REPRESENTATION (article 24) - MAURITANIA - C095, C102, C111, C118, C122 - 1990

1. National Confederation of Workers of Senegal (CNTS)

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Report of the Committee set up to examine the representation presented by the National Confederation of Workers of Senegal under article 24 of the Constitution alleging non-observance by Mauritania of International Labour Conventions Nos. 95, 102, 111, 118 and 122

Report of the Committee set up to examine the representation presented by the National Confederation of Workers of Senegal under article 24 of the Constitution alleging non-observance by Mauritania of International Labour Conventions Nos. 95, 102, 111, 118 and 122

Decision

The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

I. Introduction
1. By letter dated 3 November 1989, the National Confederation of Workers of Senegal (CNTS), made a representation under article 24 of the Constitution of the International Labour Organisation, alleging the failure by Mauritania to apply the Protection of Wages Convention, 1949 (No. 95), the Social Security (Minimum Standards) Convention, 1952 (No. 102), the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the Equality of Treatment (Social Security) Convention, 1962 (No. 118), and the Employment Policy Convention, 1964 (No. 122).
2. The five Conventions in question have been ratified by Mauritania and are in force for that country. (Endnote 1)
3. The relevant provisions of the ILO Constitution as regards representations are as follows:
Article 24
In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
Article 25
If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
4. The procedure for the examination of representations is laid down by the revised Standing Orders adopted by the Governing Body at its 212th Session (March 1980).
5. In conformity with article 1 and article 2, paragraph 1, of the Standing Orders, the Director-General acknowledged receipt of the representation, informed the Government of Mauritania and brought it before the Officers of the Governing Body.
6. At its 245th Session (February-March 1990) on the recommendation of its Officers, the Governing Body decided that the representation was receivable and appointed a committee to examine it composed of Mr. Gisbert Brinkmann (Government member, Federal Republic of Germany, Chairman), Mrs. Lucia Sasso-Mazzufferi (Employers' member, Italy) and Mr. Marc Blondel (Workers' member, France).
7. Under article 4, paragraph 1(a) and (c) of the Standing Orders, the Committee decided: first, to invite the CNTS to furnish any further information it wished to bring to the attention of the Committee by 31 May 1990; secondly, to invite the Government to make its observations as to the representation by 31 July 1990, it being understood that any supplementary information supplied by the CNTS would also be communicated to the Government.
8. By two letters dated 12 April and 31 May 1990, the CNTS requested that certain documentary evidence be placed in the file. Copies of these documents were transmitted to the Government. The Committee decided to extend the deadline for the Government's observations to 31 August 1990.
9. The Government made its observations on the representation in a communication dated 19 May 1990.
10. The Committee met for the first time in March, again in May and finally, for the adoption of its report, in November 1990.
II. Examination of the representation
1. Preliminary questions
11. The Committee noted that the Government had made certain preliminary remarks in its statement.
12. As regards procedure, the Government had considered it most regrettable that the documents pertaining to the representation had been in its possession until four-and-a-half months after it had been presented.
13. The Committee noted from the official documentation in the file, that the representation dated 3 November 1989 was received at the ILO on 10 November. By letter despatched 14 November, the Office informed the Minister of the Public Service, Labour, Youth and Sports of the representation, transmitting a copy of it as well as the Governing Body's Standing Orders concerning the procedure to be followed. Communications were subsequently addressed to the Minister by the Office regularly and at appropriate times, in order to keep the Government informed of the procedure as it was carried out.
14. The Committee notes consequently that, while it was regrettable that local problems with postal communications had probably arisen, all the communications addressed to the Government concerning the representation were made by the Office through official channels and in conformity with the Standing Orders dealing with the examination of representations.
15. The Government also stated that it was surprised at the Governing Body's decision to declare the representation receivable. The Government considered that the representation was vague and inexact; that the CNTS had not referred to acts committed against Mauritanians in Senegal; that it was a party to the conflict between the two Governments; and that it was the mouthpiece of the Senegal Government, to which the CNTS ought to address itself as to the violations of the rights of Mauritanians and Senegal nationals of Moorish origin. The Government of the Islamic Republic of Mauritania reaffirmed its devotion to the ideals and principles of the ILO.
