containing a set of proposals that would be ready on the morning of
10 November 2014 for the consideration of the Governing Body. The proposals would be
in lieu of the draft decision in paragraph 125. Every effort would be made to accommodate
the views of all parties. Gridlock was not inevitable and a consensus was firmly within
reach.
122. Speaking on behalf of GRULAC, a Government representative of Cuba underscored that
the document that would be submitted by the Director-General should be impartial and
objective and take into account the points that had been raised during the discussion.
123. The Governing Body accepted the proposal made by the Director-General.
124. The Director-General, introducing a revised version of the draft decision in paragraph 125
of document GB.322/INS/5, said that the new text, which was set out in document
GB.322/INS/5(Add.), had not formed the subject of consultations with any group or
individuals, but had been produced under his sole responsibility. It was the fruit of the very
careful consideration of the two main messages from debates, namely that a decision was
required forthwith and that only a package of decisions would permit progress on the issue
under consideration. It was a balanced and comprehensive document which constituted
both a compromise between diverging views and an attempt to build a coherent set of
decisions with an internal logic. The six elements were interrelated; they complemented
and did not duplicate one another. The removal of any one of those elements would
probably destroy the equilibrium upon which the text’s success depended. A decision
should therefore be taken on all six elements simultaneously, if possible at the current
session.
125. A representative of the Director-General (Deputy Director-General for Management and
Reform), introducing document GB.322/INS/5(Add.1) on the financial implications of the
revised draft decision contained in document GB.322/INS/5(Add.), said that the table was
complex on account of the number of variables to be taken into account when estimating
the cost of the tripartite meeting of experts referred to in point 2 of the revised draft
decision. Such variables included the number of participants, the interpretation services
required and the location. The total estimated cost of the package of measures proposed by
the Director-General stood at US$1,148,300. The costs associated with requesting the ICJ
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to render an advisory opinion on the question referred to in point 1 would be borne by the
Office. However, there could be additional travel costs ranging from US$5,000 to
US$7,000. The revised draft decision explained how the total cost entailed by the package
of measures would be met.
126. The Employer coordinator said that his group endorsed point 2 of the revised draft
decision. The tripartite meeting of experts could help clarify the extent to which the
interpretation of the right to strike by the CEACR had influenced practice at the national
level and consequently how the question referred to in point 1 could best be put to the ICJ,
if the Governing Body decided as a last resort to refer the matter. The meeting should take
place before the March 2015 session to guide the Governing Body in that decision. The
crucial question was how, and to what extent, a right to strike as defined by the CEACR at
the international level would affect member States’ authority to legislate that right at the
national level. His group endorsed point 3 and suggested that the Office should specify that
the Standards Review Mechanism should be launched by May 2015 to allow time for the
necessary preparations following submission of proposals by the tripartite working group
and the decision by the Governing Body in March 2015. His group also endorsed point 4
concerning the Working Group on the Working Methods of the Committee on the
Application of Standards. If the Working Group was reconvened, the Governing Body
should provide it with special guidance. The Governing Body could, at its present session
and as a special arrangement for 2015, request the CEACR to draw up the list of cases to
be considered by the Conference Committee on the Application of Standards at the 2015
session of the ILC. His group endorsed point 5. The Employer and Worker spokespersons
of the Conference Committee on the Application of Standards and the Committee on
Freedom of Association could also join in the preparation of the report referred to in that
point. The report should be ready for the November 2015 session of the Governing Body.
His group also endorsed point 6. Nevertheless, the Employers’ group considered that not
all possibilities for a tripartite solution had been exhausted. The group was not in favour of
referring the question in point 1 to the ICJ and did not consider that there was any
consensus or majority among the members of the Governing Body on the matter. However,
even if a consensus was reached, the matter of referral to the ICJ should be carefully
prepared before a decision was taken, as a last resort, to request an advisory opinion from
the Court. Thus the question in point 1 of the draft decision did not capture the core
problem of the right to strike and should be reworded so as to ascertain whether
Convention No. 87 imposed binding rules relating to the scope of the right to strike, its
limits, and the conditions for its legitimate exercise that member States were obliged to
implement in law and practice. Further, the Employers’ group asked how the social
partners and member States would participate in the proceedings before the Court, as
referred to in paragraph 2(b) of the draft resolution appended to the revised draft decision,
and how the ILO would support the participation of social partners. It would welcome the
opportunity to discuss, in particular, the fourth preambular paragraph and operative
paragraph 2(b) and (d) of the draft resolution. In addition, the Governing Body should
suspend the consideration of all cases concerning the right to strike by the ILO’s
supervisory machinery until the advisory opinion had been rendered. The Office should
begin the preparations necessary to allow the Governing Body to take an informed decision
at its March 2015 session on whether to refer the matter to the ICJ.
127. The Worker Vice-Chairperson said that the tripartite constituents should be willing to
compromise on the package of proposed measures contained in the revised draft decision
in order to move forward. The Workers’ group endorsed point 1 on an urgent referral of
the matter to the ICJ. That was a necessary element of any package. However, it did not
see the need for a further tripartite meeting of experts on strike action, as proposed in
point 2, as the ILO supervisory bodies had already established clear principles concerning
the modalities of implementation of the right to strike. The Workers’ group was
nevertheless prepared to accept point 2 in the interests of reaching a consensus. On point 3,
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the group had misgivings over launching the Standards Review Mechanism when there
was a lack of trust among the groups. The protection of workers was, and must remain, the
object of the Standards Review Mechanism. However, his group was willing to accept
point 3, on the condition that the whole package of measures was adopted. His group
supported point 4, but recalled that only the ILC could take a decision on the list of cases.
On point 5, the Workers’ group did not consider it necessary to review the supervisory
procedures provided for in the ILO Constitution, as they had been reviewed quite recently.
However, the group would endorse point 5 in the spirit of compromise. It also endorsed
point 6 on deferring consideration of the establishment of a tribunal. It was willing to
accept the package of measures as a whole, in the order in which they appeared in the
revised draft decision, in the spirit of tripartite dialogue and compromise.
128. Speaking on behalf of GRULAC, a Government representative of Cuba said that the group
endorsed the action proposed in point 1 of the revised draft decision. The tripartite meeting
of experts on strike action referred to in point 2 should be convened in April 2015 at the
latest. Broad discussions should be held on all aspects of the Standards Review Mechanism
and on improving the various supervisory procedures provided for in the ILO Constitution.
The group endorsed the initiative outlined in point 4 concerning the reconvening of the
Working Group on the Working Methods of the Committee on the Application of
Standards so that the necessary steps would be taken to ensure the effective functioning of
the Committee at the 104th Session (June 2015) of the Conference. The list of cases should
be drawn up and the conclusions on them should be formulated in an objective and
transparent manner. The report referred to in point 5 should be prepared in consultation
with the tripartite constituents and the findings submitted to the Governing Body for
evaluation and approval. The group endorsed point 6 and concurred that the issue should
be discussed at a later date. The group endorsed the revised draft decision as a whole.
129. Speaking on behalf of ASPAG, a Government representative of China said that tripartite
dialogue was the key to resolving the dispute and finding long-term solutions to the
problems associated with the right to strike.
130. Speaking on behalf of the Africa group, a Government representative of Kenya recalled
that his group viewed tripartite dialogue as the best way to resolve the dispute and that a
referral to the ICJ should only be decided as a last resort. However, it appeared from the
revised draft decision that the preferred option was to refer the question to the ICJ as a
matter of urgency. The group had expected the Governing Body to arrive at a consensus
and then to agree on a roadmap for implementation. The group maintained that it was
premature to refer the question to the ICJ and raised a number of questions. Thus, the
speaker asked: how long the referral process would take; what the status quo would be in
the interim; whether the functioning of other committees would be affected; whether the
parties would still be willing to engage in dialogue; and whether it would cement or further
polarize the house. Point 1 did not reflect the position of the Africa group. It made the
following proposals: point 1 should be moved to the end of the revised draft decision and
amended to include “as a last resort” at the beginning of the point; the tripartite meeting of
experts should be convened no later than March 2015; the Standards Review Mechanism
should be launched with specific timelines; the Working Group on the Working Methods
of the Conference Committee on the Application of Standards should be reconvened with
immediate effect; and the report mentioned in point 5 should be prepared and the Office
should specify the modalities for its submission. Lastly, the group requested the Office to
give assurances that funding was available for the proposed package of measures and that
other priority areas would not be adversely affected.
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131. Speaking on behalf of IMEC, a Government representative of Canada said that her group
was approaching the package of measures in a constructive manner and in the spirit of
compromise. She called upon the other groups to do likewise with a view to reaching a
tripartite consensus on the revised draft decision.
132. Speaking on behalf of the EU and its Member States, a Government representative of Italy
endorsed the package of measures as a whole. She requested clarification on the legal
implications of the wording of the question to be put to the ICJ and, in particular, of the
word “protected”. She asked whether the duration of the special sitting of the Conference
Committee on the Application of Standards could be limited so as not to distract from the
consideration of cases and the General Survey.
133. A Government representative of the United States, while concerned about the
consequences of prolonging the dispute, could not support point 1 of the revised draft
decision. Although his Government would not block consensus, it had concerns about
requesting an advisory opinion from the ICJ and the precedent that such an action would
establish.
134. A Government representative of France noted that the revised draft decision focused on the
question of the right to strike under Convention No. 87 as well as on the Committee on the
Application of Standards. The consideration of a sustainable in-house mechanism for the
settlement of interpretation disputes was deferred. In the interests of finding a way out of
the current impasse, his Government supported the revised draft decision and was ready to
actively participate in the working groups and consultations proposed in the revised draft
decision.
135. A Government representative of Japan urged a final attempt at resolving the matter
through tripartite consultation. He repeated his earlier proposal that a resolution should be
adopted during the 104th Session (2015) of the ILC confirming tripartite agreement on the
issue of whether Convention No. 87 included the right to strike. Both the Employers and
Workers should demonstrate a spirit of compromise. He hoped that consensus would be
reached during the current session.
136. A Government representative of the Russian Federation supported points 2–6 of the
revised draft decision. The ILO should exhaust its internal mechanisms before turning to
the ICJ. A tripartite meeting of experts could play a significant role in finding a
compromise solution acceptable to all. Not only was referral of the matter to the ICJ
premature, but it could also complicate the implementation of the Standards Review
Mechanism, part of the Director-General’s proposed solution. Point 1 should therefore be
moved to the end of the sequence, and should be worded differently, to make it clear that
only after exhausting the preceding measures would the Governing Body consider other
dispute resolution mechanisms.
137. A Government representative of the United Kingdom supported the proposed package, with
the caveat that any question posed to the ICJ needed to be formulated so as to ensure that
the advisory opinion received helped to explain how Convention No. 87 dealt with the
right to strike.
138. A Government representative of the Republic of Korea reiterated the view that time-bound
tripartite consultation should precede referral to the ICJ on the interpretation of the right to
strike in relation to Convention No. 87. The proposed tripartite meeting of experts should
be deferred until after either further tripartite consultations or an advisory opinion from the
ICJ. Tripartite consultations or an advisory opinion would add a new dimension to the
work of the meeting of experts. He supported the remaining proposals.
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139. The Minister of Labour and Workforce Development of Panama expressed support for the
revised draft decision.
140. A Government representative of Germany expressed support for the revised draft decision,
particularly point 1. Requesting an advisory opinion from the ICJ was a good way to have
a rapid and binding decision on that legal question and did not represent a failure of
tripartism.
141. A Government representative of Zimbabwe said that the Africa group’s earlier suggestion
that referral to the ICJ should be a last-resort solution had not been given adequate
consideration. Recalling the group’s concern that governments had been called upon to
make an urgent decision with insufficient time, he questioned whether governments’ views
were valued on such critical matters. Internal dialogue should be given another chance.
142. A Government representative of Mexico felt that the package took the different positions
into account coherently and with complementarity between the elements. While an
advisory opinion from the ICJ was only one component of a tripartite effort to improve the
supervisory system, it was nevertheless of great importance, and the constituents should be
bound by the ICJ’s decision. It was the Standards Review Mechanism and the
improvement of the constitutional procedures of the supervisory system that would allow
for tripartite implementation of the ICJ’s opinion in the way best suited to the
Organization.
143. Speaking on behalf of the Nordic countries (Denmark, Finland, Iceland, Norway and
Sweden) and the Netherlands, a Government representative of Norway expressed
agreement with the EU statement. He underlined the need to endorse the proposed package
of measures in its entirety, and in the sequence indicated, and to do so at the current
session, observing that it represented a coherent and balanced approach. Further, he
recalled that referral to the ICJ in extraordinary situations was enshrined in the ILO’s
Constitution, and was therefore perfectly in line with the spirit and practice of the
Organization and should foster a return to constructive social dialogue.
144. The Minister of Labour of the Dominican Republic supported the revised draft decision and
expressed willingness to actively participate in any activities that would lead to consensual
outcomes.
145. A Government representative of India affirmed that tripartite consultation at the ILC was
the best way to address the issue. She expressed appreciation for the proposed analysis of
national legislative systems in the light of provisions under Convention No. 87 that the
Office would prepare for the tripartite meeting of experts, as it would shed light on the
reasons underlying the supervisory system’s failure. Her Government remained committed
to tripartite consultation as the best way ahead.
146. A Government representative of Turkey reiterated that, in relation to point 1, constituents
should endeavour to find a solution before resorting to the ICJ. His Government was
seeking a more constructive path than referral to the ICJ. However, his Government
supported the rest of the proposed package. The sequencing of the different elements of the
revised draft decision was somewhat complex and the Director-General should propose an
implementation timeline, taking the balance of the items into consideration.
147. A Government representative of Thailand emphasized the importance of dialogue, and
hoped that expeditious, time-bound tripartite consultation would lead to a solution. Only if
that failed should the matter be referred to the ICJ.
148. A Government representative of Belgium reaffirmed support for the revised draft decision.
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149. A Government representative of Australia expressed a strong preference for consensus
through tripartite dialogue. There were risks associated with referring the matter to the ICJ,
particularly with regard to the wording of the question. However, the risks associated with
the continuing impasse were greater. Accordingly, her Government was prepared to accept
the proposed package in order to move forward. Australia was ready to assist in any way
possible, including through participation in tripartite working groups as proposed in the
revised draft decision.
150. The Director-General said that a third round of substantive discussions would be held. It
would be damaging for the Organization if the current Governing Body session were to
close without progress having been made. Many speakers had found the revised draft
decision to be a fair, objective and balanced attempt to unite divergent views. The fact that
it contained elements that certain parties had not supported, or did not contain elements
that they had, did not mean that their views had not been considered. The lack of
consensus was not surprising, in view of the complexity of the matter. The way forward
lay in a package of measures, the six components of which were delicately balanced. To
remove or significantly modify any of them would throw into question the integrity and
coherence of the whole. Equally important was the chronological sequence of the
implementation of decisions. The focus of the discussion had been on point 1, referral of
the matter to the ICJ, and the relationship between that and point 2, the tripartite dialogue
process. It was necessary to re-examine those two components with a view to reconciling
the views expressed. In the package’s original formulation, both items had been designed
to deal with issues related to strike action, in complementary but differentiated ways, and
they did not easily lend themselves to the type of sequencing proposed by some in the
discussions. While there had been broad consensus on points 3–6, the package had to be
viewed as a whole. The Office would submit another revised draft decision for
consideration and decision.
151. The Chairperson said that the Office had further revised the draft decision on item 5 to
take into account the views expressed during the most recent discussions on that item. The
new revised draft decision was contained in document GB.322/INS/5(Add.2). The
estimated costs of the measures proposed in the new revised draft decision had also been
reviewed and were set out in document GB.322/INS/5(Add.3).
152. The Worker Vice-Chairperson said that there was much that the Workers’ group had not
requested in the previous package of measures but that they had accepted the package as a
whole in the spirit of compromise. Regrettably, the new package of measures no longer
included the possibility of requesting the ICJ to urgently render an advisory opinion on the
question of whether the right to strike was protected by Convention No. 87. The Workers’
group had not objected to the tripartite meeting of experts proposed previously to review
and discuss national legislation and practice on the right to strike. However, a tripartite
meeting on whether the right to strike was protected by Convention No. 87 and the
limitations of that right was no substitute for the judgement of the CEACR. To follow that
course of action would only lend support to the Employers’ erroneous theory that the
tripartite constituents, and not the CEACR and ultimately the ICJ, were competent to
interpret ILO Conventions. For that reason, the interpretation of Convention No. 87 should
not be discussed at such a meeting. The drafters of the ILO Constitution had provided that
any disputes over the interpretation of Conventions should be referred to the ICJ for an
advisory opinion.
153. As to point 2, it did not provide for an ICJ referral and merely placed it on the agenda of
the March 2015 session of the Governing Body for decision. However, it was unlikely that
further progress would be made on the divergent positions at the March 2015 session of the
Governing Body, and the success of the 2015 Committee on the Application of Standards
would be compromised without a decision to request an opinion from the ICJ. With respect
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to point 3, there was insufficient trust among the groups to launch the Standards Review
Mechanism, which could only work if differences in interpretation were settled according
to the law, and not according to constituents’ views. The Workers feared that the Standards
Review Mechanism would be used to weaken the existing protection that international
labour standards afforded workers.
154. The report mentioned in point 5, in relation to the various supervisory procedures, could
provide a useful insight into the functioning of the supervisory system and ways of
strengthening it. However, if the tripartite constituents could not agree to abide by the rule
of law and continued to impede the effective functioning of the supervisory system, that
report would be of limited value. Confidence in, and acceptance of, the views of the
CEACR were prerequisites for a functioning supervisory system. Since 2012, however,
one group was no longer abiding by those views. If no agreement could be reached at the
tripartite meeting on the right to strike being protected by Convention No. 87, the question
should be immediately referred to the ICJ. Points 3 and 5 should be deleted from the new
revised draft decision and discussed further at the March 2015 session of the Governing
Body.
155. The Employer coordinator said that the new revised draft decision fell short of the
Employers’ group’s expectations, but constituted a step in the right direction. The group
agreed with the need to progress and stood by the arguments and proposals it had made
previously. If progress could not be made, it would be difficult for the tripartite
constituents and ILO partners to maintain confidence in the mission and objectives of the
ILO. His group could support the new revised draft decision.
156. Speaking on behalf of the EU and its Member States, a Government representative of Italy
said that the EU had found the previous package of measures to be a coherent whole and
had endorsed it. To add or remove elements of the package could prevent a balanced
outcome, and changing their order changed the nature of the package. However, she was
prepared to accept the proposal as a basis for discussion. With respect to point 1, she
strongly believed that the tripartite meeting should discuss only the question of the
interpretation of Convention No. 87 in relation to the right to strike. The two proposed
questions could not be discussed in a meeting of only three days and they might each
require different expertise. Observer States should also be allowed to attend and speak at
the meeting, and governments should be able to express views as groups. She requested the
addition of a sentence to the end of point 1 to the effect that if no clear consensus could be
reached on the question at the tripartite meeting, the conditions for the application of
article 37(1) of the ILO Constitution would be met. She also suggested that the words “the
issue of a request to the International Court of Justice” be replaced with “the item of an
immediate referral to the International Court of Justice” in point 2. The Governing Body
needed to take a decision on the matter without further delay.
157. A Government representative of Germany said that the new revised draft decision was
balanced and accurately reflected the most recent discussions on the matter. His
Government viewed the tripartite meeting to be held in February 2015 as the last
opportunity for a successful outcome. If an agreement could not be reached on that
occasion, article 37(1) of the ILO Constitution should be applied with immediate effect.
158. A Government representative of the United Kingdom said that the Governing Body needed
to take a decision that day. He encouraged all tripartite constituents to engage in the
discussion with a view to reaching a consensus on the matter, thereby potentially obviating
the need to request an advisory opinion from the ICJ. The proposed tripartite meeting
would be the last opportunity to do so. If a consensus was not reached, the question would
have to be referred to the ICJ.
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159. A Government representative of the Russian Federation said that the new revised draft
decision accurately reflected the most recent discussions on the matter. However, he
maintained that the immediate referral of the question to the ICJ if no agreement was
reached at the tripartite meeting in February would be premature and could have a negative
impact on future discussions on that question. He endorsed the new revised draft decision.
160. Speaking on behalf of the Nordic countries (Denmark, Iceland, Finland, Sweden and
Norway) and the Netherlands, a Government representative of Norway said that he
supported the statement delivered on behalf of the EU. The new revised draft decision did
not accurately reflect the most recent discussions held on the matter and did not offer a fair
compromise solution. The new proposal gave no assurances that the appropriate
mechanisms would be activated if an agreement could not be reached on the question of
whether the right to strike was protected under Convention No. 87, and the last session of
the Committee on the Application of Standards had shown that there was no agreement
among tripartite constituents on that matter. He was not opposed to holding a tripartite
meeting, but was not convinced that it was the appropriate forum for dealing with
questions relating to the interpretation of an ILO Convention. That should be done by the
Committee on the Application of Standards as the ILO supervisory body competent to deal
with questions of that nature, or through the application of the provisions of the ILO
Constitution. He requested further clarification on the tripartite meeting proposed in
point 1 and on the link between points 1 and 2. Any failure to reach consensus at the
tripartite meeting on the interpretation of Convention No. 87 should not influence the
decision to refer the question to the ICJ. Furthermore, it was unclear why a meeting on
national practices and experiences relating to the right to strike could serve as input for
decision-making on the issue.
161. A Government representative of Japan said that the new revised draft decision was a good
basis for compromise. The proposed tripartite meeting would be the last opportunity to
reach a consensus before seeking an advisory opinion from the ICJ. He endorsed the new
revised draft decision.
162. A Government representative of France supported the new revised draft decision together
with the modifications submitted by the EU, and encouraged the Governing Body to take a
decision on the matter that day.
163. A Government representative of Belgium said that she, too, failed to see how a tripartite
meeting on the modalities and practices of strike action could influence the decision on
whether to refer the question on the right to strike to the ICJ.
164. Speaking on behalf of GRULAC, a Government representative of Cuba said that points 3–6
of the new revised draft decision were important and should be maintained. The group
would comment on points 1 and 2 at a later stage in the discussion.
165. A Government representative of Panama said that Panama maintained its position that the
matter should be referred to the ICJ. In the interests of making progress, it could support
the revised draft decision, provided that, if an agreement could not be reached at the
tripartite meeting proposed in point 1, the question on the right to strike would be referred
to the ICJ without further delay. Point 2 of the new revised draft decision should therefore
be amended accordingly.
166. A Government representative of Argentina said that, in relation to point 1 of the new
revised draft decision, the tripartite meeting should only discuss the question of the
interpretation of Convention No. 87 in relation to the right to strike and not the modalities
and practices of strike action, and should formulate a concrete proposal for the Governing
Body to consider at its March 2015 session. In relation to point 2, if a tripartite consensus
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could not be reached, the Governing Body should be authorized to urgently request an
advisory opinion from the ICJ under article 37(1) of the ILO Constitution. She fully
endorsed points 3–6 of the new revised draft decision.
167. Speaking on behalf of the Africa group, a Government representative of Kenya said that
the new revised draft decision largely reflected the views expressed by the tripartite
constituents and gave precedence to tripartite dialogue, which was the key to overcoming
the current impasse. The group also appreciated the inclusion of a concrete time frame for
action, which would culminate in a Governing Body decision in March 2015. He endorsed
the new revised draft decision.
168. Speaking on behalf of ASPAG, a Government representative of China said that the new
revised draft decision largely addressed his group’s concerns and he could support it,
although the group might wish to propose some amendments in due course.
169. A Government representative of India said that tripartite consultation within the ILC would
be the best way to resolve the matter. The revised draft decision was a good way to reach a
logical conclusion, on the basis of a broad consensus. Her Government was prepared to
consider various options following the report on the outcome of the proposed tripartite
meeting, including a referral to the ICJ. However, an automatic referral would preclude the
possibility of a positive outcome to the tripartite consultations.
170. A Government representative of Zimbabwe said that, in spite of some remaining concerns,
she could accept the draft decision in the spirit of compromise, and she welcomed the idea
of continuous engagement by all parties in the endeavour to arrive at a solution.
171. The Director-General observed that there was still some distance to go to arrive at a
consensus. The Office would undertake consultations with a view to submitting to the
Governing Body a decision that could meet consensus.
172. Speaking on behalf of the EU and its Member States, a Government representative of Italy
further clarified the amendments to the new revised draft decision that the EU had
proposed previously. First, in relation to point 1, the three-day tripartite meeting should be
open to observer States with speaking rights. In addition, governments should be able to
express views as groups. Second, her group could accept the deletion of the word
“interpretation” from the first question concerning Convention No. 87 and the right to
strike action. Third, the reasons for deleting the second question on the modalities and
practices of strike action were not to overburden the meeting and the fact that different
expertise might be required for the two questions. She acknowledged that some groups had
concerns regarding the language used in the proposed addition of the following sentence to
point 1: “In the absence of a clear and consensual answer to the question above by the
tripartite meeting, conditions for the application of article 37(1) of the ILO Constitution
will be met.” The statement was meant to clearly state a possible outcome, not suggest that
the meeting would fail. In view of those concerns she suggested adding: “By the same
token, if a consensual answer to the question above is agreed by the tripartite meeting, the
result will be forwarded to the Governing Body for adoption.” With regard to the
amendment that the EU had proposed to point 2 – namely, to replace the words “the issue
of request” with “the item of an immediate referral” – she suggested changing the word
“immediate” to “urgent”, or another word, so that it could not be interpreted as meaning
that the referral would be automatic. She supported point 4 of the revised draft decision
following the Governing Body debate held on 11 November 2014, but reserved the right to
return to points 3, 5 and 6 when the package was finalized.
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173. Speaking on behalf of GRULAC, a Government representative of Cuba stressed that the
proposal must be considered as a package. GRULAC supported the EU’s amendments to
points 1 and 2. In the interests of showing flexibility, it agreed to postpone the revision of
points 3 and 5 to a later date, such as to the 323rd Session of the Governing Body. Points 4
and 6 should remain in their original form.
174. Speaking on behalf of ASPAG, a Government representative of China said that there were
only three options: to postpone the item until March 2015; to put it to a vote, which would
be the worst option as it would cause irreparable damage to the Organization’s tripartite
structure; or to reach a compromise on the revised decision. ASPAG supported the
document as a package. He proposed adding the word “including” after the word
“meeting” in point 2 of the new revised decision. He agreed that the second bullet in
point 1, concerning the modalities and practices of strike action, should be deleted.
175. Speaking on behalf of the Africa group, a Government representative of Kenya reiterated
that his group supported the proposal as a package. Consultations were necessary because
governments had been brought into the process late. The consultation process would
contribute to the discussion at the 323rd Session of the Governing Body. It was difficult to
accommodate the proposed EU amendment related to point 2 because it went against the
spirit of compromise and implied a predetermined outcome, undermining social dialogue,
and gave the impression of a lack of inclusivity of consultations with constituents.
176. The Employer coordinator said that the Employers’ group supported the whole package
presented in the new revised decision. It had not been consulted on the EU’s proposal,
which seemed to increase automaticity in the transfer from the tripartite approach to the
ICJ, and it did not support that move. It was somewhat dismayed by the process that was
taking place. The preparatory work in his group had been based on the package, which
seemed to be disintegrating. The group was not in a position to support any of the
amendments to the package because it had not had the opportunity to discuss them.
177. The Worker Vice-Chairperson reiterated that something had been missing from the
package proposed that morning and consequently it was no longer a package. While the
EU’s amendments did not respond to all the needs of the Workers’ group, it responded to
some of its concerns. A solution should be possible before the end of the session. He noted
that GRULAC wanted to retain points 4 and 6. In that context, the remaining points could
not be retained. However, the group was open to finding a solution when decisions had
been taken on the other points; they could be taken up at the Governing Body in March
2015.
178. The Director-General said that, in relation to point 1, there did not seem to be any
objection to opening the tripartite meeting to observer States, but noted that that might
need to apply to Worker and Employer observers as well. Based on views expressed on the
mandate of the tripartite meeting, he identified a call for removal of the words “of
interpretation” from the first question, and deleting the second question. There were two
remaining, interrelated, issues: first, concerns regarding the relationship between the
outcome of the meeting and what would happen in light of that outcome, particularly in
relation to any recourse to article 37(1) of the Constitution; and second, the integrity of the
package. If an agreement on points 1 and 2 could be reached, there appeared to be
agreement on points 4 and 6.
179. The Employer coordinator said that it was inappropriate to imply that consensus had been
reached. His group had clearly stated that it supported the package presented earlier and
nothing else.
GB.322/PV
40 GB322_PV-[RELME-150323-1]-En.docx
180. The Director-General said that in the context of the entire package or otherwise, there had
been no substantive opposition to the content of points 4 and 6. With regard to points 3
and 5, reserve had been expressed by some governments and the Workers’ group. However
an agreement on points 1, 2, 4 and 6 might be possible. A decision on points 3 and 5 could
be postponed until March 2015 in the light of progress on the other areas of the package.
The key to moving forward was determining the articulation of the outcome of the
tripartite meeting as proposed and subsequent action, with no prejudgement of what the
outcome might be. He suggested continuing the discussion or taking a break in order to
find appropriate language.
181. The Employer coordinator said that his group had been working on the basis of a package
and expressed some dismay about the procedure. On the points raised, he said that it was
unclear how including observers in the tripartite meeting could be useful. He did not agree
with the deletion of the second bullet point related to the modalities and practices of strike
action, because it was important to focus the discussion on the real world and the
consequences for companies. The group did not support the EU’s proposals regarding
points 1 and 2, and without points 3, 4, 5 and 6 it could not support points 1 and 2 as
previously drafted; it could not support moving away from the package.
182. The Worker Vice-Chairperson was open to discussing the different points mentioned by
the Director-General and therefore proposed that consultations among the groups should
take place.
(The sitting was suspended.)
183. When the sitting was reopened, the Chairperson said that the consultations had resulted in
a revised draft decision and that consensus was very close to being reached. He asked
members to make the greatest possible effort to reach agreement. The text read:
1. Further to the wide-ranging discussion held under the fifth item on the agenda of the
Institutional Section, the Governing Body decides to:
(1) convene a three-day tripartite meeting in February 2015, open to observers with
speaking rights, to be chaired by the Chairperson of the Governing Body and
composed of 32 Governments, 16 Employers and 16 Workers with a view to
reporting to the 323rd Session (March 2015) of the Governing Body on:
■ the question of the Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87), in relation to the right to strike; and
■ the modalities and practices of strike action;
(2) place on the agenda of its 323rd Session, the outcome and report from this meeting
on the basis of which the Governing Body will take a decision on the need or
otherwise for a request to the ICJ to render an urgent advisory opinion concerning
the interpretation of the Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87), in relation to the right to strike;
(3) take the necessary steps to ensure the effective functioning of the Committee on
the Application of Standards at the 104th Session of the International Labour
Conference, and to this end reconvene the Working Group on the Working
Methods of the Conference Committee on the Application of Standards to prepare
recommendations to the 323rd Session of the Governing Body in March 2015, in
particular with regard to the establishment of the list of cases and the adoption of
conclusions;
(4) defer at this stage further consideration of the possible establishment of a tribunal
in accordance with article 37(2) of the Constitution;
(5) as part of this package, refer to the 323rd Session of the Governing Body the
following:
GB.322/PV
GB322_PV-[RELME-150323-1]-En.docx 41
(a) the launch of the Standards Review Mechanism (SRM), and to this effect
establish a tripartite working party composed of 16 Governments, eight
Employers and eight Workers to make proposals to the 323rd Session of the
Governing Body in March 2015 on the modalities, scope and timetable of the
implementation of the SRM;
(b) a request to the Chairperson of the Committee of Experts on the Application
of Conventions and Recommendations (CEACR), Judge Abdul Koroma
(Sierra Leone), and the Chairperson of the Committee on Freedom of
Association (CFA), Professor Paul van der Heijden (Netherlands), to jointly
prepare a report on the interrelationship, functioning and possible
improvement of the various supervisory procedures related to articles 22, 23,
24 and 26 of the ILO Constitution and the complaints mechanism on freedom
of association.
184. The Employer coordinator said that his group welcomed the revised draft and could accept
the proposed package. The formulation in point 2 was acceptable, as was the referral of
point 5(a) and (b) to the 323rd Session, but he suggested adding the word “agreed” before
the word “package” in point 5.
185. The Worker Vice-Chairperson said that his group was not pleased with the procedure
adopted or the outcome. He suggested including the words “at the national level” after the
words “the modalities and practices of strike action” in the second bullet in point 1. The
group would refrain from proposing further amendments to the text, but found it very
difficult to accept point 5(a), which anticipated the launch of the Standards Review
Mechanism, and point 5(b) and did not consider the package “agreed”. The group was
open to discussing the package further.
186. Speaking on behalf of ASPAG, a Government representative of China supported the revised
draft decision, with the addition of the words “through their group” after the words “open
to observers with speaking rights” in point 1, so that observers could express their opinions
through their group delegates, bearing time constraints in mind.
187. Speaking on behalf of the EU and its Member States, a Government representative of Italy
said that the EU could accept the revised wording of point 1, as well as the amendment
proposed by ASPAG. The EU reserved its right to speak as a group through its
representative in the tripartite meeting. It had initially wished to remove the second bullet
in point 1 concerning the modalities and practices of strike action due to time constraints,
but was willing to accept its inclusion. The EU wished to be consulted prior to the tripartite
meeting in February so that it could express its views on the organization of the meeting,
particularly to ensure that adequate time was allocated for both issues to be properly
discussed. It sought clarification on the meaning of “the need or otherwise for” in point 2
concerning a request to the ICJ to render an urgent advisory opinion, and suggested
removing those words.
188. Speaking on behalf of the Africa group, a Government representative of Kenya said that his
group supported points 1, 2, 3 and 4, but did not understand why point 5(a) and (b) should
be deferred, as the Standards Review Mechanism was particularly relevant to the issues
being discussed. The group would have preferred to proceed with the launch of the
mechanism but was willing to compromise.
189. The Employer coordinator noted that the words “the need or otherwise for” had been
removed from the text. He had not interpreted the comment made on behalf of the EU as a
proposed amendment.
190. The Worker Vice-Chairperson said that the EU preferred to have the words removed, as
did the Workers’ group.
GB.322/PV
42 GB322_PV-[RELME-150323-1]-En.docx
191. Speaking on behalf of the EU and its Member States, a Government representative of Italy
said that the EU’s preference was to remove the words because their meaning was not
clear, but would welcome clarification from the Office.
192. The Worker Vice-Chairperson said that the meaning was so unclear that the words should
be removed.
193. The Employer coordinator proposed using the words “necessity or not” instead.
194. Speaking on behalf of the Africa group, a Government representative of Kenya said that, to
him, the meaning of the original wording was clear, but he would support the wording
proposed by the Employers.
195. Speaking on behalf of ASPAG, a Government representative of China said that his group
considered the original wording was appropriate and objected to removing “the need or
otherwise for”.
196. Speaking on behalf of the EU and its Member States, a Government representative of Italy
indicated that her group was willing to support the removal of the words if the Workers
proposed doing so but would also accept the wording proposed by the Employers.
197. The Director-General said that the amendment to point 1 proposed on behalf of ASPAG
on speaking rights for observers through their groups, as well as the Workers’ proposed
amendment to the second bullet in point 1 adding the phrase “at the national level”,
appeared to be acceptable to all. The secretariat had chosen the words “need or otherwise”
in an effort to use the most neutral wording possible when drafting the decision, but he
agreed that “necessity or not” had the same meaning and was clearer. With regard to
point 5, his understanding was that the Africa group had reservations but did not appear to
oppose the text. The only outstanding issue was whether the word “agreed” should appear
before “package” in point 5. Given that the Workers firmly objected to its inclusion, he
suggested leaving the wording as it was and said that the Employers’ understanding of the
language could be reflected in the minutes. The text, as amended, was put forward for
adoption by the Governing Body.
198. The Employer coordinator said that his group was simply seeking clarity when it proposed
the addition of the word “agreed”. However, the Workers’ refusal to accept it was
significant because it revealed that they did not, in fact, agree. A commitment to deal with
the launching of the Standards Review Mechanism at the 323rd Session was crucial, and a
number of governments had asked for the mechanism to be launched immediately. The
Employers wanted some assurance that the Standards Review Mechanism would be
launched as proposed in point 5(a) and that there would be no further delays.
199. The Worker Vice-Chairperson said that, for his group, any package would involve the ICJ.
With regard to a decision on the necessity or not for a request to the ICJ, the decision could
go either way, but there would definitely be a decision.
200. A Government representative of Argentina said that the Spanish translation of point 2 of
the revised decision under consideration appeared to be slightly different from the French
and English versions. The French referred to “a decision on the necessity or not for a
request” whereas the Spanish referred to “a decision on the need for a request”. The
translations should be harmonized, but the French appeared to be the clearest.
201. The Chairperson said that the original amendment had been made in English and
suggested that the translators adjust the translations accordingly.
GB.322/PV
GB322_PV-[RELME-150323-1]-En.docx 43
202. The Worker Vice-Chairperson said that if the words “necessity or not” were retained, he
wished to state very clearly that in the discussion at the meeting to be held, there would be
a necessity and at that moment there would have to be a referral to the ICJ.
203. The Employer coordinator said that the decision on the necessity or not for a request to the
ICJ would have to be taken by the Governing Body at the 323rd Session and could not be
made in advance. With respect to the proposed addition of the word “agreed”, he could see
no valid reason not to include the word. If the package was not an “agreed package”, then
it was simply a package for later discussion, which was not the understanding of the
Employers.
204. The representative of the Director-General (Deputy Director-General for Management and
Reform) said that the Employers’ view on the agreed nature of the package and the
Workers’ position on the need for a referral to the ICJ could appear in the minutes of the
meeting and did not have to be included in the decision. The Governing Body did not
usually use the word “agreed” in a decision because it was implied that a decision taken
was an agreed decision.
205. The Employer coordinator said that the issue was not a linguistic one. They had been
dealing with the Standards Review Mechanism for a long time but had failed to make any
progress. The draft decision was supposed to be a decision to move forward on the
Standards Review Mechanism, albeit at a later date, and his group sought a commitment
from the Workers on that issue, which a large number of governments had supported.
206. The Worker Vice-Chairperson said that the aim of his group was to achieve a balanced
draft decision and that the Employers’ position of referring the decision on the right to
strike to March 2015 while other elements of the package were accepted, would destroy
that balance.
207. The Employer coordinator said that they were no longer close to consensus and that as a
result, his group had to question its ability to support the draft decision. The “necessity or
not” was key to their entire debate, and his group would not accept an automatic referral to
the ICJ.
208. The Worker Vice-Chairperson said that his group agreed about the “necessity or not” in the
context of the statement they had made on that. It was clear that his group had made
significant efforts and various proposals to find solutions during the discussions. They had
changed some of their views and positions in order to come to a decision. The group did
not support the draft decision but accepted it. He wished to place on record his group’s
understanding that point 5 would be decided at the 323rd Session of the Governing Body.
Decisions
209. Further to the wide-ranging discussion held under the fifth item on the agenda
of the Institutional Section, the Governing Body decided to:
(1) convene a three-day tripartite meeting in February 2015, open to observers
with speaking rights through their group, to be chaired by the Chairperson
of the Governing Body and composed of 32 Governments, 16 Employers and
16 Workers with a view to reporting to the 323rd Session (March 2015) of
the Governing Body on:
GB.322/PV
44 GB322_PV-[RELME-150323-1]-En.docx
■ the question of the Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87), in relation to the right to strike; and
■ the modalities and practices of strike action at national level;
(2) place on the agenda of its 323rd Session, the outcome and report from this
meeting on the basis of which the Governing Body will take a decision on
the necessity or not for a request to the International Court of Justice to
render an urgent advisory opinion concerning the interpretation of the
Freedom of Association and Protection of the Right to Organise Convention,
1948 (No. 87), in relation to the right to strike;
(3) take the necessary steps to ensure the effective functioning of the Committee
on the Application of Standards at the 104th Session of the International
Labour Conference, and to this end reconvene the Working Group on the
Working Methods of the Conference Committee on the Application of
Standards to prepare recommendations to the 323rd Session of the
Governing Body in March 2015, in particular with regard to the
establishment of the list of cases and the adoption of conclusions;
(4) defer at this stage further consideration of the possible establishment of a
tribunal in accordance with article 37(2) of the Constitution;
(5) as part of this package, refer to the 323rd Session of the Governing Body the
following:
(a) the launch of the Standards Review Mechanism (SRM), and to this
effect establish a tripartite working party composed of 16 Governments,
eight Employers and eight Workers to make proposals to the
323rd Session of the Governing Body in March 2015 on the modalities,
scope and timetable of the implementation of the SRM;
(b) a request to the Chairperson of the Committee of Experts on the
Application of Conventions and Recommendations (CEACR), Judge
Abdul Koroma (Sierra Leone), and the Chairperson of the Committee
on Freedom of Association (CFA), Professor Paul van der Heijden
(Netherlands), to jointly prepare a report on the interrelationship,
functioning and possible improvement of the various supervisory
procedures related to articles 22, 23, 24 and 26 of the ILO Constitution
and the complaints mechanism on freedom of association.
(GB.322/INS/5(Add.2), paragraph 1, as amended according to the discussion.)
Financial implications
210. The Governing Body decided that the cost of the package of measures proposed by the
Director-General estimated to cost up to US$684,300 that could not be financed from
extra-budgetary contributions, be financed in the first instance from savings in Part I of
the budget for 2014–15 or, failing that, through Part II, on the understanding that
should this subsequently prove impossible, the Director-General would propose
alternative methods of financing.
(GB.322/INS/5(Add.3), paragraph 3.)

Document No. 36
GB.323/INS/5, The Standards Initiative, March 2015

This GB document is printed in limited numbers to minimize the environmental impact of the ILO’s activities and processes, contribute to climate
neutrality and improve efficiency. GB members and observers are kindly requested to bring their copies to meetings and to avoid asking for
additional ones. All GB documents are available on the Internet at www.ilo.org.
INTERNATIONAL LABOUR OFFICE
Governing Body
323rd Session, Geneva, 12–27 March 2015
GB.323/INS/5
Institutional Section INS
Date: 13 March 2015
Original: English
FIFTH ITEM ON THE AGENDA
The Standards Initiative
Introduction
1. This document and its three appendices provide information on the follow up to and
progress made on the implementation of the decision of the Governing Body at its
322nd Session (November 2014) in relation to the Standards Initiative (GB.322/INS/5):
The Governing Body decided to:
(1) convene a three-day tripartite meeting in February 2015, open to observers with
speaking rights through their group, to be chaired by the Chairperson of the Governing
Body and composed of 32 Governments, 16 Employers and 16 Workers with a view to
reporting to the 323rd Session (March 2015) of the Governing Body on:
– the question of the Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87) in relation to the right to strike; and
– the modalities and practices of strike action at national level;
(2) place on the agenda of its 323rd Session, the outcome and report from this meeting on
the basis of which the Governing Body will take a decision on the necessity or not for a
request to the International Court of Justice to render an urgent advisory opinion
concerning the interpretation of the Freedom of Association and Protection of the Right
to Organise Convention, 1948 (No. 87), in relation to the right to strike;
(3) take the necessary steps to ensure the effective functioning of the Committee on the
Application of Standards at the 104th Session of the International Labour Conference,
and to this end reconvene the Working Group on the Working Methods of the
Conference Committee on the Application of Standards to prepare recommendations to
the 323rd Session of the Governing Body in March 2015, in particular with regard to the
establishment of the list of cases and the adoption of conclusions;
(4) defer at this stage further consideration of the possible establishment of a tribunal in
accordance with article 37(2) of the Constitution;
(5) as part of this package, refer to the 323rd Session of the Governing Body the following:
(a) the launch of the Standards Review Mechanism (SRM), and to this effect establish
a tripartite working party composed of 16 Governments, eight Employers and
eight Workers to make proposals to the 323rd Session of the Governing Body in
March 2015 on the modalities, scope and timetable of the implementation of the
SRM;
GB.323/INS/5
2 GB323-INS_5_[CABIN-150305-1]-En.docx
(b) a request to the Chairperson of the Committee of Experts on the Application of
Conventions and Recommendations (CEACR), Judge Abdul Koroma (Sierra
Leone), and the Chairperson of the Committee on Freedom of Association (CFA),
Professor Paul van der Heijden (Netherlands), to jointly prepare a report on the
interrelationship, functioning and possible improvement of the various supervisory
procedures related to articles 22, 23, 24 and 26 of the ILO Constitution and the
complaints mechanism on freedom of association.
A. The outcome and report of the tripartite
meeting concerning the question of the
Freedom of Association and Protection of
the Right to Organise Convention, 1948
(No. 87), in relation to the right to strike
and the modalities and practices of strike
action at national level
2. The Tripartite Meeting took place from 23 to 25 February 2015. A background document
was prepared by the Office for the Meeting. Part I of the document provided a factual
background on the adoption and supervision of the application of Convention No. 87 in
relation to the right to strike and the relevant rules of international law on treaty
interpretation. Part II provided a broad overview of modalities concerning strike action at
the national level in both law and practice.
3. The Meeting was conducted in a constructive atmosphere. The Workers’ and Employers’
groups presented a joint statement concerning a package of measures to find a possible
way out of the existing deadlock in the supervisory system. The Government group
expressed its common position on the right to strike in relation to freedom of association
and also delivered a second statement in response to the social partners’ joint statement.
The outcome and report of the Tripartite Meeting, together with the Office background
document are appended (Appendices I, II and III).
4. It is on the basis of the outcome and report of the Tripartite Meeting that the Governing
Body is called to decide on the need to request the International Court of Justice, in
accordance with article 37 of the Constitution, for an advisory opinion on the question of
the interpretation of Convention No. 87 in relation to the right to strike.
B. The effective functioning of the
Committee on the Application of
Standards (CAS)
5. After consultations with the three groups, arrangements have been made for the Working
Group on the Working Methods of the Conference Committee on the Application of
Standards (CAS Working Group) 1 to meet during the 323rd Session of the Governing
Body.
1 The composition of the CAS Working Group at its last meeting in November 2011 was based on
the following arrangements: nine Employer representatives; nine Worker representatives; and nine
Government representatives, including two from Africa, two from the Americas, two from the
Asia–Pacific region, two from Europe and one from the Arab States.
GB.323/INS/5
GB323-INS_5_[CABIN-150305-1]-En.docx 3
6. The proposed agenda for the CAS Working Group will include the two questions referred
to it by the Governing Body, namely: the establishment of the list of cases and the adoption
of conclusions. It is also proposed that the CAS Working Group consider the possible
implications of the two-week session of the Conference at its 104th Session (2015) on the
work of the Committee, while retaining the current number of sittings of the Committee.
Background documents have been prepared by the Office to facilitate the discussions of
the CAS Working Group, taking into account the statements from the Government group 2
and the Joint Statement from the Workers’ and the Employers’ Groups 3 to the Tripartite
Meeting.
7. The recommendations arising from the CAS Working Group will be referred to this
session of the Governing Body and submitted to the CAS at the beginning of its work
during the 104th Session (June 2015) of the Conference. 4 At the 325th Session (November
2015) of the Governing Body, the Working Party on the Functioning of the Governing
Body and the International Labour Conference (WP/GBC) will review the experience of
the two-week session of the Conference. 5
C. Launching the Standards Review
Mechanism (SRM)
8. It is recalled that at its 312th Session (November 2011), the Governing Body had before it
a document, 6 which set out nine elements related to “modalities” of the SRM that would
need tripartite consultation and consideration:
– Element 1: Objectives and proposed outcomes.
– Element 2: Guiding principles.
– Element 3: Framework.
– Element 4: Role of the Legal Issues and International Labour Standards (LILS)
Section of the Governing Body.
– Element 5: Establishment of the tripartite working group.
– Element 6: Composition of the tripartite working group.
– Element 7: Working methods and terms of reference of the tripartite working group.
– Element 8: The selection of standards to be reviewed.
2 TMFAPROC/2015/2, Appendices II and III.
3 TMFAPROC/2015/2, Appendix I.
4 The outcome of the discussion of the CAS Working Group will be reflected in document D.1,
“Work of the Committee”, which is to be adopted by the CAS at the beginning of its work.
Document D.1 will be attached to the letter communicating the preliminary list of individual cases,
together with a draft provisional work schedule for the CAS.
5 GB.322/INS/PV/Draft, para. 287(b)(i).
6 GB.312/LILS/5, paras 4–34.
GB.323/INS/5
4 GB323-INS_5_[CABIN-150305-1]-En.docx
– Element 9: Time frames accompanying the reviews.
Element 1: Objectives and proposed outcomes
9. At the 312th (November 2011) Session of the Governing Body it was proposed that the
objectives of the SRM would be to determine the status of the standards concerned,
identify those that are up to date and should be promoted, the best means of keeping them
up to date, those in need of revision, consolidation or other action, identify new subjects
and approaches for standard-setting; identify the best methods of preparation and adoption
of standards and the means for their effective implementation.
10. With respect to outcomes, the SRM would: ensure that ILO standards provide effective
protection for all workers, take into account the needs of sustainable enterprises, are
responsive to modern-day needs and future challenges, strengthen support for up-to-date
standards, increase the number of ratifications, improve effective implementation of
ratified Conventions and ensure that the body of international labour standards in place
supported the achievement of the ILO’s strategic objectives.
Element 2: Guiding principles
11. At its 310th (March 2011) and 312th (November 2011) Sessions, the Governing Body
discussed a set of general principles to guide the discussions on standards policy and which
should, ultimately, provide the basis for recommendations under the SRM. Following
further discussions between the Employers’ and Workers’ groups, at the 313th Session of
the Governing Body (March 2012), the two groups jointly put forward to governments a
set of common principles that emphasized the need for:
■ policy coherence in the context of the ILO Declaration on Social Justice for a Fair
Globalization;
■ a clear, robust and up-to-date body of standards for the purpose of protecting workers,
taking into account the needs of sustainable enterprises;
■ the adoption of decisions by consensus and, in the absence of consensus, existing
decisions should remain in place;
■ negotiations in good faith leading to a clear, robust and up-to-date body of standards;
and
■ agreement among the social partners to implement those commitments. 7
12. The Joint Statement of Workers’ and Employers’ Groups to the Tripartite Meeting
reflected similar principles:
■ Create a coherent policy framework within ILO standards machinery;
■ A clear, robust and up-to-date body of standards;
■ For the purpose of the protection of workers and taking into account the needs of
sustainable enterprises;
■ Adopt decisions by consensus;
7 GB.313/PV, para. 485.
GB.323/INS/5
GB323-INS_5_[CABIN-150305-1]-En.docx 5
■ Negotiate in good faith to have a clear, robust and up-to-date body of standards;
■ The social partners agree to implement these commitments.
Element 3: Framework
13. Discussions at the 312th Session of the Governing Body (November 2011) indicated that
there is consensus among constituents that the Social Justice Declaration provides a welldefined
framework for the SRM. The Joint Statement of Workers’ and Employers’ Groups
also indicates that: “The framework for the SRM would be the principles contained in the
ILO Declaration on Social Justice for a Fair Globalization”.
Element 4: Role of the legal issues and International
Labour Standards (LILS) Section of the Governing
Body
14. Based on the discussions in March 2011, a consensus emerged among constituents for the
LILS Section of the Governing Body to establish and oversee the SRM process and act as
the responsible forum to follow-up on the recommendations of the tripartite working
group. The Joint Statement of Workers’ and Employers’ Groups indicates that: “Overview
and follow up to SRM decisions: By the Governing Body in its LILS Section”.
Elements 5, 6 and 7: Establishment, composition,
working methods and terms of reference of the
tripartite working group
15. The Governing Body decision of November 2014 calls for a tripartite working party
composed of 16 Governments, eight Employers and eight Workers. The Joint Statement of
Workers’ and Employers’ Groups refers to a tripartite working group composed of
24 members (eight Governments, eight Employers and eight Workers) and that the
tripartite working group should meet for three days in March and November every year.
Element 8: The selection of standards to be reviewed
16. At the 312th Session (November 2011) the Office proposed two options to the Governing
Body:
(1) all standards with the exception of: the fundamental and governance Conventions and
their accompanying Recommendations, as well as the withdrawn, replaced and
recently consolidated instruments; 8 or
(2) standards not reviewed by the Cartier Working Party and adopted between 1985 and
2000 – with the exception of the Worst Forms of Child Labour Convention, 1999
(No. 182), and its accompanying Recommendation (No. 190), and the recently
consolidated standards – standards that have been classified by the Cartier Working
8 This relates to 130 Conventions, three Protocols and 105 Recommendations.
GB.323/INS/5
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Party as having an interim status, those in need of revision and those for which further
information was to be requested. 9
17. The Joint Statement of Workers’ and Employers’ Groups to the Tripartite Meeting
proposed the scope of the work of a tripartite SRM working group as: “All ILS, except
outdated, withdrawn, replaced or recently consolidated ILS, should be subject to
discussion and if agreed, review. In a first instance, Standards not reviewed by the Cartier
Working Party and adopted between 1985 and 2000, the instruments for which the Cartier
Working Party had requested further information, those classified by the Cartier Working
Party as having interim status, and those that remained to be revised could be the subject of
review.” 10
Element 9: Time frames accompanying the reviews
18. Based on the proposal in the Joint Statement from the Workers’ and Employers’ Groups as
referred to above, the first meeting of the tripartite SRM working group would be for three
days before the 325th Session of the Governing Body (November 2015). It could discuss
the modalities referred to above and the identification and selection of the standards to be
considered for review.
19. Taking into account the elements above, the following time frame is proposed:
■ April–July 2015: The Office would prepare a working document for consultation with
tripartite constituents.
■ September 2015: Consultations with the three groups, after which the Office would
prepare a revised document taking into account the outcome of consultations.
■ November 2015: SRM Working Group would hold its first meeting prior to the
Governing Body to consider the modalities for the SRM and the identification of the
first group of Standards to be reviewed. A progress report would be submitted to the
Governing Body (LILS Section) for discussion and decision.
■ January–February 2016: A further working document prepared by the Office as a
follow-up to the November 2015 Governing Body discussions, guidance and
decisions.
■ March 2016: SRM Working Group would hold its second meeting on the basis of the
working document prepared by the Office and propose the group of standards that
should be the subject of the review by the SRM and the consultation process for the
review.
■ November 2016: Examination of the first set of ILS reviewed under the SRM is
submitted to the Governing Body for its consideration and decision.
9 This relates to 49 Conventions and 52 Recommendations. The Protocol of 1996 to the Merchant
Shipping (Minimum Standards) Convention, 1976, which was earlier included in this group of
instruments has been revised and replaced by the MLC, 2006.
10 See GB.312/LILS/5, Appendix II, for a list of the instruments covered. This proposal would result
in a total of 139 Conventions, four Protocols and 113 Recommendations under review and, for those
instruments adopted between 1985 and 2000, this would result in a total of 49 Conventions and
52 Recommendations that would be considered by the tripartite working group.
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■ March 2017: SRM Working Group reports on progress.
■ November 2017: SRM Working Group continues its work and the Governing Body
adopts relevant decisions.
■ March 2018: Governing Body follow-up to November 2017 decisions of the
Governing Body.
D. Preparation of a report on the
interrelationship, functioning and possible
improvement of the various supervisory
procedures related to articles 22, 23, 24
and 26 of the ILO Constitution
(decision point 5(b))
20. At its 322nd Session (November 2014) the Governing Body deferred to this session
consideration of a request to the Chairpersons of the CEACR and the CFA to jointly
prepare a report on the interrelationship, functioning and possible improvement of the
various supervisory procedures related to articles 22, 23, 24 and 26 of the ILO Constitution
and the complaints mechanism on freedom of association. The Joint Statement of the
Workers’ and Employers’ Groups refer to the “clarification of the roles and mandates of
the CFA and the art. 24/26 procedures vis-à-vis regular standards supervision”.
Financial implications
21. As there is no provision in the Programme and Budget for 2014–15 nor in the Director-
General’s Programme and Budget proposals for 2016–17 to cover the costs of the
outcomes of the Tripartite Meeting, should the Governing Body decide to adopt any of the
measures proposed, financial arrangements would have to be made.
22. The estimated cost of Tripartite Working Group on the Standards Review Mechanism
described in paragraphs 15 and 19 would be US$176,800 per meeting, comprising:
US$
Travel costs 105 300
Interpretation 70 000
Documentation 1 500
176 800
23. The estimated costs in 2015 would be $176,800 and in 2016–17 would be $707,200.
24. The estimated cost to prepare and publish the report referred to in paragraph 20 during the
current biennium is $50,000.
Draft decision
25. The Governing Body:
(a) takes note of the outcome and report of the Tripartite Meeting on the
Freedom of Association and Protection of the Right to Organise Convention,
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1948 (No. 87), in relation to the right to strike and the modalities and
practices of strike action at national level;
(b) decides, in light of the outcome and report of the Tripartite Meeting, not to
pursue for the time being any action in accordance with article 37 of the
Constitution to address the interpretation question concerning Convention
No. 87 in relation to the right to strike;
(c) decides to take the necessary steps to ensure the effective functioning of the
Committee on the Application of Standards at the 104th Session of the
International Labour Conference, taking into account any
recommendations made by the Working Group on the Working Methods of
the Conference Committee on the Application of Standards, in particular
with regard to the establishment of the list of cases and the adoption of
conclusions;
(d) decides to establish under the SRM a tripartite working group composed of
32 members: 16 representing Governments, eight representing Employers
and eight representing Workers to meet for three days prior to the March
and November sessions of the Governing Body every year;
(e) decides that this tripartite SRM working group will report to the Governing
Body at its 325th Session in November 2015 on progress made in the
implementation of the SRM;
(f) requests the Chairperson of the Committee of Experts on the Application of
Conventions and Recommendations (CEACR), Judge Abdul Koroma (Sierra
Leone), and the Chairperson of the Committee on Freedom of Association
(CFA), Professor Paul van der Heijden (Netherlands), to jointly prepare a
report on the interrelationship, functioning and possible improvement of the
various supervisory procedures related to articles 22, 23, 24 and 26 of the
ILO Constitution and the complaints mechanism on freedom of association;
(g) decides that the cost of the measures proposed in this paper estimated to cost
up to $226,800 in 2015 and up to $707,200 in 2016–17 be financed in the
first instance from savings in Part I of the budget for the respective
bienniums or, failing that, through Part II, on the understanding that
should this subsequently prove impossible, the Director-General would
propose alternative methods of financing.
Document No. 37
Minutes of the 323rd Session of the Governing Body,
March 2015, paras 51–84

GB323_PV_[RELME-150613-1]-En.docx
INTERNATIONAL LABOUR OFFICE
Governing Body
323rd Session, Geneva, 12–27 March 2015
GB.323/PV
Minutes of the 323rd Session
of the Governing Body of the
International Labour Office
GB.323/PV
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Decision
50. The Governing Body noted that while progress had been made, a number of
fundamental activities required under the Action Plan for the Elimination of
Forced Labour in Myanmar by 2015 had not yet been implemented. In that
context the Governing Body:
(a) requested the Director-General to prepare a report for consideration at the
325th Session of the Governing Body (November 2015) on the
implementation and possible need for extension of the Action Plan, the
status of any outstanding individual cases including those specifically
referred to in the report, and steps necessary to ensure prosecution and
accountability of those who had exacted forced labour; and
(b) called on the Government of Myanmar to take all necessary actions to
ensure compliance with the Forced Labour Convention, 1930 (No. 29), and
requested the Government to submit, to the 325th Session of the Governing
Body (November 2015), a report on the measures it would take to do so in
the shortest possible time.
(GB.323/INS/4(Add.), paragraph 1.)
Fifth item on the agenda
The Standards Initiative
(GB.323/INS/5), (GB.323/INS/5/Appendix I)
(GB.323/INS/5/Appendix II) and (GB.323/INS/5/Appendix III)
51. The Employer coordinator welcomed the document, which gave a fair and balanced
account of what had been achieved in the November session of the Governing Body and
the Tripartite Meeting held in February 2015 on the right to strike. Those results were
important in breaking the deadlock that had prevented the ILO supervisory system from
operating properly, but were only a first step towards ensuring an effective and
well-functioning supervisory system. The Employers position remained unchanged on the
fact that the “right to strike” was not recognized in Convention No. 87. However, the
“Joint Statement” was considered as a commitment to continue to work together to
strengthen the supervisory system despite the differences of views. The Employers
remained committed to finding solutions to the many problems described in the document.
It was important to abide by the timetable given in paragraph 19, while progressing one
step at a time towards a solution. The joint statement of the Workers and Employers stated
the need to clarify and streamline supervisory procedures, including the role and mandate
of the Committee on Freedom of Association (CFA). It would indeed be advisable for the
Chairperson of the CFA and the Chairperson of the Committee of Experts on the
Application of Conventions and Recommendations (CEACR) to prepare a report on the
interrelationship, functioning and possible improvement of the various supervisory
procedures, as proposed in paragraph 20. The tripartite partners should be closely involved
in its preparation and drafting. His group supported the draft decision in paragraph 25.
52. The Worker Vice-Chairperson clarified some points in relation to the joint statement
presented by the Workers and Employers at the tripartite meeting held in February 2015.
The joint statement did not attempt to resolve all the problems, but it did allow the ILO to
resume the unimpeded supervision of international labour standards, which was crucial to
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the promotion of decent work everywhere. Nor did the statement mean that the Workers’
view on the right to strike had changed. The right to strike was fundamental to democracy
and a fundamental option for workers. It was protected by the Freedom of Association and
Protection of the Right to Organise Convention, 1948 (No. 87). He welcomed the
commitment of the Employers’ group, despite their disagreement on the interpretation of
that Convention, to restore mature industrial relations and to acknowledge the right of
workers to take industrial action in support of their legitimate industrial interests. He
endorsed the Government group’s statement reaffirming that the right to strike was an
intrinsic corollary of the right of freedom of association. Perhaps the most important
element of the joint statement by the social partners was the recognition of the mandate of
the CEACR, since it should permit the resumption of normal supervision of cases in the
Conference Committee on the Application of Standards (CAS).
53. On the draft decision, he welcomed subparagraph (a). His group looked forward to the
discussion in the Working Group on the working methods of the CAS, since it should
guarantee that the CAS henceforth operates normally. The Workers and the Employers had
agreed to a methodology for the selection of a long and a short list of cases and for the
drawing up of consensus-based conclusions with enhanced participation by the social
partners. His group therefore supported subparagraph (c). As the Workers’ group had
agreed to the launching of the Standards Review Mechanism (SRM), and given the
prevailing atmosphere of trust and mutual respect between the social partners, it was in
favour of subparagraphs (d) and (e) on the Tripartite Working Group to be established
under the SRM and its composition. Since a joint report from the Chairpersons of the
CEACR and the CFA could provide useful insights into the functioning and possible
improvement of the supervisory system, the Workers endorsed subparagraph (f). They
likewise agreed with subparagraphs (g) and (b), because they no longer sought referral to
the International Court of Justice of the interpretation of the right to strike under
Convention No. 87.
54. Speaking on behalf of the Government group, a Government representative of Italy
expressed her appreciation of the social partners’ constructive approach to dialogue. She
emphasized that the Government group recognized that the right to strike was linked to
freedom of association, which was a fundamental principle of the ILO. It specifically
recognized that freedom of association, in particular the right to organize activities for the
promotion and protection of workers’ interests, could not be fully realized without
protecting the right to strike, which albeit part of the fundamental principles and rights at
work of the ILO, was not an absolute right. The scope and conditions of that right were
regulated at the national level. Hence member States were responsible for the effective
implementation and observance of labour standards.
55. The process of nominating nine countries to participate in the Working Group on the
working methods of the CAS was complete. The CAS itself might wish to revise the
composition of the Working Group in order to reflect the particular regional structure of
the Government group. Observers without speaking rights would be able to attend
meetings of the Working Group. As to the Working Group on the SRM, her group
intended to complete the process of nominating the 16 government participants and of
identifying a suitable independent Chairperson before the Governing Body session in
June 2015. In order to contain costs and allow for more intense discussions, the Working
Group should meet once a year for one week. She agreed that the Chairpersons of the
CEACR and the CFA should be requested to jointly prepare the report mentioned in
paragraph 20. While agreeing with the financial provisions suggested in paragraph 25(g),
she requested clarification of the alternative methods of financing mentioned therein.
Lastly, she proposed a number of amendments, which had been circulated in a paper
distributed the previous day.
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56. Speaking on behalf of the Group of Latin American and Caribbean Countries (GRULAC),
a Government representative of the Bolivarian Republic of Venezuela said that GRULAC
had played an active role in the Tripartite Meeting held in February 2015, at which the
Government group had reached a common position recognizing the link between freedom
of association and the right to strike. It was regrettable that the findings and
recommendations of the CAS Working Group had not been submitted to the Working
Group on the Functioning of the Governing Body and the International Labour
Conference. That procedure should be followed in future. As for the SRM, it would be
advisable to consider whether it was really necessary for the Tripartite Working Group to
meet twice a year for three days. His group agreed with the time frame proposed in
paragraph 19 and was in favour of the joint report mentioned in paragraph 20, which
should be presented to the 326th Session of the Governing Body. Lastly, the decision
adopted at the current session should be reviewed at the 328th Session, without prejudice
to the prior consideration of any other issue arising in respect to the topic which might
prove necessary. He supported the draft decision in paragraph 25, subject to the
amendments proposed by the Government group.
57. Speaking on behalf of ASPAG, a Government representative of China welcomed the fact
that the social partners had reached agreement on the standards initiative, without the need
to refer the matter to the International Court of Justice. Selection of the cases submitted to
the CAS should be depoliticized and based on objective criteria. The list should be
balanced between fundamental and technical Conventions, geographical representation and
a country’s level of development, and should be released before the opening of the
Conference. As to the newly launched SRM, it could ensure a clear, robust and up-to-date
body of standards, meeting the needs and challenges of the current world of work. All
international labour standards, except outdated, withdrawn, replaced or recently
consolidated standards, should be subject to discussion and, if so agreed, reviewed.
Concerning the joint report referred to in subparagraph (f) of the draft decision, it was
important that the work of the various supervisory mechanisms should not overlap. The
roles and mandates of the CFA should therefore be clarified, as should those of regular
supervision procedures under articles 24 and 26 of the ILO Constitution. His group
supported the draft decision.
58. Speaking on behalf of the Africa group, a Government representative of Kenya expressed
appreciation of the fact that tripartite dialogue had prevailed in resolving the issues raised
by Convention No. 87 in relation to the right to strike and the modalities and practices of
strike action at the national level. His group looked forward to working closely with the
social partners with a view to fully re-establishing the effective functioning of the CAS,
including the planned review of the entire supervisory system. It proposed that government
delegates be funded from the budgetary provisions mentioned in subparagraph (g) of the
draft decision, in order that they could attend the Tripartite SRM Working Group. It
supported the draft decision, as amended by the Government group.
59. Speaking on behalf of IMEC, a Government representative of the United States welcomed
the progress made in relation to the Standards Initiative, especially the outcome of the
Tripartite Meeting on Convention No. 87 in relation to the right to strike. That meeting had
created a new momentum of trust between the social partners and of unity among
governments. The package of measures set out in the joint statement of the social partners
and the two statements by the Government group showed the way towards an effective and
lasting solution to the issues surrounding the ILO’s supervisory system. IMEC supported
the reactivation of the CAS Working Group and its proposed agenda. An independent chair
should be appointed from the Government group in addition to the nine Government
members. Governments should not be involved in drawing up the list of individual cases to
be reviewed by the CAS, whose conclusions would provide constituents with valuable
guidance.
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60. The SRM should be launched as soon as possible; however, some clarifications and
modifications were needed. While IMEC could support the objectives of the SRM as set
out in paragraph 9 of document GB.323/INS/5, care should be taken not to overburden the
process. The main focus should be on arriving at a body of up-to-date standards. A
follow-up mechanism should be included, to ensure that standards in need of revision were
put on the agenda of the International Labour Conference within a reasonable time frame.
Her group agreed that the ILO Declaration on Social Justice for a Fair Globalization was
the right framework for the SRM and concurred with the role of the Legal Issues and
International Labour Standards Section of the Governing Body, as outlined in
paragraph 14. It was in favour of establishing the SRM Working Group defined in
paragraph 15 and of appointing an independent chair from the Government group, in
addition to the 16 Government members. The members of the Working Group should have
expert knowledge of the ILO’s legal framework and it should be possible to vary the
membership according to the expertise needed for the standards under review. The
Working Group required clear terms of reference to ensure that the work of the Cartier
Working Party was not duplicated.
61. When selecting the standards to be reviewed, careful consideration should be given as to
whether to exclude the fundamental and governance Conventions, since they had special
status. Her group agreed with the contents of paragraph 16(2) and with the suggested time
frame, on the understanding that it could be adapted if necessary. The joint report referred
to in paragraph 20 should be discussed at the 326th Session (March 2016). She trusted that
its examination would not compromise the independence of the CEACR. She requested
clarification of the costs mentioned in paragraph 22. In order to contain costs, the SRM
Working Group should meet for one week, once a year.
62. Speaking on behalf of ASEAN, a Government representative of Cambodia welcomed the
outcome of the Tripartite Meeting held in February 2015 and the efforts to ensure the
effective functioning of the CAS. The criteria for the selection of cases to be submitted to
the latter should be objective and well-balanced between fundamental and technical
Conventions, geographical representation and the country’s level of development. ASEAN
was in favour of launching the SRM. It was crucial to clarify the roles and mandates of the
CFA and the articles 24 and 26 procedures. ASEAN supported the draft decision as it
stood in paragraph 25.
63. A Government representative of France, noting that the effective application of
international labour standards was at the core of the Organization’s work, welcomed the
restored capacity for dialogue within the Governing Body, the willingness of the
constituents to ensure the effective functioning of the labour standards system, and the
re-launch of the SRM. The important statement delivered by Governments at the Tripartite
Meeting in February should have been mentioned in the draft decision. Governments were
willing to consider the conditions for exercising the right to strike; however, conflicting
interpretations emerging from the CAS could threaten the legitimacy of tripartism. There
was still no legitimate procedure for resolving the interpretation question concerning
Convention No. 87 and other possible interpretation questions. His Government was still in
favour of establishing a flexible, low-cost interpretative body under article 37(2) of the
Constitution that would convene at the express request of the Governing Body.
64. A Government representative of Indonesia welcomed the outcome and report of the
Tripartite Meeting. In particular, he welcomed the efforts by the social partners to issue a
joint statement concerning a package of measures to find a possible way out of the existing
deadlock in the supervisory system. Underlining the importance of tripartite dialogue, he
hoped that the constructive atmosphere would continue. He supported the efforts to
establish an SRM.
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65. A Government representative of Japan said that the dispute on supervisory mechanisms
should be resolved through internal tripartite consultation. In that regard, he welcomed the
efforts made at the Tripartite Meeting to reach consensus. He agreed with the proposal in
the joint statement by the Workers and Employers that the list of cases chosen for the CAS
should be based on objective criteria and be balanced between the fundamental and
technical Conventions, geographical representation and a country’s level of development.
In the light of the proposal that no conclusions would be issued in the absence of
consensus, however, he said that the Employers and Workers should give due
consideration to ensuring that such a situation did not arise, as it would undermine the role
of the CAS. He would welcome a report on the inter-relationship, functioning and possible
improvement of the supervisory procedures.
66. A Government representative of Germany welcomed the progress made and the efforts
made by the social partners in particular to overcome the deadlock. Much remained to be
done, however, and his Government was willing to take an active part in the process.
67. A Government representative of Brazil hoped for a final consensus, including on the
application of article 37 of the Constitution. The interpretation question should be resolved
by the International Court of Justice, rather than by an internal ILO tribunal. The right to
strike was formally recognized in the International Covenant on Economic, Social and
Cultural Rights, as well as in the founding instruments of regional bodies such as the
Organization of American States. He supported the establishment of the SRM. More
transparent criteria should govern the selection of cases for the CAS. The role of
governments, as the bearers of the treaty obligations concerned, could be strengthened. The
hierarchy and priority given to the Committee’s procedures should be clarified. The
frequency of reporting should be reduced, and the supervisory function treated as a unitary
process.
68. A Government representative of India welcoming the outcome of the Tripartite Meeting,
reiterated the importance of tripartite discussion. In that regard, the International Labour
Conference was the supreme forum for deciding on matters relating to the world of work.
She supported the launch of the SRM and looked forward to a joint report by the
Chairpersons of the CEACR and the CFA on the operation and possible improvement of
the supervisory procedures related to articles 22, 23, 24 and 26 of the Constitution.
Consideration should be given to the burden of reporting, and to new reporting formats.
69. A Government representative of the United States reiterated his Government’s strong
desire to see the ILO’s supervisory machinery function fully and effectively and its
willingness to work with the other governments and the social partners to that end. Noting
with satisfaction the progress that had been made at the Tripartite Meeting, in particular
with regard to the framework proposed by the Employers and Workers, he said that he
welcomed the renewed spirit of collaboration and commitment to reinvigorating the
supervisory system.
70. A Government representative of Angola, noting with satisfaction the outcome of the
Tripartite Meeting, said that the right to strike was not absolute, being subject to national
law. The list of cases to be handled by the CAS should be balanced between the core and
technical Conventions, geographical representation and the level of development of the
various countries.
71. A Government representative of Turkey, noting that the Tripartite Meeting had provided
the opportunity for constructive social dialogue, said that the joint statement by the
Employers and Workers had given hope that consensus could be reached on a way out of
the current deadlock in the supervisory system. He also welcomed the consensus on the
mandate of the CEACR, and hoped for a similar consensus on the work of the CAS. He
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recalled that the CAS was not a tribunal but rather a platform for tripartite dialogue, and
that its conclusions were not court rulings. That principle should be reflected in the
wording of the conclusions. Efforts to ensure balance in the list of cases – which should be
adopted earlier – should not result in the omission of cases involving more serious
breaches. When complaints were made, there should also be an explanation of the steps
taken at the national level to resolve the issues.
72. A Government representative of China, highlighting the importance of social dialogue,
tripartism and technical cooperation, welcomed the positive outcome of the Tripartite
Meeting. He supported the proposal in the joint statement by the Workers and Employers
that the list of cases chosen for the CAS – which should be ready before the opening of the
session of the Conference – should be based on objective criteria and be balanced between
the fundamental and technical Conventions, geographical representation and a country’s
level of development. He agreed that the overall objective of the SRM should be to
guarantee the implementation of international labour standards that responded to changing
patterns of the world of work, for the purpose of the protection of workers and taking into
account the development of sustainable enterprises. He supported the establishment of an
SRM Working Group, as proposed in paragraph 17.
73. A Government representative of the United Kingdom said that the positive outcome of the
Tripartite Meeting demonstrated the unique role that the ILO played in finding sustainable
and consensual solutions; its importance should not be underestimated. He noted with
satisfaction that plans were in place to ensure the effective functioning of the CAS, and
looked forward to a renewed tripartite relationship and the wider benefits that such a
relationship would bring. Welcoming the commitment that had been expressed in the
Governing Body towards the SRM, he said that his Government would play a constructive
role in ensuring that the body of international labour standards was relevant and effective.
74. A Government representative of Belgium, highlighting the link between the right to strike
and freedom of association, said that further consideration should be given to whether the
fundamental Conventions should be covered by the SRM. In that regard, it would be useful
to prepare terms of reference. Reaffirming her Government’s commitment to ensuring the
effective functioning of the CAS, she noted that although significant progress had been
made, much remained to be done.
75. The representative of the Director-General (DDG/MR) explained that the measures
proposed in paragraph 25(g) could be funded through the reallocation of any savings or
under-expenditure achieved across the Office, or by using the provisions for unforeseen
expenditure provided for under Part II of the budget. It was only when those options were
exhausted that consideration would be given to alternative methods of financing. The
presentation of the report of the Working Party on the Functioning of the Governing Body
and the International Labour Conference later in the session would provide an opportunity
for the Governing Body to consider the relationship between the Working Party and the
CAS Working Group. There was no provision, in the estimated cost of meetings of the
SRM Working Group, for covering the travel costs of Government representatives.
76. The representative of the Director-General (DDG/MR), referring to point (c) of the draft
decision, said that no recommendations for the Governing Body had been made at the
meeting of the Working Group on the Working Methods of the Committee on the
Application of Standards, which had been held on 23 March 2015. The outcome of that
meeting would be developed further at the next meeting of the Working Group, in
June 2015.
77. The Employer coordinator said that his group could support the draft decision as amended
by the Government group.
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78. The Worker spokesperson said that, in general, his group could support the amendments
proposed by the Government group, apart from the additional wording suggested in point
(b), since it had not been decided at the 322nd Session (November 2014) of the Governing
Body not to pursue action in accordance with article 37 of the Constitution.
79. Speaking on behalf of the Government group, a Government representative of Italy said
that the decision taken in November 2014 contained a reference to deferring further
consideration of the possible establishment of a tribunal in accordance with article 37(2) of
the Constitution. Her group had wished to recall that decision in the point in question.
80. The Worker spokesperson said that, in view of that explanation, a separate point should be
added which would refer to action under article 37(1), on which no decision had been
taken in November 2014.
81. The representative of the Director-General (DDG/MR) suggested that point (b) should be
amended to read “pursuant to the decision taken in November 2014, decides, in light of the
outcome and the report …”.
82. Speaking on behalf of the Government group, the Government representative of Italy
endorsed the wording proposed by the representative of the Director-General.
83. The Worker spokesperson and the Employer coordinator also agreed to the wording
proposed by the representative of the Director-General.
Decision
84. The Governing Body:
(a) took note of the outcome and report of the Tripartite Meeting on the
Freedom of Association and Protection of the Right to Organise Convention,
1948 (No. 87), in relation to the right to strike and the modalities and
practices of strike action at national level;
(b) pursuant to the decision taken at the 322nd Session of the Governing Body
(November 2014), decided, in light of the outcome and report of the
Tripartite Meeting, not to pursue for the time being any action in
accordance with article 37 of the Constitution to address the interpretation
question concerning Convention No. 87 in relation to the right to strike;
(c) decided to take the necessary steps to ensure the effective functioning of the
Committee on the Application of Standards at the 104th Session of the
International Labour Conference (June 2015), taking into account any
recommendations made by the Working Group on the Working Methods of
the Conference Committee on the Application of Standards, in particular
with regard to the establishment of the list of cases and the adoption of
conclusions;
(d) called on all parties concerned, in light of the commitments made at the
Tripartite Meeting and at the 323rd Session of the Governing Body
(March 2015), to contribute to the successful conclusion of the work of the
Conference Committee on the Application of Standards at the 104th Session
of the International Labour Conference (June 2015);
GB.323/PV
GB323_PV_[RELME-150613-1]-En.docx 21
(e) decided to establish under the Standards Review Mechanism (SRM) a
Tripartite Working Group composed of 32 members: 16 representing
Governments, eight representing Employers and eight representing Workers
to meet once per year for one week;
(f) requested the Director-General to prepare draft terms of reference for the
Tripartite SRM Working Group for its consideration and submission to the
325th Session of the Governing Body (November 2015) for decision;
(g) decided that this Tripartite SRM Working Group would report to the
Governing Body at its 325th Session in November 2015 on progress made in
the implementation of the SRM;
(h) requested the Chairperson of the Committee of Experts on the Application of
Conventions and Recommendations (CEACR), Judge Abdul Koroma (Sierra
Leone), and the Chairperson of the Committee on Freedom of Association
(CFA), Professor Paul van der Heijden (Netherlands), to jointly prepare a
report, to be presented to the 326th Session of the Governing Body
(March 2016), on the interrelationship, functioning and possible
improvement of the various supervisory procedures related to articles 22, 23,
24 and 26 of the ILO Constitution and the complaints mechanism on
freedom of association;
(i) decided that the cost of the measures proposed in document GB.323/INS/5
estimated to cost up to US$226,800 in 2015 and up to $707,200 in 2016–17
be financed in the first instance from savings in Part I of the budget for the
respective bienniums or, failing that, through Part II, on the understanding
that should this subsequently prove impossible, the Director-General would
propose alternative methods of financing;
(j) decided to place on the agenda of its 328th Session (November 2016) an
overall review of this decision, without prejudice to any other issue arising
out of the standards initiative requiring prior consideration.
(GB.323/INS/5, paragraph 25, as amended.)
Sixth item on the agenda
Complaint concerning non-observance by
Guatemala of the Freedom of Association and
Protection of the Right to Organise Convention,
1948 (No. 87), made by delegates to the
101st Session (2012) of the International
Labour Conference under article 26
of the ILO Constitution
(GB.323/INS/6(Rev.))
85. The special representative of the Director-General for Guatemala, providing an update to
the report, said that the Office would help to disseminate the general directive issued by
the Public Prosecutor’s Office, to which reference was made in paragraph 44, to

