APPENDIX III

50th anniversary of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and of the Universal Declaration of Human Rights

A. 50th anniversary of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)

41.At its San Francisco Conference, the representatives of governments, employers and workers from the 40 member States which then constituted the International Labour Organization adopted, on 9 July 1948, by 127 votes in favour, zero votes against and 11 abstentions, Convention No. 87 on freedom of association and protection of the right to organize. The celebration of the 50th anniversary prompts the Committee today to assess the impact of half a century of freedom of association protection.

Status of ratifications

42.As of 12 December 1997, Convention No. 87 had been ratified by 120 member States of the ILO. While this is a high number of ratifications, unfortunately it remains insufficient. Since the Committee prepared its sixth General Survey on freedom of association and collective bargaining in 1994, the number of member States has increased from 170 to 174, and the number of ratifications of Convention No. 87 has continued to increase, from 109 to 120. Although the call of the Copenhagen World Social Summit in March 1995 and the repeated action of the Director-General to promote the ratification of the seven fundamental Conventions, including Convention No. 87, by the member States has borne fruit, there remain 54 member States that have not yet ratified the Convention.² Some are very industrialized countries while others are not. These countries represent a variety of industrial relations systems, some being very advanced while in others there is not even any recognition of the fundamental principles of freedom of association. The Committee must underline in particular that a large number of the most populated countries have not yet ratified this fundamental Convention, affecting more than half of workers and employers worldwide. This gives rise to considerable concern. The Committee, therefore, addresses an urgent ap-peal on the occasion of this 50th anniversary to those governments that have not yet ratified the Convention to do so. The Committee recalls that freedom of association is an essential objective of the Organization which is recognized in its Constitution and is the basis of tripartism. The Committee stresses in addition that the Declaration of Philadelphia, adopted in 1944 and incor-porated into the Constitution two years later, recognizes the clear link between civil liberties and trade union rights in proclaiming that freedom of expression and of association is essential to sustained progress. The Committee, therefore, expresses its firm hope that, in the near future, there will be significant progress regarding the ratification of Convention No. 87.

Progress achieved

43.For the ILO, the ratification of a Convention is only the first step in its implementation; the essential part of the process is clearly its application in law and in practice. Fortunately, a significant number of questions regarding Convention No. 87 that had been the subject of comment by the supervisory bodies of the ILO for many years have been, or are in the process of being, resolved. Over the 50-year period, the Committee has expressed its satisfaction in more than 110 cases with respect to the measures taken by 67 governments from all regions of the world aimed at introducing modifi-cations necessary to improve, in law and in practice, the application of the Convention. During the last decade, the number of cases of progress has increased considerably, growing by more than 60 since 1987.

44. The suppression of a legally imposed trade union monopoly and the abolition of the directing role of the party under the government rule represent without doubt the most frequent cases of progress regarding the application of the Convention during these last years. Other improvements achieved relate to the re-establishment of freedom of association following the lifting of a state of emergency and the return to the rule of law and democracy in countries that had been under dictatorships. There has also been an expansion of the right of association in a number of countries: public employees, nurses, teachers, employees of religious or charitable institutions, fire-fighters, homeworkers, domestic workers, rural workers, seafarers, workers in the informal sector and foreign workers have been granted the right of association that had long been denied them.

45.Other progress is evident in the lifting of restrictions on the right of workers' and employers' organizations to elect their representatives freely. A significant number of legislative changes have been introduced aimed at ensuring that there is no longer undue interference regarding eligibility, election procedures and the discharge of trade union officials. The right of trade unions to draw up their rules and to organize their administration and activities has also been marked by positive developments. In certain countries, the administrative supervision of trade unions has been withdrawn, or wide powers of control or inquiries of the authorities into union activities, trade union meetings or the management of union funds, have been lifted. In some cases, the general prohibition of strikes has been revoked and the penalty of imprisonment for strike-related activities removed. Legal avenues of administrative dissolution have been closed. Private and public sector unions have achieved the right to join federations and confederations. Finally, the right to affiliate with international organizations of their own choosing without interference of the public authorities has been granted to occupational organizations in a number of countries.

