Click for next page ( 31


The National Academies | 500 Fifth St. N.W. | Washington, D.C. 20001
Copyright © National Academy of Sciences. All rights reserved.
Terms of Use and Privacy Statement



Below are the first 10 and last 10 pages of uncorrected machine-read text (when available) of this chapter, followed by the top 30 algorithmically extracted key phrases from the chapter as a whole.
Intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text on the opening pages of each chapter. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

Do not use for reproduction, copying, pasting, or reading; exclusively for search engines.

OCR for page 30
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

OCR for page 30
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.

OCR for page 30
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

OCR for page 30
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

OCR for page 30
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. }

OCR for page 30
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

OCR for page 30
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

OCR for page 30
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

OCR for page 30
38 Do To ~ Do _ ~ o . .s . ~ . _ o ._ o o o . - C~ I_ . - Cal o Do Do o . - ~ Do .o GN o US Do GN JO ~ o ~ o Do ~ ~ O ~ O ~ GN Do US ~ ~ ~ ~ US GN ~ ~ ~ O O ~ ~ up US GN ~ US ~ ~ ~ US US ~ ~ ~ Do ~ ~ ~ GN ~ ~ GN US ~ ~ ~ US o ~ ~ o Do US ~ #o ~~ ~ ~ o ~ o JO - ~ HOI H Fii O

OCR for page 30
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.