Freedom of association: The impact of Convention No. 87 and ILO action

Geraldo von POTOBSKY*

The Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), embodies the legal standard protecting the principle of freedom of association, which received its first international expression in the Constitution of the International Labour Organization (ILO) drafted in 1919. The Convention's principal achievement was to represent a general consensus on the basic rights encompassed within that principle, and to give them legal expression. It is the most comprehensive international instrument to date in this area of human rights and has become a pivotal reference point within the broad area of trade union law and practice.

This article sets out to examine the overall impact of ILO Convention No. 87 and of the other relevant standard supplementing it relating in particular to protection against anti-union discrimination and interference in occupational organizations contained in the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).¹ The analysis will focus largely on action by the ILO to promote the application of this Convention globally. The validity or significance of the principles and standards it enshrines have not been contested, and it is one of the most imperative duties of the ILO to promote them.

To evaluate the impact of the Convention is not an easy task and it deserves a far wider and deeper study than that offered here. It is important to bear in mind that the twists and turns taken by collective labour relations in a context of ongoing political and economic change constantly raise problems in relation to the principles and standards of freedom of association.

This article first addresses the general question of the influence of these Conventions, which comes up against difficulties inherent to the transfer of international standards into a national context in such a sensitive and complex area as collective labour relations. This is followed by a review of studies undertaken by the ILO since the 1920s of how freedom of association is actually applied in countries. Then the regular supervisory procedure for monitoring the extent of compliance by States with the standards under consideration is described. Thereafter an analysis is provided of the work and results obtained by the Committee on Freedom of Association and by the ILO fact-finding and inquiry commissions. Finally, a number of conclusions are drawn.

The complex problem of the influence of standards

Specialists in comparative labour law have stressed that transferring the standards and institutions developed by an international organization into national legislation is much easier in the context of individual labour law than in that of collective labour law. For, collective labour law directly affects the balance of power between political, social and economic forces, in what are often very different cultural and historical contexts, such that frequently strong resistance emerges to changing the established order.² Nevertheless, as Paul Ramadier, for ten years Chairman of the Committee on Freedom of Association of the ILO's Governing Body, has stated, the principle of freedom of association is a kind of customary rule in common law, standing outside or above the scope of any Conventions or even of membership of one or other of the international organizations.³

Certainly, there is no doubt that the principle of freedom of association and its practical implications largely owe their dissemination and general acceptance to the ILO.

Another, more complicated issue is that of measuring the influence of ILO standards on national legislation. This influence may be derived from the fact that the ratification of Conventions on freedom of association results in practice in a spontaneous harmonization by governments of their legislation either before or after ratification; or from the direct application of standards in monist legal systems; or as a result of the supervision exercised by the competent authorities of the ILO. However, such influence may also be exercised outside the context of any ratification, either because governments seek their inspiration from these standards either directly or through other laws or through the influence of certain bodies such as the Committee on Freedom of Association. The technical cooperation provided by the Office's experts has played an important role in some of the situations examined here and also when individual countries have undertaken a major reform of their labour law.

As regards the legislative control exercised by the organs of the ILO, it is fairly easy to prove the influence of international standards, as both the Committee of Experts on the Application of Conventions and Recommendations and the Committee on Freedom of Association carry out an ongoing monitoring exercise in this respect.

It is more difficult to establish the impact of international standards in cases of factual violations of trade union and employers' rights or of human rights related to freedom of association. The geographical spread and extent of such violations can be considerable, and they certainly appear regularly on the agenda of the Committee on Freedom of Association. The most serious complaints concern the fundamental rights required to enjoy freedom of association, e.g. the right to freedom and security of person.

In some cases, problems arising from the application of these principles and standards are solved relatively quickly. But other cases last for years, and only once a measure of political change has been achieved in the country concerned are the comments of the supervisory machinery heeded in any effective way and cause the law and practice of that country to be changed radically.

General and special surveys

Bearing in mind its tripartite structure, the single most important characteristic of the ILO, one of its chief concerns has always been the effectiveness of workers' and employers' right to organize in the various member States. Quite apart from the operation of the current supervisory machinery, the ILO has always attempted to help solve problems of freedom of association by conducting studies and surveys to obtain a fuller understanding of the sorts of situation that arise.

The early studies

In fact, the first step in this direction was taken in response to the need to have as much information as possible on the practical application of the principle of freedom of association. As early as 1923 the Governing Body called for a full survey to be carried out, as a result of which a comparative study was published at the end of the 1920s on the main problems encountered in this area,⁴ as well as five volumes of monographs on various countries, irrespective of whether they were members of the ILO.⁵ Drawing on the volume of material which had been assembled, the comparative study presented a number of conclusions on the situation as it was at the time. Two basic tendencies emerged from the different systems examined, one of which tended to predominate: one tendency placed the interests of the individual in the forefront, the other the interests of the organized community, whether the State or the association. In countries of the individualist tendency, the same value was placed on trade union (and employers') rights as on other rights and no effort was made to promote them in the law, which sometimes protected individual freedoms against the activities of occupational associations. In the other countries, the State recognized the associations as representative of different professional or occupational categories, which needed to defend their members from other such categories (for example, by means of collective bargaining) and in relation to the State (by participating in administrative and legislative activities). The principle of individual liberty thus gave way to the interests of the organization to which the individual belonged. The study concluded by expressing doubts as to whether any system based entirely on one or other of these tendencies could last in the long run. In practice, countries tended to reconcile both approaches, and the conception of freedom of association that sought such a reconciliation was the one prevailing at the time.

With the hindsight of three-quarters of a century, it is interesting to view these conclusions in their historical perspective. Extreme forms of the collective tendency and its various facets have largely died out; the more moderate and democratic form is present in many countries, and may be considered as the dominant tendency. Nevertheless, the individualist approach is making a comeback today, to the detriment of workers' and employers' organizations. In this context, new and serious problems are beginning to emerge as regards respect for freedom of association.

The McNair Report and the Price missions

The second important general study was conducted in the 1950s, as a result of the participation of employer and worker delegates from the socialist countries of Europe in the work of the ILO. In 1954, there had been objections to their credentials at the Conference on the grounds that the employers' representatives of those countries had no place in the tripartite structure of the ILO, and that there was no freedom of association in those countries, given that the organizations were dependent on the State. This study was carried out by independent experts and consisted of various national monographs and a general report.⁶ The majority opinion of the members of the Committee (known as the McNair Committee) was that the trade unions in their hierarchy were well able to look after themselves, and not likely to be subject to domination and control by the government; but it was beyond their terms of reference to state the extent to which the unions were subject to the domination of the Communist Party. As regards the question of the employers, these did not exist in the ordinary sense of the word, but it was reasonable to expect that the persons running industrial enterprises whose functions corresponded to those of employers in most of the member States would have a contribution to make to the work of the ILO.