16. The Committee observes that the decision as to the receivability of a representation lies with the Governing Body, which applies the conditions laid down in article 2, paragraph 2, of the Standing Orders concerning representations, on the understanding that in accordance with paragraph 4 of that article the Governing Body, when it pronounces on the receivability of a representation, does not consider its substance. Under article 6 of the Standing Orders, the substantive examination of the representation is the task of the Committee appointed by the Governing Body for this purpose.
17. As for the context of the representation, the Committee notes that the questions raised concern a series of events since April 1989 between, and opposing, Mauritania and Senegal. At the origin of these events is a quarrel on 9 April 1989 between some Senegalese farmers and Mauritanian herdsmen, which in particular had caused the death of two Senegalese. This incident led to a series of reactions on both sides: looting of shops owned by Mauritanians in Senegal, violence and retaliation in both countries causing hundreds of dead and wounded on both sides, and mass movements of population in both directions, in April-May 1989.
18. These events are recounted in the press and are the subject of official documents from both Governments concerned. (Endnote 2) The Committee has taken due note of the views expressed by the Government of the Islamic Republic of Mauritania in its statement concerning the representation, both in its preliminary remarks and in reply to the allegations made by the CNTS. These views concern the origin of the dispute, violence against and persecution of Mauritanians in Senegal, and the position and motivation of the CNTS and the Government of Senegal respectively in this matter. The Committee must stress that it has neither the intention nor the right to take sides in these grave events. The Committee's terms of reference require it essentially to examine the basis of the allegations and the degree to which the situation revealed by available information affects the application by Mauritania of the Conventions in question.
2. Questions of the application of the Conventions at issue
19. The Committee will deal with the questions raised by the representation separately under Conventions Nos. 111 (discrimination), 122 (employment), 95 (protection of wages), and 102 and 118 (social security).
A. Issues related to the Discrimination (Employment and Occupation) Convention, 1958 (No. 111)
1. Allegations made by the CNTS
20. In its letter to the Director-General, the CNTS alleges that from April 1989 the Government of the Islamic Republic of Mauritania deported andexiled its own Black African citizens, including tens of thousands of workers and several trade union officials. All these workers were dismissed on the spurious pretext that they had abandoned their jobs, contrary to the regulations in force. The main sectors concerned are: health, posts and telecommunications, banks and services, energy, hydrocarbons, ports, seafarers, financial services, general administration, teaching, agriculture, fishing and public works. The CNTS stresses that the legislation governing access to employment in both the private and the public sectors in Mauritania requires documentation including, in particular, a certificate of nationality, and it is therefore evident that the workers in question were Mauritanian nationals. The CNTS considers that the measures taken against them were motivated by their race and national extraction, which is, amongst other things, contrary to Convention No. 111. It requests appropriate reparation for the victims of these measures.
2. Documentation submitted by the CNTS
21. The CNTS has submitted documentation in support of its representation, including press articles and documents from the Government of Senegal as well as from other bodies and persons. The list of this documentation is given below:
Press articles
Africa International No. 217, June 1989. Six articles on Mauritania and Senegal.
Le Monde, 7-8 May 1989. Article entitled "Mauritania: after the confrontations with the Senegalese".
Documents
Letter of the Secretary-General of the Organisation for African Trade Union Unity (OATUU) to Colonel Ould Sidi Ahmed Taya, President of the Military Committee of National Salvation of Mauritania.
The White Paper on the dispute between Senegal and Mauritania in April-May 1989, published by the Republic of Senegal on 15 July 1989.
A teachers' organisations' document entitled "The Senegal- Mauritania dispute: A human rights problem".
Documents communicated earlier by three deportedMauritanian trade unionists
Two communications dated 17 August and 22 September 1989.
572 forms completed individually by Mauritanian national workers declaring they had been deported. Tabular lists of 568 of these people.
