Once the Governing Body has determined the receivability of the complaint, it may decide to communicate the complaint to the government concerned and invite it to make a statement on the subject as it may think fit. Click to see an example of a complaint which was subsequently closed.
The Governing Body may decide to form a COI consisting of independent members, tasked to carry out a full investigation on the complaint and report thereon. According to the established practice, the COI consists of three members appointed by the Governing Body at the proposal of the Director-General. Appointments are made considering their impartiality, integrity and standing. The parties play no role in the appointments. Members serve as individuals in their personal capacity.
The COI will ascertain all the facts of the case and make recommendations on measures to be taken to address the problems raised by the complaint. A COI is the highest-level investigative procedure. It is typically set up when a member State is accused of committing persistent and serious violations and has repeatedly refused to address them. In practice, the Governing Body does not automatically decide to establish a COI. To date, out of 34 complaints submitted, only 13 COI have been set up.
The question of the composition of COI is not regulated in the ILO Constitution. As a matter of practice, however, all COI so far established were composed of three members.
The members of the COI are selected among eminent personalities who serve in an individual and personal capacity. They may be judges or former judges of the International Court of Justice, members of the Permanent Court of Arbitration, former judges of higher-level national courts, professors of international law, labour law or human rights law, former senior UN officials and former senior ILO officials. They are appointed by the Governing Body upon the recommendation of the Director-General. Upon taking up their functions, they are invited by the Director-General to make a solemn declaration to “honourably, faithfully, impartially and conscientiously perform their duties and exercise their powers”. These terms correspond to those of the declaration made by the judges of the ICJ.
Seven COI established so far included at least one member of the Committee of Experts on the Application of Conventions and Recommendations. Click to see an example where all three members of the COI were serving members of the CEACR. On six occasions, COI included a judge or a former judge of the ICJ.
The Governing Body and the COI have traditionally recognized the procedure as one of a judicial nature. The first ever COI appointed by the Governing Body noted in its report: “The Governing Body in appointing the Commission placed special emphasis on the judicial nature of the task entrusted to it, indicated its desire for “an objective evaluation” of the contentions submitted by “an impartial body”, and required the members of the Commission before taking up their functions to make a solemn declaration in terms corresponding to those of the declaration made by judges of the International Court of Justice.” (Click to read the report of the COI appointed to examine the case of Portugal, para. 701). Commissions of Inquiry appointed to investigate subsequent complaints have routinely referred to “the judicial nature of the procedure provided for in article 26 and the following articles of the Constitution” (Click to read, for example, the report of the COI appointed to examine the case of Nicaragua, para. 5). In one of the most recently examined complaints, a COI noted “As earlier Commissions of Inquiry had stressed, the procedure provided for in articles 26 29 and 31 34 of the Constitution was of a judicial nature. Thus, the rules of procedure had to safeguard the right of the parties to a fair procedure as recognized in international law” (Click to read the report of the COI appointed to examine the case of Zimbabwe, para. 30).
If the Governing Body refers the complaint to a COI, a final report will be prepared by this body, in accordance with article 28 of the ILO Constitution.
The Governing Body may also decide to suspend a decision on referral pending developments.
The Governing Body treats each complaint individually, following developments with a view to progressing toward improved observance of the relevant ratified Convention(s). Click to see an example.