Under article 27 of the ILO Constitution, all member States are required to cooperate with a COI, whether directly concerned in the complaint or not. Governments in particular must “place at the disposal of the COI all the information in their possession which bears upon the subject-matter of the complaint”.
As a matter of practice, past COI have invited written submissions and observations from:
- the member State in respect of which the complaint is filed;
- the complainant(s);
- any other interested member State as well as employers’ or workers’ organizations concerned, in particular employers’ and workers’ organizations having consultative status with the ILO;
- members or deputy members of the Governing Body;
- countries neighbouring the member State concerned or having important economic relations with it;
- international organizations within the United Nations system and regional organizations;
- non-governmental organizations operating in the legal, human rights and humanitarian spheres; and
- private companies mentioned in the complaint.
According to the established practice, the COI asks the government of the member State concerned for assurances that no obstacles will prevent the attendance before it of persons whom the COI wishes to hear and that all witnesses would enjoy full protection against any sanction or prejudice on account of their attendance or evidence before the COI.
There are no Standing Orders for the procedure of a COI. In accordance with the established practice, the Governing Body leaves the matter to the COI itself, subject only to the provisions of the ILO Constitution, its own general guidance, and the practice followed by previous Commissions.
Commissions of Inquiry have most frequently adopted the following rules, some of which are mere formal expressions of what is already inherent in the judicial nature of the procedure:
- the COI must perform its task with complete objectivity, impartiality and independence;
- the COI must not be confined to the examination of the information provided by the parties, but takes all appropriate measures to obtain information that is as full and objective as possible on the questions at issue;
- the complainants and the government concerned must designate a representative who shall remain at the disposal of the COI during the entire period of its mandate;
- all information that comes to the notice of the COI is confidential;
- the members of the COI, its secretariat and any person appearing before it are accorded the privileges and immunities pursuant to the 1947 Convention on the Privileges and Immunities of the Specialized Agencies;
- the COI determines who may be present in any of its meetings, the schedule of any on-the-spot missions and whom it shall meet during such missions;
- witnesses are designated by the parties, or invited by the COI, and make a solemn declaration “upon their honour and conscience to speak the truth, the whole truth and nothing but the truth”;
- witnesses are heard in private sittings, may be cross-examined and the information and evidence presented is treated as fully confidential;
- the COI may at any time address questions to witnesses and reserves the right to recall witnesses;
- representatives of the parties may question one another; and
- any questions of admissibility of evidence are determined by the COI itself.
In most cases, the rules for the hearing of witnesses are set out in a separate annex of the report of the COI.
The ILO Constitution requires the COI to prepare a report embodying findings on all questions of fact and containing time-bound recommendations.
A COI is duty-bound to “throw full light on the facts” (Click to read the report of the COI appointed to examine the case of Portugal, para. 15) in relation to the allegations in a complaint, including through:
- collection of written submissions;
- receiving evidence and cross-examining witnesses; and
- a visit to the country concerned – if permitted by the government – and the hearing of parties.
The COI prepares a detailed report of its investigation.