22. The press articles give an account of the events of April-May 1989, stressing the frontier incidents at Diawara (Senegal) on 9 April 1989 between Soninke farmers and Peulh herdsmen, and the tragic confrontations which took place mainly at Dakar (Senegal) and Nouakchott and Nouadhibou (Mauritania), leading to massive numbers of Mauritanians and Senegalese fleeing both countries. Several articles stressed the racial nature of the conflict and analysed the political and economic factors behind it. They indicate that, following the incidents, the Mauritanian authorities drew up a list of Black African Mauritanians and a national security committee undertook to ascertain how they acquired their nationality; thus, a Mauritanian who had become a national after 1966 ran the risk of expulsion. Several people were removed from office, including 75 police officials, 90 postal workers from the region of the Senegal River and the Director-General of the Social Security Fund at Nouakchott "because there is sudden doubt as to his nationality". There is mention of night police inspections in villages in order to check the nationality of individuals according to their identity documents, followed by the expulsion of those who had no documentation or who had one Senegalese parent. It is stressed that the question of expulsion does not even arise for Mauritanians with Senegalese origin but who are ethnically Moorish.
23. The CNTS has requested that a letter dated 20 October 1989 from the acting Secretary-General of the OATUU, Mr. Benaissa, to the Head of State of Mauritania and copied to the ILO should be taken into consideration. The letter expresses the OATUU's indignation at the expulsion of three Mauritanian trade unionists and its categorical condemnation of racist practices contrary to the Constitution of the ILO. The OATUU requests the reinstatement of the three Mauritanian trade unionists who have been dismissed, namely Mr. Sarr, Mr. Dieng and Mr. Diouf, as well as the restoration of the rights of all the expelled workers who are in a similar position.
24. The White Paper (Endnote 3) on the dispute between Senegal and Mauritania in April-May 1989, published in Dakar on 15 July 1989, gives the point of view of Senegal on the dispute, stressing the losses and prejudice suffered by the Senegalese community and noting the "long-term disturbance to Senegalo-Mauritanian relations".
25. The teachers' organisations' document (accompanied by press articles) communicated by the CNTS is entitled "The Senegal-Mauritania dispute: a human rights problem": it analyses historical relations between Senegal and Mauritania as well as human relations in a society where "White" Moors (Beydanes) and Blacks - all Muslim but speaking different languages - coexist, and criticises the imposition by the Mauritanian authorities of Arabic as the official language as the first step towards "Beydanisation" of the country; the document describes the events of 1989, stressing the grave human consequences for Black Africans in Mauritania.
26. The communications from the three Mauritanian trade unionists concerned essentially the same allegations as those of the CNTS. Examination of the 572 individual forms completed by Mauritanian national workers stating they have been deported shows that the majority (more than 500) were employed in the public and parastatal sectors and that 386 of them (i.e. 67.5 per cent) were established officials of ministries and other agencies.
3. The Government's observations
27. In its communication dated 19 May 1990, the Government of the Islamic Republic of Mauritania gave its views on the conflict and the position of the parties concerned (see above, paragraph 9).
28. The Government states categorically that it has never deported or exiled any of its own nationals. It states that the repatriations which have taken place must be seen in the framework of the dispute between Mauritania and Senegal, and that the Senegalese nationals (workers or simply citizens)have been repatriated at the express request and insistence of the Senegalese authorities, transmitted through the Head of State of Senegal and with the main aim of guaranteeing their security.
29. The Government states that the workers repatriated to Senegal are all Senegalese, either because they have retained their Senegalese nationality, or because they have acquired Mauritanian nationality contrary to nationality regulations. The departure of Senegalese workers leads to a change in their legal status as workers. The Government considers that in the cases of rescission of contract covered by the Labour Code and the collective labour agreement - and in the conditions as to termination of service laid down in the General Regulations of the Public Service and the Act on Auxiliary Staff - there has been abandonment of duties, which automatically leads to dismissal for serious misconduct, whether the worker concerned is Mauritanian or foreign.
30. The Government considers that the accusation relating to the fact that those workers are Mauritanian by virtue of holding a certificate of nationality at the time of their recruitment and alleging that measures were taken because of their race or national origin is both serious and unwarranted. It stresses that in the Islamic Republic of Mauritania nationality is acquired by birth or under non-discriminatory legislation; it states that the expulsion of Mauritanian citizens on the basis of their socio-linguistic origins or political opinions would be impossible without contravening the law.
4. The Committee's conclusions
31. The Committee notes that as regards Convention No. 111 the representation raises the question of discrimination resulting from what the CNTS has alleged is the expulsion of Mauritanian Black African workers of Senegalese extraction and their dismissal on the pretext of abandonment of their jobs.
