ILO Conventions and the Covenant on Economic, Social and Cultural Rights: One Goal, Two Systems by Lejo Sibbel Dialogue and Cooperation 1/2001 Friedrich-Ebert-Stiftung Department for Development Policy - Dialogue on Globalization - Hiroshimastr. 17 10785 Berlin Tel.:0049-30-26936-914 Fax: 0049-30-26935-959 [email protected] www.fes.de/globalization The opinions expressed in this paper do not necessarily reflect the views of the Friedrich-Ebert- Stiftung or the organisations for which the author works. 01/04/03 17:25 ILO Conventions and the ICESCR: One Goal, Two Systems ILO Conventions and the Covenant on Economic, Social and Cultural Rights: One Goal, Two Systems Lejo Sibbel* Introduction “There is no single model of democracy, or of human rights or of cultural expression for all the world. But for all the world, there must be democracy, human rights, and free cultural expression. Human ingenuity will ensure that each society, within its own traditions and history, will enshrine and promote these values.” Kofi Annan, Secretary-General of the United Nations The history of mankind is marked by It is fair to say that nowhere is the efforts to ensure respect for the inherent relationship between the ILO and the UN dignity of human beings. These efforts as strong and visible as it is in the area of include the establishment in 1919 of the human rights. Instruments, or parts International Labour Organization thereof, adopted by the respective (hereafter ILO) and the establishment in organizations have mutually reinforced 1920 of the League of Nations, followed each other, the supervisory mechanisms in 1945 by the United Nations (hereafter functioning within the two organizations UN). Although it was created before the have drawn upon each other’s findings, and UN, the ILO became a specialized agency the ILO and the UN have often cooperated of the UN system in 1946 and has a close on human rights matters through the and long-standing relationship with the exchange of information, meetings, UN. When looking at the basic documents conferences and technical and advisory of both organizations, this is hardly assistance. Considering the mandate of the surprising. The Preamble of the ILO ILO, this link is probably strongest in the Constitution begins with the statement that area of economic and social rights, an area ‘universal and lasting peace can be also covered by the International Covenant established only if it is based upon social on Economic, Social and Cultural Rights justice’, while the Preamble of the Charter (hereafter ICESCR). of the UN states that one of its aims is ‘to promote social progress and better The relationship between economic, social standards of life in larger freedom’. In and cultural rights and civil and political other words, the two organizations share, rights has been widely debated over the at least partly, common goals. Other years. However, as early as 1950, the reasons for this close relationship are that General Assembly declared, in Resolution membership of the two organizations is 421(V), s. E, that ‘the enjoyment of civic almost identical and, as standard-setting and political freedoms and of economic, organizations, both function similarly. social and cultural rights are * The author is an Associate Expert on International Labour Standards, ILO Southeast Asia and Pacific Multidisciplinary Team, Manila, the Philippines. 51 Dialogue + Cooperation 1/2001 interconnected and interdependent’. The Vietnam have ratified the ICESCR. On the third preambular paragraph of both other hand, all but one ASEAN member international covenants reiterates this countries are also member states of the ILO declaration in treaty form, and on 25 June and have ratified a number of ILO 1993, representatives of 171 states adopted conventions which cover subjects related by consensus the Vienna Declaration and to the Covenant.2 In this paper, an attempt Programme of Action of the World will be made to illustrate the relationship Conference on Human Rights, which in between certain ILO conventions and the paragraph 5 states that ‘all human rights are ICESCR, and the way in which the bodies universal, indivisible and interdependent charged with supervising their application and interrelated’. interact. An overview of the progress made and obstacles encountered by some ASEAN However, whereas it appears that the ‘Asian member states in implementing the ILO view’ on human rights places more emphasis conventions ratified by them gives some on economic, social and cultural rights indication of how certain economic and (simply put, collective rights), than on civil social rights have been applied. It is clear and political rights (again simply put, that although ILO conventions and the individual rights), one would expect a broad ICESCR operate within two different, albeit acceptance of the former set of rights. related, systems, they have a common goal: Nevertheless, when looking at the ten to promote social progress and better ASEAN member