Document No. 38
GB.344/INS/5, Work plan on the strengthening of the
supervisory system: Proposals on further steps to ensure
legal certainty and information on other action points in
the work plan, February 2022

 GB.344/INS/5
To minimize the environmental impact of ILO activities, Governing Body documents published before or after the sessions are not printed. Only documents
issued in-session are printed in limited numbers and distributed to Governing Body members. All Governing Body documents are available at www.ilo.org/gb.
Governing Body
344th Session, Geneva, March 2022
Institutional Section INS
Date: 16 February 2022
Original: English
Fifth item on the agenda
Work plan on the strengthening of the supervisory
system: Proposals on further steps to ensure legal
certainty and information on other action points
in the work plan
The document captures the outcome of the informal tripartite consultations held in January 2020 encompassing
a tripartite exchange of views on proposals to consider further steps to ensure legal certainty, based on the Office
paper on the elements and conditions for the operation of an independent body under article 37(2) of the
Constitution and of any other consensus-based options, as well as the article 37(1) procedure. The document
provides further information on progress in implementing selected proposals of the work plan to strengthen the
supervisory machinery.
Note: The consideration of this item has been deferred from the 338th Session (March 2020) of the Governing
Body and has since been presented to the 341st and 343rd Sessions of the Governing Body for information. The
content of the document is the same as GB.343/INS/INF/5(Rev.1) with a few adjustments in paragraph 73 and
Appendix II. A draft decision has been added in paragraph 74.
Relevant strategic objective: All four strategic objectives.
Main relevant outcome: Outcome 2: International labour standards and authoritative and effective supervision
and Outcome B: Effective and efficient governance of the Organization.
Policy implications: None at this stage.
Financial implications: None at this stage.
Follow-up action required: Depending on the decision of the Governing Body.
Purpose of the document
 GB.344/INS/5 2
Author unit: Office of the Legal Adviser (JUR) and the International Labour Standards Department (NORMES).
Related documents: GB.343/INS/INF/5(Rev.1); GB.341/INS/INF/1; GB.337/INS/5; GB.337/PV; GB.335/INS/5;
GB.335/PV; GB.334/INS/5; GB.334/PV; GB.332/INS/5(Rev.); GB.332/PV; GB.331/INS/5; GB.331/INS/3;
GB.331/POL/2; GB.331/PFA/5; GB.331/PV; GB.329/INS/5; GB.329/INS/5(Add.)(Rev.); GB.329/PV; GB.328/LILS/2/2;
GB.328/INS/6; GB.328/PV; GB.326/LILS/3/1; GB.326/PV; GB.323/INS/5; GB.323/PV.
 GB.344/INS/5 3
 Contents
Page
Introduction .............................................................................................................................................. 5
Legal certainty, interpretation of international labour Conventions and
the ILO constitutional order ................................................................................................................... 5
Previous tripartite discussions ......................................................................................................... 5
The principle of legal certainty ........................................................................................................ 6
Main features of the International Court of Justice advisory proceedings
initiated under article 37(1) .............................................................................................................. 7
Outline of the legal framework for the possible establishment of a tribunal
under article 37(2) .............................................................................................................................. 12
The role of tripartite consensus-based modalities ....................................................................... 17
Final considerations ........................................................................................................................... 18
Revised work plan for the strengthening of the supervisory system –
Update on selected work plan items ..................................................................................................... 19
Guide on established practices of the supervisory system and codification
of the article 26 procedure (Action Points 1.1 and 2.1) ................................................................ 20
Draft decision ............................................................................................................................................ 20
Appendices
I. Decisions taken by the Governing Body on strengthening
the supervisory machinery ............................................................................................................... 23
II. Work plan and timetable for Governing Body discussions
on the strengthening of the supervisory system .......................................................................... 26
 GB.344/INS/5 5
 Introduction
1. The revised work plan for the strengthening of the supervisory system, approved by the
Governing Body in March 2017, 1 provided under action 2.3 on legal certainty for guidance to
be sought from the Governing Body on the modalities of a possible future tripartite exchange
of views on article 37(2) of the Constitution and the elements and conditions necessary for the
operation of an independent body to interpret international labour Conventions. At its
335th Session (March 2019), the Governing Body “with respect to the proposal to consider
further steps to ensure legal certainty, decided to hold informal consultations in January 2020
and, to facilitate that tripartite exchange of views, requested the Office to prepare a paper on
the elements and conditions for the operation of an independent body under article 37(2) and
of any other consensus-based options, as well as the article 37(1) procedure”. 2
2. In January 2020, the Office facilitated the tripartite exchange of views on further steps to
ensure legal certainty based on a paper which provided clarifications on the meaning of legal
certainty, and its implications as regards the interpretation of Conventions. The tripartite
exchange of views permitted to reinforce the shared understanding that: (i) article 37 provides
the only constitutionally-based mechanism guaranteeing legal certainty in matters of
interpretation of Conventions; and (ii) the current constitutional order of the Organization
establishes an obligation for its tripartite constituents to refer any question or dispute relating
to the interpretation of Conventions to the International Court of Justice (ICJ), or possibly, to an
in-house tribunal.
3. The present document further elaborates on the paper that served as a basis for the tripartite
exchange of views and seeks to address issues raised in the course of that exchange. It also
provides an interim summary update of selected action points in the revised work plan on
strengthening the supervisory machinery.
 Legal certainty, interpretation of international labour
Conventions and the ILO constitutional order
Previous tripartite discussions
4. Extensive discussions and consultations have already taken place on the conditions and
modalities of a possible recourse to the possibilities set out in article 37 of the Constitution to
resolve any question or dispute relating to the interpretation of any Convention. There have
been two substantive discussions in the Governing Body.
5. The first discussion took place at its 256th Session in 1993 based on a paper that recalled the
origin and purpose of article 37(2); then reviewed how the problem of interpretation had been
dealt with and their limits and finally examined whether an article 37(2) tribunal could offer a
useful addition to the existing machinery. 3 However, while it was welcomed by the members
1 GB.329/INS/5(Add.)(Rev.).
2 GB.335/PV, para. 304(g).
3 GB.256/SC/2/2.
 GB.344/INS/5 6
of the Governing Body, the paper did not give rise to a detailed discussion and it was generally
felt that the creation of a tribunal under article 37(2) required further consideration. 4
6. Most recently, the Governing Body at its 320th Session (March 2014) requested the Director-
General to prepare a document setting out the possible modalities, scope and costs of action
under article 37 of the ILO Constitution to address a dispute or question that may arise in
relation to the interpretation of an ILO Convention. The Office paper was presented to the
322nd Session (October–November 2014) of the Governing Body and dealt with article 37(1)
and (2) in that respective order. The first part was dedicated to article 37(1) and laid out the
main characteristics and procedural aspects of the advisory function of the ICJ. The legal and
practical information contained in that document remains entirely valid and up to date. 5 The
second part of the October 2014 paper contained a draft statute for the establishment of an
in-house tribunal under article 37(2). Following a discussion, the Governing Body decided to
defer further consideration of the possible establishment of a tribunal in accordance with
article 37(2) of the Constitution. 6
7. The Governing Body discussions of November 2018 and March 2019 reflect a general
agreement on the need to ensure legal certainty in standards-related matters, and in particular
as regards the settlement of disputes on the interpretation of international labour standards. 7
In the same context, some constituents sought explanations as to the meaning and utility of
the principle of legal certainty. 8 It is recalled, in this regard, that in their joint position on the
ILO supervisory mechanism of 13 March 2017, the Workers’ and Employers’ groups had
observed that “divergent views and disputes about the interpretation of Conventions continue
to be a reality”. 9
8. Building on all previous discussions, and taking into account the recent tripartite exchange of
views, the purpose of the present analysis is to describe the main features of the constitutional
framework for the authoritative and definitive settlement of interpretation disputes and to
clarify the measure of discretion of the tripartite constituents within that constitutional
framework. This analysis below proceeds in three parts. The first part reviews the modalities
for seeking an advisory opinion from the International Court of Justice. The second part
clarifies key parameters for the establishment and operation of an in-house tribunal, and the
third part provides some considerations on the role of tripartite consensus-based modalities
in promoting legal certainty.
The principle of legal certainty
9. Legal certainty may be defined as the “clarity, unambiguity, and stability in a system of law
allowing those within the system to regulate their conduct according to the law’s dictates”. 10
Legal certainty is a core element of the principle of the rule of law 11 and fulfils a triple function
4 GB.256/11/22, paras 10–15; and GB.256/PV(Rev.), VI/3 and VI/4.
5 GB.322/INS/5.
6 GB.322/PV, para. 209(4).
7 GB.335/PV, para. 240.
8 GB.334/PV, para. 254.
9 GB.329/PV, Appendix II, Joint Position of the Workers’ and Employers’ groups on the ILO Supervisory Mechanism, 194.
10 Black’s Law Dictionary, tenth edition.
11 In the words of the UN Secretary-General, “the rule of law … refers to a principle of governance in which all persons,
institutions, and entities … are accountable to laws that are publicly promulgated, equally enforced and independently
adjudicated … . It requires measures to ensure adherence to the principles of supremacy of law, equality before the law,
 GB.344/INS/5 7
by promoting clarity (certitudo), security (securitas) and good faith (fides) in creating,
interpreting or applying the law. 12
10. When it comes to the interpretation of international labour Conventions, legal certainty implies
the ability to obtain unambiguous and decisive pronouncements on the scope and meaning of
provisions of Conventions so that States parties, or States considering ratification, can fully
appreciate the nature and extent of obligations arising from ratification, and can adapt
national law and practice accordingly.
11. In that sense, recourse to the advisory function of the ICJ and/or the establishment of an inhouse
tribunal would enhance stability and predictability in the understanding of the meaning
of Conventions, which in turn may have a positive impact on the ratification and
implementation of Conventions, and more broadly, on the credibility of the ILO and the
effectiveness and transparency of the system of supervision of standards. Having fully
operational procedures capable of resolving rapidly and definitively interpretation disputes
would indeed reinforce the perception of the ILO body of standards as an integrated and
coherent “International Labour Code”.
12. Moreover, in view of the growing number of international agreements and dispute settlement
mechanisms having a bearing on international labour standards but operating outside the
Organization, making use of, and conforming to the constitutional prescriptions of article 37
would enable the Organization to counter-balance, control or otherwise influence these
phenomena, through a procedure which is known and controlled by constituents.
Authoritative and binding interpretations obtained through the World Court under article 37(1)
or through an internal judicial body subject to the conditions enunciated in article 37(2) would
protect and preserve the integrity of the ILO body of standards and effectively mitigate the risk
of ILO standards being “interpreted” by entities foreign to the Organization without any sort
of influence by the ILO. As a result, article 37 is key to ensuring legal certainty and avoid a
fragmented interpretation of ILO Conventions.
Main features of the International Court of Justice advisory proceedings
initiated under article 37(1)
Constitutional theory and practice
13. Article 37(1) of the ILO Constitution provides for the referral of “any question or dispute”
relating to the interpretation of the Constitution or of any international labour Convention
adopted by Member States pursuant to the provisions of the Constitution to the International
Court of Justice “for decision”. The terms “question” and “dispute” have been taken directly from
Article 14 of the Covenant of the League of Nations which provided that “the Court may also
give an advisory opinion upon any dispute or question referred to it by the Council or by the
Assembly” and have been inserted in what would become article 37 of the Constitution by the
Commission on International Labour Legislation. It appears that the use of both terms in the
Covenant was meant not to restrict the scope of the Permanent Court of International Justice’s
(PCIJ) advisory function. As such, while a “dispute” in international law encompasses “a
disagreement on a point of law or fact, a conflict of legal views or of interests between two
accountability to the law, fairness … legal certainty, avoidance of arbitrariness and procedural and legal transparency”; see
The rule of law and transitional justice in conflict and post-conflict societies, S/2004/616, para. 6.
12 See, for instance, Robert Kolb, “La sécurité juridique en droit international: aspects théoriques”, African Yearbook of
International Law, 2002, Vol. 10, 103.
 GB.344/INS/5 8
persons”, 13 the term “question” is broad enough to allow for any interpretation request to be
referred to the Court. 14 This does not mean, of course, that any matter would or should be
referred to the Court. The existence of a dispute or question which should normally lead to a
request for advisory opinion is for the Governing Body to determine. At present, there is one
pending interpretation dispute which concerns the Freedom of Association and Protection of
the Right to Organise Convention, 1948 (No. 87).
14. Interpretation disputes may be distinguished from mere or occasional expressions of
disagreement on the meaning of international labour standards and from clarification
requests addressed to the Office for advice. Disagreement on the scope or meaning of certain
provisions may arise without necessarily calling into question the validity of comments,
conclusions or recommendations of the supervisory bodies or interfering with their authority
to formulate such comments, conclusions or recommendations. As for requests addressed to
the Office, they seek to obtain clarifications on the meaning of specific provisions, mainly
through a careful review of the preparatory work.
15. As a matter of constitutional theory and practice, article 37(1) has always been understood as
conferring a binding and decisive effect to advisory opinions obtained on that basis. In its early
years, the ILO – in reality, the League of Nations acting at the Organization’s request – had
recourse to the advisory function of the PCIJ on six occasions between 1922 and 1932 on the
basis of the provision inserted in the 1919 Constitution – which is almost identical to the current
article 37(1). The PCIJ rendered advisory opinions on the interpretation of the Constitution on
five occasions and of a Convention on one occasion (Night Work (Women) Convention, 1919
(No. 4)). All six advisory opinions were promptly accepted and implemented. For instance,
following the interpretation of Convention No. 4 by the PCIJ, the Conference decided that it
was necessary to revise Convention No. 4 and thus adopted the Night Work (Women)
Convention (Revised), 1934 (No. 41). 15
16. All six pronouncements provided valuable inputs and guidance with regard to the mandate,
scope of action and normative function of the Organization. The first advisory opinion on
article 3(5) of the Constitution has shed – and continues to shed – light on the issue of the
method of nomination of non-governmental delegates at the Conference. The advisory
opinion on women’s night work led to the revision of Convention No. 4 while the three advisory
opinions on ILO competence confirmed that the scope of standard-setting could extend to
work in agriculture and could regulate the employers’ activities. As for the advisory opinion on
the Free City of Danzig, it determined that the capacity of an entity to freely participate in ILO
activities, such as the ratification of international labour Conventions, is a precondition for
statehood, and by implication, a precondition for admission to ILO membership.
17. To date, the ILO has not referred any interpretation question for an advisory opinion to the ICJ
since the latter succeeded the PCIJ. As for the reasons why there has been no recourse to article
37 since 1932, it should be recalled that the initial constitutional set up in 1919 consisted in
distinguishing among three normative functions, the adoption of international labour
standards, the control of their application and their interpretation. Gradually, and especially
13 The Mavrommatis Palestine Concessions, Permanent Court of International Justice, Collection of Judgments, Series A, No. 2,
11.
14 The term “question” in Article 14 of the League’s Covenant is commonly understood as referring to matters other than
disputes or specific aspects of disputes considered separately or legal questions arising outside of any dispute; see Robert
Kolb, ed., Commentaire sur le Pacte de la Société des Nations, 2014, 593.
15 Interpretation of the Convention of 1919 concerning Employment of Women during the Night (Advisory Opinion 25; PCIJ Rep
Series A/B No. 50).
 GB.344/INS/5 9
after the 1946 constitutional reform, the supervisory bodies assumed a more prominent role
in “interpreting” international labour standards in the discharge of their responsibilities. For a
long period, their views were regarded on the whole sufficient to maintain legal certainty.
Recent experience, however, shows that in those instances in which the comments or
conclusions of supervisory bodies are not perceived to be sufficient to maintain legal certainty,
recourse to article 37(1) is needed to prevent an interpretation dispute from generating a level
of legal controversy and uncertainty that compromises the harmonious pursuit of the
normative activities of the Organization.
18. It is recalled that such an advisory opinion could be solicited for an interpretation of a “question
or dispute” under article 37(1), or for a “legal question within the scope of [ILO] activities” under
article IX(2) of the 1946 UN–ILO relationship agreement.
Legal nature of article 37
19. Article 37 of the ILO Constitution typifies what is better known as a “dispute settlement clause”,
that is a provision that prescribes the method, technique or procedure that should be used for
resolving future differences arising out of the application or the interpretation of an
international treaty. By its nature, therefore, a dispute settlement clause provides for
compulsory rather than optional action; it dictates in more or less detailed terms a specific
legal solution at the exclusion of others.
20. In the case of article 37, in particular, the unqualified language renders the idea of a direct
legal obligation even stronger; “any” interpretation dispute shall be referred to the ICJ for
decision (toutes les questions seront soumises). Had the intention been to leave room for
discretion the drafters would have provided that a question “may be referred” to the ICJ or they
would have made referral conditional on the inability to resolve the issue through other means.
This is the case, for instance, of the Convention on the Privileges and Immunities of the
Specialized Agencies, section 32 of which provides that all differences shall be referred to the
ICJ “unless in any case it is agreed by the parties to have recourse to another mode of
settlement”. 16
21. In the self-contained legal framework established by the drafters of the ILO Constitution,
recourse to the advisory function of the ICJ appears mandatory in all circumstances. Whereas
procedurally speaking, a referral needs to be discussed and decided upon by the appropriate
organ, the forum and method of settlement are specifically determined under article 37(1).
What article 37(2) has added to this framework in 1946 is a possibility to create a separate
judicial instance for the expeditious settlement of disputes relating to the interpretation of
Conventions when “the points at issue are of so meticulous a character as not to warrant
recourse to the principal judicial organ of the international community”. 17 As long as this
possibility is not put into effect, referral to the ICJ for an advisory opinion under article 37(1)
remains to date the only constitutional avenue of authoritatively resolving an interpretation
dispute. Therefore, not making use of article 37 despite the existence of a generally
acknowledged interpretation dispute is difficult to justify on constitutional grounds.
16 See also article 75 of the Constitution of the World Health Organization (WHO) which provides that any question of dispute
concerning the interpretation or application of the Constitution “which is not settled by negotiation or by the Health
Assembly” shall be referred to the ICJ “unless the parties agree on another mode of settlement”. Similarly, article XVII of the
Constitution of the Food and Agriculture Organization (FAO) provides that any question or dispute concerning the
interpretation of the Constitution “if not settled by the Conference” shall be referred to the ICJ.
17 ILO: Report IV(1), International Labour Conference, 27th Session, 1945, 108.
 GB.344/INS/5 10
Initiation of proceedings
22. The advisory procedure may be initiated with a written request addressed by the Office to the
Registrar of the ICJ. In doing so, the Office must provide an exact statement of the question –
as decided by the Governing Body – upon which an opinion is required and must accompany
it with all documents likely to throw light upon the question. This documentation should
contain all background information on the underlying dispute. 18
Jurisdiction and admissibility
23. For the Court to have jurisdiction, the question must be directly related to the activities of the
requesting organization and must refer to issues falling within its sphere of competence or
speciality. For it to be receivable, the question put to the Court must be legal in nature. The fact
that the question may have political dimensions, or is abstract or unclear, does not, in principle,
suffice for the Court to decline to give an opinion. It should be noted that the Court may
reformulate or interpret the question, as it may deem appropriate, for the purposes of
rendering its opinion.
Notification, invitation to participate in proceedings
24. The Court has always placed particular importance on ensuring that the information available
to it is sufficiently comprehensive and adequate for it to fulfil its judicial function. All States
entitled to appear before the Court and international organizations considered by the Court as
likely to be able to furnish information on the question are invited to provide written
statements or make oral statements but they have no obligation to do so.
25. Accordingly, it is probable that in the event of a request for an advisory opinion on the
interpretation of an ILO Convention, all Member States – whether they have ratified the
Convention in question or not – would have the possibility to actively participate in the
proceedings and communicate relevant information to the Court.
Participation of international employers’ and workers’ organizations
26. The question whether the social partners could participate in advisory proceedings has been
central to the debate about the possible referral of a dispute regarding the interpretation of a
Convention to the ICJ.
27. While there may be some doubt as to which “international organizations” are allowed to submit
briefs or to appear before the Court – this term in principle excluding the participation of nongovernmental
organizations – it is unlikely that the Court would apply a narrow interpretation
of that term in relation to the possible participation of international employers’ and workers’
organizations in advisory proceedings initiated by the ILO.
28. As a matter of fact, every time an opinion concerning the ILO has been requested in the period
1922–32, international employers’ and workers’ organizations have been allowed to participate
in the proceedings. 19 The current article 66(2) of the ICJ Statute reproduces article 73 of the
Revised Rules of the PCIJ.
18 For example, when requesting the advisory opinion on the interpretation of Convention No. 4, the ILO submitted extracts
from verbatim records of the ILC, Governing Body minutes, draft Conventions, Office reports, and written statements of
constituents.
19 In 1922, in the advisory proceedings concerning the Designation of the Workers’ Delegate for the Netherlands at the Third
Session of the International Labour Conference, the Court invited the International Association for the Legal Protection of
 GB.344/INS/5 11
29. In addition, recent case law supports the view that the Court is prepared to open up its advisory
proceedings to actors other than States and international intergovernmental organizations
every time the participation of such actors is substantively and procedurally essential
considering the concrete context of the case, in light of considerations of fairness and justice,
but also bearing in mind the need to obtain the fullest information possible. 20 It is now widely
recognized that the Court adopts a pragmatic approach so as to ensure that all interests at
stake can be expressed, and shows a certain flexibility to hear actors other than States.
30. In any event, in the case of an eventual referral, the Office could include in the “dossier” that
needs to be submitted together with the request, any briefs, position papers or other
documents that the Employers’ and Workers’ groups might wish to bring to the knowledge of
the Court.
Written observations and oral arguments
31. The Court fixes by order the time limit for any submission of written statements by those States
and international organizations that have been invited to participate. The Court’s Statute
provides for the possibility of entities participating in the advisory proceedings to be granted
the right to reply to the statements presented by other entities. The Court may at its discretion
decide to hold public hearings for oral arguments.
Urgent requests
32. The Court can render an advisory opinion following an accelerated procedure if an urgent
request is made to that effect (for example shorter time limits for written submissions, and/or
no hearings). The need for expeditious advice is examined by the Court on a case-by-case basis.
Costs
33. Requests for advisory opinions carry no costs other than those resulting from the participation
of the Office in oral proceedings before the Court. The operation of the ICJ is fully funded by
the United Nations (UN). The only expenses would eventually relate to the reproduction of the
“dossier” in the number of copies required by the Registry and the mission cost of the
representative of the requesting organization who may participate in the oral proceedings.
Workers, the International Federation of Christian Trade Unions, and the International Federation of Trade Unions. In the
advisory proceedings relating to the Competence of the ILO in regard to International Regulation of the Conditions of the Labour
of Persons Employed in Agriculture, the Court invited the following six organizations to participate: the International Federation
of Agricultural Trade Unions, the International League of Agricultural Associations, the International Federation of Christian
Trade Unions of Landworkers, the International Federation of Landworkers, the International Federation of Trade Unions,
and the International Association for the Legal Protection of Workers. In the 1926 advisory proceedings on the Competence
of the International Labour Organization to Regulate Incidentally the Personal Work of the Employer, three organizations were
permitted to participate: the International Organization of Industrial Employers, the International Federation of Trade
Unions, and the International Confederation of Christian Trade Unions. In the 1932 advisory opinion on the Interpretation of
the Convention of 1919 concerning the Employment of Women during the Night, the International Federation of Trade Unions
and the International Confederation of Christian Trade Unions submitted written and oral statements.
20 For instance, in the context of recent advisory proceedings (Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Order of 19 December 2003, I.C.J. Reports 2003, 429) and Accordance with International Law of the Unilateral
Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo, Order of 17 October 2008, I.C.J. Reports
2008, 410), the Court has accepted to receive submissions from entities other than States and public international
organizations. See also Dinah Shelton, “The participation of non-governmental organizations in international judicial
proceedings”, American Journal of International Law, Vol. 88, 1994, 623.
 GB.344/INS/5 12
Legal effect of an advisory opinion and institutional follow-up
34. While advisory opinions are not binding per se, they may be accepted as such, for instance,
through a specific clause to this effect. The Court has always drawn a distinction between the
advisory nature of its task and the particular effects that parties to an existing dispute may
wish to attribute to an advisory opinion. As a matter of constitutional practice, the ILO has
always considered advisory opinions to be binding. On a practical level, it will be for the ILO
executive organs to decide and implement the necessary measures – legal, political,
administrative or others – in order to give full effect to the judicial pronouncement. It is
recalled, for instance, that the revision of Convention No. 4, which eventually led to the
adoption of Convention No. 41 in relation to night work of women, was initiated in application
of the advisory opinion delivered by the PCIJ regarding the interpretation of Article 3 of
Convention No. 4. 21
35. As for the institutional follow-up, the Court has consistently taken the view that the practical
utility of an advisory opinion is a matter exclusively for the requesting organ to consider, and
that once it has spelled out the law, it is for the body that initiated the request to draw the
conclusions from the Court’s findings.
36. In the case of the six advisory opinions delivered at the ILO’s request, they were all published
in the Official Bulletin and referred to in the Director-General’s Report to the Conference. They
were also promptly implemented in practice. For instance, following the Court’s advisory
opinion relating to the interpretation of Convention No. 4, the Governing Body decided in 1933
to propose the revision of the Convention, which eventually led to the adoption of Convention
No. 41 in 1934. 22
Outline of the legal framework for the possible establishment of a tribunal
under article 37(2)
Constitutional parameters
37. Article 37(2) of the Constitution reads as follows: “Notwithstanding the provisions of
paragraph 1 of this article the Governing Body may make and submit to the Conference for
approval rules providing for the appointment of a tribunal for the expeditious determination
of any dispute or question relating to the interpretation of a Convention which may be referred
thereto by the Governing Body or in accordance with the terms of the Convention. Any
applicable judgment or advisory opinion of the International Court of Justice shall be binding
upon any tribunal established in virtue of this paragraph. Any award made by such a tribunal
shall be circulated to the Members of the Organization and any observations which they may
make thereon shall be brought before the Conference.”
38. This article provides limited guidance on the organization and functioning of the tribunal, and
therefore affords considerable discretion to the Governing Body to shape the tribunal
according to needs and preferences. The Constitution defines, nonetheless, in an unqualified
manner, certain key parameters which set the framework under which the Governing Body will
be able to exercise its discretion in establishing such tribunal.
21 See footnote 14.
22 ILO: See Minutes of the Governing Body, 64th Session, 1933, 20; and Record of Proceedings, International Labour Conference,
18th Session, 1934, 196, 202.
 GB.344/INS/5 13
39. First, as per the terms of article 37(2), the independent body to be established can only be a
tribunal, and not any other type of expert body, even if it were to perform quasi-judicial
functions. A tribunal is defined as a “court of justice or other adjudicatory body” 23 or as a
“jurisdictional organ established to rule on disputes by issuing binding decisions based on legal
rules”. 24 In the same vein, it should be noted that the tribunal is to render awards which are
“jurisdictional acts that aim at adjudicating in a definitive and binding manner”. 25 It flows,
therefore, that the tribunal referred to in article 37(2) is to be composed of judges who should
meet high standards of legal expertise, integrity and impartiality. Constituents participating in
the tripartite exchange of views in January 2020 underlined the importance of judges meeting
these standards and were generally of the view that it would not be appropriate for a tribunal
to have a tripartite composition.
40. As confirmed by the preparatory work, 26 the terms “tribunal” and “award” used in article 37(2)
imply judicial adjudication and leave no doubt that the awards of the tribunal would be binding
and opposable to all, only subject to any relevant judgment or advisory opinion of the ICJ. 27
41. Second, the purpose of the tribunal is to ensure the “expeditious determination” of any dispute
or question relating to the interpretation of a Convention. This does imply that certain
questions of interpretation are expected to be handled expeditiously by an in-house tribunal.
In the Conference discussions leading up to the 1946 constitutional amendment, the nature of
questions that could be brought to the tribunal was distinguished from those which should be
referred to the ICJ. While, in principle – should a tribunal be established – any question or
dispute could be submitted to either body at the discretion of the Governing Body, it was
generally accepted that some questions about the scope or meaning of provisions of
international labour Conventions might not merit to be brought before the principal judicial
organ of the UN. 28 Accordingly, it may be assumed that questions with broader systemic
implications for the Organization and beyond could be referred to the ICJ whereas questions
of a narrowly technical nature with limited repercussions outside the confines of the
Convention in question could be in the first instance transmitted to the tribunal.
42. Third, the rules establishing the tribunal – which would include a statute as the constituent
instrument and procedural rules – would be drawn up by the Governing Body and approved
by the Conference. The Office could provide assistance in preparing those rules, drawing on
the practice of other international tribunals mandated to interpret international treaties.
43. Fourth, the referral to a tribunal of any dispute or question of interpretation can only be made
by the Governing Body or in accordance with the terms of the Convention in question. As things
now stand, only questions of interpretation referred by the Governing Body could be handled
by the tribunal. Should a tribunal be established, a standard clause could be included in the
23 Black’s Law Dictionary, tenth edition.
24 Emile Bruylant, Dictionnaire de droit international public, 2001.
25 Bruylant, 2001.
26 The Tripartite Conference Delegation on Constitutional Questions that discussed article 37(2) in 1946 stressed the need for
uniformity of interpretation and expressed the view that any award of the tribunal should be binding on all Member States.
27 See article 37(2). The ICJ is not a regular appeal court for any international tribunal (see https://www.icjcij.
org/en/frequently-asked-questions). However, observations on awards of the tribunal would be brought before the
Conference (article 37(2)). If the award of the tribunal were to be challenged, an advisory opinion of the International Court
of Justice could still be sought in accordance with article 37(1).
28 ILO: Report IV(1), International Labour Conference, 27th Session, 1945, 107–108.
 GB.344/INS/5 14
final provisions of future Conventions providing for referral of any interpretation dispute to
that tribunal.
44. Fifth, any applicable judgment or advisory opinion of the International Court of Justice will be
binding upon the tribunal, which implies that awards rendered by the tribunal could be
possibly challenged by filing an “appeal” with the ICJ.
45. Sixth, decisions made by the tribunal will be circulated to the Members of the Organization for
them to make possible observations that would be brought before the Conference. It appears
that the intention of the drafters was to ensure that all ILO Member States would be appraised
of the tribunal’s award and be given the opportunity to express their views before the
Conference. Communicating comments of Member States to the Conference would not entail,
in principle, reopening the substantive interpretation question unless constituents wished to
“appeal” the award and seek to bring the matter before the ICJ for final decision. The emphasis
was, therefore, both on the public nature of the procedure and the possibility to ILO members
and the Conference to draw the consequences of a particular interpretation rendered by the
tribunal, including a revision of the Convention interpreted by the tribunal. In line with the
practice of other international courts and tribunals, the proceedings could be made public,
possibly within limits defined by the Governing Body or the tribunal itself.
46. Within these constitutional parameters, it would be useful to highlight the specificities of an
in-house tribunal. A tribunal could strengthen the role of tripartism in matters of interpretation
and would constitute an important safeguard for constituents in relation to decisions that
would have a binding effect and would be applicable to all Member States. For one thing, the
development and adoption of rules for the appointment of a tribunal under article 37(2) would
enable constituents to shape the establishment of an authoritative interpretation mechanism
and its integration into the overall system of the supervision of standards. What is more, rules
providing for an adversarial process and the possibility of oral proceedings would allow
tripartite constituents to actively contribute to the development of a body of interpretations
on significant standards-related matters.
47. It should also be recalled that the tribunal would be primarily intended to allow for the
expeditious settlement of any question or dispute regarding the interpretation of Conventions.
The expeditiousness of the process would be ensured by the fact that the tribunal would be
on-call and would exclusively have to deal with interpretations requests referred to it by the
Governing Body, contrary to the ICJ which has to examine numerous contentious cases and
requests for advisory opinions every year. Another important feature of the tribunal is that the
Governing Body would maintain control over its structure and procedure and thus offer
greater flexibility as compared to the ICJ. In addition, as already mentioned, the tribunal could
be entrusted with all those interpretation questions which would not be considered suitable
for referral to the principal judicial organ of the UN.
Structure and composition
48. The Governing Body would have to decide whether it wishes to set up a permanent structure
or not. This would mostly depend on the envisaged workload of the tribunal. As the exact
number of future interpretation requests may not be foreseen with precision, it might be
advisable to consider setting up an on-call mechanism, or a mechanism for a trial period of
three to five years.
49. As article 37(2) is silent on the composition of an in-house tribunal, (that is
number/qualifications of judges) it would be for the Governing Body to provide for the number
of judges (possibly between three and seven) and eligibility criteria. The composition of
 GB.344/INS/5 15
international tribunals usually respond to two imperatives: selecting judges of high moral
character and outstanding professional qualifications, and ensuring gender and geographical
balance. The Governing Body could also consider appointing assessors selected by the
Employers’ and Workers’ groups and specifically tasked to provide inputs of a technical nature
without having any decision-making power. The Tribunal’s Statute would also need to provide
for rules on a number of issues related to judges, such as incompatibilities, resignation, conflict
of interest and recusal, removal and honoraria.
Selection and term of office of judges
50. The Governing Body would have to draw up the relevant rules on the selection and
appointment of judges, involving for example prospection by the Office, recommendations
submitted by the Director-General, examination of appointable candidates by the Governing
Body, and approval by the Conference.
51. The length of the judges’ term of office should be determined in the Tribunal’s Statute. The
practice of international courts and tribunals varies considerably both in terms of number of
years and also with regard to the possibility of renewal. In light of the unforeseen workload
and the importance of securing judicial independence, a relatively long term of office of
between five and ten years could be envisaged.
Administrative arrangements and costs
52. The seat of the tribunal would be at ILO headquarters in Geneva. The Director-General would
be responsible for making administrative arrangements for the operation of the tribunal. The
Governing Body should decide whether a permanent registry would be necessary or not. In
the event an ad hoc or on-call mechanism is established, ILO staff servicing the ILO
Administrative Tribunal could be detached, as necessary, for the provision of secretarial
assistance to the tribunal.
53. The costs would depend on the type of structure (permanent or on-call) and other modalities
(permanent registry or temporary detachment of officials) retained by the Governing Body,
and the number of cases submitted to the tribunal. Expenses could be kept fairly low. It could
be decided, for instance, that the judges would not receive any honoraria unless selected to sit
on a panel or that support and registry services would only be solicited on a need basis. 29
Relationship with supervisory bodies
54. Concerns have often been raised in previous discussions on the impact of an in-house tribunal
on the status and authority of the supervisory bodies. Ultimately, this issue lies with the
constituents and would need to be addressed under the rules for the appointment of a
tribunal. These rules could contain the necessary procedural guarantees to ensure that the
tribunal’s functions and responsibilities are properly articulated as distinct from those of the
supervisory bodies. 30
29 It was estimated in 2014 that a tribunal designed to be permanently available to receive and examine interpretation
requests, but would only be in session when a question or dispute is referred to it by the Governing Body and so would only
be functioning if a panel is constituted to hear a case would cost at most between CHF124,100 and CHF139,100 per case (see
GB.322/INS/5, para. 100).
30 See also Joint report of the Chairpersons of the CEACR and the CFA, GB.326/LILS/3/1, paras 131–136.
 GB.344/INS/5 16
Procedural rules – Initiation of proceedings
55. Under article 37(2), referral of interpretation requests is the prerogative of the Governing Body.
In assessing whether to make an interpretation request, the Governing Body may consider all
practical, legal and political circumstances it deems pertinent. In drawing up the rules, the
Governing Body could also provide for receivability criteria (for example failed attempts to
resolve an interpretation question through consensus-based modalities, a specific request
received from supervisory bodies or from outside bodies or organizations). As already
mentioned, the rules could allow supervisory bodies, or other entities to be determined, to
submit a request to the Governing Body to seize the tribunal on an interpretation question.
Indeed, it should be recalled that in the early years, 31 the Committee of Experts and the
Conference Committee on the Application of Standards drew the attention of the Governing
Body on a number of difficulties in the interpretation of Conventions.
Conduct of the proceedings
56. In case of a request for interpretation made by the Governing Body, there would not be strictly
speaking “parties” to a dispute. The Tribunal’s Statute or rules could provide for full tripartite
participation in the proceedings. The Statute or rules could allow any government of Member
States, as well as the Employers’ and Workers’ groups to submit their views to the tribunal. In
following the practice of other international tribunals, the Governing Body could decide to
allow organizations enjoying a general consultative status, public international organizations
or international non-governmental organizations to submit briefs, commonly known as amicus
curiae or to allow the tribunal to invite those organizations to provide it with any relevant
information.
57. The rules drawn up by the Governing Body should provide for general time limits, form and
volume of written submissions, and length of oral submissions. These questions or some
details thereof could alternatively be left to the tribunal to decide.
Means of interpretation
58. The Governing Body may also decide to adopt provisions specifying the means of
interpretation to be applied by the tribunal. For instance, it could be envisaged that in
determining disputes or questions relating to the interpretation of an international labour
Convention, the tribunal should apply, in addition to the Convention in question, any other
relevant rule of international law (which could include relevant international Conventions,
international customary law such as the rules on interpretation of the 1969 Vienna Convention
on the Law of Treaties, general principles and jurisprudence of international courts and
tribunals) as well as the travaux préparatoires of the Convention in question and comments,
reports or conclusions of ILO supervisory bodies.
Adoption of decisions
59. The Governing Body would have to decide on the quorum for the tribunal’s awards to be valid,
and the majority required. In practice, most international courts and tribunals adopt their
decisions by majority with the President having a casting vote. The Governing Body could
choose between a civil law approach, whereby an award is rendered by the tribunal without
leaving the possibility for judges to append concurring, separate or dissenting opinions, and
31 Note on the application of Article 423 of the Treaty of Peace, Standing Orders Committee, 15 October 1931, 1.
 GB.344/INS/5 17
the practice in common law countries – also followed in international courts such as the ICJ –
where such a possibility exists.
The role of tripartite consensus-based modalities
60. The ILO Constitution provides for two specific procedures to deliver authoritative and binding
interpretations of international labour Conventions. As mentioned above, if legal certainty in
matters of interpretation is understood as the ability to obtain final pronouncements on the
scope and meaning of conventional provisions, the only two mechanisms that can offer such
certainty are explicitly set out in article 37.
61. In this context, consensus-based modalities can only be explored as a modality to either:
(i) attempt reconciling diverging views through tripartite discussion prior to referral of the
matter for interpretation to the ICJ or an internal tribunal; or (ii) to follow-up on the advisory
opinion of the ICJ or the award of an internal tribunal.
62. The first modality – that is a consensus-based modality aimed at reconciling divergent views prior
to submitting the interpretation question to article 37 procedure – was pursued in 2014–15,
culminating in the Tripartite Meeting on the Freedom of Association and Protection of the Right
to Organise Convention, 1948 (No. 87), in relation to the right to strike and the modalities and
practices of strike action at national level. The Tripartite Meeting produced a joint statement of
the social partners concerning a package of measures to find a possible way out of the existing
deadlock in the supervisory system, and laid the basis for the Standards Initiative. 32
63. The experience with the ad hoc Tripartite Meeting suggests the functional validity of such
mechanisms which, while not providing interpretations meeting the criteria of legal certainty
outlined above, succeed in generating a “political” consensus robust enough to temporarily
mitigate the impact of a legal dispute without resolving it. In order for such “tripartite pacts”
to be institutionally functional within its limitations, it would appear that, at a minimum, the
meeting is convened by the Governing Body with a clear mandate and representing a
sufficiently large cross-section of the ILO membership. 33 The regular conversation between
the supervisory bodies, which has advanced as an action point in the work plan for
strengthening the supervisory system, 34 may continue to enhance mutual understanding and
consensus-building around the working methods of the supervisory bodies, including the
meaning they attribute to a Convention when supervising its application by a member State.
However, when differences in attributed meaning persist and prove impossible to bridge, a
legal interpretation dispute arises in respect of which the Governing Body has a duty to pursue
resolution in accordance with article 37.
64. The second modality – that is a consensus-based modality to follow-up on the advisory opinion
or an award – was pursued to follow-up on the advisory opinions rendered by the PCIJ on the
interpretation of Convention No. 4, already mentioned earlier, by adopting Convention No. 41
that revised Convention No. 4. 35
32 TMFAPROC/2015/2.
33 The Tripartite Meeting followed up on a decision taken by the Governing Body at its 322nd Session (GB.322/INS/5(Add.2))
and brought together participants from 32 Governments of ILO Member States, 16 Employer participants and 16 Worker
participants nominated by the Employers’ group and the Workers’ group of the Governing Body, respectively.
34 See Appendix II, Action Point 1.2.
35 See para. 15.
 GB.344/INS/5 18
65. Finally, the regular standard-setting process, involving consensus-building leading up to the
adoption of Conventions, Protocols and Recommendations remains at all times available to
settle issues of interpretation. For example, the Protocol of 2014 to the Forced Labour
Convention, 1930 (No. 29), clarified that the end of the period of transition originally foreseen
but not defined in Convention No. 29 for the continued use of forced labour under certain
conditions had formally ended. However, a consensus-based modality involving standardsetting
cannot and does not generate the legal certainty provided by article 37 of the ILO
Constitution. Recommendations by their very nature do not provide an outcome binding under
international law. The consensus-based outcome of a Convention or Protocol would be binding
only for those Member States which have eventually ratified these. Legal uncertainty would
therefore continue to prevail in respect of Member States having ratified the Convention
subject to a legal dispute for as long as they are not in a position to ratify the newly adopted
Convention or Protocol.
Final considerations
66. In sum, the discussion around article 37 of the ILO Constitution may be guided by the following
considerations:
(1) A difference or dispute about the scope and meaning of provisions of Conventions is a
legal question and as such calls for a legal answer to be obtained through legal means.
(2) The wording of article 37 leaves no doubt that the Organization - meaning its tripartite
constituents and executive or deliberative organs - has an obligation to resolve
interpretation disputes by having recourse to judicial means and that the authority to give
definitive and binding interpretations currently lies exclusively with the ICJ. The wellestablished
practice of Office informal opinions could not affect, and has not affected, the
validity of such constitutional obligation since the Office informal views have always been
provided subject to the standard reservation that the ICJ is the only competent organ to
interpret international labour Conventions. The Organization also avails itself of bodies
attributing meaning to and expressing their understanding of provisions of international
law in the course of carrying out their mandate, which is to supervise the application of
these provisions in the law and practice of Member States.
(3) The mechanisms provided for in article 37 are the only methods that can guarantee legal
certainty since legal interpretation takes eventually the form of a definitive, nonappealable
judicial pronouncement. Legal certainty is the sentiment of confidence and
trust that procures a set of clearly articulated and consistently implemented rules. Legal
certainty – in many respects synonymous with the ideals of security, stability, predictability
and good faith – is a sine qua non for the functioning and credibility of an international
normative organization.
(4) Article 37(1) links the resolution of interpretation disputes to the advisory function of the
ICJ, which is regulated by the Court’s Statute and its Rules of Court. This is a well-tested,
highly reputed and cost-free procedure that the UN and specialized agencies have used
on several occasions in the past.
(5) Article 37(2) lays down an unambiguous requirement for a body of a judicial nature –
therefore composed of judges meeting the highest standards of independence and
impartiality – but provides broad discretion as regards its organizational set up and its
procedural rules (for example number of judges, eligibility criteria, selection and
appointment process, registry, applicable law, etc.).
 GB.344/INS/5 19
(6) Not taking action in respect of interpretation disputes in conformity with constitutional
prescriptions creates the misconception that legal means of settlement of those disputes
are either unavailable or have failed.
(7) Legal uncertainty affects not only the credibility of standards and the supervisory system
but represents also a challenge for the overall governance of the Organization.
(8) Consensus-based modalities would only play a role to either: (i) attempt reconciling
diverging views through tripartite discussion prior to considering submitting the matter
for interpretation to the ICJ or an internal tribunal; or (ii) follow-up on the advisory opinion
of the ICJ or the award of an internal tribunal.
67. The tripartite exchange of views held in January 2020 has shown a unanimously shared concern
about the need to ensure legal certainty in interpreting standards in accordance with the
applicable constitutional provisions. In this context, and taking into account some groups
articulated merely preliminary views, the possibility of having recourse to the International
Court of Justice under article 37(1) when a question or dispute on the interpretation of a
Convention arises found a basis for support. Questions meriting further examination were
raised in respect of the implementation of article 37(2). In particular, clarifications were sought
on the need for a tribunal and on the modalities for its establishment.
68. As a first step, the Governing Body will want to provide guidance at its present session (March
2022) on the considerations in respect of ensuring legal certainty set out in the present
document, taking into account the tripartite exchange of views held in January 2020. At
successive sessions, the Governing Body may then wish to examine a possible procedural
framework for referral of interpretation disputes to the ICJ for an advisory opinion under
article 37(1) as well as additional aspects of the implementation of article 37(2). The Office
stands ready to prepare proposals for a procedural framework, taking into account the
guidance provided by the Governing Body.
 Revised work plan for the strengthening of the supervisory
system – Update on selected work plan items
69. It was foreseen from the outset that the implementation of the work plan was to be monitored
by the Governing Body in accordance with its governance role. All action points in the work
plan continue to be implemented as decided, including the trial of optional voluntary
conciliation or other measures at the national level, which the Governing Body decided to
introduce in the operation of the representations procedure under article 24 of the
Constitution at its 334th Session (October–November 2018) (see Appendix I). The Governing
Body may wish to review the trial of optional voluntary conciliation introduced in the operation
of the representation procedure under article 24 of the Constitution as well as the pilot project
for the establishment of baselines for the Promotional Framework for Occupational Safety and
Health Convention, 2006 (No. 187), at one of its forthcoming sessions, possibly at its
346th Session (October–November 2022) (see Appendix II).
 GB.344/INS/5 20
Guide on established practices of the supervisory system and
codification of the article 26 procedure
(Action Points 1.1 and 2.1) 36
70. At its 335th Session (March 2019), the Governing Body “with respect to the proposal for
codification of the article 26 procedure, recalled the decision to consider the steps to be taken
after the guide to the supervisory system was available to constituents, and requested the
Office to provide it with further information in that regard in March 2020” (see Appendix I).
71. At its 331st Session (October–November 2017), the Governing Body had approved the
development of “a user-friendly and clear guide for the supervisory system, bringing together
useful information and ensuring a level playing field of knowledge. In practical terms, such a
guide would build on existing descriptions of the supervisory system and its procedures.” 37
72. The proposal to consider a possible codification of the complaints procedure provided for in
articles 26–34 of the Constitution stems from the fact that the procedure governing the period
between the submission of a complaint and the decision of the Governing Body to either
establish a Commission of Inquiry or close the procedure without establishing a Commission
of Inquiry, follows practice rather than codified rules. The Governing Body had reached a
consensus on a staged approach whereby, as a first stage, the clarification of existing rules
and practices, and linkages with other procedures, would be addressed through the Guide on
Established Practices. Should this approach not prove sufficient, a tripartite discussion of the
possible codification of the article 26 procedure could be continued at a later stage.
73. The Office, in cooperation with the International Training Centre of the ILO in Turin, has
developed a draft guide in the three official languages, consisting of a web-based tool and a
fully customized application for tablets and smartphones. A beta version of the tool and
application was presented to Governing Body members during informal consultations in
January 2019 and a pre-release of the text in downloadable format was circulated to
constituent groups for comments in April 2019. The Office received extensive comments from
all constituent groups by the end of 2019. The web-based tool was released in August 2021
and is available in the three official languages. 38 The application for tablets and smartphones
is now also available. 39
 Draft decision
74. The Governing Body, considering that settling disputes relating to the interpretation of
international labour Conventions in accordance with article 37 of the ILO Constitution is
fundamental for the effective supervision of international labour standards, decided to
continue its discussion at its 346th Session (October–November 2022) and requested the
Office to facilitate tripartite consultations with a view to preparing:
36 GB.329/INS/5.
37 GB.329/INS/5, para. 15.
38 The ILO supervisory system: A Guide For Constituents.
39 The mobile application may be downloaded from the App Store or the Google Play Store. Relevant links to the stores may
also be found in the right-hand bottom corner of the static landing page of the Guide.
 GB.344/INS/5 21
(a) proposals on a procedural framework for the referral of questions or disputes
regarding the interpretation of international labour Conventions to the
International Court of Justice for decision in accordance with article 37(1); and
(b) additional proposals for the implementation of article 37(2), taking into account the
guidance of the Governing Body and the opinions expressed in the tripartite
exchange of views.
 GB.344/INS/5 23
 Appendix I
Decisions taken by the Governing Body on strengthening the supervisory
machinery
334th Session (October–November 2018)
The Governing Body, based on the proposals set out in documents GB.334/INS/5 and
GB.332/INS/5(Rev.) and the further guidance provided during the discussion and the tripartite
consultations:
(1) Approved the following measures concerning the operation of the representations
procedure under article 24 of the Constitution:
(a) arrangements to allow for optional voluntary conciliation or other measures at the
national level, leading to a temporary suspension for a maximum period of six
months of the examination of the merits of a representation by the ad hoc
committee. The suspension would be subject to the agreement of the complainant
as expressed in the complaint form, and the agreement of the government. These
arrangements would be reviewed by the Governing Body after a two-year trial
period;
(b) publication of an information document on the status of pending representations at
the March and November sessions of the Governing Body;
(c) members of article 24 ad hoc tripartite committees need to receive all information
and relevant documents from the Office 15 days in advance of their meetings and
members of the Governing Body should receive the final report of article 24 ad hoc
tripartite committees three days before they are called to adopt their conclusions;
(d) ratification of the Conventions concerned as a condition for membership of
Governments in ad hoc committees unless no Government titular or deputy
member of the Governing Body has ratified the Conventions concerned;
(e) maintaining existing measures and exploring other possible measures to be agreed
upon by the Governing Body for the integrity of procedure and to protect ad hoc
committee members from undue interference; and
(f) reinforced integration of follow-up measures in the recommendations of
committees and a regularly updated document on the effect given to these
recommendations for the information of the Governing Body, as well as continuing
to explore modalities for follow-up action on the recommendations adopted by the
Governing Body concerning representations.
(2) Approved the measures proposed on the streamlining of reporting on ratified
Conventions concerning:
(a) thematic grouping for reporting purposes under a six-year cycle for the technical
Conventions with the understanding that the Committee of Experts further reviews,
clarifies and, where appropriate, broadens the criteria for breaking the reporting
cycle with respect to technical Conventions; and
(b) a new report form for simplified reports (Appendix II of GB.334/INS/5).
 GB.344/INS/5 24
(3) Decided to continue to explore concrete and practical measures to improve the use of
article 19, paragraphs 5(e) and 6(d), of the Constitution, including with the purpose of
enhancing the functions of General Surveys and improving the quality of their discussion
and follow-up.
(4) Instructed the Committee on Freedom of Association to examine representations referred
to it according to the procedures set out in the Standing Orders for the examination of
article 24 representations, to ensure that representations referred to it be examined
according to the modalities set out in the Standing Orders.
(5) Encouraged the Committee of Experts to pursue the examination of thematically related
issues in consolidated comments; and invites it to make proposals on its possible
contribution to optimizing the use made of article 19, paragraphs 5(e) and 6(d), of the
Constitution, in particular by considering measures to improve the presentation of
General Surveys, so as to ensure a user-friendly approach and format that maximizes their
value for constituents.
(6) Invited the Committee on the Application of Standards to consider, through the informal
tripartite consultations on its working methods, measures to enhance its discussion of
General Surveys.
(7) Requested the Office to present at its 335th Session (March 2019) following consultations
with the tripartite constituents:
(a) concrete proposals to prepare the discussion on actions 1.2 (regular conversation
between the supervisory bodies) and 2.3 (consideration of further steps to ensure
legal certainty), including, but not limited to, organizing a tripartite exchange of
views in the second semester of 2019 on article 37(2) of the Constitution;
(b) a report on progress towards the development of a guide on established practices
of the supervisory system, bearing in mind the guidance received on action 2.1
(consideration of the codification of the article 26 procedure);
(c) further detailed proposals on the use of article 19, paragraphs 5(e) and 6(d), of the
Constitution, including in relation to the Annual Review under the Follow-up to the
ILO Declaration on Fundamental Principles and Rights at Work;
(d) a report on progress towards the development of detailed proposals for electronic
accessibility to the supervisory system for constituents (e-reporting, section 2.1 of
GB.332/INS/5(Rev.)) bearing in mind the concerns raised by constituents during the
discussion;
(e) more information on a pilot project for the establishment of baselines for the
Promotional Framework for Occupational Safety and Health Convention, 2006 (No.
187) (section 2.2.2.2 of GB.332/INS/5(Rev.)); and
(f) a report on progress towards completing the Standards Initiative work plan as
revised by the Governing Body in March 2017, including information on progress
made with regard to the review and possible further improvements of their working
methods by the supervisory bodies in order to strengthen tripartism, coherence,
transparency and effectiveness.
(GB.334/INS/5, paragraph 21, as amended by the Governing Body)
 GB.344/INS/5 25
335th Session (March 2019)
The Governing Body:
(a) welcomed the efforts of all constituents and the Office towards the progress
reported on the implementation of the two components of the Standards Initiative,
namely the Standards Review Mechanism (SRM) and the work plan to strengthen the
supervisory system;
(b) with respect to the component concerning the SRM, noted the information provided
on the lessons learned and future directions; requested the Standards Review
Mechanism Tripartite Working Group (SRM TWG) to take its guidance into account
in continuing its work and to provide a report for the Governing Body’s second
review of the functioning of the SRM TWG in March 2020; and, to guarantee the
impact of that work, reiterated its call to the Organization and its tripartite
constituents to take appropriate measures to follow-up on all its previous
recommendations;
(c) having reviewed, against the common principles guiding the strengthening of the
supervisory system, the report on progress in implementing the ten proposals of
the work plan, welcomed the progress achieved so far and requested the Office to
continue the implementation of the work plan which should be updated according
to its guidance;
(d) approving the approach taken and the timelines proposed, requested the Office to
ensure that action was taken with respect to producing the guide on established
practices across the supervisory system, the operation of the article 24 procedure,
the streamlining of reporting, information sharing with other organizations, the
formulation of clear recommendations of the supervisory bodies, pursuing
systematized follow-up at the national level and consideration of the potential of
article 19, paragraphs 5(e) and 6(d);
(e) with respect to the proposal for a regular conversation between the supervisory
bodies, invited the Chairperson of the Committee on Freedom of Association to
present its annual report to the Conference Committee on the Application of
Standards as from 2019;
(f) with respect to the proposal for codification of the article 26 procedure, recalled the
decision to consider the steps to be taken after the guide to the supervisory system
was available to constituents, and requested the Office to provide it with further
information in that regard in March 2020;
(g) with respect to the proposal to consider further steps to ensure legal certainty,
decided to hold informal consultations in January 2020 and, to facilitate that
tripartite exchange of views, requested the Office to prepare a paper on the
elements and conditions for the operation of an independent body under article
37(2) and of any other consensus-based options, as well as the article 37(1)
procedure;
(h) with respect to the proposal for review by the supervisory bodies of their working
methods, invited the CAS, the Committee of Experts on the Application of
Conventions and Recommendations (CEACR) and the CFA to continue their regular
consideration of their working methods.
(GB.335/INS/5, paragraph 84, as amended by the Governing Body)
 GB.344/INS/5 26
 Appendix II
Work plan and timetable for Governing Body discussions on the strengthening of the supervisory system
Review workplan
Governing Body,
October–November 2018
Governing Body,
March 2019
Governing Body,
March 2020
Governing Body,
November 2021
Governing Body,
March 2022
Governing Body,
November 2022
Governing Body,
March 2023
Decisions taken GB.334/INS/5, paragraph 21 GB.335/INS/5, paragraph 84
1.1. Guide on established
practices across the system
Report on action taken Report on action taken Information
Report on action taken
(completed)
Completed Updated
1.2. Regular conversation
between supervisory bodies
Review
2.1. Consider codification of
the article 26 procedure
Guidance on possibility of
Standing Orders
Report on action taken Report on action taken Review at later stage Review at later stage
2.2. Consider the operation of
the article 24 procedure
Discussion as per guidance Review Review
2.3. Consider further steps to
ensure legal certainty
Guidance on possible tripartite
exchange of views
Guidance on possible tripartite
exchange of views
Consideration following
tripartite exchange of views
(postponed)
Information
Follow-up to the March
2022 discussion
Follow-up to the November
2022 discussion (TBC)
3.1. Streamline reporting
Continuation of examination
of options
Continuation of examination
of options
Review Review
3.2. Information sharing with
organizations
Review
Focus area 4: Reach and implementation
4.1. Clear supervisory body
recommendations
Review
4.2. Systematized follow-up at
national level
Review
4.3. Consider potential of
article 19
Further guidance Further guidance Review
Committee on the Application
of Standards
Committee of Experts
Committee on Freedom
of Association
Focus area 1: Relationships between the procedures
Review by the supervisory procedures of their working methods
Focus area 3: Reporting and information
Focus area 2: Rules and practices
Informal tripartite consultation on working methods
Ongoing discussion of working methods
Ongoing discussion of working methods
Document No. 39
Minutes of the 344th Session of the Governing Body,
March 2022, paras 139–202