32. The Committee notes that the question is related to several provisions of Convention No. 111 the terms of which should be recalled.
33. As for definitions, Article 1, paragraph 1(a), states:
For the purpose of this Convention the term "discrimination" includes -
(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.
34. Article 1, paragraph 3, states:
For the purpose of this Convention the terms employment and occupation include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment.
35. As regards the obligations in the present situation, Article 2 of the Convention provides:
Each Member for which this Convention is in force undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.
In particular, under Article 3(c) and (d) the Member:
undertakes, by methods appropriate to national conditions and practice -
(c) to repeal any statutory provisions and modify any administrative instructions or practices which are inconsistent with the policy;
(d) to pursue the policy in respect of employment under the direct control of a national authority.
36. Given these provisions of Convention No. 111, the Committee considers that the question raised concerns discrimination on the basis not only of national extraction and race (the two bases cited by the CNTS) but also of colour, a basis related to the fact that the persons who are the object of the measures in question are Black Africans. The Committee would stress that protection against discrimination on the basis of race and colour concerns both nationals and non-nationals. (Endnote 4) The Committee considers furthermore that its examination of the question and the conclusions reached relate not only to workers employed by other persons but also to self-employed workers carrying on a trade or occupation on their own account, since the terms "employment" and "occupation" in Convention No. 111 have to be given a comprehensive meaning. (Endnote 5) The Committee also wishes to state that, given the terms of the representation and the context of the events it relates to, its examination deals only with the situation of the persons who have had to leave Mauritania and who are of Mauritanian nationality or claim to have Mauritanian nationality.
37. The Committee proposes to examine the various aspects of the representation within the framework of the question as set above.
38. The Committee notes that it has been established from the information examined that tens of thousands of Black Africans were obliged to leave Mauritanian territory in April-May 1989 and in doing so have lost their employment. The Committee notes, however, that the Government rejects the allegations of the CNTS concerning the Mauritanian nationality of those workers, and consequently the reasons for their departure and their dismissal.
39. As regards nationality and the reasons for departure, the Government states that the workers in question are Senegalese who have retained their nationality or who have acquired Mauritanian nationality in violation of the regulations, and that they have been repatriated at the request of the Government of Senegal and not as a result of measures taken because of their race or national origin.
40. The Committee will proceed to examine the questions of nationality by reference to the case of persons who have completed individual forms and who have indicated that they were engaged as established public officials, an employment which requires Mauritanian nationality. The Committee considers that the indications in those forms are generally sufficiently precise to be admissible unless disproved.
41. The Committee notes that under section 21, paragraph 1, of the General Regulations of the Public Service (Act No. 67-169 of 18 July 1967) the appointment as, and the acquisition of the status of, a permanent public employee are conditional on the possession of Mauritanian nationality, subject to the cases of incapacity laid down in the Code on Nationality. It therefore appears to the Committee that the persons who were officials until their departure from Mauritania fulfilled the condition of Mauritanian nationality at the time of their appointment and have continued to do so.
42. The Committee notes in this connection that the Government has stated that it had repatriated Senegalese who had acquired Mauritanian nationality contrary to the applicable regulations. In the absence of any explanation by the Government as to the reasons and procedures for determining any irregularity in the acquisition of Mauritanian nationality by the persons concerned, the Committee has referred to the relevant provisions of the legislation.
43. The Committee notes that under the Code of Mauritanian Nationality (Act No. 61-112 of 20 June 1961, as amended) the Government may object to the acquisition of Mauritanian nationality by decree. Two types of acquisition of Mauritanian nationality are possible. The Government may oppose acquisition by virtue of parentage, birth or adoption for the reasons laid down in the Act (section 14) within one year of the relevant declaration. In cases of naturalisation, section 22 lays down that the Government may repeal the naturalisation decree for one year after its publication if it appears subsequently that the person concerned does not fulfil the naturalisation conditions laid down by the Act, or within two years from the discovery of fraud if the foreign national has knowingly obtained naturalisation by fraud. Other provisions relate to deprivation of nationality by decree in cases of criminal acts (section 33) in particular circumstances where the right to defence and due procedure are guaranteed (sections 35 and 36). If there is a dispute, the Act lays down legal procedures (Title IV: Disputes relating to nationality).