countries,1 only standards of life in larger freedom. Cambodia, the Philippines, Thailand and Social Justice and Human Rights The term ‘human rights’ had not yet firmly framework of broad concepts of human found its way into the international public rights (non-discrimination, freedom, law dictionary when the ILO was founded. dignity, etc.). The Declaration continues by Consequently, the Constitution of the ILO specifying in Article III how the ILO and even the Declaration of Philadelphia envisages working towards the realization do not mention the term. Instead, they of this objective. It mentions, inter alia, identify ‘social justice’ as the basis for the measures to be taken in the areas of training, organization’s work. labour migration, conditions of work, collective bargaining, social security and Article II(a) of the Declaration of occupational safety and health. When one Philadelphia states that ‘all human beings, takes Articles II and III of the Declaration irrespective of race, creed or sex, have the together one can conclude that the concept right to pursue both their material well- of social justice encompasses certain being and their spiritual development in human rights but goes beyond these rights conditions of freedom and dignity, of in terms of detail and application. This can economic security and equal opportunity’. be illustrated by the call made on all states This is the basic premise for action by the by the 1995 United Nations Social ILO. The principal right of all human beings Development Summit to ratify and to pursue both their material well-being and implement the ILO’s fundamental human spiritual development is placed within a rights conventions, identified as the seven 1. ASEAN (Association of Southeast Asian Nations) member countries are Brunei Darussalam, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam. 2. Only Brunei Darussalam is not a member state of the ILO. 52 ILO Conventions and the ICESCR: One Goal, Two Systems conventions which cover the areas of effective recognition of the right to freedom of association, discrimination and collective bargaining, the elimination of all forced labour and child labour.3 To date, forms of forced labour or compulsory the ILO has adopted 182 conventions, some labour, the effective abolition of child of which go into detail with regard to labour, and the elimination of subjects covered by the fundamental discrimination in respect of employment conventions while the remainder deal with and occupation. other subjects altogether. Another such illustration is the 1998 ILO Declaration on The conclusion is thus that the concept of Fundamental Principles and Rights at social justice does not coincide precisely, Work, which declares that all members of but overlaps with the concept of human the ILO, even if they have not ratified the rights. The question then would be how fundamental human rights conventions of these two concepts relate to each other in the ILO, have an obligation, arising from practice. A review of the relationship the very fact of membership, to respect, to between certain ILO Conventions and the promote and to realize the principles ICESCR should shed some light on this concerning freedom of association and the question. The Relationship between ILO Conventions and the ICESCR The International Bill of Human Rights that it develop a more labour-oriented consists of the Universal Declaration of version of the same principle. In 1930, the Human Rights (hereafter UDHR), the ILO adopted the Forced Labour ICESCR and the International Covenant Convention (No. 29). These two on Civil and Political Rights (hereafter international conventions were, in turn, the ICCPR). When the Universal Declaration principal sources for Article 4 of the was adopted by the General Assembly on Universal Declaration.4 10 December 1948, the ILO had already effected 90 conventions, some of which deal What holds true for the relationship between with issues also covered by the Universal Article 4 of the Universal Declaration and Declaration. One example of how the ILO Convention No. 29, does so even standard-setting efforts of the UN’s more for the relationship between Articles predecessor, the League of Nations, and 6-10 and 13 of the ICESCR and ILO the ILO influenced the contents of the conventions on the same subjects. When Universal Declaration concerns the issues the Covenant was adopted in 1966, the ILO of slavery and forced labour. Article 4 of had already adopted all but one (the the Universal Declaration states that ‘no one Minimum Age Convention, 1973 [No. shall be held in slavery or servitude; slavery 138]) of the fundamental human rights and the slave trade shall be prohibited in conventions referred to in Copenhagen. all their forms’. The League of Nations had Consequently, when comparing Articles 6- already adopted the Slavery Convention in 10 and 13 of the Covenant with ILO 1926. It then turned to the ILO and asked conventions covering the same subjects, one 3.