Special procedures - Article 19

The complaint alleging non-observance is filed

A complaint can be filed about ineffective observance of any ratified Convention.

Article 26 of the ILO Constitution permits a complaint to be filed by a member State with the Office where it is alleged that another member State is not effectively observing a Convention which both have ratified. A complaint can also be made by a delegate to the International Labour Conference.

Articles 26 to 29 and 31 to 34 of the ILO Constitution govern the procedure, giving the Governing Body the authority to consider the complaint and the choice of communicating with the member State which is the subject of the complaint.

At any time, either on receipt of a complaint or of its own motion, the Governing Body may decide to establish a Commission of Inquiry to consider the complaint and to report thereon. No further Standing Orders restrict the discretion of the Governing Body with respect to the time, form or substance in which it wishes to consider a complaint.

In practice, establishing a COI is the highest-level investigative procedure, considered as a remedial measure of last resort. See the box below on the nature of the procedure and the manner in which it is practically used.

Nature of the procedure

Over a period spanning 85 years (1934 – 2019) since the first complaint was submitted, the Governing Body has had before it 34 article 26 complaints. All but three complaints, including all complaints submitted in the last 40 years, alleged non-observance of at least one fundamental Convention.
Of these, 33 complaint procedures have been closed either as result of a Governing Body decision or the adoption of recommendations by a Commission of Inquiry. In one case, the complaint procedure is still ongoing.
A total of 13 Commissions of Inquiry have been established and delivered reports over time. This represents less than half of the article 26 complaints filed. In all cases the regular supervisory bodies have followed up on the recommendations of the Commission of Inquiry. In respect of the complaints which have been closed without investigation by a COI, the Governing Body has requested the regular supervisory bodies to follow up on the issues raised in the complaint.
Recourse to the complaint procedure has evolved over time. The first complaints featured individual member States seeking to resolve bilateral disputes over the observance of an ILO Convention that was not always the subject of extensive prior examination by the regular supervisory bodies. In recent decades, the procedure is more readily used by Employers’ and Workers’ delegates to raise cases of non-observance already examined by other supervisory bodies, but serious enough to warrant the close multilateral attention and legally binding determination afforded by the procedure.

In the absence of Standing Orders, no other receivability criteria than those apparent in article 26 of the ILO Constitution need to be met for the Governing Body to initiate its consideration of the complaint, i.e.:

  • the complaint must be filed with the Office by a member State which has ratified the Convention that is the subject of the complaint or by a delegate to the International Labour Conference;
  • the member State against which the complaint is filed must have ratified the Convention that is the subject of the complaint;
  • the complaint must provide an indication that the complainant “is not satisfied” that the member State against which the complaint is filed is “securing the effective observance” of a Convention it has ratified.

The Officers of the Governing Body determine the steps in the procedure for complaints on an ad hoc basis. In some cases, and particularly in recent times, this has afforded flexibility in charting an effective approach in pursuing a consensual and comprehensive response, combining normative guidance with technical support, to an alleged violation while securing the observance of ratified ILS without the establishment of a COI.

While decisions on the possible referral to a COI were taken rather rapidly in earlier decades, it appears that, in recent years, the Governing Body has taken a more active role in considering, as a first step, whether interim measures, such as high-level missions, direct contacts, conclusion of tripartite agreements, technical cooperation agreements or other MoUs would enable the resolution of the issues raised in the complaint before making a decision on the appointment of a COI. For example, progress reached through such interim measures in the cases of Bahrain, Fiji and Qatar resulted in the closure of the respective complaints without the establishment of a COI.

The interim measures are not as such sanctioned by the ILO Constitution, but derive their legitimacy from the discretion afforded to the Governing Body by its article 26 to either establish a COI or close the complaint procedure without establishing a COI. As such, interim measures should rest on consensus as the established decision-making practice in the Governing Body.

The same flexibility has also generated a level of uncertainty with respect to the procedure, in particular as regards boundaries to the Governing Body’s discretion to defer a decision to establish a COI.

In regard of the first complaints, the Governing Body decided to appoint a COI without discussion, suggesting such decision was perceived to result automatically from the receivability of a complaint submitted. Gradually, the decision to establish a COI has been based on information provided by the complainants as well as ILO constituents. This process of information exchange has sometimes deferred the decision to appoint a COI for several years, or indeed led to a decision to close the complaint procedure without the appointment of a COI.

To know more about the article 26 procedure, a flowchart presentation is also available.