44. On the basis of the legislation and information available, it does not appear to the Committee that the officials whose individual records have been examined and who in some cases have been in the public service for many years, have been dealt with by the procedures laid down by the law which could have led to loss of Mauritanian nationality before and up to their departure from Mauritania. (Endnote 6) The Committee considers therefore that the Government's statement that they are Senegalese nationals repatriated at the express request of their Government does not apply in this case.
45. In these circumstances the Committee must conclude that the measures taken in regard to the officials in question are in contravention of the provisions of Convention No. 111 quoted above since they constitute discrimination on the basis of national extraction, owing to the presumption of Mauritanian nationality deriving from their employment; and also discrimination on the basis of race and colour, owing to the fact that they are Black Africans. This conclusion applies also to other officials in the same situation as those whose individual records have been provided and examined by the Committee.
46. The presumption of Mauritanian nationality for public servants does not necessarily apply to the other workers covered by the representation, as no condition of nationality is laid down for access to employment of workers covered by the Labour Code or the Act on Auxiliary Staff. From theinformation available, the Committee notes that the provisions of the Code of Mauritanian Nationality on the acquisition and loss of nationality have not been invoked in the present case.
47. Given the crucial importance of nationality in the situation being examined here, and in many other areas of the lives of those concerned, the Committee considers that the Government should take all appropriate measures to determine, in full fairness and objectivity and in conformity with the applicable legal provisions, the nationality of the persons who claim Mauritanian nationality, at least in all cases in which this nationality is not considered to be established. Taking into account the circumstances of their departure from Mauritania, and the difficulties which they may have as a consequence in producing documents and establishing the facts, it would be extremely desirable that in doing so, the Government ensure that it has the co-operation of public and private institutions, both national and international, which took part in assisting and receiving these persons. Subject to a decision resulting from these measures which would invalidate the claim of these persons to Mauritanian nationality at the time when these events took place, the Committee is bound to conclude that the measures taken concerning them constitute discrimination on the basis of national extraction, race and colour under Convention No. 111.
48. As concerns the dismissal of these workers, the Government has referred to their having abandoned their posts, resulting in automatic dismissal whether the person concerned be Mauritanian or a foreigner.
49. The Committee considers that, in the case of workers who proved to be Mauritanians, the conclusions which it reached above on the question of nationality render void the question of the reason for dismissal, as the Committee considers that the loss of employment was a direct effect of expulsion and therefore constitutes discrimination within the terms of Convention No. 111.
50. In the case the workers were of Senegalese nationality their situation would not come under the examination by the Committee, as already indicated earlier. However, this being the case contemplated by the Government, the Committee notes that dismissal for abandoning their jobs and for serious misconduct are subject to certain conditions provided for in the law and mentioned by the Government. According to the available information, the procedures provided for in the law for abandonment of posts and serious misconduct appear not to have been observed in the circumstances surrounding the departure of these workers. (Endnote 7) The Committee also considers that, even in the repatriation cases referred to by the Government, the departure of those workers was imposed upon them by events and was carried out under the authority of, and following the decisions of, the public authorities, and can therefore not be attributed to serious misconduct or to abandonment of the posts they occupied.
51. The Committee therefore considers that, whatever may be the nationality of the persons concerned, the reasons for dismissal to which the Government refers are not the decisive elements in the situation under examination.
52. Having noted that Mauritania has failed to apply the relevant provisions of Convention No. 111, the Committee comes to the question of appropriate reparation for the persons affected, as requested by the CNTS.
53. Such reparation poses the principle of eliminating the discrimination carried out against the persons concerned, and the restoration to these persons of their rights. The Committee is aware of the difficulties of such measures, in a situation of conflict between the communities and countries concerned. It considers nevertheless that the Government should make every effort to make reparation for the prejudice suffered.
B. Questions concerning the Employment Policy Convention, 1964 (No. 122)
1. Allegations
54. The complainant organisation has presented the same allegations as for Convention No. 111, in support of its representation concerning the non-observance of Convention No. 122, covering dismissal following deportation and banishment by the Islamic Republic of Mauritania of its Black African citizens.
55. The additional documentation communicated by the CNTS also cites the effects of the situation which has been created in Mauritania by these events, resulting in labour shortages and economic weakness.