 GB.344/PV
Governing Body
344th Session, Geneva, March 2022
Minutes of the 344th Session of the Governing Body
of the International Labour Office
Contents
Page
Abbreviations ............................................................................................................................................ 9
Introduction .............................................................................................................................................. 11
I. Officers of the Governing Body ......................................................................................... 11
II. Sections and Segments ....................................................................................................... 11
III. Other bodies ......................................................................................................................... 12
Institutional Section
Opening remarks ............................................................................................................................ 12
1. Approval of the minutes of the 343rd Session of the Governing Body
(GB.343/INS/1) ...................................................................................................................... 19
Decision ................................................................................................................................. 19
2. Arrangements for the 344th Session of the Governing Body, including
for the hearings of candidates and the election and appointment
of the Director-General (GB.344/INS/2) ............................................................................ 19
Decision ................................................................................................................................. 20
Summary of the written comments received during the consultation
on the item by correspondence ....................................................................................... 20
Summary of the written comments received during the ballot
of regular Governing Body members ............................................................................... 21
3. Agenda of the International Labour Conference ............................................................ 21
3.1. Agenda of future sessions of the Conference (GB.344/INS/3/1) ................................. 21
Decision ................................................................................................................................. 32
 GB.344/PV 41
instrument of ratification of Convention No. 138 in the next days. She requested the Office’s
support for her Government’s efforts to eradicate the worst forms of child labour by 2025 and
called on it to redouble its efforts to bring about the universal ratification of all fundamental
Conventions of the ILO. She supported the draft decision.
136. A representative of the Director-General (Deputy Director-General for Policy) underscored
that the Office would continue to make every effort to mobilize additional budgetary resources
to increase the number of development cooperation projects that promoted freedom of
association and the right to collective bargaining, and she invited donors to support the Office
in those efforts. Collective bargaining was one of the key principles underpinning the
compliance assessment tool used in the Better Work programme; indeed, an evaluation of the
programme’s impact had indicated that factories with workplace cooperation committees
demonstrated better compliance with legal requirements and collective agreements. The
programme’s monitoring of respect for freedom of association and collective bargaining also
promoted a climate conducive to the enjoyment of those rights. The Office would seek to
ensure that the programme’s work on collective bargaining rights complemented other ILO
activities in that area. The ILO’s normative mission remained fundamental and served as an
important basis for the Office’s ongoing work. The success achieved with regard to Convention
No. 182 demonstrated that universal ratification was possible.
137. The Worker spokesperson recalled that the Better Work programme and the fundamental
right to collective bargaining, although complementary, were distinct concepts.
Decision
138. The Governing Body:
(a) took note of the information presented in the Annual Review under the follow up to
the ILO Declaration on Fundamental Principles and Rights at Work for the 2020–21
period;
(b) invited the Office to continue its support to Member States to ensure timely
reporting on all unratified fundamental Conventions and the Protocol of 2014 to the
Forced Labour Convention, 1930, and to keep providing technical assistance to
address obstacles to ratification and realization of the fundamental principles and
rights at work; and
(c) reiterated its support for the mobilization of resources with a view to further
assisting Member States in their efforts to respect, promote and realize
fundamental principles and rights at work, including through universal ratification
of all fundamental Conventions and the Protocol of 2014 to the Forced Labour
Convention, 1930.
(GB.344/INS/4(Rev.1), paragraph 115)
5. Work plan on the strengthening of the supervisory system: Proposals
on further steps to ensure legal certainty and information on other
action points in the work plan (GB.344/INS/5)
139. The Employer spokesperson said that it was necessary to further investigate possible
practical solutions on the issue of legal certainty within the tripartite context to build consensus
on the best way to proceed. Taking any decisions on the use of the options under article 37 of
the ILO Constitution seemed premature. The Employers recognized the need for legal certainty
 GB.344/PV 42
regarding provisions of ILO Conventions; that required both legal clarity on the meaning of the
terms and provisions of those Conventions and wide acceptance of a particular meaning of
such terms and provisions. The question was how best to achieve legal certainty and to what
extent the procedures under article 37 could contribute to it. The main issue of contention was
the detailed rules on the right to strike developed by the Committee of Experts in its
supervision of the Freedom of Association and Protection of the Right to Organise Convention,
1948 (No. 87). The Employers did not consider that article 37 provided a viable way forward, as
the right to strike was a multifaceted and complex issue that could not be separated from the
widely diverging industrial relations systems and practices in ILO Member States. It was
doubtful that recourse to the options under article 37 could achieve legal certainty, as it was
unclear how external and judicial bodies could possibly develop a solution that would be widely
accepted by ILO constituents on such a complex matter. Such a solution should remain in the
hands of the Committee of Experts, the Office and the ILO’s tripartite constituents. There was
significant room for dialogue and cooperation among those stakeholders to move closer to
consensus. Referral to external and judicial bodies, the International Court of Justice or an ILO
tribunal should not occur unless all possibilities of dialogue between the main ILO actors
competent with respect to ILO standards had been exhausted, which was not currently the
case.
140. Regarding the main features of the proceedings under article 37(1) to seek an advisory opinion
from the International Court of Justice, she noted that although the rationale for the provision
had perhaps been to give extra legitimacy and authority to advisory opinions, it was not clear
from article 37(1) that such opinions were also legally binding. While the ILO had treated all six
advisory opinions issued by the Permanent Court of International Justice as binding, that did
not necessarily mean that the same decision would be made in a new case. The only decision
issued by the Permanent Court of International Justice concerning the interpretation of an ILO
Convention had been more than 100 years previously, on the Night Work (Women) Convention,
1919 (No. 4), which was much less complex than the question of the right to strike. The
Employers’ group contested the claim that the wording “shall be referred” in article 37(1) meant
that International Court of Justice needed to be determined who decided whether a dispute
was eligible for referral to the International Court of Justice. As the option of article 37(1) was
intended to be a last resort, it could be argued that a dispute could be referred only when all
other options had been exhausted. The author of a question regarding the interpretation of a
Convention obviously had the autonomy to decide unilaterally whether to refer the question
to the International Court of Justice. However, the wording of article 37(1) could also mean
that, if a decision to obtain an authoritative response had been made for a dispute or question
concerning the interpretation of an ILO Convention, such a response could be obtained only
from the International Court of Justice and not from any other dispute settlement institutions
outside the UN system.
141. Concerning the proposed establishment of an ILO tribunal under article 37(2), she noted that
there had never been a major effort to create such an institution. Furthermore, the majority of
participants at the informal consultations in January 2020 had not supported the article 37(2)
alternative. The purpose of such a tribunal was the expeditious determination of any dispute
or question relating to the interpretation of a Convention, but that was possible only for
specific questions of limited scope, not long-standing, complex and contentious issues such as
the Committee of Experts’ interpretation of the right to strike in Convention No. 87.
142. The Employers’ group would have liked to have seen the option of tripartite consensus-based
modalities addressed in greater depth in the document. They should be the first option to
resolve diverging views on interpretation, and would maintain the competence of the tripartite
 GB.344/PV 43
constituents to determine the content of international labour standards. The purpose of a
consensus-based option would not be to find a legally binding solution based on legal process,
but a solution based on the authority arising from the support of a majority of the tripartite
constituents. A dispute over a particular interpretation of an ILO Convention could be placed
on the agenda of the International Labour Conference, which could decide to discuss the
matter in a committee which would make a recommendation on the interpretation or on
further action to address the issue. Another possibility would be to organize a process whereby
constituents would be requested to provide their views in writing on a contentious
interpretation, which would indicate the level of acceptance of the interpretation and help
settle the dispute. The Committee of Experts should then take into account the outcomes of
those processes in its future comments on Convention No. 87. If such options did not lead to
a settlement, a final possibility could be to consider the initiation of a standard-setting process
which could establish a Protocol to the respective Convention setting out the interpretation
considered to be the appropriate one, which would have to receive a two-thirds majority of the
International Labour Conference. Such a Protocol would become binding only for those
countries that ratified it.
143. The Employers’ group strongly supported social dialogue and a consensus-based option to
resolve existing disputes and to prevent new ones. The tripartite constituents, the supervisory
bodies and the Office had a shared responsibility and an essential role to play in ensuring legal
certainty. The group had therefore submitted a proposal for an amended draft decision, to
read:
The Governing Body decided to continue its discussion at its 346th Session (October–November
2022) and requested the Office to facilitate tripartite consultations with a view to preparing
further proposals for finding consensus-based solutions under the existing procedures
involving tripartite constituents, including an informal tripartite dialogue with the Committee
of Experts.
144. The Worker spokesperson noted that, since 2012, the Employers’ group had been challenging
the long-standing authoritative interpretation of the ILO supervisory bodies that the right to
strike was recognized and protected under Convention No. 87. There had been heated
discussions and negotiations but the matter remained unsolved for the Employers’ group. The
current situation was no longer acceptable, as the ILO’s credibility and its unique tripartite and
social justice mandate were at stake. The only way provided for in the ILO Constitution for the
Organization to ensure legal certainty and decisive determinations in matters of interpretation
of Conventions was through the application of article 37. That was essential for ratifying States
and States considering ratifying a particular Convention. In the absence of authoritative and
binding interpretations obtained through the ILO, other national, regional or international
bodies would develop their own interpretation, which could lead to divergent interpretations
and further legal uncertainty.
145. The ILO had resorted to the International Court of Justice on six occasions and its decisions
had been readily implemented. As a matter of constitutional practice, the ILO had always
considered the Court’s advisory opinions to be binding. Document GB.344/INS/5 made it clear
that article 37(1) placed a direct legal obligation on the ILO to refer any interpretation issue to
the International Court of Justice. It would be for the Governing Body to decide to refer such
issues. The only way to solve the persisting interpretation dispute concerning Convention
No. 87 and the right to strike, in a manner that provided legal certainty and was in line with the
ILO Constitution, was to refer it to the International Court of Justice.
146. Regarding the proposed establishment of a tribunal under article 37(2), her group was ready
to explore the option, but would accept it only if a series of guarantees and conditions were
 GB.344/PV 44
met. Even if a tribunal were established, the advisory opinion issued by the International Court
of Justice would be binding on that tribunal. The Workers’ group agreed with the Employers’
group that article 37(2) described situations where an expedited opinion on a more minor
interpretation matter would be needed. The Workers’ group strongly opposed the
establishment of a tripartite tribunal; as a judicial organ, the tribunal must be composed of
judges meeting high standards of legal expertise, integrity and impartiality. Nor did the group
support the proposal to add final provisions in future Conventions on referral of any
interpretation disputes to such a tribunal, as it would provide no solution to existing standards
that did not include such a provision, and might lead to excessive recourse to the procedure.
An ad hoc tribunal would be more appropriate than a permanent tribunal for serious situations
of disagreement. The standing orders of the tribunal would have to make its purpose clear.
Legitimate concerns existed on the impact of an ad hoc tribunal on the supervisory system and
the unintended consequences if the procedure were used excessively. Her group required
further clarification on allowing the Committee of Experts and the CAN to refer a question of
interpretation to such a tribunal. The group had strong reservations about the suggestion to
allow other international organizations to file requests for interpretation with any such
tribunal. Under article 37(2) of the Constitution, any requests must be submitted to the
Governing Body. Furthermore, it should only be possible for other judicial institutions to raise
such questions. Regarding the other means of interpretation based on relevant international
case law, the travaux préparatoires for Conventions and the reports of the supervisory bodies,
further clarification was necessary on the potential impact on the mandate of the supervisory
bodies.
147. The Workers’ group supported the legal analysis in the document that consensus-based
options could not provide legal certainty. There was a role for tripartite attempts to resolve
outstanding issues of interpretation, both prior to the submission of a matter for interpretation
to the International Court of Justice or a tribunal and as follow-up to an advisory opinion of the
International Court of Justice or the award of a tribunal. However, it should be clear at the
preliminary stage that if such attempts did not succeed, the dispute could be resolved only
through one of the two mechanisms under article 37. Therefore, a time-bound procedure was
needed to ensure that discussions did not continue indefinitely, thus creating a persistent
situation of legal uncertainty. In the Workers’ group’s opinion, the ILO was currently in such a
situation, as many attempts had been made through tripartite discussions to reconcile views
on the right to strike, but no solutions had been found, only a provisional agreement to
disagree. The process had been extremely difficult and the Workers’ group did not wish to
repeat it or for it to persist any longer.
148. The Workers’ group was categorically opposed to the suggestion that the ILO could adopt a
new standard to address an interpretation dispute, as the same disagreement on
interpretation would persist in the development of the new standard, thus preventing
consensus. The example of the Forced Labour Convention, 1930 (No. 29), and its Protocol was
not appropriate, as the Protocol updated the Convention and there had been no dispute over
its interpretation. Resolving interpretation disputes required recourse to article 37 of the
Constitution, not standard-setting.
149. The Workers’ group therefore supported subparagraph (a) of the draft decision, on the referral
of questions or disputes to the International Court of Justice, but wished to defer any
discussions on subparagraph (b), concerning the implementation of article 37(2). In view of the
importance and complexity of the matter, the Governing Body should return to the item at its
347th Session rather than its 346th Session, which would also give the new Director-General
time to be seized of the matter. Her group could not support the amendment put forward by
 GB.344/PV 45
the Employers’ group, which omitted any reference to article 37. The Workers’ group firmly
disagreed that an informal tripartite dialogue with the Committee of Experts should be
considered as part of a consensus-based solution and that it could help address the dispute
over the interpretation of the right to strike. There had already been such opportunities, which
had not helped to solve the conflict. A dispute over the scope and meaning of provisions of
Conventions was a legal question that required a legal answer through legal means to ensure
legal certainty.
150. Speaking on behalf of IMEC, a Government representative of the United States agreed that
article 37 of the ILO Constitution provided appropriate methods of seeking legal certainty with
respect to an existing ILO instrument and that legal certainty on outstanding disputes was
critical to the functioning and credibility of the ILO as an international standard-setting
organization. The group agreed that there was only one pending interpretation dispute,
concerning Convention No. 87, and sought confirmation from the social partners that that was
also their understanding. Tripartite consensus-based modalities had thus far only generated
temporary political consensus and could not provide the requisite legal certainty to ensure the
effective and efficient functioning of the supervisory system. Efforts should therefore be made
to seek a resolution under article 37 of the Constitution.
151. The option of recourse to the International Court of Justice under article 37(1) appeared to have
merit. The interpretation dispute with respect to Convention No. 87 certainly had broader
systemic implications for the exercise of the fundamental right to freedom of association. That
exercise was necessary for full participation in the ILO. As such, the interpretation dispute on
the right to strike was not of a meticulous character. Her group looked forward to engaging in
a tripartite process on the formulation of a balanced question to be referred to the
International Court of Justice and on the process for compiling the dossier. She welcomed the
Office’s assessment that all ILO constituents would likely be permitted to participate in the
proceedings, and requested the Office to provide additional information on the time required
to prepare for the submission of a request under article 37(1) and on the role of Member States
and the social partners in the process. With respect to article 37(2), IMEC considered that the
Office had outlined the appropriate considerations. If there was consensus to establish such a
tribunal, it must be composed of expert judges, and its establishment would require significant
consultation with and concerted effort from all constituents. Her group could not support the
amendment proposed by the Employers’ group.
152. Speaking on behalf of the EU and its Member States, a Government representative of France
said that Turkey, North Macedonia, Montenegro, Serbia, Albania, Iceland, Norway, Ukraine, the
Republic of Moldova and Georgia aligned themselves with his statement. He observed that the
long-standing divergence in opinions had generated uncertainty regarding the legal
obligations assumed by governments upon the ratification of Conventions, which might
reduce their willingness to ratify Conventions. In 2014, the EU and its Member States had been
prepared to support the option to seek an advisory opinion on the interpretation of Convention
No. 87 from the International Court of Justice, and maintained the opinion that continued
disputes on legal interpretation required recourse to the Court, an organ that had
demonstrated its capability to fulfil such duties. While the tools of social dialogue, tripartite
discussion and consensus-building had proven effective in resolving disputes on other
matters, the situation concerning Convention No. 87 was not a permanent solution. The EU
and its Member States stood ready to participate in identifying the most appropriate solution
and supported the original draft decision.
153. Speaking on behalf of the Africa group, a Government representative of Morocco recalled
that agreement had not been achieved despite lengthy discussions on the item at previous
 GB.344/PV 46
sessions and expressed the hope that a decision by consensus would soon be reached. The
mechanisms under article 37 to guarantee legal certainty in interpreting ILO standards must
be independent and operate in accordance with the principles of transparency, accountability
and good governance. He welcomed the efforts made to ensure the settlement of
interpretation disputes and called for further tripartite discussions to enable the constituents
to examine the advantages and disadvantages of both of the options presented to the
Governing Body. A cost–benefit analysis of each option would also help the constituents to
make an informed decision. He supported the original draft decision.
154. A Government representative of Colombia said that Member States set great store by the
recommendations of the ILO supervisory bodies. If the Governing Body were to consider the
establishment of a tribunal under article 37(2) of the ILO Constitution, it would be essential to
reflect on the potentially significant costs involved and the impact of such a tribunal on the
work of the Committee of Experts, a body guided by the principles of independence,
impartiality and objectivity and formed of members with first-hand experience of different
legal, economic and social systems. Great care must be taken to avoid undermining the trust
of the tripartite constituents and weakening the Committee of Experts. Since very few
interpretation disputes had been referred to the International Court of Justice, the
establishment of a tribunal for that sole purpose would be inappropriate. It was unclear
whether such a tribunal would have other functions related to the ILO’s mandate, concerning,
for example, a country’s acceptance or application of a procedure under article 26 of the ILO
Constitution. Her Government was convinced that social dialogue could provide a path to
consensus and therefore supported the amendment proposed by the Employers’ group.
155. A Government representative of Brazil recalled that responsibility for adopting and
supervising the application of standards rested primarily with tripartite constituents convened
at the International Labour Conference. The text of instruments adopted, the relevant
preparatory work and their interpretation by the tripartite constituents should therefore serve
as the authoritative references to be considered in the application of standards, and
interpretation disputes should be settled first and foremost through tripartite consultations.
While the ILO Constitution provided for alternatives to that process, social dialogue had long
been the preferred method of dispute resolution at the ILO and no attempts should be made
to block that process. He supported the amendment proposed by the Employers’ group.
156. A representative of the Director-General (Legal Adviser) responding to a question by IMEC,
said that it was difficult to estimate how long it would take to prepare for the submission of a
request to the International Court of Justice under article 37(1) but suggested that between
three and five months would be needed to prepare a dossier that would include details of the
question, background information and potentially also the views of constituents. The dossier
would need to be submitted to the International Court of Justice shortly after the session of
the Governing Body at which a decision was made to refer the case to that organ. It was likely
that employers’ and workers’ organizations would be allowed to participate in advisory
proceedings before the Court on the basis of explanations provided in 2014 by its Registrar
and also recent practice (for instance, the advisory proceedings on the Legal Consequences of a
Construction of a Wall in the Occupied Palestinian Territory and the Accordance with international
law of the unilateral declaration of independence in respect of Kosovo), which confirmed that the
Court adopted a pragmatic approach and might invite entities other than intergovernmental
organizations whenever it deemed it necessary. It should also be recalled that employers’ and
workers’ organizations had been allowed to participate in the proceedings brought before the
Permanent Court of International Justice.
 GB.344/PV 47
157. Another representative of the Director-General (Director, International Labour Standards
Department) clarified that a tribunal established under article 37(2) of the ILO Constitution
would focus only on matters relating to the interpretation of Conventions and would not be
called upon to address any other matters, including those arising from the acceptance or
application of article 26.
158. The Worker spokesperson requested clarification from the Legal Adviser on whether the
usage of the word “shall” in article 37(1) of the ILO Constitution conferred any obligation on
the ILO. She reiterated the importance of social dialogue to her group, but said that there was
nevertheless a need for a mechanism to settle interpretation disputes in cases where attempts
at seeking consensus through social dialogue had not borne fruit. Her group continued to
support the existing arrangements and considered that the call for further discussions on the
item was no more than a delaying tactic. She maintained her group’s support for the original
draft decision.
159. The Employer spokesperson noted with satisfaction that a number of Governments had
supported the social dialogue approach that she had outlined. There was clearly no
disagreement that the principle of freedom of association included the right to strike; it was
the exact detail of the international regulation of that right that was in question. The document
presented by the Office described the multifaceted regulations that States had adopted to
frame the right to strike. It should be acknowledged, however, that expertise guided by
national experience or individual cases could not always be applied at the international level
or in a different national context. The discussion that had led to the adoption of Convention
No. 87 had explicitly rejected the inclusion of the notion of the international regulation of the
right to strike in that text. It was not clear why the Workers did not want to have a global
tripartite discussion on the issue.
160. In a spirit of compromise, she proposed a subamendment that would reinstate subparagraphs (a)
and (b) of the original draft decision and include her group’s original amendment as
subparagraph (c). The draft decision would read:
The Governing Body, considering that settling disputes relating to the interpretation of
international labour Conventions in accordance with article 37 of the ILO Constitution is
fundamental for the effective supervision of international labour standards, decided to
continue its discussion at its 346th Session (October–November 2022) and requested the Office
to facilitate tripartite consultations with a view to preparing:
(a) proposals on a procedural framework for the referral of questions or disputes regarding
the interpretation of international labour Conventions to the International Court of Justice
for decision in accordance with article 37(1); and
(b) additional proposals for the implementation of article 37(2), taking into account the
guidance of the Governing Body and the opinions expressed in the tripartite exchange of
views.; and
(c) further proposals for finding consensus-based solutions under the existing procedures
involving tripartite constituents, including an informal tripartite dialogue with the
Committee of Experts.
161. The representative of the Director-General (Legal Adviser), responding to the request of the
Worker spokesperson for clarification of the true meaning of the wording used in article 37(1),
said that the wording was clear and unambiguous. According to the customary law principles
of interpretation reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties,
texts must be interpreted in accordance with the ordinary meaning of the words used in their
context and having regard to the object and purpose of the text. The words “any dispute shall
be referred for decision” left no doubt as to the compulsory character of the judicial settlement
 GB.344/PV 48
of interpretation disputes. Moreover, article 37(1) was worded in unconditional terms; unlike
the constitution of other organizations, such as the Food and Agriculture Organization of the
United Nations (FAO) and the World Health Organization (WHO), article 37(1) did not qualify
the requirement to refer any interpretation dispute to the International Court of Justice for
decision, (for instance, “unless settled by negotiation or “if not settled by the Conference”),
which meant that there was no other possible course of action for such disputes.
162. The Worker spokesperson said that there was no doubt that an interpretation dispute existed
and recalled that the Governing Body had a responsibility to fulfil a constitutional obligation to
refer the dispute to the International Court of Justice. In that regard, it might be useful to gain
clarity that it was the responsibility of the ILO supervisory system to establish the conditions
on the right to strike. It was unclear why the Employers were so reluctant to refer the matter
to the International Court of Justice. Her group was not prepared to accept any kind of informal
further discussion. Several Government groups had supported the original draft decision, with
a number of qualifiers about further discussion, in which the Employers could participate. The
Workers stood ready to proceed on that basis.
163. The Employer spokesperson reiterated that, in order to agree on consolidated principles at
the global level, the initial focus must be the different situations at the national level, which
could be addressed through discussion both among the countries and with the countries’
tripartite constituents. She called on participants to consider the draft decision as
subamended, which would allow for an informal tripartite dialogue with the Committee of
Experts as the next step.
164. The Worker spokesperson said that her group did not accept the proposed subamendment
and saw no need for informal tripartite dialogue with the Committee of Experts – which was
an independent committee responsible for providing expertise on the application of
Conventions.
165. The Employer spokesperson reiterated that the dispute concerning interpretation was not a
matter for the International Court of Justice. She recalled that the only discussion on the
subject by the Conference had been in the run up to the adoption of Convention No. 87, which
had led to the decision to exclude the right to strike from the regulatory part of the Convention.
The constituents should have the opportunity to discuss that decision and consider how things
had evolved and the implications for regulation at the global level. That opportunity would be
provided for in the tripartite dialogue proposed in her group’s original amendment, which had
been subamended to accommodate the wishes of those who wanted to refer to article 37 as
well.
166. Speaking on behalf of the EU and its Member States, a Government representative of France
questioned the proposal by the Employers’ group to delete the reference to the ILO
Constitution in the draft decision. Including the reference would add value and contribute to
preventing future disputes. While the intention of the parties might be clear at the time of the
adoption of a Convention, that clarity might be lost over the years. Using the procedures
already provided for in the articles of the Constitution could allow the Governing Body to move
forward and avoid the need to turn to a judge. The original draft decision was therefore a good
proposal, since it provided time to consider different options.
167. Speaking on behalf of IMEC, a Government representative of the United States said that her
group was not in a position to support the subamendment proposed by the Employers.
 GB.344/PV 49
168. The Worker spokesperson clarified that, while she supported the original draft decision, her
group would rather continue the discussion in March 2023, in order to allow the new Director-
General time to settle into post prior to its resumption.
169. The Chairperson suggested that, since the majority had spoken in favour of the original draft
decision, the Governing Body could adopt that version.
170. The Employer spokesperson said that her group could not support the draft decision as
proposed by the Office. Her group’s proposal to hold tripartite discussions on the issue had
found support from Governments. It had proposed a compromise that would take on board
both views and, also, included the elements that the Employers and a number of Governments
considered important. Her group wished to have an informal tripartite dialogue with the
Committee of Experts in order to find a solution on which there was consensus, in line with the
Governing Body’s mandate. In a spirit of compromise, her group was willing to agree to discuss
article 37(1) and (2) of the ILO Constitution and to include a reference to the Constitution in the
draft decision.
171. The Worker spokesperson said that, together with her group, several Government groups
had supported the original draft decision with an amended date, while only two Government
groups had supported the amendments proposed by the Employers’ group. The view of the
Governing Body was clear.
172. The Chairperson said that the Officers of the Governing Body had decided to move forward
and discuss the issue again in March 2023.
173. The Employer spokesperson said that, since a new element had been introduced, the
Employers were not in a position to conclude discussions during the current round. Another
round of discussion would be needed.
174. The Worker spokesperson said that although she had originally proposed that the discussion
should take place in March 2023, if the Governing Body could not agree to that, the Workers
could agree to hold the discussion in November 2022.
175. The Employer spokesperson suggested that the discussion should be suspended with a view
to seeking consensus on the draft decision and resuming discussion at a later stage.
176. The Worker spokesperson recalled that despite many beautiful words on consensus, there
had been no consensus on the issue for ten years. It was clear that a majority wished to move
forward, which would mean further tripartite consultations and preparation; that was the
decision that should be made.
(The discussion was adjourned.)
177. The Employer spokesperson noted that there appeared to be support from Governments for
her group’s view that the draft decision should make reference to tripartite dialogue.
Accordingly, referring to the original draft decision set out in paragraph 74 of the document,
she proposed that subparagraph (b) could be amended to read: “additional proposals for the
implementation of article 37(2) of the ILO Constitution” and that a new paragraph 75 could be
inserted that would read: “The Governing Body requested the Office to also provide possible
proposals for approaches to the resolution of divergences of views related to international
labour standards within the ILO’s tripartite structures within a reasonable time frame”. A new
paragraph 76 could also be added, with some wording taken from the original subparagraph (b),
that would read: “The Office is requested to prepare proposals under paragraphs 74 and 75
taking into account the guidance of the Governing Body and the opinions expressed in the
tripartite exchange of views”.
 GB.344/PV 50
178. The Worker spokesperson welcomed the growing agreement surrounding paragraph 74. She
reiterated her group’s dedication to tripartism, social dialogue and consensus-seeking, but
said that the Employers’ proposed new paragraph 75 was overly broad, and indeed
superfluous, given that the Governing Body had always sought to find tripartite solutions to
the diverging views on international labour standards that had existed since the ILO’s
inception. Any reference to tripartism should be specifically in relation to the work plan on the
strengthening of the supervisory system. Accordingly, she suggested that paragraph 75 could
include wording along the lines of: “The Governing Body committed to continue its tripartite
discussion on the further implementation of the work plan on the strengthening of the
supervisory system”. She recalled that the Governing Body had already made a commitment
to that effect, in 2017, when it had adopted the revised work plan for the strengthening of the
supervisory system.
179. The Employer spokesperson noted with appreciation the flexibility demonstrated by the
Workers’ group in finding a way forward. She could agree to the wording that had been
proposed by the Workers, if a reference to the work plan and to the diverging views could also
be included.
(The Governing Body resumed consideration of the item following a brief suspension of the sitting
for consultations.)
180. The Worker spokesperson, referring to the original draft decision, proposed that
paragraph 74 could be retained in its entirety, with the only change being to the date, and that
a new paragraph could be added, that would read: “The Governing Body expressed its
commitment to further implement the work plan on strengthening the supervisory system”.
181. The Employer spokesperson said that the new paragraph, as proposed by the Workers, did
not include the main element that her group considered important. She proposed that the
sentence should therefore be subamended to refer to international labour standards and the
ILO’s tripartite structures, and to reflect the views of the Governments on the need for a time
frame. The paragraph would therefore read: “The Governing Body expressed its commitment
to further implement the work plan on strengthening the supervisory system, including
approaches to the resolution of divergences of views relating to international labour standards
within the ILO's tripartite structures, within a reasonable time frame”.
182. The Worker spokesperson said that, if the Employers did not accept the wording of the new
paragraph as proposed by her group, she would prefer not to add a new paragraph at all, and
simply to retain the original text of paragraph 74. The Governments had indicated their
support for the need for legal certainty, which in terms of divergence could be achieved only
through the application of article 37. The subamendment to the new paragraph proposed by
the Employers’ group was not acceptable, as it would lead to more uncertainty and confusion.
She reiterated that, as the Governing Body was a tripartite institution, any commitment it made
was a tripartite commitment and there was no need to state that explicitly.
183. Government representatives of Brazil and Colombia supported the new paragraph, as
subamended by the Employers’ group.
184. A Government representative of Japan suggested that only the parts of the Employers’
subamendment that were included in the work plan should be retained.
185. A Government representative of the United States proposed a further subamendment to
the new paragraph, so that it would read: “The Governing Body expressed its commitment to
strengthening the supervisory system, including through tripartite social dialogue”.
 GB.344/PV 51
186. A Government representative of Argentina said that the most appropriate way forward
would be to adopt the new paragraph as proposed by the Workers’ group.
187. Speaking on behalf of the EU and its Member States, a Government representative of France
said that she supported the new paragraph as proposed by the Workers’ group. She could not
accept the subamendment proposed by the Employers’ group, as all disputes relating to ILO
Conventions should be governed by article 37 of the ILO Constitution. She asked for more time
to consider the subamendment proposed by the representative of the United States.
188. The Worker spokesperson clarified that the work plan, which was a work plan on the
strengthening of the supervisory system, did not include the issues addressed by the
Employers’ subamendment. Those new issues would further confuse a debate in which her
group was seeking clarity and legal certainty. The subamendment proposed by the
representative of the United States would also broaden the paragraph. She advised against
entering a broader discussion on the strengthening of the supervisory system in general
terms. She maintained her support for the new paragraph as proposed by her group, and
could not agree to include any other language in that paragraph.
189. A Government representative of China said that the new paragraph as subamended by the
Employers’ group represented a practical way forward. It took the issue of divergent views on
board and allowed for the possibility to find other solutions.
190. The Employer spokesperson recalled that a significant number of Governments had
emphasized the importance of tripartite governance and structures. The legal system was only
as good as its support. The supervisory system would be strengthened and rendered more
effective by ensuring that it was supported by a broad tripartite consensus. Attempts to find
consensus should be made prior to recourse to the courts. The legal traditions and
jurisprudence of all countries were moving towards seeking discussion and mediation to
resolve conflicts before they came before a judge, and that was particularly the case in
industrial relations. If the ILO, as the tripartite house of dialogue at the international level, were
to shy away from such an attempt, it would find itself out of step with history. If a reference to
the tripartite structures was not included in the new paragraph, then it was not a compromise
proposal. Both elements were needed to ensure that the tripartite dialogue element was there
to strengthen the factual and substantive body of the supervisory system.
191. The Government representatives of Australia, Japan, Mexico and the United Kingdom
expressed support for the subamendment to the new paragraph proposed by the
representative of the United States.
192. Speaking on behalf of the EU and its Member States, a Government representative of France
reiterated that she supported the new paragraph as proposed by the Workers’ group. Before
taking a position on the subamendment proposed by the representative of the United States,
she wished to hear the views of the Workers’ and Employers’ groups.
193. A Government representative of Brazil expressed support for the subamendment proposed
by the representative of the United States, but suggested that wording along the lines of “as
an auxiliary means to resolution” could be added after “including through tripartite social
dialogue”.
194. The Employer spokesperson requested clarification of whether the subamendment proposed
by the representative of the United States included the reference to the work plan.
195. A Government representative of the United States said that, although her original proposal
had not included the reference to the work plan, she would be happy to retain it.
 GB.344/PV 52
196. The Worker spokesperson said that she would be willing, in the interests of reaching
agreement, to incorporate the words “including through tripartite social dialogue” at the end
of the new paragraph as proposed by her group. That would be the end of the sentence; she
could not accept any additional wording beyond that phrase. It was her understanding that
many Governments did not want a paragraph that was unclear on how to deal with
interpretation and divergences on international labour standards, and some members of her
group were reluctant to accept a broadening of the issue beyond the debate on how to achieve
legal certainty.
197. The Employer spokesperson said that the role of the Governing Body was to find ways
forward and she recalled that the Governments held a variety of views. The Employers
welcomed the subamendment proposed by the representative of the United States and stood
ready to accept a version of the new paragraph that incorporated both that subamendment
and the further subamendment just proposed by the Workers’ group, on the understanding
that the Office would also develop approaches and ways to settle unresolved disputes and
discuss them through tripartite social dialogue, and that the door would be left open in that
sense.
198. Speaking on behalf of the Africa group, a Government representative of Morocco expressed
support for the new paragraph as subamended by the representative of the United States and
by the Workers.
199. Speaking on behalf of the EU and its Member States, a Government representative of France
also expressed her support for the new paragraph as subamended by the representative of
the United States and by the Workers. She appreciated the willingness of the different groups
to accept the solution.
200. The Worker spokesperson said that she could support the adoption of the text as
subamended and welcomed the contributions made by all to the result, which marked an
important step forward. While she stood ready to participate in future discussions on the
different views on the subject that were held in the Governing Body, she did not share the
Employers’ understanding in that regard.
Decision
201. The Governing Body, considering that settling disputes relating to the interpretation of
international labour Conventions in accordance with article 37 of the ILO Constitution is
fundamental for the effective supervision of international labour standards, decided to
continue its discussion at its 347th Session (March 2023) and requested the Office to
facilitate tripartite consultations with a view to preparing:
(a) proposals on a procedural framework for the referral of questions or disputes
regarding the interpretation of international labour Conventions to the
International Court of Justice for decision in accordance with article 37(1); and
(b) additional proposals for the implementation of article 37(2), taking into account the
guidance of the Governing Body and the opinions expressed in the tripartite
exchange of views.
202. The Governing Body expressed its commitment to further implement the work plan on
strengthening the supervisory system, including through tripartite social dialogue.
(GB.344/INS/5, paragraph 74, as amended by the Governing Body)

Document No. 40
GB.347/INS/5, Work plan on the strengthening of the
supervisory system: Proposals on further steps to ensure
legal certainty, February 2023

 GB.347/INS/5
To minimize the environmental impact of ILO activities, Governing Body documents published before or after the sessions are not printed. Only documents
issued in-session are printed in limited numbers and distributed to Governing Body members. All Governing Body documents are available at www.ilo.org/gb.
Governing Body
347th Session, Geneva, 13–23 March 2023
Institutional Section INS
Date: 27 February 2023
Original: English
Fifth item on the agenda
Work plan on the strengthening of the supervisory
system: Proposals on further steps to ensure legal
certainty
Further to the decision taken by the Governing Body at its 344th Session (March 2022), this document includes a
draft procedural framework for the referral of questions or disputes regarding the interpretation of international
labour Conventions to the International Court of Justice in accordance with article 37(1) of the Constitution. The
document also includes additional considerations and proposals on the possible establishment of an in-house
tribunal for the expeditious determination of interpretation questions or disputes in accordance with article 37(2)
of the Constitution. This document has been prepared taking into account the views expressed during informal
consultations held in November–December 2022 and in January–February 2023 (see the draft decision in
paragraph 62).
Relevant strategic objective: All four objectives.
Main relevant outcome: Outcome 2: International labour standards and authoritative and effective
supervision.
Policy implications: None at this stage.
Legal implications: None at this stage.
Financial implications: None at this stage.
Follow-up action required: Depending on the decision of the Governing Body.
Purpose of the document
 GB.347/INS/5 2
Author unit: Office of the Legal Adviser (JUR).
Related documents: GB.344/PV; GB.344/INS/5; GB.335/INS/5; GB.329/INS/5(Add.)(Rev.); GB.329/PV; GB.323/PV;
GB.322/INS/5; GB.320/PV.
 GB.347/INS/5 3
 Contents
Page
Introduction .............................................................................................................................................. 5
1. Procedural framework for the referral of interpretation questions or disputes to
the International Court of Justice under article 37(1) .................................................................. 6
1.1 Advisory proceedings in brief ................................................................................................. 6
1.2. A procedural framework – key considerations .................................................................... 8
2. Additional proposals for the implementation of article 37(2) on the establishment
of an in-house tribunal for the expeditious determination of interpretation
questions or disputes ....................................................................................................................... 12
2.1 Basic principles .......................................................................................................................... 12
2.2 Origins of article 37(2) and competence ................................................................................ 13
2.3 Structure and composition ...................................................................................................... 15
2.4 Selection and appointment of judges .................................................................................... 16
2.5 Procedural rules – Initiation and conduct of proceedings .................................................. 17
2.6 Relationship with supervisory bodies .................................................................................... 18
2.7 Legal effect of an award ........................................................................................................... 18
2.8 The way forward ........................................................................................................................ 19
Draft decision ........................................................................................................................................... 20
Appendices
I. Referral of interpretation questions or disputes to the International Court of Justice
under article 37(1) of the Constitution............................................................................................ 21
II. Graphic representation of the procedural framework ................................................................ 26
III. The debate on article 37 – Overview and key dates ..................................................................... 27
IV. The six precedents of interpretation requests to the Permanent Court of
International Justice under article 37.............................................................................................. 28
 GB.347/INS/5 5
 Introduction
1. At its 344th Session (March 2022), the Governing Body, considering that settling disputes
relating to the interpretation of international labour Conventions in accordance with article 37
of the ILO Constitution is fundamental for the effective supervision of international labour
standards, requested the Office to facilitate tripartite consultations with a view to preparing:
(a) proposals on a procedural framework for the referral of questions or disputes regarding
the interpretation of international labour Conventions to the International Court of Justice (ICJ)
for decision in accordance with article 37(1); and (b) additional proposals for the
implementation of article 37(2). 1
2. This decision was based on the general understanding that “the wording of article 37 leaves
no doubt that the Organization … has an obligation to resolve interpretation disputes by having
recourse to judicial means and that the authority to give definitive and binding interpretations
currently lies exclusively with the ICJ”. 2
3. The current discussion takes place in the framework of the implementation of the work plan
for the strengthening of the supervisory system that was launched in March 2017 as one of
the two components of the Standards Initiative. The work plan for the strengthening of the
supervisory system included consideration of further steps to ensure legal certainty under
action 2.3 of the Standards Initiative, 3 as a follow-up to the Governing Body decision at its
323rd Session (March 2015) not to pursue for the time being any action under article 37 of the
Constitution to address the interpretation question of the Freedom of Association and
Protection of the Right to Organise Convention, 1948 (No. 87), in relation to the right to strike. 4
4. Discussions on the legal certainty component of the work plan on the strengthening of the
supervisory systems were first held during the 335th Session (March 2019) of the Governing
Body. At that session, the Governing Body decided to hold informal consultations and, to
facilitate the tripartite exchange of views, requested the Office to prepare a paper on the
elements and conditions for the operation of an independent body under article 37(2) of the
ILO Constitution and of any other consensus-based options, as well as the article 37(1)
procedure. 5 These informal consultations and tripartite exchange of views took place in
January 2020 and the outcome was reported in a paper prepared for a discussion during the
338th Session (March 2020) of the Governing Body. 6 Due to the cancellation of the 338th
1 GB.344/PV, para. 201
2 GB.344/INS/5, para. 66. The same document further notes that “article 37 of the ILO Constitution typifies what is better
known as a ‘dispute settlement clause’ … By its nature, therefore, a dispute settlement clause provides for compulsory rather
than optional action; it dictates in more or less detailed terms a specific legal solution at the exclusion of others.” (para. 19).
This ‘compulsory’ jurisdiction vested in the ICJ for all matters of interpretation exists in relation to all Members of the
Organization, and in 1953, when the Soviet Union wished to enter the Organization with a reservation in respect of this
jurisdiction, the reservation was not permitted; see Official Bulletin, 31 December 1954, Vol. XXXVII, No. 7, p. 228.
3 GB.329/INS/5(Add.)(Rev.); GB.329/PV. paras 95–148.
4 GB.323/PV, para. 84. This decision provisionally discontinued consideration of a possible referral to the Court following the
discussion on modalities, scope and costs of action under 37(1) at the 322nd Session (November 2014) of the Governing Body
and the Tripartite Meeting on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87),
in relation to the right to strike and the modalities and practices of strike action at national level held in February 2015.
5 GB.335/INS/5, para. 84(g).
6 GB.338/INS/5.
 GB.347/INS/5 6
Session as a result of the COVID-19 pandemic, the Governing Body resumed its consideration
of this matter only at the 344th Session (March 2022). 7 A succinct chronology of past
discussions on article 37 is provided in Appendix III including links to all relevant background
documents.
5. As requested by the Governing Body in March 2022, the Office held a series of informal
consultations in November–December 2022 and in January–February 2023. Considering the
views expressed by the tripartite constituents, as well as historical precedent and the relevant
practice of the ICJ, 8 the Office has drawn up a draft procedural framework under article 37(1)
and additional proposals under article 37(2), with a view to facilitating further discussions and
possible future action in these matters. The draft procedural framework for the referral of
interpretation questions or disputes to the ICJ under article 37(1) and its accompanying
introductory note can be found in Appendix I.
6. It is noted in this context that although the Governing Body decision refers to the referral of
questions or disputes regarding the interpretation of international labour Conventions, the
proposed procedural framework would apply also to any question or dispute relating to the
interpretation of the ILO Constitution.
7. Moreover, this document provides additional considerations and proposals on the possible
establishment of an in-house tribunal for the expeditious determination of interpretation
questions or disputes in accordance with article 37(2) of the ILO Constitution, with a view to
enabling the Governing Body to decide whether to pursue the examination of the
implementation of article 37(2) and, if so, in which time frame.
8. By way of background information, this document also contains a graphic representation of
the proposed procedural framework (Appendix II) and key elements of the six precedents of
interpretation requests the ILO addressed to the Permanent Court of International Justice
under article 37 in the period 1922–32 (Appendix IV).
 1. Procedural framework for the referral of interpretation
questions or disputes to the International Court of Justice
under article 37(1)
1.1 Advisory proceedings in brief
9. To facilitate the consideration of the proposed procedural framework, it would be useful to
recall the main aspects of the advisory function of the ICJ as reflected in its Statute and Rules
and well-established practice. 9
7 GB.344/INS/5.
8 General information on the advisory jurisdiction of the ICJ can be found in The International Court of Justice: Handbook,
2019, pp. 81–93. See also Khawar Qureshi, Catriona Nicol and Joseph Dyke: Advisory Opinions of the International Court of Justice
(London: Wildy, Simmonds and Hill Publishing, 2018); Hugh Thirlway, “Advisory Opinions” in Max Planck Encyclopedia of Public
International Law (Oxford: Oxford University Press, 2006).
9 From 1948 to 2022, the International Court of Justice rendered a total of 27 advisory opinions in response to requests
submitted by the United Nations and four specialized agencies, namely UNESCO, IMO, WHO and IFAD. The full text of all
advisory opinions is available at the ICJ web page on advisory proceedings. The most recent request for an advisory opinion
 GB.347/INS/5 7
10. Advisory opinions are not intended to resolve inter-State disputes but only to give authoritative
legal advice to the organization that so requests. The request for an advisory opinion must be
based on a decision of the competent body of the organization concerned containing the
question to be asked to the Court. The request must be accompanied by a dossier containing
all background documents that, in the view of the organization concerned, should be brought
to the knowledge of the Court.
11. The advisory jurisdiction of the Court is open to those specialized agencies authorized to this
effect by the General Assembly, including the ILO which received such authorization by virtue
of article IX(2) of the 1946 UN–ILO relationship agreement. Requests for advisory opinions
carry minimal costs (reproduction of documents and mission costs for participation in oral
proceedings), as the expenses of the Court are borne by the United Nations. The question put
to the Court must be legal in nature, directly related to the activities of the organization and
refer to issues falling within its sphere of competence. The fact that the question may be vague
or unclear or that the request may have political motives, is not decisive for establishing the
Court’s jurisdiction.
12. Participation in advisory proceedings consists in submitting written statements and oral
arguments, if the Court decides to hold hearings. The Court is prepared to expedite the
advisory proceedings, if expressly requested to do so. In deciding which States, international
organizations or other entities should be invited to participate in advisory proceedings, the
Court seeks to ensure that all actors likely to provide information that may not be available to
the Court otherwise, are associated with the proceedings. 10
13. Contrary to judgments in contentious cases, advisory opinions are in essence non-binding.
Notwithstanding, the Court has always drawn a distinction between the advisory nature of its
task and the particular effects the requesting organization may wish to attribute to an advisory
opinion. Indeed, according to the letter and the spirit of article 37 of the ILO Constitution (“any
question or dispute … shall be referred for decision to the International Court of Justice”), and
as consistently reaffirmed by tripartite constituents, 11 advisory opinions rendered by the Court
at the ILO’s request are considered to be authoritative and final pronouncements, and should
be implemented as such.
was made by the United Nations General Assembly through Resolution 77/247 of 30 December 2022 and transmitted to the
President of the Court by letter of the United Nations Secretary-General dated 17 January 2023.
10 For a more detailed overview of the main characteristics and procedural aspects of the advisory function of the ICJ, see
GB.322/INS/5, paras 7–47.
11 By way of example, see the statement on behalf of GRULAC at the March 2014 Governing Body session that “legally binding
interpretations of international labour Conventions [fall] within the exclusive competence of the ICJ, in accordance with
article 37(1) of the ILO Constitution” (GB.320/PV, para. 585). See also the statement of the Employer spokesperson at the
Committee on the Application of Standards in 2002 according to which “only the International Court of Justice had the
authority to make binding interpretations of Conventions and Recommendations, which clearly derived from article 37 of the
ILO Constitution…” (ILO, Record of Proceedings, International Labour Conference, 90th Session, 2002, 28/13, para. 45) or the
statement of the Worker spokesperson at the same Committee in 1991 to the effect that the assessments and views of the
supervisory bodies were generally accepted “subject to a definitive interpretation by the International Court of Justice” (ILO,
Record of Proceedings, International Labour Conference, 78th Session, 1991, 24/4, para. 16). For a compilation of similar
statements see here.
 GB.347/INS/5 8
1.2. A procedural framework – key considerations
14. There seems to be broad agreement that, in drawing up a working process for referring
interpretation questions or disputes to the Court under article 37(1) of the ILO Constitution,
due account should be taken of the following:
(i) the overriding character of the constitutional prescription of article 37 and criticality of
legal certainty for the credibility of the ILO as a standard-setting organization;
(ii) finality and stability in matters of interpretation through recourse to judicial means
meeting highest standards of legal expertise, integrity and independence;
(iii) action under article 37(1) for serious and persistent interpretation disputes which justify
having recourse to the principal judicial organ of the UN.
15. In addition, consultations seem to confirm that a procedural framework should:
(i) remain as close as possible to the letter and the spirit of article 37(1);
(ii) avoid introducing working arrangements that would run counter to the Constitution and
might generate complexity;
(iii) ensure inclusive discussion and informed and time-bound decisions at all stages.
16. An agreed framework would carry considerable practical value since it would provide a simple,
clear and ready-to-use methodology for examining a referral request and taking decisions
prior to the start of advisory proceedings, clarifying the role and responsibilities of the Office
before and during the proceedings, and planning any follow-up action after the Court has
rendered its opinion. It would enhance coherence, transparency and efficiency as it would
embody a general commitment of constituents to follow modalities agreed in advance and
thus avoid time-consuming discussions about the process each time a referral request is
brought before them for consideration. Its adoption, however, may not be considered in any
way a precondition to making a request for an advisory opinion to the Court, as the procedural
framework cannot override constitutional provisions.
17. Three main issues have drawn constituents’ attention during the informal consultations: (i) the
level of support (or “threshold”) for triggering a full-fledged referral discussion at the
Governing Body; (ii) the time limit within which the Governing Body should reach a decision on
possible referral; and (iii) the role of the International Labour Conference in the referral
process.
18. Firstly, with respect to the possible screening of referral requests, there seems to be adequate
support for setting an indicative – and not prescriptive – threshold in terms of the number of
Governing Body members or Member States that should sponsor a referral request to be
considered by the Governing Body. This indicative threshold for filing a referral request with
the Governing Body should not be confounded with the final decision of the Governing Body
on the possible referral to the Court. Some constituents expressed preference for an elevated
threshold, while others considered that the majority of the States parties to the Convention
concerned should be in favour of the referral request before it can be considered. It is noted
that the ILO Constitution provides that any dispute relating to the interpretation of any
Convention shall be referred for decision to the ICJ, without any direct or indirect reference to
the degree of support that a referral request should enjoy. Yet, in practice, referral requires a
 GB.347/INS/5 9
debate and decision of the Governing Body, which in itself confirms that not all interpretation
disputes are to be brought before the ICJ. 12
19. Be that as it may, the proposed indicative threshold could not and would not set, legally
speaking, a binding receivability rule but rather a shared and trusted understanding among
constituents on the way to proceed for the sake of business efficiency and procedural
economy. Any referral request which would fail to meet the indicative threshold would still be
referred to the Officers of the Governing Body who could recommend appropriate follow-up
action.
20. Secondly, as regards the duration of Governing Body discussions before a decision on referral
is taken, many constituents see value in keeping the process within a specific time frame while
some consider it important not to provide for any limitation, all the more so as the outcome
would be uncertain if the Governing Body were unable to reach a decision within a set time
limit. It may be useful to recall, in this respect, that the Governing Body discussion on possible
referral would normally take place in the context of a persistent disagreement and therefore
it would be reasonable to assume that the issue(s) and differing views would already be
sufficiently clear to all, or that the matter would have already been debated within the
Organization. On the assumption, therefore, that having recourse to article 37(1) would be
considered as a last resort in case of a serious and persistent interpretation dispute, it would
be sensible and realistic to expect that the Governing Body discussion is concluded in a timebound
manner, especially if the Court were to be requested to provide an “urgent answer” in
accordance with article 103 of its Rules. From that perspective, it would not be advisable to
dissociate the debate on the referral request from that on the legal question(s) to be put to the
Court since it would delay the process.
21. Thirdly, different views have been expressed with regard to the body that should take the
referral decision. While acknowledging that the Governing Body has the authority to request
an advisory opinion by virtue of a 1949 Conference resolution delegating such authority, many
constituents would strongly be in favour of the Governing Body’s decision being subject to the
validation or approval of the International Labour Conference as the supreme executive and
most representative body of ILO’s tripartite constituency. For some constituents any
substantive discussion should take place at the Conference, while for others the Conference
would not be the appropriate forum as it has mandated the Governing Body to take decisions
on these matters.
22. It may be noted, in this connection, that due to its mode of operation and as confirmed by past
practice, the Governing Body may be more suitable for filtering referral requests, analysing indepth
the subject matter of the interpretation dispute, debating the merits of coming before
the ICJ and potentially determining the legal question(s) to be put to the Court. 13 On specific
occasions, however, having regard to the institutional importance or seriousness of the
12 For instance, in 1932, at the time the Governing Body was considering referring a question concerning night work of women
based on a request from the Government of the United Kingdom, the German Government also requested a referral of a
separate but related question. The Governing Body thought the German question should be postponed until the Office had
carefully studied the question. The German Government did not agree with the proposed postponement and a vote was
finally taken to adjourn consideration of the questions raised by the German Government. See the Governing Body minutes
of the 58th Session, 1932, p. 401.
13 As it was pointed out in 1949 by the Reporter of the Committee on Standing Orders, the Conference has “a very sporadic
existence. It meets for about three weeks every year, and it may happen that it is necessary to ask the Court for an advisory
opinion when it is not in session, and in that case it would seem advisable that the Governing Body should be able to ask the
Court for such an opinion”. See ILO, Record of Proceedings, International Labour Conference, 32nd Session, 1949, p. 245.
 GB.347/INS/5 10
dispute at hand, the Conference could be invited to approve the Governing Body’s decision
(without undertaking a fresh review of the merits of the referral request) and authorize the
referral on behalf of the entire ILO membership. 14 In this case, the Governing Body, upon
having made a referral decision (by consensus or by a simple majority vote), would further
decide to transmit a draft resolution to the following session of the Conference for adoption.
The resolution, which would be channelled to the plenary through the General Affairs
Committee, would confirm the decision to request an advisory opinion from the Court,
including the questions to be put to the Court, and would instruct the Director-General to
transmit those questions to the Registrar or the President of the Court, as per the applicable
rules.
23. A similar “two-stage approach” involving consecutive decisions, first of the Governing Body and
then of the Conference, can be found in articles 33, 37(2) and 38(2) of the Constitution, which
provide for Conference approval or confirmation based on recommendations or draft rules
prepared by the Governing Body. 15 In all three cases, the underlying rationale seems to be the
need to associate the Conference by reason of its representativeness and in view of the
significant implications for the entire membership. 16 Therefore, there may be merit in making
express provision in the procedural framework for the possible transmission of a referral
decision to the Conference for approval, to be determined by the Governing Body on a caseby-
case basis.
24. Beyond these main aspects highlighted above, three other related questions were addressed
during the tripartite exchanges, namely whether Member States non-members of the
Governing Body should be allowed to participate in the relevant discussions, whether the
Office should adopt a strictly neutral and impartial position during the referral process and the
advisory proceedings and, lastly, whether a referral should have a suspensive effect on the
work of the supervisory bodies in relation to the Convention concerned.
25. Firstly, as regards the possible participation of all interested governments in the Governing
Body discussions, it should be clarified that the existing rules (article 4.3 of the Standing
Orders) permit the Governing Body to meet as a Committee of the Whole, in which
representatives of governments that are not represented on the Governing Body may be given
the opportunity to express their views. Alternatively, the non-members of the Governing Body
14 It should be noted, in this respect, that as the Office Note for the Committee on Standing Orders at the 1949 Conference
clarified, “The Governing Body exercises important functions in connection with the application of Conventions, in the course
of which it may find it desirable to refer a matter to the Court. … The Governing Body would clearly not approach the Court
on a matter which was primarily the responsibility of the Conference without ascertaining the views of the Conference and,
on this understanding, the Governing Body considers that there would not be any objection in principle to, nor any practical
disadvantage in, a general authorisation”. See ILO, Record of Proceedings, International Labour Conference, 32nd Session,
1949, pp. 391–392.
15 The original Office proposal for article 33 provided for measures to be recommended by the Governing Body in case of
failure by a Member to implement the recommendations of a Commission of Inquiry. An amendment was adopted to clarify
that the measures should be recommended to the Conference on the understanding that these recommendations would
address “very serious cases “and therefore “it appeared desirable to have the backing of the full Conference” as the “master
body of the Organisation”. As regards article 37(2), the reference to the Conference’s approval of the rules drawn up by the
Governing Body was introduced following a discussion on the binding effect of the awards of the tribunal for all Member
States and the consequent need to provide for a role for the Conference. See ILO, Official Bulletin, 1946, Vol. XXVII, No. 3, pp.
606, 770 and 860.
16 Reference may also be made to the 1986 Instrument of Amendment to the ILO Constitution (not yet in force), which
provides that whereas the appointment of the Director-General remains under the responsibility of the Governing Body, it
must be submitted to the approval of the entire membership represented at the Conference. See ILO, Records of Proceedings,
International Labour Conference, 72nd Session, 1986, 18. The same two-stage process for the appointment of the Executive
Head is found in UNESCO and the WHO.
 GB.347/INS/5 11
could be invited to submit written comments, within the limits determined by it, which would
be made available to the Governing Body prior to its first discussion on the referral request. It
is suggested that this latter possibility, coupled with the further option to submit the matter to
the approval of the Conference, would guarantee an inclusive process without overburdening
or protracting the deliberations of the Governing Body.
26. Secondly, with respect to the Office’s duty of neutrality and impartiality, it is indeed imperative
for the Office to refrain from taking any action that might be perceived as supporting or
helping either side in an interpretation dispute. It would be important to avoid adding to the
interpretation dispute a controversy about the role and responsibilities of the Office. 17
Specifically, the comprehensive file, or dossier, to be submitted to the Court would be prepared
under the sole responsibility of the Director-General and would not be submitted to the groups
for review. In addition, the Office should not provide any material assistance, legal counselling
or financial support to any of the constituent groups or Members that may be involved in the
Court proceedings (for example, preparation of written submissions, legal representation,
travel expenses and so forth). As for the Office’s participation in any oral proceedings that the
Court may organize, it would aim at faithfully reflecting institutional practice and jurisprudence
prior to the referral, and at providing clarification of a factual nature (for example, an historical
context, constitutional theory, organizational structure and responsibilities, standard-setting
processes, ILO’s normative system and so forth). 18
27. Thirdly, concerning the effect of a referral on core supervisory functions and procedures, it
may be noted that as the advisory proceedings would mark the last stage of a persistent
controversy, there would be no reason to suspend regular supervision at this particular stage.
Compliance-inducing procedures could thus continue to be available and supervisory bodies
could continue to carry out their responsibilities while the request for an advisory opinion
would be pending, in exactly the same way as those procedures and bodies operated since the
dispute first arose. However, while suspending the ordinary work of supervisory bodies for the
duration of advisory proceedings may be disruptive and would not therefore be advisable, the
supervisory bodies concerned might, on their own motion and on a case-by-case basis, decide
to suspend the examination of a particular aspect of the application of a Convention for as long
as the Court may have not delivered its opinion.
17 This is far from a hypothetical situation. Indeed, in the context of the advisory proceedings on the Competence of the ILO
in regard to International Regulation of the Conditions of the Labour of Persons Employed in Agriculture, a member of the
Governing Body wrote directly to the Court on 17 June 1922, criticizing the lack of objectivity and neutrality of the
memorandum submitted by the ILO Director and the lack of consultations. See Acts and Documents relating to Judgments and
Advisory Opinions given by the Court, No. 1, First Ordinary Session, 15 June – 12 August, 1922; Section B, Documents relating to
Advisory Opinion No. 2, p. 494.
18 It is worth recalling, in this respect, the written statement submitted by the Office during the proceedings concerning the
Night Work (Women) Convention, 1919 (No. 4), which read in part: “le présent mémoire comportera, en premier lieu, un
exposé historique des faits et, en second lieu, un exposé des thèses en présence. […] Le Bureau international du Travail s’est
efforcé, dans le présent mémoire, de rapporter aussi exactement que possible les faits et les arguments relatifs à la question
soumise à la Cour. Il ne lui appartient pas de formuler une conclusion dans un sens ou dans l’autre” (PCIJ, Series C: Acts and
documents relating to Judgments and Advisory Opinions given by the Court; documents of the written proceedings, Part I,
pp. 162 and 180). In his oral statement, Edward Phelan noted: “The International Labour Office has already submitted to you
a written statement, the object of which is to place before the Court, as impartially as possible, all the elements of the problem
submitted for solution […] The International Labour Office notes the existence of differing interpretations of the Convention
concerning the employment of women during the night; it deplores these differences on interpretation, and it appears before
the Court with the one object of facilitating the adoption of a solution of the problem which is legally satisfactory” (PCIJ,
Series C: Acts and documents relating to Judgments and Advisory Opinions given by the Court, public sittings and pleadings,
p. 208).
 GB.347/INS/5 12
 2. Additional proposals for the implementation of article 37(2)
on the establishment of an in-house tribunal for the
expeditious determination of interpretation questions
or disputes
2.1 Basic principles
28. At the 322nd Session (October–November 2014) of the Governing Body, the Office presented
detailed proposals for setting up an in-house tribunal for the expeditious determination of
questions or disputes regarding the interpretation of international labour Conventions,
accompanied by a draft statute based on a comprehensive review of the structure of major
international courts and tribunals in operation. 19 Further elements on the organization and
functioning of the tribunal were provided in the document that was prepared for the
338th Session (March 2020) of the Governing Body. 20
29. As indicated in earlier documents, the ILO Constitution sets out six key parameters which
should guide the Governing Body in implementing article 37(2):
(i) The adjudicative body to be established should be a tribunal composed of judges;
(ii) The mandate of the tribunal would be the expeditious determination of any question or
dispute relating to the interpretation of a Convention which the Governing Body decides
would not warrant referral to the International Court of Justice;
(iii) The rules establishing the tribunal should be drawn up by the Governing Body and
approved by the Conference;
(iv) The referral of any question or dispute to the tribunal would be decided by the Governing
Body or in accordance with the terms of the Convention in question;
(v) Any applicable judgment or advisory opinion of the International Court of Justice would
be binding upon the tribunal;
(vi) Decisions rendered by the tribunal should be circulated to Members for their
observations, which should then be forwarded to the International Labour Conference.
30. From an institutional perspective, setting up such an internal ILO tribunal would put in place
the one element provided for under the Constitution for the settlement of interpretation
disputes that is currently missing. It would provide expeditious, reasoned and authoritative
rulings on matters of interpretation of international labour Conventions and would also
represent a sound and valid alternative for any questions or disputes not considered suitable
for referral to the International Court of Justice, the principal judicial organ of the United
Nations. An in-house tribunal would be a readily available and highly expert body whose
jurisdiction would be solely the interpretation of ILO Conventions. Moreover, full ILO
ownership would be guaranteed, since the Organization’s executive organs would maintain
control over its structure and procedure.
31. During the tripartite consultations held in preparation for the current discussion, some
constituents saw little value in examining in detail the modalities of the establishment of an in-
19 GB.322/INS/5, paras 50–101 and Appendix II.
20 GB.338/INS/5, paras 37–59.
 GB.347/INS/5 13
house tribunal at this juncture, as the settlement of the ongoing interpretation dispute on the
Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) in
relation to the right to strike could not be entrusted to such a tribunal. However, other
constituents considered that the full potential of an in-house tribunal should be explored as a
true alternative to referring the matter to the Court.
32. Constituents also expressed interest in the rationale behind the introduction of article 37(2) at
the time of the constitutional amendment of 1946, and in particular on any limits to the
jurisdiction conferred upon the internal tribunal.
33. The additional proposals outlined below clarify selected aspects of the in-house tribunal, such
as the type of interpretation questions that could be referred to it and the process for selecting
judges, and outline a possible way forward.
2.2 Origins of article 37(2) and competence
34. The idea of establishing a special tribunal to deal with questions of interpretation of
international labour Conventions originated in Governing Body discussions about the
possibility of instituting a special procedure “between the unofficial procedure of consulting
the Office and the constitutional procedure of approaching the Permanent Court … an
intermediate procedure which, whilst not possessing the supreme authority of the Court,
would, nevertheless, give Members of the Organisation greater guarantees than were
provided by the opinions given by the Office”. 21
35. The idea took shape at the time of the creation of the United Nations and the ensuing
discussion about the relationship of the ILO to other international bodies, including the
transfer to the International Court of Justice of the jurisdiction entrusted by the ILO
Constitution to the Permanent Court of International Justice. In a Memorandum prepared by
the then ILO Legal Adviser Wilfred Jenks on the future development of the ILO Constitution
and constitutional practice, reference was made to a need “to afford facilities for the
determination of questions of interpretation of insufficient importance to warrant reference to
the Permanent Court of International Justice”. 22 The same point was made in a report prepared
by the Office for the Conference to address constitutional questions:
In respect of questions or disputes relating to the interpretation of Conventions different
considerations apply. The points at issue in such cases are frequently of so meticulous a
character as not to warrant recourse to the principal judicial organ of the international
community … A well-developed practice whereby unofficial interpretations of Conventions
were given by the International Labour Office gave a large measure of satisfaction and should
be continued in the future, but these opinions had no binding authority and the Governing
Body did not feel able to assume responsibility for the interpretation of Conventions and did
not think it appropriate to authorise the Committee of Experts on the Application of
Conventions to formulate such interpretations. In these circumstances uncertainty in regard to
the exact meaning of certain Conventions proved a serious impediment to their general
ratification. 23
21 Minutes of the 57th Session of the Governing Body, April 1932, pp. 344–345.
22 Emphasis added. First Session of the Committee on Constitutional Questions of the Governing Body, Official Bulletin,
10 December 1945, Vol. XXVII, p. 128.
23 ILO, Matters Arising out of the Work of the Constitutional Committee: Part 1. The Relationship of the ILO to Other
International Bodies, Report IV(1), International Labour Conference, 27th Session (Montreal, 1945), p. 108.
 GB.347/INS/5 14
36. Beyond the utility of determining questions of interpretation that were less prominent – yet
equally important for the promotion of standards – the introduction of the new procedure was
justified on three main grounds: the uncertainty on whether the ILO would have unhindered
access to the International Court of Justice; the fact that the constitutions of other
contemporary intergovernmental agencies contained similar clauses; and the need to respond
to exceptional and urgent cases. 24 There was also general agreement that the rulings of the
tribunal should be binding for all Member States since uniformity of interpretation was
essential, and that this tribunal should not be a body set up separately to deal with each case
which arose, but should be of a permanent character. 25
37. As to the extent of the powers of the in-house tribunal, the drafters’ intention was clearly to
provide for a flexible arrangement which would offer all guarantees of impartiality of a judicial
body and which would have the authority to examine questions of interpretation not
considered sensitive or important enough to be referred to the Court. 26
38. Rules could be drawn up to specify the nature of the questions or disputes that could be
referred to the tribunal. However, since referral would ultimately remain the prerogative of the
Governing Body, the competence of the tribunal should not be defined too narrowly so as to
allow it to exercise discretion. Both the International Court of Justice and the in-house tribunal
would be competent to examine questions of interpretation and would be expected to function
in a complementary manner, especially as the Governing Body might decide on an ad hoc basis
to request an advisory opinion from the International Court of Justice on a question on which
the tribunal had already ruled.
39. An indicative list of interpretation questions that had raised serious difficulties was provided in
the document on article 37(2) submitted to the 256th Session of the Governing Body
(May 1993). 27 It may be useful to list a few examples of requests for an informal opinion 28 from
the Office that an in-house tribunal could have been called upon to examine:
(i) Can various forms of semi-military services be regarded as exceptions in accordance with
Article 2, paragraph 2(a), of the Forced Labour Convention, 1930 (No. 29)?
(ii) Does the Occupational Safety and Health Convention, 1981 (No. 155), cover measures in
relation to work-related accidents and create corresponding entitlements vis-à-vis
insurance funds under national law?
24 First Session of the Conference Delegation on Constitutional Questions, Official Bulletin, 15 December 1946. Vol. XXVII, No.3,
pp. 729 and 767–768.
25 Official Bulletin, Vol. XXVII, No.3, p. 770.
26 As explained in the document prepared for the 322nd Session of the Governing Body (November 2014), “[b]oth mechanisms
would be available to address questions and disputes, the choice depending on the nature and importance of the subject
matter. While the Organization should opt for the International Court of Justice to address a broader variety of legal matters,
including matters of a constitutional nature, the in-house tribunal, once established, would afford a more technically
specialized mechanism tailored to the expeditious determination of specific, and possibly less sensitive, interpretation
requests”; see GB.322/INS/5, para. 56.
27 GB.256/SC/2/2, para 50.
28 Informal opinions have always been considered part of the administrative assistance that Member States can expect to
receive from the ILO secretariat, subject to the understanding that the Constitution does not confer upon it any special
competence to interpret international labour Conventions. For more information, see “Informal opinion”. See also
J. F. McMahon, “The legislative techniques of the international Labour Organization”, British Yearbook of international Law,
Vol. 41 (1965–66), pp. 87–101.
 GB.347/INS/5 15
(iii) Is a Member State that is a party to the Seafarers’ Identity Documents Convention
(Revised), 2003 (No. 185), obliged to recognize the seafarers’ identity documents issued
pursuant to the Seafarers’ Identity Documents Convention, 1958 (No. 108)?
(iv) What is the maximum continuous length of time that a seafarer can serve on board
without taking leave under the Maritime Labour Convention, 2006, as amended (MLC,
2006)? 29
2.3 Structure and composition
40. The in-house tribunal could be either a permanent structure or an ad hoc arrangement. In this
context, a permanent tribunal should be understood as a judicial institution duly established by
a constituent text (statute) whose members would only be convened (physically or remotely,
as the case may be) when a specific interpretation question or dispute is referred to it. In other
words, it would be a permanent body composed of judges appointed for a fixed term and who
serve only as needed (on call or stand-by).
41. In contrast, a tribunal established on an ad hoc basis would consist of a panel of judges
specially selected and appointed to examine a specific interpretation question or dispute, as in
the case of Commissions of Inquiry examining complaints submitted under article 26 of the
Constitution. The ad hoc nature of this arrangement would delay the process to such an extent
that selecting and appointing the judges could at times take longer than the determination on
the interpretation question. It would thus run counter to the objective of an “expeditious
determination” of an interpretation question or dispute and could also affect the overall
coherence of the tribunal’s case law. 30
42. If it is decided to establish a permanent structure, a total of eight judges could be appointed
for a non-renewable period of five to seven years, to ensure the independence of judges,
balanced geographical distribution and the unhindered operation of the tribunal in the event
of unforeseen vacancies. While three judges would be the minimum composition of a panel,
an odd number greater than three, such as five judges, could also be considered.
43. As regards the eligibility criteria for judges, the Office has previously highlighted four key
aspects: the high moral character and independence required of any adjudicator; outstanding
professional qualifications; adequate competence on the subject matter, in particular
demonstrated expertise in labour law and international law; and proficiency in one of the three
official languages (with knowledge of an additional language considered an advantage). In
addition, the judges should all be of different nationalities and the composition should
demonstrate, to the greatest extent possible, representation of the principal legal systems, fair
geographical distribution and gender balance.
29 This interpretation question has already given rise to an Office informal opinion, reiterated comments of the CEACR and a
proposed amendment to the MLC, 2006 considered inconclusively by the Special Tripartite Committee at its fourth meeting
(May 2022); see ILO, Report of the Committee of Experts on the Application of Conventions and Recommendations, ILC.108/III(A),
2019, paras 105–113, and Background paper for discussion, STCMLC/Part II/2022/2, p. 19.
30 During the discussions in 1946, the Legal Adviser expressed the following view in relation to a proposed amendment to
limit referral to the Tribunal to special urgent cases: “If the amendment […] was adopted it would create an implication that
a special tribunal would be set up for each specially urgent case, and they would have a group of single, unrelated decisions
rather than a whole body of interpretation. If the paragraphs provided only for ad hoc tribunals rather than for a general
authorisation, it would destroy what was achieved by the last sentence of the paragraph”; Official Bulletin, Vol. XXVII, No. 3,
p. 768.
 GB.347/INS/5 16
44. The tripartite consultations confirmed general acceptance of these criteria, which reflect
standard requirements set forth in the statutes of international courts and tribunals. With
regard to the view expressed by some constituents that the criteria should be broadened to
include in particular experience with employers’ and workers’ organizations, the tribunal would
be entrusted with the judicial determination of abstract legal questions of interpretation and
not the resolution of individual employment disputes. As for the suggestion that certain
functions such as having been a member of the Committee of Experts on the Application of
Conventions and Recommendations (CEACR) or employed by the ILO would be incompatible
with appointment as a judge, the matter has been previously highlighted and should indeed
be addressed in order to safeguard the independence and impartiality of the judges. 31
2.4 Selection and appointment of judges
45. The process for selecting and appointing judges should fulfil various prerequisites, including
transparency, inclusivity and tripartite ownership. In this connection, useful guidance may be
found in the process for appointing judges of the United Nations Dispute Tribunal and the
United Nations Appeals Tribunal. The judges of both tribunals are appointed by the General
Assembly upon recommendation from the Internal Justice Council, an independent body. 32
46. For both United Nations tribunals, the process is initiated by advertising the vacancies in both
the online and printed editions of major newspapers and on the website of the Office of
Administration of Justice. 33 The Council reviews the applications, prepares a written test and
invites some candidates to participate in order to test their legal expertise and drafting ability.
On the basis of that written assessment, the Council selects candidates to be interviewed and
approaches the relevant national bar associations to confirm their integrity. The Council then
sets out the names of the recommended candidates in a report submitted to the General
Assembly which contains both a brief summary of their careers and their curricula vitae
presented in a standard and summarized format. 34
47. Further guidance on the selection process may be drawn from the recently introduced
procedure for the appointment of members of the CEACR. The selection process for the judges
of the tribunal could replicate some requirements, for instance: vacancies should be given wide
publicity through a call for expression of interest on the ILO’s global and regional public
website; the selection process should not entertain any interference or public statements by
ILO constituents concerning the candidates or the selection process; and the Director-General
should inform the Officers of the Governing Body and submit a detailed report on the selection
process for their consideration at a dedicated sitting. 35
31 GB.322/INS/5, para 71.
32 The Internal Justice Council is tasked with undertaking the search for suitable candidates and recommending to the General
Assembly two or three candidates for each vacancy, with due regard to geographical distribution; see UN General Assembly
resolution 62/228, 22 December 2007, paras 35–38.
33 Vacancy announcements are also sent with a Note Verbale addressed to all Permanent Missions to the United Nations in
New York, Geneva and Vienna, inviting them to bring the vacancies to the attention of the Chief Justice or head of the judiciary
in each country; see UN General Assembly, resolution 65/251, 24 December 2010, para. 45.
34 See, for example, Appointment of judges of the United Nations Appeals Tribunal and of the United Nations Dispute
Tribunal: Report of the Internal Justice Council, A/70/190, 14 August 2015. The Council may not recommend more than one
candidate from any one Member State; see UN General Assembly, resolution 63/253, 24 December 2008, para. 57.
35 GB.343/PV, para. 556.
 GB.347/INS/5 17
2.5 Procedural rules – Initiation and conduct of proceedings
48. Article 37(2) of the ILO Constitution makes it clear that interpretation questions might be
referred to the tribunal by the Governing Body, which implies that a screening process would
be necessary. That process should be simple, since the questions or disputes would in principle
call for an expeditious determination. A single discussion by the Governing Body – possibly
informed by a succinct background report prepared by the Office when needed – would be
suitable and sufficient for referrals to the tribunal.
49. The proceedings themselves could follow a simplified framework in line with the main
objectives of expeditiousness and cost-efficiency; in principle, they would not exceed three to
six months. Upon receiving an interpretation question, the tribunal would send a standard
communication to all Member States, the secretariats of the two non-governmental groups
and the Office inviting them to submit observations within a fixed time limit. The tribunal would
have the discretion to invite additional submissions or organize hearings. It would also be
empowered to develop a fast-track procedure for urgent questions.
50. Procedural rules would be based on the premise that a referral would not be traditional
litigation proceedings with an applicant and a respondent. All interested parties would be
given the opportunity to participate by providing observations or other relevant information.
The use of electronic means would foster transparency and accessibility as well as the agile
and economical functioning of the tribunal. All procedural communications and the written
submissions would be published on a dedicated web page.
51. Concerning the means of interpretation, the tribunal would be guided by the principles of
customary international law enshrined in articles 31 to 33 of the Vienna Convention on the Law
of Treaties, taking into account the specificities of treaty interpretation within the ILO. Thus, in
analysing the ordinary meaning of terms and expressions used in international labour
standards in the light of their object and purpose, special consideration would be given to: the
preparatory work which preceded the adoption of the standards in question, in particular the
Office reports and the record of proceedings of the Conference technical committees; the use
of identical or similar terms in other international labour instruments; any relevant comments
of ILO supervisory bodies; and the extent to which the law and practice of Member States may
assist in clarifying the interpretation question at hand.
52. In March 2022, some constituents requested clarification on the possibility of allowing the
Committee of Experts and the Committee on the Application of Standards to refer
interpretation questions to the tribunal. If the Governing Body decides to adopt special
arrangements for the implementation of article 37, this might lead the supervisory bodies, and
in particular the two Committees, to draw attention to any significant difficulties relating to the
interpretation of Conventions they may encounter in the exercise of their functions. This could
prompt a Governing Body member or Member State to propose the possible referral of a
particular question to the tribunal.
53. Strong reservations were expressed in March 2022 about the suggestion of allowing other
international institutions to file a request for interpretation with the tribunal. 36 The aim of that
suggestion had been to enable the Governing Body to address, in the exercise of its discretion
under article 37(2), the increasing use of ILO Conventions by other supervisory bodies or other
regional or international courts. Similar to the provisions of article 14 of the Constitution in the
context of setting the agenda of the Conference, the Governing Body could consider any
36 GB.344/PV, para. 146.
 GB.347/INS/5 18
suggestion by a public international organization that a specific question be referred to the
tribunal. This could possibly result in an urgent referral: for instance in the event that the
interpretation of a specific provision of an international labour Convention is sought by an
international organization or an international expert body and the Governing Body considers
it important to preserve and promote the ILO’s authority in interpreting international labour
standards. Upon receiving such a request, the Governing Body would exercise its prerogative
to decide whether to refer the question to the tribunal.
2.6 Relationship with supervisory bodies
54. In earlier discussions, some constituents expressed concerns about the possible impact of the
tribunal on the work of the supervisory bodies. Reference was made, for instance, to
unintended consequences if the procedure were used excessively, and the need to avoid
weakening the Committee of Experts. 37
55. Under the Constitution, the supervision of the application of standards and the interpretation of
international labour Conventions are two interrelated but distinct processes: the supervisory
bodies address concrete questions of implementation of ratified Conventions at the national
level, while the International Court of Justice and the tribunal may address legal questions of
interpretation, focusing on the scope and meaning of legal provisions outside the countryspecific
application of those provisions through national legislation. Yet, these two processes
should be carried out in a harmonious manner in the interest of a robust system of standards;
as the Governing Body put it in its March 2022 decision, settling interpretation disputes in
accordance with article 37 of the Constitution is fundamental for the effective supervision of
international labour standards.
56. Any future rules governing the tribunal would have to strike a careful balance between the two
complementary functions of supervision and interpretation and the responsibilities of the
respective organs entrusted with those functions. At the same time, the added value in terms
of legal and moral authority that a specialized judicial body could contribute to the reputation
and visibility of the ILO’s normative system should not be underestimated. Having eminent
adjudicators settling interpretation questions expeditiously and through binding decisions
would represent a major qualitative development in the ILO standards system. As the in-house
tribunal develops its case law and refines its working methods, alongside the regular
functioning of the supervisory bodies, increased clarity on the demarcation between
interpretation and supervision of standards might reasonably be expected.
2.7 Legal effect of an award
57. Under the Constitution, once the tribunal has rendered its decision, the Office must promptly
circulate it among Member States and also transmit to the Conference any observations
received from Member States.
58. As regards the legal weight of the tribunal’s awards, the preparatory work (travaux
préparatoires) that led to the constitutional amendment of 1946 confirm that these awards
were intended to be binding and opposable to all. 38 The drafters envisioned two judicial bodies
- the International Court of Justice, on the one hand, and the in-house tribunal, on the other -
37 GB.344/PV, paras 146 and 154.
38 GB.322/INS/5, para. 96 and footnote 35.
 GB.347/INS/5 19
adjudicating, each within its own scope of competence, interpretation disputes which the
Governing Body placed before them as it saw fit, and issuing binding decisions.
59. The preparatory work further confirms that establishing a procedure for appeals, which would
mean that the in-house tribunal would be one of first instance, was neither intended nor
considered. 39 However, there is one important element of article 37(2) that speaks in favour of
a “vertical” relationship between the Court and the tribunal: the requirement that the tribunal
may not ignore any applicable judgment of the Court. Hence, nothing would seem to prevent
a question or dispute from being submitted to the Court after being examined by the tribunal.
Nevertheless, allowing the possibility for a tribunal award to be challenged presents a risk,
however theoretical, that all interpretation questions – even those of “insufficient importance”
or of “so meticulous a character” – might end up before the Court, which would be ill-advised
and inconsistent with the rationale of legal certainty underpinning article 37.
2.8 The way forward
60. If the Governing Body agrees to pursue its discussion of the implementation of article 37(2)
and the laying of the foundations of an in-house tribunal, the Office could facilitate tripartite
consultations with a view to preparing a set of draft rules drawing upon earlier relevant
reports, for the Governing Body’s consideration at its 352nd Session (November 2024). 40
61. The tribunal could be provisionally established for an initial period, for instance of five or seven
years. 41 At the end of this trial period, the Governing Body could evaluate the functioning of
the tribunal and decide whether to confirm its establishment and make any adjustments to the
rules that would be required. Any revised set of rules would be submitted to the Conference
for approval.
39 The reference to the binding nature of the Court’s judgments and advisory opinions was added to the Office’s original
proposal at the initiative of the tripartite members of the Working Party responsible for examining certain amendments to
the Constitution. The Working Party and the Conference decided not to provide for the possibility of appeal to the Court.
During the examination of the provision by the Committee on Constitutional Questions at the 1946 session of the Conference,
the Government member of Australia submitted an amendment to provide for a right of appeal to the International Court of
Justice for “any member who is dissatisfied with any decision by such a tribunal”. The amendment was withdrawn without
discussion; see Official Bulletin, Vol. XXVII, No. 3, pp. 729, 767–768, 770–771, 834 and 863.
40 A similar approach was proposed in 2014 (see GB.322/INS/5, para. 53).
41 The League of Nations Administrative Tribunal (which became the ILO Administrative Tribunal after the dissolution of the
League of Nations) was established in September 1927 on an experimental basis for three years through a resolution of the
Assembly adopting its statute (League of Nations, Official Journal, Special Supplement No. 54, Records of the 8th Assembly,
Plenary Meetings, 478). By a new resolution adopted in 1931, the Assembly confirmed the statute without amendments thus
turning the tribunal into a permanent body of the League (League of Nations, Official Journal, Special Supplement No. 93,
Records of the 12th Assembly, Plenary Meetings, 152). Similarly, the rules for regional meetings were adopted by the
Governing Body in basis (see GB.267/LILS/1) and were confirmed by the Conference with a few modifications in 2002 (see
Provisional Record No. 2, International Labour Conference, 90th Session).
 GB.347/INS/5 20
 Draft decision
62. The Governing Body decided to:
(a) approve the introductory note and procedural framework set forth in Appendix I of
document GB.347/INS/5 for the referral of interpretation questions or disputes to
the International Court of Justice under article 37(1) of the ILO Constitution;
(b) continue to discuss the implementation of article 37(2), and to this end, requested
the Director-General to organize tripartite consultations with a view to preparing
draft rules for the establishment of a tribunal for its consideration at its
352nd Session (November 2024).
 GB.347/INS/5 21
 Appendix I
Referral of interpretation questions or disputes to the International Court
of Justice under article 37(1) of the Constitution
Introductory note
Scope and purpose
The procedural framework for the referral of interpretation questions or disputes to the
International Court of Justice (the Court) under article 37(1) of the ILO Constitution does not
override article 37 of the Constitution or the provisions of the Standing Orders of the
International Labour Conference and of the Governing Body. It provides a set of practical
modalities that the tripartite constituents commit to applying in good faith with a view to
facilitating a sound, efficient and time-bound referral process to the advisory jurisdiction of the
International Court of Justice when needed.
Concretely, the procedural framework addresses: (i) the internal measures and decisions
prior to the initiation of advisory proceedings; (ii) the role of the Office in preparation of and
during the proceedings; and (iii) the actions to be taken or planned immediately following the
delivery of the Court’s advisory opinion.
Submission of referral request
In keeping with well-established constitutional theory and practice, not all interpretation
questions or disputes warrant immediate referral to the International Court of Justice, and in
this regard, the Governing Body is responsible for assessing referral requests. The referral
process would seek to resolve a serious and persistent disagreement among tripartite
constituents over the interpretation of a provision of the ILO Constitution or of an international
labour Convention, 1 on the assumption that attempts for reaching a generally acceptable
understanding through tripartite dialogue have proved unfruitful, and that under the
circumstances legal certainty may only be ensured by having recourse to the dispute
settlement procedure provided for in article 37(1) of the Constitution.
The holding of inconclusive tripartite discussions, unsuccessful mediation initiatives or
other similar interventions could indicate that there is little likelihood for the effective
resolution of the dispute and that an authoritative determination on the interpretation issue
may be called for. It is for the Governing Body to ascertain the impasse, taking especially into
account the duration and seriousness of the dispute.
In the interest of procedural economy and efficiency, to be examined by the Governing
Body, a referral request should enjoy a certain degree of support among constituents. This
aims at striking a balance between the provision of article 37(1) and the desirability to shield
the process against referral requests with little chance of being favourably considered.
Co-sponsorship of a referral request by at least 20 regular (that is, voting) Governing Body
members, or at least 30 Member States (irrespective of whether they are members of the
1 For the purposes of this procedural framework, the term “Convention” should be understood as encompassing also
Protocols to existing Conventions.
 GB.347/INS/5 22
Governing Body or not), would represent an indicative level of support which would directly
activate the first step of the process, namely the expeditious preparation of an Office report,
within a maximum of two months, and its transmission to the next Governing Body session.
Any referral request which would not have the above-indicated level of support would be
referred to the Officers of the Governing Body who could recommend appropriate follow-up
action.
The supervisory bodies may not directly seize the Governing Body with a referral request.
Office report
The Office report to facilitate the Governing Body’s determination of the merits of a
possible referral is a technical document containing detailed background information on the
question or dispute. It shall be prepared under the sole responsibility of the Director-General
and shall not be subject to prior consultations with the groups.
Governing Body debate and decision
In considering action under article 37(1), the Governing Body should be satisfied that no
viable option is available other than judicial means in view of the fact that the dispute persists
and that attempts for reaching a generally acceptable understanding through tripartite
dialogue have failed.
Keeping with the overall objective of ensuring legal certainty in the interest of the
Organization, the Governing Body discussion may not exceed two consecutive sessions. Within
that time frame, the Governing Body should decide whether it approves the referral to the
Court, and if so, which would be the legal question(s) to be communicated to the Court. As per
standard practice, the Governing Body decision should to the extent possible be taken by
consensus, failing which the decision would need to be taken by a simple majority vote.
In view of the institutional importance of a referral to the International Court of Justice
and in the interest of an inclusive discussion, all interested Member States should be allowed
to inform the Governing Body discussions through submission of written comments. It would
be particularly important to solicit the views of those Member States which have ratified the
Convention(s) concerned but are not represented on the Governing Body.
The Governing Body may decide, as it may deem appropriate, to submit its decision to
request an advisory opinion to the next session of the Conference for approval. If so decided,
the Governing Body should transmit a draft resolution, including the legal question(s) to be
put to the Court, inviting the Conference to approve the Governing Body’s decision, including
the legal question(s) to be put to the Court, and authorize the referral. As per standard practice,
the Conference approval should to the extent possible be decided by consensus, failing which
the approval would need to be decided by a simple majority vote.
Whether the referral decision is taken by the Governing Body or by the Conference, it
should provide succinct contextual information, the legal question(s) in respect of which the
Court’s guidance is requested, any instructions to the Director-General, for instance that an
urgent answer is needed or that the authorization of the Court to allow for the participation of
international employers’ and workers’ organizations should be expressly solicited, and any
measures to be taken pending the advisory opinion, such as the continuation of the regular
supervision of the Convention(s) in question, a call to all constituents to collaborate fully and
in good faith with the Court and a commitment to implement the Court’s opinion as a final and
binding pronouncement.
 GB.347/INS/5 23
Advisory proceedings
Throughout the referral process and the ensuing advisory proceedings, the Office should
exercise utmost discretion and adhere to its duty of neutrality and impartiality regarding the
interpretation dispute.
In transmitting the Governing Body’s or the Conference’s decision, as the case may be,
and the dossier to the Court, the Director-General should expressly request the Court to permit
through “a special and direct communication”, as provided for in article 66(2) of the Court’s
Statute, the international employers’ and workers’ organizations enjoying general consultative
status with the ILO to participate in the written and oral proceedings. In the same
communication, the Director-General should indicate whether this is an urgent request in
accordance with article 103 of the Court’s Rules. The governments of those Member States
considered by the Court as likely to be able to furnish information on the question shall be
invited to participate by means of a special and direct communication. Any Member State
which has not received such special communication may address a specific request to the
Court.
The initiation of advisory proceedings may not prevent the Office, the supervisory organs
or the constituent groups from continuing to discharge their respective standards-related
responsibilities and functions with respect to the Convention(s) concerned. The nonsuspension
of supervisory procedures aims at ensuring that an interpretation question or
dispute, however serious, does not bring key institutional functions to a standstill, particularly
in view of the overall length of the Court proceedings and the time that may be needed to
receive its opinion.
For the sake of transparency, the Office should ensure throughout the duration of the
proceedings that relevant documents and electronic resources (such as the NORMLEX
database) indicate that a question or dispute exists relating to the interpretation of a specific
provision of the ILO Constitution or of an international labour Conventions and that the matter
has been referred to the International Court of Justice for decision in accordance with
article 37(1) of the Constitution.
Advisory opinion – Follow up
Consistent with the guiding principle that the early resolution of a dispute relating to the
interpretation of the Constitution or of an international labour Convention can promote legal
certainty, the Court’s opinion together with a proper analysis of any required follow-up action
should be brought before the Governing Body as soon as possible.
Whether any follow-up action is required or advisable other than disseminating the
Court’s advisory opinion will depend on the nature of the question put to the Court and the
Court’s answer. The Governing Body enjoys discretion as to the type of measures it may adopt
or recommend in order to implement the Court’s opinion. It may not request, however, the
Court to review its opinion.
In the interest of a reasonably expedient process, the Governing Body should limit its
consideration of appropriate follow-up to the Court’s advisory opinion to two consecutive
sessions. The Office report to be submitted to the Governing Body should also contain detailed
information on the total costs incurred by the secretariat for the purposes of the advisory
proceedings.
 GB.347/INS/5 24
Procedural framework
Submission of referral request
1. A request for the referral of an interpretation question or dispute to the International Court of
Justice (the Court) shall be addressed to the Director-General and shall specify the subject of
the question or dispute, the provision(s) of the ILO Constitution or of the international labour
Convention(s) concerned, and the reasons for submitting the request.
2. To be examined by the Governing Body in accordance with this procedural framework, a
referral request should be filed by at least 20 regular Governing Body members or at least
30 Member States (whether members of the Governing Body or not).
Office report
3. Upon receiving a request for the referral of an interpretation question or dispute, the Director-
General shall inform the Officers of the Governing Body and shall prepare a report to be
submitted to the Governing Body for consideration as expeditiously as possible but not later
than two months from the receipt of the referral request.
4. The Office report shall include all relevant information, particularly on the nature and origin of
the interpretation question or dispute and the different positions expressed by constituents,
the negotiating history of the provision(s) concerned, the views of the supervisory organs as
well as the legal question(s) that might eventually be referred to the Court.
Governing Body debate and decision
5. To refer an interpretation question or dispute to the Court, the Governing Body should be
satisfied that a serious and persistent disagreement exists concerning the scope or meaning
of a provision of the ILO Constitution or of one or several international labour Conventions and
that efforts to reach a generally acceptable understanding through tripartite dialogue among
constituents have not produced, and are not likely to produce, conclusive results.
6. The Governing Body should take a decision on the referral request not later than the session
following that at which the Office report is considered and debated. The Governing Body
should decide at the same time on the referral and the legal question(s) to be put to the Court.
7. In the absence of consensus, the Governing Body decision shall be taken by simple majority
vote.
8. Any interested government which is not represented on the Governing Body shall be given the
opportunity to contribute to the debate through submission of written comments within the
limits to be determined by the Governing Body.
9. The decision to refer an interpretation question or dispute to the Court shall be deemed as an
authorization to cover the costs of the Office participation in the written and oral proceedings.
10. The Governing Body may refer its decision on referral of an interpretation question or dispute
to the Court to the Conference for approval at its next session.
Advisory proceedings
11. Once a decision is made to refer an interpretation question or dispute to the Court, the
Director-General shall promptly communicate to the President or the Registrar of the Court
copy of that decision, including the legal question(s) that should be examined by the Court.
 GB.347/INS/5 25
12. The Director-General shall also transmit to the Registrar a dossier as expeditiously as possible
and in any case not later than one month from the date of the formal communication of the
request for an advisory opinion. The dossier shall provide all relevant background information
and shall explain the process that led to the referral and the scope of the legal question(s) put
to the Court.
13. In transmitting the decision and the dossier to the Court, the Director-General should expressly
request the Court to invite through a special and direct communication the international
employers’ and workers’ organizations enjoying general consultative status with the
Organization to participate in the proceedings and should indicate whether the request
necessitates an urgent answer.
14. The Office shall publish the Director-General’s transmission letter, the dossier and other
relevant documents or information concerning the advisory proceedings at a special web page
which shall be kept regularly updated.
15. Throughout the advisory proceedings, the Director-General shall coordinate the secretariat
responses to any requests of the Court, including the participation to any oral proceedings.
The Office may not assume any coordination role with respect to the participation of the
tripartite constituents in the proceedings and should act at all times with discretion and in strict
neutrality and impartiality.
16. The Office may not intervene in the proceedings except at the express request of the Court.
17. The referral of an interpretation question or dispute to the Court and the ensuing advisory
proceedings may not suspend, or otherwise affect, the supervision of the application of any
Convention(s) which may be the subject of those proceedings.
Advisory opinion – Follow up
18. Upon receiving the Court’s opinion and in order to facilitate an informed decision regarding
any follow-up action, the Director-General shall transmit copy of the advisory opinion rendered
by the Court to the Officers of the Governing Body and shall prepare a comprehensive report
as expeditiously as possible but not later than one month from the date of receipt of the Court’s
opinion.
19. The Office report shall contain an analysis of the Court’s response to the legal question(s) and
shall identify any measures that would be necessary or advisable to give effect, in the short or
longer term, to the advisory opinion.
20. The Governing Body shall take a decision on any appropriate follow-up action not later than
the session following that at which the Office report is considered and debated.
 GB.347/INS/5 26
 Appendix II
Graphic representation of the procedural framework
Referral request
Submitted by at least 20 regular
GB members or at least 30
Member States
If lower level of support, GB
Officers to recommend
appropriate action
Director-General
Informs GB Officers and instructs
the Office to prepare background
factual report within two months
Governing Body
Debates and decides within max.
two consecutive sessions
whether to refer the dispute to
the ICJ and the legal question(s)
to be put to the Court
GB resolution
Provides context, sets out
question(s), instructs DG on file to
be transmitted and measures to
be taken pending the opinion
In spite of the 1949 delegation of
authority, the GB may decide to
submit its decision to the next ILC
session for approval
Director-General
Writes to ICJ President or Registrar to:
(1) transmit the GB resolution;
(2) request the participation of employers’ and
workers’ organizations;
(3) request accelerated procedure
Submits Office dossier with factual information
within one month
ICJ proceedings
Initiation of advisory proceedings (arts 65-66
Statute, 102-106 Rules)
No case to be adjudicated, no parties
ICJ invites entities to participate, fixes form and
time limits for comments
Social partners
If considered in a position to provide
specific information, may be invited to
submit written and oral statements
within 2-6 month time limit
Right to reply to statements of others,
if authorized (66(4) Statute, 105 Rules)
All Member States
Receive general notification from the
Court, may seek permission to submit
written and oral statements within 2-6
month time limit fixed by Court
Right to reply to statements of others,
if authorized (66(4) Statute, 105 Rules)
Advisory opinion
Delivered in public sitting, copy
transmitted to ILO Director-
General
Last para dispositif contains
Court’s response to question(s);
separate/ dissenting opinions
appended
Advisory opinion has binding
effect by ILO constitutional
theory and practice
Governing Body
Debates and decides
on follow-up within max. two
consecutive sessions
Director-General
Informs GB Officers and instructs
the Office to prepare a report on
implementation options within
one month
GB resolution
Expresses appreciation to ICJ and
outlines implementation of
Court’s findings
 GB.347/INS/5 27
 Appendix III
The debate on article 37 – Overview and key dates
May 1993
GB discussed
application of
art. 37(2) without
taking a decision
November 2014
GB discussed
implementation of
art. 37 to address
C.87 and right to
strike; decided to
convene a tripartite
meeting and
postpone decision
on referral to ICJ
March 2015
GB decided not to
pursue, for the time
being, any action
under art. 37
concerning C.87 in
and right to strike
March 2017
GB approved
workplan for
strengthening the
supervisory system,
including steps to
ensure legal
certainty and
possible future
discussions on
art. 37
March 2019
GB decided to hold
consultations in
January 2020 on
legal certainty;
paper prepared for
discussion in
March 2020
(postponed due to
the pandemic)
March 2022
GB requested
preparation of
procedural
framework on
art. 37(1) and
additional proposals
on art. 37(2) to be
discussed in
March 2023
 1919
Article 423, Treaty of Versailles:
Permanent Court of International
Justice (PCIJ) competent body to
interpret ILO Conventions
 1932
PCIJ advisory opinion
on the Night Work
(Women) Convention,
1919 (No. 4)
 1946
ILO Constitution amendment: PCIJ replaced by
International Court of Justice (ICJ); addition of a new
provision concerning in-house tribunal for
expeditious settlement of interpretation questions
November 2009
GB invited the
Office to start
consultations on
interpretation of
Conventions;
inconclusive
consultations on a
non-paper were
held in 2010
Art. 37 – Origins and past practice
 GB.347/INS/5 28
 Appendix IV
The six precedents of interpretation requests to the Permanent Court of International Justice
under article 37
Designation of workers’ delegate for the Netherlands at the third session of the International Labour Conference
Advisory opinion of 31 July 1922
Request introduced by the Conference resolution (18 November 1921).
Referral decided by unanimous Governing Body agreement (January 1922).
Duration of proceedings: 2.5 months (from 22 May to 31 July 1922).
Three international organizations were invited to participate: International Association for the Legal Protection of Workers; International Federation of Christian
Trades Unions; International Federation of Trades Unions. Two organizations provided oral statements.
Competence of the ILO in regard to international regulation of the conditions of labour of persons employed in agriculture
Advisory opinion of 12 August 1922
Request introduced through motion submitted by the French Government directly to the Council of the League of Nations (January 1922).
Request discussed at the Governing Body based on an oral report from the Director but no decision.
Duration of proceedings: 3 months (22 May to 12 August 1922).
Eight international organizations were invited to participate: International Federation of Agricultural Trades Unions; International League of Agricultural
Associations; International Agricultural Commission; International Federation of Christian Unions of Landworkers; International Federation of Land-workers;
International Institute of Agriculture; International Federation of Trades Unions; International Association for the Legal Protection of Workers. Several organizations
submitted written statements and also participated in the oral proceedings.
 GB.347/INS/5 29
Competence of the ILO to examine proposals for the organization and development of the methods of agricultural production
Advisory opinion of 12 August 1922
Request introduced by the French Government through a letter addressed directly to the Secretary-General of the League of Nations on 13 June 1922.
There has been an Office report to the Governing Body (July 1922) but no discussion or decision.
Duration of proceedings: 24 days (from 18 July to 12 August 1922).
One international organization was invited to participate: International Institute of Agriculture, which sent a separate communication.
Competence of the ILO to regulate, incidentally, the personal work of the employer
Advisory opinion of 23 July 1926
Request introduced by the Employers’ group to the Governing Body through a letter on 8 January 1926.
Referral was discussed at the Governing Body and decided by vote (30th Session, January 1926).
Duration of proceedings: 4 months (from 20 March to 23 July 1926).
Three international organizations were invited to participate: International Organization of Industrial Employers; International Federation of Trades Unions;
International Confederation of Christian Trades Unions. Two submitted written memoranda and all three participated in the hearings.
Free City of Danzig and the ILO
Advisory opinion of 26 August 1930
Request introduced by the Office following a letter from the Government of Poland dated 20 January 1930, requesting that the Free City of Danzig be admitted to
the ILO.
Referral was discussed at the Governing Body and decided by vote (48th Session, April 1930).
Duration of proceedings: 4.5 months (from 15 April to 26 August 1930).
No international organization was invited to participate.
 GB.347/INS/5 30
Interpretation of the Night Work (Women) Convention, 1919 (No. 4), concerning employment of women during the night
Advisory opinion of 15 November 1932
Request introduced by the Government of the United Kingdom of Great Britain and Northern Ireland through a letter addressed to the Governing Body Chairman
on 20 January 1932.
Referral was discussed at the Governing Body and decided by vote (57th Session, April 1932).
Duration of proceedings: 6 months (from 10 May to 15 November 1932).
Three international organizations were invited to participate: International Federation of Trades Unions; International Confederation of Christian Trades Unions;
International Organization of Industrial Employers. Two submitted written statements and also participated in the oral proceedings.
The full text of PCIJ advisory opinions and pleadings, oral arguments and documents submitted to the Court may be consulted on the International Court of Justice
website.