Based as it was on documentary sources, this study led to demands for the establishment of a mechanism to inquire not only on the legal issues relating to freedom of association, but also on the actual situation in each member State. In 1958, the Governing Body instructed the Office to carry out studies on the trade union situation, using surveys conducted in the countries themselves as well as official and other documentary sources. Mission teams headed by a high-ranking official, John Price, carried out the surveys between 1959 and 1961 in the United States, the USSR, the United Kingdom, Sweden, the Federation of Malaya, and Burma. The reports were all published.⁷

The 1980s series

Some 20 years later, between 1982 and 1984, the Office conducted another series of studies with on-the-spot visits to the countries concerned, conforming with resolutions adopted at the Second and Third European Regional Conferences, held in 1974 and 1979.The aim of these studies was to make a detailed analysis of the trade union situation and of industrial relations from the point of view of ILO standards. The Office conducted the studies at the invitation of the Governments of Austria, Hungary, Norway, Spain and Yugoslavia. The studies contain a description of the situation obtaining in each country and a critical analysis thereof, with suggested solutions to the problems based on the relevant standards.⁸ In every case, a working group of the Governing Body studied the report and heard representations from the government, employers and workers of the country in question.

The General Surveys of the Committee of Experts

Finally, amongst general studies on freedom of association mention should be made of the general surveys periodically conducted by the Committee of Experts on the Application of Conventions and Recommendations, in accordance with articles 19, 22 and 35 of the Constitution of the ILO. This sort of general survey is carried out each year on a subject chosen by the Governing Body, and consists of a study comparing the legislation of the different countries with the various standards contained in the relevant Conventions. This exercise provides a worldwide picture of the extent of application of the Conventions in question and of the difficulties encountered in their application, since the surveys cover both countries which have ratified the Conventions and countries which have not yet done so. General surveys on questions of freedom of association were carried out in 1956, 1957, 1959, 1973, 1983 and 1994. The 1994 general survey contains the most up-to-date account of the comments of the Committee of Experts on the scope of the various provisions of Conventions Nos. 87 and 98.⁹

Special studies

In addition to the general studies, the ILO has sent missions to specific countries to conduct special studies and surveys, in order to improve knowledge of critical or problematic situations regarding freedom of association, and in order to promote the principles of the ILO.

A distant precursor is the survey conducted in 1920 in Hungary. Although at that time not a member of the Organization, the Government of Hungary had requested a study to be made in order to be able to refute allegations about the existence of a so-called "White Terror" (and the intimidation of workers). The Office thus investigated the conditions in which Hungarian trade unions were operating.¹⁰ Between 1947 and 1950, other studies were carried out on the labour and trade union problems occurring in Greece, Venezuela, Iran and Turkey, all of which were duly published by the Office.¹¹

In 1967, the Government of General Franco in Spain, which had been the subject of repeated complaints to the Committee on Freedom of Association, requested the ILO to carry out a study on trade unions and labour matters in that country. Spain accepted that this study be undertaken in accordance with the principles enshrined in the Constitution of the ILO, despite the fact that it had not ratified the Conventions on freedom of association. To this end, a study group was set up composed of three independent experts; it held hearings in Geneva and visited Spain. The report of the study group contained a description of the situation as regards trade union matters and individual safeguards, and suggested the various conditions with which any new legislation on workers' organizations would have to comply. The conclusions included a paragraph worthy of being reproduced here, as it remains topical and relevant to any country facing a similar situation:

In the world in which we now live, no national genius, however distinctive, can disregard the ethos and mores of the world as a whole, without severe loss. Spain's place in the world will be significantly influenced by her attitude towards world standards. In labour and trade union matters, and in respect of ... civil liberties ... there are unequivocal world standards. ... No State is bound contractually by any of these standards unless it has ratified the appropriate instrument, but no State can escape comparison with them and evaluation of the measure of freedom which it secures to its people on the basis of the comparison.¹²

In 1977, as a result of the significant political change that had occurred in Spain, the country passed a new law on trade unions and ratified Conventions Nos. 87 and 98.¹³ The authorities of the time acknowledged the influence of ILO principles and activity on the development of that law.

Subsequently, other study missions, fact-finding missions, technical assistance missions and missions to promote freedom of association principles and standards took place (though not with such a broad scope as the earlier study group) in a number of countries, including Argentina, Chile, Poland and Nicaragua, generally in relation to complaints made to the supervisory bodies of the ILO.

Regular supervision and the promotion of freedom of association

>The Committee of Experts on the Application of Conventions and Recommendations is a highly technical and quasi-judicial body and is the first to intervene in the supervisory process. It is composed of jurists drawn from all over the world; its mandate is the permanent supervision of the application by member States of the standards of the ILO, especially of the Conventions which they have ratified. At its annual meeting, the Committee of Experts examines the reports by governments and the observations received from the employers' and workers' organizations, and monitors follow-up on recommendations made by other supervisory bodies; it also makes use of information supplied to these bodies, and of information gathered during so-called direct contact missions and the kinds of special mission mentioned above.¹⁴

The Conference Committee on the Application of Standards, the other body involved in the regular supervisory process, meets every year during the International Labour Conference. The chief task of this tripartite committee is to discuss with representatives of the governments concerned the main problems the Committee of Experts has encountered in the application of standards and which they have indicated in their report. The two bodies complement each other, since the technical supervision provided by the Committee of Experts in turn affords an opportunity, within the Conference Committee, for "direct dialogue between governments, employers and workers," which "can even mobilize international public opinion".¹⁵

The regular nature of this process means that the impact of ILO standards on national legislation can be established clearly, along with difficulties encountered in harmonizing national legislation with these standards.

Problems arising in freedom of association:

Their nature and changing pattern

The annual report of the Committee of Experts contains its observations on problems encountered in the application of ratified Conventions in the countries concerned.¹⁶ Some of the longest parts of the report concern the application of Conventions No. 87 and No. 98. Their contents enable one to identify differences between national legislation and international standards as regards both existing legislation and any provisions adopted to deal with special situations, mostly those resulting from serious political, economic or social problems.

The comments of the Committee of Experts and the discussions within the Conference Committee on the Application of Standards enable one to follow developments in the problems affecting trade union legislation in the member States, the sorts of problem that usually arise, their frequency and scale, and to establish trends over time.

Certainly, the increase in the problems observed is linked to the increase in the number of ratifications, which are themselves largely linked to the growth in the number of member States, which rose from 121 in 1969 to 174 in 1998, following the incorporation of many countries including the newly independent States of eastern Europe and the former USSR. Table 1 shows the gradual acceptance of both instruments across the world.

An analysis of the reports of the Committee of Experts¹⁷ over the years shows certain persistent problems in relation to the labour law concerning trade unions in many countries, which corroborates the theory mentioned earlier of the inherently greater difficulty of transposing the system of international standards on collective labour relations into a national context. Nevertheless, the dialogue between governments, the Committee of Experts and the Conference Committee on the Application of Standards also shows the efforts made by many countries (often with advice from the ILO) to overcome the problems they encounter and to bring their legislation into line with the relevant Conventions. An astonishing number of bills are drafted to this end and then not passed. Sometimes the opposition to a change in the law comes from particular economic or social sectors; at other times, changes in government mean these draft bills are set aside. But there is a growing number of "cases of progress" (see below), showing that governments have succeeded in adapting their legislation to the requirements of international standards, in accordance with the requests of the Committee of Experts and the Conference Committee on the Application of Standards.

Developments and trends in the problems observed will now be considered.