2. The Government's observations
56. The Government has denied the allegations made by the CNTS without referring specifically to Convention No. 122.
57. As concerns more particularly the loss of employment and denial of other rights, the Government admits that the repatriated Senegalese workers suffered prejudice, but considers that their losses are not in any way comparable to those of the Mauritanian community who lived in Senegal. The Government considers that this is a question which should be examined on a global basis in the framework of acceptance of the principle of reciprocal indemnisation of the nationals of both countries.
3. The Committee's conclusions
58. The Committee notes that Article 1, paragraph 2(c) of Convention No. 122 provides that the employment policy which is to be formulated and applied shall aim at ensuring that "there is freedom of choice of employment and the fullest possible opportunity for each worker to qualify for, and to use his skills and endowments in, a job for which he is well suited, irrespective of race, colour, sex, religion, political opinion, national extraction or social origin".
59. The Committee notes that application of this provision of Convention No. 122, concerning the principle of non-discrimination in employment policy, is linked to the questions examined under Convention No. 111.
60. The Committee therefore considers that the discrimination based on national extraction, race and colour, which was noted under Convention No. 111, also resulted in the denial to the persons concerned of free choice of employment and of the possibility of using their skills and endowments in their jobs, contrary to Article 1, paragraph 2(c) of Convention No. 122.
61. The Committee considers that appropriate reparation should be made for the prejudice suffered, in conformity with what was said on this subject under Convention No. 111.
62. The Committee also notes that the Government has referred in its statement to the losses and damages suffered by the Mauritanian community living in Senegal, and that it referred to the principle of reciprocal indemnisation for nationals of both countries. The Committee considers that this principle would constitute a good basis for a settlement. The Committee ventures to suggest that assistance by international organisations, in particular the International Labour Office, would be highly desirable in resolving this question.
63. As concerns the other provisions of Convention No. 122, it should be noted that the measures taken in the framework of the events of April 1989, in particular the departure of a large number of workers, might eventually aggravate the employment situation in Mauritania and produce effects contrary to the aims laid down in Article 1, paragraph 1 of Convention No. 122, if compensating measures are not taken. Under this provision:
With a view to stimulating economic growth and development, raising levels of living, meeting manpower requirements and overcoming unemployment and underemployment, each Member shall declare and pursue, as a major goal, an active policy designed to promote full, productive and freely chosen employment.
However, the Committee does not have available at this stage sufficient information to allow it to evaluate further the allegations of non-observance of Convention No. 122.
C. Questions concerning the Protection of Wages Convention, 1949 (No. 95)
1. Allegations
64. The complainant organisation alleges that in addition to losing their jobs, the expelled workers were deprived of other rights such as the payment of wages due, in violation of Convention No. 95.
2. The Government's observations
65. The Government has made the same observations as for the loss of jobs, and refers to the principle of reciprocal indemnisation for nationals of both countries.
3. The Committee's conclusions
66. The Committee notes that, as concerns Convention No. 95, the representation concerns the final settlement of wages due at the end of the employment contract.
67. The Committee refers in this connection to Article 12, paragraph 2 of the Convention, which reads as follows:
Upon the termination of a contract of employment, a final settlement of all wages due shall be effected in accordance with national laws or regulations, collective agreement or arbitration award or, in the absence of any applicable law, regulation, agreement or award, within a reasonable period of time having regard to the terms of the contract.
68. The Committee notes that under this provision of the Convention a final settlement of the wages due must be made, whatever the cause of the termination of the employment contract may be.
69. The Committee also notes that under Article 2, paragraph 1 of the Convention, it "applies to all persons to whom wages are paid or payable", and that consequently the question of the nationality of the wage earner does not affect the application of the Convention.
70. The Committee notes in addition that the Government has not made use of Article 2, paragraphs 2 and 3 of the Convention, providing the possibility of excluding certain categories of persons from the application of the Convention.
71. The Committee concludes from these considerations that the Convention applies to all the workers who were obliged to leave Mauritania, independently of their nationality or of the reasons put forward for their departure or dismissal.
