Edited by Adelle Blackett and Anne Trebilcock
Chapter 22: The ILO’s supervisory bodies’ ‘soft law jurisprudence’
AbstractAt the June 2012 session of the ILO’s International Labour Conference (ILC), the Employers’ Group took the unprecedented step of causing the proceedings of the Committee on the Application of Standards to come to a standstill. They did so in the context of their long-standing opposition to the pronouncements of the Committee of Experts on the Application of Conventions and Recommendations (CEACR) regarding the right to strike. Their actions can also be understood as reflecting an underlying concern about the legal effect of the CEACR’s work, however. In particular, the Employers’ Group is worried that in recent years, the CEACR’s ‘observations [are] being viewed by the outside world as a form of soft law labour standards jurisprudence.’ This chapter considers what is meant by ‘soft law jurisprudence’ by first examining what is meant by ‘jurisprudence’ and by ‘soft law’ in international law, before then turning to the legal effects of the CEACR’s comments. It highlights how the CEACR’s guidance may have increased with the growing attention that domestic legal orders have exhibited toward international law, whether binding or non-binding, and with the increased mention of (vague) international labour standards in initiatives taken outside the ILO. Employers wish to avoid seeing CEACR pronouncements crystallize into hard law on a broad scale, or have a broader influence, yet this is something that is beyond the CEACR’s control. The Employers’ explicit fear of the CEACR’s growing influence have led them to attack not only the interpretation of the right to strike, but the entire ILO supervisory system, and this may ultimately have broader consequence for the influence – and even the existence – of international labour standards.
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