The 1970s

In this period, when the two Conventions had received a considerable number of ratifications, the chief problem repeatedly noted by the Committee of Experts was that of the trade union monopoly (or single trade union system) provided for by legislation. This is a severe restriction on one of the fundamental principles upheld in Convention No. 87 (Article 2), namely: "Workers and employers, without distinction whatsoever, shall have the right to establish ... organizations of their own choosing without previous authorization." The system was a central element in the model of trade unionism upheld by the socialist countries of eastern Europe, and also by countries on other continents. The details varied, the structure or system was more or less rigid, and there were variations in the degree of discretion granted to the administrative authorities which registered trade unions; and in many cases, the single trade union was subject to the ruling party. In fact, the situation was one of a national trade union system usually involving a single centralized workers' organization. There were some cases of lesser monopoly which recognized just one union per enterprise; there were also a few cases of this system being imposed on the public services.

Another major, recurring problem concerned the restrictions imposed on the right to strike, either a general restriction or one affecting specified activities, especially those of essential services (defined more broadly than in the definition accepted by the ILO authorities for this purpose). Equally frequent were cases of the deprivation of the right to organize of certain categories of workers, in particular public servants and workers in public enterprises or bodies, members of collective farms in the socialist countries, agricultural workers, foreign workers, etc. Restrictions affecting trade union officers were also quite extensive, for example, the obligation to be employed in the same enterprise or occupation, the prohibition on re-election, or the right to order a union officer's suspension or dismissal by administrative authority. Less frequent was the absence of any protection for workers against acts of anti-union discrimination, often because of ineffective legal provisions, sanctions and means of application.

Other, though fewer, major restrictions existed in the law, for example administrative authority control over trade union organizations, obstacles to the establishment of federations and confederations and to unions' political activities, and the absence of protection from interference by employers in union affairs.

Particular attention was paid to those countries which declared states of emergency or exceptional situations involving generalized restrictions on freedom of association (and civil and human rights), even though these restrictions were gradually lifted subsequently.

The 1980s

During this period, the observations concerning trade union monopoly continued to be made and even increased in number; they mostly concerned the countries of eastern Europe and certain Arab and African countries, the cases involved amounting to rather over thirty. However, the problems most frequently observed by the Committee of Experts during this decade concerned the right to strike, usually in the essential services (broadly defined) but also in industries of national importance, export industries or export-processing zones. There were also many cases of lack of protection against anti-union discrimination, and of interference. The Committee of Experts also often handled cases involving the deprivation of the right to organize of workers in the public sector and in export-processing zones, and of other categories of worker, as well as of restrictions affecting the election of trade union officers, though these occurred on a lesser scale than the other problems mentioned.

Some of the cases involving countries which had declared states of emergency and placed severe restrictions on freedom of association were resolved, and some new cases arose.

Towards the end of the decade a tendency emerged which was to bring about considerable change in the situation concerning trade union monopoly, as will be explained below.

The 1990s

In the current decade, the cases which had been pending at the end of the 1980s in the vast majority of countries still persist, with some countries making progress in their legislation and a few experiencing additional difficulties. In second place, though in a proportion of under a third, come the countries which have managed to solve their earlier problems but now face new ones. In third place come the few countries involving new cases. However, the most important point about the current decade is that there are far more cases of progress than earlier. Moreover, most countries of eastern Europe, which had previously experienced the problem of a trade union monopoly, now no longer appear on the list of countries whose legislation is under scrutiny.

The problems currently under examination by the Committee of Experts may be summarized as follows.

The largest number of problems concerns restrictions to the right to strike, such as the fixing of conditions with which it is difficult to comply, compulsory arbitration and straightforward prohibition of the right to strike in certain spheres: public servants not engaged in administration of the State, essential services (broadly defined) and also other activities, as well as strikes called by trade union federations and confederations.

In second place come the cases involving inadequate protection against anti-union discrimination, followed by employer interference in trade unions. There are nearly as many cases of restrictions to the election of trade union officers, mostly for reasons of nationality and also because the workers involved are not employed in the enterprise or in the occupation concerned. A large number of countries continue to deprive workers of the right to organize, to the detriment, according to the individual case, of civil servants, senior staff, seafarers, agricultural workers, teaching staff, workers in export-processing zones, on the railways, foreign workers and others. It must be said that civil servants and foreign workers are those worst affected, as the other cases are much rarer. Some countries deprive several categories of workers of the right to organize.

Next come the cases involving excessive conditions placed on the establishment of trade unions, federations and confederations and of employers' organizations, especially those where a large number or proportion of members or previous authorization are required. The problem of trade union monopoly now comes in fourth position. Only a dozen or so cases remain pending, as there has been remarkable progress in this area since the end of the l980s. The smallest number of cases concern internal control of unions by the labour authorities.

In general, the Committee's observations on individual countries concern few problems in the application of Conventions. Nevertheless the issues raised may be important and, sometimes, the Committee makes observations repeatedly over many years without a satisfactory solution being found.

But there are about a dozen cases where the observations by the Committee of Experts concern several problems within the same legislation. Most of them have existed for a long time and still await decisive government action in order to comply with the obligations governments have entered into in relation to the Conventions concerning freedom of association.

Cases of progress

Since 1964, the Committee of Experts has been registering "cases of progress" in which governments have taken measures to modify or repeal their legislation, harmonizing it with the Conventions they have ratified, in order to satisfy comments made by the Committee.

As regards Convention No. 87 and the provisions of Convention No. 98 concerning anti-union discrimination and acts of interference in occupational associations, between 1970 and 1998 the Committee of Experts declared itself satisfied in a total of 119 cases of progress, involving 76 countries. In most cases, the countries involved appear only once in this long list, but nearly 20 countries appear two or three times, because of the harmonization measures they have taken.

It should be pointed out that each case of progress can cover one or more questions or problems treated and solved in a given country (for example, difficulties arising from the right to strike, discrimination against trade unions, etc).

As may be seen in table 2, there was some increase in the number of cases of progress during the 1980s compared with the previous decade, the number of countries involved remaining practically the same. In the 1990s these cases have nearly doubled and the number of countries involved has now more than doubled since the previous decade.

There has been a continuous increase in the questions or problems involved in cases of progress, from about 30 in the 1970s to around 50 in 1980s and up to over 90 since 1990.

There are interesting variations in the type of problem in which progress has occurred. In the 1970s cases of progress mostly involved the reversal of the suspension or dissolution of trade union organizations by administrative authority, deprivation of certain workers' right to organize, control of unions by administrative authority, anti-union discrimination and interference by employers.

In the 1980s, cases of progress on strike issues came clearly into first position, followed again by cases concerning deprivation of the right to organize, administrative control and then election of trade union officers and anti-union discrimination.

Finally, between 1990 and 1998 the largest number of cases involved the abolition of trade union monopoly and issues concerning the right to strike, followed at some distance by measures affecting the right to organize, anti-union discrimination, election of trade union officers, and then, to a lesser extent, by the establishment of unions, suspension and dissolution by administrative authority and the control of unions.

Looking at developments overall, restrictions on the right to strike have become increasingly important over the last 20 years as regards both problems in connection with freedom of association and cases of progress. On the other hand, cases involving trade union monopoly, which reached their highest point in the 1980s, fell significantly, because of fundamental political change in the countries concerned. Thus, from 1990 onwards the reports of the Committee of Experts¹⁸ registered 22 cases of abolition of trade union monopoly or of compulsory subjection to the ruling party or the State in the following countries, in chronological order: Poland (1990); Algeria, Bielorussia, Bulgaria, Hungary, Madagascar, Romania, Ukraine, USSR (1991); Belarus, Congo, Ethiopia, Mongolia and Rwanda (1993); Mauritania (1994); Azerbaijan, Gabon and Latvia (1996); Albania and Slovakia (1997); Sao Tome and Principe, and Seychelles (1998).