Document No. 41
Minutes of the 347th Session of the Governing Body,
March 2023, paras 229–346

 GB.347/PV(Rev.)
Governing Body
347th Session, Geneva, 13–23 March 2023
Minutes of the 347th Session of the Governing Body
of the International Labour Office
Contents
Page
Abbreviations ............................................................................................................................................ 9
Introduction .............................................................................................................................................. 11
Officers of the Governing Body .................................................................................................... 11
Chairing and speaking responsibilities by section .................................................................... 11
Other bodies .................................................................................................................................... 13
Institutional Section
Opening remarks ............................................................................................................................ 14
1. Approval of the minutes of the 346th Session of the Governing Body
(GB.347/INS/1) ........................................................................................................................ 15
Decision .................................................................................................................................... 15
2. Agenda of the International Labour Conference .............................................................. 15
2.1. Agenda of future sessions of the Conference (GB.347/INS/2/1) ..................................... 15
Decision .................................................................................................................................... 22
2.2. Arrangements for the 111th Session (2023) of the Conference (GB.347/INS/2/2) ....... 23
Decision .................................................................................................................................... 27
3. Review of annual reports under the follow-up to the ILO Declaration
on Fundamental Principles and Rights at Work (1998), as amended in 2022
(GB.347/INS/3) ........................................................................................................................ 27
Decision .................................................................................................................................... 32
4. Update on the Global Coalition for Social Justice (GB.347/INS/4) ................................... 32
 GB.347/PV(Rev.) 56
(b) welcomed the Director-General’s commitment to take into account its guidance and
his proposal to hold tripartite consultations in preparing a governance structure
including criteria and a procedure for partners’ engagement and a thematic plan,
built on the Decent Work Agenda, as laid down in the ILO Declaration on Social
Justice for a Fair Globalization (2008), as amended in 2022, and reaffirmed in the ILO
Centenary Declaration for the Future of Work (2019), and other relevant ILO
documents;
(c) requested the Director-General to report to the Governing Body on further
developments regarding the Coalition at its 349th Session (October–November
2023), and to take into account its continuing guidance.
(GB.347/INS/4, paragraph 31, as amended by the Governing Body)
5. Work plan on the strengthening of the supervisory system: Proposals
on further steps to ensure legal certainty (GB.347/INS/5)
229. The Employer spokesperson expressed disappointment that despite the comprehensive
feedback received during informal consultations, the Office had failed to take the majority of
views expressed into account when preparing the procedural framework. It was not the case
that agreement had been reached on the way forward, as implied in the draft decision. In
addition, the core issue underlying discussions was the interpretation by the Committee of
Experts on the Application of Conventions and Recommendations of the right to strike in the
context of the Freedom of Association and Protection of the Right to Organise Convention,
1948 (No. 87); however, that issue was not the main consideration of the proposals.
Furthermore, the Office had not presented the groups concerned with all possible means to
resolve interpretation issues internally, such as a tripartite technical meeting or a dedicated
discussion at the International Labour Conference. The Employers’ proposed amendment
therefore introduced a new paragraph providing an internal solution to address the right to
strike issue, which should ensure that all constituents could engage actively in the process,
solutions were based on consensus and adopted outcomes were universally relevant and
accepted.
230. The Employers’ objective was to ensure that the Committee of Experts did not create new
obligations beyond those intended by the tripartite constituents at the Conference. The
Committee of Experts should refer difficult questions or gaps in a Convention to the
constituents for them to resolve; its failure to do so in the case of the right to strike had led to
the current dispute.
231. While article 37(1) of the ILO Constitution provided an avenue to resolve interpretation
questions or disputes, referral to the International Court of Justice (ICJ) should be a last resort.
It would be preferable to seek internal solutions that received wide support from the
constituents. The advisory opinions of the ICJ were not legally binding; the Employers doubted
whether it was legally feasible to include in the introductory note a reference to a commitment
to implement the Court’s opinion as final and binding, in particular for those who did not
support the referral. The impact on non-State actors had not been considered. Furthermore,
such a commitment could place increased pressure on ratifying countries to comply and might
entail adverse consequences, notably a loss of confidence in the predictability and reliability of
obligations under ratified Conventions and, as a result, the reluctance of constituents to set
new standards.
 GB.347/PV(Rev.) 57
232. In order to create the necessary trust in the process, the referral request should only be
examined if it had the support of the majority of all States parties to the Convention concerned.
The International Labour Conference should be involved throughout, in order to ensure the
participation of States parties directly affected by an ICJ advisory opinion. The Employers were
concerned that the International Labour Standards Department might not be strictly neutral,
in particular where an issue originated in an assessment by the Committee of Experts. In
addition, they held that interpretations of a Convention under examination by the Court should
be suspended during ICJ proceedings.
233. Her group could accept neither the introductory note nor the procedural framework as
proposed. Substantive change was needed to reflect the majority views, which required further
consultations and consensus building among constituents.
234. With regard to the proposals for the implementation of article 37(2) of the Constitution, the
Employers had substantial comments concerning the structure and composition of an inhouse
tribunal, which they remained open to discuss with the Office.
235. Her group proposed the following amendments to the draft decision:
The Governing Body decided to continue discussing at its 349th Session in November 2023:
(a) approveany unresolved issues in the introductory note and procedural framework set
forth in Appendix I of document GB.347/INS/5 for the referral of interpretation questions
or disputes to the International Court of Justice under article 37(1) of the ILO Constitution;
(b) continue to discuss the implementation of article 37(2), and to this end, requested the
Director-General to organize tripartite consultations with a view to preparing draft rules
for the establishment of a tribunal for its consideration at its 352nd Session (November
2024);
(c) further proposals to ensure legal certainty and strengthen the supervisory system,
including by placing an item for discussion on the agenda of the International Labour
Conference.
236. She expressed the hope that a positive way forward would be found but underscored that as
the topic under consideration was complex and highly sensitive, time should be taken to find
a consensual solution.
237. The Worker spokesperson recalled that, as the Legal Adviser had previously explained, under
article 37(1) of the Constitution, it was expected that interpretation issues would be referred
to the ICJ. Article 37(2) simply provided for the possibility of referral to a tribunal, which could
in any case be overruled by decision of the Court. It was therefore clear that, according to the
ILO’s Constitution and legal framework – which there was no intention of changing – there was
no strict need for a procedural framework, nor were there any requirements in terms of
minimum support for making a referral or qualifying the seriousness of an interpretation issue.
Similarly, it was not necessary to exhaust all other means prior to making a referral. The only
barrier in place was that in article 37(2) whereby Governing Body approval was required for
referral to a tribunal. So even without a procedural framework, the Members of the ILO were
able to raise a matter of interpretation and a request a referral to the ICJ; that would go on the
agenda of the Governing Body for a decision according to its normal procedures.
238. There was currently only one serious and persistent problem of interpretation within the
Organization, namely on Convention No. 87, in relation to the right to strike, and the
competence of the Committee of Experts to provide guidance on the matter. That was no
minor issue for the Workers’ group, as the right to strike was the corollary of the rights of
freedom of association and collective bargaining; it redressed workers’ unequal power
relationships with employers and businesses. Although the right to strike was not an absolute
 GB.347/PV(Rev.) 58
right, there were limits to the restrictions that could be placed on it, as had been established
by long-standing authoritative guidance from the Committee of Experts. The failure of the ILO
to confirm that the right to strike was recognized and protected under Convention No. 87 was
bad, not only for workers but also for the Organization’s reputation and credibility. Employers
and their organizations were happy to call on the judiciary when seeking to challenge a strike,
but appeared reluctant to make proper use of the existing constitutional means to resolve the
issue on the right to strike. Although not strictly necessary, the proposed procedural
framework could potentially provide a step-by-step approach to dealing with obligations under
article 37(1) of the Constitution. The Workers’ group was ready to discuss the details of the
framework in good faith, but did not wish to enter into further general discussions that would
merely create further delays.
239. The proposed procedural framework should be simple, practical and aligned with the current
procedures of the Governing Body as far as possible. It should also fully reflect the guidance
provided during the 344th Session. The Workers’ group broadly supported the proposed
procedural framework and agreed with its parameters as per paragraphs 14 and 15 of the
document. In terms of the level of support or “threshold” for triggering a full-fledged referral
discussion in the Governing Body, any threshold should be indicative, as it governed the
submission of a request, rather than the decision-making process itself. Under the existing
legal framework, there were no limits on members or groups raising a matter of interpretation.
However, in the interest of obtaining a practical framework, the group could support an
indicative threshold of 20 Governing Body members for filing a referral request, on the
understanding that it would not constitute a receivability rule in legal terms. The alternative
threshold of at least 30 Member States should be adapted or deleted; although it made sense
to allow non-Governing Body members to submit requests, clarification was needed regarding
the Employers’ and Workers’ groups. In addition, although the introductory note mentioned
the possibility of referring requests that did not achieve the required level of support to the
Officers of the Governing Body, that matter should be addressed in the text of the procedural
framework in order to ensure consistency with the Organization’s legal framework, which did
not contain any thresholds. Five of the six cases submitted to the predecessor to the ICJ had
been initiated by single Member States, and they had been key questions requiring
clarification.
240. In terms of time frame, it was essential to ensure that Governing Body decisions were not
delayed indefinitely; it was correct to state that recourse to article 37(1) should be considered
as a last resort in case of a serious and persistent interpretation issue. However, the words
“last resort” should not be understood as requiring endless procedures to be completed prior
to referral. Recognition of the importance of social dialogue did not preclude the possibility of
referring matters to a court; disputes needing an authoritative legal opinion might arise even
where highly developed social dialogue and collective bargaining systems existed.
Furthermore, the failure of social dialogue to resolve a matter should not be a formal
precondition for referral. It had been agreed at the 344th Session that interpretation disputes
regarding legal matters, such as the authoritative interpretation of a Convention, could not be
solved by social dialogue, as that did not provide the necessary legal certainty. The Workers’
group therefore supported the wording in paragraph 5 of the proposed framework; the
inclusion of any further requirements to be fulfilled by the Governing Body prior to referral
would go against article 37(1), which had no such requirements. The group also agreed that
the discussion of the referral and the legal question should be combined, as stated in
paragraph 6.
 GB.347/PV(Rev.) 59
241. Concerning paragraph 21 of the document, she stressed that the Governing Body had full
competence to take referral decisions based on the mandate given to it by the International
Labour Conference in 1949. Opening up the Governing Body’s decision-making on referrals
under article 37 to all Member States would set the wrong precedent and call its position into
question; her group did not support such a move. However, the proposal to allow Member
States that were not Governing Body members to submit written comments, as per
paragraph 8 of the proposed framework, was acceptable. If governments had strong views on
involving the Conference in some way, her group would consider a provision allowing it to
validate the Governing Body’s decision, as long as that took place as a limited exercise on a
case-by-case basis, as outlined in paragraph 22 of the document. The group therefore
supported the text proposed in paragraph 10 of the procedural framework.
242. Turning to the provisions of article 37(2) of the Constitution, she noted that there had not
previously been an appetite for the establishment of a tribunal. Indeed, the Employers’ group
had stated at the 344th Session of the Governing Body that such a tribunal would not be suited
to resolving long-standing, complex and contentious issues such as the Committee of Experts’
interpretation of the right to strike in Convention No. 87; she would be interested to know if it
still held that view. Her group shared the analysis of the Office and Legal Adviser that
article 37(2) was intended for settling narrow technical questions, rather than serious disputes
with broader systemic implications, and that it did not guarantee legal certainty. Combined
with the fact that a potential internal tribunal could interfere with the authority and
independence of the current supervisory system, including the Committee of Experts, and the
requirement to deal with disputes with serious, far-reaching implications through article 37(1),
it did not make sense to invest in a process under article 37(2), as there was no assurance that
it would provide the necessary legal certainty. The Workers’ group therefore strongly advised
against developing further proposals for establishing an internal tribunal based on
article 37(2), as that would not help resolve the current issue regarding the right to strike,
which could only be addressed through article 37(1). It therefore proposed the following
amendment to subparagraph (b) of the draft decision:
(b) continue to discuss the implementation of article 37(2), and to this end, requested the
Director-General to organize tripartite consultations with a view to preparing draft rules
for the establishment of a tribunal for its consideration at its 352nd Session (November
2024).
243. Concerning the amendment proposed by the Employers’ group, she objected to the proposal
to postpone discussions still further, as extensive consultations had already been held. Despite
stressing the need for consensus, that group had already gone against existing consensus in
challenging the interpretation of Convention No. 87 in relation to the right to strike. The
proposed subparagraph (c) to place an item for discussion on the agenda of the International
Labour Conference was unclear, and suggested that a mechanism for achieving legal certainty
did not already exist, when it was in fact adequately covered by article 37 of the Constitution,
as expressed in the Governing Body’s decision of March 2022 concerning the work plan on the
strengthening of the supervisory system. Therefore, the Workers’ group did not support the
amendment proposed by the Employers’ group.
244. Speaking on behalf of the Africa group, a Government representative of Malawi highlighted
the importance of social dialogue in dispute resolution. Her group recognized the agreed
criteria for referring questions to the ICJ under article 37(1). Any procedural framework should
be uniformly applied to all requests. She noted the proposal to include all Member States in
the discussion to trigger referrals, and agreed that the Governing Body, meeting as a
Committee of the Whole, was a suitable forum for filtering, analysing and debating referral
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requests, which would be approved by a resolution of the International Labour Conference.
She reiterated the need for the Office to remain neutral and impartial throughout the referral
process.
245. Concerning the proposals relating to article 37(2), she said that the ICJ should be a last resort.
Thus, an in-house tribunal should be established as a mechanism to resolve disputes in the
first instance, which could be permanent or ad hoc in nature. Parties that were dissatisfied with
the outcome of that tribunal would then have recourse to a higher authority. She agreed with
the proposed eligibility criteria for judges, emphasizing the need to safeguard their
independence and impartiality, while ensuring the representation of different legal systems.
The tripartite selection process should be transparent and inclusive. A balance should be struck
between the tribunal’s functions of supervision and interpretation. No restrictions should be
imposed if a party felt aggrieved by an award of the tribunal. While it was possible that a
tribunal award may be challenged, she noted that the Governing Body would still have to
endorse the referral of any item to the ICJ.
246. Her group had several outstanding questions. She asked the Office to clarify whether the
advisory opinions of the ICJ would be binding on all Member States. She questioned why the
referral procedure under article 37(1) was to be adopted prior to agreement being reached on
the establishment of an in-house tribunal. The Office should clarify: why an in-house tribunal
could not have jurisdiction over all matters of interpretation; the criteria to be used to
determine the issues of most importance; the role of the Governing Body and International
Labour Conference in determining whether a case should be referred to the proposed in-house
tribunal or the ICJ; and the procedure and time frame for referring a dispute to the latter.
247. Speaking on behalf of GRULAC, a Government representative of Colombia said that article 37
provided a framework for addressing discrepancies in the interpretation of Conventions. A
simple, transparent and equitable procedure under article 37(1) would provide stability,
without creating any additional provisions. She supported setting an indicative threshold for
referring a dispute to the ICJ that could include Governing Body members or Member States,
ensuring any Member State was able to initiate an article 37 procedure. A time frame should
be established for Governing Body discussions on possible referrals. The International Labour
Conference should approve the referral of a dispute to the ICJ, following detailed analysis by
the Governing Body. Care should be taken to ensure that all interested governments could
participate in those discussions in accordance with the procedural rules. She agreed that
regular supervision should not be suspended following the referral of a case to the ICJ.
248. Concerning the proposed procedural framework, she agreed with the purpose of referring a
dispute to the ICJ under article 37(1), the role of the Governing Body in the referral process,
the time frame for Governing Body discussions in that regard, and the participation of Member
States that were not Governing Body members in those discussions. The Office should ensure
discretion, neutrality and impartiality throughout the process. GRULAC agreed that the opinion
of the ICJ and an analysis of any required follow-up action should be submitted to the
Governing Body, and that the time frame for those discussions should not exceed two
consecutive sessions. Any procedure agreed by the Governing Body should be added to its
procedural rules.
249. GRULAC said that the establishment of an in-house tribunal required further study. Any such
tribunal could only be used to resolve disputes of a more limited or less complex scope,
focusing solely on the interpretation of standards.
250. Speaking on behalf of IMEC, a Government representative of the United States emphasized
the value of legal certainty in the supervisory system and in maintaining international labour
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standards. Article 37 provided a clear provision for the resolution of interpretation disputes.
The dispute relating to the right to strike was long-standing and impeded the functioning of
the supervisory system, particularly in cases relating to the application of Convention No. 87.
The Governing Body had an obligation to resolve that dispute. Therefore, IMEC supported the
establishment of a procedural framework for action under article 37(1) and emphasized that
appropriate disputes should be referred to the ICJ without prejudice to the ongoing discussions
of provisions under article 37(2).
251. Speaking on behalf of the majority of countries of Asia and the Pacific, a Government
representative of China said that any dispute in the world of work should be resolved through
tripartite social dialogue where possible, including matters relating to the interpretation of ILO
Conventions. Article 37 was a last resort and should only be used with caution. The proposed
procedural framework under article 37(1) and its introductory note did not address some of
his group’s major concerns. While decision-making authority had been delegated to the
Governing Body, the International Labour Conference was a more suitable forum for
discussing the referral of any dispute to the ICJ. Any follow-up action to be taken relating to an
advisory opinion should also be determined by the Conference. Given the binding nature of an
ICJ advisory opinion, a referral decision should be made by consensus, not majority vote. Thus,
a time frame of two consecutive Governing Body sessions would be appropriate, with the
discretion to extend discussions if necessary. A threshold should be established for the
Governing Body to examine a referral request, and he asked the Office to clarify its proposals
regarding the exact number of States required to trigger a discussion. A higher number would
best reflect the severity of the issue.
252. His group welcomed the preliminary proposals relating to the establishment of an in-house
tribunal, including to establish procedural rules for that body, which warranted further
tripartite consultations. Article 37(2) clearly provided for the referral of any dispute relating to
the interpretation of a Convention to an in-house tribunal, the mandate of which should
therefore not be limited. A tribunal should be ad hoc, to ensure that judges examining a
dispute had appropriate expertise. The composition of a tribunal should ensure a balanced
representation of legal systems, regions and gender.
253. The Governing Body should approve procedures for the implementation of both paragraphs
of article 37 before referring any dispute to the ICJ. Therefore, his group supported the
amendments to the draft decision proposed by the Employers’ group and could not support
the draft decision in its original form.
254. Speaking on behalf of the EU and its Member States, a Government representative of
Sweden said that Albania, North Macedonia, Republic of Moldova, Montenegro, Serbia,
Georgia, Iceland and Norway aligned themselves with his statement. He aligned his statement
with that delivered by IMEC. The protracted disagreement on the right to strike, in the context
of Convention No. 87, should be resolved under the provisions of article 37(1). The ICJ was well
placed to examine that dispute, and he called for the Governing Body to refer the dispute
without delay.
255. The proposed procedural framework to implement the provisions of article 37(1) should not
change the procedural rules of the Governing Body. The threshold for submitting a referral
request should be indicative, not prescriptive; should include regional support; and could be
determined by a simple majority vote. His group agreed that the final decision on referral could
be made by the International Labour Conference, rather than the Governing Body. The
preparation of any dossier would be the sole responsibility of the Director-General, and the
Office should remain neutral and impartial at all times. The proposed procedural framework
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and the proposals relating to the implementation of article 37(2) should be considered as
separate entities. Therefore, his group supported the amendment to the draft decision
proposed by the Workers’ group.
256. Speaking on behalf of a group of countries consisting of Australia, Canada, New Zealand,
the United Kingdom and the United States, a Government representative of Australia said
that the proposed procedural framework under article 37(1) provided a clear and ready-to-use
methodology, the adoption of which was not a precondition to making a request for an
advisory opinion to the ICJ. The proposed framework would facilitate a sound, efficient and
time-bound referral process, which was a key element of good governance. Her group agreed
to an indicative threshold of support of 20 Governing Body members or 30 Member States;
supported a maximum time frame of two Governing Body sessions for discussions on whether
to refer a dispute to the ICJ and determine the legal question to be considered; and agreed
that the decision on referral may be sent to the International Labour Conference for approval.
While her group did not see value in further exploring article 37(2) at present, she expressed
support for the draft decision and the amendment proposed by the Workers’ group. The
Governing Body should decide on the proposed procedural framework at the current session.
Her group could not support the amendment proposed by the Employers’ group.
257. A Government representative of Argentina said that a mechanism for referring disputes to
the ICJ would strengthen the supervisory system. However, no additional procedure was
required to implement the provisions of article 37. The proposed procedural framework would
guarantee legal certainty and strengthen governance within the ILO, thereby contributing to
achieving decent work for all. He welcomed the proposals for the establishment of an in-house
tribunal to implement article 37(2), but said that they needed further analysis. The Governing
Body was only ready to decide on the implementation of article 37(1), and as such he supported
the draft decision with the amendment proposed by the Workers’ group.
258. A Government representative of China recognized the long-standing issues relating to the
interpretation of Conventions and the need for legal certainty to ensure the stability and
credibility of the supervisory system. The implementation of article 37 should be the basis of
any such work, and no legislative process should be established. The proposed procedural
framework under article 37(1) would have a significant impact on the tripartite constituents.
All Member States should be able to participate in discussions and decision-making relating to
the referral of disputes to the ICJ, while ensuring efficiency and fairness. The proposed
framework should be revised on the basis of the comments made, in order to address the
concerns of all parties and ensure that it could be adopted by consensus. Regarding the
establishment of the in-house tribunal, the tripartite constituents emphasized the importance
of resolving disputes through dialogue. The Chinese Government reiterated that it was the
only channel for resolving disputes and ensuring the functioning of the supervisory
mechanism, by strengthening cooperation and avoiding confrontation. He urged the Office to
explore other alternative institutional arrangements. China supported the draft decision as
amended by the Employers’ group.
259. A Government representative of Germany said that the connection between freedom of
association and the right to strike had repeatedly been called into question, limiting the
effective monitoring of related ILO standards. That was unacceptable, and he called for the
resolution of the matter as soon as possible. The proposed procedural framework was well
thought out, balanced, viable, and rooted in the ILO Constitution, and took into account the
concerns and comments of all constituents. He urged the Governing Body to approve that
solution for the implementation of article 37(1).
 GB.347/PV(Rev.) 63
260. A Government representative of Colombia recognized the need for a procedure for the
referral of disputes on the interpretation of standards to the ICJ under article 37(1). She
welcomed efforts to prepare a procedural framework that was clear, objective and transparent.
Given the potential impact of any recommendation issued by a supervisory body on national
legislation, the proposal to establish an in-house tribunal under article 37(2) should be
examined further. Any such tribunal should ensure the representation of different legal,
economic and social systems. The Office should address any potential budgetary implications
and ensure that any new mechanism did not have a negative impact on the existing
mechanisms of the supervisory system. She supported the draft decision and the amendment
proposed by the Workers’ group; she did not support the amendment proposed by the
Employers’ group.
261. A Government representative of Mexico emphasized the need for legal certainty in the
interpretation of Conventions. Article 37(1) provided the basis for addressing disputes, and the
provisions of that article did not require any additional interpretation. The Governing Body
should adopt, at its current session, a simple, transparent and equitable procedure for the
referral of disputes to the ICJ. The proposals relating to the implementation of article 37(2)
required further exploration. Therefore, she supported the draft decision with the amendment
proposed by the Workers’ group.
262. A Government representative of Japan emphasized the importance of moving forward on
the issue. Tripartite discussion must be the basic principle for any difficult problem, but then
the need to solve a problem must be recognized. The proposed procedural framework for
referral under article 37(1) could be a basis for consensus in the Governing Body. He requested
further clarification of the principle of tripartite consultation in an exhaustive manner and
indicated his openness to discussion on any specific concern.
263. A Government representative of Chile agreed that strengthening the ILO supervisory system
and ensuring legal certainty in the face of discrepancies in interpretation of Conventions
should occur by way of a simple, transparent and fair procedure. He supported the draft
decision, with the amendment to subparagraph (b) proposed by the Workers’ group.
264. A Government representative of Bangladesh said that tripartism was the bedrock principle
that guided the ILO’s work; in deciding on an exception to it, the Governing Body was at a
critical point. He did not support introducing an approach that had the potential of inviting
cascading impact. Divergent views on the issue of legal certainty under article 37 had been
expressed in the group discussions and should be taken into account going forward. He
proposed that discussion continue towards achieving a consensus-based decision and that an
in-house approach be taken towards interpretation matters, whereby legacy, inter-institutional
jurisprudence and institutional culture set the right direction. The two subparagraphs of
article 37 should be treated as a package for decision through further discussion.
265. A Government representative of India said that the robust system of international labour
standards that the ILO and its constituents had helped develop and maintain had been pivotal
in promoting decent and productive working conditions for the global workforce. Questions
relating to the interpretation of those standards must be resolved to ensure effective
supervision and implementation. As the only tripartite UN agency, the ILO had effectively
resolved interpretation issues in the past. The implementation of standards through social
dialogue and tripartite consultations was at the heart of ILO action. Recourse to using the ICJ’s
mandate to settle interpretation questions under article 37(1) must therefore be contingent on
exhausting all avenues for resolution through tripartite consultation. The referral of questions
of interpretation to the ICJ or an in-house tribunal should be considered only when a
 GB.347/PV(Rev.) 64
reasonably high threshold had been reached, including a high degree of support from a
majority of States parties to the Convention concerned. A prescriptive rather than indicative
approach would ensure that recourse to article 37 was taken only on serious and persistent
issues. Any question of interpretation should be referred first to the in-house tribunal set up
under article 37(2) before it was sent to the ICJ; the ILO should therefore first establish the inhouse
tribunal to deal with such matters. She expressed confidence that any disputes or
deadlocks could be resolved through ILO tripartite consultations or structures.
266. A Government representative of the Russian Federation said that one takeaway from the
informal consultations held on the matter had been that a significant number, if not the
majority, of States saw recourse to article 37(1) as a measure of last resort in the event of a
serious and persistent interpretation dispute. The Russian Federation shared that view. The
procedural framework for implementation must therefore strike a careful balance between the
rather broad wording of article 37(1) and the principle of needing to have exhausted internal
ILO dispute resolution mechanisms, first and foremost through social dialogue. That aim could
be achieved, first, by setting a high threshold for the Governing Body to begin formal
consideration of recourse to article 37: consensus, or at least a qualified majority of the
Governing Body members, should be sought. Consideration should also be given to involving
States parties to the Convention under dispute. Second, the final decision for referral should
be taken by the International Labour Conference. That was important not only as a safeguard
but also because the eventual advisory opinion by the ICJ would have implications for the
interpretation and application of ILO legal instruments as a whole, beyond the specific terms
of the dispute leading to the referral. The broadest possible number of Member States should
therefore be involved in those considerations, with emphasis on States parties to the
Convention that could be affected by the advisory opinion.
267. The involvement of the International Labour Conference should not be limited to merely
validating a decision by the Governing Body but must include the opportunity for the
Conference to consider the issue on substance. He did not agree with the proposal to establish
timelines for consideration of an issue: rushing the matter risked undermining attempts to
resolve the dispute through social dialogue. The wording of article 37(1) was sufficiently broad
to accommodate such safeguards without going against the article’s object and purpose.
Further, in-depth consideration was needed of article 37(2). He saw no value in proceeding to
prepare rules for the tribunal, at least not according to the timeline proposed in the draft
decision.
268. A representative of the Director-General (Legal Adviser) thanked the Governing Body for its
rich contributions, which did justice to the paramount institutional importance of the topic.
Legal certainty was indeed a foundational principle of every legal system, which a contrario
meant that legal uncertainty constituted a direct and serious threat to any legal system. He
thanked all members who had engaged in the series of consultations and briefings held by the
Office over the past four months with a view to better explaining the constitutional, legal and
historical dimensions of the issue and thereby permitting the Governing Body to take an
informed decision.
269. Responding to the questions asked about the legal effect of ICJ advisory opinions, he clarified
that under the ICJ Statute advisory opinions had no binding force in and of themselves. They
could, however, be attributed binding effect – also termed decisive, conclusive or authoritative
– through other means. Section 32 of the 1947 Convention on the Privileges and Immunities
of the Specialized Agencies was an example of a clause that specifically attributed binding
effect to an otherwise non binding advisory opinion. Roberto Ago, former ICJ judge and former
member of the Committee of Experts on the Application of Conventions and
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Recommendations, in an article entitled “Binding” Advisory Opinions of the International Court of
Justice had stated that the constituent instruments of certain organizations, including the ILO,
provided for such binding advisory opinions by characterizing the opinion requested of the
Court as a “decision”. Accordingly, for the ILO, the binding effect of advisory opinions flowed
from the letter of article 37(1) which referred explicitly to a “decision”, but also from the spirit
of the same article as a dispute settlement clause providing for the compulsory means of action
to be taken as a last resort. Equally important, it was a unanimous and deep-seated
understanding of all ILO constituents that advisory opinions delivered under article 37(1) were
binding, final and authoritative pronouncements for the Organization, its organs and its
membership. Footnote 11 of the document contained a hyperlink to a compilation of
statements of representatives of all ILO constituents affirming the binding nature of advisory
opinions delivered by the ICJ. All recent Office documents produced on the matter had been
clear and consistent with respect to the legal effect of advisory opinions requested from the
ICJ under article 37(1) of the ILO Constitution.
270. Regarding the indicative level of support, or “threshold”, for a referral request to be examined,
and in particular the view expressed by the Employers’ group that only if the majority of the
Member States having ratified the Convention in question supported the referral, could it be
addressed to the Governing Body, he noted that from a strictly legal point of view there
seemed to be no valid reason to differentiate between ratifiers and non-ratifiers. If such a
differentiation were made, it would mean that a State would have to ratify a Convention before
it could raise any question about that Convention, yet most of the requests for informal
opinions the Office received came from Member States that had not yet ratified the Convention
in question. Moreover, defining the threshold exclusively by reference to ratifiers of a given
Convention would necessarily exclude the possibility of a referral request by Employers or
Workers, as only States could ratify international labour Conventions. In paragraph 18 of the
document, the Office reflected the view expressed during the consultations regarding a
majority but considered that placing the indicative threshold so high would be excessively
restrictive.
271. With reference to the proposed indicative time frame, namely a maximum of two sessions of
the Governing Body, he stated that this compared to similar indicative timelines for other
procedures and processes of the Governing Body, such as the procedure for placing an item
on the agenda of the Conference, as reflected in paragraph 54 of the Introductory note to the
Compendium of rules applicable to the Governing Body, which referred to two sessions. The
proposed timeline would be only a guideline and, if it were to present any difficulty, it would
be for the Governing Body to decide how to proceed.
272. He clarified that the rationale for specifying, in paragraph 2 of the procedural framework, that
a referral request should be filed by “at least 20 regular Governing Body members” had been
to ensure that the referral would not be too far from achieving the majority required if a vote
were to be called. As non-governmental groups had 14 Governing Body members each, that
“threshold” of 20 would necessarily include a non-governmental group. The alternative of “at
least 30 Member States (whether members of the Governing Body or not)” was intended to
capture the legitimate expectation of non-members of the Governing Body to be able to refer
to the Governing Body something that they considered to be an important interpretation
question, in the unlikely event that there were not enough regular Government members in
favour of filing the request. The wording of paragraph 2 of the procedural framework did not
exclude a non-governmental group from associating itself with the group of 30 Member States.
The formula was thus designed to accommodate the interests of all constituents. The Workers’
suggested addition to paragraph 2 of the procedural framework of what was already in the
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introductory note, namely that the Officers would need to consider how to follow up if the level
of support was less than required or expected, could be incorporated when preparing a
proposed revised version of the text if there was agreement in the room.
273. Responding to questions raised by the Africa group, he said that the legal implications of an
eventual ICJ advisory opinion for Member States that had ratified a Convention would depend
on the question(s) put to the Court and the guidance received from the Court. However, the
opinion would be binding, first of all, for the Organization and its supervisory organs. It would
then be through that supervisory system that the Court’s authoritative pronouncement would
pass down to States that had ratified, and which were thus bound to fully implement the
Convention in question.
274. He said that elaborating a methodology for going to the ICJ and the establishment of an inhouse
tribunal were unconnected issues, which meant that the procedural framework could
be adopted immediately. If an in-house tribunal were to be established subsequently, the
impact on the procedural framework would be very limited, requiring, for instance,
amendment of the paragraphs in the procedural framework under the heading “Governing
Body debate and decision” to include guidance as to how the Governing Body would determine
whether to send an interpretation question or dispute to the ICJ or to the in-house tribunal. As
the two tribunals were part of the same constitutional design for the resolution of
interpretation disputes, the Governing Body should not define narrowly the competence of the
in-house tribunal; the in-house tribunal could eventually examine any interpretation dispute
or question, and it would be for the Governing Body to assess its importance and decide where
it should be sent.
275. The information about the legal and historical context in which article 37(2) had come about in
the constitutional amendment of 1946 had been provided in response to a specific request
made during the consultations. At the time of preparing the constitutional amendment, it had
been clarified that the article 37(2) in-house tribunal would be responsible for expeditious
determination of questions of lower importance or so meticulous that it would not merit going
all the way to The Hague. It was also explained that an internal tribunal was needed for those
questions that would fall somewhere in between those addressed to the Office for an informal
opinion and those that warranted referral to the ICJ.
276. Regarding the possible time frame for requesting and obtaining an advisory opinion, he
referred the Governing Body to the graphic representation of the procedural framework in
Appendix II, as well as to the sample letter of how a Governing Body resolution might read if a
letter were to be sent to the ICJ, presented in Appendix I to document GB.322/INS/5.
Considering each stage in turn as reflected in the proposed procedural framework, he
indicated that in addition to the two months required for the preparation of the Office report,
two Governing Body sessions would be needed to take the referral decision and draft the
question(s) to be put to the Court, followed by validation by the International Labour
Conference in June. To that would be added the time the Court would take to deliver its
advisory opinion, which would be at the entire discretion of and depend on the workload of
the Court but might be expected to take between 1 year and 18 months. He recalled in this
respect that there was provision in article 103 of the Rules of Court for the submission of an
urgent request.
277. The question raised by GRULAC whether the procedural framework could become part of the
Compendium of rules applicable to the Governing Body would be for the Governing Body to
decide. He reaffirmed that the proposed level of support or “threshold” was indicative and not
prescriptive in nature. The possibility of the Committee of the Whole was already stated in the
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document. The point made by the Government representative of China that the body under
article 37(2) should be competent for all interpretation disputes irrespective of their
seriousness was consistent with the indications contained in the document before the
Governing Body while recalling that it would be, in any event, for the Governing Body to decide
to which judicial body it should refer the matter. Finally, the view that the procedural
framework should specify that only the International Labour Conference would be competent
to discuss and decide a possible referral would necessitate an abstraction of the
1949 resolution delegating authority to the Governing Body; it would be legally inaccurate to
produce a procedural framework that provided for discussion and decision exclusively by the
Conference as long as the Conference had not revoked its 1949 resolution.
278. The Worker spokesperson said there came a time when it was necessary to move forward.
She drew attention to the remarks by the German Government. She hoped that all
governments supported the fundamental nature of freedom of association and its relationship
with the right to strike. Over the previous 11 years the Government group had never
challenged that relationship and the important and authoritative role of the Committee of
Experts to interpret it. The ILO had a conflict resolution mechanism in its own Constitution. She
urged the Governing Body to decide that enough had been done; too much time had already
been devoted to the matter and she saw no merit in continuing social dialogue on the matter
when consensus had not been achievable. Consensus could not be achieved if positions were
mutually exclusive: members either accepted there was a relationship between Convention
No. 87 and the right to strike – as previously established not only by the Committee of Experts,
but also by the tripartite Committee on Freedom of Association – and respected the authority
of the ILO’s supervisory system and the Committee of Experts – or they did not. Some
disagreements could not be resolved through dialogue but only by turning to an authority. The
ILO had such an authority in its Constitution, and that was the ICJ. Although the Workers’ group
would always support the tripartite nature of the ILO and the importance of constituents
seeking solutions among themselves, a conflict resolution mechanism was part and parcel of
every social dialogue system. The ILO should make good use of the conflict resolution it had in
its system.
279. She acknowledged the clear explanation given by the Legal Adviser about thresholds not being
legally accepted because the Governing Body was not supposed to change the ILO’s
Constitution or its own legal framework. It had always been logical that a group that disagreed
with an existing, prevailing position might want to submit it to a court; the Workers’ group
would therefore not wish to prevent the Employers’ group from asking the Governing Body to
discuss and resolve such an issue, even on matters on which they disagreed. She considered it
illogical and beyond the ILO’s legal system to expect a particular group to have the support of
more than half the ratifying States before it could refer a question to the Governing Body. The
Governing Body agendas were full of issues on which there was not yet agreement, which were
then decided according to its normal procedures – seeking consensus, and if consensus could
not be achieved, then deciding by majority vote. Within the UN system it was important to
never be blocked by a requirement for unanimity because the world was diverse and
considerable debate was needed, and sooner or later a majority decision would be needed.
The Workers’ group could therefore not agree to change the ILO’s good practice in that regard.
280. She was grateful that many governments had understood that adoption of the procedural
framework must be taken as separate from the discussion on article 37(2), which the Governing
Body should not spend more time developing at that stage. However, the intention of the
Workers’ amendment had been to respect the fact that some did wish to continue the
conversation. That would allow the Governing Body to continue it on the merits and risks of
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article 37(2) and take the decision as to whether to move forward with its establishment in due
course. In contrast, the ICJ already existed, and so could provide a final opinion – something a
tribunal could not do. The Workers’ group thus believed it was time to adopt the procedural
framework and make good use of it going forward.
281. The Employer spokesperson said that the Office had missed an opportunity to build
consensus, since its proposals did not take into account the differing opinions expressed by
Governments during the tripartite consultations. It should make every effort to propose a way
forward that brought the groups together.
282. While there was no legal basis for distinguishing between countries that had ratified a
Convention and those that had not, it was logical that a decision to bring a case to the ICJ
should be endorsed by a majority of States that had ratified the Convention in question. It
made little sense for countries that had not ratified a Convention to bring a case to the ICJ to
decide how a ratifying country should implement that Convention. Countries that were
considering ratifying a Convention sought the opinion of the Office in order to gain an
understanding of their obligations should they decide to do so. She emphasized that she had
referred to “ratifying countries” rather than to “ratifying Governments”, as employers and
workers would also be involved in the decision-making process.
283. If ICJ decisions were legally binding, all countries that had ratified Convention No. 87 would be
bound by all the recommendations on that Convention by the Committee of Experts on the
Application of Conventions and Recommendations, which had meticulously defined the scope
of the right to strike. However, the definition of that right varied enormously from country to
country and the ILO should respect those differences; for example, political strikes were
prohibited in some States, but were a constitutionally guaranteed right in others. The right to
strike was enshrined in various sources of international law, but it was defined and enforced
at the national level. The ILO must not undermine that approach. Her group did not question
the right to strike, which was a legitimate exercise of freedom of association. However, it was
not an absolute right. Furthermore, countries that had ratified Convention No. 87 should not
be bound by an overly restrictive interpretation of that Convention.
284. Existing channels within the ILO should be used to resolve the interpretation issue regarding
the right to strike; the remedies established under article 37 of the Constitution were not the
sole means of achieving legal certainty, which merely required a solution that was widely
accepted. She disagreed with the Workers that the discussion had been exhausted, since the
Governments had, since 2015, expressed willingness to start a dialogue on the substantive
issues related to the right to strike. She proposed that the substantive issues should be
discussed and, if necessary, the matter could be taken to the ICJ once all tripartite social
dialogue solutions had been implemented.
285. The Worker spokesperson said that, had a decision been taken to refer the matter to the ICJ
in 2014, there was a good chance that the ICJ would have upheld the prevailing situation at the
ILO, which was perhaps why the Employers were reluctant to go before that Court. The views
of the Committee of Experts on the Application of Conventions and Recommendations were
authoritative and not binding, and were taken into account by national judges when
interpreting national legislation on the right to strike. The question to be put to the ICJ was
whether it would uphold the prevailing view of the Governing Body regarding that right. Even
if the ICJ agreed with the Employers, the ILO’s approach to the right to strike would have to be
discussed, with the involvement of all constituents; it would not require changes to national
law or practice overnight. She failed to see how a consensus could be reached on the issue
through further discussions if no progress had been made over the previous decade.
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286. The Employer spokesperson said that her group had at no point stated that it would never
be willing to go to the ICJ and she strongly objected to her group’s views being misrepresented.
She would welcome clarification as to how the Governing Body should proceed.
287. Speaking on behalf of the Africa group, a Government representative of Malawi said, with
respect to article 37(1), that the International Labour Conference should endorse the referral
of a dispute to the ICJ. Her group would welcome information on how the resolution
concerning the procedure for requests to the International Court of Justice for advisory
opinions of 1949 (1949 resolution) could be amended to establish that the Conference should
be the final authority, given that its membership had evolved considerably since 1949. Further
discussions were needed on article 37(2) and on the draft decision.
288. A Government representative of Italy said that a solution needed to be found in order to
strengthen the credibility of the ILO as the international forum for social dialogue and
standard-setting. It was the responsibility of the constituents to resolve questions or disputes
relating to interpretation in accordance with article 37(1), which provided for their referral to
the ICJ. As there was no link between article 37(1) and article 37(2), article 37(1) should be
implemented without delay.
289. Speaking on behalf of the EU and its Member States, a Government representative of
Sweden said that North Macedonia, Montenegro, Iceland and Norway aligned themselves with
her statement. After more than a decade of discussions, the time had come to refer the dispute
to the ICJ. The continuing disagreement on the right to strike was affecting the supervisory
system and other parts of the ILO. A large majority of Governing Body members were willing
to make progress to resolve the deadlock. Article 37(2) had no conditional link with article 37(1).
Accordingly, article 37(1) should be implemented without delay. She therefore supported the
draft decision, as amended by the Workers’ group.
290. The Worker spokesperson referred to paragraph 10 of the proposed procedural framework
contained in Appendix I to the document, which stated that the Governing Body “may” refer its
decision to the International Labour Conference for approval at its next session. The Workers’
group could accept that approach. The Governing Body had been given the mandate to decide
on such matters by the Conference in 1949; it could not now decide that the mandate should
be removed.
291. The Employer spokesperson reiterated that her group was not questioning the right to strike.
She recalled that, in 2015, the Employers had issued a joint statement with the Workers
affirming that right. Convention No. 87 could not, however, provide the basis for rules on the
scope and limits of the right as determined by the Committee of Experts. The legislative history
of the Convention illustrated clearly that the right to strike was governed by national laws and
regulations. Any attempts to establish international rules in that regard must follow a regular
standard-setting or equivalent process and be based on tripartite agreement. A procedural
framework for referring disputes on the interpretation of Convention No. 87 to the ICJ was not
necessary, as there was precedent in that regard that should be followed.
292. As to article 37(1), the Employers could not support the procedural framework proposed by the
Office because it did not incorporate the majority of views emerging from the informal
consultations. The Employers did not consider the text ready for adoption. However, recalling
that the Workers’ group had questioned the need for a procedural framework, she said it was
unclear on what basis a procedural framework had been presented and was being discussed,
if one was not needed. She did not agree that the procedure in article 37(2) was optional and
to be viewed separately from article 37(1); on the contrary, the two articles were connected
and should be considered in parallel.
 GB.347/PV(Rev.) 70
293. Noting that, if a tribunal were to be established, the procedural framework for article 37(1)
would need to be revised to include a dispute settlement clause, she said that the Employers
were in favour of holding a full discussion of the available options.
294. A discussion by the Conference would not preclude the options under articles 37(1) and 37(2).
Instead, such a discussion would provide an opportunity to review the right to strike in an
inclusive and representative forum and would enable the Governing Body to prepare better
and understand the risks involved, should the Governing Body subsequently decide to proceed
with a referral to the ICJ. Only a tripartite agreement would constitute a valid practice for
establishing the agreement of the parties on the question of interpretation. If a number of
parties sought consensus on this issue, then the Governing Body should attempt to achieve it.
295. A Government representative of India said that justice must not only be done but must also
be seen to be done. She reiterated that an in-house, issue-based tribunal within the ILO should
be the first level of adjudication. India welcomed the proposal to organize tripartite
consultations for the preparation of draft rules for such a tribunal and agreed with the
Employers’ group that, upon decision by the in-house tribunal, referral to ICJ should be routed
through the Conference instead of only the Governing Body, making for a fairer and more
inclusive process. She noted that the proposed procedural framework referred to a majority in
the Governing Body instead of a consensus, which was contrary to the principle of natural
justice. It should be altered accordingly.
296. A Government representative of China, speaking on behalf of a significant majority of
Member States of ASPAG, expressed support for the statement made by the Government
representative of India. An issue of such great institutional importance deserved
comprehensive deliberation. He also agreed with the Africa group that the final decision to
refer a request to the ICJ should be made by the Conference and not the Governing Body. The
context since 1949 had evolved significantly. He sought clarification on the current procedure
for revisiting the 1949 resolution and reiterated his group’s preference for the higher threshold
for the submission of a referral under article 37(1). Further discussion was needed on
article 37(2); the issue was not ripe for decision at the current session.
297. A Government representative of Australia reiterated her Government’s endorsement of the
proposed procedural framework and said that she was strongly in favour of making a
commitment to take a decision within two sessions of the Governing Body on whether to refer
an issue to the ICJ and on what the legal question would be. The Governing Body should be
able to take a decision in that regard immediately.
298. A Government representative of Japan reiterated that exhaustive tripartite discussions
leading to consensus were the best way of moving forward on the issue.
299. Speaking on behalf of ASPAG, a Government representative of the Philippines noted that it
had not been possible to reach consensus within ASPAG.
300. The Worker spokesperson said that it was still not clear why the Employers were against
applying to the ICJ for its authoritative legal opinion. It would clearly not be possible to reach
consensus on the matter, no matter how much time was spent on discussions and
consultations. The Legal Adviser had confirmed that the procedural framework was not a
necessity. The Office had developed the framework to be used as a tool, at the express request
of the Governing Body at its 344th Session (March 2022), after it had become apparent that
social dialogue would never resolve the issue and the use of article 37 had been advanced. She
did not recall that, at that session, a majority had requested a completely different framework.
While some concerns had been taken into consideration, others had not because they were
 GB.347/PV(Rev.) 71
not shared by the majority. Informal consultations could, however, not be described as decisive
because there was no guarantee of proper representation of Government participants.
Decisions at the Governing Body were the proper avenue and it was disingenuous of the
Employers’ group to claim that consensus could be reached after 11 years. The Workers’ group
was a strong proponent of social dialogue and tripartism, but they should not be used as
obstacles to progress. The Workers’ group was not against the validation of the procedure by
the Conference; however, selecting that option might not be a wise course of action given the
difficulties being faced in reaching consensus in the Governing Body. Article 37(2) had not been
written to deal with complicated legal matters such as the one at issue and should not be used
for that purpose. Relying on a tribunal instead of article 37(1) would consume time and energy
and might not provide the desired legal certainty.
301. The Employer spokesperson did not share the same recollection as the Worker spokesperson
of the discussions at the 344th Session. As reflected in the minutes of that session, she had
emphasized that the framework should be developed on the basis of tripartite social dialogue.
The Employers’ position in that regard had not changed. Regarding the scope, extent and
content of the right to strike, she recalled that the opinions of the Committee of Experts were
not legally binding. In interpreting Convention No. 87, the applicable instrument was the
1969 Vienna Convention on the Law of Treaties. There had never been a substantive debate
among the tripartite constituents on the right to strike, which was necessary if consensus was
to be achieved.
302. The Chairperson announced that a vote should be held, given the divergent views.
303. The Employer spokesperson said that she was not in favour of a vote as many Governments
had stated that a decision could not be made. The Governing Body was considering the
procedural framework for the first time, and the members should not be forced to make a
decision given the complexity of the situation and the divergence of opinion. The decision
should be deferred.
304. The Worker spokesperson recalled that it was the Chairperson’s prerogative to take decisions
on procedural matters. There had been extensive discussions on the proposed procedural
framework and the Workers’ group had made its position very clear: a framework was not
required in legal terms, but it would be helpful for organizing future work. Legally, there was
no threshold for triggering a referral discussion at the Governing Body, since either a single
Government or group could decide on referral. A decision should be made as to whether or
not to adopt the procedural framework.
305. A Government representative of China said that it would be regrettable if the matter went
to a vote. If such a vote proved necessary, it should be held towards the end of the session to
allow Government representatives time to consult with their capitals, given the complex and
legal nature of the issue at hand.
306. Speaking on behalf of the Africa group, a Government representative of Malawi said that the
Africa group was not ready for a vote.
307. The Worker spokesperson said she fully understood that Governments needed more time. It
was regrettable that a vote would be held, but necessary because the issue had been under
discussion for 11 years.
308. The Employer spokesperson asked the Office to confirm that the procedural framework was
being discussed by the Governing Body for the very first time.
 GB.347/PV(Rev.) 72
309. A Government representative of France said that the item had been on the Governing Body
agenda since March 2022 and many preparatory meetings had been held; no country’s
delegation could claim that it was unaware of the issues. Since all the facts were available, she
saw no need to defer the vote.
310. The representative of the Director-General (Legal Adviser) recalled that, at the 344th Session
(March 2022), the Office had been requested to prepare proposals on a procedural framework
for the referral of questions or disputes regarding the interpretation of international labour
Conventions to the ICJ for decision in accordance with article 37(1) of the ILO Constitution, and
additional proposals for the implementation of article 37(2), for discussion at the current
session.
311. The Employer spokesperson recalled that the first tripartite consultation had in fact taken
place only in January 2023. The majority of the participants had strongly criticized the proposal
and yet it had been submitted for consideration at the current session without any changes. It
was unacceptable that the Office had failed to take into account the points raised or requests
made during that consultation. The 1949 resolution must be changed before a procedural
framework could be adopted. Therefore, more time was needed and no decision could yet be
made.
312. A Government representative of Algeria requested an explanation of the concept of a
“majority” since members seemed to use the word differently.
313. Speaking on behalf of a significant majority of Member States of ASPAG, a Government
representative of China said that, while he fully respected the Chairperson’s prerogative to
decide on how to proceed with each agenda item, the matter should not be put to a vote and
further constructive and meaningful discussion was needed.
314. The Chairperson said that, in view of the differing opinions, a vote was needed and a decision
must be made as to the timing of the vote.
315. The representative of the Director-General (Legal Adviser) said that only the International
Labour Conference could revoke or amend the 1949 resolution under the “parallélisme des
formes” (parallelism of forms) principle of law, according to which legal acts could only be
amended following the same procedure by which they had been adopted. The proposal before
the Governing Body required no formal change to the 1949 resolution since the Governing
Body had already been authorized by the Conference to request advisory opinions from the
ICJ. The decision was whether, for reasons of inclusiveness and owing to the potential
seriousness and institutional importance of some disputes, the final decision on referral should
be made by the Conference. As recalled in the document (footnote 14), at the time of seeking
the Conference’s approval in 1949, the Office had clarified that the Governing Body should
ascertain the views of the Conference on matters, such as standard-setting, that fell primarily
under the responsibility of the Conference. As regards the use of the expression “majority view”
in the context of Governing Body discussions, he indicated that “majority” referred not to an
exact numerical calculation on the basis of individual members, whether titular or deputy, or
the overall membership of regional groups but rather to the speaker’s own perception of the
prevailing view on a particular topic and at a given point in time of the discussion.
316. The Employer spokesperson said that it was highly unusual for the Chairperson to force a
vote on an issue after a substantial number of Governments had asked for more time. She
called for the decision to be deferred pending further tripartite consultations, with a view to
reaching consensus and allowing time to consider all the implications that the procedural
 GB.347/PV(Rev.) 73
framework would have for Member States. It would be extremely unfortunate for the
Governing Body to make a decision against the wishes of many members.
317. The Worker spokesperson said that, since opinions were divided on all issues, including
whether the matter was ready for discussion and decision, the only way forward was to vote.
There was no clear majority for any single course of action. Representatives would have more
than sufficient time to consult their capitals, as they had under previous agenda items, and the
vote should be held before the final sitting of the current session.
318. A Government representative of Cameroon suggested that the Office should hold further
consultations to determine whether a vote was necessary. Some members were not ready to
hold a vote and decisions should not be made in haste.
319. A Government representative of India proposed amending paragraph 10 of the procedural
framework to make it mandatory for the Governing Body to refer its decision on referral of an
interpretation question or dispute to the Conference when that decision had been adopted by
a simple majority vote, and optional when the decision had been adopted by consensus.
320. A Government representative of Indonesia said that her Government had not had enough
time to consider the issue and was not ready to make a decision. Other ways of building
consensus, such as that proposed by India, should be explored.
321. Speaking on behalf of the EU and its Member States, a Government representative of
Sweden said that the EU and its Member States supported the Chairperson’s proposal to hold
a vote.
322. A Government representative of Nigeria suggested that the Office should submit proposals
on a way forward. His Government was not ready to vote on such a complex and technical
issue that required extensive discussion and negotiation.
323. The Worker spokesperson said that no further discussion was required and, legally speaking,
the situation was very clear-cut.
324. Speaking on behalf of GRULAC, a Government representative of Colombia said that her group
fully supported the Chairperson’s proposal to hold a vote.
325. The Chairperson said that a vote would be taken on the draft decision and the amendments
proposed by the Employers and the Workers once the Government representatives had been
able to hold consultations with their respective capitals.
326. Speaking on behalf of the EU and its Member States, a Government representative of
Sweden said that her delegation had engaged in consultations with different Governments,
Employers and Workers. While her group considered the procedural framework proposed by
the Office to be fit for purpose, it was clear that many questions remained unresolved with
regard to its content and timeline. Some members had indicated that a vote on the item felt
forced. The EU and its Member States valued the tripartism of the Governing Body and the fact
that thus far it had managed to take the vast majority of its decisions by consensus. Taking a
vote was a mechanism of last resort at its disposal, but not one that should be used on a regular
basis, especially on matters of such a fundamental nature, as doing so could be
counterproductive in the long run. Therefore, in order to take into account the concerns of all
parties and allow the matter to be resolved in a consensual manner, the EU and its Member
States proposed that the debate be closed and deferred to a future session.
327. The representative of the Director-General (Legal Adviser), referring to paragraph 5.7.6 of
the Standing Orders of the Governing Body, noted that in the case of motions as to procedure,
no notice in writing needed to be made available to the person chairing the sitting or
 GB.347/PV(Rev.) 74
distributed. Motions as to procedure included a motion to adjourn a debate on a particular
question. It was his understanding that the motion was to adjourn the debate on the whole of
the agenda item INS/5, that is to say in respect of both the procedural framework under article
37(1) and the additional proposals for the implementation of article 37(2). Accordingly, it was
for the Chairperson to open the discussion so that a decision could be made with regard to the
motion.
328. The Worker spokesperson said that she too had consulted other members, and it was her
understanding that there were more concerns about the procedural framework than about
the issue of the right to strike. She would be interested in exploring the option proposed, but
would need to have further consultations with her group.
329. The Employer spokesperson said that her group had been clear from the outset that the issue
was not yet ripe for a decision. It was the first time that the Governing Body had discussed the
procedural framework, and in a house of dialogue the constituents needed to be given
sufficient time to work towards a consensus. Putting the matter to a vote would put many
Governments in a difficult situation, as the complex legal issues required coordination with
their capitals. She supported the motion to defer consideration of the item as a whole, as that
would provide an opportunity to find a solution based on consensus. It was a political decision,
not a legal one, and the way forward should be coordinated by policymakers and the ILO’s
most senior management.
330. Speaking on behalf of the Africa group, a Government representative of Malawi said that
her group wanted to believe that the ILO was a house of social dialogue and therefore the
Governing Body should try as hard as possible to reach consensus. Voting on critical matters
undermined the nature of the ILO. Consultation to reach consensus was key. The procedural
framework had only been recently introduced, with tripartite consultations being held for the
first time in January 2023 with follow up in February 2023, and it was the first time that it had
been discussed at the Governing Body. With more time for discussion, she hoped that
consensus could be reached the next time it was discussed by the Governing Body. Her group
supported the motion presented by the EU Member States.
331. A Government representative of Mexico said that her delegation had fully supported the
Chairperson’s decision to hold a vote. It was important to implement article 37(1) as quickly as
possible. Having listened to the discussions and consulted with other groups and delegations,
she believed that the Governing Body was close to reaching an agreement on the procedural
framework. In the interest of promoting further discussion and social dialogue, she was
prepared to support the motion.
332. A Government representative of India fully supported the motion. However, when the
Governing Body resumed its discussion of the item, it would need to re-examine the procedural
framework, which currently contained a number of points that did not strictly adhere to the
principles of natural justice. The framework should be redrafted to be more fair, more
transparent, more inclusive and more representative.
333. A Government representative of Pakistan supported a consensus-based approach on
matters of such significance; accordingly, the procedure for referring a matter to the ICJ should
be based on the agreement of all parties. He acknowledged the concerns that had been raised
by the Workers’ group, and noted that further discussion was needed and urged all parties
involved to find points of consensus, in order to protect everyone’s rights and needs in a more
meaningful and constructive manner.
 GB.347/PV(Rev.) 75
334. Speaking on behalf of a significant majority of ASPAG Member States, a Government
representative of China welcomed the motion proposed by the EU Member States, which
would restore the spirit of social dialogue and tripartite cooperation. He noted that there had
been a significant number of votes during the current session and that a vote on an issue of
such institutional significance would be detrimental to the spirit of social dialogue.
335. Another Government representative of China said that her Government supported the
motion, noting that achieving consensus among the constituents was one of the key
characteristics and advantages of the ILO. It appreciated the flexibility and spirit of
compromise that had been shown by all members, and agreed that it was important to hold
further in-depth discussions on such an important subject.
336. A Government representative of Guatemala said that, as consensus had not yet been
reached, he supported the motion, which reaffirmed that social dialogue had not broken down.
It was important to move forward on the basis of consensus.
337. A Government representative of Colombia welcomed the motion presented by the EU
Member States and stressed how important it was for decisions to be taken by consensus.
338. A Government representative of Indonesia said that the constituents needed more time to
develop a procedural framework that could be accepted by all. He therefore also supported
the motion that had been presented.
339. A Government representative of the United States also supported the motion. It was clear
that substantial concerns remained with regard to the procedural framework, which her
Government was not sure was even necessary.
340. The Worker spokesperson acknowledged that the motion presented by the EU Member
States had garnered a significant amount of support. Before agreeing to it, she would need to
consult her group.
341. The Employer spokesperson recalled that, at the outset of the discussion, her group had
submitted an amended version of the draft decision calling for the deferral of the discussion
to a future session of the Governing Body. As the discussion could not be held at the
348th Session (June 2023), which was too short to allow for such a difficult, substantive
discussion, it should be deferred to the 349th Session (October–November 2023). The
discussion must be preceded by serious substantive consultations, on which basis the Office
should produce a revised version of the proposed procedural framework.
342. The Worker spokesperson recalled that the procedural framework was not legally binding
and while such a framework was not necessary, it was intended to be a helpful tool. Developing
such a tool to deal with any possible future conflict of interpretation of a persistent, serious
nature required further discussion, it seemed. She was prepared to accept the motion to
adjourn the debate and to defer it to a future session, as proposed by the EU Member States.
Decision
343. In accordance with paragraph 5.7.6 of the Standing Orders, the Governing Body decided
to defer the consideration of item GB.347/INS/5 to a future session.
(GB.347/INS/5, paragraph 62, as amended by the Governing Body)
344. The Worker spokesperson, noting the applause, expressed the hope that Governing Body
would soon be in a position to celebrate having resolved an outstanding conflict, which in her
group’s view could only be done by referring the case to the ICJ. She recognized that it might
be useful to have a non-binding procedural framework to serve as a tool for debates on
 GB.347/PV(Rev.) 76
conflicts of interpretation, and that all parties should have a clear understanding of how to use
it.
345. It was already clear that any Member of the Organization could raise an issue of interpretation
and submit a request to the Director-General to ask him to put the issue before the Governing
Body for referral to the ICJ. One specific issue of interpretation had been waiting long enough
and her group could not wait much longer for it to be resolved. Indeed, it was considering
submitting a request to the Director-General in the coming months to put the issue before the
Governing Body at its 349th Session and hoped to receive the support of governments in this
respect. There needed to be a debate on that specific issue as soon as possible.
346. She echoed the concerns that had already been expressed by others that the Governing Body
seemed no longer to be able to decide on anything serious without a vote, even when there
was a clear majority. All parties needed to reconsider whether the ILO continued to be an
efficient, effective, fair and properly functioning house. Lastly, she reiterated that her group
was committed to seeking consensus and to making progress in resolving issues.
6. Final report of the tripartite working group on the full, equal and
democratic participation in the ILO’s tripartite governance
(GB.347/INS/6)
347. The Governing Body had before it an amendment to the draft decision, proposed by the Africa
group and circulated by the Office, which read:
21. The Governing Body:
(a) took note of the final report of the tripartite working group on the full, equal and
democratic participation in the ILO’s tripartite governance;
(b) welcomed the significant progress made in the ratification of the 1986 constitutional
amendment since the establishment of the working group;
(c) urged the eight Members of chief industrial importance which have not yet ratified
the 1986 constitutional amendment to consider favourably such ratification in the
shortest possible time;
(d) requested the Director-General to take all necessary initiatives aimed at bringing the
1986 constitutional amendment into effect, and keep the Governing Body regularly
informed and to provide a road map for this process which will be reviewed every
two years;
(e) decided that the matter should become a standing item on the agenda of
subsequent March and November Governing Body sessions until the amendment
enters into force.
348. The Co-Chairperson of the tripartite working group said that the full contribution of
constituents could be assured only through their full, equal and democratic participation in the
Organization’s tripartite governance. Although the COVID-19 pandemic and travel restrictions
had further complicated the already challenging task of the working group, the collaborative
spirit, support and cooperation of the social partners and Member States had made the virtual
meetings constructive. The process of actualizing universal ratification of the Instrument for
the Amendment of the Constitution of the International Labour Organization, 1986 (the 1986
Amendment) had been somewhat slow. The world of work had changed considerably over the
past three decades and the desire to institute democratic governance in the Organization had
become more urgent than ever before.
Document No. 42
PCIJ, Designation of the Workers’ Delegate for the
Netherlands at the Third Session of the International
Labour Conference, Advisory Opinion No. 1, 31 July 1922,
pp. 9, 11

