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4
Methods of Assessing National Laws and
Enforcement Mechanisms
The third session of the workshop addressed various methods of assess-
ing national compliance with international labor standards. The presenta-
tion by lanice Bellace (The Wharton School) examined the institutional
approach of the International Labour Organization's (ILO) Committee of
Experts on the Application of Conventions and Recommendations
(CEACR), while David Tajgman (Labour in Development) provided a
framework for assessment based on his work in the field, stressing the im-
portance and challenges of ensuring legitimacy, consistency, and indepen-
dence in the process.
/anice Bellace
Professor, The Wharton School of the University of Pennsylvania
Professor Bellace opened her presentation with a brief history of the
CEACR. Established in 1926, the CEACR currently has 20 members from
around the world. The diverse membership offers a variety of international
perspectives and a range of legal expertise that extends beyond labor law.
The CEACR forms part of the supervisory mechanisms of the ILO; it is not
a court or tribunal, and it does not issue enforceable judgments. Professor
Bellace has been a member of the CEACR since 1994.
30
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ASSESSING NATIONAL LAWS AND ENFOR CEMENT MECHANISMS 31
CEACR Assessments of National Law and Practice
One of the primary roles of the CEACR is to determine the meaning
of Conventions when questions of application are raised in the reports that
ratifying governments must submit periodically on national law and prac-
tices. Professor Bellace said that the CEACR considers and comments only
on reports submitted by countries that have ratified particular Conven-
tions. The CEACR also writes a general survey each year, examining in
greater depth a particular Convention or group of Conventions, which has
been determined by the Conference. Finally, in its "individual observa-
tions" and direct requests, the CEACR gives an opinion on whether a gov-
ernment is applying the provisions of ratified Conventions. The individual
observations are published in the CEACR's annual report, but the direct
requests are not made public. However, the annual report includes a list of
countries that have received direct requests.
Country reports on fundamental Conventions1 are due to the ILO
every two years, and report forms are provided to the responsible parties to
indicate the types of information requested.2 Reports on any other ratified
Conventions generally follow a five-year cycle. When government reports
are drafted, they are supposed to be shared with the employer and worker
organizations of that country, but Professor Bellace said that in practice this
is not always done. These organizations can also submit information di-
rectly to the CEACR, although this is rarely done, perhaps because organi-
zations aren't aware of this option. If the CEACR intends to comment on
the information received from employer and worker organizations, it will
request a response from the government involved.
Country reports are first reviewed by ILO staff and analyzed in light of
prior reports and any observations or direct requests from the CEACR on
the issue. According to Professor Bellace, it is difficult to understand the
full context of a CEACR report without doing a review of past observa-
tions. She described the process as one of ongoing dialogue between the
CEACR and the government. This dialogue is made public through the
1 eight ILO Conventions addressing freedom of association and the right to collec-
tive bargaining, forced labor, child labor, and discrimination have been identified by the
ILO's Governing Body as fundamental to the rights of human beings at work, irrespective of
levels of development of individual member states.
2The report forms for the fundamental Conventions can be found at www.ilo.org/
public/english/standards/norm/sources/reptforms/index.htm.
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32
NATIONAL LEGAL FRAMEWORKS
annual release of the CEACR report Application, which contains a general
report and observations concerning particular countries. This report can
be very difficult reading and is most accessible to those who know the
Conventions well. Additionally, understanding the language used by the
CEACR, which tends to be "very diplomatic," is critical to understanding
the content of the report. For example, if the Committee "notes with
concern" or "notes with regret" that a government has taken (or failed to
take) a particular action, this indicates a more serious problem. Alterna-
tively, if the Committee "notes with satisfaction" that legislation has been
passed or that other steps have been taken to apply the Convention, this is
a clear indication of progress. Professor Bellace explained that this lan-
guage is intended to avoid embarrassing particular countries and is geared
toward maintaining the dialogue and cooperation that may be required to
improve a problematic situation. In addition to understanding the lan-
guage used, as noted above, it is critical for an assessor to understand the
"state of dialogue." This requires that the assessor be familiar with past
observations concerning a particular country so that he or she will under-
stand whether the issues have been resolved, ignored, or allowed to deterio-
rate over time.