46.The Committee can only hope that these favourable developments will continue and grow. This appreciable progress is the fruit, not only of persistent and continual dialogue of the Committee and the tripartite Conference Committee with the governments, but also of the patient work of the Committee on Freedom of Association of the ILO Governing Body. The community of ideas that should flow between the three supervisory bodies will ensure continuing progress.

47.Despite such considerable advances in the implementation of the Convention, serious problems still remain in achieving its full application.

Long-standing difficulties and new obstacles

48.Imposed trade union monopoly was identified during the drafting of the Convention as one of the significant obstacles to freedom of association. It was as clear then as it is today that the right of employers and workers to establish and join organizations of their own choosing is in no way intended to assume a position favouring either the theory of the single organization or that of plurality of organizations, but rather that the choice should rest with those directly concerned. Despite the progress achieved in this area, the problem of trade union monopoly imposed directly or indirectly by law persists in some countries and is, in certain cases, one of the principal obstacles to the ratification of Convention No. 87. Legislatively imposed trade union monopolies have forced some independent trade unions underground or into exile. In other cases, it has been observed that some organizations which worked within the framework of a monopolistic system, have later been dissolved by administrative authority and their leaders arrested and detained for pursuing their members' interests in a manner independent of the government authorities. Such situations reinforce the continuing relevance of the 1952 International Labour Conference resolution concerning the independence of the trade union movement and the fundamental importance of ensuring a labour relations system which allows for trade union pluralism, if desired by those concerned.

Restrictions for certain categories of workers

and sectors of activity

49.At the time of the adoption of the Convention, public servants were restricted with respect to their right to organize in several regions of the world. It was therefore clearly indicated in the travaux préparatoires that the guarantee of the right of association should apply to all employers and workers in the public or private sectors including public servants and high-level officials as well as workers in state-owned industries. While, as noted above, several countries have since guaranteed the right to organize to public servants, this right remains restricted in a number of member States and has been cited by some of them as an impediment to ratification. Furthermore, the right to organize of all workers without distinction whatsoever continues to raise difficulties in some countries which still limit this right for agricultural workers, domestic workers, seafarers, fire-fighters, prison staff and sometimes for foreign workers.

The right to strike

50.Restrictions continue to be placed on the means which can be used by workers' organizations for the furtherance and defence of their members' interests. This is particularly flagrant with respect to the right to strike. In some countries this right is still subject to a general prohibition or is prohibited in a large number of sectors which cannot be considered essential. Some legislation grants broad powers to public authorities to impose compulsory arbitration or imposes excessive conditions rendering strikes virtually impossible. Moreover, sometimes such legislation also imposes penal sanctions for legitimate and peaceful strike action.

The significance of freedom of association in a globalizing world economy

51.In the last decade, new situations have given rise to restrictions in respect of freedom of association for certain workers. The most notable of these concerns the creation of export processing zones. In several countries EPZs are either explicitly excluded from national labour legislation or are covered by specific regulations expressly excluding the right to organize and/or the right to strike. Unfortunately, the number of workers in EPZs affected by such legislation is increasing given the current practice of competitive economies within the context of globalization.

52.The globalization of trade also renders restrictions on trade union affiliation and restrictions concerning nationality for election to trade union office all the more disturbing. Even though there is an increasing number of migrant workers around the world, their right to organize and the possibility for their election to posts within the union leadership are called into question in certain countries. Such restrictions have been invoked by certain governments as an obstacle to the ratification of the Convention.

53.Finally, the world labour market also highlights the relevance of the right to affiliate to an international organization of employers or workers. Representation at the international level with a global perspective has always been of fundamental importance to the trade union movement. Thus, when taking into account the increased vulnerability of displaced workers, as well as the complexity of legal and social issues to be faced by multi-national enterprises, the right to affiliate to international organizations is more important than ever and every effort must be taken to guarantee respect for it.