72. The Committee notes, for the workers covered by the Labour Code, section 90 of that Code provides that in the case of the rescission of the contract of employment, the wages, additions to the wages, bonuses and allowances of all kinds payable to the worker at the time of the rescission shall be paid as soon as the employment ceases. The Code provides that in disputed cases, the employer may obtain authorisation from the president of the labour court to retain provisionally all or part of the attachable fraction of the sums payable.
73. As concerns government employees and auxiliary staff, the Committee notes that the General Regulation of the Public Service (section 34) and the above-mentioned Auxiliary Staff Act (section 23) provide that officials and agents have a right to remuneration at the end of their service.
74. The Committee notes that the legislation cited here also establishes protection similar to that contemplated in Article 12, paragraph 2 of Convention No. 95.
75. The Committee notes, however, from the Government's statement and the circumstances under which these workers left the country, that the final settlement of the wages due to them could probably not have been made in conformity with the relevant provisions of the Convention or of the national legislation. The Committee must therefore conclude that Article 12, paragraph 2 of the Convention has not been respected.
76. The Committee considers that the Government should take all the measures necessary to establish or to have established the amounts due to workers in both the public and private sectors who left Mauritania following the events of April 1989, and make a final settlement of their wages or ensure that it is made, taking account in doing so of the definition of the term "wages" in Article 1, paragraph 1 of the Convention and of the relevant provisions of national legislation.
77. Given the circumstances of the departure of the workers concerned and the difficulties which may result in establishing proof of the amount of wages due, the Committee considers it very desirable that the Government request the assistance for this purpose of the International Labour Office and of other bodies which took part in assisting and receiving these workers.
D. Questions concerning the Social Security (Minimum Standards) Convention, 1952 (No. 102) (Endnote 8) and the Equality of Treatment (Social Security) Convention, 1962 (No. 118) (Endnote 9)
1. Allegations
78. The complainant organisation alleges that the expelled workers, in addition to losing their jobs, were also deprived of other rights such as thepayment of pensions and other social security benefits in violation of Conventions Nos. 102 and 118.
2. The Government's observations
79. The Government has made the same observations as for the loss of other rights, and refers to the principle of reciprocal indemnisation for nationals of both countries.
3. The Committee's conclusions
80. In the absence of more detailed information from the complainant organisation, the Committee can only draw general conclusions on the application of Conventions Nos. 102 and 118 in the situation under consideration.
81. The Committee notes that the expulsion of these workers invoked by the complainant organisation raises certain questions as concerns the observance of acquired rights and rights which are in the course of acquisition under Mauritanian social security legislation, in particular payment of social security benefits in the new country of residence of these workers, i.e. Senegal. This question will be examined separately for each of these Conventions.
Convention No. 102
82. The Committee notes that Convention No. 102 contains no provision concerning the preservation of acquired rights or rights in course of acquisition, and thus does not require the payment of social security benefits when the beneficiary's residence is transferred abroad. Article 69(a) of the Convention authorises the suspension of benefits "as long as the person concerned is absent from the territory of the Member". In addition, the principle of equality of treatment between foreigners and nationals which is provided for in Article 68 of the Convention, applies only to non-nationals who are resident in the country concerned, as is indicated in the title of this provision ("Equality of Treatment of Non-National Residents"). This conclusion is also borne out by the preparatory work on the Convention. (Endnote 10) The application of this Convention is therefore not directly called into question by the representation.
Convention No. 118
83. As concerns Convention No. 118, the Committee notes that, under Article 5, paragraph 1 of the Convention,
... each Member which has accepted the obligations of this Convention in respect of the branch or branches of social security concerned shall guarantee both to its own nationals and to the nationals of any other Member which has accepted the obligations of the Convention in respect of the branch or branches in question, when they are resident abroad, provision of invalidity benefits, old-age benefits, survivors' benefits and death grants, and employment injury pensions ...
84. The Committee notes that this provision, which is intended to ensure the provision of benefits to beneficiaries when residing abroad, does not apply to all types of benefits for which the obligations under the Convention may be accepted, but only to long-term benefits and to death grants. In addition, it applies only to the nationals of the State concerned and to the nationals of other States which have accepted the Convention's obligations for the same branch.