The CEACR's observations after a country's first report upon ratifying
a Convention are generally more thorough than later reports, but in no way
are these observations intended to be comprehensive. "The Committee's
focus is on major elements of noncompliance, pointing out major areas
that either have been just skipped, that nothing in national law or practice
seems to cover, or situations where the legislation actually seems to be
counter to the Convention." One clear indication of a potential problem is
when the CEACR recommends a case to the Conference Committee on
the Application of Standards. These cases are discussed at the International
Labour Conference, and a record of them is published on the ILO website.
Professor Bellace noted that delegates can raise complaints or offer defenses
related to particular countries at this time, and a record of these statements
is publicly available through the Provisional Record of the Conference, which
has the final say on matters of country implementation.
Professor Bellace closed her presentation by making four points on the
CEACR's role in assessing compliance with international labor standards.
The first is that the CEACR deals only with governments and country-level
compliance, engaging in dialogue rather than making determinations on
individual cases of labor standards violations. Although the CEACR may
consider information received from sources other than governments, it has
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ASSESSING NATIONAL LAWS AND ENFOR CEMENT MECHANISMS 33
no fact-finding machinery. The CEACR, therefore, is limited to consider-
ing the overall record or pattern of a government's application of a Conven-
tion. Second, there is often a lack of accurate data on actual applications.
As the government is the primary source of data, countries with weak data-
gathering capacity simply cannot supply the information necessary for as-
sessing implementation of Conventions. It is difficult if not impossible to
examine discrimination in the absence of statistics on the size of the labor
force, its composition (by sex, age, and race), and wages by gender. An-
other problem is that in many countries, although workers in the informal
economy outnumber those in the formal economy, these workers are not
included in the government data or covered in the national labor legisla-
tion. Third, the CEACR does not produce a "scorecard" or ranking of
country compliance but looks at each country individually with the aim of
improving compliance with a Convention over time. Last, as noted above,
not all of the materials of the CEACR are published. The public can read
the observations and the General Survey, but the direct requests, which con-
tain "some of the most interesting material," are not currently available,
and it is unlikely that they will be made available in the future.
David Tajgman
Consultant, LaIDour in Development
Mr. Tajgman began his presentation by acknowledging that assessing
compliance with international standards is not a simple process. It can be
complicated on both the technical and the political level, particularly when
assessments are being done unilaterally and externally. He outlined three
steps in the assessment process.
Methods of Assessing National Laws
The first is to determine the relevant labor standards. Deciding on
these standards requires knowledge of their content and the institutional
frameworks in which they operate. There are many sources of interna-
tional labor standards. Individual Conventions of the ILO, the European
Union's special incentive arrangement on labor rights, and various provi-
sions of U.S. trade law all provide varying formulations of labor standards.
For assessment purposes, Mr. Tajgman said, specific reference to ILO Con-
ventions is much more precise. A definition of forced labor, a minimum
working age, even requirements of the more broadly phrased Conventions
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34
NATIONAL LEGAL FRAMEWORKS
on freedom of association and collective bargaining can help an assessor
generate specific elements that can operate as a compliance checklist.
The existence of alternatives to Conventional law raises the question of
whether countries that have not ratified particular Conventions should be
held to a lesser standard. But Mr. Tajgman cautioned that any unilateral
attempt to assess compliance runs the risk of being perceived as an under-
mining of the ILO's system of ratification and regular supervision. When
an assessment is being conducted, the source of the standard is an impor-
tant element because it is often the source that enhances perceptions of
legitimacy and confidence in the objectivity of the assessor. Mr. Tajgman
strongly recommended use of the ILO Conventions as a reference because
they are "multilateral instruments supervised by the international supervi-
sory bodies.... jurisprudence has developed around these standards, and
they are universally recognized." But when the assessor decides unilaterally
what a particular standard means, subjectivity enters the assessment process
in the earliest stages. Instead, if flexibility is desired, "It can be achieved not
by selecting standards of looser content but by adjusting the level of com-
pliance required." The African Growth and Opportunity Act, for example,
uses the requirement that a country "has established, or is making continual
progress toward establishing protection of internationally recognized labor
~~2
rlgnts. ~
In terms of developing the expertise to examine national compliance,
Mr. Tajgman said that understanding the content of international labor
standards for the purposes of assessment is similar to understanding any
other body of law. "Many people with socioeconomic backgrounds can
very well document and describe what may be happening to a group of
workers in some country as exploitation. Doing an assessment based on
international labor standards requires the ability to know whether the par-
ticular exploitative situation is compliant or noncompliant with interna-
tional labor standards. Practices that are exploitative are not automatically
contrary to international standards, and things that are contrary to interna-
tional standards are not necessarily exploitative."