54.While globalization and its repercussions on trade union rights could not be foreseen at the time of adoption of Convention No. 87, the Committee has not ceased to recall the universal nature of the standards laid down in the Convention.

55.In conclusion, the Committee welcomes the considerable progress made since the adoption of Convention No. 87 towards ensuring the respect of its provisions. While noting that, in several cases, results have been obtained with the technical assistance of the Office and given that there are important obstacles remaining to the full application of the Convention, the Committee invites the governments concerned to avail themselves of such technical assistance in order to identify the problems hindering the application and/or the ratification of the Convention, thus exploring new approaches towards the resolution of these problems.

B. 50th anniversary of the Universal Declaration of

Human Rights

56.The year 1998 is also the 50th anniversary of the Universal Declar-ation of Human Rights, which was adopted on 10 December 1948, a few months after Convention No. 87. The Universal Declaration is now considered to reflect customary international law. It is generally accepted as a point of reference for human rights throughout the world, and as the basis for most of the standard setting that has been carried out in the United Nations and in many other organizations since then.

57.The ILO's standards and practical activities on human rights are closely related to the universal values laid down in the Declaration, and are entirely consistent with it. Except for the Forced Labour Convention, 1930 (No. 29), all of the ILO's fundamental human rights Conventions were adopted either at the same time as the Declaration or in the years closely following it, and all are in conformity with the philosophy and principles laid down in that important document.

58.Most important, the ILO's standards on human rights along with the instruments adopted in the UN and in other international organizations give practical application to the general expressions of human aspirations made in the Universal Declaration, and have translated into binding terms the principles of that noble document. The Universal Declaration reflects in turn many of the principles laid down in the ILO's own Declaration of Phil-adelphia adopted in 1944 and incorporated into the Constitution of 1946. The fact that the ILO instruments on the human rights that fall within its mandate have been so widely ratified is further evidence of the degree to which they reflect the universal values laid down in the Declaration.

59.It is not only those instruments which the ILO has designated "human rights" which apply the precepts of the Universal Declaration. Clearly Article 4 of the Universal Declaration on slavery and servitude is implemented under the ILO's Conventions on forced labour, and the prohibition of discrimination in Article 7 finds application in ILO standards on discrimination in employment and occupation. The statement in Article 23, paragraph 4, that "Everyone has the right to form and to join trade unions for the protection of his interests" relates even more directly to the ILO's standards on freedom of association. The Universal Declaration also brings into the sphere of human rights many of the subjects that the ILO has dealt with in its own framework of "social justice", including the right to social security in Article 22, the right to decent conditions of work in Article 23, the right to rest and leisure and a limit on working hours and holidays in Article 24, and other rights.

60.The Committee therefore reaffirms its appreciation of the im-portant step taken by the United Nations in 1948 when it adopted the Uni-versal Declaration, and celebrates the impact this document has had on the achievement of human rights and social justice in the world since then. The Committee will continue, as it always has done, to keep the Universal Dec-laration's precepts in mind as it carries out its own tasks.

Copyright © International Labour Organization 1998

 
¹ Excerpt from the Report of the Committee of Experts on the Application of Conventions and Recommendations: General report and observations concerning particular countries, Report III (Part 1A), International Labour Conference, 86th Session, Geneva, ILO, 1998.

 
² There are in particular 38 countries that have been Members of the ILO for at least 20 years, namely, Afghanistan, Angola, Bahamas, Bahrain, Brazil, Cambodia, Chili, China, Democratic Republic of the Congo, El Salvador, Fiji, Guinea-Bissau, India, Indonesia, Islamic Republic of Iran, Iraq, Jordan, Kenya, Lao People's Democratic Republic, Lebanon, Libyan Arab Jamahiriya, Malawi, Malaysia, Mauritius, Morocco, Nepal, New Zealand, Papua New Guinea, Qatar, Saudi Arabia, Singapore, Somalia, Sudan, United Republic of Tanzania, Thailand, Uganda, United Arab Emirates and United States.