A summary is provided below of selected cases of progress registered over the past 15 years, in chronological order. This list gives a better idea of the sorts of problem observed by the Committee of Experts and the types of solution found.¹⁹ The year indicated in the heading is the year of publication of the Committee's report covering the cases described; the relevant pages of the report are given in brackets.

1983

Bolivia. Presidential decree No. 18957, of May 1982, rendered ineffective the order of suspension of trade unions, employers' organizations and professional associations. Trade union organizations restored their activities to normal, and former trade union officers were reinstated, as were workers dismissed for political or union reasons (pp. 117-118).

Greece. Act No. 1264, of July 1982, rendered ineffective the laws which obliged civil servants to join organizations representing them alone. This Act also abolished the ODEPES organization which had centralized all trade union contributions through a "check-off" system. It also considerably widened the protection against anti-union discrimination afforded to trade union officers (pp. 131, 174).

Peru. Presidential Decrees Nos. 003-82-PCM and 026-82-JUS, of 1982, granted to public servants the right to form trade union organizations (p. 144).

1984

Argentina. After the return to democratic rule, the adoption of Act. No. 22825, of June 1983, restored the exercise of the right to strike (p. 134).

Nicaragua. A Decree adopted in May 1983 amended various provisions of the Regulations on Trade Union Associations, rendering ineffective the provisions concerning the impossibility of forming national trade unions, the removal of members of trade union executives by administrative action, the representation of the labour administration at meetings of trade unions, restrictions on the elections of executive members and restrictions on the right to establish federations and confederations (p. 150).

1985

Nicaragua. Decree No. 1480, of August 1984, re-established the right to strike (p. 170).

1986

Burkina Faso. The Ordinance of January 1982 governing the right to strike was repealed (p. 138).

1987

Guatemala. Under the new Constitution which came into force on 14 January 1986, the right to organize a trade union and the right to strike were granted to state employees and workers in decentralized and auton-omous bodies. Workers' right to strike for economic and social reasons was also recognized (p. 185).

Uruguay. By Act No. 15738, of March 1985, the provisions of the military regime as regards occupational associations and the right to strike were declared null and void (p. 241).

1988

Guinea. Presidential Ordinance No. 114/PRG/SGG/86, of August 1986, recognized the independence of the National Confederation of Workers of Guinea in respect of the State and its bodies (p. 160).

1989

Argentina. Act. No. 23551, of April 1988, on trade union associations repealed Act No. 22105 which had been adopted in 1979 during the period of military rule (p. 125).

1990

Poland. Act No. 105, of April 1989, amended the trade union act of 1982 and introduced the possibility of trade union pluralism; Act No. 106, of April 1989, made the same provision in the area of agriculture, and Act No. 179, of May 1989, annulled all convictions imposed in respect of strikes committed after 31 August 1980 (pp. 205-206). Act No. 172, of May 1989, enabled the reinstatement of persons dismissed for strike activity (p. 243).

1991

Algeria. Act No. 90-14, of June 1990, on the procedures for exercising the right to organize and Act No. 90-11, of April 1990, respecting labour relations put an end to the trade union monopoly and introduced the possibility of trade union pluralism (p. 143).

Bielorussia. Section 6 of the Constitution, which had set out the leading role of the Communist Party in mass organizations, including trade unions, was amended (p. 153).

Bulgaria. Section 1 of the Constitution was amended as in the preceding case (p. 152).

Colombia. Act No. 50, of December 1990, amended the Substantive Labour Code in various ways: the registration of trade union organizations was speeded up; all trade union organizations started to enjoy legal personality as from their establishment and constituent assembly; the protection of trade union officers was improved; negotiation with non-unionized workers was prohibited when more than one-third of workers in an enterprise were represented by one or more trade unions; both official employees and public servants were permitted to be jointly represented by mixed trade union organizations (pp. 159-160). The sanctions against acts of anti-union discrimination were increased (p. 253).

Finland. Act. No. 503, of January 1990, prohibited the suspension of associations by administrative authority (p. 173).

Hungary. The new Constitution of October 1989 established the possibility of trade union pluralism and Act No. VII of the same year recognized the right to strike (p. 181).

Peru. Presidential Decree No. 076-90-TR, of December 1990, simplified the registration procedures for trade unions and the conditions for the establishment of federations and confederations, made trade union pluralism possible and set out the right to organize of casual self-employed workers (p. 201).

Romania. The Legislative Decree of 28 December 1989 abolished the leading role of the Communist Party and Legislative Decree No. 147, of 11 May 1990, introduced the possibility of trade union pluralism (p. 207).

Ukraine. Section 6 of the Constitution which had set out the leading role of the Communist Party over mass organizations, including trade unions, was repealed and a new section 7 enshrined the principle of political pluralism (p. 215).

USSR. Amendment of section 6 of the Constitution; the Law of the USSR on trade unions of 10 December 1990 recognized the possibility of trade union pluralism, as well as the free establishment and administration of trade unions, as laid down in Convention No. 87 (p. 216).

Venezuela. The new Labour Act, of November 1990, contained major improvements suggested by the Committee of Experts: reduction of the minimum number of workers required to establish enterprise unions and occupational unions; removal of a restriction on the re-election of trade union offi-cers; removal of the provision making trade union organizations subject to administrative dissolution or suspension; repeal of administrative control over trade unions, etc. (p. 223).

1992

Colombia. The new Constitution of July 1991 and various subsequent legal provisions repealed the provisions which had permitted the dissolution and removal from the trade union register of trade unions by administrative authority; administrative interference in trade union independence and trade union bookkeeping; restrictive regulations with respect to trade union meetings, and the prohibition of trade unions from taking part in political matters (pp. 206-207).

Nicaragua. Properties expropriated from leaders of the employers' organization COSEP were returned, on the grounds that the expropriation had amounted to discrimination or persecution (p. 224).

Poland. The Acts of 23 May 1991 concerning trade unions, employers' organizations and the settlement of collective labour disputes set out in law the possibility of trade union pluralism and the right to strike (pp. 235-236).

1993

Belarus. The Act on trade unions of April 1992 recognized the right of workers to establish independent organizations of their own choosing and the right to strike (p. 174).

Congo. The new Constitution of March 1992 abolished the trade union monopoly and Decree No. 911672, of June 1991, repealed the compulsory check-off of dues in favour of the Congolese Trade Union Confederation alone (p. 184).

Ethiopia. Labour Proclamation No. 42, of January 1993, removed the trade union monopoly (p. 194).

1994

Costa Rica. Legislative Decree No. 7348, of June 1993, repealed those sections of the Penal Code punishing public officials and employees who went on strike with imprisonment and fines. Act No. 7360, of November 1993, prohibited solidarist associations from undertaking trade union activities, especially collective bargaining. The same Act introduced various penalties for anti-union discrimination (pp. 203-204).

Mauritania. Act No. 93-038 of 1993 guaranteed the possibility of trade union pluralism and, in January 1994, the constitution of a new confederation was declared legal (pp. 215-216).