PERMANENT COURT OF INTERNATIONAL
JUSTICE.
July 31sb.
File : F. a. III,
FIRST (ORDINARY) SESSION. Docket. 1 : 2.
PRESENT:
M. LODER, President ,
M. WEISS, Vice-President,
Lord FINLAY,
MM. NYHOLM,
MOORE,
DE BUSTAMANTE,
ALTAMIRA,
ODA,
ANZILOTTI, Judges,
MM. BEICHMANN,
NEGULESCO, Deputy- Judges.
By a Resolution dated May ~zth1,9 22, the Council of the
League of Nations requested the Court, in accordance with
Article 14 of the Covenant, to give an advisory opinion on
the following question :
,,Was the Workers' Delegate for the 2LTetherlands ut the
Third Session of the International Labour Conference nominated
in accordance with the provisions of paragraph 3 of
Article 389 of the Treaty of Versailles ?'
The request for an advisory opinion on this question was
transmitted to the Court by a letter from the Secretary-
General of the League of Nations, by virtue of authority
received from the Council.
In conformity with Article 73 of the Rules of Court, notice
of the request was given to the Members of the League of
Nations through the Secretary-General of the League, to
the States mentioned in the Annex to the Covenant and to
the following organisations :
The International Association for the Legal Protection
of Workers ;
the International Federation of Christian Trades
Unions, and
the International Federation of TracEes Uniona.
The request was aIso communicated to Cernay and
Hungary .
Finally, the Court decided to hear, at a public sitting, the
representatives of any Government and international organisation
which, within a fixed period of time,expressed a desire
to be so heard. This decision was brought to the,knowledge
of al1 the Members, States and organisations mentioned above,
and to the International Labour Office at Geneva.
The Court thus had at its disposal, when pronou~cingit s
,opinion, the following documents :
1) A letter from the Director of the International La- -
bour Office to the Secretary-General, dated March,17th,
1922, together with the Annexes accompanying this letter.
2) A memorandum from the Netherlands Government,
dated June 14th) 1922.
3) A memorandum from the Netherlands General Confederation
of Trades Unions ( AZgenzeea ~edèrlalzdsch
Vakverbolzd) .
4) A telegram from the Swedish Government.
The Court also heard oral statements :
1) On behalf of the British Government,
2) on behalf of the Netherlands Government,
3) on behalf of the International Federation of
Trades Unions,
4) on behalf of the International Federation of
Christian";rades Unions,
5) on behalf of the International Labour Office.
As a result of this information, the follawing facts are
established :
The Minister of Labour of the Netherlands, with the
object of bringing about the agreement preçcribed in Article
389, paragraph 3 of the Treaty of Versailles, invited the
Document No. 43
PCIJ, Competence of the ILO in regard to International
Regulation of the Conditions of the Labour of Persons
Employed in Agriculture, Advisory Opinion No. 2, 12
August 1922, pp. 9, 11

PERMANF:'NT COURT OF INTE IINATIOKAL
JUSTICE.
August 12th.
File : F. a. II.
Docket 1 : 1.
FIRST (ORDINARY) SESSION.
PRESENT
M. LODER, President.
M. ~VEISS, Vice-Preçideri t,
Lord FINLAY,
MM. NYHOLIIZ,
MOOI~E,
DE BC!~TAI\IANTE,
ALTAIIRI A,
OD A,
ASZILOTTI, Judges,
M. NEGULIZSCO, Depiity- Judge.
ADVISORY OPINION Ko. 2.
By ri Resolution adopted on May ~zth1,9 22, the Council
of the League of Nations, in conformity with Article 14 of
the Covenant, requested the Court to give an Advisory Opinion
on the following question :
" Does tlze competence of the Internatiovzal Labour Organisation
extend 10 international regulation of tlze conditions of
labour of persons employed ia agriculture 2"
By virtue of authority conferied by the Resolution, the
request of the (Council \vas trailsinitted tc~t he Court by the
Secretary-Genei-al of the League of Nations, by a letter dated
at Geneva, May zznd, 1922. Accompanying this letter there
was a certified copy of the Resolution, and also a Memorandum
prepared by the International Labour Office, which the Council
had, by the carne Resolution, requested to afford the Court
al1 the assistance which it might require in the consideration
of the question submitted to it.
In conformity with Article 73 of the Rules of Court, notice
of the request rvas given to the Iîlembers of the League of
Nations through the Secretary-General of the League, to the
States mentioned in the Annex to the Covenant and to the
following organisations :
The International Federation of aqricultural Trades
Unions ;
The Inteirnational League of Agricultural Associations
(Internatiosbaler Bund der Landwirtschaftlichen Genossenschaften)
:
The International Agricultural Conimission ;
The International Federation of Christian Unions
of Landworkers ;
The International Federation of Land-workers ;
The International Institute of Ag~iculturea t Rome ;
The International Federation of Tiades Unions ;
The International Association for the Legal Protection
of Workers ;
The request was also coinmunicated to Germany and
Hungary.
Finally, the Court decided to hear, at a public sitting, the
representatives of any Government and international organisation
which, within a fixed period of time, expressed a
desire to be so heard. This decision was b~oughtto the knowledge
of al1 the Members, States and organisations mentioned
above. and of the International Labour Oflice at Geneva.
The Court had at its disposal, when pronouncing its opinion,
the following documents :
1) A certified copy of a letter (undated) from the Director
of the International Labour Office to the Secretary-
General of the League of Natioris, together with a
note annexed thereto ; also a supplenlentary note dated
Jiily zoth, 1922 ;
2) A certified copy of a letter dated June 13th, 1922,
from the Foreign Minister of the Government of the
French Republic to the Secretary-General of the League
of Nations, together with a note froni that Government,
and a note annexed thereto from the Society of Agriculturists
of France ; also a supplementary note dated
Document No. 44
PCIJ, Competence of the ILO to Regulate Incidentally the
Personal Work of the Employer, Advisory Opinion No. 13,
23 July 1926, p. 8

PUBLICATIONS DE LA COUR PERMANENTE DE JUSTICE
INTERNATIONALE
S ~ R I EB - P 73
Le 23 juillet 1926
RECUEIL DES AVIS CON SULTATIFS
COMPETENCE DE L'ORGANISATION INTERNATIONALE
DU TRAVAIL POUR RÉGLEMENTER ACCESSOIREMENT
LE TRAVAIL PERSONNEL DU PATRON
PUBLICATIONS OF THE PERMANENT COURT
OF INTERNATIONAL JUSTICE.
SERIES B. - NO. 73
July 23rd, 1926
COLLECTION OF ADVISORY OPINIONS
COMPETENCE OF THE INTERNATIONAL LABOUR
ORGANIZATION TO REGULATE, INCIDENTALLU,
THE PERSONAL WORK OF THE EMPLOYER
Socikté d'Editions A. W. Sijthoirs
A. W. Sijthoff Publishing Company
Leyde Leyden
"The Secretary-General will be prepared to furnish any
assistance which the Court may require in the examination
of this matter, and will, if necessary, arrange to be represented
before the Court."
In conformity with Article 73 of the Rules of Court, notice of the
Request was given to the Members of the League of Nations and
to the States mentioned in the Annex to the Covenant.
Under the same article, notice of the Request was also given to
the International Labour Organization and to the following further
international organizations considered as likely to be able to -
furnish information on the question submitted to the Court :
International Organization of Industrial Employers ;
International Federation of Trades Unions ;
International Confederation of Christian Trades Unions.
It was further brought to the knowledge of the four Organizations
notified that, should they desire to furnish information on the question
at issue, they would have to file applications in this respect ;
at the same time, a delay for the presentation of written memoranda
was fixed. Such memoranda were received from al1 the
organizations concerned, except the International Confederation
of Christian Trades Unions.
At the request of the Organizations, their representatives furnished
information at the hearings held on June 28th and zgth,
1926. These representatives were :
(1) For the International Labour Organization, M. Albert Thomas,
Director of the International Labour Office.
(2) For the International Organization of Industrial Employers,
Me. Borel, of Geneva, and Me. Lecocq, of Brussels, the Secretary-
General of the Organization.
(3) For the International Federation of Trades Unions,
Me. Mendels, of Amsterdam.
(4) For the International Confederation of Christian Trades Unions,
M. Serrarens, of Utrecht, the Secretary-General of the Confederation.
The International Labour Office finally submitted to the Court,
in conformity with the Resolution of the Cou~icilo f the League of
Nations, a set of documents concerning the treatment by the
Document No. 45
PCIJ, Interpretation of the Convention of 1919 concerning
Employment of Women during the Night, Advisory
Opinion, 15 November 1932, pp. 367–368

COUR PERMANENTE DE JUSTICE INTERNATIONALE
SERIE AIB
ARRÊTS, ORDONNANCES ET AVIS CONSULTATIFS
FASCICULE No 50
INTERPRÉTATION DE LA CONVENTION
DE 1 9 1 9 CONCERNANT LE TRAVAIL
DE NUIT DES FEMMES
AVIS CONSULTATlF DU 15 NOVEMBRE 1932
XX VIme SESSION
XXVIth SESSION
ADVISORY OPINION OF NOVEMBER 15th, 1932
PERMANENT COURT OF INTERNATIONAL JUSTICE
JUDGMENTS, ORDERS AND ADVISORY OPINIONS
.-
FASCICULE No. 50
INTERPRETATION OF THE CONVENTION
OF 1 9 1 9 CONCERNING EMPLOYMENT
OF WOMEN DURINC THE NICHT
LEYDE II LEYDEN
SOCIÉTÉ D'ÉDITIONS A. W. SIJTHOFF'S
A. W. SIJTHOFF PUBLISHING COMPANY
EMPLOYMENT OF WOMEN DURING THE NIGHT 367
the Council adopted the above-mentioned Resolution of May gth,
1932 ; subsequently, the relevant extract from the Council
minutes was also sent to the Court.
Under cover of a letter dated June 6th, 1932, the Secretary-
General further sent to the Registrar a number of documents
relating to the request for an advisory opinion, collected by
the International Labour Office 1. These documents have been
duly placed at the disposa1 of members of the Court.
In conformity with Article 73, paragraph 1, sub-paragraph 1,
of the Rules of Court, the request was communicated to
Members of the League of Nations (through the Secretary-
General of the League of Nations) and to other States entitled
to appear before the Court. Furthermore, the Registrar, by
means of a special and direct communication dated May mst,
1932, drew the attention of the governments of States which
had ratified the Convention of 1919 concerning the employment
of women during the night, to the terms of Article 73,
paragraph 1, sub-paragraph 3, of the Rules. As a result of
this communication, the Government of the United Kingdom
of Great Britain and Northern Ireland informed the Registrar,
by a letter of June t th, 1932, that it desired to be represented
before the Court in this case. The Court decided to
grant this request.
The Registrar, by letters dated May 27th, 1932, also sent
to four international organizations considered by the President
-the Court not beiiig in session-as likely to be able to
furnish information on the question referred to the Court for
advisory opinion, the special and direct communication mentioned
in Article 73, paragraph 1, sub-paragraph 2, of the
Rules; of these organizations-namely, the International
Labour Organization, the International Federation of Trades
Unions, the International Confederation of Christian Trades
Unions and the International Organization of Industrial Employers-
the first three stated that they desired to submit
written and oral statements to the Court.
By an Order made on May 27th, 1932, the President of
the Court-the latter not being in session-fixed August ~st,
1932, as the date by which written statements upon the
1 See list in Annex.
6
EMPLOYMENT OF WOMEN DURING THE NIGHT 368
question might be filed with the Registry by the interested
States and Organizations, and Çeptember nth, 1932, as the
date by which second written statements, if in due course
admitted, might be filed.
On August 4th, 1932, the Court decided, in the first place,
to allow the filing, within the time thus fixed, of second written
statements by the States or organizations which had
already filed such statements and, in the second place, that
the other States and organizations which had been notified
of the request might, if they so desired, be permitted to
submit a statement within the same time-limit. In pursuance
of this decision, the President of the Court-the latter not
being in session-by an Order made on September 6th, 1932,
granted a request made by the German Government for permission
to submit a written statement ; by the same Order,
the President extended until September zoth, 1932, the timelimit
which was to have expired on September 12th.
Statements were filed on behalf of the Government of the United
Kingdom and of th: German Government, as well as by the
International Labour Organization, the International Federation
of Trades Unions and the International Confederation of
Christian Trades Unions.
The statements of the International Confederation of Christian
Trades Unions and of the German Government were filed after
the expiration of the time-limit, but the President, exercising
the powers conferred upon him by Article 33 of the Rules,
decided to accept them.
The above-mentioned Governments and Organizations were
also represented before the Court, which, in the course of
public sittings held on October 14th, 1932, heard the oral
arguments submitted by Mr. A. P. Fachiri, Counsel, on behalf
of the Government of the United Kingdom, Dr. J. Feig,
Assistant Agent, on behalf of the German Government,
Mr. Phelan, Head of the Diplomatic Division of the International
Labour Office, on behalf of the International Labour Organization,
M. Serrarens on behalf of the International Confederation
of Christian Trades Unions, and by M. Schevenels on
behalf of the International Federation of Trades Unions.

Document No. 46
PCIJ, Revision of the Rules of Court, Acts and Documents
concerning the Organization of the Court, Series D,
Addendum to No. 2, pp. 223–228

VINGT-:--EUVIEME SEANCE (28 JUILLET 1926)
a cet amendement, il y a un sous-amendement de
M. Anzilotti.
Passant ensuite a l'examen de l'article 73, le President
attire l'attention de la Cour sur le nouveau texte
etabli par le Greffier (p. 87 du Document Distr. 794) 1.
M. DE BUSTAMANTE declare retirer sa proposition
relative a !'article 73 2.
M. ALTAMIRA demande s'il est bien entendu que le
mot « requete » sera remplace par « demande » dans les
articles 72 et 73.
Le PRESIDENT repond affirmativement.
M. PESSOA propose de supprimer les mots : (< par
sutxAse clμ Secretaire general de la Societe des
Nations », dans la pensee que cette notification peut
etre faite directement par le Greffier.
Le GREFFIER rappelle que, pour la communication
tout a fait analogue des requetes introductives
d'instance, l'article 40 du Statut prescrit de passer
par l'intermediaire du Secretaire general a l'egard des
Membres de la Societe. Pour les Etats qui ne sont pas
Membres de la Societe des Nations, Jes requetes, dans
les deux cas, leur sont communiquees directement. II
ajoute qu'il existe egalement pour cela des raisons d'ordre
pratique: ii est plus simple d'expedier les cinquantesix
communications a Geneve aux fins de transmission,
que de les envoyer a chacun des Etats interesses.
M. PEssoA n'insiste pas, si le procede actuel offre
des avantages pratiques.
Le PRESIDENT aborde la proposition de M. Anzilotti,
relative a la definition de la not ion d'cc organisations
internationales 1>.
M. ANZILOTTI pense qu'il peut y avoir des inconvenients
a admettre une organisation internationale quelconque
a venir devant la Cour. Lorsqu'il s'agit d'un
organisme non officiel, Jes personnes qui parlent en son
nom n'encourent en realite aucune responsabilite. Par
suite, ii pourrait arriver qu'elles missent Ja Cour dans
une situation difficile.
M. Anzilotti reconnait que, d'apres la proposition du
Greffier, cc danger n'existerait guere, puisqu'il s'agirait
d'une initiative a prendre par la Cour elle-meme.
Neanmoins, ii avait cru que !'article 50 du Statut
suffisait pour permettre a la Cour de s'adresser a des
organisations privees pouvant fournir des renseignements
utiles. Mais il ne fait pas de proposition precise,
car tout ira bien, sans doute, si la Cour conserve !'initiative:
elle ne manquera pas, en effet, de s'adresser exclusivement
a des organisations internationales offrant
toutes les garanties necessaires.
Le PRESIDENT a toujours interprete !'expression
<< organisations internationales » comme equivalente
a cc organisations officielles n, par exemple le Bureau
international du Travail. Mais, a l'heure actuelle, on a
1 Voir p. 315.
I » pp. 262-263.
224
TWENTY-XIXTH MEETING (JULY 28th, 1926)
form. To that amendment there was a further amendment
by M. Anzilotti.
Proceeding, next, to consider Article 73, the President
called attention to the new draft prepared by the
Registrar (p. 87 of Document Distr. 794) 1.
M. DE BUSTAMANTE said that he withdrew his proposal
in regard to Article 73 2.
M. ALTAMIRA asked whether it were clearly understood
that the word reqi,tte should be altered to demande
in Articles 72 and 73.
The PRESIDENT replied in the affirmative.
M. PESSOA proposed to delete the words "through the
Secretary-General of the League of Nations" as he held
that that notice might be given directly by the Registrar.
The REGISTRAR recalled that in the entirely analagous
case of notice of applications instituting proceedings,
Article 40 of the Statute laid down that notice was to be
given through the Secretary-General, in so far as
Members of the League were concerned. As regarded
States which were not Members of the League, the
applications were in both cases communicated to them
directly. He added that there were also reasons of a
practical nature ; it was easier to send the fifty-six
notices to Geneva for transmission, than to send them
to each of the States concerned.
M. PESSOA did not insist if the present procedu1'e- had
practical advantages.
The PRESIDENT then approached M. A!lzi19W's
proposal regarding the definition of the conceptfon
of "international organizations".
M. ANZILOTTI thought that there might be some
drawbacks to allowing any kind of international
organization to come before the Court. In the ,case
of an unofficial organization, the p~rsons who spoke
on its behalf in reality incurred no responsibility.
Consequently they might sometimes place the Court
in a difficult position.
M. Anzilotti recognized that, according to the
Registrar's proposal, that danger would hardly exist,
since the initiative would rest with the Court itself.
Nevertheless, he had thought that Article 50 of the
Statute sufficed to enable the Court to apply to private
organizations capable of supplying useful information.
He did not, however, make a definite proposal, because
no doubt everything would work out satisfactorily if
the Court retained the initiative, for it would
undoubtedly be careful only to approach international
organizations offering all the necessary guarantees.
The PRESIDENT had always construed the expression
"international organizations" as tantamount to
"official organizations", for instance, the International
Labour Office. But now a species of precedent had been
1 Seep. 31 5. .
~ " pp. 262- 2'63.
VINGT-NEUVIEME SEANCE (28 JUILLET 1926)
cree une sorte de precedent, en admettant egalement
les grandes organisations industrielles, ouvrieres ou
patronales, et il serait bien difficile de les ecarter maintenant,
en raison de leur tres grande importance. Au
surplus, ces grandes organisations sont reconnues, du
moins d'une fa9on indirecte, comme etant des elements
de !'Organisation internationale du Travail, qui est
fondee d'une part sur une representation des £tats, et,
d'autre part, sur une representation egale des organisations
patronales et ouvrieres.
M. ANZILOTTI declare que c'etait precisement la
situation des organisations en question devant la Cour
qui l'avait preoccupe; mais, si c'est la Cour elle-meme
qui doit prendre !'initiative, il n'insiste pas.
Le PRESIDENT constate que M. Anzilotti ne maintient
pas sa proposition.
M. DE BUSTAMANTE, se referant au texte de la derniere
phrase du 1° de !'article 73 amende (p. 87, D:istr. 794) 1,
se demande ce qui arrivera s'il n'est pas dlonne suite
aux questions posees par la Cour.
Le GREFFIER explique qu'il existe des moyens
permettant d'eviter a la Cour toute chicane de ce genre;
par exemple, la question ne sera pas posee a ll'Etat ou a
!'organisation interessee sans que l'on se s-oit assure,
au prealable, que cette question sera suivie d'un effet
quelconque.
Le PRESIDENT constate que la suppression de la derniere
phrase du premier alinea n'est pas de:mandee, et
ouvre la discussion sur l'alinea suivant, dont lecture
est donnee.
Le GREFFIER declare qu'il s'a.git la d'un point assez
important. C'est au fond la question de l'imtervention
qui se pose, lransportee clans le domaine des a.vis consultatifs.
Si 1a Cour admet le principe qu'il lui appartient
de prendre J'initiative pour faire· connaitre aux
Etats interesses qu'ils peuvent formuler une demande
aux fins d'etre entendus, elle doi t admettre aussi un
correctif, pour le cas ou elle aurait omis d' adresser la
notification a un Etat reellement interesse ; c'est ce
correctif que le paragraphe en question a pour objet de
foumir.
Le PRESIDENT fait observer que le paragraphe
reproduit, en l'adaptant a la procedure consultative,
le principe des articles 62 et 63 du Statut.
Ayant constate que la Cour est d'accord pour maintenir
le texte dont ii s'agit, le President pass,e au paragraphe
2 de !'article 73 arrtende, dont ii don.ne lectm;e.
M. WEISS dem:tnde la substitution du mot « discuter »
au mut «commenter ", comme dans un article anterieur.
M. DE BUSTAMANTE demande si !'intention est bien que
tous les Etats qui ont presente des exposes ecrits OU
oraux soient admis a discuter les exposes des autres.
Dans ce cas, c'est un double debat qui va s'instituer
1 Voir p. 315.
TWENTY-NINTH MEETING (JULY 28th, 1926)
created by also admitting great industrial organizations,
whether of workers or of employers, and it would be very
difficult now to leave them out, owing to their very
great importance. Moreover, these great organizations
were at any rate indirectly recognized as constituting
elements of the International Labour Organization,
which was composed partly of representatives of
States and partly of representatives of an equal number
of employers' and workers' organizations.
M. ANZIL0TTI stated that it was exactly the situation
of those organizations, when they came before the Court,
which he had had in mind, but as the initiative rested
with the Court itself, he would not press the matter.
The PRESIDENT observed that M. Anzilotti did not
maintain his proposal.
M. DE BUSTAMANTE, referring to the wording of the
last sentence of No. r of Article 73 as amended (p. 87,
Distr. 794) 1, wondered what would happen if questions
put by the Court were not answered.
The REGISTRAR explained that there were · means
of protecting the Court from incidents of that kind ;
for instance, a question would not be put to the State
or organization concerned without previously ascertaining
that some reply would be given.
The PRESIDENT observed that there was no motion
for the deletion of the last sentence of the first paragraph
and he opened the discussion on the next paragraph,
which was read.
The REGISTRAR stateu Lhal that was a point of some
importance. It was in reality the question of intervention
as it arose in connection with advisory opinions.
If the principle were accepted that it rested with
the Court to take the initiative of informing interested
States that they might submit a request for a hearing,
provision must also be made for a case where the Court
might have omitted to give notice to a State which
was really interested ; the paragraph in question was
intended to provide for such a case.
The PRESIDENT observed that the paragraph
reproduced the principle contained in Articles 62 and
63 of the Statute, adapting it to advisory procedure.
Having satisfied himself that the Court agreed to
maintain the clause in question, the President passed
to paragraph 2 of Article 73 amended, which he read.
M. WEISS asked that the word "comment" should be
replaced by the word "discuss" as in a previous article.
M. DE BUSTAMANTE asked whether the intention
really was that all States who had submitted written
or oral statements should be allowed to discuss the
statements of others. In that case a twofold discussion
1 See p. 31 5.
225

Document No. 47
Letter of the PCIJ Registrar to the ILO Director, dated 26
March 1926

26 March 1926
Dear Minister,
I have just received from the Secretariat of the League of Nations the request for an
opinion concerning the competence of the International Labour Organisation to address the
personal work of employers.
As soon as the request is printed, it will, of course, be communicated to the International
Labour Office in accordance with Article 73, paragraph 2, of our Rules.
The question arises, however, whether there are other "international organisations"
within the meaning of the provision in question, to which official notifications should also be sent.
It is difficult for me to form a precise idea on this subject at the moment, as the complete
file of the case has not yet reached me - indeed, I understand that it will be composed and sent
by mutual agreement between the International Labour Office and the Secretariat. In the
meantime I have personally considered that, as the question is worded, the only three
organisations which could possibly come into consideration would be:
1) the International Federation of Trade Unions,
2) the International Confederation of Christian Trade Unions; and
3) the International Organisation of Industrial Employers
I should be much obliged if you would kindly give me your opinion on this point.
Please accept, Mr. Minister, the assurances of my highest consideration.
The Registral of the Court,
Hammarskjöld [signature]
[Unofficial translation]

Document No. 48
Minute of ILO Legal Adviser, Jean Morellet, dated 10 April
1926

Minute
(elements of a response to Mr Schifferstein's letter dated 6 April 1926)
1) According to Article 73 of the Rules of the Permanent Court of International of Justice,
when the Court is seized of an application requesting an advisory opinion, "notice of such request
shall also be given to any international organisations which are likely to be able to furnish
information on the question".
No text provides for the representation before the Court of international organisations
consulted during the advisory procedure. In fact, the Court has decided, each time an
international organisation has been consulted, to hear its representative in a public audience if it
so wishes. It is therefore almost certain that the Court will invite the international organisations
consulted on the question of the international regulation of employers' work to be represented
before it. If by chance the Court does not extend such an invitation to the organisations
concerned, the latter may take the initiative of requesting that their representative be heard.
2) The Registrar of the Court has asked the Director of the ILO to inform him of the
organisations to be consulted and he has already announced his intention to communicate the
request to the International Federation of Trade Unions, the International Confederation of
Christian Trade Unions and the International Organisation of Industrial Employers. Although the
Food Federation is affiliated to the International Federation of Trade Unions, which will be
consulted, it would undoubtedly be in the interest of Mr. Schifferstein's organisation to be
specially consulted as well, and the ILO will inform the Registrar of Mr. Schifferstein's wish.
Jean Morellet [signature]
10 April 1926
[Unofficial translation]

Document No. 49
PCIJ, Third annual report (15 June 1926 – 15 June 1927),
Series E – No. 3

SERIES E.-No. 3
THIRD ANNU-4L REPORT
OF THE
PERMANENT COURT OF INTERNATIONAL JUSTICE
(June rgth, 1926-June 15th, 1927)
DIGEST 01: DECISIONS TAKEN BY THE COURT 225
filed by the other. These observations would be in writing, but
the Court (April zrst, 1925) reserved the right to consider on its
merits any subsequent request for a hearing.
On -4ugust 24th, 1923 (Advisory Opinion No. 7), the Court
decided to inform the Roumanian Government (which had
requwted a hearing, citing Articles 62 and 63 of the Statute)
that Articles 62 and 63 of the Statute and the corresponding
articles of the Rule!; only related to contentious procedure. The
Court \vas, however, disposed to hear the Roumanian representative
under the terins of Article 73 of the Rules.
The question of the international organizations permitted to
furnisli information (Rules, Article 73) was considered during the
revision of the Rules in 1926 and it was established that the
initiative always rested with the Court both in the case of a State
and of an international organization. (See Series D., No. 2, Add.,
pp; 224-225.)
The following is a list of International Organizations so far
admitted to furnish information in one or more questions:
International Agric~ultural Commission.
International Federation of Trades Unions.
International Labour Organization.
International Association for Legal Protection of Workers.
International Confederation of Agricultural Trades Unions.
International Federation of Landurorkers.
International Institute of Agriculture (Rome).
International Federation of Christian Trades Unions of Landworkers.
International Organization of Industrial Employers.
International Confe:deration of Christian Trades Unions.
In the case of Advisory Opinion No. 13, the "Union internationale
des Fédérations des Ouvriers et Ouvrières de l'Alimentation"
which is established at Zurich was desirous to furnish information.
The President of the Court, however, did not communicate the
request for an advisory opinion to that Organization, the reason
being that it was not of the same status as the organizations
notified, to one of which (the International Federation of Trades
Unions) it was affiljated. If it desired to submit observations
it could do so through the International Federation of Trades
Unions.
In connection with the revision of the Rules it was established
that the question of intervention only arose in advisory procedure
in the form of a request for a hearing from a State (or organization)
whicli should have received an invitation from the Court, but had
not done so.
:l proposal for the enumeration of the articles of the Statute and
Ru1c.s applicable by .analogy to advisory procedure was rejected
15
Document No. 50
Introductory note to the Standing Orders of the
ILO Governing Body, para. 23

7
 Introductory note
1. The Governing Body of the International Labour Office (hereinafter
“the Governing Body”) is established pursuant to articles 2 and 7 of the
Constitution of the International Labour Organization. The functioning of the
Governing Body is governed by a set of rules dispersed among different texts
and publications, as well as a number of practices and arrangements
developed over the years since its First Session on 27 November 1919 in
Washington, DC. Since 2006, all these rules have been consolidated into the
present Compendium prefaced by an introductory note that reflects certain
practices without fixing them as a legal rule. 1
2. The Compendium was amended in 2009 to include further sets of
rules and to promote gender equality, 2 and in 2011 to reflect modifications
resulting from the reform package arising out of the work of the Working
Party on the Functioning of the Governing Body and the International Labour
Conference (hereinafter “the Conference”). Further modifications were made
to the Standing Orders and the Introductory note as a result of the review of
the reform package in 2014 and 2015. 3 The annexes in the Compendium
have similarly been adjusted as and when decided by the Governing Body. 4
3. The consolidation of the rules applicable to the Governing Body
should provide members with an overview of the rules and practices
governing its work. It contains not only texts, but also practical solutions that
have either served to deal with situations not covered in specific written
provisions and which have not occurred again since, or, through repetition,
have become precedents that the Governing Body follows, as in the case of
the “rule” of geographical rotation of the office of Chairperson of the
Governing Body. A number of these practices, in particular those in regular
use, are described in the introductory note. This also applies to points on
which the Governing Body has not seen fit to adopt rules so as to maintain
1 GB.291/LILS/3; GB.291/9(Rev.), paras 33–42.
2 GB.306/LILS/1; GB.306/10/1(Rev.), paras 2–8.
3 GB.320/WP/GBC/2 and GB.323/WP/GBC/2.
4 Each annex contains a reference to the date of its adoption or amendment by the Governing
Body.
16
The Employers’ and Workers’ groups
23. It has been a constant practice that the Employer and Worker Vice-
Chairpersons of the Governing Body chair their respective groups. Each
group may also designate other spokespersons for various sections and
segments of the Governing Body. The group secretaries are designated by
the groups and traditionally provided by the International Organisation of
Employers (IOE) for the Employers and the International Trade Union
Confederation (ITUC) for the Workers. These nominations are to be
communicated to the Chairperson of the Governing Body at the beginning
of each new period of office of the Governing Body, or at the occasion of any
change during that period.
Report of the Chairperson of the Governing Body
to the Conference
24. The Chairperson of the Governing Body, after consulting the Vice-
Chairpersons, reports directly to the Conference on the work of the
Governing Body over the previous year.
Procedure and functioning of Governing Body sessions
Frequency and timing of sessions
25. Since 1995 the Governing Body’s work has been distributed
between a full session in November and another in March, as well as a halfday
session in June immediately after the Conference.
26. From November 2011, the Governing Body holds its sessions in
continuous plenary, with the exception notably of the Committee on
Freedom of Association and certain working parties. This functioning avoids
having more than one meeting at any time, meetings of other bodies
excepted, in order to allow the participation of Governing Body members in
all discussions.
27. The length of sessions is determined by its agenda. The plan of
work of the March and November sessions provides for group meetings
before and during the proceedings of the Governing Body.
Document No. 51
ILO, Explanatory note on the role of international
employers’ and workers’ organizations enjoying general
consultative status at the ILO, 17 April 2023

1
E X P L A N A T O R Y N O T E
Role of international employers’ and workers’ organizations enjoying
general consultative status at the ILO
Introduction
1. By reason of the tripartite structure of the International Labour Organization (ILO),
representatives of employers and workers are integrated into its governance organs, i.e.
the International Labour Conference and the Governing Body, alongside representatives
of governments. International organizations of employers and workers are not members
as such of the governance organs, but they do enjoy close institutional relationship with
the ILO.
2. By granting “general consultative status” to a non-governmental international
organization, the ILO recognizes that collaboration with the organization concerned has
special institutional significance.1 There are currently six organizations that enjoy general
consultative status:
- International Organisation of Employers (IOE)
- International Trade Union Confederation (ITUC)
- World Federation of Trade Unions (WFTU)
- International Cooperative Alliance (ICA)
- Organization of African Trade Union Unity (OATUU)
- Business Africa2
3. In addition to their consultative status, two of these organizations -- the IOE and ITUC --
act as the secretariats of the Employers’ and the Workers’ representatives sitting in the
ILO governance organs.
General consultative status with the ILO
4. As early as 1920, arrangements were put in place by the ILO to promote interaction with
international organizations of employers and workers and facilitate those organizations
1 In the ILO, a distinction is made between the following categories of international non-governmental
organizations:
(a) organizations enjoying general consultative status, established by the Governing Body in 1948;
(b) organizations enjoying regional consultative status established by the Governing Body in 1964;
(c) INGOs included in the “Special List” of INGOs established by the Governing Body in 1956;
(d) other organizations.
2 Only three other organizations have enjoyed general consultative status in the past: the International
Confederation of Free Trade Unions (ICFTU), the World Confederation of Labour (WCL), and the International
Federation of Agricultural Producers (IFAP) which was dissolved in 2010. The ICFTU and the WCL merged in
2006 to become the ITUC.
2
when following the work of the Organization.3 This practice was codified in 1946 in article
12(3) of the ILO Constitution, which was inspired by Article 71 of the UN Charter and reads
as follows: “The International Labour Organization may make suitable arrangements for such
consultation as it may think desirable with recognized non-governmental international
organizations, including international organizations of employers, workers, agriculturists and
cooperators.”
5. The “suitable arrangements” referred to in this provision were established through
several decisions of the Governing Body. The general consultative status was the first
such arrangement adopted by the Governing Body at its 105th Session (June 1948) in the
form of a resolution. This resolution continues to embody the rules applicable to nongovernmental
international organizations enjoying that status.4 To give effect to the
resolution, the Governing Body adopted amendments to its Standing Orders and
proposed amendments to the Standing Orders of the Conference.5
6. Over the years, the ILO has reviewed the scope of collaboration and nature of facilities
afforded to international non-governmental organizations. Yet, to date, the general
consultative status represents the most advantageous collaborative framework an
international employers’ or workers’ organization can benefit from at the ILO.
7. General consultative status is granted to non-governmental international organizations
“with an important interest in a wide range of ILO activities”. Its purpose is to facilitate
“the reference to the [ILO] by non-governmental organizations of proposals which such
organizations may desire to make for official international action upon matters primarily
within the competence of the [ILO]”.6
8. The main facility afforded to these organisations is the possibility to be represented in a
wide range of ILO meetings, most notably the meetings of the Conference and the
Governing Body, without the need for a specific invitation. As regards the Conference,
these organizations are entitled to accredit an unlimited number of representatives and
are thereby enabled to participate in work of the various committees of the Conference
3 The practice was recalled by the ILO Director-General when the question of the relations with the World
Federation of Trade Unions was examined by the Governing Body at its 103rd Session (December 1947); see
minutes of the Governing Body of the 103rd Session, p. 48. Based on this well-established practice,
international employers’ and workers’ organizations were invited by the Permanent Court of International
Justice to furnish information in the six advisory proceedings brought before the Court between 1922 and
1932 concerning the interpretation of the ILO Constitution and one international labour Convention.
4 Compendium of rules applicable to the Governing Body of the International Labour Office, Annex V
Representation of non-governmental international organizations at ILO meetings, including international
employers’ and workers’ organizations, Rules applicable to non-governmental international organizations
enjoying general consultative status, Resolution adopted by the Governing Body at its 105th Session (14 June
1948).
5 Minutes of the 105th Governing Body Session (June 1948), p. 34-42, p. 92-93. The applicable provisions are
articles 2.2 (j), 14 (9) and 36 (6) of the Standing Orders of the Conference as well as article 1.10 of the Standing
Orders of the Governing Body.
6 Resolution adopted by the Governing Body at its 105th Session (14 June 1948).
3
(with exception of administrative or financial matters or meetings of the Credentials
Committee and the Drafting Committee). They can decide the committees in which they
wish to participate without requesting specific authorization from the Conference. This
includes the Conference committees negotiating draft international labour standards and
the standing Conference Committee on the Application of Standards responsible for
examining the application of standards by Member States. Representatives of these
organizations may also make or circulate statements if they are so authorized by the
Officers of the Committees or the Conference.
9. In practice, the six non-governmental international organizations mentioned above are
represented at each session of the annual Conference. The participation in the Governing
Body is more variable – with the exception of the IOE and the ITUC which take part as the
secretariats of the Employers’ and the Workers’ groups respectively. Outside the meetings
of the ILO governance organs, these non-governmental international organizations play
an important role in the functioning of the ILO supervisory procedures as they may
submit observations on the application of ratified Conventions by Member States, which
are then examined by the ILO Committee of Experts on the Application of Conventions
and Recommendations. Moreover, these organizations may file representations under
article 24 of the Constitution against a Member State for allegedly failing to secure the
observance of a Convention to which it is party, and they can also submit complaints
under the special procedures for the examination of complaints alleging violations of
freedom of association.
Secretariats of the Employers’ and Workers’ groups
10. Consistent with the tripartite setup of the Organization, ILO constituents representing
governments, employers and workers organize themselves through autonomous
groups. The “principle of the autonomy” of these three constituent groups is well
established under ILO constitutional theory and practice. It is guaranteed by the
Constitution as regards the International Labour Conference.7 It constitutes an
institutional assurance that the ILO tripartite constituents enjoy wide discretion with
regard to organizing, coordinating and representing themselves within the executive or
deliberative organs of the Organization, subject to the provisions of the Constitution and
the applicable standing orders. 8
11. The effective exercise of the duties and responsibilities of the Employers’ and Workers’
representatives is very much dependent on the support and coordination provided by the
respective secretariats. Employers’ and Workers’ representatives also need a permanent
7 Article 4(1) of the Constitution provides that every delegate in a tripartite delegation of a Member State
“shall be entitled to vote individually on all matters which are taken into consideration by the Conference”.
8 The principle is spelled out in the Standing Orders of the International Labour Conference (article 5,
paragraph 1), the Standing Orders of the Governing Body (article 7.1), the Rules for Regional Meetings
(article 14) as well as in rules applicable to other ILO meetings or bodies. It has also been codified in an
instrument of amendment to the Constitution, which was adopted in 1986 but has not yet entered into force.
4
structure to support them in the preparation of ILO-related work and to represent their
interests within the Office on a continuous basis –- similar to the representation of
governments ensured through each country’s permanent mission. Further, the
secretariats of the Employers’ and the Workers’ groups exercise political functions and
may have recourse to the technical support of the competent services of the International
Labour Office.
12. Each group elects its secretary for the meetings of the Conference and the meetings of
the Governing Body. The election of a secretary by the Employers’ and the Workers’
groups at the Conference has been provided for by the Standing Orders of the
Conference since 1927. The members of the secretariat of the Employers’ and the
Workers’ groups are officially listed as participants to the Conference.9 The Standing
Orders for technical meetings and meetings of experts provide that the members of the
secretariats of the two groups may attend these meetings, including those of any
subsidiary body, and intervene in the debates.10
13. Although the two non-governmental groups are free to appoint the secretaries of their
choice, the secretariats of the Employers’ and Workers’ groups have traditionally been
provided by the IOE and the ITUC respectively.11 This practice is reflected in the
introductory note of the Standing Orders of the Governing Body12 and the introductory
note of the Standing Orders for technical meetings and meetings of experts.13
14. The fact that the IOE and the ITUC traditionally provide those important services to the
Employers’ and the Workers’ groups defines the special relationship they entertain with
the ILO. More concretely, due to their responsibilities as secretaries of the two groups,
the IOE and the ITUC play a key role in facilitating tripartite dialogue within the
Organization, for instance through participating in the tripartite screening group
responsible for fixing the agenda of Governing Body sessions,14 discussing with the Office
the composition and other organizational matters of tripartite meetings, being directly
involved in informal consultations on a wide range of issues and receiving multiple Office
communications for transmission to the respective groups. They play a major role in the
work of the ILO supervisory bodies with a tripartite composition, such as the Conference
Committee on the Application of Standards, the Governing Body Committee on Freedom
of Association or tripartite committees appointed by the Governing Body to review
representations submitted under article 24 of the Constitution. They ensure the
continuity of the groups’ positions within the Organization, during and outside of the
sessions of the Conference and the Governing Body.
9 The relevant provisions are articles 2 (2)(m) and 5 of the Standing Orders of the Conference.
10 Articles 9 (7) and 13(2) of the Standing Orders for technical meetings and article 9(6) of the Standing
Orders for meetings of experts.
11 Before the creation of ITUC in 2006, it was the ICFTU that acted as secretariat of the Workers’ group.
12 Paragraph 23 of the introductory note.
13 Section 4 of the introductory note.
14 Paragraph 3.1.1 of the Standing Orders of the Governing Body.
5
15. In August 2019, in recognition of the institutional role and international stature of the IOE
and the ITUC, the Governments of France, Germany and Türkiye requested that these two
organizations be granted observer status at the UN General Assembly. The request
included a letter of support from the ILO Director-General underlining the international
scope of action of both organizations, their active role in the multilateral system in
general and the United Nations system in particular.15
Conclusion
16. Since its early days, the ILO has attached great importance to working with nongovernmental
international organizations of recognized standing on matters of mutual
interest. The six organizations enjoying general consultative status exemplify the degree
of involvement and institutional role that employers’ and workers’ organizations can play
in ILO activities. More particularly, the IOE and ITUC by acting as secretariats of the
Employers’ and Workers’ groups, stand as the main institutional interlocutors
representing ILO’s non-governmental constituents.
17 April 2023
15A/74/291 (IOE) A/74/292 (ITUC). The request followed a discussion at the 335th Session (March 2019) of the
Governing Body during which the Governing Body “welcomed the objective of the International Trade Union
Confederation (ITUC) and the International Organisation of Employers (IOE) to be granted observer status
in the United Nations General Assembly”. The decision of the General Assembly has been deferred to its 78th
Session (2023).
6
Appendix
Summary information on the six NGOs with ILO general consultative status
1. International Organisation of Employers (IOE)
The IOE had its general consultative status recognized at the 118th session (March 1952) of the
Governing Body.16 Based in Geneva, Switzerland, the IOE was established in March 1920. It is
composed of more than 150 employer and business organizations in more than 140 countries,
representing a total of more than 50 million companies. Its stated vision is “to create a sustainable
economic environment worldwide, promoting free enterprise that is fair and beneficial to both
business and society”.17 The IOE’s statutory objectives are, in particular, “to provide an
international forum to bring together, represent and promote the interests of national business
and employers’ organisations and their members throughout the world” and “to coordinate the
interests of business and employers at the international level, particularly within the ILO and
other international institutions”.18 Its governance structure comprises the General Council, the
Management Board and a Secretariat. The IOE received general consultative status with the
ECOSOC in 1947.
The IOE Statutes include several references to the ILO; for instance, the Management Board
includes a Vice-President for the ILO which is elected amongst the titular Employer members of
the ILO Governing Body. This Vice-President is also nominated the Employers’ group
Spokesperson in the Governing Body. The Statutes also specify that the Secretary-General of the
IOE provides the Secretariat of the Employers’ Group at the ILO.
2. International Trade Union Confederation (ITUC)
The ITUC had its general consultative status recognized at the 297th session (November 2006) of
the Governing Body.19 Based in Brussels, Belgium, the ITUC was formed on 1 November 2006 out
of the merger of the International Confederation of Free Trade Unions (ICFTU) and the World
Confederation of Labour (WCL).20 The ITUC has 338 national affiliates and represents
approximately 200 million workers in 168 countries and territories. Its stated mission is “the
promotion and defence of workers’ rights and interests, through international cooperation
between trade unions, global campaigning and advocacy within the major global institutions.” Its
main areas of activity include “trade union and human rights; economy, society and the
workplace; equality and non-discrimination; and international solidarity”. The ITUC is governed
16 Governing Body, minutes, 118th session (March 1952), p. 48, and Appendix XX.
17 See document “IOE in brief” (April 2023), available at https://www.ioe-emp.org/about-us.
18 IOE Statutes, article 2, available at https://www.ioe-emp.org/about-us/our-governance.
19 Governing Body, minutes, 297th session (November 2006), paras 276-280, and GB.297/19/7.
20 The general consultative status of the ICFTU had been recognized by the Governing Body at its 111th
session (March 1950) (minutes, p. 76-78 and Appendix XXV), whereas that of the WCL, known at the time as
the International Confederation of Christian Trade Unions, had been recognized by the Governing Body at
its 105th session (June 1948) (minutes, p. 43-47).
7
by a World Congress, a General Council and an Executive Bureau.21 The ITUC received general
consultative status with the ECOSOC in 2007.22
One of the ITUC’s aims, as set out in its Constitution, is to “work to strengthen the role of the ILO,
and for the setting and universal application of international labour standards, and to win
representation at other international and regional organisations with a view to having their
policies and activities contribute coherently to the achievement of decent work, social justice and
sustainable development”.23
3. World Federation of Trade Unions (WFTU)
The WFTU was granted general consultative status by the Governing Body at its 103rd Session
(December 1947).24 Based in Athens, Greece, the WFTU was established on 3 October 1945.25 Its
membership is open to trade union organizations. Currently, it represents 105 million members
from 133 countries.26 According to its Constitution, the WFTU is a “class-oriented international
trade union organisation” that “has as its prime objective the emancipation of the working people
by means of struggle”.27 It is composed of the World Trade Union Congress, a General Council, a
Presidential Council and a Secretariat and further organizes itself on the basis of affiliated
National Centres (grouped under Regional Offices in each region or continent) and industrial
branch organisations named Trade Union Internationals. WFTU received general consultative
status with ECOSOC in 1946.28
4. International Cooperative Alliance (ICA)
The ICA’s general consultative status at the ILO was recognized by the Governing Body at its 107th
session (December 1948).29 Based in Brussels, Belgium, the ICA was established on 19 August
1895.30 Its membership comprises more than 310 organisations from 107 countries.31 According
to its Articles of Association, the ICA, a “global networking organisation, organised at global,
regional, sectoral and thematic levels”, is “a worldwide representative of co-operative
organisations of all kinds” aiming at “serving as a forum for exchange of experience and as a
source of information on co-operative development, research and statistics”, “co-ordinating
actions for the promotion of co-operative development”, and “collaborating with global and
regional institutions including the United Nations organisations, and with any other government
and non-governmental international and national organisations which pursue aims of
21 https://www.ituc-csi.org/about-us
22 https://esango.un.org/civilsociety/consultativeStatusSummary.do?profileCode=3119
23 ITUC Constitution, available at https://www.ituc-csi.org/ituc-constitution-en.
24 Governing Body, minutes, 103rd Session (December 1947), pp. 47-54, and Appendix XX, p. 239.
25 https://www.wftucentral.org/history/
26 https://www.wftucentral.org/the-wftu-general-secretary-addressed-the-17th-congress-of-citu/
27 WFTU Constitution, available at https://www.wftucentral.org/constitution/.
28 https://esango.un.org/civilsociety/consultativeStatusSummary.do?profileCode=462
29 Governing Body, minutes, 107th session (December 1948), p. 100-101, and Appendix XX, p. 210.
30 https://www.ica.coop/en/cooperatives/history-cooperative-movement
31 https://www.ica.coop/en/about-us/our-members/global-cooperative-network
8
importance to co-operatives”.32 The ICA consists of a governing Board, a General Assembly, four
Regions, and eight Sectoral Organisations, in addition to several thematic committees and
networks.33 ICA received general consultative status with the ECOSOC in 1946.34
5. Organization of African Trade Union Unity (OATUU)
The OATUU was granted general consultative status by the Governing Body at its 212th session
(March 1980).35 Based in Accra, Ghana, the OATUU was established in April 1973.36 It has 61
affiliated organizations in Africa covering approximately 25 million individuals. Its stated mission
is “to strengthen the capacity of trade unions in Africa and coordinate affiliates’ activities to
achieve unity and solidarity among African workers at the national, sub-regional and continental
levels for the defense, protection and promotion of the rights and interests of workers and
African citizens at large”.37 It is governed by a Congress, an Executive Committee and a
Secretariat.
6. Business Africa
Business Africa (formerly known as the Pan-African Employers’ Confederation) was granted
general consultative status by the Governing Body at its 235th session (March 1987).38 Based in
Nairobi, Kenya, Business Africa was established on 12 October 1986. It is composed of employers’
organizations from more than 45 African countries. Business Africa “works in the areas of labour,
employment and social affairs and within the context of international organizations” such as the
ILO. Part of its mission is to “seek to influence policy at continental level by enhancing business
voice in continental and international bodies”, “build on relations developed within the United
Nations system”, “pursue its relations with European and American business groups [and] build
partnerships with business federations from emerging economies” and “seek to strengthen
regional integration to boost intra-African trade”. Business Africa’s structure comprises a General
Assembly, an Executive Council and a Secretariat.39
32 ICA Articles of Association, article 4, available at https://www.ica.coop/en/about-us/our-structure/alliancerules-
and-laws.
33 https://www.ica.coop/en/about-us/our-structure/alliance-organigram
34 https://esango.un.org/civilsociety/consultativeStatusSummary.do?profileCode=579
35 Governing Body, minutes, 212nd Session (March 1980), p. VIII/17, and GB.212/18/34.
36 https://www.oatuuousa.org/about-us/
37 https://www.oatuuousa.org/
38 Governing Body, minutes, 235th session (March 1987), p. IX/11, GB.235/17/19 and GB.319/INS/INF/3.
39 https://businessafrica-emp.org/en-US/About-Us/About-BUSINESSAfrica
Document No. 52
IOE, Statutes, articles 2, 6–8

International Organisation of Employers  Organisation Internationale des Employeurs  Organización Internacional de Empleadores
IOE Statutes
Adopted by the IOE General Council on 29 May 2022
1
Article 1 Constitution
1. An international organisation established in 1920
composed of the central business and employers'
organisations which in the national sphere deal with
the issues compatible with those set out in Article 2
below is hereby constituted under the name
"International Organisation of Employers" (the “IOE”
or the “Organisation”).
2. The IOE is organised corporately in the form of a
Swiss not-for-profit association in accordance with
Articles 60 et seq. of the Swiss Civil Code and the
present Statutes.
3. The headquarters of the IOE are in the Canton of
Geneva, Switzerland.
Article 2 Objectives
The objectives of the IOE are:
a) to promote the economic, employment and social
policy environment necessary to sustain and develop
free enterprise and the market economy;
b) to provide an international forum to bring together,
represent and promote the interests of national
business and employers’ organisations and their
members throughout the world in all employment
and socio-economic policy issues;
c) to assist, advise, represent and provide relevant
services and information to the members of the IOE
(“the Members”), to establish and maintain
permanent contact among them and to coordinate
the interests of business and employers at the
international level, particularly within the
International Labour Organization (the “ILO”) and
other international institutions;
d) to promote and support the advancement and
strengthening of independent and autonomous
business and employers’ organisations and to
enhance their capabilities and services to Members;
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stipulated in the Statutes. In the event of deadlock,
the President shall have the casting vote.
9. The General Council may only pass resolutions on
items that have been brought to the agenda. The
manner in which votes are taken at the assembly (e.g.
secret or open vote) shall be determined by the
President.
10. Minutes of the meetings shall be drawn up by the
Secretary-General and submitted to the next session
of the General Council for approval.
Article 6 Management Board
1. The Management Board shall be composed of:
a) a President, who will assume the presidency of the
Management Board;
b) five Regional Vice-Presidents, elected by the
General Council on the proposal of each of the five
regions. They will serve for a mandate of three
years, with the possibility of re-election, or for a
shorter mandate if completing the mandate of an
incumbent who has stepped down. They will
advise the President and co-ordinate the activities
of their respective regions;
c) A Vice-President for the ILO, elected by the General
Council amongst the titular Employers members
of the ILO Governing Body and who is also to be
nominated by the Employers’ Group to become
the Employers’ Spokesperson in the ILO for a
mandate of three years with the possibility of reelection;
d) a Treasurer;
e) the representative of each of the Members in
subscription-table categories 1-5 unless elected in
one of the capacities listed in (b) or (c) above;
f) the representative of eight other Members elected
by the General Council for a mandate of three
years, with the possibility of re-election (two for
Africa, two for the Americas, two for Asia, two for
Europe);
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g) up to three representatives from Members coopted
by the Management Board for a fixed period
on the proposal of the President after consultation
with the Regional Vice-Presidents and the
Secretary-General. Such Members may be coopted
for one or more periods.
2. The Management Board shall:
a) ensure that the objectives of the IOE and the
decisions of the General Council are implemented
and the activities necessary to the proper
functioning of the IOE are undertaken;
b) in between meetings of the General Council,
elaborate policy positions and formulate
appropriate strategies;
c) prepare the decisions to be taken by the General
Council concerning admission to and withdrawal
of membership;
d) prepare the decisions to be taken by the General
Council concerning financial and budgetary
matters, on the basis of proposals from the
Treasurer;
e) take decisions on the proposals made by the
Secretary-General concerning the functioning and
organisation of the Secretariat;
f) draw up an annual programme of action for
submission to the General Council;
g) draw up an annual report on IOE activities for
submission to the General Council.
3. In performing any of the responsibilities contained in
Article 6.2, the Management Board may be assisted
by Committees, consisting of Management Board
members, operating within terms of reference
decided by the Management Board.
4. The Management Board shall adopt its own rules.
Article 7 President
1. The IOE President (the “President”) shall be elected for
a period of three years by the General Council on the
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proposal of the Management Board, with the
possibility of re-election.
2. The President shall represent the IOE at the highest
level and shall preside over the General Council and
the Management Board. In the President’s absence,
these functions will be carried out by one of the
Regional Vice-Presidents.
3. To the extent possible, the President will be elected
giving due consideration to rotation among the
geographical regions.
4. The President shall be the IOE’s main spokesperson
outside the ILO and assume responsibility for
implementing policy in conformity with the
directions fixed by the General Council and the
Management Board.
Article 8 Secretary-General
1. The Management Board shall appoint a Secretary-
General, who shall not be a member of the said
Board. The position of Secretary-General shall be one
of paid full-time employment.
2. The Secretary-General shall be responsible to the
General Council and the Management Board and
must enjoy their confidence, failing which the
Management Board shall have the authority to
dismiss the Secretary-General according to its Rules
of Procedure and in accordance with Swiss law.
3. The duties of the Secretary-General shall include:
a) the management of the Secretariat;
b) the appointment of staff and the organisation of
their responsibilities;
c) the financial management of the IOE, under the
supervision of the Treasurer;
d) the preparation of policy position papers;
e) the permanent liaison and communication with
Members;
f) carrying out technical cooperation programmes
for business and employers' organisations;
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g) under the supervision of the Spokesperson of the
ILO Employers’ Group providing, together with his
staff, the Secretariat of the Employers’ Group at
the ILO;
h) maintaining permanent contacts with ILO
management and officials at all levels;
i) maintaining frequent contacts with public
organisations and enhancing the image of the IOE
to interest groups and the public in general.
Article 9 Auditors
1. The Management Board shall appoint an external
Auditor for one year and the Auditor may be
reappointed. The Auditor shall be independent from
the Organisation, and more particularly from the
Management Board. The Auditor proceeds to an audit
of the accounts of the IOE and submits a yearly
financial report to the General Council.
Article 10 Authorised Signatories
1. Any two of the joint signatures of the President, the
Treasurer and the Secretary-General shall be
authorised for the purposes of official and legal
documents.
2. Within the strict framework of daily management in
the ordinary course of business, the IOE shall be
validly represented vis-à-vis third parties by the
Secretary-General.
Article 11 Finances
1. The Treasurer shall be elected for a period of three
years by the General Council on the proposal of the
Management Board. The Treasurer must enjoy the
confidence of the Council and the Board throughout
their mandate.
2. The IOE's resources shall be composed of
subscriptions from the Members, investment income,
donations, legacies and other payments. The table of
Document No. 53
ITUC, Constitution, Aims

