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Understanding the ILO Declaration

The ILO Declaration lists five fundamental rights: freedom of association; the effective recognition of the right to collective bargaining; the elimination of all forms of forced or compulsory labor; the effective abolition of child labor; and the elimination of discrimination in respect of employment and occupation.⁸ It explains that these rights “have been expressed and developed in the form of specific rights and obligations in [eight] Conventions recognized as fundamental both inside and outside the Organization.”⁹ As such, “all [ILO] Members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact of membership in the Organization to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions.”¹⁰ What this obligation means in practice and, specifically, what level of adherence to the fundamental ILO Conventions the ILO Declaration requires, is the subject of much debate and has not yet been resolved.  

In the report of the tripartite ILO Committee on the Declaration of Principles, which developed the ILO Declaration, the ILO Legal Adviser explained that “the Declaration and its follow-up does not and cannot impose on any member State any obligation pursuant to any Convention which the State has not ratified.”¹¹ He added that, as a result, “the Declaration contemplated the implementation, not of specific provisions of Conventions, but rather of the principles of those Conventions.”¹²

Employer representatives similarly summarized their approach to the ILO Declaration in the tripartite committee report, stating that “the Declaration should not impose on member States detailed obligations arising from Conventions they had not freely ratified.”¹³  A wide range of government members also expressed their objections to any declaration that imposed new responsibilities or obligations on states,¹⁴ and government members of the United States, Chile, Sweden, France, and Brazil explicitly reminded the committee that the “Declaration referred to adherence to principles and values and not to specific Conventions.”¹⁵

 It is therefore clear from the committee report that under the ILO Declaration, ILO members do not assume precisely the same obligations they would have if they had ratified the fundamental conventions. Legal scholars subsequently analyzing the ILO Declaration have largely reached the same conclusion.¹⁶ But what obligations does the ILO Declaration impose on members?¹⁷ Specifically, what are “the principles concerning the fundamental rights” set out in the eight fundamental ILO conventions and what does it mean to uphold them? There is much unhelpful rhetoric and little agreement on this issue.  

In the committee report, the ILO Legal Adviser tried to answer this question by stating that “the reference to the fundamental Conventions allows the clear identification of the principles which the Members have committed themselves to ‘respect, to promote and to realize, in good faith’ by their adherence to the [ILO] Constitution and its values.”¹⁸ The employer members of the committee attempted to clarify the concept of  “principles concerning fundamental rights” by explaining that the phrase “acknowledged that the rights were inherent, while the principles addressed the policy environment relating to the goals and objectives pertinent to those rights.”¹⁹ Neither explanation is clear, however, and none of the other 381 paragraphs of the report of the ILO Committee on the Declaration of Principles, in which worker, employer, and country representatives expressed their opinions, sheds any more light on the situation.

Furthermore, the same legal scholars who agree that the ILO Declaration does not constitute de facto ratification of the eight fundamental ILO conventions for all ILO members disagree on what exactly the declaration does require because they cannot agree on the content of “the principles concerning the fundamental rights” in the conventions.  Without a clear understanding of these principles, a clear understanding of the specific obligations imposed by the ILO Declaration is also impossible. 

One scholar has cited evidence of detachment of these principles “from the various international sources which give [them] content,” pointing to “unequivocal statements by one of the Declaration’s principal architects and proponents and a tendency on the part of the ILO in its various reports to play down the linkage between the ‘principles’ and the normative acquis.”²⁰ Concluding just the opposite, another scholar, has written, “There is no danger that the principles and their content be liberated from the “anchor” of the relevant conventions and “painstakingly constructed jurisprudence” in relation to these rights for the simple reason that they are the anchors.²¹

The question remains open: what do the “principles concerning the fundamental rights” listed in the ILO Declaration really mean and to what international instruments, guidance, jurisprudence, and other relevant materials should ILO members turn to understand them? If the answer is not to the eight relevant ILO conventions and the related reports of the ILO Committee on Freedom of Association and the ILO Committee of Experts on the Application of Conventions and Recommendations (ILO Committee of Experts), then the alternative may be the one feared by one scholar, who wrote that if definitions such as these are “left to every national context to be given content, . . . we would have very little reason to think that [they] would restrain the vast majority of governments from doing as they wish.”²²  

The meaning of the “principles concerning the fundamental rights” included in the ILO Declaration likely falls somewhere between the strict meaning of the rights as set out in the fundamental conventions and ILO jurisprudence, on the one hand, and whatever meaning each ILO member might want to attribute, on the other. Where on that vast spectrum the meaning falls, however, is not clear.