1995

Germany. Following the decision of the Federal Constitutional Court of 2 March 1993, no public servant was to be requisitioned to replace workers taking part in a strike (p. 168).

1996

Austria. A ruling by the Supreme Court on 11 August 1993 declared the dismissal of a worker in an enterprise with fewer than five employees to be null and void, on the grounds of contravention of the moral law (p. 188).

Ethiopia. The Constitution of December 1994 granted civil servants the right to organize (p. 197).

Gabon. The Labour Code of November 1994 guaranteed workers protection against acts of anti-union discrimination (p. 199). Together with Act No. 18/92, of May 1993, it repealed the obligation to join an organization designated by name in the law, thus establishing the possibility of trade union pluralism; restrictions on the right to strike were also lifted (p. 148).

1997

Australia. Provisions introduced in 1992 amending the criminal law abolished restrictions on the right to strike (pp. 146-148).

Namibia. The Labour Act of April 1992 guaranteed various trade union rights all covered in Convention No. 87 (pp. 182).

1998

Chad. The new Labour Code of December 1996 removed the prohibition on strikes, recognized public servants' right to organize, lifted the ban on all political activity by trade unions, and reduced the length of residence in the country required for foreign workers wishing to stand for trade union office (p. 171).

Seychelles. Act No. 17 of 1994 guaranteed the possibility of trade union pluralism (p. 193).

These cases of progress indicate a clear advance in labour law affecting trade unions, but they are not evidence either that the situation in law and practice in many of the countries mentioned complies with the principles and standards concerning freedom of association, or that legal measures taken subsequently will not amount to a retrograde step. However, the regular supervision by the Committee of Experts does imply a constant monitoring of these problems and it does impose a kind of alertness and self-monitoring obligation on the national authorities as regards the adoption of any such measures.

The Committee on Freedom of Association

The Committee on Freedom of Association was set up in 1951 by the ILO Governing Body; unlike the Committee of Experts, it is tripartite in structure, and is composed of members of the Governing Body. It has had an independent chairperson since 1978. The Committee meets three times a year to examine complaints of infringement of freedom of association received from workers' organizations and, to a much lesser extent, from employers' organizations. The procedure followed gives the governments of the countries involved the opportunity to reply to the complaints and to present any evidence to refute them. It is important to note that the Committee examines both complaints against countries which have ratified the Conventions on freedom of association and complaints against countries which have not yet done so. In practice, the vast majority of governments cooperate with the work of the Committee even though they sometimes delay in replying since they are thus able to defend themselves against what they may consider to be unfounded accusations or to explain why they have adopted the measures objected to. In fact, the number of cases (approaching 2,000) examined by the Committee since it was established are a measure of its broad acceptance and also of its popularity.²⁰

The procedure is basically carried out in written communications, but the Committee may also avail itself of preliminary contacts with the relevant authorities in especially serious cases, of direct contact missions to gather information on the spot and of hearings with the parties involved. Of all the supervisory mechanisms, direct contact missions (in their strict sense) are by far the ones most widely used. Since these began in 1962, 67 such missions have been undertaken to 41 countries.²¹

There are marked regional differences in the number of cases submitted to the Committee. The following situation emerges from the 616 cases considered between March 1985 and June 1996: 325 cases concern countries in the Americas (53 per cent); 104 countries in Europe (17 per cent); 91 countries in Africa (15 per cent); 82 countries in Asia (13 per cent); and 14 countries in Oceania (2 per cent).²² Traditionally, the countries of Latin America are the ones with the greatest number of cases lodged with the Committee, although this trend has changed recently, perhaps partly as a result of changing political circumstances. In any case, the percentages shown are no indication of the greater or lesser degree of respect for freedom of association in the countries concerned; indeed, it has even been argued that an abundance of complaints is itself evidence of trade unions' lesser fear of reprisals following their recourse to an international authority.

The Committee examines questions relating to the law affecting trade unions, collective bargaining, and strikes, but most of the problems arise from actual measures taken by governments or employers which affect trade unions, their officers and members.

Data gathered from 324 selected cases examined by the Committee between March 1985 and June 1997 show that 29 per cent of the allegations concerned anti-union discrimination; 24 per cent human rights; 11 per cent collective bargaining; 8 per cent the right to strike; 8 per cent the right to establish organizations; 7 per cent trade union statutes, elections and activities; 6 per cent acts of interference by employers in trade union organizations; 5 per cent legislation and bills; and 2 per cent the suspension or dissolution of organizations.²³

The number of cases of violation of human rights and civil liberties affecting trade union rights largely depend (though with some notable exceptions) on whether the country concerned has an authoritarian regime. In fact, when institutions function normally again or there is a return to democracy, the complaints cease or at least become less serious. The numerous cases concerning the detention or sentencing of trade unionists are very much influenced by the principle the Committee applies, whereby the burden of proof is on the governments to show sufficiently precisely that the measures were in no way occasioned by trade union activities, but solely by activities outside the trade union sphere that were either prejudicial to public order or political in nature. Only if the government provides precise information about the detentions, the legal proceedings initiated and the results thereof, can the Committee decide to stop examining the case. The Committee is famous for its persistent requests for information about trade unionists who have been murdered or detained, or have "disappeared".

The Resolution concerning Trade Union Rights and their Relation to Civil Liberties adopted by the International Labour Conference in 1970 is especially relevant in the area of human rights. Special emphasis is placed there on the civil liberties, as defined in the Universal Declaration of Human Rights, which are essential for the normal exercise of trade union rights.²⁴

Directly or indirectly, over the short or long term, the intervention of the Committee has led to the release of trade unionists in very many cases. It is well known that a show of interest by the ILO and other organizations in detained trade unionists has a protective and supportive impact. A study carried out in 1982 maintained that over the four preceding years more than 500 trade unions had been released following the direct or indirect intervention of the ILO.²⁵ Since then, the Committee on Freedom of Association has continued to record the release of individual trade unionists in its reports. Recent examples occurred in Côte d'Ivoire (Cases Nos. 1594 and 1846), Republic of Korea (Cases Nos. 1629 and 1865), Swaziland (Case No. 1884), India (Case No. 1468) and China (Case No. 1652).²⁶

Over the last 25 years there have been more than 120 cases of progress in meeting the recommendations of the Committee, covering about 60 countries across the different regions. These are both cases involving complaints of factual infringement of freedom of association, which are handled exclusively by the Committee, and cases involving the law governing trade unions and collective labour relations, which have been followed up either by the Committee itself or by the Committee of Experts. To this end, in its reports the Committee on Freedom of Association draws the attention of the Committee of Experts to the legal aspects of the cases considered at all its meetings.

As regards complaints on questions of fact, the 1982 study mentioned above cites a series of cases in which positive results were achieved in connection with reinstatement of workers dismissed because of anti-union discrimination measures and the lifting of official intervention in trade unions. As shown above, the Committee very frequently deals with cases involving anti-union discrimination. Recent examples concern countries such as Malaysia (Case No. 1552), Congo (Case No. 1870), Guatemala (Case No. 1823), Côte d'Ivoire (Case No. 1594), Hungary (Case No. 1742), Romania (Case No. 1788), the Dominican Republic (Case No. 1732), Turkey (Case No. 1755), and Panama (Case No. 1569).

Other recent cases of progress concern the registration of trade union organizations in order to function according to law, which had previously been refused by the competent authorities in Argentina (Case No. 1777), Bangladesh (Case No. 1862) and Pakistan (Case No. 17216).