9
INTERNATIONAL TRADE UNION
CONFEDERATION
CONSTITUTION
DECLARATION OF PRINCIPLES
The International Trade Union Confederation (ITUC) salutes the sacrifice and
conquests of generations of working women and men who through their
trade union struggle have fought for the cause of social justice, freedom,
democracy, peace and equality. It pledges to carry forward their struggle for
the emancipation of working people and a world in which the dignity and
rights of all human beings are assured, and each is able to pursue their wellbeing
and to realise their potential at work and in society.
The Confederation recognises the urgent need to transform social, economic
and political structures and relations which stand as obstacles to that vision.
It assumes the task of combating poverty, hunger, exploitation, oppression,
and inequality through the international action required by the conditions of
the globalised economy, and for its democratic governance in the interests of
labour, which it holds superior to those of capital.
The Confederation exists to unite and mobilise the democratic and
independent forces of world trade unionism in giving effective representation
to working people, wherever they work and in whatever conditions. It is
committed to provide practical solidarity to all in need of it, and to confront
the global strategies of capital with global strategies of labour.
The Confederation considers universal respect of the rights of workers, and
access to decent work as indispensable to just and sustainable development.
Their denial anywhere constitutes an immediate threat to human security
everywhere.
The Confederation commits itself to promote and to act for the protection
of democracy everywhere, so that the conditions for the full exercise of all
human rights, universal, indivisible and inalienable, may be enjoyed by all. It
shall defend everywhere collective rights and individual liberties, including
freedom of thought, expression and assembly.
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The Confederation further commits itself to securing comprehensive and
equitable economic and social development for workers everywhere, in
particular where poverty and exploitation are greatest.
The Confederation condemns all forms of discrimination as an affront to
human dignity and to the equality into which each person is born and has the
right to live, and pledges to uphold respect for diversity at work and in society.
The Confederation upholds fervently the maintenance and strengthening of
peace and commits itself to a world free of weapons of mass destruction
and to general disarmament. It proclaims the right of all peoples to selfdetermination
and to live free from aggression and totalitarianism under
a government of their own choosing. It rejects recourse to war to resolve
conflict, and condemns terrorism, colonialism and militarism, as well as racism
and sexism.
The Confederation expresses unwavering support for the principles and role
of the United Nations, and for its unique legitimacy and authority to stand as
an effective guarantee of peace, security and development, commanding the
respect and adherence of all in the international community.
Unitary and pluralist, the Confederation is open to affiliation by democratic,
independent, and representative trade union centres, respecting their
autonomy and the diversity of their sources of inspiration, and their
organisational forms. Its rules are to guarantee internal democracy, full
participation of affiliates, and that the composition of the Confederation’s
governing bodies and its representation respect its pluralist character.
The Confederation’s decisions are taken, and its activities implemented, in
full independence of all external influence, be they state, political, employer,
religious, economic, or other.
AIMS
The Confederation is inspired by the profound conviction that organisation
in democratic and independent trade unions and collective bargaining are
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crucial to achieving the well-being of working people and their families and to
security, social progress and sustainable development for all.
It has been the historic role of trade unionism, and remains its mission,
to better the conditions of work and life of working women and men and
their families, and to strive for human rights, social justice, gender equality,
peace, freedom and democracy. More than ever in its history, confronted by
unbridled capitalist globalisation, effective internationalism is essential to the
future strength of trade unionism and its capacity to realise that mission.
The Confederation calls on the workers of the world to unite in its ranks, to
make of it the instrument needed to call forth a better future for them and for
all humanity.
It shall be the permanent responsibility of the Confederation:
To defend and promote the rights and interests of all working people, without
distinction, and to obtain, in particular, a fair return for their labour in conditions
of dignity, justice, and safety at work and in society in general.
• It shall strive for the universal respect of fundamental rights at work,
until child labour and forced labour in all their forms are abolished,
discrimination at work eliminated and the trade union rights of all
workers observed fully and everywhere.
• It shall denounce violations of freedom of association, of the right
to strike including cross-border action, and of the right to collective
bargaining, and shall mobilise international solidarity to have them
brought to an end.
• It shall fight for the right to freely chosen, productive employment and
social security for all.
• It shall act to end all discrimination on the basis of sex, religion, colour,
nationality, ethnicity, sexual orientation, gender identity, political
opinion, social origin, age or disability, and to uphold respect for
diversity in society and employment.
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To promote the growth and strength of the independent and democratic trade
union movement.
• It shall render practical support to strengthen the capacities and
membership of national trade union movements, through the
coordinated provision of international development assistance.
• It shall initiate and support action to increase the representativeness
of trade unions through the recruitment of women and men working
in the informal as well as the formal economy, through extension of full
rights and protection to those performing precarious and unprotected
work, and through lending assistance to organising strategies and
campaigns.
To be a countervailing force in the global economy, committed to securing
a fair distribution of wealth and income within and between countries,
protection of the environment, universal access to public goods and
services, comprehensive social protection, life-long learning and decent work
opportunities for all.
• It shall work to strengthen the role of the ILO, and for the setting and
universal application of international labour standards, and to win
representation at other international and regional organisations with
a view to having their policies and activities contribute coherently
to the achievement of decent work, social justice and sustainable
development.
• In cooperation with the Global Union Federations and TUAC, it shall
promote and support the coordination of international trade union
policies and activities on multinational enterprises and social dialogue
with international employer organisations.
To make the trade union movement inclusive, and responsive to the views
and needs of all sectors of the global workforce.
• It shall advance women’s rights and gender equality, guarantee the
full integration of women in trade unions and promote actively full
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gender parity in their leadership bodies and in their activities at all
levels.
• It shall combat racism, xenophobia and exclusion and defend the
rights and interests of migrant workers and their families and work for
tolerance, equality and dialogue between different cultures.
• It shall ensure the full integration of young people in the trade union
movement and act to support the access of young people to adequate
education and training and to decent work, and to oppose precarity in
working life.
• It shall strengthen solidarity between generations and support the
rights of retired workers to decent incomes, and work to advance
their interests.
• It shall defend and promote the rights of working women and men
with disabilities.
To mobilise the strength, energy, resources, commitment, and talent of its
affiliates and their members in the achievement of these goals, making trade
union internationalism an integral part of their daily work.
• It shall promote and organise campaigns, solidarity activities, days of
action, and other mobilisations considered necessary to this end and
gather and disseminate information required to ensure the timely and
effective provision of global solidarity.
• It shall seek to establish arrangements for optimal cooperation with
other trade union organisations sharing its aims in order to maximise
the coherence and impact of action at the different levels of the
democratic and independent international trade union movement.
• It shall develop links and cooperation with other civil society
organisations and political groupings, without compromising trade
union independence, in pursuit of the objectives of the Confederation.
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The Confederation, with the highest standards of democratic governance,
transparency and accountability historically embedded in the organisation,
pledges to pursue these goals with determination, and in accordance with
the enduring trade union values of solidarity, democracy and justice. It will not
desist from their achievement nor be deterred by the enemies of progress,
sure in the conviction that it lies in the hands of working people to determine
their own future.
MEMBERSHIP
Article I: Affiliation
(a) All democratic, independent and representative national trade union
centres adhering to the Constitution of the Confederation shall be
eligible for membership.
(b) The General Council shall have the power to decide on applications
for affiliation. It may admit organisations into membership where
it is satisfied that the applicant meets, both in its principles and its
practices, the criteria established in Article I (a), and that its affiliation
is desirable and in the interests of the Confederation.
(c) The General Council shall, on the basis of affiliation procedures laid
down by the General Council, decide on applications for affiliation by
a majority of three-quarters of its members and report its decisions to
the Congress for ratification.
Article II: Rights and Responsibilities
(a) Member organisations shall have equal rights and responsibilities.
Each has the right to be regularly informed of, and to participate in the
life and the activities of the Confederation in line with the provisions
of this Constitution and to receive the solidarity and assistance of the
Confederation in case of need.
Document No. 54
Constitution of the ILO, articles 19–21

r Constitution
of the International
Labour Organization
International Labour Office, Geneva, 2021

18
Article 19
Conventions and Recommendations
1. When the Conference has decided on the adoption of proposals
with regard to an item on the agenda, it will rest with the Conference to
determine whether these proposals should take the form:
(a) of an international Convention, or
(b) of a Recommendation to meet circumstances where the subject, or
aspect of it, dealt with is not considered suitable or appropriate at that
time for a Convention.
2. In either case a majority of two thirds of the votes cast by the
delegates present shall be necessary on the final vote for the adoption of the
Convention or Recommendation, as the case may be, by the Conference.
3. In framing any Convention or Recommendation of general
application the Conference shall have due regard to those countries in which
climatic conditions, the imperFect development ofindustrial organization, or
other special circumstances make the industrial conditions substantially
different and shall suggest the modifications, if any, which it considers may
be required to meet the case of such countries.
4. Two copies of the Convention or Recommendation shall be
authenticated by the signatures of the President of the Conference and of
the Director-General. Of these copies one shall be deposited in the archives
of the International Labour Office and the other with the Secretary-General
of the United Nations. The Director-General will communicate a certified copy
of the Convention or Recommendation to each of the Members.
5. In the case of a Convention:
(a) the Convention will be communicated to all Members for ratification;
(b) each of the Members undertakes that it will, within the period of one
year at most from the closing of the session of the Conference, or if it is
impossible owing to exceptional circumstances to do so within the
period of one year, then at the earliest practicable moment and in no
case later than 18 months from the closing of the session of the
Conference, bring the Convention before the authority or authorities
within whose competence the matter lies, for the enactment of
legislation or other action;
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(c) Members shall inform the Director-General of the International Labour
Office ofthe measures taken in accordance with this article to bring the
Convention before the said competent authority or authorities, with
particulars of the authority or authorities regarded as competent, and
of the action taken by them;
(d) if the Member obtains the consent of the authority or authorities within
whose competence the matter lies, it will communicate the formal
ratification of the Convention to the Director-General and will take such
action as may be necessary to make effective the provisions of such
Convention;
(e) if the Member does not obtain the consent of the authority or
authorities within whose competence the matter lies, no further
obligation shall rest upon the Member except that it shall report to the
Director-General of the International Labour Office, at appropriate
intervals as requested by the Governing Body, the position of its law and
practice in regard to the matters dealt with in the Convention, showing
the extent to which effect has been given, or is proposed to be given, to
any of the provisions of the Convention by legislation, administrative
action, collective agreement or otherwise and stating the difficulties
which prevent or delay the ratification of such Convention.
6. In the case of a Recommendation:
(a) the Recommendation will be communicated to all Members for their
consideration with a view to effect being given to it by national
legislation or otherwise;
(b) each of the Members undertakes that it will, within a period of one year
at most from the closing of the session of the Conference or if it is
impossible owing to exceptional circumstances to do so within the
period of one year, then at the earliest practicable moment and in no
case later than 18 months after the closing of the Conference, bring the
Recommendation before the authority or authorities within whose
competence the matter lies for the enactment of legislation or other
action;
(c) the Members shall inform the Director-General of the International
Labour Office of the measures taken in accordance with this article to
bring the Recommendation before the said competent authority or
authorities with particulars of the authority or authorities regarded as
competent, and of the action taken by them; and
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(d) apart from bringing the Recommendation before the said competent
authority or authorities, no further obligation shall rest upon the
Members, except that they shall report to the Director-General of the
International Labour Office, at appropriate intervals as requested bythe
Governing Body, the position of the law and practice in their country in
regard to the matters dealt with in the Recommendation, showing the
extent to which effect has been given, or is proposed to be given, to the
provisions of the Recommendation and such modifications of these
provisions as it has been found or may be found necessary to make in
adopting or applying them.
7. In the case of a federal state, the following provisions shall apply:
(a) in respect of Conventions and Recommendations which the federal
government regards as appropriate under its constitutional system for
federal action, the obligations of the federal state shall be the same as
those of Members which are not federal states;
(b) in respect of Conventions and Recommendations which the federal
government regards as appropriate under its constitutional system, in
whole or in part, for action by the constituent states, provinces, or
cantons rather than for federal action, the federal government shall:
(i) make, in accordance with its Constitution and the Constitutions of
the states, provinces or cantons concerned, effective
arrangements for the reference of such Conventions and
Recommendations not later than 18 months from the closing of
the session of the Conference to the appropriate federal, state,
provincial or cantonal authorities for the enactment of legislation
or other action;
(ii) arrange, subject to the concurrence of the state, provincial or
cantonal governments concerned, for periodical consultations
between the federal and the state, provincial or cantonal
authorities with a view to promoting within the federal state
coordinated action to give effect to the provisions of such
Conventions and Recommendations;
(iii) inform the Director-General of the International Labour Office of
the measures taken in accordance with this article to bring such
Conventions and Recommendations before the appropriate
federal state, provincial or cantonal authorities with particulars of
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the authorities regarded as appropriate and of the action taken by
them;
(iv) in respect of each such Convention which it has not ratified, report
to the Director-General of the International Labour Office, at
appropriate intervals as requested by the Governing Body, the
position of the law and practice of the federation and its
constituent states, provinces or cantons in regard to the
Convention, showing the extent to which effect has been given, or
is proposed to be given, to any of the provisions of the Convention
by legislation, administrative action, collective agreement, or
otherwise;
(v) in respect of each such Recommendation, report to the Director-
General ofthe International Labour Office, at appropriate intervals
as requested by the Governing Body, the position of the law and
practice of the federation and its constituent states, provinces or
cantons in regard to the Recommendation, showing the extent to
which effect has been given, or is proposed to be given, to the
provisions of the Recommendation and such modifications of
these provisions as have been found or may be found necessary in
adopting or applying them.
8. In no case shall the adoption of any Convention or
Recommendation by the Conference, or the ratification of any Convention by
any Member, be deemed to affect any law, award, custom or agreement
which ensures more favourable conditions to the workers concerned than
those provided for in the Convention or Recommendation.
9. Acting on a proposal of the Governing Body, the Conference may,
by a majority of two thirds of the votes cast by the delegates present,
abrogate any Convention adopted in accordance with the provisions of this
article if it appears that the Convention has lost its purpose or that it no
longer makes a useful contribution to attaining the objectives of the
Organization.
Article 20
Registration with the United Nations
Any Convention so ratified shall be communicated by the Director-
General of the International Labour Office to the Secretary-General of the
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United Nations for registration in accordance with the provisions of
article 102 of the Charter of the United Nations but shall only be binding
upon the Members which ratify it.
Article 21
Conventions not adopted by the Conference
1. If any Convention coming before the Conference for final
consideration fails to secure the support of two thirds of the votes cast by the
delegates present, it shall nevertheless be within the right of any of the
Members of the Organization to agree to such Convention among
themselves.
2. Any Convention so agreed to shall be communicated by the
governments concerned to the Director-General of the International Labour
Office and to the Secretary-General of the United Nations for registration in
accordance with the provisions of article 102 of the Charter of the United
Nations.

Document No. 55
Standing Orders of the International Labour Conference,
articles 44–52

r Standing Orders
of the International
Labour Conference
International Labour Office, Geneva, 2021

32
Part 5. Procedure in relation to Conventions
and Recommendations
Article 44
Procedure for placing an item on the agenda of the Conference
The procedure to be followed by the Governing Body for placing an item on the
agenda of the Conference is governed by the Standing Orders of the Governing Body. "
Article 45
Preparatory stages of a single-discussion procedure
1. When a question is governed by the single-discussion procedure, the
Office shall prepare as soon as possible a summary report setting outthe law and
practice in the different countries and any other useful information, together
with a questionnaire drawn up with a view to the preparation of Conventions or
Recommendations. This questionnaire shall request governments to consult the
most representative organizations of employers and workers before finalizing
their replies and to give reasons for their replies. The Office shall communicate
the report and questionnaire to the governments so as to reach them not less
than 18 months before the opening of the session of the Conference at which
the question is to be discussed.
2. Therepliesshouldreachthe0fficeassoonaspossibleandnotlessthan
11 months before the opening of the session of the Conference at which the
question is to be discussed. In the case of federal States and countries where it
is necessary to translate questionnaires into the national language or languages,
the period of seven months allowed for the preparation of replies shall be
extended to eight months if the government concerned so requests.
3. On the basis of the replies received the Office shall prepare a final
report, which may contain one or more draft Conventions or Recommendations.
This report shall be communicated by the Office to the governments as soon as
possible and every effort shall be made to ensure that the report reaches them
not less than four months before the opening of the session of the Conference
at which the question is to be discussed.
" Editor's note: The relevant provisions are contained in articles 5.1 to 5.4 and 6.2 ofthe Standing
Orders of the Governing Body.
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4. These arrangements shall apply only in cases in which the question has
been included in the agenda of the Conference not less than 26 months before
the opening of the session of the Conference at which it is to be discussed. If the
question has been included in the agenda less than 26 months before the
opening of the session of the Conference at which it is to be discussed, a
programme of reduced intervals shall be approved by the Governing Body, or, if
not practicable, by the Officers of the Governing Body in consultation with the
Director-General.
5. If a question on the agenda has been considered at a preparatory
technical conference, the Governing Body shall decide whether the Office should
either:
(a) communicate to the governments a summary report and a questionnaire as
provided for in paragraph 1; or
(b) prepare the final report provided for in paragraph 3 directly on the basis of the
work of the preparatory technical conference.
Article 46
Preparatory stages of a double-discussion procedure
1. When a question is governed by the double-discussion procedure, the
Office shall prepare as soon as possible a preliminary report setting out the law
and practice in the different countries and any other useful information, together
with a questionnaire requesting the governments to consult the most
representative organizations of employers and workers before finalizing their
replies and to give reasons for their replies. The Office shall communicate the
report and questionnaire to the governments so as to reach them not less than
18 months before the opening of the session of the Conference at which the first
discussion is to take place.
2. TherepliesshouldreachtheOfficeassoonaspossibleandnotlessthan
11 months before the opening of the session of the Conference at which the first
discussion is to take place. In the case of federal States and countries where it is
necessary to translate questionnaires into the national language or languages,
the period of seven months allowed for the preparation of replies shall be
extended to eight months if the government concerned so requests.
3. On the basis of the replies received, the Office shall prepare a further
report indicating the main questions which require consideration by the
Conference. This report shall be communicated by the Office to the governments
as soon as possible and every effort shall be made to ensure that the report
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reaches them not less than four months before the opening of the session of the
Conference at which the first discussion is to take place.
4. These reports shall be submitted to a discussion by the Conference
either in plenary or in committee. If the Conference decides that the question is
suitable to form the subject of a Convention or Recommendation, it shall adopt
such conclusions as it considers appropriate after having referred them to the
Drafting Committee, and may either:
(a) decide that the question shall be included in the agenda of the following session in
accordance with article 16(3) of the Constitution; or
(b) ask the Governing Body to include the question in the agenda of a later session.
5. The arrangements referred to in paragraphs I to 4 shall apply only in
cases in which the question has been included in the agenda of the Conference
not less than 18 months before the opening of the session of the Conference at
which the first discussion is to take place. If the question has been included in
the agenda less than 18 months before the opening of the session of the
Conference at which the first discussion is to take place, a programme of reduced
intervals shall be approved by the Governing Body, or by the Officers of the
Governing Body in agreement with the Director-General if the approval of a
detailed programme by the Governing Body is not practicable.
6. On the basis of the replies received to the questionnaire referred to in
paragraph I and on the basis of the first discussion by the Conference, the Office
may prepare one or more draft Conventions or Recommendations and
communicate them to the governments so as to reach them not later than two
months from the closing of the session of the Conference, asking them to state
within three months, after consulting the most representative organizations of
employers and workers, whether they have any amendments to suggest or
comments to make.
7. On the basis of the replies received, the Office shall prepare a final
report containing the draft Conventions or Recommendations with any
necessary amendments. This report shall be communicated by the Office to the
governments so as to reach them not less than three months before the opening
ofthe session of the Conference at which the second discussion is to take place.8.
The arrangements referred to in paragraphs 6 and 7 shall apply only in
cases in which there is a period of 11 months between the closing of the session
of the Conference at which the first discussion took place and the opening of the
next session of the Conference. If the period between the two sessions of the
Conference is less than 11 months, a programme of reduced intervals shall be
approved by the Governing Body, or by the Officers of the Governing Body in
35
agreement with the Director-Generalif the approval of a detailed programme by
the Governing Body is not practicable.
Article 47
Consultation with the United Nations and specialized agencies
Where an item placed on the agenda of the Conference with a view to the
adoption of a Convention or a Recommendation relates to matters which are of
direct interest to the United Nations or one or more specialized agencies, the
Office shall consult with the organization or organizations concerned, at the
same time as it requests governments for their comments on the draft
Convention or Recommendation. The outcome of these consultations shall be
reflected in the report submitted to the Conference.
Article 48
Procedure for the consideration of draft instruments
1. Unless the Conference decides otherwise, it shall take as the basis of
discussion the draft Conventions or Recommendations prepared by the Office,
and referthem to a committee for report.
2. When the Conference has referred to a committee a draft
Recommendation only, a decision by the committee to propose a Convention to
the Conference for adoption (in place of or in addition to the Recommendation)
shall require a two-thirds majority ofthe votes cast.
3. IfthedraftConventionorRecommendationisreferredtoacommittee,
the provisions of the draft instrument as adopted by the committee shall be
referred to the Drafting Committee for the preparation of a final text. After the
final text of the Convention or Recommendation is approved by the committee,
or by its Officers under the delegated authority of the committee, it shall be
submitted to the Conference for adoption article by article.
4. No amendment shall be allowed to that text, except where the
President of the Conference, in agreement with the three Vice-Presidents,
decides to admit it.
5. After the adoption article by article of the text of the Convention or
Recommendation, the Conference shall proceed to take a final vote on the
adoption of the Convention or Recommendation in accordance with article 19 of
the Constitution.
36
6. The final vote shall not take place before the day following that on
which the text approved by the committee has been made available to delegates
and in no case less than 14 hours after the text has been made available.
Article 49
Procedure if a Convention fails to obtain a two-thirds majority
If a Convention fails to obtain the necessary two-thirds majority in a final
vote, but obtains a simple majority, the Conference shall decide immediately
whether the Convention shall be referred to the Drafting Committee to be
redrafted as a Recommendation. If the Conference approves the referral to the
Drafting Committee, the proposals contained in the Convention shall be
submitted for the approval of the Conference in the form of a Recommendation
before the end of the session.
Article 50
Official translations
After the adoption of the English, French and Spanish texts, official
translations of the Conventions and Recommendations may, at the request of
interested governments, be drawn up by the Director-General. The governments
concerned may consider such translations as authoritative in their respective
countries for the application of the Conventions and Recommendations.
Article 51
Procedure in the event of the revision of a Convention or Recommendation
1. When the revision in whole or in part of a Convention or
Recommendation which has been previously adopted by the Conference is
included in the agenda, the Office shall submit to the Conference draft
amendments drawn up in accordance with any conclusions of the report of the
Governing Body recommending the revision in whole or in part and
corresponding to the question or questions in respect of which a proposal for
revision has been placed on the agenda.
2. Unless the Conference decides otherwise, it shall take as the basis of
discussion the draft amendments prepared by the Office, and refer them to a
committee for report.
37
3. Ifthedraftamendmentsarereferredtoacommittee theamendments
together with consequential amendments of the unamended provisions of the
Convention or Recommendation under revision, as adopted by the committee,
shall be referred to the Drafting Committee, which shall combine with them the
unamendedprovisionsoftheConventionorRecommendationunderrevision so
as to establish the final text of the instrument in the revised form. After this text
is approved by the committee, or by its Officers under the delegated authority
of the committee, it shall be submitted to the Conference for adoption article by
article.
4. No amendment shall be allowed to that text, except where the
President of the Conference, in agreement with the three Vice-Presidents,
decides to admit it.
5. After the adoption article by article of the text of the Convention or
Recommendation in the revised form, the Conference shall proceed to take a
final vote on the adoption of the Convention or Recommendation in accordance
with article 19 of the Constitution.
6. The final vote shall not take place before the day following that on
which the text approved by the committee has been made available to delegates
and in no case less than 14 hours after the text has been made available.
7. In accordance with article 14 of the Constitution and subject to the
provisions of article 16(3) of the Constitution, the Conference shall not at any
stage of the revision procedure revise in whole or in part a Convention or
Recommendation which has previously been adopted by it except in respect of
a question or questions placed on the agenda of the session by the Governing
Body.
Article 52
Procedure to be followed in the event of the abrogation or withdrawal
of Conventions and Recommendations
1. When an item on abrogation or withdrawal is placed on the agenda of
the Conference, the Office shall communicate to the governments, so as to reach
them not less than 18 months before the opening of the session of the
Conference at which the item is to be discussed, a short report and questionnaire
requesting them to indicate within a period of 12 months their position, and the
reasons for their position, on the subject of the proposed abrogation or
withdrawal, along with the relevant information. This questionnaire shall request
governments to consult the most representative organizations of employers and
38
workers before finalizing their replies. On the basis of the replies received, the
Office shall prepare a report containing a final proposal and shall make it
available to governments four months before the session of the Conference.
2. The Conference may decide to examine this report and the proposal
which it contains directly in a plenary sitting or to refer it to the General Affairs
Committee. At the end of this examination in the plenary or in the light of the
report of the General Affairs Committee, as appropriate, the Conference shall
decide by consensus or, failing that, by a preliminary vote by a two-thirds
majority, to submit the formal proposal for the abrogation or withdrawal to a
final vote. This record vote shall take place no earlier than the day following the
preliminary decision.

Document No. 56
Standing Orders of the Governing Body, articles 5.1–5.4

r Compendium of rules
applicable to the Governmg
Body of the International
Labour Office

> Standing Orders of the Governing Body
Adopted by the Governing Body on 23 March 1920. Amended by the
Governing Body on 12 and 13 0ctober 1922; 2 February, 12 April and
I 8 0ctober I 923; 13 June I 924; 10 January and 4 April I 925; 27 and 28 April
1928; 5 June 1930; 21 and 22 April and 170ctober 1931; 6 April and
26 0ctober 1932; 24 January, 27 April, I June and 28 September 1934;
2 February I 935; 2 June I 936; 5 February I 938; 20 June I 947; 19 March,
14 June and II December I 948; 4 June I 949; 3 January, 31 March, I 6 June
and 21 November I 950; 2 June 1951 ; 12 March I 952; 29 May I 953; 9 March
1954; 2 March 1955; 6 March 1956; 8 March and 14 November"l963; I June
I 973; 15 November 1974: 5 March and 19 November I 976; 2 March and
27 May 1977; 3 March I 978; I June I 979; 18 November 1982; 28 February
I 985; 14 November 1 989; 3 March and I 6 November I 993; 20 November
I 997; 27 March I 998; 18 November I 999; 17 November 2005; 20 March 2008;
19 November 2009; 20 June 2011; 18 November 201 I ; and 21 March 2016.

Section 5 Procedures
Article 5.1
Procedure for placing an item on the agenda
of the International Labour Conference
S.I.I. When a proposal to place an item on the agenda of the
Conference is discussed for the first time by the Governing Body, the
Governing Body cannot, without the unanimous consent of the members
present, take a decision until the following session.
5.1.2. When it is proposed to place on the agenda of the International
Labour Conference an item which implies a knowledge of the laws in force in
the various countries, the Office shall place before the Governing Body a
concise statement of the existing laws and practice in the various countries
relative to that item. This statement shall be submitted to the Governing
Body before it takes its decision.
5.1.3. When considering the desirability of placing a question on the
agenda of the Conference, the Governing Body may, if there are special
circumstances which make this desirable, decide to refer the question to a
preparatory technical conference with a view to such a conference making a
report to the Governing Body before the question is placed on the agenda.
The Governing Body may, in similar circumstances, decide to convene a
preparatory technical conference when placing a question on the agenda of
the Conference.
5.L4. Unless the Governing Body has otherwise decided, a question
placed on the agenda of the Conference with a view to the adoption of a
Convention or Recommendation shall be regarded as having been referred
to the Conference for a double discussion.
5.1.5. Incasesofspecialurgencyorwhereotherspecialcircumstances
exist, the Governing Body may, by a majority of three fifl:hs of the votes cast,
decide to refer a question to the Conference for a single discussion with a
view to the adoption of a Convention or Recommendation.
5.1.6. When the Governing Body decides that a question shall be
referred to a preparatory technical conference it shall determine the date,
composition and terms of reference of the said preparatory conference.
5.1.7. The Governing Body shall be represented at such technical
conferences which, as a general rule, shall be of a tripartite character.
5.1.8. Each delegate to such conFerences may be accompanied by one
or more advisers.
5.1.9. For each preparatory conference convened by the Governing
Body, the Office shall prepare a report adequate to facilitate an exchange of
views on all the issues referred to the said preparatory conference and, in
particular, setting out the law and practice in the different countries.
Article 5.2
Procedure for placing on the agenda of the Conference the question of
revising a Convention in whole or in part
5.2.1. When the Governing Body, in accordance with the provisions of
a Convention, considers it necessary to present to the Conference a report
on the working of the Convention and to examine if it is desirable to place
the question of its revision in whole or in part on the agenda of the
Conference, the Office shall submit to the Governing Body all the information
available to it, particularly on the legislation and practice relating to the
Convention in those countries which have ratified it and on the legislation
relating to the subject of the Convention and its application in those which
have not ratified it. The draft report of the Office shall be communicated to
all Members of the Organization for their observations.
5.2.2. After a lapse of six months from the date of circulation to
members of the Governing Body and to governments of the draft report of
the Office referred to in paragraph 5.2.1 the Governing Body shall fix the
terms of the report and shall consider the question of placing the revision, in
whole or in part, of the Convention on the agenda of the Conference.
5.2.3. If the Governing Body takes the view that it is not desirable to
place the revision in whole or in part of the Convention on the agenda, the
Office shall communicate the above-mentioned report to the Conference.
5.2.4. If the Governing Body takes the view that it is desirable that the
question of placing the revision in whole or in part of the Convention on the
agenda of the Conference should be further pursued, the Office shall send
the report to the governments of the Members and shall ask them for their
observations, drawing attention to the points which the Governing Body has
considered specially worthy of attention.
5.2.5. TheGoverningBodyshall,ontheexpiryoffourmonthsfromthe
date of the despatch of the report to the governments, taking into account
the replies of the governments, adopt the final report and define exactly the
question or questions which it places on the agenda of the Conference.
5.2.6. If at any time other than a time at which the Governing Body, in
accordance with the provisions of a Convention, considers it necessary to
present to the Conference a report on the working of the Convention in
question, the Governing Body should decide that it is desirable to consider
placing on the agenda of the Conference the revision in whole or in part of
any Convention, the Office shall notify this decision to the governments of
the Members and shall ask them for their observations, drawing attention to
the points which the Governing Body has considered specially worthy of
attention.
5.2.7. The Governing Body shall, on the expiry of four months from the
date of the despatch of this notification to the governments, taking into
account the replies of the governments, define exactly the question or
questions which it places on the agenda of the Conference.
Article 5.3
Procedure for placirBg on the agenda of the Conference the question
of revising a Recommendation in whole or in part
S.3.1. If the Governing Body considers it to be desirable to consider
placing on the agenda of the Conference the revision in whole or in part of
any Recommendation, the Office shall notify this decision to the
governments of the Members and shall ask them for their observations,
drawing attention to the points which the Governing Body has considered
specially worthy of attention.
5.3.2. TheGoverningBodyshall,ontheexpiryoffourmonthsfromthe
date of the despatch of this notification to the governments, taking into
account the replies of the governments, define exactly the question or
questions which it places on the agenda of the Conference.
Article 5.4
Procedure for placimg on the agenda of the Conference the abrogation
of a Convention in force, or the withdrawal of a Convention which
is not in force or of a Recommendation
5.4.1. When an item to be placed on the agenda of the Conference
concerns the abrogation of a Convention in force, or the withdrawal of a
Convention thatis not in force or of a Recommendation, the Office shall place
before the Governing Body a report containing all relevantinformation which
the Office possesses on this subject.
5.4.2. The provisions of article 6.2 concerning the fixing of the
Conference agenda shall not apply to the decision to place on the agenda of
a given session of the Conference an item on such an abrogation or
withdrawal. Such a decision shall as far as possible be reached by consensus
or, if such a consensus cannot be reached in two successive sessions of the
Governing Body, by a four-fifths majority of members of the Governing Body
with a right to vote during the second of these sessions.
Document No. 57
United Nations Conference on the Law of Treaties,
Official Records, First Session, 1968, Meetings of the
Committee of the Whole, Seventh Meeting, Statement of
the Observer for the International Labour Organisation,
pp. 36–37

UNITED NATIONS
CONFERENCE ON
THE LAW OF TREATIES
First session
Vienna, 26 March-24 May 1968
OFFICIAL RECORDS
Summary records of the plenary meetings
and of the meetings
of the Committee of the Whole
UNITED NATIONS
INTRODUCTORY NOTE
This volume contains the summary records of the plenary meetings and of the meetings
of the Committee of the Whole held during the first session of the Conference. The
documents of the Conference will be printed after the closure of the second session.
*
* *
The summary records of the plenary meetings were originally circulated in mimeographed
form as documents A/CONF.39/SR.1 to SR.5, and those of the Committee
of the Whole as documents A/CONF.39/C.1/SR.1 to SR.83. They include the corrections
to the provisional summary records that were requested by delegations and such
editorial changes as were considered necessary.
Symbols of United Nations documents are composed of capital letters combined
with figures. Mention of such a symbol indicates a reference to a United Nations document.
A/CONF.39/11
UNITED NATIONS PUBLICATION
Sales number: E.68. V. 7
Price: $ U.S. 6.50
(or equivalent in other currencies)
36 Meetings of the Committee of the Whole
state that those rules were not applicable by virtue of the
convention. The last part of sub-paragraph (b) was not
clear and for that reason the Swiss delegation had
proposed its deletion. The amendment was one of
drafting only, and the Swiss delegation was prepared to
withdraw it in favour of the Gabon amendment
(A/CONF.39/C.1/L.41).
48. Mr. DE CASTRO (Spain) explained that his delegation's
amendment (A/CONF.39/C.1/L.34) was only
concerned with a matter of drafting in the Spanish text.
The meeting rose at 1.10 p.m.
SEVENTH MEETING
Monday, 1 April 1968, at 3.20 p.m
Chairman: Mr. ELIAS (Nigeria)
Consideration of the question of the law of treaties in
accordance with resolution 2166 (XXI) adopted by the
General Assembly on 5 December, 1966 (continued)
Article 3 (International agreements not within the scope
of the present articles) (continued)
1. The CHAIRMAN invited the Committee to continue
its consideration of article 3 of the International Law
Commission's draft1.
2. Mr. JENKS (Observer for the International Labour
Organisation), speaking at the invitation of the Chairman,
said he was gratified at the Committee's decision to
recommend that the question of agreements to which
subjects of international law other than States were
parties should be examined by the International Law
Commission. The International Labour Office would be
glad to co-operate fully in that task, which must include
the question of how any codification of such rules was
to become binding on the international organizations
concerned, how it was to provide for any adaptations of
the general rules necessary to meet the special circumstances
of particular organizations and how it was to
permit future development and growth.
3. Articles 3 and 4 of the draft stated principles of vital
significance for the long-term development of international
organizations and of international law.
Article 4 stated both a rule and an exception. The rule
was that treaties adopted within an international organization
were subject in principle to the general law of
treaties, and the exception was that the rule was not
applicable in respect of matters for which a lex specialis
existed by virtue of any relevant rules, including the
established practice of the organization concerned.
4. The rule was important because it would create
confusion if there were a different law of treaties for the
instruments adopted within each of the forty international
and regional organizations, a number which
might continue to increase. Few of them could be expected
to evolve a distinctive body of practice and none could
claim that its practice or needs were special in respect of
1 For the list of the amendments submitted, see 6th meeting,
footnote 4.
the whole of the law of treaties. The ILO certainly made
no such claim.
5. The exception was equally important because there
were cases in which an organization had special rules
and a well-established body of practice governing
conventions which created a body of international
obligations more coherent, stable and better-adapted to
requirements of the situation than could be secured by
applying the more flexible provisions of the general law.
The International Labour Organisation was responsible
for 128 international labour conventions ratified by
over 115 member States, and some 1,200 declarations of
application in respect of other territories. That network
of obligations was governed by the provisions of the
ILO Constitution and by a well-established body of
practice tested over almost fifty years. The ILO was
not the only organization with a distinctive body of
treaty practice, but only the League of Nations and the
United Nations together possessed comparable experience
as to duration, scale and variety of action. The Conference
was entitled to know how the draft articles would
affect the ILO's discharge of its responsibilities, and the
ILO was entitled to expect that the Conference would
give full regard to the obligations of members of the
United Nations as members of the International Labour
Organisation.
6. In some cases there was a clear incompatibility
between ILO's rules and practice and the provisions of
the draft articles and a change in the former, which
could not in any case operate retroactively in respect of
conventions to which member States had already become
parties, would be inconsistent with the Organisation's
constitutional structure and with the object of labour
conventions. In other cases, the ILO's rules and practice
and the provisions of the draft articles could be rendered
compatible only by a strained interpretation of the one
or the other or by some artificial modification of the
ILO's existing rules, for which there was no particular
need. In still other cases, in order to obtain a reasonable
and equitable result, the draft articles would have to be
read in the light of established ILO rules and practice.
7. In some instances it would be unprofitable to discuss
to which of those categories a case belonged.
8. Article 8 provided that the adoption of a text drawn
up at an international conference took place by a vote of
two-thirds of the states participating in the conference,
unless by the same majority it was decided to apply a
different rule. The ILO rule was quite different; there
a two-thirds majority was required of the votes cast by
the delegations present, and half of the delegates eligible
to vote did not represent Governments.
9. Article 9 provided that the text of a treaty was established
as authentic and definitive by such a procedure
as might be provided for in the text or was agreed upon
by participating States, or failing that by authentication
of the representatives of States, whereas under the ILO
Constitution, ILO conventions were authenticated by
the signatures of the President of the Conference and the
Director-General.
10. Article 12 dealt with accession. ILO conventions were
concluded within the constitutional obligations relating to
their application, and accessions which did not include
those obligations were therefore inconceivable.
Seventh meeting — 1 April 1968 37
11. Articles 16 to 20 dealt with reservations. According
to ILO practice, reservations incompatible with the
object and purpose of the treaty were inadmissible, and
that principle had been maintained consistently. The
procedural arrangements concerning reservations embodied
in the draft articles were inapplicable to the Organisation
because of its tripartite character. Great flexibility
was necessary in the application of certain international
labour conventions to widely varying circumstances, but
the provisions regarded by the International Labour
Conference as wise and necessary were embodied in the
terms of the conventions, and if proved inadequate could
be revised at any time in accordance with regular procedures.
Any other method would destroy the international
labour code as a code of common standards.
12. ILO practice on interpretation had involved greater
recourse to preparatory work than was envisaged in
article 28.
13. On the subject of the relationship between successive
treaties on the same subject and the amendment and
modification of treaties, the ILO had wide experience and
had created a substantial body of law and practice.
14. The ILO's rules governing the procedure for the
revision of conventions and the legal consequences of
revision differed from and were better adapted to those
needs than article 36, which contained the saving clause
" unless the treaty otherwise provides ". Only some of
the relevant rules were contained in the conventions;
some derived from the Constitution and some from the
procedural rules in the form of standing orders.
15. A few international labour conventions expressly
permitted the modification of certain provisions by
inter se agreements generally, on condition that the
rights of other parties were not affected and that the
inter se agreement provided equivalent protection.
However, in the majority of labour conventions such
agreements would be regarded as incompatible with the
effective execution of the object and purpose of the
treaty as a whole, as would be the case with a convention
relating to one of the fundamental human rights. Such
problems could not conveniently be dealt with by
reference to article 37 of the draft. The ILO Constitution
conferred rights to initiate proceedings relating to the
application of a convention upon interested parties other
than governments that were parties to the convention,
and those rights which flowed directly from the Constitution
would not be affected by any inter se arrangements.
16. Article 57 defined the consequences of a material
breach of a multilateral treaty, while articles 62 to 64 set
out the procedure to be followed when a breach was
alleged. Articles 24 to 34 of the ILO Constitution
specified the procedures applicable in the event of any
failure by a member to secure the effective observance
of an international labour convention it had ratified.
They included provision for the appointment by the
Governing Body, in appropriate cases, of a commission
of inquiry to examine the alleged failure. Those articles
of the Constitution constituted a lex specialis more
appropriate for the application of international labour
conventions than the necessarily general provisions of
article 62 to 64.
17. He was not suggesting any modification of the general
law as proposed in the draft articles, but asked for a clear
recognition that an international organization might have a
lex specialis that could be modified by regular procedures,
in accordance with established constitutional processes.
The questions at issue were not limited to procedural ones
and were too complex to be dealt with by detailed amendments
to the draft articles and could only be properly
covered by a broad and comprehensive provision. The
practical importance of those procedures for member
States depended on the extent to which they were parties
to international labour conventions and must be assessed
in the light of long-range considerations of general
international policy.
18. The principle that conventions adopted within an
international organization might be subject to a lex
specialis was of long term as well as immediate importance.
19. International legislative techniques remained so
defective that the way must be left open to develop
specialized procedures for special purposes as the need
arose. One of the prior requirements in codifying international
law had been to ensure that it did not operate
as a bar rather than as a stimulus to progressive development.
If the law of treaties had been codified a
generation ago, much of the present draft would have
found no place in it. Article 4 provided the necessary
flexibility for the progressive attainment of the long-term
purposes of the United Nations Charter, and he hoped
that it would be adopted substantially in its present form.
20. Mr. AUGE (Gabon) said his delegation had submitted
an amendment (A/CONF.39/C.1/L.41) which was
intended for the Drafting Committee's consideration
and the purpose of which was to achieve greater clarity
in article 3. The words " to which they would be subject
independently of these articles " had been dropped, as
no mention was made of them in the Commission's
commentary. The introductory phrase " the fact that
the present articles do not relate " had also been dropped.
21. Mr. KEBRETH (Ethiopia) said that article 3 was
an important one, the purpose of which was to state
the binding character of oral agreements and those
concluded between States and other subjects of international
law or between such other subjects. The Commission's
main concern appeared to have been the question
whether oral agreements and agreements not
concluded strictly between States remained outside the
purview of the law of treaties. The draft convention
being worked out would have to become a parent instrument
providing substantive rules to cover as far as
possible all international agreements, for in the final
analysis international organizations were the creation
of States. In a broader sense, it might be said that
article 3 was intended to serve as a vital link between the
convention on the law of treaties and the customary
laws of treaties that were as yet uncodified.
22. His delegation felt considerable uncertainty about
the words " to which they would be subject independently
of these articles ". Through the use of those words,
customary laws and the many practices and procedures,
especially of international organizations, would apply.
But the question remained of the application of the
progressive and substantial principles contained in the
convention. Any suggestion of a difference between the
Document No. 58
ILC, 70th Session, 1984, Report of the Director-General,
pp. 3–70

International Labour Conference
70th Session 1984
Report of the Director-General
International Labour Office Geneva
ISBN 92-2-103433-X
ISSN 0074-6681
First published 1984
The designations employed in ILO publications, which are in conformity with United Nations
practice, and the presentation of material therein do not imply the expression of any opinion
whatsoever on the part of the International Labour Office concerning the legal status of any
country or territory or of its authorities, or concerning the delimitation of its frontiers.
The responsibility for opinions expressed in signed articles, studies and other contributions
rests solely with their authors, and publication does not constitute an endorsement by the
International Labour Office of the opinions expressed in them.
ILO publications can be obtained through major booksellers or ILO local offices in many
countries, or direct from ILO Publications, International Labour Office, CH-1211 Geneva 22,
Switzerland. A catalogue or list of new publications will be sent free of charge from the above
address.
Printed in Switzerland
CONTENTS
Introduction v
Part I : International Labour Standards 1
Introduction 3
The preparation and contents of international labour standards 6
Principal characteristics of ILO standard setting 7
The ratification record 9
Denunciations 12
Revision and consolidation of ILO standards 13
Limitations on standard setting 14
The respective roles of Conventions and Recommendations and the use
of "promotional" Conventions 15
Flexibility of standards 16
Determination of the Conference agenda 17
Measures to facilitate participation by member States in the standardsetting
process and to improve procedures at the Conference 18
"Substantial equivalence" clauses 22
Conditions for entry into force of Conventions 23
Supervision of the implementation of ILO standards 23
Principal features of ILO supervision 24
Impact of ILO supervision 25
Composition of the Committee of Experts 27
Methods of evaluation used in ILO supervision 28
Methods of the Conference Committee 29
Complaints and representations 37
Special machinery for examining allegations of violation of trade
union rights 39
Special studies of the trade union situation and industrial
relations system in selected countries in Europe 46
Promotional measures in the field of international labour standards 47
Direct contacts, advisory missions, regional advisers 48
Other advisory services 50
Seminars 50
Training and manuals 51
III
Measures aimed at securing more active involvement of employers' and
workers' organisations and the promotion of tripartite consultations
at the national level on questions concerning ILO standards 52
Regional discussions 54
ILO standards and technical co-operation 55
Practical application of Conventions 57
Collaboration between organisations in the drawing up and implementation
of international standards 58
Concluding remarks 64
Part II: Activities of the ILO, 1983 71
Human rights and international labour standards 73
Promotion of equality 77
Labour relations 81
Labour administration 83
Workers' activities 84
Employers' activities 87
International Programme for the Improvement of Working Conditions and
Environment (PIACT) 89
Social security 93
World Employment Programme 96
Training 106
Co-operatives 113
Sectoral activities 115
Labour information and statistics 120
Regional activities, including major regional meetings 122
International Institute for Labour Studies 134
International Social Security Association 136
International Centre for Advanced Technical and Vocational Training,
Turin 138
The Appendices to this Report are printed in a separate volume.
INTRODUCTION
This Report is made up of two Parts. The second corresponds to the obligation
of the Director-General of the ILO to submit a report on the activities of
the Organisation to the Conference each year.
Part I deals with the ILO's standard-setting activities. The Conference will
recall that at the 69th Session, in June 1983,1 informed it of my intention to put
this question before it as the subject for discussion. Why?
The first reason is that, since the ILO was set up, the standard-setting
activities have been the essential instrument for promoting social justice as part
of a general movement in which all member States without exception participated,
regardless of when they joined the ILO or of their level of development or
economic and political system.
From the beginning, the ILO's tripartite structure served as a strong incentive
for this legislative work since its purpose has always been to protect workers
and improve their situation through the combined action of the authorities and
the social partners. In other words, the ILO's standard-setting activities stem
from the very essence of the institution, its structure, its aims, its ambitions: the
promotion of social justice under conditions capable, moreover, of checking the
consequences of unfair competition between nations.
The work that has been carried out for 65 years, unique in the United
Nations system and impressive in its scope, is beyond dispute remarkable for the
range and diversity of the prescriptions contained in the 159 international labour
Conventions and 168 international labour Recommendations.
This work of "sedimentation", carried out at an average rate of five instruments
per year, has been directed by the Governing Body, which is responsible
for fixing the agenda of the Conference, and by the Conference itself with its
determination to meet the needs of the working world as effectively as possible.
Over the years, the Governing Body and the organs that come under it, as
well as the Conference, have on many occasions assessed the work accomplished
and decided on or planned measures for improving it.
V
Report of the Director-General
There is general agreement that the results achieved by the ILO in the vast
field for which it is responsible are a credit to all who have devoted their
intelligence, skill and faith to the cause of social justice in this extraordinarily
troubled period we are going through. If, on the whole, the results can be considered
good, does that mean that there are no imperfections? Certainly not.
Although some Conventions have received broad support, reflected in an
impressive number of ratifications, their implementation often leaves much to
be desired and at times is marred by flagrant violations of the principles
involved, as sometimes occurs. Other Conventions have not received the necessary
number of ratifications to come into force or have been ratified by only a
small number of States.
Criticism has been voiced from various sides and numerous questions have
been raised with reference to the preparation of standards, their examination by
the Conference, their ratification, application and supervision. These criticisms
and questions will be dealt with at length in the analysis that is submitted to the
Conference in Part I of this Report.
In this analysis we have tried, on the basis of facts, to draw lessons for the
future from past activities. I trust indeed that this report is oriented towards the
future and answers the question of what the ILO can and should do through
standard-setting activities (as well as through other instruments at its disposal) to
improve the conditions of the workers — of all workers, in factories, on the land
and in services, whatever their race, sex and political, religious or other beliefs.
Expressed in these terms, the question involves the entire international community
but does so in the historic perspective marked by the enormous gap
between rich and poor countries (what is known as the North-South problem), by
the crisis which is widening this gap and, finally, by the technical and structural
changes whose consequences are barely beginning to be perceived, particularly in
labour matters and for the working community. In this perspective what line
should the ILO follow?
As regards our past activities, although certain Conventions may be deemed
outdated or ineffective, the vast majority have lost none of their value. An
appreciable number, particularly those dealing with the protection of workers,
employment policy and human resources development, the conditions of the
most vulnerable groups, fundamental freedoms (right of association and collective
bargaining, discrimination, etc.), should be ratified by all States and strictly
applied. If their implementation continues to present the developing countries
with problems — as is the case — it should be recalled that the ILO's entire
activities, especially its research work and its technical co-operation and advisory
services, are designed to afford them the help they need.
As regards the future, the ILO's activities should unfailingly draw inspiration
from the principles of justice and freedom laid down in its Constitution and
in the Declaration of Philadelphia. The texts are clear. The discussion the Conference
is about to embark on should not lead to any concessions in respect of the
principles on which the ILO's activities are based or the tripartite framework
within which these activities have been developed over the past six decades.
VI
Introduction
Nevertheless in the future the ILO's activities must take greater account of
the growing interdependence of the countries making up the international community
in East and West, North and South. This means that the ILO must take
up the double challenge involved in meeting the basic needs of the greatest
number and in mastering the consequences of technical change in both social and
labour matters. It is the ILO's duty to recall that human needs must shape the
economy and cannot be subordinated to it. The economy is not an end in itself.
This must mark the ILO's entire approach and all its means of action must be
committed to this purpose. Among these means, standard-setting activities can
play a major role, probably greater than in the past, which already witnessed
impressive legislative achievements.
For our future activities to have the desired impact, it will be necessary to
choose carefully the items to be placed on the agenda of the Conference and to
ensure the broadest participation not only of all States but also of the social
partners in the preparation, discussion and adoption of international standards.
Furthermore it will be necessary to bring greater resources into play to provide
member States with the assistance they need to overcome the difficulties that
may well arise in implementing certain texts. The Office should increase direct
contacts, particularly in situations of disagreement or dispute. The ILO's role
would thus consist not only in supervising compliance with obligations assumed
by member States as regards standards but also in helping in their implementation.
Recourse to the complaints and representations procedures would then
be called for only in serious situations affecting compliance with Conventions on
human rights and workers' rights.
In view of the foregoing, the ILO's standard-setting activities should also
command the attention of the other international agencies especially those responsible
for economic, financial or monetary questions such as the International
Monetary Fund and the World Bank. These agencies have had, and continue to
have, a major impact and, in the short term, the International Monetary Fund in
particular is undertaking essential work in helping the States which apply to it to
redress particularly difficult situations. But what really matters, in both the
medium and the long term, is to construct a world founded on solidarity, a world
in which the economy alone will not dictate decisions affecting millions of men
and women at work or without work. That is the purpose of the ILO's work,
including the standard-setting activities which are the subject of this Report.
Though the preceding considerations may appear to some to go beyond the
scope of this Report, they are not in fact alien to it. For the ILO, the standardsetting
activities remain the favoured means of achieving its objectives of economic
progress and social justice and of exerting a growing influence in the
international community. It is for this role, this responsiblity that it must prepare
itself. The discussion on this Report will, I trust, make a contribution.
Allow me to add two observations:
1. While the Conference offers a suitable framework for the wide-ranging
reflection to which this Report will give rise, it cannot exhaust the subject
through a discussion in plenary sitting of the Report of the Director-
VII
Report of the Director-General
General. I therefore intend, immediately after the Conference, to have an
analysis made of the discussions and to make a careful study of the views
expressed. It will then be possible to determine how consideration of these
matters may be continued by the appropriate bodies of the Conference and
of the Governing Body. The latter, on the basis of proposals by the Office,
might decide to set up a working party to examine some of the questions
raised which call for solution.
It would consequently be desirable for delegates taking part in the Conference
to refrain from submitting draft resolutions under article 17 of the
Standing Orders of the Conference on the theme of the present Report.1
1 March 1984 FRANCIS BLANCHARD
Note
1 It is recalled that while it is usual for the Conference to be seized of the Report of the
Director-General, it is not an item on the agenda within the meaning of article 17 of the Standing
Orders.
VIII
PARTI
INTERNATIONAL LABOUR STANDARDS