With a thorough knowledge of the relevant standards, the second step
of a country assessment is to examine whether the country's national laws
comply with the standards. Finding a country's laws can be difficult, but
3AGOA §1 04 (a) ( 1 ) (F) . {italics added. }
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ASSESSING NATIONAL LAWS AND ENFOR CEMENT MECHANISMS 35
the Internet has simplified the search. However, there are still several issues
to consider concerning examination of national laws. First, translations of
a country's laws should come from the country itself whenever possible,
particularly when noncompliance is alleged concerning specifics of the text,
as in cases of facial discrimination. Second, Mr. Tajgman noted that in
many countries the laws, including subsidiary rules and regulations, are
constantly changing and can be voluminous in nature. Staying current
requires a combination of investigative skills, knowledge of the relevant
standards, and "the goodwill of the country involved, which makes possible
the friendly asking of questions."
The third step in the process of assessing national compliance with
international labor standards is to examine the actual practices. Ideally, Mr.
Tajgman said, this assessment should take place within the country with
the assessor speaking with the parties involved in the relevant issues. How-
ever, views may differ between these parties, which means the assessor will
face the challenge of finding corroborating evidence on disputed points.
Depending on the country, sources of information may be scarce or plenti-
ful, and the quality and extent of collection and documentation may also
vary widely. Sources to consider include employers' organizations and na-
tional trade unions, and Mr. Tajgman described national trade unions as
"the most useful in this area." However, he cautioned, "Trade unions in
faraway places can behave in ways that are quite foreign. Workers' interests
are not always at the head of the priorities, and the dynamics involved can
vary tremendously from country to country. To broadly generalize the
problem, keep in mind that the American system of trade unionism that
has a clear separation between political parties and trade unions is not the
usual international situation." In addition, national labor administrations
can be a very valuable source of local information. Many of these have
been "decimated by structural adjustment, although one can be pleasantly
surprised by systems that remain operational thanks to dedicated civil ser-
vants." Again, Mr. Tajgman noted, a "welcomed assessor" is likely to be
more successful at obtaining information directly through these agencies.
Turning to the assessment of national enforcement efforts, Mr.
Tajgman referred to earlier presentations that had mentioned the financial
and human resource constraints impacting compliance in many developing
countries. He asked, "Is a good faith effort enough? This can boil down to
a judgment call, but things like negligible penalties, systemic arrangements
for the judiciary or law enforcers that produce conflicts of interest, absolute
absence of evidence of enforcement, these are things obviously to take into
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36
NATIONAL LEGAL FRAMEWORKS
consideration." Sources for this type of information include local legal
practitioners and academics, and, as Professor Weiss noted earlier, an asses-
sor should incorporate this local expertise as much as possible when trying
to understand national legal frameworks and enforcement efforts.
Mr. Tajgman added that the three steps discussed above determining
the relevant standards, assessing the law, and examining actual practices-
should also incorporate several practical considerations. First, there should
be some distance between the technicians making the assessment and the
decision makers using that assessment. "Since some assessment frameworks
lead ultimately to an on/off result, GSP EGeneralized System of Prefer-
ences] is withdrawn, special incentive arrangements are granted, quota is
given or not, decision makers may need to be able to judge how bad prob-
lems are. This is a very tricky area, one where the technician benefits from
not having to draw the final conclusion." In order to determine the sever-
ity or extent of noncompliance, Mr. Tajgman suggested that an assessor
take into account issues such as the significance of the sector, the numbers
affected, the "real impact," and the ease or availability of a remedy. He also
emphasized that it is beneficial if the assessors and the assessed have the
opportunity to exchange views, as Professor Bellace described in discussing
the CEACR's efforts to engage in dialogue with a country on compliance
issues. This consultation is another way of checking facts, and it is also
important "as a matter of fair play, especially if an assessment is being done
unilaterally and with significant consequences beyond its own result."