On various occasions governments have modified or rendered ineffective their legislation or bills on trade union matters and labour relations, in order to meet the recommendations of the Committee: Argentina (Case No. 1899), Peru (Case No. 1796), Sweden (Case No. 1760), Fiji (Case No. 1622) and Zambia (Case No. 1575). In Paraguay, the Supreme Court declared unconstitutional a decree restricting the free elections of trade union officers, in direct application of Convention No. 87 which, by virtue of that country's Constitution, has supralegal effect.

Other recent examples concern a variety of questions, such as the progress noted by the Committee in the redistribution of trade union property in Poland (Case No. 1785) and trade union elections in the Philippines, where contested elections were annulled and new ones held (Case No. 1826).

During the 1980s and 1990s, systematic monitoring by the Committee of its recommendations on the cases examined enabled it to show a substantial increase in cases of progress. At present, three or four such cases of progress are recorded at each meeting of the Committee.

Fact-finding and inquiry commissions

A wider-ranging examination of complaints of infringement of trade union rights can be made on the basis of the work of two other organs, namely, the Commissions of Inquiry set up under article 26 of the ILO Constitution, and the Fact-finding and Conciliation Commission on Freedom of Association. In both cases, these Commissions are composed of independent persons appointed to consider each case by the Governing Body, and their procedures, which are determined by the Commissions themselves, generally include the examination of documentary proof, hearings of the parties involved and of witnesses, and on-the-spot visits to meet government authorities, representatives of employers' and workers' organizations, detained trade unionists, representatives of the Church, journalists, professors, indeed anyone they consider can furnish useful information.²⁷

Commissions of Inquiry

Commissions of Inquiry are set up by the Governing Body in order to consider complaints of violation of ratified Conventions submitted by delegates to the Conference, or by one State against another when both have ratified the Conventions in question, or at the initiative of the Governing Body itself. When problems are discussed by an international commission with the national authorities in the country itself, it makes them difficult to ignore. Results are not usually immediately forthcoming because of resistance from vested interests, but they do eventually occur.

In connection with Conventions Nos. 87 and 98, Commissions of Inquiry were set up to examine the cases of Greece (1968-70), Poland (1983-84), the Dominican Republic and Haiti (1981-83), and Nicaragua (1989-90). All these cases had already been examined to a certain extent by the Committee on Freedom of Association or by the Committee of Experts before being submitted to the Commission of Inquiry involved.

Recommendations made by a Commission of Inquiry to the States concerned are monitored according to the normal supervisory procedure described earlier. Thus, the reports of the Committee of Experts indicate how cases evolve and any progress made in the application of the recommendations of a given Commission of Inquiry. In the case of Greece, the Committee of Experts recorded progress in its reports of 1977 and 1983; in that of the Dominican Republic and Haiti in its reports of 1985, 1986 and 1995; and in that of Nicaragua, in its 1992 report.²⁸

The situation in Poland attracted particular attention within the ILO as a whole. Upon receipt of a complaint in July 1978 and in view of the background to the case, the Committee on Freedom of Association suggested that a direct contacts mission be undertaken. This was done in May 1980 by a representative of the Director-General (Nicolas Valticos, then Assistant Director-General). In August, the Agreements of Gdansk were signed, in which the Government recognized the principles of Conventions Nos. 87 and 98. As difficulties were encountered with the registration of the new trade union Solidarity, despite changes to the Polish trade union law, Mr. Valticos made another visit to Poland in October 1980, and in November that organization was duly registered and officially recognized. In May the following year, the Director-General himself, Francis Blanchard, accompanied by Mr. Valticos, carried out a further mission to Poland, during which a bill being drafted on trade union matters was examined. At that time the Rural Solidarity trade union also gained recognition. In June 1981, Lech Walesa, President of the National Committee of Solidarity, attended the International Labour Conference in the capacity of titular delegate of the Polish workers.

By December, the political climate had changed in Poland, with the proclamation of martial law and the suspension of trade union activities. After another complaint had been lodged with the Committee on Freedom of Association, Mr. Valticos travelled to Poland once again, in May 1982, for meetings with the authorities and various trade union organizations, and also with Mr. Walesa, who at that time was interned. In June 1982, during the Conference, various Worker delegates submitted a complaint against Poland in accordance with article 26 of the Constitution. The matter continued to be handled by both the Committee on Freedom of Association and the Committee of Experts. The Polish Deputy Minister of Labour himself was heard by the Committee on Freedom of Association and, subsequently, the Government asked for the representative of the Director-General to visit Poland again. As it proved impossible to obtain guarantees that the representative would be able to meet freely with all the trade union leaders, the mission did not take place. Finally, in March 1983, the Governing Body decided to refer the whole matter to a Commission of Inquiry. The Government of Poland, for its part, announced that it was suspending its cooperation with the ILO.

The Commission of Inquiry carried out its work between July 1983 and May 1984, when it presented its final report, with conclusions and recommendations.²⁹ The Commission had requested and received documentary evidence from the complainants, from trade union organizations and from various governments, and had held hearings in Geneva to take evidence from witnesses. The Government of Poland had not taken part in this process, but had received copies of the documents and written reports of witnesses' evidence. It had not allowed the Commission to continue its inquiries in Poland. It had even officially announced its withdrawal from the Organization, a decision it later revoked.

In 1987, the Director-General went on another mission to Poland for meetings with the Government and with workers' organizations (including the Solidarity trade union) and employers' organizations to discuss the evolving trade union situation and the question of Poland's continuing membership of the ILO.

The Committee of Experts and the Committee on the Application of Standards were also monitoring the situation on their side such that, in 1990, the Committee of Experts was able to note with satisfaction (see cases of progress, above) the various measures taken by the Government of Poland in connection with the questions examined by the Commission of Inquiry regarding the reinstatement of striking workers, the lifting of sentences for strike action and the establishment of trade union pluralism in all sectors, including agriculture.

The Fact-finding and Conciliation Commission on Freedom of Association

This was set up by the Governing Body in January 1950, shortly after the adoption of Conventions Nos. 87 and 98; its terms of reference are to examine complaints of infringement of freedom of association even if the countries concerned have not ratified these instruments. That same year, the Economic and Social Council of the United Nations (ECOSOC) accepted the offer made by the ILO to make the services of this Commission available to ECOSOC; a special procedure was laid down whereby ECOSOC could refer to the ILO complaints made against States which are Members of the United Nations but not Members of the ILO. As explained above, the following year saw the creation of the Committee on Freedom of Association, which gradually became the specialist body regularly examining complaints about freedom of association.³⁰

The Commission itself, however, did not become active until 1964, in a case concerning Japan. That country had ratified Convention No. 98 but not Convention No. 87, and in 1964 the Government agreed to allow the Commission to examine complaints filed in connection with the trade union situation in the public sector. Consent by the government is required in cases involving countries which have not ratified the Conventions on freedom of association; in previous cases, the governments of the countries concerned had refused their consent. The Commission followed the normal procedure outlined above and in January 1965, at the end of its visit to Japan, made a number of preliminary suggestions to enable the Government and trade unions to continue negotiating and to find solutions to the problems encountered. Its main proposal was that the Government ratify Convention No. 87 as soon as possible. The Commission presented its report with its conclusions and recommendations in July 1965,³¹ but Japan had already ratified Convention No. 87 a month before.