INTERNATIONAL LABOUR STANDARDS
INTRODUCTION
The development of a system of international labour standards was the
principal purpose behind the creation of the International Labour Organisation.
Today, this remains one of the essential activities of the Organisation. Over 300
instruments have been adopted. A network of more than 5,000 ratifications of
ILO Conventions has come into existence. A comprehensive system of supervisory
procedures has been developed over the years with a view to evaluating
and ensuring compliance with ILO standards. Countless instances have been
recorded where, on the basis of ILO standards and as a result of the work of
supervisory bodies, improvements have been brought about in social conditions
and in the protection of working men and women.
The significance of ILO standard setting stems from the Organisation's aims
and purposes. By its Constitution, the ILO is committed to seeking the realisation
of certain normative objectives, with a view to ensuring that all human
beings, irrespective of race, creed or sex, are able to pursue their material wellbeing
and their spiritual development in conditions of freedom and dignity,
economic security and equality. All member States, by virtue of their membership,
have a common responsibility to work towards the attainment of these
goals. The Conventions and Recommendations adopted by the Conference
provide a means of translating the constitutional objectives into more specific
rules and guide-lines. They also provide a unity of vision for ILO action. Technical
co-operation, research and other practical activities undertaken by the
Organisation ought to be guided by the standards and policies defined in these
instruments. In turn, such activities can be used to promote the implementation
of ILO standards, and may serve also to ascertain the extent of the realisation of
standards, their suitability in changing conditions, and the opportunities and
needs for reviewing existing instruments or drawing up new ones.
ILO member States have recognised the role which ILO standards can play
as a means of ensuring balanced economic and social development and in
securing recognition of the need for improved living and working conditions
3
Report of the Director-General
both as a contributing factor to and as the ultimate purpose of economic development.
' *
The ILO's standard-setting activities also have important implications for
strengthening tripartism, both internationally and nationally. Employers and
workers play a major role in the drawing up of standards and in the procedures
for supervising their application. ILO instruments contain many provisions,
requiring tripartite involvement in their implementation at the national level.
Beyond this, the tripartite Conference discussions tend to exert a general
influence on the climate of relations between governments and employers and
workers in their own countries.2
A concomitant of the importance attached to ILO standard-setting activities
is the concern to ensure their effectiveness, both in terms of the relevance of
ILO instruments to the current problems of member States and as regards the
impact of ILO supervisory mechanisms in helping to bring about improved
conditions of work and life. It is therefore necessary to review periodically the
way in which the standard-setting system is operating. These questions have in
fact been regularly discussed. In 1963 and 1964, within the framework of a
general review of ILO programmes, the Conference had occasion to consider the
future of standard setting. In 1968 the Conference discussion of the ILO's work
in the field of human rights necessarily touched on issues concerning standards
and supervision. Over a period of five years as from 1974 the Governing Body
was engaged in an in-depth review of international labour standards, which led
both to adaptations in the supervisory arrangements and to a systematic examination
of all existing Conventions and Recommendations with a view to identifying
those standards whose implementation should be regarded as priority
objectives and in order to plan ahead in the selection of items for future standard
setting. Revised standing orders for the examination of representations under
article 24 of the Constitution were adopted by the Governing Body in 1980. The
review of the ratification and application of Conventions within the different
regions has constituted a regular feature of the work of regional advisory committees
and regional conferences. In 1982 the Office innovated by holding a
tripartite seminar for countries in Asia and the Pacific on procedures for formulating
international labour standards.
The ILO supervisory bodies have likewise kept their methods under review.
The Committee of Experts on the Application of Conventions and Recommendations
last undertook a general examination of its methods of work in 1977. In
1978 it reviewed the means available to it for assessing the practical application
of Conventions, and in 1979 it analysed the experience gained in the first ten
years of operation of the direct-contacts procedure. The Conference Committee
on the Application of Conventions and Recommendations re-examined its
methods of work in 1979 and 1980, and as a result adopted certain changes in the
latter year. The Governing Body Committee on Freedom of Association has
* The footnotes will be found at the end of this Part.
4
International labour standards
repeatedly considered its procedures and made proposals to the Governing Body
for their adaptation and development, last in 1979.
While there has been strong and continuing support for the standard-setting
and supervisory work from the broad range of the Organisation's constituents, a
number of preoccupations have been voiced in recent years concerning the
functioning of the system.
Spokesmen for governments of developing countries have expressed concern
that greater account should be taken of their countries' needs, priorities,
aspirations and possibilities in the choice of subjects for the adoption of standards
and in determining the contents of instruments. They have stressed the
importance of drafting instruments in a sufficiently flexible manner, and of
ensuring that Third World countries enjoy adequate opportunities to make
known their views at the preparatory stages and in the course of the Conference
discussions. These various concerns were recalled, for instance, by the Union
Minister for Labour and Rehabilitation of India in his address to the Conference
in 1983, in which he welcomed the trend in recent years towards greater flexibility
in ILO standards and suggested that "the process of consultations needs to
be improved and the opinion of the developing world to be better reflected in the
formulation of the standards".3 Similar views found expression at the Regional
Tripartite Seminar on Practice and Procedures in Formulating Labour Standards,
held in Bangkok in April 1982.4
Employers' spokesmen have called for improvements in the procedures for
drawing up ILO standards and for measures to ensure greater participation in the
process by employers and workers. They have particularly stressed the desirability
of reducing the number of items brought before the Conference for the
adoption of standards, of improving arrangements for prior consultations of
member States, including employers' and workers' organisations, and of organising
the work of Conference committees in a manner which would permit a
more thorough examination of proposais, with full regard to actual conditions in
the world.5
Criticism of the functioning of ILO supervisory mechanisms has been
voiced over a period of years by representatives of socialist countries. In 1983 a
memorandum was presented to the Conference on behalf of a number of socialist
governments which, while emphasising their support for ILO standard-setting
activities as one of the most effective instruments for protecting the rights of
workers in all countries, called for re-examination of the Organisation's supervisory
procedures. These governments considered that the ILO supervisory
bodies had failed to take account of the objective realities of the contemporary
world and had thus been led to make tendentious and one-sided assessments of
the law and practice of socialist and developing countries. They called for reform
of the composition, powers arid procedures of the ILO supervisory bodies.6
Apart from particular currents of thought of the kind mentioned above,
there is a wider background against which the future role and direction of ILO
standard setting should be considered. What are the implications for ILO standard
setting of the substantial changes in the world economic scene and of the
5
Report of the Director-General
continuing rapid changes in technology and social structures ? In the current fluid
and precarious setting, what contribution can international standards make in
providing basic guarantees of social policy and social protection while also
producing answers to newly emerging problems?
These various considerations suggest that the time is ripe for a new discussion
of the ILO's standard-setting work. The present Part of the Report is aimed
at providing a basis for such a discussion. In the light of the views which will find
expression at the Conference, the various organs which determine the course of
the standard-setting and supervisory processes will be better placed to see what
aspects may call for re-examination and how best to proceed to any such reexamination.
Part I consists of four main sections. The first deals with the preparation and
contents of international labour standards. The second concerns the system of
supervision of the implementation of these standards. The third examines promotional
measures in the field of standards. A final section considers measures
for collaboration between the ILO and other international organisations in the
drawing up and implementation of international standards.
A question which has been the subject of considerable discussion for a
number of years is whether, on the basis of ILO Conventions and Recommendations,
agreement could be reached on a body of minimum labour standards
which all States would be expected to implement concurrently with their efforts
to promote economic development and international trade and which could
contribute to the establishment of a new international economic order. This
matter was extensively discussed in the Governing Body some ten years ago.7 It
has been considered in connection with negotiations between the European
Economic Community and the developing countries in Africa, the Caribbean
and the Pacific which are parties to the Lomé Convention, and was also raised in
the report of the Brandt Commission.8 The question has been the subject of
further careful study within the ILO in recent years, in the light of which informal
consultations have been initiated with a view to further discussion in the
Governing Body. It is a complex issue which requires detailed discussion as a
distinct problem, on the basis of a detailed analysis of all relevant elements. In all
these circumstances, it has been considered preferable not to take it up in the
context of the present report.
THE PREPARATION AND CONTENTS OF
INTERNATIONAL LABOUR STANDARDS
The main questions to be examined in this section are whether the existing
body of Conventions and Recommendations is adapted to the current needs of
the ILO's membership, and what can and should be done in future to make ILO
standards fully responsive to those needs. This requires consideration not only of
the type of subjects to be treated and the manner of dealing with them but also of
the procedures by which ILO standards are drawn up, since those procedures will
6
International labour standards
determine the extent to which the membership as a whole (including the large
number of Third World countries) can effectively participate in the process and
thus influence its outcome, the adequacy of tripartite consultation and participation,
and more generally the adequacy of opportunities for full discussion and
mature reflection on proposals.
Principal characteristics of ILO standard setting
At the outset, it seems useful to recall certain significant characteristics of
ILO standard setting. It represents a regular and major part of the work of the
Conference which follows an established procedure. As a result, ILO Conventions
and Recommendations are not a haphazard collection of instruments but
constitute a comprehensive body of standards covering most areas of ILO concern.
This enhances their influence because, even in the absence of obligations
arising out of ratification, it becomes normal for those concerned with social
problems to refer to them for guidance, as reflecting the considered views of a
representative world assembly. The drawing up of ILO instruments in accordance
with a clearly established procedure also ensures that the process is carried
out with an economy of means. In other organisations lacking such a procedure,
the elaboration of international instruments is often a drawn-out process involving
a long succession of meetings.
A further special feature of ILO standard setting is, of course, that it is based
on tripartite discussions and decisions. This has a significant influence on the
content of ILO instruments, on their authority, and on the attention which they
receive in the formulation of policy at the national level. That influence is the
result not only of the voting strength of employers' and workers' representatives,
but also of government exposure to their views in the course of tripartite consultations
and deliberations.
In the past 65 years the Conference has adopted a total of 159 Conventions
and 168 Recommendations. Looking at this body of standards, one is led to ask a
series of questions. Can the Organisation go on adopting standards in the same
manner as hitherto? What scope is there for meaningful new standards? To what
extent are the older standards still relevant, and what need is there for revising
them? Are ILO instruments sufficiently flexible? Should priority in the years
ahead be given to seeking wider and better implementation of the existing
standards rather than the adoption of new ones?
Some of these issues were considered by the Governing Body Working Party
which from 1977 to 1979 made a systematic review of existing instruments and
of possible items for revision or new standards.9 It identified 19 topics for
possible revision of existing instruments and 43 subjects on which new standards
might be contemplated. Five of the topics identified for possible revision have
either been dealt with in the intervening years or are currently before the Conference.
In two other cases, after consideration by the Governing Body of reports
prepared by the Office and consultation of member States, it was concluded, in
the absence of agreement as to the nature of revision, that it would be inappro-
7
Report of the Director-General
priate to initiate such action. On the other hand, revised instruments have in the
meantime been adopted on three subjects in respect of which revision had not
been suggested by the Working Party. Of the subjects listed for possible new
standards, only three have been selected to be brought before the Conference.
It was understood that the conclusions of the above-mentioned Working
Party should be reviewed from time to time in the light of changing circumstances.
The Programme and Budget for 1984-85 provides for initiation of such a
review during that period. It is appropriate to note certain limitations in the
results of the previous review. Many items were included as possible subjects for
new standards on which prior study was still needed and which might not in fact
easily lend themselves to standard setting or on which it would be difficult to
secure a sufficient measure of consensus. Moreover, no indication was provided
as to a possible order of priority. It is therefore my intention, on the occasion of
the forthcoming re-examination, to provide a series of annotations to the earlier
lists which would enable a stricter, more realistic selection of topics to be
made.
The prospects for standard setting cannot be divorced from the world
economic outlook. In the present adverse conditions one notices a reluctance in
many quarters to discuss innovative social measures which would arouse new
expectations at a time when the maintenance of existing levels of protection is
beset by difficulties. Questions which deserve consideration in this connection
are how to ensure observance of basic social guarantees in a period of recession
and how far standard setting could contribute to adaptation to change, for
example on such issues as the relationship between working time and employment
or the function of social security amid changing patterns of population and
employment structures.
It may be instructive to recall the questions which have been the subject of
standard setting by the Conference in recent times. In the period 1971-83 it
adopted 25 Conventions and 26 Recommendations. All but two of the Recommendations
were instruments supplementing Conventions. A number of instruments
have dealt with workers' organising and bargaining rights (rural workers,
workers in public service, protection and facilities of workers' representatives in
the undertaking, collective bargaining, and tripartite consultation in regard to
ILO standards and activities). The concern for equality and the special needs of
disadvantaged groups has found expression in instruments on migrant workers,
older workers, workers with family responsibilities and disabled persons.
Employment security has been dealt with in instruments on termination of
employment at the initiative of the employer and in instruments to promote
employment stability for particular categories, such as seafarers and dockworkers.
A number of instruments have addressed problems in the field of industrial
safety and health, both as regards the general policy and institutional framework
and as regards particular hazards (benzene, occupational cancer, air pollution,
noise and vibrations, safety in dock work). Others have concerned conditions of
particular categories of workers, such as seafarers, dockers, nursing personnel,
8
International labour standards
and workers in road transport (hours and rest). There have also been instruments
dealing with labour administration, vocational guidance and training, minimum
age for employment, paid educational leave, and migrants' social security
rights.
Without seeking to evaluate the merits of the individual instruments, it may
be observed that the above list covers a significant range of concerns, many taken
up for the first time, others approached from new perspectives. The question
nevertheless arises whether an indefinite accretion to the body of ILO standards
is desirable, or whether the sheer mass of instruments may not in the end obscure
the more pressing objectives.
It has at various times been suggested that efforts should be made to select a
smaller number of instruments to serve as targets for national action and for
ratifications. In its previous review of existing standards, the Governing Body
identified approximately half the Conventions and Recommendations adopted
up to 1978 as "priority instruments".10 It is of interest to note that the ratifications
received in recent years have overwhelmingly related to Conventions of
this kind. In the last six years, over 90 per cent of new ratifications (i.e. exclusive
of ratifications representing the confirmation of obligations by States joining the
ILO) concerned Conventions adopted since the Second World War; 60 per cent
of the new ratifications related to Conventions adopted since 1971.
The ratification record
At 31 December 1983 the total number of ratifications of ILO Conventions
was 5,137. The average number of ratifications per member State was 34. Average
ratifications per State in the various regions were: Europe — 57 (Western
Europe — 60, Eastern Europe — 50), Americas — 38, Africa — 26, Asia and the
Pacific - 20.
In the ten-year period from 1974 to 1983 a total of 1,177 ratifications were
registered. Of these, approximately one-third came from industrialised countries
and two-thirds from developing countries. If one leaves aside ratifications
representing the confirmation of obligations by States upon joining the ILO, the
total number of new ratifications in this period was 786 (a yearly average of 79),
of which 45 per cent came from industrialised countries and 55 per cent from
developing countries.
It is instructive to examine the ratification record of Conventions adopted
in the 30-year period 1951 to 1980. Table 1 shows the average number of
ratifications of Conventions adopted during each of the three decades, and thé
rate at which these ratifications have accrued.
These figures appear to bear out a number of conclusions which also emerge
from information available from other sources (such as documents relating to
the submission of ILO instruments to the national competent authorities and
first reports on the application of ratified Conventions), namely that ILO Conventions
set standards which are not just the common denominator of existing
national practice, but for most countries require the raising or further develop-
9
Report of the Director-General
Table 1. Progress in ratification of Conventions adopted from 1951 to 19801
Average number of ratifications
per Convention at
Endofl963 End of 1973 End of 1983
Conventions adopted 1951 to 1960 20 35 44
Conventions adopted 1961 to 1970 — 18 27
Conventions adopted 1971 to 1980 - - 21
' Excluding the Final Articles Revision Convention, 1961 (No. 116).
ment of national standards ; that efforts are made gradually to attain the protection
called for in the Conventions; and that most governments undertake
ratification in a cautious and deliberate manner, conscious of the responsibilities
flowing from their commitment.
Table 2 shows the extent of ratification of Conventions according to subjectmatter.
It will be noted that among the Conventions which have received the largest
number of ratifications are the main instruments dealing with freedom of association,
the abolition of forced labour and equality in employment, as well as the
Conventions on employment policy, employment services, labour inspection in
industry and commerce, minimum wage-fixing machinery and protection of
wages.
However, only 43 Conventions have received more than 40 ratifications
and, of these, a third have been revised and thus no longer represent priority
objectives.
At first sight it is disturbing to note that, of the 157 Conventions listed in
table 2, as many as 61 have received fewer than 20 ratifications and that for
another 53 Conventions the number of ratifications lies between 20 and 40.
These figures, however, call for clarification.
In the first place, the Conventions with relatively few ratifications include
those adopted in recent years in respect of which the process of ratification is
only just starting or is still far from having attained its full potential. This can be
said of 20 to 25 Conventions.
Many Conventions have been revised and as a result have frequently been
closed to further ratification. Out of a total of 41 revised Conventions, 27 are
among those whose ratifications do not exceed 40.
Some Conventions relate to questions of concern only to a limited number
of countries. Thus, four Conventions applicable to non-metropolitan territories
lent themselves to ratification only by States having responsibility for such
territories. Five Conventions concerning recruiting and contracts of employment
of indigenous workers were of interest mainly to colonial territories, and
are now practically obsolete. Other instruments of relevance to only part of the
ILO membership are those concerning seafarers and plantations.
10
Table 2. Ratifications of ILO Conventions (referred to by Convention numbers and excluding the Final Articles Revision Conventions, Nos. 80
and 116)
Subject-matter Number of ratifications
Under 20 20-40 41-60 61-80 81-100 Over 100
Freedom of association 151,154 141 135 87 11,98
and collective bargaining
Forced labour 29, 105
Equality of opportunity 156 100,111
and treatment
Employment and training
Social policy
Labour administration
Wages
Hours, rest and leave
Occupational safety and health
Social security
Employment of women
Employment of children
and young persons
Migrant workers
Indigenous peoples and workers in
non-metropolitan territories
Seafarers, fishermen and
dockworkers
Plantations
Nursing personnel
Total 61 53 22
34*, 158, 159
20, 31*, 43, 46, 47, 49, 51,
61,67*, 132, 153
28*, 148, 155
25*, 35*, 36*, 37*, 38*,
39*, 40*, 44, 48, 121, 128,
130, 157
60*, 79
66*, 143
82, 83, 84, 85
54*, 55, 56, 57*, 70, 71,72*,
75*, 76*, 93*, 109, 125, 126,
133, 145, 146, 147, 152
110
149
96, 142
117
63, 129, 144, 150
131
30, 140
32*, 62, 115, 119,
127, 136, 139
24*, 102, 118
3*, 41*, 103
33*, 59*, 77, 78, 90,
138
21,97
50, 64, 65, 86, 104,
9, 23, 53, 68, 69, 73
91*, 92, 112*, 113,
134, 137
124,
107
', 74,
114,
2
94,99
1, 52*,
101*, 106
13, 27,
120
18*, 42*
4*
6*, 10*,
123*
7*, 8, 22,
58*, 108
88, 122
12*, 17*
89
5*
15*, 16
26,95
14
45
81
19
* Convention revised.
Report of the Director-General
Subject to the preceding observations, the figures in table 2 nevertheless
suggest that difficulties in securing extensive ratifications have been marked in
certain areas. Thus, in the field of hours of work, eight Conventions applicable to
particular occupations have failed to enter into force, and even the Forty-Hour
Week Convention adopted in 1935 has received no more than eight ratifications.
It is not without significance that the only general instrument on hours of work
adopted since 1945 took the form of a Recommendation.
The Conventions in the field of social security also have, for the most part,
secured only a limited number of ratifications, and this notwithstanding the
efforts made to include a variety of flexibility devices.
Another area with a relatively low ratification record, even allowing for the
narrower range of countries affected, is the employment of seafarers.
Ratification is of course not the only measure of response to ILO standards,
and there is much evidence that unratified Conventions have influenced the
evolution of national law and practice. This has been recognised, for example, in
the case of a number of maritime Conventions which, in terms of ratification,
have not appeared successful." In such circumstances, the question arises
whether Conventions were necessarily the most suitable form for the standards
in question. A Convention which is ratified by only a handful of States has, for
the bulk of the Organisation's membership, the same value as a Recommendation.
The question has at different times been raised whether a Government
should vote in favour of the adoption of a Convention if it is not in a position to
proceed to its ratification. In this connection, reference is made to the figures in
table 1 concerning average ratifications for Conventions adopted between 1951
and 1980, which show that States only gradually reach the position where they
are able to assume the obligation, arising upon ratification, of full implementation
of a Convention. They may therefore legitimately express themselves in
favour of the adoption of standards as representing a desirable objective for the
world community as a whole or as a goal for the further development of their
own social policy and legislation. Should they wish to avoid any misunderstanding
as to their position, delegates are free to make a statement in explanation of
their vote — as indeed they frequently do.
The preceding general inferences drawn from the figures in table 2 deserve to
be borne in mind in reaching decisions as to future standard setting, the identification
of subjects for revision, and efforts to promote wider implementation of
ILO standards.
Denunciations
Some reference should also be made to the denunciation of Conventions.
Leaving aside the 248 cases in which denunciations occurred as a result of the
ratification of revising Conventions, and thus merely involved a substitution of
obligations, there have been 45 "pure" denunciations leading to the termination
of obligations. In the first 50 years of the ILO's existence there were only 13 such
12
International labour standards
denunciations, as compared with 32 in the 14 years since then. Concern has
sometimes been expressed at this increasing trend. However, the total of such
denunciations still represents less than 1 per cent of total ratifications. Half of
them relate to Conventions in three fields where changes in outlook or technology
have led to widespread questioning of the continuing validity of the standards:
night work of women (13 denunciations), underground work in mines by
women (3) and night work in bakeries (6). There have also been three denunciations
each of the Unemployment Convention, 1919 (No. 2), the Maintenance
of Migrants' Pension Rights Convention, 1935 (No. 48), and the Employment
Service Convention, 1948 (No. 88). The denunciations of Convention No. 48
have come from Eastern European countries and are attributable to the change of
regime subsequent to ratification. In the case of the other two Conventions
mentioned, they have been due to diverse reasons, mostly of a limited, technical
nature.
Since the mid-1930s the general practice has been to provide, in the final
articles of Conventions, for the possibility of denunciation at ten-yearly intervals
from the date of their first coming into force. Earlier practice had been to permit
denunciation at any time after ten years had elapsed from first entry into force
(Conventions Nos. 1 to 25); a limited number of Conventions, mainly dating
from the 1930s, are open to denunciation at five-yearly intervals. The rate of
"pure" denunciations in relation to total ratifications has been 1.1 per cent for the
early Conventions, which for most of their existence have been open to denunciation
at any time; 0.9 per cent for Conventions with five-year intervals
between denunciation periods, and 0.8 per cent for Conventions with ten-year
intervals. These figures suggest that the ten-year interval provided for in the
majority of Conventions represents a reasonable balance between the concern
for stability of obligations and the need to allow for changes of outlook or
national situations, particularly if regard is had to the fact that the ratifications of
the earlier Conventions containing more flexible denunciation clauses go back
over a much longer period and are liable to have been affected more by changes
of circumstances.
Revision and consolidation of ILO standards
Repeated emphasis has been placed on the importance of revising older
. standards in order to ensure their adaptation to current conditions. Over the
years, a considerable effort has been made to this end. Altogether 41 Conventions
have been the subject of revision, including half those adopted prior to
1945. As already noted, a number of the Working Party's suggestions concerning
revisions adopted by the Governing Body in 1979 have already been acted upon.
The need for revisions should again receive close attention in the further review
due to be made.
In one case revision represented a significant act of consolidation : the
Minimum Age Convention, 1973, revised ten earlier Conventions with the aim
of gradually replacing them. The question has been raised whether similar action
13
Report of the Director-General
might not be possible in other fields. Theoretically this would be possible, but
one may wonder how far it could bring about a genuine merging of earlier
standards — as in the case of the minimum age standards — rather than a
stringing together in a global instrument of unwieldy proportions of the provisions
of the various earlier Conventions (for example, in such fields as social
security or occupational safety and health). Certain Conventions adopted in
recent years establish a general framework for policy, regulation and administration,
for example as regards occupational safety and health and maritime
employment. This may represent an alternative to the more complex process of
consolidation, but raises the question of how to relate more detailed standards to
them and whether such more detailed standards should be in the form of Conventions
or of non-mandatory recommendations or guide-lines. Even in the case
of minimum age, the effects of comprehensive revision will make themselves felt
only in the longer term, since for the time being the earlier sectoral Conventions
remain in force for a significant number of States and some of them may still
constitute valid interim objectives.
There exists no procedure for abrogating ILO Conventions. A certain number
have been still-born, in that they have not received the ratifications necessary
for their entry into force. Some of these have been revised and are no longer
capable of ratification. Others, even though in principle still open to ratification,
are unlikely to be further ratified (for example, in the fields of hours of work and
maritime employment, mentioned earlier). Certain measures of a practical
nature have already been taken to reflect this situation: the omission of obsolete
instruments from the published compilation of ILO Conventions and Recommendations
and the omission of certain Conventions from the chart of ratifications.
These measures could now be taken a step further. For example, the
chart of ratifications might be further simplified by the omission of selected
Conventions which have not entered into force and can be regarded as spent,
even though still open to ratification. One might also consider discontinuance of
detailed reporting on certain Conventions which have lost their relevance, such
as those relating to the minimum age of trimmers and stokers (No. 15), the
inspection of emigrants on emigrant ships (No. 21), and indigenous workers
(Nos. 50, 64, 65, 86, 104). The Governing Body could decide that, subject to
review if necessary, such Conventions should henceforth be covered only in
governments' general reports.
Limitations on standard setting
In considering future approaches to standard setting, one should recognise
the limitations on this form of action. Not all the social problems which call for
attention by the ILO necessarily lend themselves to standard setting. Some
involve broad questions of policy where standards of a legal nature can play only
a secondary role as tools of implementation rather than as determinants of basic
approaches. This appears to be the case, for example, as regards rural development
programmes and work in certain unorganised sectors. In such circum-
14
International labour standards
stances, general discussions aimed at clarifying issues and providing guidance to
policy-makers may be preferable to the adoption of Conventions and Recommendations.
General discussions will, however, attain their objective only if
they involve a genuine exchange of experience and do not transform themselves
into a process of pseudo standard setting concentrating on the adoption of
defined conclusions rather than on a thorough discussion of substance.
Similarly, while ILO standard setting must be responsive to economic,
social and technological changes, it cannot in itself determine the course of these
changes. Frequently, extensive research and discussion on the issues emerging
from major transformations will be necessary in order to determine on what
aspects and in what form standards should be drawn up. The adoption of Conventions
and Recommendations is normally undertaken only when, in the light
of experience at the national level, the subject appears sufficiently ripe to secure
the requisite measure of agreement.
The form of regulation of a question at the national level will also have a
bearing on the scope for ILO standard setting. A number of Conventions provide
for the possibility of implementation by means of collective agreements, and the
supervisory bodies have accepted that even certain Conventions which do not
contain a specific clause to that effect may be made effective through collective
agreements. This approach however is not free from difficulty, particularly
where the coverage of collective agreements falls short of the requirements of the
ILO instrument or where individual agreements fail to ensure the observance of
its substantive provisions. The extent to which, for example, certain aspects of
industrial relations are determined by means of collective bargaining in member
States, and the resulting variations in practice, may make it difficult to proceed
to the adoption of ILO standards on such questions otherwise than in the form of
a Recommendation.
The respective roles of Conventions and Recommendations
and the use of "promotional" Conventions
The preceding remarks lead to the consideration of the respective roles of
Conventions and Recommendations and the use of "promotional" Conventions.
Over the years, the view of Recommendations as second-class standards has
gained increasing currency in the Conference. In earlier times many subjects
were dealt with in Recommendations, particularly where matters of general
policy or practical programmes were involved or where, in the absence of sufficient
development of national experience, standards of an exploratory nature
appeared to be called for. That approach is now rare. Whereas in the period from
1951 to 1970 well over half of the Recommendations adopted (i.e. 31 out of 55)
were autonomous instruments unrelated to a Convention, since 1971 only two
out of 26 Recommendations have been of this nature, the remainder all being
instruments supplementing a Convention. There has also been increasing
recourse to "promotional " Conventions calling for the pursuit of a national
15
Report of the Director-General
policy in the field dealt with rather than laying down precise standards. Where
the objective to be attained can be defined with relative precision (as was the case
with the earlier promotional Conventions on equal remuneration and discrimination
in employment and occupation), such Conventions can be a powerful
stimulus to national action. Increasingly, however, promotional Conventions
have dealt with less clearly defined objectives, at times calling for action over
wide areas of public policy, where it becomes difficult both for ratifying States to
know what measures of implementation are required of them and for the ILO
supervisory bodies to evaluate compliance with international commitments. It
is true that the couching of standards in the form of Conventions will, in the
event of ratification, lead to more regular review, both nationally and internationally,
than can be expected for Recommendations. On the other hand, the
lack of certainty in States' obligations is liable to erode the credibility of the
Conventions and, more generally, of ILO standard setting.
One of the basic questions for the future is therefore whether greater use
should not again be made of non-mandatory instruments, reserving Conventions
for important issues capable of precise definition and action.
It is also worth remembering that Recommendations adopted within the
constitutional framework are not the only form of non-mandatory instruments
available. Certain questions, both of policy and of a predominantly technical
nature, can be dealt with effectively and economically through other nonmandatory
guide-lines.12
Flexibility of standards
There exists a general consensus that ILO standard setting should continue
to be on a universal basis and that differences in national conditions and levels of
development should be taken into consideration by the inclusion of appropriate
flexibility devices.13 A consistent effort has been made, in the preparation of ILO
instruments, to consider the need for flexibility, and a series of "flexibility
devices" have been developed. These include the possibility of ratifying Conventions
in parts, the acceptance of alternative parts containing more or less
strict requirements, limitations on scope, "escalator" clauses permitting the
gradual raising of the level of protection or the extension of the scope of protection,
temporary exceptions, and flexibility in the methods of application.
Promotional Conventions, while stating objectives, generally leave a great deal
of freedom in deciding on the methods by which to seek their attainment. Two
points nevertheless stand out: only limited use has been made of the flexibility
clauses contained in certain Conventions; at the same time, representatives of
developing countries frequently consider that ILO standards are not sufficiently
flexible.
As regards the former point, reference may be made, by way of example, to
the Social Security (Minimum Standards) Convention, 1952 (No. 102). It can be
ratified on the basis of acceptance of its provisions for a minimun of three out of
a total of nine branches of social security. The Convention has been ratified by 18
16
International labour standards
industrialised countries and 12 developing countries. The average number of
branches of social security for which the Convention has been accepted is the
same for both groups of countries, namely six. Only three countries have availed
themselves of the possibility for countries with insufficiently developed economies
and medical facilities to specify lower levels of protection. The Guarding
of Machinery Convention, 1963 (No. 119), has been ratified by 36 countries, 24
of which are developing countries; only one country (Norway) has availed itself
of the possibility permitted by Article 17 of limiting its scope. The Minimum
Age Convention, 1973 (No. 138), has been ratified by 27 States, including 11
developing countries. Four of the latter have availed themselves of the possibility
for countries with insufficiently developed economies and educational
facilities initially to specify a general minimum age of 14, instead of 15 years.
Only one State has made a declaration initially limiting the scope of the Convention,
and only two of the countries which have so far reported on the application
of the Convention (one a developed, the other a developing country) have
indicated that they have used the power to exclude limited categories of work for
which substantial problems of application would arise.
The foregoing indications lead one to ask not only whether countries which
ratify Conventions examine sufficiently the possibilities of flexibility offered by
them but also whether other countries might not find ratification possible
through wider use of the flexibility clauses. This in turn raises the question,
considered further on, of the need for more ample information and advice to
member States on matters of this kind.
While there is general agreement on the need for flexibility in ILO standards,
opinions tend to vary, both among the different groups represented at the
Conference and among delegations from different countries, as to the precise
degree of flexibility to be permitted in any given case. Ultimately this is a matter
of judgement. It must also be recognised that the scope for flexibility will depend
on the subject-matter to be regulated. Subject to these qualifications, certain
questions would merit discussion. Are some Conventions unduly detailed, and
should a greater effort be made in future to limit Conventions to essential
principles and to leave matters of detail to be taken up in supplementary
Recommendations? Do the procedures for the drawing up of standards provide
adequate opportunities for all member States, both at the stage of prior consultations
and during discussions at the Conference, to njake known their views and
special problems? Should the Office do more to initiate suggestions concerning
flexibility devices, either in the initial questionnaires or at later stages?
These questions make it necessary to examine the procedures through
which ILO standards are drawn up, and possible improvements in those procedures.
Determination of the Conference agenda
The formal point of departure for ILO standard setting is the decision by the
Governing Body to include an item on the agenda of the Conference. The
17
Report of the Director-General
Governing Body bases its choice of agenda items on suggestions presented by the
Office, drawing upon decisions and discussions of the International Labour
Conference, the Governing Body, regional meetings, industrial committees, and
expert meetings, as well as on its own studies and research. In recent years, regard
has been had especially to the Final Report (1979) of the Governing Body
Working Party on International Labour Standards and to the indicative elements
contained in the Medium-Term Plan.
In suggesting items for the Conference agenda with a view to the adoption of
standards, the Office has been concerned to ensure that the subjects are ripe for
action, in the sense that the matters to be regulated are clearly defined, that there
has been adequate technical preparation, and that a sufficient measure of agreement
can be secured. In the course of the in-depth review of international labour
standards undertaken by the Governing Body, a number of criteria were suggested
to guide the choice of items, such as the numbers affected, the extent to
which the subject would affect workers in the lower economic stratum, and the
severity of the problem. Although no specific decision was taken on these suggestions,
factors of this kind would generally be taken into account by the Office
when considering proposals for possible agenda items for submission to the
Governing Body. Representatives of developing countries have emphasised that
particular regard should be had to subjects which correspond to their priority
needs. It is a matter for consideration whether under present procedures this
concern receives sufficient attention, or whether some wider method of consultation
should be contemplated. One possibility would be to replace the present
system of consideration of the Conference agenda at two sessions of the Governing
Body by a preliminary written consultation of all member States, following
which proposals for the agenda would be made to the Governing Body for
discussion and decision at one session only. It would also be possible to seek the
views of ILO regional conferences on the results of the forthcoming re-examination
by the Governing Body of potential items for standard setting.
Although many potential topics for standard setting have been noted, difficulty
has been experienced in recent years in presenting to the Governing Body
a sufficient range of subjects which were ripe for action in the sense indicated
above. This makes it necessary to consider whether, at least for the time being, a
somewhat slower rhythm of standard setting might not be desirable. The view
has been expressed in various quarters, particularly by Employers' spokesmen,
that a reduction in the number of items on the Conference agenda would permit
better preparation of those standards that are adopted.
Measures to facilitate participation by member States in the standard-setting
process and to improve procedures at the Conference
One wish expressed in this connection is that more member States would
make known their views in the consultations preceding discussion at the Conference.
At present, replies to the questionnaires sent out prior to a first discussion
are normally received from one-third to one-half of the membership of the
18
International labour standards
Organisation. It would clearly be desirable to obtain a fuller response, particularly
from developing countries. It is also important to allow adequate time for
governments to consult employers' and workers' organisations concerning their
replies, as they are required to do if they have ratified the Tripartite Consultation
(International Labour Standards) Convention, 1976 (No. 144), and as has been
recommended to States generally by the Governing Body. Possible measures to
strengthen administrative and institutional arrangements in these respects will
be considered in a later section. One might also envisage a change in the timing of
Governing Body decisions concerning the Conference agenda, with final decisions
being taken in May rather than in November, subject to the possibility to
make minor modifications at the meeting of the Governing Body immediately
following the Conference should decisions by the latter make that necessary.
Such arrangements would allow additional time for preparation of the first,
so-called "law and practice" report by the Office and, if that report were sent to
member States at the beginning of the following year, would allow them twice as
much time as at present to examine the questionnaire and to prepare their
replies. As a result, consultation of employers' and workers' organisations would
also be greatly facilitated.
In view of the number of agenda items, countries which are unable to
finance large delegations to the Conference find it difficult to follow the discussions
in the various committees. This limits especially the contribution which
developing countries can make to Conference committee discussions and their
influence on the outcome of deliberations on new standards. It may be recalled
that the question of facilitating the participation in the Conference of tripartite
delegations from member States through the financing of expenses by the
Organisation was examined by a Governing Body working party from 1974 to
1976 but was not pursued in view of budgetary constraints. It remains an
important question of principle for the balanced functioning of the Organisation,
on which renewed discussion ought to be undertaken.
Pending any further action on this general issue, attention has to focus on
more specific measures to facilitate the contribution by developing countries to
the process of formulating standards. A reduction in the number of Conference
agenda items would diminish, but not eliminate, the difficulties experienced by
these countries. Among measures which might be taken to improve their situation
would be greater efforts to co-ordinate the positions of regional or subregional
groups or other like-minded groups of countries. Groups such as the
European Economic Community and the Nordic countries already seek to act in
this manner, and there would be evident advantages in similar action by other
groups, both in terms of their ability to make their views felt and in bringing
about greater clarity in committee discussions. The governments concerned
could communicate to one another the written comments sent to the ILO on
agenda items intended to lead to the adoption of standards and, above all,
arrange for systematic consultation among their delegations at the Conference
with a view to co-ordinating their participation in committees and, wherever
possible, adopting common positions.
19
Report of the Director-General
Another possibility which deserves serious consideration is greater recourse
to a single discussion at the Conference, preceded by a technical meeting and
consultation of member States within time-limits leaving ample time for consideration
of the matter. Such a procedure could reduce both the number of
occasions on which member States had to be consulted and the number of items
before the Conference at any one time. If it became widely used, it could
significantly lighten the workload of the Conference and would strengthen arguments
in favour of holding this at two-yearly intervals or of alternating between
Conference sessions with a full agenda and sessions with a limited or lighter
agenda.14
One problem which has become increasingly acute in recent years is the
difficulty for Conference committees to discuss large numbers of amendments in
the limited time available. This has inevitably reflected on the quality of the
instruments adopted. Amendments tend to be considered in the context of the
provision to which they refer without there being time to examine their possible
impact on the instrument as a whole. Any difficulties resulting from amendments
adopted in the course of a first discussion can be eliminated but this is not
so with amendments adopted in a second discussion.15
The volume of work faced by Conference committees has also resulted in
problems at the drafting committee stage. The pressure on the secretariat in
translating and issuing the multitude of amendments submitted has resulted on
occasion in the texts adopted having different meanings in the different
languages.
Furthermore, committees sometimes refer to their drafting committee decisions
on amendments which raise questions of substance and not merely of
drafting. Drafting committees are thus called upon to perform a major task,
sitting on average for six or seven hours, at a stage in the Conference when the
strain of two weeks' meetings is beginning to be felt, but the Conference timetable
does not permit of any delay in the completion of their task.
The above-mentioned difficulties might be reduced to a certain extent by
some of the measures suggested above, such as providing more time for prior
consultations and more extensive recourse by regional, subregional or other
groupings to the adoption and statement of common positions. Another procedure,
which has already been used, is for committees to discuss major issues and
then to refer proposed amendments to working groups. This leaves actual drafting
in the hands of smaller bodies and reduces the number of meetings of the full
committee, and consequently also the pressure on smaller delegations. More
systematic use of this approach would be desirable.
A further improvement which might be contemplated would be to invite
delegations to forward to the Office, in advance of the opening of the Conference,
the texts of amendments which they intended to submit. Even though the actual
submission would have to wait until the committees had been constituted and
proposals could also be made thereafter, up to the time fixed by the committee,
this practice would reduce pressure on the secretariat and ensure the early circulation
of the texts in question.
20
International labour standards
While the regular pattern of the procedure for the drawing up of ILO
instruments has obvious advantages, one should not regard it as inflexible. The
ultimate objective must be to obtain realistic texts which will have the greatest
possible impact. Where, therefore, it is found in any particular case that adequate
time is not available for the thorough examination of the points or texts before a
committee, it could be decided to defer the question for further discussion at the
subsequent session of the Conference. The implications of such decisions for the
workload of subsequent sessions would of course have to be examined, and
consequential changes might have to be made in their agenda.
The general practice in the Conference for items considered under the
double-discussion procedure has been to take decisions as to the form of instrument
for the proposed standards at the first discussion, so as to allow for the
preparation of draft texts and consultation on those drafts prior to the second
discussion. On a number of occasions in recent years, a decision taken during the
first discussion to adopt a Recommendation has been reversed during the second
discussion in favour of the adoption of a Convention supplemented by a
Recommendation.16 Such decisions have the double disadvantage of making it
necessary to draft the final texts under great time pressure and of leading to the
adoption of instruments which have not been the subject of "adequate consultation
of the Members primarily concerned", as required by article 14 of the ILO
Constitution and the Standing Orders made pursuant to that article. It would
therefore be desirable to revert, as a general principle, to deciding on the form of
the instrument at the first discussion. Alternatively, in any case where that
decision is changed at the second discussion, the final consideration of the
question ought to be deferred to a subsequent session of the Conference, so that
the draft instruments can be the subject of the careful preparation and consultation
of member States which the rules governing the double-discussion procedure
are intended to ensure.
One problem which has recently arisen, as a consequence of the development
of consultation of employers' and workers' organisations concerning Government
replies to preparatory reports on items before the Conference, is how to
reflect the views expressed by such organisations. The most appropriate practice,
which is followed by a number of States, is for governments to take these views
into account in formulating their replies. Some governments however communicate
the organisations' observations separately. The practice of the Office has
been not to reproduce such information. Employers' representatives have urged
that this practice be changed, and it is proposed, on an ad hoc experimental basis,
to summarise comments from employers' and workers' organisations in one of
the reports to be submitted to the 70th Session of the Conference (for the second
discussion concerning employment policy). However, apart from questions of a
legal nature which might arise from the fact that the present Standing Orders
provide for the Conference reports to be prepared on the basis of "the replies
from governments", the systematic summary of the views of organisations could
give rise to practical problems concerning the volume, timely production and
cost of Conference reports. As the practice of consultation becomes more wide-
21
Report of the Director-General
spread, and since in many countries a number of different organisations are
involved in the consultation process, these practical problems could assume
considerable magnitude. It would therefore be preferable for all governments to
take the organisations' comments into account in drawing up their own replies
rather than appending them. This procedural matter might usefully be the subject
of agreement among the parties to national tripartite consultation arrangements.
Questionnaires included in initial reports for a first discussion always have a
section concerning particularities of national law and practice which may create
difficulties of application. It is aimed at identifying points on which flexibility
may have to be permitted in the proposed instruments. At present, the subsequent
treatment of these matters is determined by the majority trends in the
replies received. It may be desirable in future to give closer attention to the views
on these aspects expressed by developing countries, particularly where there is
some imbalance in the number of replies received respectively from developed
and developing countries. It may also be desirable to pay special attention to
minority views expressed during a first discussion, where this may help to
address the question of flexibility during the subsequent consultations and in the
course of the second discussion.
"Substantial equivalence" clauses
It has at times been suggested that it would facilitate acceptance of Conventions
if it were possible to ratify them on the basis of "substantial equivalence"
in the protection provided. Some Conventions already contain clauses of
this kind. Recent social security Conventions, for example, permit the exclusion
of seafarers and of public servants if they are protected by special schemes which
provide in the aggregate benefits at least equivalent to those required by the
Convention. The Merchant Shipping (Minimum Standards) Convention, 1976
(No. 147), requires ratifying States to have safety standards, social security
measures and conditions of employment substantially equivalent to those laid
down in specified earlier Conventions. The most recent Convention on safety
and health in dock work (No. 152) permits variations in the technical measures it
prescribes if they provide corresponding advantages and the overall protection
afforded is not inferior to that which would result from the application of the
Convention. While clauses of this kind may be useful in relation to particular
technical problems, they are not free from difficulty. They lay a considerable
responsibility on the supervisory bodies in determining what can be regarded as
substantially equivalent protection, and may lead to controversy and uncertainty.
In general, it would appear preferable to introduce flexibility by means of
specific alternatives to the rules contained in the various articles. As regards
provisions of a secondary character, one should examine in the first place to what
extent their inclusion in the Convention is in fact necessary and then seek either
to express them in a flexible manner or to envisage alternative means of attaining
the desired result. In other words, while "substantial equivalence" clauses may in
22
International labour standards
some circumstances prove useful, in general it would appear preferable to aim at
more precise delimitation of flexibility.
Conditions for entry into force of Conventions
The question has been raised whether the entry into force of Conventions
should not be subject to stricter conditions, so that the supervisory system would
operate only once a significant network of ratifications had come into being. At
present, apart from special cases (such as maritime Conventions), a Convention
generally enters into force 12 months after receipt of the second ratification.
Examination of the ratifications received in respect of the Conventions adopted
in the past 20 years shows that, had the requirement been six ratifications, entry
into force would have been delayed only slightly. Even with a requirement often
ratifications, it would generally have been delayed by only one or two years,
except for a few Conventions relating to seafarers, fishermen, social security and
migrants. One advantage of early entry into force of Conventions is that problems
examined by the supervisory bodies may help to clarify issues for the
benefit of States which are still considering the possibility of ratifying them. In
the course of the forthcoming review of existing instruments by the Governing
Body, special consideration could be given to Conventions which, although
adopted already some time ago, have failed to attract an appreciable number of
ratifications. In addition to determining the causes of such situations and the
desirability of remedying them by means of revision, the Governing Body could
examine what general conclusions might be drawn for future approaches to
standard setting.
SUPERVISION OF THE IMPLEMENTATION OF ILO STANDARDS
Two points deserve to be highlighted in discussing the arrangements established
by the ILO for supervising the implementation of the standards adopted
by the Conference. Certain basic provisions of the existing supervisory system —
such as the obligation to report on measures taken to give effect to ratified
Conventions and procedures for the presentation of complaints and representations
— were included in the original Constitution. The system has however
been substantially developed over the years. '7 Some of these de velopments (such
as reporting on the measures taken to submit newly adopted instruments to the
national competent authorities and the obligation to report, when requested by
the Governing Body, on the position in regard to unratified Conventions and
Recommendations) were brought about by amendments to the Constitution.
Other important developments resulted from decisions of the Governing Body
or the Conference, including the establishment of the Committee of Experts and
the Conference Committee on the Application of Conventions and Recommendations,
and the creation of special machinery to examine complaints of violation
of trade union rights. The methods of work of the supervisory bodies have
also evolved over the years.
23
Report of the Director-General
Principal features of ILO supervision
The effectiveness of the ILO supervisory system is influenced by a number
of distinctive features.
In the first place, ILO standards — and therefore the obligations resulting
from their ratification — are generally defined in a precise manner as compared
with a number of instruments adopted both at the universal and at the regional
levels.
Secondly, ILO supervision is cohesive. A single set of procedures (routine
supervision by a committee of experts and a tripartite conference committee,
supplemented by machinery for examining complaints and representations)
operates in respect of all Conventions. This approach may be contrasted with the
practice of certain other organisations (particularly the United Nations) of
establishing distinct and varying supervisory arrangements for each instrument
adopted.
Thirdly, as already noted, the ILO system makes provision both for regular
supervision on the basis of reports and for the examination of complaints and
representations.
Fourthly, ILO supervisory bodies enjoy the technical support of a qualified
staff. This permits not only a more thorough analysis of implementation, but
also uniformity in the treatment of cases, by making documentation and information
available to the supervisory bodies in a systematic manner, as a basis for
their decisions.
Fifthly, the ILO system combines technical evaluation by independent
experts and tripartite review. The former is designed to obtain an impartial,
objective assessment of compliance with obligations. The latter enables those
directly concerned to examine the situation, make known their views and suggest
solutions to problems.
Sixthly, the ILO system involves the active participation of employers' and
workers' organisations in the implementation of standards. There are three
levels at which this participation manifests itself. Employers' and workers'
organisations have an important role to play in contributing to the adoption and
review of implementing measures at the national level. They can be sources of
information for ILO supervisory bodies or initiators of complaints or representations.
Their representatives participate directly in the work of supervision,
especially in the tripartite Conference Committee.
Lastly, the uniform system applicable to all ILO standards is supplemented
by several special procedures in specific areas, such as the freedom of association
complaints machinery and the possibility of special studies concerning discrimination
in employment and occupation. There is also the general competence of
the International Labour Office, under article 10 of the Constitution, to carry out
special investigations which has been resorted to in a number of instances as a
basis for important ad hoc studies. All these special procedures may be invoked
even when the country concerned has not ratified the relevant ILO Conventions.
24
International labour standards
As already mentioned, ILO supervisory arrangements have not remained
static, but on the contrary have been the subject of gradual development and
adaptation. Until 1958 reports on ratified Conventions had to be submitted
every year. Then the periodicity of detailed reporting was changed to a twoyearly
pattern. In 1977 the system was changed again to detailed reporting at
yearly, two-yearly or four-yearly intervals according to the subject-matter of the
Convention and the nature of any problems of implementation. The Committee
of Experts on the Application of Conventions and Recommendations, from an
original composition of eight members in 1927, has grown into a body of 20
members, reflecting the widening membership of the Organisation. Since 1957,
to focus attention on the more important issues, only part of the Experts' comments
have been published in the Committee's reports, the remainder being
addressed in the form of direct requests to the States concerned. The Conference
Committee on the Application of Conventions and Recommendations, as from
1957, developed the system of drawing special attention in its reports to cases of
serious difficulty in complying with obligations. This system has been repeatedly
reviewed and adapted, last in 1980. During the past ten years a series of measures
have been taken to promote a more active contribution by employers' and
workers' organisations to supervisory procedures. Since 1969 the procedure of
direct contacts has been developed to provide for discussion, during missions to
individual countries, of problems encountered in complying with obligations
relating to ILO standards and of means of overcoming such problems. The
direct-contacts procedure has been supplemented by less formal advisory missions
and, more recently, by the appointment of regional advisers on international
labour standards.
Impact of ILO supervision
Much attention has been given to studying the impact of ILO standards and
supervision. In 1954 the Committee of Experts made a survey of the effectiveness
of its observations.18 Starting in 1955, a series of articles reviewing the
influence of Conventions and Recommendations in individual countries have
been published in the International Labour Review, and in 1976 the Office
published a general study on this subject.19 Since 1964 the Committee of Experts
has listed in its report the cases in which, following comments, it has been able to
note progress in the application of ratified Conventions. The total of such cases
recorded in the 20-year period between 1964 and 1983 is over 1,500.
For the purpose of the present Report, the 761 cases of progress in the
application of ratified Conventions noted by the Committee of Experts in the
past ten years (1974-83) have been analysed. Table 3 shows the regional distribution
of these cases and also indicates the regional share of ratifications. In
comparing these figures, it must be borne in mind that the number of comments
made by the Committee of Experts (and therefore of potential cases of progress)
for any given country does not bear a fixed proportion to the number of Conventions
ratified by it. Furthermore, the figures do not distinguish between cases
25
Report of the Director-General
Table 3. Cases of progress in the application of ratified Conventions noted by the Committee
of Experts on the Application of Conventions and Recommendations,
1974-83, by region
Region
Africa
Americas
Asia and Pacific
Europe
Total number of
cases of progress
noted
145
274
110
232
Percentage of
total cases of
progress noted
19
36
14
31
Percentage of
ratifications of
ILO Conventions
26
24
14
36
according to the importance of the measures taken. They include both cases
where the discrepancies in the application of a Convention previously noted by
the Committee of Experts have been wholly eliminated and cases of partial
progress. Even so, they show responsiveness to ILO supervision in all
regions.
Table 4 analyses the cases of progress according to subject-matter, distinguishing
between developed and developing countries.
In recording the cases of progress arising out of action taken by governments
following comments by the Committee of Experts, that Committee has emphasised
that they were not the only instances in which ILO standards have
influenced national law and practice. For example, since 1975 the Committee
has noted 77 cases (two-thirds concerning developed countries) in which the first
report on the application of a ratified Convention showed that new measures
with a view to its implementation had been adopted shortly before or after
ratification. Evidence of the influence of ILO standards on the adoption of
national measures is frequently to be found also in reports on unratified Conventions
and on Recommendations made pursuant to article 19 of the Constitution.
20 ILO studies show that in other cases the adaptation of national law and
practice to the requirements of a Convention is carried out gradually over a
period of time before a decision to ratify is taken. Governments are aware that, in
the case of ratification, their compliance with a Convention will be the subject of
scrutiny, and most of them are anxious to ensure that such compliance exists
already at the time of ratification. The impact of ILO supervision procedures is
thus not confined to cases where critical comments after ratification lead to
remedial measures. They also exert a significant indirect influence of a preventive
character.
The foregoing remarks have a bearing on the spirit in which the whole
question of international supervision is approached. ILO procedures can assist
member States in understanding the full import of the standards which they have
undertaken to observe and prompt them to make good any shortcomings in
meeting these requirements. The essential purpose of the system is, however, to
ensure that freely assumed obligations are honoured, and thus to maintain the
credibility of the act of ratification.
26
International labour standards
Developed
countries
80
11
26
12
9
59
15
31
3
Developing
countries
94
21
52
58
44
80
78
68
20
Table 4. Cases of progress in the application of ratified Conventions noted by the Committee
of Experts on the Application of Conventions and Recommendations,
1974-83, by subject-matter
Subject-matter of the Conventions concerned Number of cases of progress noted
Basic human rights
Employment and training
Labour administration
General conditions of work
(wages, hours, rest, leave)
Occupational safety and health
Social security
Employment of women, children and young persons
Seafarers, fishermen, dock workers
Others (social policy, migrant workers, indigenous workers,
plantations, nursing personnel)
Total 246 515
While the procedures to secure the implementation of ILO standards have
been held up as one of the most far-reaching and effective systems of international
supervision, they have also encountered criticism, particularly from
socialist countries. The position of these countries was set out in the memorandum
which they presented to the Conference in 1983 the substance of which was
confirmed in its entirety in a communication addressed to the Director-General
on 18 November 1983 by the Government of the USSR on behalf of a number of
socialist countries. The adoption in plenary session of the report of the Conference
Committee on the Application of Conventions and Recommendations has
encountered difficulty on several occasions in recent years, and three times (in
1974, 1977 and 1982) the Conference, for lack of a quorum, failed to adopt the
report. The main issues which call for consideration in the light of these discussions
concern the composition, powers and methods of work of the supervisory
bodies.
Composition of the Committee of Experts
As regards the Committee of Experts, it is to be recalled that, while its
members are appointed in their individual capacity from among persons of
independent standing, they are drawn from all parts of the world so as to possess
first-hand experience of different legal, economic and social systems. The composition
of the Committee was last discussed by the Governing Body in March
1983.21 In my view, following the recent appointment of an additional member
from Africa and a member from an Arab country, a reasonable balance has been
achieved. Since the aim of having a broadly based committee is to ensure that the
members have first-hand experience of the different legal, economic and social
27
Report of the Director-General
Table 5. Geographical distribution of membership of the Committee of Experts on the
Application of Conventions and Recommendations and of ratifications of Conventions
Number of
members of the
Committee
of Experts
Percentage of
membership
of the
committee
Percentage
of total
ratifications of
Conventions
Africa 3
Americas 5
Asia 4 '
Western Europe 5
Eastern Europe 3
1 Including a member from a West Asian country.
15
25
20
25
15
26
24
14
26
10
systems existing in the countries whose legislation and practice they are called
upon to examine, it may be of interest to note how the composition of the
committee compares with the ratifications from various regions. Figures concerning
this matter are given in table 5.
Methods of evaluation used in ILO supervision
As regards the methods used in evaluating compliance with ratified Conventions,
one of the principal points of discussion has turned on the extent to
which account should be taken of a country's economic, social and political
system. Representatives of socialist countries have consistently urged that it was
necessary to take account of these factors, and that the refusal of the Committee
of Experts to do so led to tendentious and one-sided assessments of the law and
practice of socialist and developing countries and an intolerable interference in
the sovereign affairs of States. They have considered that, as a result, the supervisory
system was being turned into a kind of supranational tribunal which
sought to impose its own interpretation of national legislation, whereas a valid
interpretation of legislation could be given only by those who adopted the
legislation, namely, the governments of the countries concerned.22
The Committee of Experts has considered this matter. Its position was
made clear in the restatement of its fundamental principles and methods of work
contained in its report of 1977, in the following terms:
The Committee discussed the approach to be adopted in evaluating national law and
practice against the requirements of international labour Conventions. It reaffirms that its
function is to determine whether the requirements of a given Convention are being met,
whatever the economic and social conditions existing in a given country. Subject only to
any derogations which are expressly permitted by the Convention itself, these requirements
remain constant and uniform for all countries. In carrying out this work the
Committee is guided by the standards laid down in the Convention alone, mindful,
however, of the fact that the modes of their implementation may be different in different
States. These are international standards, and the manner in which their implementation
is evaluated must be uniform and must not be affected by concepts derived from any
particular social or economic system.23
28
International labour standards
A similar position has been taken by the majority of members of the Conference
Committee on the Application of Conventions and Recommendations.
They have considered that diversity of national conditions was a factor to be
taken into account at the stage of drafting ILO standards by introducing a certain
flexibility, as required by the ILO Constitution, but that, once a Convention was
ratified, there could be no room for flexibility beyond what was expressly permitted
by the Convention. They have insisted that evaluation of observance of
ratified Conventions must be according to uniform criteria for all countries, and
that any other approach would be incompatible with the principle of equality of
States and would leave every State free to intepret its obligations as it saw fit.
Every State was free to decide whether or not to ratify a Convention, but once it
did so it had to accept the obligations arising from ratification and could not
invoke questions of sovereignty as an obstacle to implementation.24
Methods of the Conference Committee
Another major issue concerns the methods adopted by the Conference
Committee in drawing special attention in its general report to some of the cases
discussed by it, particularly as regards the application of ratified Conventions.
The terms of reference of the Committee, in this respect as defined in article
7, paragraph 1, of the Standing Orders of the Conference, are "to consider the
measures taken by Members to give effect to the provisions of Conventions to
which they are parties and the information furnished by Members concerning
the results of inspections". According to article 7, paragraph 2, of the Standing
Orders, the Committee is required to submit a report to the Conference.
The practice of the Committee", in view of the limited time at its disposal, is
to select for discussion a number of cases in respect of which observations have
been made by the Committee of Experts. When the discussion of a case is
completed, the Chairman makes a statement summing up the discussion, in
which note is generally taken of explanations and assurances given by the government
concerned and the hope expressed that such measures as may be
necessary to ensure compliance with the Convention under consideration will be
adopted. Sometimes a specific form of wording for the Committee's conclusions
is proposed by members of the Committee, particularly by spokesmen for the
non-governmental groups. The record of the discussions of individual cases is
included in the Committee's report.
In 1957 the Conference Committee decided upon the inclusion of a new
feature in its report to the Conference. While continuing to include its conclusions
in the record of the discussions of cases, the Committee felt that "in some
instances the discrepancies noted are of such a basic character or are of such long
standing that the special attention of the Conference should be drawn to this
unsatisfactory state of affairs. The Committee has therefore decided to highlight
certain of these cases."25
It was from that decision that the present system of giving special mention to
certain cases was developed. At various times the system has been reviewed by
29
Report of the Director-General
the Conference Committee. In 1979 and 1980 it was examined in detail by a
working party established by the Committee. As a result, certain changes of form
were adopted. However, the system has continued to be the subject of controversy.
The main issues around which the debate revolves concern the legal basis
for the Committee's practice, its effectiveness and its fairness.
On the one hand, it has been argued that the highlighting of problems in the
application of ratified Conventions by the mention of cases in a special list or in
special paragraphs constitutes a sanction for the imposition of which there is no
constitutional basis, that it discourages States from ratifying Conventions, that
the system has been used for improper political ends, and that it diverts the
supervisory system from its true purpose of assisting member States to improve
their national legislation on the basis of dialogue, exchange of experience and
co-operation.26
On the other hand, the majority view in the Conference Committee has been
that the use of the special list and special paragraphs does not constitute a legal
sanction, since it has no effect beyond its moral force as an expression of the view
of the Committee and of the Conference that the Committee has the right and the
duty to state conclusions on the cases considered by it and that, without such
appraisal, Conventions and ratifications were liable to lose all meaning.27
A first point to note is that the Committee's long-standing practice of stating
conclusions on the cases considered and of including them in the record of the
discussions embodied in its report has not given rise to objections. The debate
concerns the practice of selecting certain cases for special mention in the Committee's
general report. The nature of the decisions taken pursuant to this practice
is indicated by the Committee in its reports. It remains the same today as
when this method was first introduced in 1957, namely to draw the attention of
the Conference to the discussions concerning certain cases.28 The adoption of
this practice thus constitutes a decision as to the form in which to report to the
Conference, in pursuance of the requirement stated in article 7, paragraph 2, of
the Standing Orders.
A further aspect which it appears useful to examine relates to the character
and functions of the Committee of Experts and the Conference Committee.
The Committee of Experts is called upon to examine compliance with
obligations in regard to ILO instruments, and in particular with the obligation,
laid down in article 19 of the ILO Constitution, to make effective the provisions
of ratified Conventions. The Committee has pointed out that, in order to carry
out its functions, it has to consider and express views on the meaning of provisions
of Conventions. At the same time, it has noted that competence to give
interpretations of Conventions is vested in the International Court of Justice by
article 37 of the Constitution.29 While, on account of the standing and expertise
of the members of the Committee of Experts, the Committee's views merit the
closest attention and respect and in the great majority of cases find acceptance
from the governments concerned, they do not have the force of authoritative
pronouncements of law. The Committee is not a court able to give decisions
binding upon member States.
30
International labour standards
The Conference Committee, in contrast to the Committee of Experts, is
composed not of independent experts, but of representatives of those directly
interested in the application of Conventions. The Committee's proceedings
provide an opportunity for democratic participation of the ILO's membership in
reviewing the effect given to the Organisation's instruments. Its assessments, as
well as any assessments adopted by the Conference on the basis of the Committee's
report, likewise are not legal pronouncements and have no binding
force. They are expressions of views of persuasive, moral value.
It is thus evident that a State cannot be compelled to accept and to act upon
the views of either the Committee of Experts or the Conference Committee. It
would however not be satisfactory, either for the Organisation or for the State
concerned, to leave unresolved important issues affecting the implementation of
ratified Conventions when, after full consideration, a government rejects the
conclusions stated by those Committees. The ILO Constitution provides avenues
for dealing with such situations, through its provisions regarding commissions
of inquiry and reference of questions to the International Court of
Justice. Article 26 of the Constitution permits the initiation of the complaints
procedure in respect of the observance of a ratified Convention, inter alia, by the
Governing Body, action which it could take even at the request of the State
concerned. Under articles 31 and 32, the International Court of Justice has the
competence to give final decisions, as regards both findings and recommendations,
in cases where a government concerned in a complaint does not accept the
recommendations of a commission of inquiry. Under article 37, the Court has
competence to decide any question or dispute relating to the interpretation of
ILO Conventions. It is a matter for consideration whether recourse should be
had to these mechanisms for persisting unresolved major issues concerning the
application of ratified Conventions.
The preceding remarks have been concerned with the legal nature of the
work of the supervisory bodies. It is necessary also to consider the practical and
political aspects of these questions. In particular, notwithstanding the full discussion
in 1979 and 1980 of the methods of work of the Conference Committee,
differences of views persist as to whether the use of special listing and special
paragraphs to highlight shortcomings in the application of ratified Conventions
acts as a stimulus to improved implementation or, on the contrary, is counterproductive
by indisposing governments towards the ILO's endeavours to secure
the widest possible acceptance and implementation of its standards. Reference
has been made, in this connection, to the non-adoption by the Conference of the
Committee's report on three occasions in the past ten years.
The Conference may find it useful to have an analysis of the extent to which
action to improve the application of ratified Conventions has been taken in cases
which have been the subject of special listing or special paragraphs since the
Conference Committee started this practice in 1957. Tables 6, 7 and 8 contain
indications on this matter.
Table 6 shows global results, grouped by eight-year periods, plus a final
period covering the last three years. It will be seen that, while the number of
31
Report of the Director-General
Table 6. Progress in the application of ratified Conventions noted by the Committee of
Experts in cases which had been the subject of special listing or special
paragraphs by the Conference Committee, 1957-83
1957-64 1965-72 1973-80 1981-83 Total
Number of countries given
special mention 23 17 23 11 45
Number of cases given
special mention 55 53 54 27 161
Partial progress
— number of countries 3 11 18 14 22
— number of cases 3 33 31 22 49
Total progress
— number of countries 4 10 13 3 20
— number of cases 4 23 28 3 58
Number of cases of progress after
direct contacts — 4 25 4 33
Denunciations 2 1 — — 3
N.B. The number of countries and of cases are given for each of the periods indicated. As some countries and cases
were the subject of special mention during more than one of these periods, the totals shown in the final column are less
than the aggregate of the preceding figures.
Some cases were the subject of partial progress on more than one occasion. Others were the subject initially of
partial progress and subsequently total elimination of the discrepancies concerned. The overall total of cases of partial
progress is therefore less than the aggregate of the preceding figures.
countries affected has varied somewhat from one period to another, the number
of cases mentioned has been more or less the same in each period. The table also
shows a steady record of action resulting in partial or total elimination of
shortcomings in the application of ratified Conventions, if account is taken of the
time lag which appears to have affected the first period covered and the fact that
in the final period, which is of limited duration, the progress noted has resulted
partly from special mentions in earlier periods. Altogether, since 1957,161 cases
have been the subject of special listing or special paragraphs. In 58 (or 36 per
cent) of these cases, the discrepancies giving rise to such mentions were eliminated.
In 49 cases (or 30 per cent), partial progress has been noted. A total of 45
countries have been involved. In 20 countries cases of total elimination of
shortcomings have been noted. In 22 countries partial progress has occurred. In
some countries there have been both cases of total elimination of shortcomings
for some Conventions and partial progress in regard to others. Altogether, there
has been some progress (total or partial) in 33 of the 45 countries affected by
special listing or special paragraphs.
Two further points deserve to be noted. In a substantial number of cases,
progress occurred after direct contacts missions, a procedure in use since 1969.
Most of these (29 out of 33) concerned countries in the American region. In three
cases Conventions which had been the subject of special listing were denounced.
These denunciations occurred between 1961 and 1965. Two concerned the Night
32
International labour standards
Table 7. Progress in the application of ratified Conventions noted by the Committee of
Experts in cases which had been the subject of special listing or special paragraphs
by the Conference Committee, 1957-83, in developed countries and
developing countries
1957-64 1965-72 1973-80 1981-83 Total
A. Developed countries
Number of countries given
special mention
Number of cases given
special mention
Partial progress
— number of countries
— number of cases
Total progress
— number of countries
— number of cases
B. Developing countries
Number of countries given
special mention
Number of cases given special
mention
Partial progress
— number of countries
— number of cases
Total progress
— number of countries
— number of cases
N.B. See notes in table 6.
Work (Women) Convention, 1919 (No. 4). The third concerned the Maternity
Protection Convention, 1919 (No. 3). However, in this instance the country in
question ratified the revised Convention (No. 103) four years later.
Table 7 analyses the figures for developed and developing countries respectively.
The number of countries affected in each group roughly reflects their
numerical importance in the membership of the ILO. The number of cases
concerning developing countries is proportionately much greater. This is due to
the fact that developing countries have more often been the subject of special
listing or special paragraphs in respect of a series of Conventions. For developed
countries progress has been noted in half the cases mentioned, almost all of
which involved total elimination of the shortcomings in question. For developing
countries the proportion of cases having led to some action is higher (69 per
cent), but only half of these have involved total elimination of shortcomings.
8
8
3
3
2
2
15
47
2
2
3
4
1
1
3
3
14
49
10
32
7
20
4
8
1
1
2
3
19
46
17
30
11
25
4
5
1
1
7
22
14
22
2
12
12
20
1
1
7
9
33
141
21
48
13
49
33
Report of the Director-General
Table 8. Progress in the application of ratified Conventions noted by the Committee of
Experts in cases which had been the subject of special listing or special paragraphs
by the Conference Committee, 1957-83, by subject-matter of the
Conventions concerned
1957-64 1965-72 1973-80 1981-83 Total
A. Conventions concerning basic human rights (freedom of association and collective
bargaining, forced labour, discrimination in employment and occupation and
equal remuneration)
Number of cases given
special mention 7 15 31 14 48
Partial progress — 2 8 7 13
Total Progress — 1 6 1 8
B. Other Conventions
Number of cases given
special mention 48 38 23 12 113
Partial progress 3 31 23 15 36
Total progress 4 22 22 2 50
N.B. See notes in table 6.
Table 8 contains a breakdown of the figures according to the subject-matter
of the Conventions concerned, distinguishing between instruments dealing with
certain basic human rights and other Conventions of an essentially technical
nature. It shows that over the years there has been a gradual increase in the
number of cases of special listing or special paragraphs concerning basic human
rights Conventions, accompanied by a decline in cases concerning other Conventions.
In respect of the former group of Conventions, the shortcomings
concerned have been eliminated in one-sixth of the cases and there has been
partial progress in just over a quarter of the cases. For technical Conventions, the
results have been greater: total progress in 44 per cent and partial progress in 32
per cent of the cases. The extent to which cases concerning technical Conventions
have been the subject of progress in application may partly explain the
decline in their number. The figures also reflect the more complex nature of the
problems encountered in the application of the Conventions dealing with freedom
of association, forced labour and discrimination.
The figures set out in the above-mentioned tables should not be taken as
expressing the sum total of experience in the functioning of the system of highlighting
employed by the Conference Committee. The Committee has frequently
deferred a decision to give special mention to a case after receiving an undertaking
that action would be taken to deal with the shortcomings in the application
of the Convention under discussion. Members of the Committee have also
given warning at various times that, failing improvement in the situation when a
case was next discussed, they would propose special listing or a special paragraph.
The possibility of special mention thus constitutes an inducement to
adopt remedial measures.
34
International labour standards
The preceding analysis leads to the conclusion that the method of highlighting
employed by the Conference Committee has had an impact in leading to
improved application of ratified Conventions, particularly when it is borne in
mind that it has been used mainly for cases in which the comments of the
supervisory bodies had not been acted upon over a considerable period of time.
There nevertheless remains the fact that a number of member States feel that the
system does not give guarantees of fair and equitable application and that decisions
are largely influenced by political considerations. There are two ways of
looking at these arguments. One would be to consider that, while expert evaluation
is an essential part of ILO supervision, review of compliance with Conventions
should not be the affair solely of experts, and that the governments,
employers and workers who make up the Organisation's constituents should also
have an opportunity, in the light of the experts' conclusions, to examine and state
their position on the problems encountered. Delegates and advisers who attend
the Conference no doubt feel that they should have a say in these matters.
Another view would be that, even though the Committee's conclusions have no
binding force, they constitute an assessment of compliance with obligations and
that the making of such an assessment by means of a majority decision in a
politically composed body does not square with the notion of due process of
law.
A related matter to be taken into account concerns the difficulties which
have been encountered on several occasions at the stage of consideration of the
Conference Committee's report by the Conference. As already recalled, there
have been three occasions when, for lack of a quorum in plenary session of the
Conference, the report was not adopted. Although this did not prevent the
Committee's discussions from remaining part of the record nor in any way affect
the conclusions of the Committee of Experts, such occurrences, when repeated,
tend to weaken the moral thrust of the supervisory system.
Having regard to these various factors, it is a matter for consideration by the
Conference Committee and by the Conference itself whether it would be desirable
and potentially fruitful to examine the Committee's methods further.
One point which it may be well to remember in this discussion is that the
different parts of the ILO supervisory system do not operate in isolation, but
constitute complementary components. Although the discussions in the Conference
Committee and in the Conference mark the final stage of what we term
regular supervision, any failure to reach a consensus there or to secure acceptance
of the views of the supervisory bodies by the government concerned need not be
left as the final outcome of ILO supervision. There remains the possibility
(already mentioned) of having the issue considered under the constitutional
complaints procedure and by the International Court of Justice. Recourse to
those procedures would obviate the fear of conclusions determined by political
considerations and provide all parties with the guarantees inherent in a quasijudicial
or judicial process.
Recourse to the many procedures set forth in the Constitution or developed
over the years by the Governing Body should clearly be backed by all necessary
35
Report of the Director-General
guarantees of objectivity. These procedures should be resorted to only in the
most responsible manner in clear cases of violation of fundamental Conventions,
particularly those relating to human rights. Approached in this manner,
recourse to these procedures offers the only genuine means of respecting the rules
of due process of law. It would give its true meaning to the work of the Conference
Committee on the Application of Conventions and Recommendations,
which retains an essential role, for, by reason of its tripartite composition and
through the information it receives from the Committee of Experts, the questions
it addresses to governments and the replies which it obtains, this Committee
is particularly well placed to appreciate the conditions in which international
labour Conventions are applied. Over the years the Committee has
reported on its discussions with increasing care, recording progress as well as
expressing its concern at cases of failure to comply with the requirements of ILO
Conventions or at the refusal or omission of governments to supply the reports
due from them. The tripartite debates in the Committee ought to be as thoroughgoing
as possible and they should be reported with the greatest care. An opportunity
remains for delegates to make comments in plenary sitting at the Conference
not only on the report of the Conference Committee but also on the
report of the Committee of Experts, which must remain the essential instrument
for critical evaluation of the application of Conventions. The work thus performed
by the Conference Committee and carried forward, where necessary, in
plenary sitting at the Conference, should make it possible to project each year, for
the benefit of all governments, of employers and workers, and of public opinion,
a complete image of the situation with respect to international labour Convenions,
progress in their ratification and application, and the difficulties encountered.
On this basis, it would be for the Conference, when adopting or noting the
report submitted by the tripartite Committee, to include in its record the comments
made in plenary sitting by delegates who wished to express their views.
Beyond this, in critical situations, particularly with respect to fundamental
Conventions, there would remain the possibility, to which I have referred above,
to have recourse to the complaints procedure and, in what I would presume to be
exceptional cases, to seek an interpretation from the International Court of
Justice.
The preceding remarks have concerned the Conference Committee's manner
of highlighting serious problems in the application of ratified Conventions.
The Committee also draws attention to various cases of failure to supply reports
and information, by reference to a series of factual, objective criteria.30 It decided
in 1980 no longer to enumerate these cases in a composite list, but to set them out
in the corresponding sections of its report. It also decided to mention any
explanations of difficulties encountered in meeting their reporting obligations
provided by the governments concerned. These changes have generally been
welcomed. Only a relatively limited number of countries have been mentioned
in recent years under the criteria in question. Almost all were least developed
countries suffering from administrative difficulties or countries suffering dis-
36
International labour standards
ruption due to natural calamities or armed conflict. Sometimes the mentions
refer to shortcomings of a rather limited nature, such as the non-supply for two
years of a single first report (even when other first reports due have been submitted)
or the failure to reply to one or two comments by the Committee of
Experts if they happen to be the only ones calling for a reply. Such cases are
hardly comparable in gravity to such shortcomings as failure for five years to
provide any of the reports requested on unratified Conventions and on Recommendations
or failure to provide indications regarding submission to the competent
authorities of the instruments adopted at seven consecutive sessions of
the Conference. The Conference Committee may wish to consider whether some
further refinement of the so-called objective criteria used would be justified, in
terms of their quantitative or qualitative importance.
When it revised its methods in 1980, the Conference Committee decided to
introduce an additional factual criterion for countries which in the preceding
three years have failed to indicate the representative organisations of employers
and workers to which, in accordance with article 23 (2) of the ILO Constitution,
copies of the reports and information supplied to the ILO under articles 19 and
22 have been communicated. It is of interest to note that so far no country has
had to be listed under this criterion.
One aspect of the work of the Conference Committee which has continued
to be a source of complaint by certain countries is the fact that States which have
not ratified a particular Convention and thus are immune from criticism may
nevertheless participate freely in discussions and in reaching conclusions concerning
its application by States which have ratified it. The legal position in this
respect appears clear. All delegates and advisers are on an equal footing regarding
participation in the work of Conference committees. Furthermore, the work of
the Committee is concerned with reviewing the manner in which States fulfil
their obligations in respect of ILO standards towards the Organisation as a
whole. The fact that a State has not itself ratified a Convention under discussion
affects the moral and political credibility of any criticism which it directs at other
States rather than its legal rights of participation in the work of the Conference.
The only legal disability to which a government is subject is that it cannot file a
complaint under article 26(1) of the Constitution in respect of the application by
another State of a Convention which it has not itself ratified.
Complaints and representations
As has already been recalled, the regular or routine supervision procedures
are supplemented by the possibilities of having particular problems in the
application of ratified Conventions examined under the constitutional procedures
of representations or complaints. Under article 24 of the Constitution, a
representation may be made by any employers' or workers' organisation,
whereas under article 26 the complaints procedure may be initiated by another
State which has ratified the Convention concerned or by the Governing Body,
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Report of the Director-General
acting on its own initiative or on a complaint from a delegate to the Conference.
When the Governing Body undertook its in-depth review of international labour
standards in 1974, it was pointed out that, although only limited recourse had
been had to these procedures, they provided a useful means for thorough examination
of important cases which it had not been possible to resolve within the
framework of regular supervision. The only proposal then made in regard to the
constitutional procedures was to update the standing orders for the examination
of representations.31 That action has since been taken.32
Although the total number of complaints and representations submitted
(respectively 14 and 20) is not great, there has been increasing resort to them,
particularly — though not exclusively — in respect of Conventions concerning
basic human rights. The first 40 years of the ILO's existence saw only one
complaint (settled without reference to a commission of inquiry) and seven
representations. Since 1961 there have been 13 complaints and 13 representations
(seven of the latter lodged in the past three years). Of the 13 complaints,
seven were referred to a commission of inquiry, three were referred to the
Committee on Freedom of Association, one was settled to the satisfaction of the
parties, and two related complaints were the subject of direct contacts by agreement
between the parties, followed by an ILO technical co-operation mission. Of
the 13 representations received since 1965, two were found irreceivable, two led
to denunciation of the Convention concerned, one was settled to the satisfaction
of the organisation which had submitted the representation, one was referred to
the Committee on Freedom of Association, and two are currently under examination.
