Lars Thomann. Steps to Compliance with International Labour Standards

Transcription

1 Lars Thomann Steps to Compliance with International Labour Standards

2 VS RESEARCH

3 Lars Thomann Steps to Compliance with International Labour Standards The International Labour Organization (ILO) and the Abolition of Forced Labour VS RESEARCH

4 Bibliographic information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available in the Internet at Bremen International Graduate School of Social Sciences, st Edition 2011 All rights reserved VS Verlag für Sozialwissenschaften Springer Fachmedien Wiesbaden GmbH 2011 Editorial Office: Dorothee Koch Anita Wilke VS Verlag für Sozialwissenschaften is a brand of Springer Fachmedien. Springer Fachmedien is part of Springer Science+Business Media. No part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the copyright holder. Registered and/or industrial names, trade names, trade descriptions etc. cited in this publication are part of the law for trade-mark protection and may not be used free in any form or by any means even if this is not specifically marked. Cover design: KünkelLopka Medienentwicklung, Heidelberg Printed on acid-free paper Printed in Germany ISBN

5 Acknowledgements Many people have helped me in writing this book. Although I cannot mention all of them, I would like to point out and thank the following. First and foremost I would like to convey my gratitude to my supervisors, Prof. Peter Mayer and Prof. Michael Zürn for their continuous support and assistance throughout the writing process: their comments, suggestions and criticisms have been extremely helpful, and without these I would have been lost. I have greatly enjoyed my time at the Bremen International Graduate School of Social Sciences (BIGSSS). Here I would like to thank Werner Dressel for his encouraging support, as well as Dawid Friedrich, Thomas Richter and Andreas Obermayer for being great fellow graduate students who made studying at the BIGSSS fun. At the ILO in Geneva I would like to especially thank the staff members of the Special Action Program to Combat Forced Labour, and in particular Beate Andrees. Much of the information provided for in this study is based on their help, assistance, and numerous interviews. The same holds true for other ILO departments as well. I would like to thank the staff of the ILO s regional offices in Brasilia, Buenos Aires and Lima, who willingly provided me with access to experts, documents and information. In Lima I would like to thank Sanna Sarto, and Patrizia Audi in Brazil: both have provided me with valuable inside information into the functioning of the national projects against forced labour in Peru and Brazil. At the Mannheim Centre for European Social Research (MZES) I would like to thank the following former colleagues: Böni Miller, Monika Mischke, Michaela Pfeiffer, Christina Altides, Dirk De Bièvre and Reinhart Schneider. I would especially like to thank my parents for their year-long support and their patience. Equally supportive and understanding has been my wife Eloisa, without whose love and understanding I would not have had the strength to finish this work. Finally, I would like to dedicate this book to the smallest and most important person in my life: my daughter Felipa. Thank you for being there. Rome, July 2011 Lars Thomann

6 Table of contents 1 Introduction Compliance Procedural compliance Substantive compliance Rational institutionalism The source of compliance Mechanisms Actors Legitimacy school The source of compliance Mechanisms Actors Management school The source of compliance Mechanisms Actors Legalization school The source of compliance Mechanisms Actors Summary The ILO and international labour standards Mandate and structure of the ILO Norm setting activities Norm supervision and implementation Technical cooperation Summary The ILO and compliance Rational institutionalism Monitoring Regular reporting on ratified Conventions under Article Reporting on unratified Conventions and Recommendations Submission of instruments to the competent authorities Monitoring and reporting under the 1998 Declaration Summary Sanctioning The sanctioning procedure under Article The Conference Committee and the special paragraph Loss of membership rights due to arrears in budgetary contributions Summary Legalization The regular supervisory procedure under Article 22 the CEACR The Article 24 representation procedure The Article 26 complaint procedure The Freedom of Association procedures Summary Management Capacity building and technical cooperation