The second case concerned Greece, in 1965-66; in this case, the complainants withdrew their complaint before the Commission's visit to the country.³² The following case of Lesotho (1973-75) involved intervention by ECOSOC, as that country had stopped being a Member of the ILO.³³ No hearings were held in Geneva, and the Commission instructed its chairman to obtain the necessary information on the spot. A similar procedure was followed in 1978-81 in the case concerning the United States/Puerto Rico, another country which temporarily withdrew from membership of the Organization, between 1977 and 1980.³⁴

In 1974-75, the full procedure was applied in the case of Chile, which was accused of serious violations of both human rights and trade union rights. The report of the Commission³⁵ contained its detailed findings, conclusions and recommendations, and a request that the Government continue providing information to the ILO about the state of its law and practice in the matters being examined (in accordance with article 19 of the Constitution). The Committee on Freedom of Association was entrusted with monitoring the situation and, in its report of November 1979,³⁶ noted with satisfaction the repeal of the legislation adopted after the coup d'état of 1973, when serious restrictions had been imposed on freedom of association. New laws on trade unions and collective bargaining came into force in June 1979 and, despite certain inadequacies regarding freedom of association, were considered by the Committee to be an important first step towards the application of the Commission's recommendations.

The last case examined by the Commission concerned the Republic of South Africa, which had ceased to be a member of the ILO in 1966. The complaint submitted in 1988 by the Congress of South African Trade Unions (COSATU) was based on the discrimination inherent to apartheid, then official policy in South Africa. Two years later, political parties were legalized and important aspects of apartheid were repealed. So, in February 1991, at the request of ECOSOC, the Government agreed to the matter being referred to the Commission. In the course of the procedure, agreement was reached to extend the Commission's mandate to include the examination of the labour situation in South Africa, with particular emphasis on freedom of association. The Commission undertook a visit to South Africa where it also held hearings with the parties involved and with witnesses. Its report was presented in May 1992; it contained a detailed examination of the trade union situation and of collective labour relations as well as the situation of workers and territories excluded from the Labour Relations Act.³⁷ In July that year, ECOSOC noted with satisfaction the findings, conclusions and recommendations of the Commission. It also requested the Government of the Republic of South Africa to provide information on the measures to give effect to the conclusions and recommendations of the Commission. The ILO, for its part, was to provide the technical cooperation needed for the Government to undertake reform of its labour legislation.

Meanwhile, the political situation continued to evolve and, in April 1994, the first multiracial elections were held and Nelson Mandela was elected President. The Republic of South Africa resumed its membership of the ILO in May of that year. The Office undertook to develop a technical assistance programme and seminars on questions relating to freedom of association and industrial relations. In 1995, the Government adopted a new Labour Relations Act and, in February 1996, ratified Conventions Nos. 87 and 98, in accordance with the Commission's recommendations.

Conclusions

Although freedom of association and the right to organize appeared in the Constitution of the ILO in 1919, it was not until the end of the 1940s, shortly after the Second World War, that a general consensus emerged en-abling the adoption of the two relevant basic instruments, Convention No. 87 and Convention No. 98. They are both among the ILO's Conventions on basic human rights and today, after 50 years, there is still broad consensus within the Organization on how topical and relevant they remain and on how important it is to secure their application.

The principles of freedom of association and the right to organize appear in all the international instruments on questions concerning human, political and social rights. These principles are always evoked in discussions on the social dimensions of the liberalization of world trade, and freedom of association and the right to collective bargaining are included in the ILO Declaration on Fundamental Principles and Rights at Work, adopted by the International Labour Conference at its 86th Session in 1998.³⁸

These two Conventions contain the most comprehensive set of standards on freedom of association to be found at international level, and the ILO has a highly developed system of supervisory machinery and procedures with which to promote them and to oversee their application.

This article has reviewed the activities of the different supervisory bodies, the main obstacles they encounter and the remarkable progress they achieve. The effectiveness of ILO action on freedom of association has been shown to depend on a whole range of factors, from how serious the actual problems are, to the balance of power, to a government's ideological or political line, and to the prevailing economic situation.

Any evaluation of action by the bodies charged with examining complaints or protests about infringements of freedom of association must also take account of the dissuasive or preventive effect often brought about when news breaks that complainants have taken their case to the ILO. In other words, when measures violating freedom of association are halted or reduced before or during examination of the case by the competent bodies, so as to prevent the country concerned or its government from being exposed to publicity or criticism from the international community.

It is important to understand that international public pressure is the ILO's most powerful weapon, for the ILO does not have power to sanction and its Constitution does not allow it to exclude a State in punishment for the violation of international labour standards or principles. Nevertheless, the persistence and perseverance of the supervisory bodies are an extremely powerful weapon in the ILO's armoury.

The complexities presented by the political, ideological, cultural, historical, economic and social contexts in which problems of freedom of association arise are often difficult to overcome. Though problems are finally solved over time, new ones then appear proving that in this area the work of the supervisory bodies is never done, that they must work ceaselessly and over the long term. Indeed, today, they must be even more vigilant, for in most countries of both North and South the trade union movement is losing ground and is being seriously questioned in certain sectors and countries, including those where it had seemed most firmly established.

Copyright © International Labour Organization 1998

 
* Former Chief of the Freedom of Association Branch and of the Application of Standards Branch, ILO, Geneva; labour consultant.

¹ Both instruments are published in ILO: International Labour Conventions and Recommendations, 1919-1951, Geneva, 1985; the full text of Convention No. 87 is reproduced in Appendix I of this issue of the Review.

²  See, for example, Otto Kahn Freund: "On uses and misuses of comparative law", in The Modern Law Review (London), Vol. 37, 1974, No. 1 (Jan.).

 
³ ILO: Minutes of the 121st Session of the Governing Body, 1953, Geneva, p. 39.

⁴ ILO: Freedom of association: Comparative analysis, Studies and Reports, Series A (Industrial Relations), No. 28, Geneva, 1927.

⁵ ILO: Studies and Reports, Series A (Industrial Relations), Geneva, published between 1927 and 1930. The trade union movement in Soviet Russia (No. 26); Freedom of association: Great Britain, Irish Free State, France, Belgium, Luxembourg, Netherlands, Switzerland (No. 29); Freedom of association: Germany, former Dual Monarchy of Austria-Hungary, Austria, Hungary, Czechoslovak Republic, Poland, Baltic States; Denmark, Norway, Sweden, Finland (No. 30); Freedom of association: Italy, Spain, Portugal, Greece, Serb-Croat-Slovene Kingdom, Bulgaria, Rumania (No. 31); Freedom of association: United States of America, Canada, Latin America, South Africa, Australia and New Zealand, India, China, Japan (No. 32).

⁶ ILO: "Report of the Committee on Freedom of Employers' and Workers' Organisations", in Official Bulletin (Geneva), Vol. XXXIX, 1956, No. 9, pp. 475-585. The report's authors were Sir Arnold D. McNair (United Kingdom), former President of the International Court of Justice (and Chairman of the Committee), Pedro de Alba, former President of the Mexican Senate, and A.R. Cornelius, Judge of the Federal Court of Pakistan. The monographs were published in three mimeographed supplements.