In the remaining five cases, following conclusion of their consideration
by the Governing Body, the issues involved have continued to be the subject of
examination by the regular supervisory bodies. In only one case did the Governing
Body decide, in accordance with article 25 of the Constitution, to publish
the representation and the reply received.
The increasing resort to the constitutional procedures suggests not only a
growing awareness of the possibilities of more comprehensive investigation
offered by them, but also that their functioning in previous cases has been
considered by the ILO's constituents to have yielded useful results. Reference
has been made earlier in this section to the role which the complaints procedure
may play as a means of dealing with unresolved major issues in the application of
ratified Conventions and as a further stage of supervision beyond the discussions
in the Conference Committee. In view of the composition of commissions of
inquiry and their powers of investigation (including the taking of formal evidence
and on-the-spot inquiries), they are particularly well placed to assume
such responsibilities. The representations procedure, on the other hand, offers
less extensive possibilities as a means of impartial fact finding and adjudication.
Under the standing orders governing this procedure, when a representation has
been communicated to the Governing Body, the latter may at any time initiate
the complaints procedure in respect of the matters raised, that is, refer them to a
commission of inquiry in exercise of its powers under article 26 (4) of the
Constitution.33 Where a representation involves complex matters of fact or law,
38
International labour standards
it would be desirable for the Governing Body to examine carefully whether its
reference to a commission of inquiry would not be the appropriate course.
It should also be remembered that employers' and workers' organisations
may submit comments for consideration by the Committee of Experts. In recent
years, following action by the Office to acquaint the organisations better with the
opportunities open to them and to inform representative national organisations
of the comments of the Committee of Experts relating to their country, there has
been a considerable increase in the number of such comments. Any observations
received by the ILO from employers' or workers' organisations regarding the
implementation of ILO standards are brought to the attention of the Committee
of Experts at the next session, even when a detailed report on the Convention is
not due from the government concerned. Organisations might usefully consider
the communication of comments for examination by the Committee of Experts
as a simpler and frequently more expeditious alternative to lodging a representation.
There are also other means for seeking solutions to unresolved issues in the
application of ratified Conventions relying on discussion and mediation rather
than adjudication. The direct-contacts procedure is aimed at providing an
opportunity, through dialogue with the governments concerned, to examine
more fully issues raised in the comments of the Committee of Experts. In
practice, in the many cases where a government has recognised the validity of the
comments but wished to have advice on the best way of removing the discrepancies
concerned, direct contacts have assumed the character more of technical
assistance. In some instances, however, they have been used for the purpose of
clarifying the considerations underlying the comments made by the supervisory
bodies, enabling the government to explain its view of the situation in greater
detail and exploring ways of complying with the Conventions in question which
would at the same time take account of national concerns. A particularly interesting
example is provided by the suggestion made by the representative of the
Netherlands trade unions at the Conference in 1983, and subsequently accepted
by the Government of the Netherlands, to request direct contacts in respect of
the Freedom of Association and Protection of the Right to Organise Convention
to consider the restrictions on free collective bargaining resulting from wage
limitation measures which have been in force for a number of years and to which
objections have been voiced by Netherlands employers' organisations as well as
by the trade unions.
Special machinery for examining allegations of
violation of trade union rights
Following the adoption of Conventions relating to freedom of association,
the right to organise and collective bargaining in 1948 and 1949, the Governing
Body decided in 1950 to establish special machinery for the examination of
allegations of violation of trade union rights. It was clearly understood that this
machinery would operate not as a substitute for, but as a supplement to, the
general procedures for supervising the application of ratified Conventions. The
39
Report of the Director-General
system of regular supervision through the Committee of Experts and the Conference
Committee on the Application of Conventions and Recommendations,
as well as the constitutional provisions relating to complaints and representations,
apply to the Conventions dealing with trade union rights in the same way
as to other Conventions. The special machinery was seen particularly as affording
facilities for the impartial and authoritative investigation of allegations
concerning questions of fact.
Two essential concerns underlie the special machinery for the protection of
trade union rights. On the one hand, there is recognition of the major contribution
which free and effective organisations can make to the promotion of
social progress and development. The affirmation in the ILO Constitution that
"freedom of expression and of association are essential to sustained progress"
has been echoed on many occasions by the International Labour Conference and
other ILO meetings. In the second place, there is the importance of freedom of
association for the functioning of the ILO itself, as a tripartite organisation.
Although the freedom of association complaints machinery was created by
decision of the Governing Body, subsequently endorsed by the Conference, its
basis is to be found in the commitment of all member States to the constitutional
objectives of the ILO which include recognition of the principle of freedom of
association. During consideration of the procedure at the 33rd Session of the
Conference in 1950, it was observed that, when accusations were made against a
member State regarding trade union rights, "it is the duty of the Organisation to
examine the foundation of these accusations".34 The Committee on Freedom of
Association, in its first report, emphasised that the ILO "must not hesitate to
discuss in an international forum cases which are of such a character as to affect
substantially the attainment of the aims and purposes of the International
Labour Organisation as set forth in the Constitution of the Organisation, the
Declaration of Philadelphia and the various Conventions concerning freedom of
association".35
The special complaints machinery was established in agreement with the
United Nations, whose Economic and Social Council decided in 1950 to accept
the services of the Fact-Finding and Conciliation Commission on behalf of the
United Nations. Consequently, on occasion, cases concerning States which at the
time were members of the United Nations but not of the ILO have been referred
to the Commission, with the consent of the governments concerned. Following
the establishment in 1951 of the Governing Body Committee on Freedom of
Association, the Economic and Social Council also decided, in 1953, that allegations
of infringements of trade union rights received by the United Nations
which related to member States of the ILO should be forwarded to the Governing
Body.
The scope for investigation offered by the special machinery is, in several
respects, wider than under the general system of supervision applicable to ratified
Conventions. Since the procedure has its basis in the constitutional principle
of freedom of association, it can be invoked whether or not the country concerned
has ratified the relevant Conventions. Furthermore, although the Com-
40
International labour standards
mittee on Freedom of Association and the Fact-Finding and Conciliation Commission
draw upon the provisions of those Conventions in examining cases and
take account of any obligations existing as a result of ratifications,36 they have
also had occasion to consider and to reach conclusions on aspects of the exercise
of trade union rights which are not specifically dealt with in existing Conventions.
To date only five cases have been referred to the Fact-Finding and Conciliation
Commission. The main responsibility for the examination of complaints
has fallen on the Committee on Freedom of Association, which over a period of
30 years has dealt with more than 1,200 cases. Incidental to its primary role of
seeking to clarify and to suggest solutions for the situations brought before it, the
Committee has been instrumental in building up an important body of decisions
indicating the manner in which the principles of freedom of association should
apply in many varied circumstances.37 These decisions can exert a useful preventive
influence in enabling governments and organisations to take account of
the relevant standards and principles in their activities and relations and in
encouraging them to resolve problems without the need for recourse to the
ILO.
In the great majority of cases the governments concerned have co-operated
in the examination of complaints, although not always as expeditiously as would
have been desirable. It has been stressed that, while the procedure is aimed at
protecting organisations against infringements of trade union rights, it is also
designed to protect governments against unfair or unsubstantiated accusations.38
It is therefore in the interest of governments to provide detailed replies to
complaints. The extent to which they have collaborated in the operation of the
procedure shows the confidence which it has secured among member States.
There has been a marked increase in the number of cases submitted to the
Committee on Freedom of Association in recent years. Before 1980 they averaged
around 30 a year. Since then the numbers have been as follows: 1980 — 66
cases; 1981 — 88 cases; 1982 — 70cases; 1983 — 76 cases. This increase reflects
both an overall aggravation of the problems encountered by occupational organisations
at a time of considerable economic and political instability and a greater
awareness of the opportunities afforded by the ILO machinery for impartial
international examination of national conflicts and difficulties. In the past seven
years, complaints have been considered in respect of 72 of the 150 member
States. An increasing number of complaints are being submitted in respect of
countries where trade union freedom in general is not at stake. While the issues
raised in these cases tend to be relatively narrow in scope, they are often also of
considerable complexity. These cases suggest that authoritative guidance from
the Committee is seen as a useful contribution to the development of industrial
relations in the countries concerned.
As has already been recalled, when the procedure was established, particular
emphasis was placed on the means it would provide for examining issues of fact.
Although the Committee on Freedom of Association is regularly called upon to
examine matters relating to legislation, the greater part of its work is concerned
41
Report of the Director-General
with allegations of a factual nature or arising from the application of law. In the
past five years, 45 per cent of the cases examined have involved questions of life
and liberty (arrests, detention, persecution, exile, deaths or disappearances). In
30 per cent there have been allegations of government interference in the activities
of trade unions. Thirty per cent have involved issues of unfair labour
practices (dismissals, transfers and other forms of anti-union discrimination,
recognition questions, etc.) Twenty-five per cent have involved issues concerning
collective bargaining and strikes.
The Committee on Freedom of Association has constantly endeavoured to
develop its methods, particularly with a view to accelerating the consideration of
cases and in order to obtain clear information on the issues before it. In its 193rd
report, in 1979, the Committee reviewed improvements in its procedure made in
the past and put forward a series of further recommendations, which the
Governing Body approved in May 1979. The matters reviewed included quicker
communication with complainants and with governments, on-the-spot
missions including preliminary contact missions immediately following the
receipt of a complaint, and arrangements for hearing parties to a complaint.
It may be useful to indicate the extent to which various procedural formulas
have been used since the beginning of 1980. On three occasions a representative
of the government concerned has appeared before the Committee on Freedom of
Association. There have been 19 direct contacts or other on-the-spot missions,
two of which took place as a matter of urgency very shortly after the receipt of the
complaint. Seven of these missions were accepted by the government concerned
in response to a request by the Committee. In two other cases, a similar request
has not so far received an answer. In six cases, the Chairman of the Committee
had discussions during sessions of the Conference with representatives of governments
from which replies to complaints or to requests for information had
been outstanding for a considerable time. In five of these cases the government
concerned subsequently sent information. In 32 cases the Committee has
addressed urgent appeals to governments which had failed to submit information
or observations, indicating that, if no reply was received by its next session,
it would nevertheless examine the substance of the complaints. In 30 cases,
following such appeals, the governments concerned provided information. On
the other hand, in two cases the Committee has had to examine the complaints
without a reply from the government.
The Committee's procedure provides for the possibility of inviting governments
to indicate the action taken on recommendations approved by the Governing
Body. The Committee has been making increasing use of this power,
which enables it to maintain the thrust of its work and to ascertain the impact of
its recommendations. Among the positive developments noted by the Committee
in recent years in cases which had come before it have been the release of a
substantial number of trade unionists from arrest or detention or their return
from exile, the reinstatement of workers dismissed as a result of labour disputes,
the cancellation of decisions dissolving an organisation or removing trade union
leaders from office, the grant or restoration of the legal personality of trade
42
International labour standards
unions, the restoration of the right to strike, the ending of government supervision
of trade unions, and in some instances major changes in trade union
legislation, particularly in connection with changes in a country's political
regime.39
The great increase in the number of complaints coming before the Committee
on Freedom of Association and their growing complexity have imposed
strains "both on the staff responsible for servicing the Committee and on the
Committee itself. It will be important to ensure that adequate resources and time
are made available to permit the satisfactory operation of this important procedure.
As has been noted, complaints have been submitted to the Committee on
Freedom of Association in recent years in respect of roughly half the ILO's
membership. The cases have related to countries in all parts of the world, with
varied political, economic and social systems. Notwithstanding this diversity in
the coverage of the Committee's work, a proportionately larger number of
complaints has continued to be received in respect of countries in Latin America
and the Caribbean than for other regions. In the past five years, 46 per cent of
cases have concerned these countries. From the information available from
other sources, including the examination of reports by the Committee of Experts,
it is evident that this is not a true reflection of the relative gravity of the difficulties
encountered by trade unions in that region as compared with countries
elsewhere and that serious restrictions on trade union rights are also to be found
in a number of countries which have not been the subject of complaints. The lack
of recourse to the ILO complaints procedure may at times reflect the weakness or
vulnerability of trade union movements. The geographically uneven utilisation
of the procedure may be regretted, but it is not a matter which the ILO as such
can correct. By definition, a complaints procedure is a facility whose activation
depends on the initiative of outside parties. While the ILO can take measures to
promote the widest possible knowledge and understanding of its standards and
procedures (a question further examined later in this section), it is not the task of
the Organisation to promote the presentation of complaints. For an evaluation
of the extent of enjoyment of freedom of association among ILO member States
as a whole, reliance has to be placed rather on the regular supervision procedures,
including the general surveys made by the Committee of Experts. It will be
recalled that in 1983 such a survey was made in respect of freedom of association
and collective bargaining.40
There has always been concern to make the freedom of association complaints
procedure operate more quickly and more incisively. The developments
in the procedure introduced over the years have been directed essentially to these
ends. Two considerations need to be borne in mind in this connection.
In the first place, the ultimate success of the procedure depends on securing
the co-operation of the States concerned. The methods employed must accordingly
maintain an appropriate balance between the moral pressure exerted by the
Organisation in favour of observance of freedom of association and the realisation
by the governments concerned of their own interest in collaborating in the
43
Report of the Director-General
procedure. Governments, as well as complainants, must be convinced that all
cases will be examined with the utmost thoroughness and fairness. Consequently,
the need to secure the greatest possible knowledge of the facts from all
the parties may have to take precedence over the speedy disposition of cases.
The second point relates to the adequacy of the measures at the disposal of
the Committee on Freedom of Association to reach conclusions on questions of
fact. Essentially, the procedure is still based on written submissions. Where the
Committee is presented with contradictory statements as to the facts, it faces
great difficulty in reaching decisions. In such cases, more direct methods of fact
finding are called for. It would be desirable in the years to come to promote
greater use of such methods. They could take the form of direct contacts and
other on-the-spot missions which are carried out by a representative of the
Director-General who can be either an ILO official or an independent person.
Consideration might also be given to referring certain complaints to the Fact
Finding and Conciliation Commission or to a Commission of Inquiry appointed
under article 26 of the ILO Constitution, if the issues involved the observance of
a Convention ratified by the State in question.
It is of course the duty of complainants to substantiate their allegations. In
cases requiring urgent action, this may not always be immediately possible, but
even then every effort should be made to provide full information in support of
the complaint at the earliest opportunity. In other cases, it would be desirable for
complainants to present all relevant information at the time of submitting their
allegations, so as to enable both the government concerned and the Committee
on Freedom of Association to have a clear understanding of the issues and to
facilitate rapid consideration of the case.
It does not appear necessary to envisage any changes in the rules governing
receivability of complaints. Like other ILO complaints procedures — and in
contrast to many other international procedures of investigation and settlement
of disputes — the freedom of association complaints procedure does not impose
any requirement to exhaust local remedies before submitting a complaint,
although the Committee on Freedom of Association may defer consideration of
a case where proceedings are pendingin a national court and has also in certain
cases in its examination of substance taken account pf failure to have recourse to
national remedies. Leaving aside the legal aspects of the question, organisations
should as a matter of practice, at least in cases of a more limited or technical
character, seek to resolve their difficulties through discussions or other action at
the national level before invoking the ILO procedure.
The foregoing remarks have been concerned with procedural questions. A
more general issue, concerning the composition of the Committee on Freedom
of Association, also calls for comment. Spokesmen for socialist countries have
complained that they are not represented on the Committee, and have called for
re-examination of its composition on the basis of equitable representation of
various regions and socio-economic systems.41 This is a matter for consideration
by the Governing Body, as the authority which determines the membership of its
committees.
44
International labour standards
In any case in which it is felt that the procedure of the Committee does not
afford a sufficient opportunity for the government's position to be justly assessed
or where a government feels that the Committee's conclusions and recommendations
are misconceived, it may, apart from providing clarification to the
Governing Body itself, request the latter to refer the case for further examination
of all the issues to the Fact-Finding and Conciliation Commission or, as appropriate,
to a Commission of Inquiry.
The question has at times been raised whether, in cases of serious violations
of trade union rights in which the recommendations made by the Committee and
the Governing Body remain unimplemented, measures such as the withholding
of technical co-operation might be taken.42 It has been recognised that it would
be difficult to lay down any general rule in this respect, each case having to be
considered in the light of its particular circumstances. There may be situations in
which serious obstacles would stand in the way of effective implementation of
certain technical co-operation projects, and where therefore the question of their
feasibility has to be carefully examined. There are others in which ILO projects
would still contribute to the improvement of living and working conditions, and
where an ILO presence and the opportunity which it offered for contacts with
local organisations and institutions could also help to prepare the ground for a
more positive response to the Organisation's endeavours to ensure the enjoyment
of trade union freedom. It is appropriate to recall the discussions which
took place in the Governing Body in 1968 on the relationship of technical
co-operation and observance of human rights. The Governing Body decided, in
particular, that "it is the policy of the ILO to take decisions concerning requests
or proposals for aid to or co-operation with any member State on the basis of the
extent to which the request or proposal will further the aims and purposes of the
ILO and in particular the central aim defined in the Declaration of Philadelphia
that 'all human beings, irrespective of race, creed or sex have the right to pursue
both their material well-being and their spiritual development in conditions of
freedom and dignity, of economic security and equal opportunity'". The Governing
Body at the same time made it clear that the grant of assistance was
"subject to the normal supervision and control that the ILO exercises over all its
technical co-operation programmes in the interest of its Members".43
The promotion of freedom of association should not be seen solely in terms
of the procedures for supervising the implementation of the Conventions in this
field and of the examination of violations of trade union rights. It should be
recalled that one of the purposes of the latter procedure was to provide facilities
for conciliation in the event of disputes. While this aspect of the complaints
procedure has tended to be obscured against the background of the treatment
mainly on a documentary basis of a large volume of allegations, direct contacts
missions have frequently provided an opportunity, through discussions with the
various parties, to explore possible solutions. It would clearly be desirable to
develop further all forms of action through which the Organisation can contribute
to the settlement of conflicts in this vital area.
It is also in the perspective of measures to promote freedom of association
45
Report of the Director-General
that it appears appropriate to review the programme of special studies concerning
the trade union situation and industrial relations in selected countries in
Europe which was initiated during the 1982-83 budget period.
Special studies of the trade union situation and industrial relations
system in selected countries in Europe
These studies were undertaken in response to resolutions adopted by the
Second and Third European Regional Conferences held in 1974 and 1979. Their
aim is to provide an objective analysis of the trade union situation and industrial
relations in the countries concerned and to consider the basic issues which arise
in these fields in the light of the relevant ILO standards.44 So far two studies,
relating to Norway and Hungary, have been completed. Two more, in respect of
Yugoslavia and Spain, are in progress. A fifth study is provided for in the budget
for 1984-85, with a sixth contemplated for the following biennium.
It is appropriate to recall that this is not the first occasion on which the ILO
has undertaken studies in the field of freedom of association outside the framework
of its supervision procedures. Comprehensive studies were undertaken in
the 1920s. In the 1950s there was the inquiry into the freedom and independence
of employers' and workers' organisations undertaken by a committee under the
chairmanship of Lord McNair. Between 1959 and 1962 missions were undertaken
to a number of countries to make factual surveys of freedom of association.
The current studies concerning European countries are carried out by ILO
officials. They are based on a thorough examination of all available documentary
material concerning the legal situation (including judicial decisions and legal
literature) and practice, as well as visits to the countries for discussions with a
wide range of persons involved in or having specialised knowledge of the operation
of the trade union and industrial relations system. The studies are reviewed
by a tripartite working group of the Governing Body before being presented to
the Governing Body. They are due to be brought to the attention of the next
European Regional Conference.
These studies are not intended to replace or in any way prejudice the functioning
of the various supervisory and complaints procedures. They differ
significantly in purpose and nature from those procedures. The latter, by reason
of their function, necessarily concentrate on identifying shortcomings, in terms
of legal principles and obligations. Where called upon to examine complaints,
supervisory bodies must deal with the specific issues submitted to them, without
making any general evaluation of the trade union situation; furthermore, as has
been noted, in the absence of complaints, they are unable to intervene, even if the
exercise of trade union rights in a given country encounters serious problems.
The studies, on the other hand, are undertaken in the absence of any complaint,
and indeed would be difficult to carry out in a situation where serious tensions
existed in relation to ILO standards on freedom of association and industrial
46
International labour standards
relations. The discussions during the missions to the countries concerned are
wide-ranging and, since they are unrelated to any conflictual situation, can more
easily permit a frank and calm examination of problems and difficulties. The
resulting reports seek to give an overall indication of the situation which is not
purely descriptive but also involves critical analysis. The reports, as indeed the
whole process leading to their preparation, can serve to clarify and suggest
improvements in policies and practices, in the light of the relevant ILO standards.
Their value in promoting a wider knowledge and understanding of ILO
standards and in stimulating new thinking on the best means of implementing
these standards has been acknowledged by both governments and organisations
in the countries which have been the subject of studies.
In two resolutions adopted by the Sixth African Regional Conference in
October 1983, relating respectively to international labour standards and to
freedom of association, the Governing Body was invited to undertake studies
analysing the labour relations systems in Africa as a basis for frank and objective
exchanges of ideas and experience.45
There may thus be an opportunity in the years to come to extend to selected
African countries, and indeed to other regions, the kind of studies already
undertaken in Europe.
PROMOTIONAL MEASURES IN THE FIELD OF
INTERNATIONAL LABOUR STANDARDS
Since the beginning of 1960, the membership of the ILO has almost
doubled, rising from 80 to 150. Most of the new Members were newly independent
countries, almost all of them developing countries. Generally, their labour
administrations were not well prepared to deal with all the questions arising out
of membership of the ILO, including those concerning the adoption, ratification,
implementation and reporting on the application of ILO standards. They looked
to the ILO to provide advice and assistance on ways of meeting these new
responsibilities. The Office accordingly found it necessary to intensify its activities
in this field, in addition to technical co-operation aimed generally at the
improvement of labour administration and social legislation. The range of
measures available today includes direct contacts and less formal advisory
missions; the appointment of regional advisers and other forms of advice on
questions relating to international labour standards, seminars, training and
manuals, measures aimed at securing more active involvement of employers'
and workers' organisations and the promotion of tripartite consultations at the
national level on questions concerning ILO standards; regional discussions
concerning the ratification and implementation of ILO standards, and measures
aimed at closer integration of standards in operational activities. ILO regional
meetings have repeatedly emphasised the value of these measures and called for
their intensification. It is appropriate to review the various forms of action and
to examine how far they might be strengthened or supplemented.
47
Report of the Director-General
Direct contacts, advisory missions, regional advisers
The procedure of direct contacts was originally proposed by the Committee
of Experts on the Application of Conventions and Recommendations as a means
of permitting more direct and thorough discussion of cases in which its normal
procedure, based on the exchange of written reports and written comments, had
not led to the elimination of difficulties in the application of ratified Conventions.
The procedure started to operate in 1969. Ten years later it had been
resorted to by 28 countries concerning 222 cases of application of ratified Conventions,
involving 68 different Conventions. By then, progress had been noted
by the Committee of Experts in 23 of the countries concerned, affecting 115 cases
and relating to 56 of the Conventions in question.46
In practice, direct contacts have been used for much more varied ends than
originally envisaged. In regard to the application of ratified Conventions they
have served, according to circumstances, three main purposes: in some cases, to
clarify and seek solutions to unresolved issues; in others, to ascertain facts in
relation to the observance of Conventions; in yet others, where the substance of
the comments made by the supervisory bodies was not contested, to examine
and provide advice on the best means of eliminating shortcomings. The scope of
direct contacts was also widened to include questions relating to the discharge of
other obligations, such as the submission of Conventions and Recommendations
to the competent authorities and reporting obligations, as well as questions
concerning measures to be taken with a view to ratification of particular Conventions.
In one instance, in 1976, direct contacts missions were carried out in a
group of States (the Andean Group) to assess the possibilities of applying and
ratifying 25 selected Conventions as a means of harmonising their labour legislation;
since then, the total number of ratifications of the selected Conventions
by the States concerned has increased from 51 to 83. The direct contacts procedure
has also been used extensively within the framework of the examination
of complaints of violation of trade union rights by the Committee on Freedom of
Association.
The practice of less formal advisory missions by ILO officials was also
developed, permitting a general review of questions concerning the implementation
and ratification of Conventions and of arrangements for meeting reporting
requirements. During both direct contacts and less formal missions, advice
and training have frequently been provided on administrative arrangements to
deal effectively with matters concerning the adoption and the implementation of
ILO instruments.
The benefits of these various activities to member States and the Organisation
itself were widely recognised and led to the suggestion, particularly at
regional meetings, of the appointment of regional advisers on international
labour standards. As from 1980, arrangements were made for part-time detachment
of officials from the International Labour Standards Department to provide
such advisory services in Africa, Asia and the Pacific, and Latin America. In
1983 full-time regional advisers were appointed for the last two of these regions.
48
International labour standards
For Africa the system of part-time detachments of headquarters staff has continued
to operate ; the budget for 1984-85 provides the same level of resources for
this purpose as in the other regions. In Western Asia the regional adviser on
labour administration is also providing advice on questions concerning ILO
standards.
The regional advisers have been assigned the following responsibilities:
1. To advise governments in all matters relating to the carrying out of their
obligations under ratified Conventions or under the ILO Constitution in respect
of international labour standards. This includes: advising governments on their
replies to questionnaires concerning items on the agenda of the International
Labour Conference as well as their comments on proposed texts to be discussed
by the Conference; clarifying the nature and scope of the various reporting
obligations; explaining the comments made by the ILO's supervisory bodies;
advising on measures to be taken in order to overcome difficulties encountered,
including assistance in the drafting of necessary legislative amendments, etc. ;
assistance, where necessary, in the drafting of government reports ; advice in
connection with the submission of Conventions and Recommendations to the
national competent authorities; advice in respect of the ratification of further
Conventions; promoting tripartism in matters relating to ILO standards, in
particular the establishment of procedures for tripartite consultations along the
lines set out in Convention No. 144.
2. To provide information as regards matters arising under the special
complaints procedure in cases of alleged violations of trade union rights and, in
particular, to approach governments which delay in transmitting the information
or observations requested from them.
3. To establish and maintain the closest possible relations with employers'
and workers' organisations, informing and advising them in matters relating to
ILO standards and procedures.
4. Within the context of 1 to 3 above, to carry out informal advisory
missions to countries of the region concerned as well as more formal missions
(direct contacts) as appropriate.
5. To convey systematically to the International Labour Standards Department,
to the Regional Director and to other ILO offices in the region all pertinent
information arising out of the performance of functions as described above.
6. To assist in the preparation and carrying out of standards-related meetings
(seminars, symposia, etc.) to be held in the region, as well as of any direct
contacts missions which may be carried out from headquarters.
7. To contribute to the preparation of reports on standards-related matters
for submission to meetings of regional advisory committees and regional conferences
and to participate in such meetings.
8. To advise staff of ILO offices and technical co-operation experts on all
aspects of standards having a bearing on their work, with a view to ensuring that
49
Report of the Director-General
relevant ILO standards are taken fully into account in ILO action in the
region.
Other advisory services
Advice on questions concerning international labour standards may be
obtained from the Office in various ways other than in the course of visits by ILO
officials to individual countries. At sessions of the International Labour Conference
and also at regional conferences there is a special service to provide
information on such questions, which may concern substantive problems
encountered in seeking to give effect to Conventions, both before and after
ratification, the clarification of comments made by supervisory bodies, or procedural
questions arising out of the constitutional obligations of member States.
Where necessary, discussions also take place with the relevant technical departments
of the Office. Contacts at conferences may also provide an opportunity for
examining the needs for further assistance, whether through technical co-operation
projects, advisory missions or fellowships for training in procedures relating
to Conventions and Recommendations.
Governments frequently seek guidance from the Office on the meaning of
particular provisions in Conventions, either when they are contemplating ratification
or, after ratification, when implementing measures are under consideration.
It has always been the practice of the Office to respond to such requests,
while making it clear that the ILO Constitution does not confer any special
competence upon it to give authentic interpretations of Conventions and that, in
the event of ratification, compliance with the standards in question would be
subject to the established supervisory procedures. Office opinions on the meaning
to be attached to Convention provisions seek to draw attention especially to
relevant elements in the preparatory work leading to their adoption and to views
already expressed by the supervisory bodies.47
Seminars
Since 1964 the ILO has organised a series of regional seminars for the
purpose of familiarising officials from labour ministries with procedures relating
to ILO Conventions and Recommendations and reviewing problems that arise
in their application. Initially these seminars were arranged in rotation for
English-speaking African countries, French-speaking African countries, Latin
American countries, and countries in Asia and the Pacific. Subsequently, the
programme was extended to include seminars for countries in the Caribbean, for
Arab countries and for countries in the South Pacific.
More recently, a number of tripartite seminars have also been organised.
Some have been on a regional or subregional basis, such as those held in Bangalore
in 1981 and in Bangkok in 1982 (the latter devoted to practice and
procedures in the drawing up of ILO standards). Others have been held on at the
national level.
50
International labour standards
Altogether, in the three-year period 1981-83, the ILO has organised or
participated in a total of 20 seminars dealing with international labour standards:
seven were regional or subregional seminars for government officials,
three were tripartite regional or subregional seminars, six were national tripartite
seminars, three were national seminars for government officials, for trade unions
and for employers respectively, and one was a national seminar for a wide
audience including public officials, academics, employers and trade union representatives.
In addition, during the 67th Session of the International Labour Conference,
in 1981, a tripartite seminar was held on national procedures for implementation
of the Tripartite Consultation (International Labour Standards) Convention,
1976 (No. 144), and its supplementary Recommendation (No. 152).
Immediately prior to the Sixth African Regional Conference in Tunis, in October
1983, the ILO organised a tripartite seminar there on freedom of association
for participants from Africa to review problems in the region in the application
of the relevant ILO standards and ILO procedures for the protection of trade
union rights.
Training and manuals
The regional and subregional seminars for officials from labour ministries
referred to above aim at training of officials responsible for dealing with matters
relating to the adoption and implementation of standards. They provide an
opportunity for a complete review of the relevant procedures, including practical
work, for discussion of certain substantive problems, and for a useful exchange of
experience among the participants.
The ILO also provides individual training to officials during stays at its
headquarters offices. In the period 1980-83 officials from 34 countries benefited
from such training.48
To provide systematic information on the relevant rules and practices, as a
guide principally for government officials called upon to deal with these questions,
a Manual on procedures relating to international labour Conventions and
Recommendations was published in 1965. It has been periodically revised, last in
1980.
Following the holding of the Regional Tripartite Seminar on Practice and
Procedures in Formulating Labour Standards, in Bangkok in 1982, a book on
the proceedings of this Seminar, including working papers and conclusions,
was published under the Asian and Pacific Project for Labour Administration
(ARPLA), as well as a brochure to provide guidance on these questions for delegates
attending the International Labour Conference.
A memorandum has also been prepared by the Office to provide guidance
on the establishment and functioning of national tripartite consultation arrangements
in accordance with Convention No. 144 and Recommendation No.
152.
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Report of the Director-General
Measures aimed at securing more active involvement of employers' and
workers' organisations and the promotion of tripartite consultations
at the national level on questions concerning ILO standards
Reference has been made earlier to the various ways in which employers'
and workers' organisations are called upon to participate in the functioning of
ILO supervisory mechanisms. The importance of their contribution to the
implementation of Conventions and Recommendations has been repeatedly
stressed by the supervisory bodies and also by the Conference, more particularly
in the resolutions calling for the strengthening of tripartism adopted in 1971 and
1977. The Committee of Experts has examined closely the manner in which
States fulfil the requirements in Conventions regarding the association and
consultation of employers' and workers' organisations in their implementation.
49 The Office has adopted various measures to inform employers' and
workers' organisations of the opportunities available to them for participating in
supervising the implementation of Conventions, as well as of the position of
individual countries with regard to ILO standards. Each year it sends letters to
central employers' and workers' organisations in member States, informing
them of the instruments on which reports are currently due from their government,
together with copies of any comments made by the Committee of Experts
on the Conventions concerned. In response to requests from Workers' delegates
at the Conference, the Office has organised study courses on ILO standardsetting
and supervisory procedures for worker representatives attending sessions
of the International Labour Conference and regional conferences.
These measures — together with regular discussions at regional meetings
concerning the implementation of standards — have led to a more active interest
in the implementation of ILO instruments among occupational organisations.
This has found reflection, for example, in a marked increase in the number of
comments from employers' and workers' organisations brought to the attention
of the Committee of Experts. In the period 1979 to 1983 an average of 65 such
comments were noted by the Committee of Experts each year, a fivefold increase
as compared with the situation ten years earlier. Three-quarters of the comments
came from workers' organisations, one quarter from employers' organisations.
If one compares the number of comments from occupational organisations
with the total number of reports examined each year and also with the total
number of ratifications (since comments may be communicated irrespective of
whether a detailed report is then due on the Convention concerned), one is led to
wonder whether there would not be much greater scope for using this relatively
simple method of bringing problems in the implementation of Conventions to
the attention of the supervisory bodies. That question appears all the more
pertinent when one compares the position of developed and developing countries.
In the past five years the great majority of the comments received from
employers' and workers' organisations (namely 78 per cent) have concerned
developed countries, and they have involved three-fifths of member States in
that category. On the other hand, among developing countries, only one in eight
52
International labour standards
member States has been the subject of comments.50 This raises the question how
far occupational organisations in less developed countries are equipped to deal
with the range of questions arising in relation to international labour standards.
One of the most important measures taken to follow up the 1971 Conference
resolution on the strengthening of tripartism was the adoption in 1976 of the
Tripartite Consultation (International Labour Standards) Convention (No. 144)
and the Tripartite Consultation (Activities of the International Labour Organisation)
Recommendation (No. 152). The Convention has so far been ratified by
34 States, of which 16 are in Europe (all of them in Western Europe), five in
Africa, nine in the American region, and four in Asia and the Pacific. The Office
has given special attention in its advisory work and other contacts with governments
to the establishment of consultation arrangements as provided for in these
instruments. As mentioned earlier, a memorandum to provide guidance on the
matter was prepared. The functions of the regional advisers on international
labour standards include responsibility for promoting the establishment of such
arrangements. The General Survey prepared by the Committee of Experts on the
Application of Conventions and Recommendations in 1982, following the submission
of reports on the above-mentioned instruments under article 19 of the
Constitution, served to clarify a number of aspects and to stimulate new efforts
to implement these standards.51 It is evident from that survey and from other
sources52 that in a considerable number of countries which have not yet ratified
Convention No. 144 consultative procedures of the kind provided for in the
Convention exist.
The operation of effective tripartite consultation on the matters covered in
Convention No. 144 offers the best guarantee that questions concerning the
formulation and implementation of ILO standards will receive systematic and
thorough consideration by those directly concerned. The establishment and
strengthening of national arrangements for these purposes must therefore constitute
a priority objective for the ILO in the years ahead. The Organisation
should seek to increase its assistance to member States in this connection,
through advice not only on the form of the consultation procedures but also on
the administrative arrangements which are required, both in the responsible
government services and within the central organisations of employers and
workers, to provide a firm infrastructure for regular and meaningful discussions.
Such assistance could extend to questions concerning the organisation and
training of secretariat services, documentation, and patterns of meetings or other
forms of consultation, having regard to the timing and sequence of the various
ILO procedures and activities in relation to which consultation should take
place.
Developments on these lines should make it possible to resolve a number of
issues through discussions at the national level without their becoming the
subject of comments by ILO supervisory bodies and also to determine reasonably
rapidly the action to be taken in response to any comments made by such
bodies.
53
Report of the Director-General
In so far as these measures are aimed at assisting employers' and workers'
organisations to give systematic attention to questions arising in connection with
ILO standards and to participate effectively in national discussions on these
matters, they will need to be co-ordinated with the general ILO programme of
activities for the benefit of such organisations. A workers' education manual on
international labour standards was first published in 1978 and an updated
edition issued in 1982. The budget for 1984-85 makes provision for the preparation,
within the framework of the workers' education programme, of a training
guide on tripartite consultation and of booklets on the involvement of trade
unions in the application "of international labour standards.
Regional discussions
Since the early 1970s it has become the regular practice of advisory committees
and of regional conferences in Africa, the Americas and Asia and the
Pacific to review the position in their region as regards the application and
ratification of ILO Conventions. The reports presented to these meetings, in
addition to outlining the general situation and problems encountered, have also
examined the position with respect to the Conventions in particular fields such
as freedom of association, forced labour, discrimination in employment and
occupation, employment policy, labour inspection, wages and social security.
These discussions have led to the adoption of a series of resolutions and conclusions
which reveal a number of common preoccupations: insistence on the
need for flexibility in the formulation of standards to take due account of the
problems faced by developing countries, recognition of the importance of ILO
instruments in defining development policy objectives and of tripartite consultation
in this connection, and a desire for the development and full use of all
forms of ILO assistance to promote the application of the Organisation's standards.
These regional discussions have been an important factor leading to the
intensification of ILO practical action in the standards field which has been
noted above. There is a clear desire in all the regions for the continued review of
these questions by the regional bodies concerned.
As already mentioned, the reports presented to regional meetings on the
question of the ratification and application of Conventions have analysed the
position in selected fields. However, the limited time available at these meetings
has precluded any detailed discussion of such analyses, as distinct from an
examination of the general problems encountered by member States in regard to
ILO standards. It is only in the framework of the discussion of particular technical
items on the agenda of the regional meetings that it has been possible to
consider specific substantive questions. It would be useful if, in future, problems
arising in the implementation of ILO standards in given fields could be the
subject of discussion at separate meetings, such as tripartite seminars. An
example of this type of meeting is provided by the tripartite seminar on freedom
of association for African countries organised on the occasion of the recent
54
International labour standards
Regional Conference. Seminars of this kind might also be organised independently
of meetings of the regional bodies.
Regional seminars on questions concerning ILO standards have not so far
been organised for European member States. It would be useful to make good
this omission in years to come.
ILO standards and technical co-operation
It has been generally recognised that ILO standard-setting activities and
technical co-operation should be mutually supporting. Technical co-operation
should be one means of promoting the implementation of Conventions and
Recommendations. These instruments should be taken into account in the
conception of projects, in their execution and in any recommendations which
result from a project. The briefing of experts should cover the standards implications
of their work, and they should be made aware of the obligations binding
the country concerned as a result of the ratification of relevant Conventions as
well as of any problems noted in the application of those Conventions. A
memorandum for the use of technical co-operation experts defines their responsibilities
in regard to ILO standards. It draws their attention to the need to
respect the requirements of ratified Conventions, to take full account of Conventions
dealing with basic human rights (even when not ratified) and to draw
also, as far as practicable, on other unratified Conventions and Recommendations
as a source of authoritative guidance. There are also arrangements for the
checking by the competent department of draft reports on technical co-operation
projects involving standards-related issues.
The responsibilities of the regional advisers on international labour standards
include the provision of advice to technical co-operation experts on all
aspects of ILO standards having a bearing on their work. The regional advisers
can themselves furnish certain forms of assistance to governments, for example
advice on the type of measures to be taken to implement Conventions, information
on corresponding measures adopted in other countries, and assistance in
drafting legislative amendments to eliminate discrepancies or gaps in the application
of Conventions. In addition, they can be instrumental in identifying needs
and making recommendations for more extensive forms of technical co-operation.
In principle, therefore, the basis exists for a close relation between the ILO's
standard-setting and operational activities. The relevance of ILO standards to
operational activities, however, varies greatly according to the subject-matter
and the nature of projects.
In some instances, an entire activity has as its objective the implementation
of particular standards. This is the case with the strengthening and development
of rural workers' organisations for which the Convention and Recommendation
on this subject adopted in 1975 provide the basic terms of reference, even though
many of the actual activities are essentially practical and down to earth in
nature.
In general, ILO standards can constitute an important source of guidance for
55
Report of the Director-General
projects aimed at advising on basic policies, on legislation or on the establishment
or improvement of certain types of institutions, such as labour administration
or inspection services. Many projects, however, involve practical action
dependent more on technical considerations than on policies and legal standards.
One sees this distinction, for instance, in technical co-operation in the field
of social security.53 One part is concerned with the conception, establishment
and improvement of social security schemes. Here ILO standards are directly
relevant and are consistently taken into account. Other activities involve the
provision of financial and actuarial expertise or advice on the management of
social security schemes, where questions related to ILO standards are much less
likely to arise.
One finds a similar distinction in the field of vocational training between
activities aimed at promoting a systematic and coherent approach to training
(including measures for the participation of employers' and workers' organisations
in the formulation and implementation of training policies and programmes)
and projects at a lower, predominantly operational level. The Human
Resources Development Convention and Recommendation of 1975 provide the
normative framework for the former type of action, for which a continuing need
is expected to exist in the years to come.54
Even in areas where the majority of projects are at a technical, operating
level, ILO standards may be drawn upon to ensure the observance of certain
safeguards. Thus the guide-lines for the organisation of special labour-intensive
works programmes refer to the observance of ILO Conventions and Recommendations
on questions such as recruitment of workers (in particular, to ensure
that their participation in work programmes is voluntary), minimum age for
employment, remuneration, hours of work, safety and compensation for employment
injuries.55 Similarly, under arrangements made with the World Food
Programme, ILO scrutiny of project requests under that programme is concerned
not only with their technical feasibility but also with their compatibility
with ILO standards.56
The above indications show the manner in which ILO standards and technical
co-operation interact; however, there has been no systematic study of the
subject. It would be useful to undertake such a study in order to determine more
precisely the cases in which standards can provide significant guide-lines for
operational activities, the limitations on this type of influence, the adequacy of
briefing of technical co-operation experts in regard to standards and the extent to
which experts actually draw on standards in the execution of projects.
There is also the question of how far governments, in establishing their
policies and priorities in seeking technical co-operation, see such assistance as a
means of implementing their obligations under Conventions which they have
ratified or of attaining objectives defined even in instruments by which they are
not bound. Could technical co-operation not be used more frequently to overcome
difficulties in the application of ratified Conventions, particularly when
these arise from major material or institutional shortcomings?
56
International labour standards
Practical application of Conventions
In view of the foregoing questions, it is appropriate to look at the problems
affecting the practical application of Conventions.
The obligation accepted by a State when it ratifies an international labour
Convention is to make the provisions of the Convention effective. This requires
not merely that the provisions of the Convention find reflection in laws and
other formal instruments, but also that in practice the national texts through
which it is sought to implement the Convention are applied and observed, which
gives rise to problems at two levels. Do countries have the necessary administrative
machinery to ensure such effective practical application? Do the ILO
supervisory bodies have adequate means to ascertain the extent of practical
application of Conventions?
The first of these questions, while raised in relation to the application of ILO
Conventions, is of much wider scope. How many States have solidly structured
and equipped labour administrations able to discharge efficiently the functions
defined in the Labour Administration Convention (No. 150) and Recommendation
(No. 158) of 1978, and in the Conventions and Recommendations dealing
more specifically with labour inspection?57 Even in highly developed countries,
against a background of constraints on public expenditure and growth in the
range and complexity of the problems to be addressed, difficulties have been
encountered in maintaining inspection services at a satisfactory level. In developing
countries, all too often, their lack of resources permits labour inspection
services to play only a marginal role, and one finds a glaring gap between the
desired protection written into the statute book and everyday reality. The general
survey of the effect given to the ILO's labour inspection standards, due to be
made in 1985 by the Committee of Experts on the Application of Conventions
and Recommendations, will provide a timely opportunity to assess these problems
and to review the action which the ILO can take to help its member States to
improve the situation. One has to realise that in many developing countries the
strengthening of labour administrations cannot be divorced from the wider
problem of how to maintain the efficiency of the public administration in the
face of daunting economic difficulties.
From the very beginning of its work, the Committee of Experts on the
Application of Conventions and Recommendations realised the importance of
ascertaining the extent of application of Conventions not only in law but also in
practice, as well as the difficulty of obtaining adequate information on this
aspect. This concern led to the inclusion in the report forms for ratified Conventions
of a series of questions aimed at eliciting information of a statistical
nature as well as on inspection and other enforcement measures, judicial decisions,
observations from employers' and workers' organisations and any general
documentation throwing light on the manner in which the Convention is
applied. The Committee of Experts has from time to time reviewed the means at
its disposal to examine the practical application of Conventions,58 and in each
report gives an indication of the extent to which such information has been
57
Report of the Director-General
available to it (including from such sources as reports on labour inspection
services, statistical year books, reports on direct contacts missions, and reports
on technical co-operation projects).
The Committee of Experts has realised that the scope for providing information
on practical application will vary considerably according to the subjectmatter
of the Conventions. It concentrates its attention on those instruments for
which specific questions on the matter are included in the report forms. In recent
years, the proportion of cases in which indications concerning practical application
have been available for those Conventions has ranged from two-fifths to
one-half. The significance of such information, however, varies enormously.
Relatively seldom does it permit a comprehensive view of the extent of practical
application. On a number of occasions serious shortcomings of a practical nature
have come to light only as a result of special studies, missions or inquiries.59
It would be useful for the Office to consider means of improving the systematic
collection and analysis of information bearing upon the implementation
in practice of ILO standards, as a basis for further examination of this question
by the supervisory bodies.
COLLABORATION BETWEEN ORGANISATIONS IN THE DRAWING UP
AND IMPLEMENTATION OF INTERNATIONAL STANDARDS
The ILO is not alone in undertaking the setting of international standards. A
great amount of standard setting is taking place in other organisations, both
within the United Nations system and at the regional level. The ILO has
endeavoured to ensure the greatest possible measure of collaboration and coordination
in this respect. In 1973 the Administrative Committee on Co-ordination,
at the initiative of the ILO, considered this question and defined the
fundamental concerns in the co-ordination of the legislative work of international
organisations, within and outside the United Nations system as follows:
(a) to prevent unnecessary duplication ; (b) to prevent conflict between the obligations
undertaken by States under different instruments, as well as in the
interpretation of instruments adopted by various organisations; and (c) to ensure
that statutory provisions on complex technical subjects are established and
supervised by those most competent to do so. The Committee considered,
further, that, with a view to achieving uniform interpretation of standards,
analysis of compliance should be carried out by those with the greatest competence
in the field and that, where more than one organisation was concerned in an
instrument, it was desirable to provide for co-operation in the instrument itself,
covering both mutual representation and full exchange of information and
observations, as appropriate.60
It is proposed to indicate, in the first instance, how the ILO has taken
account of these principles in its own standard-setting work. In numerous
instances, it has sought the collaboration of other agencies in the United Nations
system when preparing standards on subjects which involved aspects of concern
to them. Examples are the instruments on indigenous and tribal populations, the
58
International labour standards
Convention on basic aims and standards of social policy, and instruments
dealing with the safety of seafarers, vocational training, rural workers' organisations,
nursing personnel and migrant workers. The Preambles to the instruments
in question record the fact that they have been drawn up in collaboration
with the other organisations concerned and the intention to seek the continuing
co-operation of those organisations in promoting and securing their application.
Accordingly, the ILO has made arrangements with the various agencies to
transmit to them copies of governments' reports on these instruments as well as
the texts of previous comments by the ILO supervisory bodies, inviting them to
provide any relevant information in their possession or comments which may
assist the Committee of Experts on the Application of Conventions and Recommendations
in its work. The other organisations are also invited to be represented
at the meetings of the Committee of Experts when it considers the
application of the standards in question.61 The United Nations are invited to be
represented throughout the Committee's sessions.
The ILO has also sought to collaborate with other organisations in establishing
and supervising the implementation of standards in fields of common
concern. Examples are the preparation, in co-operation with UNESCO, of the
Recommendation concerning the Status of Teachers, which was adopted in
1966; the establishment of a Joint ILO/UNESCO Committee of Experts to
examine reports on the implementation of that Recommendation which are
requested periodically from the States Members of the two organisations ; and
the collaboration of the ILO with UNESCO and WIPO in the establishment and
implementation of standards for the protection of performers, producers of
phonograms and broadcasting organisations (Rome Convention of 1961). The
ILO has also collaborated closely with the Council of Europe in the drawing up
and implementation of various instruments in the social field, such as the
European Social Charter, the European Code of Social Security and its Protocol
and the European Convention on Social Security. Apart from the technical
contribution made to the drafting of the European Social Charter, the ILO
convened, at the request of the Council of Europe, a tripartite Conference to
examine the draft. Under the terms of the Social Charter, an ILO representative
participates in a consultative capacity in the deliberations of the Committee of
Independent Experts which examines the reports of States Parties. The
European Code of Social Security was based on ILO Convention No. 102, and in
this case the examination of reports from ratifying States is entrusted in the first
instance to an ILO body, namely the Committee of Experts on the Application of
Conventions and Recommendations.62 The ILO is also participating in the
current discussions relating to the updating of the European Social Charter and
the revision of the European Code of Social Security.
In the case of standards drawn up by the United Nations, the ILO is entitled,
under the UN-ILO agreement, to participate in the meetings of the various
organs concerned and also to present written comments. It made a significant
contribution, for example, to the drawing up of the International Covenant on
Economic, Social and Cultural Rights, and is currently, in accordance with a
59
Report of the Director-General
policy approved by the Governing Body, taking an active part in the discussions
of the working group established by the United Nations General Assembly to
draft an international convention on the protection of the rights of all migrant
workers and their families. Its participation is aimed at ensuring, in particular,
full awareness of existing ILO standards and the avoidance, as far as possible, of
conflict or duplication of standards. In this instance, the Office has also, at the
request of a group of European countries which have submitted the proposals
taken as a basis for discussion, provided them with continuing technical
advice.
A series of supervisory mechanisms have been established under United
Nations instruments, with varying degrees of involvement by the specialised
agencies. In particular, the Covenant on Economic, Social and Cultural Rights
makes provision, in Article 18, for arrangements between the Economic and
Social Council and the specialised agencies for reporting by the latter on progress
made in achieving the observance of the provisions of the Covenant falling
within the scope of their activities. In May 1976, by resolution 1988(LX), the
Council called upon the specialised agencies to submit such reports. In November
1976, in agreeing to this request on behalf of the ILO, the Governing Body
decided to entrust to the Committee of Experts on the Application of Conventions
and Recommendations the task of examining reports and other available
information on the implementation of the provisions of the Covenant which fall
within the scope of the ILO's activities. These relate to questions of employment,
conditions of work, trade union rights, social security, the employment of
women, and the employment of children and young persons. Since 1978 the
Committee of Experts has submitted six reports to the Economic and Social
Council under these arrangements. The reports have been brought to the attention
of the Governing Body and of the Conference Committee on the Application
of Conventions and Recommendations. The ILO has also been represented
at meetings of the working group of governmental experts established by the
Council to assist it in examining reports on the implementation of the Covenant.
63
The International Covenant on Civil and Political Rights, although dealing
with certain matters within the field of activity of the specialised agencies (in the
case of the ILO, the prohibition of forced labour and the right to form and join
trade unions) does not contain any specific provisions calling for a contribution
to its implementation by the agencies. After the establishment in 1976 of the
Human Rights Committee, the supervisory organ elected by the States Parties to
the Covenant, the ILO offered its collaboration through the provision of information
and documentation, particularly as regards the situation under the relevant
ILO instruments. Following a decision by the Committee at its eighth
session, in 1979, such information is now regularly supplied, for the information
of the members of the Committee, in respect of countries whose reports are due
to be examined by it. The Committee has also invited the specialised agencies to
attend its meetings, but without the right to intervene unless requested.64
Arrangements for the exchange of information and mutual representation at
60
International labour standards
meetings of their supervisory bodies have been made by the United Nations, the
ILO and UNESCO in regard to the United Nations International Convention on
the Elimination of All Forms of Racial Discrimination, the ILO's Discrimination
(Employment and Occupation) Convention, 1958, and the UNESCO Convention
against Discrimination in Education. In the case of the United Nations
Convention, the participation of the ILO and UNESCO in the meetings of the
supervisory committee is aimed at providing information on general questions,
to the exclusion of comments concerning individual reports.
The United Nations Convention on the Elimination of All Forms of Discrimination
against Women, which includes provisions relating to discrimination
in fields of concern to certain specialised agencies (such as employment and
education), provides, in Article 22, for the right of the specialised agencies to be
represented at meetings of the supervisory Committee elected by States Parties
during consideration of the implementation of provisions falling within the
scope of their activities. The Committee may also invite the specialised agencies
to submit reports on the implementation of the Convention in areas falling
within the scope of their activities. At its second session, in August 1983, the
Committee decided to extend such an invitation to the specialised agencies
concerned. The Office has also prepared a note on the compatibility of the
provisions of the United Nations Convention and ILO standards relating to the
employment of women, for presentation to the Committee.
A working group of the United Nations Commission on Human Rights has
for some years been engaged in the preparation of a convention on the rights of
the child. The ILO has been concerned to ensure that provisions which are
contemplated on such matters as child labour and social security protection in
respect of children are consistent with ILO standards, and has presented papers
for this purpose to the working group.
Several questions will continue to require attention in attempting to bring
about an orderly development of international standards. They concern respect
for the division of responsibilities within the United Nations system, the adequacy
of arrangements for co-ordination in the formulation of standards, coordination
in supervisory processes, and the relationship between standardsetting
and implementation procedures at both the universal and the regional
level.
Arrangements have been made by the legal services of organisations of the
United Nations system for a yearly exchange of information on proposed legislative
activities, and informal consultations also take place periodically among
human rights services of international organisations in order to review questions
of common interest. These arrangements at secretariat level cannot, however,
ensure that the decisions of policy-making organs will always bring about the
best division of work or the most appropriate forms of collaboration among
organisations.
In recent years, a matter which caused particular concern to the ILO was the
decision by the United Nations General Assembly to undertake the preparation
of a convention on the rights of all migrant workers and their families. The ILO's
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Report of the Director-General
constitutional mandate has always included "protection of the interests of workers
when employed in countries other than their own". In 1947 arrangements
were agreed upon between the United Nations and the ILO for co-ordinating
action in the field of migration according to which the competence of the ILO
was to include the rights and situation of migrants in their quality as workers
while the competence of the United Nations would include the rights and situation
of migrants in their quality as aliens.65 The ILO's activities on behalf of
migrant workers have included the adoption of a number of Conventions and
Recommendations, particularly in 1949 and 1975. On both these occasions, its
action was welcomed by the United Nations.66 In these circumstances, it would
have been desirable to start by analysing the international standards that already
existed to protect migrant workers so as to determine on what matters additional
standards were needed and in which forum it would be most appropriate to
adopt them. Proposals to that effect were however rejected by the United
Nations General Assembly.67
The draft standards on the rights of migrant workers, now under discussion
in the working group of the General Assembly, deal with two types of questions.
On the one hand, there are a series of provisions, based on the International
Covenant on Civil and Political Rights, which are aimed at guaranteeing protection
against arbitrary interference with individual liberty and security of the
person and the enjoyment of various freedoms. These are matters which affect
migrant workers in their capacity as aliens, irrespective of the exercise of economic
activity. They are proper subjects for United Nations action, according to
the arrangements agreed upon in 1947.68 On the other hand, there are a series of
provisions which concern the interests of migrants as workers, such as recruitment
procedures, access to employment, equality of treatment in employment,
exercise of trade union rights and social security. In principle, these are matters
for action by the ILO. In relation to them, there will inevitably be overlapping
with existing ILO standards and also considerable variations from those standards.
Once the United Nations convention is adopted and enters into force,
there will thus be two distinct sets of standards on this important question, with
separate supervision procedures, in the United Nations and the ILO respectively.
Because the new standards will have been formulated in an organisation of
purely governmental composition, employers and workers will have been
excluded from participation in standard setting in an area of direct concern to
them. Likewise, employers' and workers' organisations would not be able to
participate in the operation of the supervisory arrangements so far proposed for
the United Nations convention as they are entitled to do under ILO procedures.
Lastly, the existence of the United Nations standards may in practice constrain
the exercise by the ILO of its constitutional competence in this field in years to
come.
There is also the problem of the relationship between ILO Conventions and
comprehensive conventions adopted or in course of preparation by the United
Nations, such as the instruments on the elimination of discrimination against
women and on the rights of the child. Such instruments tend to be expressed in
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International labour standards
terms of general principles, leaving methods of implementation largely to
national discretion. Even without expressly contradicting the more precise
standards laid down in ILO Conventions, they may erode those standards and
obligations accepted in respect of them.
Questions of a somewhat different nature arise in certain areas of interest
both to UNESCO and to the ILO. Reference has already been made to joint
action by the two organisations in regard to the teaching profession. UNESCO
has also adopted Recommendations relating to research workers, translators and
artists, and is currently contemplating the adoption of instruments concerning
journalists and personnel in higher education. The work of the Joint ILO/
UNESCO Committee of Experts on the Application of the Recommendation on
the Status of Teachers has given rise to the question whether certain aspects of
the conditions of teachers might be the subject of an international convention.
All these questions make it necessary to consider the most appropriate organisational
context within which to draw up possible standards, the nature and
extent of inter-agency collaboration, and the type of instruments best suited for
dealing with the various issues. There is the obvious desirability of ILO involvement
in the adoption and implementation of standards which affect the interests
of workers. There has generally been reluctance to use the ILO constitutional
standard-setting process for regulating the conditions of relatively narrow occupational
categories. Other forms of guide-lines, such as conclusions of meetings
or model regulations, may be indicated in such cases. One could also seek to
identify problems common to a number of professional groups which could lend
themselves to treatment by means of a Convention or Recommendation.
Reference has been made to the association of the ILO in standard-setting
activities by the Council of Europe in the social field. A series of regional human
rights conventions have also been adopted, by the Council of Europe in 1950, by
the Organisation of American States in 1969, and by the Organisation of African
Unity in 1981. None of these conventions specifically provides for collaboration
with other organisations in measures of implementation and supervision.
Although they deal predominantly with civil and political rights, each of them
contains some provisions of direct interest to the ILO.69 It is therefore necessary
for the ILO to follow closely the manner in which these various regional instruments
are interpreted and applied. Even though variations of detail have at times
led to decisions by the organs of the European Convention that differ from the
conclusions reached in relation to ILO standards,70 no major conflicts of interpretation
have so far occurred, and care has been taken to study the relevant
ILO instruments, their background and the views of the ILO supervisory
bodies.71
Apart from convention-based supervisory arrangements, there are also a
number of more general investigatory procedures, such as the United Nations
procedure for examining communications alleging a persistent pattern of gross
violation of human rights, studies of the human rights situations in particular
countries by special rapporteurs appointed by United Nations human rights
organs, the UNESCO procedure for examination of communications concerning
63
Report of the Director-General
violations of human rights within UNESCO's competence, and the general
competence of the Inter-American Commission on Human Rights to examine
communications addressed to it concerning human rights violations in States
which are not parties to the American Convention on Human Rights. There is a
risk that human rights principles and standards may be differently interpreted,
and particular situations variously evaluated, under these procedures and under
ILO procedures. There have frequently been exchanges of information at secretariat
level which have sought to reduce this risk. The fact that some of the
procedures — such as the United Nations and UNESCO procedures for examining
communications alleging human rights violations — are governed by strict
rules of confidentiality makes it impossible to know whether issues within the
competence of the ILO have been dealt with and, if so, how they have been
determined.
Apart from substantive problems which may be encountered in seeking to
ensure co-ordination and consistency in standard-setting and supervision by
international organisations, the proliferation of instruments and supervisory
mechanisms gives rise to resource problems. Already, the range of universal and
regional standard-setting activities and supervisory procedures in which the
ILO is called upon to collaborate or whose work at least it must follow imposes a
substantial workload, particularly on more senior staff. This presents a dilemma.
On the one hand, it is obviously desirable to seek the greatest measure of order
and co-operation in such activities. On the other hand there is a danger that,
increasingly, a disproportionate volume of resources will be diverted from tasks
of direct importance for advancing the ILO's own work. There is also evidence
that States are finding the growing number of international supervisory procedures
an undue burden, leading to a serious backlog of overdue reports on
a number of United Nations instruments.72
The foregoing indications suggest that care will have to be exercised in the
years ahead not to bring into existence an unmanageable mass of international
standards and procedures. They also underline the importance of efforts to
rationalise the legislative work of international organisations in accordance with
the principles approved by the Administrative Committee on Co-ordination in
1973. Whenever problems in the application of those principles are perceived,
they should be the subject of thorough and timely study and consultation with a
view to arriving at the most effective and, if possible, agreed solutions.
CONCLUDING REMARKS
The foregoing review of the functioning of the system of standard setting
and supervision has brought out both the efforts which have been made over the
years to adapt and to reinforce this essential means of ILO action and the fact
that this process can never come to a halt. Also today many questions deserve
discussion with a view to seeing how the contents of Conventions and Recommendations
can best meet the challenge of changing circumstances and how,
through a judicious combination of measures of a promotional nature and of
64
International labour standards
impartial evaluation of States' compliance with their obligations, these instruments
can best attain their objective of improving the life of ordinary men and
women and the solidity of the social fabric of the world community.
All human institutions must find the proper equilibrium between stability
and change. This also applies to the system of international labour standards.
Accordingly, in discussing the future course of standard setting, one must recognise
that, while in many areas new concepts and approaches may need to be
contemplated, there are others where Conventions lay down standards of fundamental
importance for the establishment and maintenance of a free and just
social order. They are among the most widely ratified of ILO instruments, and
their continuing and universal validity has been repeatedly affirmed by the
principal deliberative bodies of the Organisation. The maintenance and everwidening
acceptance and observance of these standards must remain a priority
objective for the ILO.
The Organisation must also continue to seek ways of assisting its member
States to give effect to Conventions and Recommendations and to meet their
obligations in regard to these instruments. It must always remain attentive to the
way in which the various supervisory mechanisms function and how States'
reponsiveness to them can be enhanced. Full and frank dialogue must be a
central feature of supervision. So must its capacity for objective, independent
and fearless evaluation of compliance with freely accepted obligations. Obligations
arising out of ILO membership and as a result of ratification of Conventions
must retain their credibility as solemn commitments.
I welcome the forthcoming discussion of these questions by the Conference
as a further opportunity for constructive development of the ILO standards
system. It is my hope that this discussion will help to determine the Organisation's
policies on the main issues which have been reviewed in the present report,
such as:
— the general approach to the adoption, revision, consolidation and implementation
of standards;
— improvements in the procedures for the adoption of Conventions and
Recommendations with a view to ensuring that the subjects chosen for
standard setting and the contents of the instruments adopted respond as
fully as possible to the needs and aspirations of the entire membership of the
Organisation, that the adoption of standards benefits from wide-ranging
prior tripartite consultations as well as from thorough discussion at the
Conference, and that the right balance is secured between the aim of promoting
social advancement and the need to make allowance through elements
of flexibility for differences in levels of development;
— clarification of the principles underlying supervision of compliance with the
obligations accepted in respect of ILO standards and of the legal nature and
effects of the work of the various supervisory bodies;
— means of resolving situations in which the views of the supervisory bodies
are contested by the State concerned;
65
Report of the Director-General
— measures to assist member States to participate more actively in drawing up
Conventions and Recommendations and to promote the implementation of
these instruments;
— measures to ensure adequate co-ordination of the standard-setting work of
international organisations.
Notes
1 See, for example, the resolution concerning the ratification and implementation of
international labour standards in Africa adopted by the Sixth African Regional Conference
(Tunis, October 1983), doc. GB.224/6/15, p. 19; the resolution concerning international labour
standards in Asia, in particular those relating to human rights and trade union freedoms,
adopted by the Eighth Asian Regional Conference (Colombo, September-October 1975), Official
Bulletin (Geneva, ILO), 1976, Series A, No. 1, p. 56 ; and the resolution concerning the role
of international labour standards in the countries of the Americas, adopted by the Tenth
Conference of American States Members of the ILO (Mexico City, November-December 1974),
Official Bulletin, 1975, Series A, No. 2, p. 167.
2 See L.-E. Troclet and E. Vogel-Poski: "The influence of international labour Conventions
on Belgian labour legislation", in International Labour Review (Geneva, ILO), Nov. 1968,
p. 389, pp. 404-406.
3 ILO: Record ofProceedings, International Labour Conference, 69th Session, 1983 (subsequent
references will indicate merely ILC and the year of the session), p. 9/3.
4 The proceedings of this seminar have been published by the Asian and Pacific Project for
Labour Administration (ARPLA). See ILO: Labour administration: Developing countries and
ILO standards, ARPLA Series No. 15 (Bangkok, 1983).
5 The Employers' members of the Governing Body addressed comments on these questions
to the Director-General in October 1982. Their views were reflected in statements made
by several Employer delegates at the Conference in 1983; see, in particular, the statements by
Mr. von Holten and Mr. Decosterd in ILO: Record of Proceedings, ILC, 1983, pp. 21/26 and
36/13-14 respectively.
<> Record of Proceedings, ILC, 1983, pp. 7/18-19.
i See docs. GB.185/2/4, GB.185/2/19, GB.186/3/7, GB.189/4/10, GB.191/6/3, and Minutes
of the 192nd Session of the Governing Body (February-March 1974), pp. IV/1-8.
8 See North-south: A programme for survival, Report of the Independent Commission on
International Development Issues (Cambridge, Mass., MIT Press, 1980), pp. 182-183 and
288.
9 See Final Report of the Working Party on International Labour Standards, Official
Bulletin, 1979, Series A, Special Issue.
10 ILO Regional Conferences have also, in a number of resolutions, called for priority
attention to be given by States in the regions concerned to the application and ratification of
selected Conventions.
"See ILO: The impact of international labour Conventions and Recommendations,
(Geneva, 1976), pp. 19-20.
12 Reference may be made to the numerous model codes, codes of practice, guides and
manuals in the field of occupational safety and health, and to the Tripartite Declaration of
Principles concerning Multinational Enterprises and Social Policy.
13 See docs. GB. 199/9/22(Rev.), Appendix, para. 15, summarising the main points emerging
from the discussion of the in-depth review of international labour standards by the Programme,
Financial and Administrative Committee of the Governing Body in February 1976;
and GB.215/5/1, Appendix II, para. 7 (conclusions of a working party of the Ninth Asian
Regional Conference, Manila, 1980).
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International labour standards
14 For previous discussions on these questions, see Minutes of the 141st Session of the
Governing Body (March 1959), p. 69; Report of the Director-General, Report I (Part I), ILC,
1964, pp. 128-130 ; Fourth Report of the Working Party on the Programme and Structure of the
ILO, Report of the Director-General/Pan II (Supplement), ILC, 1967, pp. 11-17.
15 An example is provided by the transfer, during the second discussion of the Migrant
Workers (Supplementary Provisions) Convention, 1975 (No. 143), of a provision relating to
equality of treatment from Part II (which concerns equality of opportunity and treatment) to
Part I (relating to migrations in abusive conditions). This has given rise to difficulties of
interpretation — see memorandum of the International Labour Office in Official Bulletin, 1979,
Series A, No. 3, p. 156 — and appears to have constituted an obstacle to ratification of the
Convention by countries of immigration.
16 This occurred in connection with standards concerning workers' representatives ( 1971 ),
rural workers' organisations (1975), nursing personnel (1977), collective bargaining (1981) and
vocational rehabilitation and employment of disabled persons (1983).
17 For a general description of the development and functioning of ILO supervisory
procedures, see N. Valticos: International labour law (Deventer, Kluwer, 1979), pp. 225-
261.
18 See also E. A. Landy : The effectiveness of international supervision : Thirty years of ILO
experience, (London, Stevens; Dobbs Ferry, New York, Oceana Publications, 1966).
"ILO: The impact of international labour Conventions and Recommendations, op.
cit.
20 See, generally, the examples quoted in ILO: The impact of international labour Conventions
and Recommendations, op. cit., Ch. 3.
21 See Minutes of the 222nd Session of the Governing Body, March 1983, doc.
GB.222/PV(Rev.), pp. IV/2-4.
22 See the memorandum presented to the Conference in 1983 on behalf of a number of
socialist governments, op. cit. (note 6); see also the statements by the Government delegates of
Czechoslovakia and the USSR, in ILO: Record of Proceedings, ILC, 1983, pp. 25/3 and 29/7,
and the Report of the Committee on the Application of Con ventions and Recommendations, in
Record of Proceedings, ILC, 1982, Part One, para. 5, pp. 31/2-3.
23 ILO : Report of the Committee of Experts on the Application of Conventions and
Recommendations, Report III (Part 4A), ILC, 1977, Part One, para. 31, pp. 10-11. This was a
unanimous statement by the Committee. However, in dissenting opinions concerning the
application of certain Conventions in socialist countries, two members based themselves on the
need to take account of the economic and social systems existing in those countries, ibid., pp. 82
and 134-135.
24 See, for example, Report of the Committee on the Application of Conventions and
Recommendations, in ILO: Record of Proceedings, ILC, 1982, Part One, para. 6, p. 31/3.
" ibid., 1957, p. 657, para. 30.
26 See the Report of the Committee on the Application of Conventions and Recommendations,
in ILO: Record of Proceedings, ILC, 1980, Part One, paras. 22-23, p. 37/6 and
Appendix, paras. 3 and 10, pp. 37/19-20; see also the Memorandum presented to the Conference
in 1983 on behalf of a number of socialist countries, op. cit. (note 6).
27 See the Report of the Committee on the Application of Conventions and Recommendations,
in ILO: Record of Proceedings, ILC, 1980, Part One, paras. 16-21, pp. 37/4-6, and
Appendix, para. 5, p. 37/20.
28 ibid., 1983, Part One, p. 31/16, paras. 84 and 87.
29 ILO: Report of the Committee of Experts on the Application of Conventions and
Recommendations, Report III (Part 4A), ILC, 1977, Part One, para. 32, p. 11.
30 These criteria relate to the following matters: failure during the past two years to supply
any reports on ratified Conventions ; failure to supply first reports on ratified Conventions for at
least two years; failure during the past five years to supply any reports on unratified Conventions
and on Recommendations requested under article 19 of the Constitution; failure to
provide indications on the steps taken to submit to the national competent authorities the
Conventions and Recommendations adopted during the last seven Sessions of the Conference
for which such information was due; failure to provide replies to all or most of the observations
and direct requests of the Committee of Experts; failure during the preceding three years to
indicate the representative organisations of employers and workers to which, in accordance
67
Report of the Director-General
with article 23 (2) of the Constitution, copies of the reports and information supplied to the ILO
under articles 19 and 22 have been communicated; failure, despite repeated invitations by the
Conference Committee, to take part in the discussion concerning the country in question.
J'Doc. GB.194/PFA/12/5, paras. 103-109.
32 See ILO: Official Bulletin, 1981, Series A, No. 1, pp. 93-95.
33 Article 10 of the standing orders.
34 Report of the Subcommittee of the Selection Committee on the Fact-Finding and
Conciliation Commission on Freedom of Association, ILC, 1950, para. 8 (b).
35 First Report of the Governing Body Committee on Freedom of Association, para.
32.
36 The Committee on Freedom of Association regularly brings to the attention of the
Committee of Experts on the Application of Conventions and Recommendations aspects of
cases examined which throw light on the observance of ratified Conventions.
37 See ILO: Freedom of association: Digest of decisions of the Freedom of Association
Committee of the Governing Body of the ILO (Geneva, 2nd edition, 1976). A new edition is in
preparation.
38 See First Report of the Committee on Freedom of Association, para. 31, and 193rd
Report, para. 37.
39 See, generally, A. J. Pouyat: "The ILO's freedom of association standards and machinery:
A summing up", in International Labour Review, May-June 1982, p. 287.
40 ILO : General survey on the application of the Conventions on freedom ofassociation, the
right to organise and collective bargaining and the Convention and Recommendation concerning
rural workers' organisations, Report III (Part 4B), ILC, 1983.
41 See Minutes of the 210th Session of the Governing Body (May-June 1979), pp. IV/12-
13, and the Memorandum presented to the Conference in 1983, op. cit., note 6.
42 See, for example, 193rd Report of the Committee on Freedom of Association, paras.
33-39.
43 See Minutes of the 173rd Session of the Governing Body (November 1968), pp. 41 -43
and 124.
"Doc. GB.214/4/2 (November 1980).
45 Doc. GB.224/6/15, paras. 44 and 45 and 48, and Appendix II.
46 See ILO: Report of the Committee of Experts on the Application of Conventions and
Recommendations, Report III (Part 4A), ILC, 1979, Part One, paras. 42-89. In subsequent years,
additional progress resulting from direct contacts has been noted.
47 See the note on Office interpretations of international labour Conventions presented to
the Governing Body in November 1982, in doc. GB.221/19/1.
48 These countries were : Bahrain, Bulgaria, Colombia, Czechoslovakia, Democratic
Yemen, Egypt, Equatorial Guinea, Ethiopia, French Polynesia, Gabon, Ghana, Guinea,
Guinea-Bissau, Indonesia, Kuwait, Malaysia, Mauritius, Mexico, Mongolia, Nigeria, Panama,
Peru, Philippines, Poland, Romania, Somalia, Sri Lanka, Sudan, Swaziland, Syrian Arab
Republic, USSR, United Arab Emirates, Venezuela and Viet Nam. Similar training was also
provided to an official of the Arab Labour Organisation.
49 For a fuller indication of the measures adopted by the Committee of Experts, see the
Committee's reports of 1972, 1973 and 1974 respectively, Report III (Part 4A), ILC, 57th
Session, Part One, paras. 28-98 ; ibid., 58th Session, Part One, paras. 56-77 ; ibid., 59th Session,
Part One, paras. 43-51.
50 Of the 14 States concerned, eight were in the American region, three in Africa and three
in Asia.
51 ILO: General Survey of the Reports relating to Convention No. 144 and Recommendation
No. 152, Report III (Part 4B), ILC, 1982.
52 See, for example, the reports presented to the Inter-American Advisory Committee in
1982 (doc. AM/AC/VI/3), pp. 17-18, to the Asian Advisory Committee in 1983 (doc.
AAC/XVIII/3), para. 98, and to the Sixth African Regional Conference in 1983 (Report of the
Director-General, Report I (Part 2)), paras. 106-108.
53 See the paper on ILO operational activities in 1982, presented to the Governing Body in
November 1983, doc. GB.224/OP/1/3, paras. 272-281.
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International labour standards
54 See Report of the Director-General, ILC, 1980, Part I, p. 44; and UNDP/ILO: Thematic
evaluation study on training of industrial manpower (New York and Geneva, Sep. 1983), paras.
6-8 and 365-400.
55 See E. Costa, S. Guha, M. I. Hussain, N. T. B. Thuy and A. Fardet: Guidelines for the
organisation of special labour-intensive works programmes, (Geneva, ILO, second impression
with modifications, 1980; mimeographed World Employment Programme research working
paper ; restricted). These questions have also been given attention in training courses under this
programme and at the annual joint UNDP/ILO meetings for support to special public works
programmes.
56 See FAO: The application of international labour standards to WFP activities, WFP
Intergovernmental Committee, 4th Session, Rome, November 1963 (doc. WM/IGC: 4/10;
mimeographed).
57 The Labour Inspection Convention, 1947 (No. 81), has been ratified by 105 States (for
industry and commerce by 86 States, for industry only by 19). The implementation of the
Convention encounters serious difficulties in many of these States, particularly as regards
ensuring sufficiency in the number of labour inspectors, in the material facilities (especially
transport) placed at their disposal, and as a consequence in the breadth and frequency of
inspections. In many countries the work of the inspection services appears to be confined
essentially to the investigation of complaints and intervention in disputes. The Labour Inspection
(Agriculture) Convention, 1969 (No. 129), has been ratified by only 23 States.
58 See Report of the Committee of Experts on the Application of Conventions and Recommendations,
Report III (Part IV), ILC, 1963, Part One, paras. 17-62 ; ibid., Report III (Part 4A),
64th Session, 1978, Part One, paras. 40-70.
59 Reference may be made to recent studies and discussions concerning child labour — see
Report of the Director-General, ILC, 1983, Part I: "Child labour"; and Exploitation of child
labour, Final report by A. Bouhdiba (New York, United Nations, doc. E/CN.4/Sub.
2/479/Rev.l, 1982).
60 See United Nations Economic and Social Council : Annual Report of the Administrative
Committee on Co-ordination for 1973-74 (doc. E/5488, 20 May 1974; mimeographed), paras.
200-208.
61 See ILO: Report of the Committee of Experts on the Application of Conventions and
Recommendations, Report III (Part 4A), ILC, 1983, Part One, paras. 25 and 26.
62 ibid., paras. 23 and 24.
63 Information on the composition, mandate and activities of this working group has been
provided to the Governing Body - see docs. GB.211/10/3/6, paras. 14-19; GB.2I4/IO/5/3,
paras 10-15; GB. 218/IO/2/11, paras. 7-13; GB.221/IO/2/6, paras. 9-13.
« See docs. GB.205/IO/5/5; GB.208/IO/3/5, paras. 19-22; GB.212/IO/5/7, paras. 10-
11.
« See ILO: Official Bulletin, 1947, No. 5, pp. 417-420.
66 See Resolutions 85 (V) and 1789 (LIV) in respectively Resolutions adopted by the
Economic and Social Council during its Fifth Session, July-August 1947 (Lake Success, New
York, United Nations) (Sales No. 1947.1.20) and Economic and Social Council Official Records,
Fifty-fourth Session : Resolutions, Supplement No. 1 (New York, United Nations, doc. E/5367,
1973), p. 25.
«See GB.212/IO/1/8, paras. 14-21.
68 Another working group of the United Nations General Assembly is concurrently
engaged in drafting a declaration on the human rights of aliens.
69 The European and American Conventions both prohibit forced labour. The former
provides for the right to form and join trade unions, while the latter recognises the right to
associate, inter alia, for economic, labour and social purposes. States Parties to the American
Convention also undertake to adopt measures with a view to the progressive realisation of the
rights implicit in the economic and social standards set forth in the Charter of the Organisation
of American States. The African Charter of Human and Peoples' Rights provides, in general
terms, for the right to free association, for the right of every individual to work under equitable
and satisfactory conditions and to receive equal pay for equal work, and for the right of all
peoples to their economic, social and cultural development. It also prescribes a series of duties
for the individual, including the duty to serve his national community by placing his physical
and intellectual abilities at its service and the duty to work to the best of his abilities and
competence.
69
Report of the Director-General
70 For example, the European Commission of Human Rights concluded that the use of
convict labour by private undertakings is not contrary to the European Convention since, unlike
the ILO's Forced Labour Convention, it does not prohibit this practice. On the other hand, in
the case of Young, James and Webster ( 1981 ), the European Court of Human Rights considered
certain situations resulting from union security agreements to be contrary to the provisions
relating to freedom of association of the European Covention on Human Rights, whereas ILO
standards neither authorise nor prohibit union security clauses. See Council of Europe, European
Court ofHuman Rights: Case of Young, James and Webster: Judgement (Strasbourg, 13
Aug. 1981).
71 See, for example, the judgements of the European Court ofHuman Rights in the case of
Young, James and Webster (1981) (note 70 above), and in the case of Van der Mussele (1983),
concerning an allegation of forced labour, idem : Case of Van der Mussele: Judgement (Strasbourg,
23 Nov. 1983).
72 See United Nations General Assembly : Elimination of all forms of racial discrimination
indicating that, at the end of 1982, 94 reports were overdue from States Parties to the International
Covenant on Economic, Social and Cultural Rights, 76 reports from States Parties to
the Convention on the Elimination of All Forms of Racial Discrimination, and 74 from States
Parties to the International Convention on the Suppression and Punishment of the Crime of
Apartheid (New York, doc. A/38/393, 30 Sep. 1983; mimeographed), pp. 8 and 9.
70

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