These consultations may properly set the stage for working toward im-
provement.
Although assessing compliance with international standards is techni-
cally and politically complicated, Mr. Tajgman said, it is not an impossible
task. The ILO has been doing it for 90 years, and while the ILO works
relatively slowly, its outputs are generally accepted as being objective, con-
sistent, and geared toward correcting problems. However, even the ILO
runs the risks that face all international assessment mechanisms: that they
might not be seen as independent and fair or that the standards themselves
have become unacceptable. Mr. Tajgman said that assessors should be pre-
pared to face the fact that many countries are content with their current
law and practice. "Countries' approaches to their social and labor norms
may be bad, but they are their own bad norms. Unilateral mechanisms
aimed at affecting these national norms ought, at the very least, to have the
highest possible degree of credibility, something that can only be developed
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ASSESSING NATIONAL LAWS AND ENFOR CEMENT MECHANISMS 37
by the proper selection of international standards and mechanisms for as-
. . ,,
sesslng comp. lance Wit n t nem.
DISCUSSION
The discussion period allowed the presenters to elaborate on points
made in their presentations and to address specific questions from the audi-
ence. Thea Lee (AFL-CIO) asked for additional input on the relative ad-
vantages of directly incorporating ILO standards instead of the formula-
tion of "internationally recognized workers' rights" found in U.S. trade law.
Mr. Tajgman responded that the universal acceptance of ILO standards and
the extensive jurisprudence and analysis relating to national application of
specific Conventions make these instruments more precise and consistent
for both the assessor and the assessed. Professor Bellace agreed, noting, "If
you say something like freedom of association, unless you have a specific
Convention, what does it mean? It's such a broad concept, and so trying to
pinpoint something that's internationally agreed upon by a respected body
to me has such merit versus a unilateral determination, which can be at-
tacked by others simply saying, 'well, that's your political view."'
Professor Srinivasan initiated a discussion of member states' motiva-
tions to ratify ILO Conventions; he wondered if the CEACR supervisory
process and the examination of national application serve as a form of dis-
incentive. Professor Bellace responded that some countries might indeed
wish to avoid opening themselves up for criticism, but she noted that the
decision to ratify or not to ratify might also depend on the legal tradition of
the country. "Common law countries tend to have more of a view that you
shouldn't ratify something unless you're in compliance, whereas civil law
countries seem to have the view that Fratification] is an aspiration, and
some day you will reach it, but that shouldn't stop you from ratifying to
express your commitment to moving toward that goal." Mr. Tajgman
added that, in practice, countries have not shied away from ratification, as
shown in Table 4-1. Additionally, member states that choose not to ratify
Conventions still have reporting requirements, particularly under the ILO's
follow-up mechanism to the 1998 Declaration on Fundamental Principles
and Rights at Work. Countries that have not ratified one or more of the
fundamental Conventions are asked each year to provide information "on
any changes which may have taken place in their law and practice." These
reports are commented on by the ILO Declaration Expert-Advisors and
published in an Annual Review. The contents of these reports also serve as
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ASSESSING NATIONAL LAWS AND ENFOR CEMENT MECHANISMS 39
the basis of the Director-General's Global Report, which covers one of the
four categories of rights each year.4 Professor Bellace noted that the Global
Report is written in a "much more accessible way" because of its promo-
tional nature and the inclusion of less legal analysis than is found in the
CEACR reports on ratified Conventions.5
4The Annual Review, Global Reports, and report forms of the ILO are available at
wWw.ilo.org/public/english/standards/decl/reports/index.htm.
The Declaration's "promotional" nature means that it does not impose any new legal
obligations. Unlike Conventions, it is not open for ratification. It is based on the ILO
Constitution and aims to support countries in their efforts to realize fundamental principles
and rights, primarily through technical cooperation and advisory services.
Representative terms from entire chapter:
labor standards