⁷ ILO: The trade union situation in the United States, Geneva, 1960; The trade union situation in the U.S.S.R., Geneva, 1960; The trade union situation in the United Kingdom, Geneva, 1961; The trade union situation in Sweden, Geneva, 1961; The trade union situation in the Federation of Malaya, Geneva, 1962; and The trade union situation in Burma, Geneva, 1962.

⁸ ILO: The trade union situation and industrial relations in Hungary, Geneva, 1984; The trade union situation and industrial relations in Norway, Geneva, 1984; The trade union situation and industrial relations in Spain, Geneva, 1985; The trade union situation and industrial relations in Yugoslavia, Geneva, 1985; The trade union situation and industrial relations in Austria, Geneva, 1986.

⁹ ILO: Freedom of association and collective bargaining, General Survey of the reports on the Freedom of Association and the Right to Organize Convention (No. 87), 1948, and the Right to Organize and Collective Bargaining Convention (No. 98), 1949, Report III (Part 4B), International Labour Conference, 81st Session, 1994, Geneva.

¹⁰ ILO: Trade union conditions in Hungary, Geneva, 1921.

¹¹ ILO: Labour problems in Greece, Geneva, 1949; Freedom of association and conditions of work in Venezuela, Geneva, 1950; Labour conditions in the oil industry in Iran, Geneva, 1950; and Labour problems in Turkey, Geneva, 1950.

¹² ILO: The labour and trade union situation in Spain, Geneva, 1969, p. 297.

¹³ On the background to this study, the conditions in which it was carried out, the subsequent situation and the declarations of the Spanish authorities, see Nicolas Valticos: "L'Organisation Internationale du Travail et l'évolution de la législation syndicale en Espagne", in Estudios de Derecho Internacional. Homenaje al profesor Miaja de la Muela, Madrid, Tecnos, 1979, Vol. II, pp. 793-812. For a more recent study, see the detailed examination of the case of Spain in Esther Martínez Quintero: La denuncia del sindicato vertical. Las relaciones entre España y la Organización del Trabajo (1969-1975), Vol. II, second part, Madrid, Consejo Económico y Social de España, 1997.

¹⁴ For more information on the procedures of the Committee of Experts and of the Conference Committee on the Application of Standards, see ILO: Handbook of procedures relating to international labour Conventions and Recommendations, Rev. 2/1998, International Labour Standards Department, Geneva, 1998, mimeo.

¹⁵ ILO: Report of the Committee of Experts on the Application of Conventions and Recommendations: General report and observations concerning particular countries, Report III (Part 4A), International Labour Conference, 81st Session, 1994, p. 12.

¹⁶ The report of the Committee of Experts (numbered Report III) is presented to the Conference under the third item on the agenda: Information and reports on the application of Conventions and Recommendations, under the general title: Report of the Committee of Experts on the application of Conventions and Recommendations (Articles 19, 22 and 35 of the Constitution). There are two main volumes: the General report and observations concerning particular countries (called Part 4A till 1997 and Part 1A thereafter), and the General Survey of the Reports on the ... Convention ... (called Part 4B till 1997 and Part 1B thereafter). The second main volume is published separately and specifies in its title the actual Convention(s) covered each year (see, for example, note 9). Reference is made in this note to the first volume.

¹⁷ And of the so-called "direct requests" addressed to governments, which usually precede the observations and are not reproduced in the reports.

¹⁸ ILO: Report of the Committee of Experts on the Application of Conventions and Recommendations: General report and observations concerning particular countries, Geneva, for the years 1990-98.

¹⁹ For more details, see the individual issues of the Committee of Experts' report.

²⁰ On the procedure followed by the Committee, see ILO: ILO principles, standards and procedures concerning freedom of association, Geneva, 1989; and ILO: ILO law on freedom of association: Standards and procedures, Geneva, 1995. The wide-ranging "jurisprudence" of the Committee is described in ILO: Freedom of association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fourth (revised) edition, Geneva, 1996.

²¹ Direct contact missions are carried out by officials of the Office or by independent persons. This year, for the first time, a tripartite mission was carried out, in a case involving the Republic of Korea. Contacts occur at the initiative of the Committee or at the request of governments, but always with the consent of the latter. In some countries, such missions were carried out on a number of occasions: Argentina (6), Colombia (5), Poland and Uruguay (4), Bolivia, Costa Rica, Tunisia and Turkey (3).

²² Data gathered by the Freedom of Association Branch of the ILO.

²³ Data gathered by the Freedom of Association Branch of the ILO.

²⁴ ILO: Record of proceedings, International Labour Conference, 54th Session, Geneva, 1970, pp. 733-736. The Resolution listed the following civil liberties:

1. the right to freedom and security of person and freedom from arbitrary arrest and detention;

2. freedom of opinion and expression and in particular freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers;

3. freedom of assembly;

4. the right to a fair trial by an independent and impartial tribunal;

5. the right to protection of the property of trade union organizations.

²⁵ See Anna J. Pouyat: "The ILO's freedom of association standards and machinery: A summing up", in International Labour Review (Geneva), Vol. 121, 1982, No. 3 (May-June), pp. 287-302.

²⁶ For further information on these cases and on those mentioned below, see "Reports of the Committee on Freedom of Association" published in ILO: Official Bulletin (Geneva), Series B.

²⁷ See Geraldo von Potobsky: "On-the-spot visits: An important cog in the ILO's supervisory machinery", in International Labour Review (Geneva), Vol. 120, 1981, No. 5 (Sep.-Oct.), pp. 581-596.

²⁸ See ILO: Report of the Committee of Experts on the Application of Conventions and Recommendations: General report and observations concerning particular countries, Geneva, for the years indicated.

²⁹ ILO: Official Bulletin (Geneva), Special Supplement, Vol. LXVII, 1984, Series B.

³⁰ On the origins of both bodies, see in particular: C. Wilfred Jenks: The international protection of trade union freedom, London, Stevens & Sons Ltd., 1957.

³¹ ILO: Official Bulletin (Geneva), Special Supplement, Vol. XLIX, No. 1, Jan. 1966.

³² ILO: Official Bulletin (Geneva), Special Supplement, Vol. XLIX, No. 3, July 1966.

³³ ILO: Official Bulletin (Geneva), Vol. LVIII, 1975, Series A, No. 3, p. 222, and Vol. LIX, 1976, Series A, No. 3, p. 139.

³⁴ The case was referred to ECOSOC in 1978 and from there to the Fact-finding and Conciliation Commission on Freedom of Association (see the 177th Report of the Committee on Freedom of Association, in ILO: Official Bulletin (Geneva), Vol. LXI, 1978, Series B, No. 2, pp. 5-6, paras. 20-25). The report of the Commission was presented to the Governing Body of the ILO at its 218th Session (17-20 Nov. 1981), doc. GB.218/7/2 (mimeo).

³⁵ ILO: The trade union situation in Chile: Report of the Fact-Finding and Conciliation Commission on Freedom of Association, Geneva, 1975.

³⁶197th Report of the Committee on Freedom of Association, Case No. 823, in ILO: Official Bulletin (Geneva), Vol. LXII, 1979, Series B, No. 3, pp. 85-114.

³⁷ ILO: Official Bulletin (Geneva), Special Supplement, Vol. LXXV, 1992, Series B.

³⁸ The text of the Declaration is appended to this issue of the Review.