International Labour Organization (ILO)
by Abbo Junker
1. History and evolution of the ILO
The International Labour Organization (ILO) was established in 1919 and became a specialized agency of the United Nations in 1946. It is the oldest specialized agency of the United Nations. The principles of the Constitution of the ILO were included in the Versailles Peace Treaty (Arts 387–427 Versailles Treaty). The objectives of the future action of the ILO were laid down in Art 427 Versailles Treaty and rephrased shortly before the end of World War II at the General Conference of the ILO in Philadelphia (10 May 1944). The most important principle of ‘work is not a commodity’ is followed by a right of coalition for employers and employees, a right to adequate remuneration, the 8-hour working day as well as a weekly rest period of 24 hours, the elimination of child labour and the restriction of work by young people. Further goals were anchored in the preamble: equal remuneration for work of equal value without distinction based on sex and a fair treatment of foreign employees as well as the establishment of a state supervision service for the implementation of laws and regulations on worker protection (conditions of employment (information); employment contracts, individual (PIL); employment protection; working time).
After the end of World War II the number of members increased enormously with the decolonization and formation of new states; 182 states are currently members of the ILO. Although many countries have over the years withdrawn on account of political conflicts with the ILO, the departure has normally only been temporary. For example, the United States left the ILO in 1977 to express their displeasure at the social policies of Israel in the occupied Arab territories. Since 1980, the United States has once again been a member of the ILO.
On its 50th anniversary in 1969, the ILO was awarded the Nobel Peace Prize. This shows its outstanding importance for the progress and development of International Labour Law. In addition to the significantly increased number of members after World War II, the field of activity has also been extended. While the activities were previously limited to norm-setting, now the technical cooperation under the UN development aid programme is rightly so a major focus: the basic conditions of life which are necessary for implementing the aspired norms in developing countries—comprising at least two-thirds of the ILO member states—can only be created in this fashion.
2. Construction and organization of the ILO
The ILO has its own legal personality. Its legislative as well as executive branches are constituted of government representatives of ILO member states and representatives of the employers’ and workers’ organizations. Its construction is based on a tripartite structure; according to Art 2 of its Constitution, the ILO consists of the following three institutions that are equipped with different responsibilities.
a) International Labour Conference
The conference meets annually in Geneva with delegates from currently 181 member states (two government representatives, one employer and one employee representative, see Art 3(1) ILO Constitution). Its main tasks are advisory services and decision-making in relation to conventions and recommendations, verification in the ILO member states with respect to observance of ratified conventions amendment of the Constitution of the ILO, the adoption of the budget and programme of the ILO for a period of two years as well as the election of the members of the Governing Body (see procedural rules of the International Labour Conference).
b) Governing Body
The Governing Body is the most important executive body and currently consists of 56 members, including 28 government representatives and 14 employers’ and employees’ representatives, respectively. Members serve a three-year term of office (see Art 7(5) ILO Constitution). According to Art 7(2) ILO Constitution, 10 of the governmental seats are continuously filled by the major industrial nations (currently: Brazil, China, Germany, France, Britain, India, Italy, Japan, Russia and the United States). This is not done by election but by appointment according to a special procedure. The tasks of the Governing Body are the planning and management of the activities of the ILO (Art 14 ILO Constitution), execution of the resolutions of the conference, verifying compliance and implementation of the conventions and recommendations as well as the control of the International Labour Office.
c) International Labour Office
The permanent secretariat based in Geneva is appointed by the Governing Body. In accordance with Art 10(1) ILO Constitution, the International Labour Office mainly concentrates on collecting and transmitting information that is decisive for the international regulation of employee living conditions and labour relations. It conducts investigations ordered by the International Labour Conference or, alternatively, the Governing Body. Moreover, it prepares the topics which are to be discussed in the Conference. In addition, it organizes aid for developing countries and publishes studies and reports.
3. Conventions and recommendations
One of the main tasks of the ILO is its norm-setting activity, which is stipulated in the constitution (Art 19(1) and (2) ILO Constitution). The objective of the ILO is to establish effective international norms which ensure minimum standards for working and living conditions, guarantee the social welfare of workers and protect human rights (human rights and fundamental rights (ChFR and ECHR)).
In order to implement its goals, essentially two types of international labour norms come into consideration: conventions and recommendations, each of which will be discussed below. Besides that, there are decisions and conclusions made by the Conference, which are not norms under international law.
a) Conventions
For the ILO member states the conventions have directly binding effect with their ratification, although not in the sense in which international treaties are binding for its members. In principle, the ratification has to occur within one year, in exceptional cases within 18 months from the end of the Conference (Art 19(5) lit b ILO Constitution).
The process of norm-setting approximates a period of four years. The Governing Body initiates the proceedings (Art 14(1) ILO Constitution). The procedural process is stipulated in Arts 34–45 of the Rules of the International Labour Conference: the International Labour Office reports the current legislation and practice in the ILO member states to the International Labour Conference with regard to the subject matter of a convention and presents a government bill, which will be discussed afterwards in the Conference. After the decision of the Conference the International Labour Office asks all member states for a statement based on questionnaires and submits a report to the International Labour Conference generated on the basis of the responses.