7 8 Table of contents Reflexivity and flexibility Adoption of flexible standards Adaptation to changing circumstances Discussions in the Conference Committee Direct contacts Summary Legitimacy Input legitimacy Tripartism The inclusion of other non-governmental actors Output legitimacy Summary Steps to compliance with international labour standards The Abolition of forced and compulsory labour Abolishing forced labour in international law The Forced Labour Convention, 1930 (No. 29) The Abolition of Forced Labour Convention, 1957 (No. 105) Other international instruments Contemporary practices of forced labour Forced labour imposed by the state Forced labour imposed by private agents Slavery and abductions Debt bondage and coercive recruitment systems Forced labour, migration and trafficking Summary The ILO and forced labour in Latin America Peru Peru and the ILO Procedural compliance Submission of instruments to the competent authorities Reporting obligations under Article 22 on ratified Conventions Reporting obligations under Article 19 regarding unratified Conventions Reporting obligations under the 1998 Declaration Substantive compliance Comments of the supervisory bodies in general Compliance with forced labour instruments Summary Brazil Brazil and the ILO Procedural compliance Submission to the competent authorities Reporting obligations under Article 22 on ratified Conventions Reporting obligations under Article 19 on unratified Conventions Reporting obligations under the 1998 Declaration Substantive compliance Comments of the ILO supervisory bodies in general Compliance with forced labour instruments Summary Forced labour, the ILO and compliance Conclusions Bibliography

8 List of figures Figure 1 - Compliance, implementation and effectiveness...24 Figure 2 ILO membership (as of 31 May 2011)...51 Figure 3 - Double-discussion procedure for adopting ILS...53 Figure 4 - Adoption of ILO Conventions and Recommendations (by decade)...54 Figure 5 - Ratification of ILO Conventions (as of 31 December 2010)...57 Figure 6 - Reporting on ratified Conventions ( )...69 Figure 7 - Comparative reporting CEACR and ILC ( )...72 Figure 8 - Comparative reporting CEACR and ILC ( )...74 Figure 9 - Submission of instruments to the competent authorities (as of December 2009)76 Figure 10 - Reporting under the 1998 Declaration ( )...79 Figure 11 - Special paragraph: Cases under 'Application of Ratified Conventions' ( )...95 Figure 12 - Regional distribution of special paragraph for failure of application ( )...96 Figure 13 - Special paragraph: automatic cases I ( )...99 Figure 14 - Special paragraph: automatic cases II ( ) Figure 15 - Number of observations, direct requests and ratifications ( ) Figure 16 - Comments of the CEACR as ratio of total ratifications ( ) Figure 17 - Observations received by workers' and employers' organizations ( ) Figure 18 - Failure of ILO members to reply to comments of the CEACR ( ) Figure 19 - Allegations examined by the CFA by type of restriction ( ) Figure 20 - CFA cases by decade ( ) Figure 21 - Failure to participate in the discussions of the Conference Committee ( ) Figure 22 - Discussion of individual cases in the Conference Committee by region ( ) Figure 23 - Number of occasions countries discussed in the Conference Committee ( ) Figure 24 - Ratification of ILO Conventions adopted since 1980 by subject area (as of 2007) Figure 25 - Ratification of fundamental Conventions (as of 30 March 2011) Figure 26 - Ratifications of fundamental Conventions before and after the 1998 Declaration Figure 27 - Ratifications of ILO Conventions by Peru ( ) Figure 28 - Reporting compliance on ratified Conventions for Peru ( ) Figure 29 - Comparative reporting compliance of Peru ( ) Figure 30 - CEACR observations and direct requests for Peru ( ) Figure 31 - CEACR observations and direct requests for Peru as ratio of ratifications ( ) Figure 32 - Cases of progress: notes with interest and satisfaction for Peru Figure 33 - Ratifications of ILO Conventions by Brazil ( ) Figure 34 - Reporting compliance on ratified Conventions for Brazil ( ) Figure 35 - Comparative reporting compliance Brazil ( ) Figure 36 - CEACR observations and direct requests for Brazil ( ) Figure 37 - CEACR observations and direct requests for Brazil as ratio of ratifications ( ) Figure 38 - Cases of progress: notes with interest and satisfaction for Brazil List of tables Table 1 - Two dimensions of compliance...27 Table 2 - Average number of cases of progress as ratio of CEACR observations received ( )117 Table 3 - ILO members discussed ten or more times in the Conference Committee ( ) Table 4- Ratification of fundamental Conventions by region (as of May 2011) Table 5 - Compliance mechanisms in the ILO Table 6 - Victims of forced labour by region (as of March 2005) Table 7 - Victims of trafficking by region (as of March 2005) Table 8 - Operations of the Special Mobile Inspection Unit ( )...319