Taking into account the results and opinions, the International Labour Office thereupon formulates a draft of the convention, which is again sent to the member states for a statement. The International Labour Conference hands over the final report of the International Labour Office to a committee in the following year and presents it, in case of acceptance, to the General Assembly of the Conference. The Assembly decides in the end on the adoption or rejection by a two-thirds majority vote of the present delegates. The convention is still not binding for the ILO member states. The member states have to ensure through legislative implementation or other steps that the content of the convention will be realized.
b) Recommendations
Recommendations are not binding but instead only give the ILO member states social and labour law guidelines (Art 19(1) and (6) ILO Constitution). The recommendations have a more extensive content than the conventions and sometimes will undertake to clearly define a convention: as they do not have to be ratified, a (excessive) willingness to compromise is not necessary. Frequently, through a combination with a convention, the recommendation is used as a complement to the more general convention to present proposals for the national implementation.
4. Significance for the European Union
Adopting any convention requires a variety of long-lasting discussions until all the member countries agree, not least because of the different social and legal structures in the different countries. In order to reach a consensus for a convention, the delegates must agree on uniform labour standards. However, measures oriented at the level of developing nations do not generally offer a benefit for developed nations; conversely, real innovations meeting the interests of economically well-developed nations may be ratified by developing countries but cannot be realized. In that regard, the International Labour Organization persists in a crisis of efficiency since implementation is complicated by both attempts to compromise and enforcement obstacles.
Most notably, in the developed countries of the European Union, the ILO also faces an identity crisis since its significance as an institution which improves and forwards economic and living conditions, is largely meaningless and redundant.
The problem is exacerbated by the fact that the distribution of competences within the European Union makes signatory obligations difficult to fulfil. The EU Member States handed over their regulatory powers in certain areas to the European Union. As members they are capable of action towards the ILO; however, regulatory powers in the greatly expanded field of occupational safety and health and social policy, as under Art 154 TFEU/Art 138 EC are exclusively vested with the European Union. Yet, as a non-member, the EU is incapable of acting within the ILO. In the case of shared competences of EU Member States and the EU (as in the case of convention No 170 of the ILO decided by the ECJ) the Union depends on the cooperation with the member countries by appointing the EU Member States as a trustee of the Community for the ratification of the convention.
Another problem occurs when EU legislation contradicts regulations of an ILO convention. EU Member States cannot fulfil both, especially if they conferred their competence to the European Union in this area. The conflict is resolved as follows. If the regulation under EU law is favourable for the employee, it finds priority application over the ILO norm, in accordance with Art 19(8) ILO Constitution. However, if the relevant ILO convention is more favourable, its application depends on whether the EU regulation sets out a minimum requirement or not. The protection of minimum requirements may be strengthened by other measures pursuant to Art 153 TFEU/137(5) EC; thus, a regulation which improves this protection may be applied. If the concrete EU regulation does not lay down a minimum requirement, it supersedes the respective ILO convention, according to the opinion of the ECJ. As justification, the Court quotes Art 351 TFEU/307 EC, which requires EU Member States to solve legal conflicts arising between applicable European law and their international commitments. In most instances, EU law is the winner.
In order to resolve the differences and, in particular, not to undermine the competence of the ILO in the European Union, a special convention would facilitate cooperation and create a clear division of powers.
Literature
Gerhard Schnorr, Das Arbeitsrecht als Gegenstand internationaler Rechtsetzung (1960); Franz Gamillscheg, in Karl Strupp, Hans-Jürgen Schlochauer (eds), Wörterbuch des Völkerrechts, vol 2 (2nd edn, 1961); Egbert Fried, Rechtsvereinheitlichung im Internationalen Arbeitsrecht (1965); Udo Mayer, Sibylle Raasch, Internationales Recht der Arbeit und Wirtschaft (1980); Winfried Haase, ’Die Internationale Arbeitsorganisation—Struktur und Wirkungsweise’ in Michael von Hauff, Brigitte Pfister-Gaspary (eds), Internationale Sozialpolitik (1982) 113; Wilhelm Adamy, Manfred Bobke, Klaus Lörcher, in Wolfgang Däubler, Michael Kittner, Klaus Lörcher (eds), Internationale Arbeits- und Sozialordnung (1990); Rolf Birk, ‘Arbeitnehmerschutz: Vom internationalen zum supranationalen Recht’ [1991] ZfA 355; Klaus Lörcher, ‘Die Normen der Internationalen Arbeitsorganisation (IAO) und das Arbeitsrecht der Bundesrepublik’ (1994) 47 RdA 284; Andreas Feuerborn, ‘Grenzüberschreitender Einsatz von Fremdfirmenpersonal, Europäisches Arbeits- und Sozialrecht’ in Hartmut Oetker and Ulrich Preis (eds), Europäisches Arbeits- und Sozialrecht EAS, part B 2500 (2003); Rolf Birk, in Münchener Handbuch zum Arbeitsrecht, vol 1 (2nd edn, 2000) 190 ff, Udo Mayer, in Michael Kittner, Bertram Zwanziger (eds), Arbeitsrecht Handbuch für die Praxis (4th edn, 2007); Rolf Birk, ‘Perspektiven des Internationalen Arbeitsrechts’ (2007) 21 ZIAS 91.