85. On the basis of this provision of the Convention, the Committee notes that, as Senegal has not ratified Convention No. 118, the Government of Mauritania has no obligations under Article 5 of the Convention with regard to repatriated Senegalese nationals. However, in the case of workers or members of their families who have Mauritanian nationality and who have been expelled, the Committee notes that the Government is obligated under Article 5 of the Convention to ensure the provision to them in their new residence of all benefits of the kinds listed in Article 5, paragraph 1 of the Convention to which they would have been entitled before leaving Mauritania, except for benefits paid under special schemes for civil servants. (Endnote 11) Mauritania has in fact accepted the Convention's obligations for all the branches mentioned in this provision.
86. Taking account of the conclusions it has adopted concerning the application of the other Conventions involved, and particularly of Convention No. 111, the Committee considers it desirable that the Government take the necessary measures to have established, with the co-operation of the bodies concerned and in particular the International Labour Office, the benefits to which the Mauritanian nationals who had to leave Mauritania following the events of April 1989 may be entitled under Article 5 of Convention No. 118; and to ensure the provision of such benefits to the beneficiaries concerned in conformity with the relevant provisions of the Convention.
III. The Committee's recommendations
87. Referring to the conclusions at which it has arrived on the questions concerning the Conventions whose application has been called into question, the Committee recommends to the Governing Body:
1. To approve the present report and in particular the conclusions and recommendations made in it.
2. To invite the Government of the Islamic Republic of Mauritania to take the measures indicated in the Committee's conclusions on the questions it has examined, in particular:
(a) Questions concerning Convention No. 111
(i) The Government should take all appropriate measures to determine, in all fairness and objectivity and in conformity with the applicable legal provisions, the nationality of the persons who were displaced from Mauritanian territory following the events of April 1989 and who claim Mauritanian nationality, in all cases in which this nationality is not considered as established.
(ii) The Government should make every effort to make reparation for the prejudice suffered by Mauritanian nationals against whom there was discrimination, by the restoration to these persons of their rights.
(b) Questions concerning Convention No. 122
(i) See (a)(ii) above, under questions concerning Convention No. 111.
(ii) The Government should take all appropriate measures to make reparation for all prejudice caused to displaced persons.
(c) Questions concerning Convention No. 95
The Government should take all the measures necessary with a view to a final settlement of the wages due to the persons concerned, in conformity with the relevant provisions of Convention No. 95.
(d) Questions concerning Convention No. 118
The Government should take the necessary measures, in conformity with the relevant provisions of Convention No. 118, to have established and ensure the payment, of any benefits due to Mauritanian nationals who have left Mauritania.
3. To invite the Government to secure the co-operation of the International Labour Office and of other concerned bodies, and in particular of those which participated in assisting and receiving the displaced persons, in taking the above-mentioned measures.
4. To request the Government to provide information on the measures which it has taken to implement the recommendations under items 2 and 3 above, as well as on the results of these measures, in the reports to be submitted not later than 15 October 1991 by the Government under article 22 of the Constitution, to enable these questions to be followed up by the Committee of Experts on the Application of Conventions and Recommendations.
5. To request the Director-General to bring to the attention of the Governing Body, at an appropriate time, the results of the examination of the situation by the standing supervisory bodies.
6. To declare closed the procedure initiated under this representation.
Geneva, 12 November 1990 (Signed) G. Brinkmann, Chairman.
L. Sasso-Mazzufferi.
M. Blondel.
Endnote 1
Convention No. 95 was ratified on 20 June 1961; Convention No. 102 on 15 July 1968; Convention No. 111 on 8 November 1963; Convention No. 118 on 15 July 1968; and Convention No. 122 on 30 July 1971.
Endnote 2
See paras. 21 and 24 below.
Endnote 3
The Committee has noted also the White Paper on the conflict with Senegal published by the Islamic Republic of Mauritania on 31 August 1989.
Endnote 4
See "Equality in Employment and Occupation", General Survey of the Committee of Experts on the Application of Conventions and Recommendations, International Labour Conference, 75th Session, 1988, Report III, Part 4B, para. 17.
Endnote 5
Ibid., para. 86.
Endnote 6
As regards dismissal (see below), the Committee notes that the Government has not mentioned the ground for immediate dismissal of officials from the public service resulting from loss of nationality (sections 63 and 105 of Act No. 67-169 of 1967).
Endnote 7
The Committee notes that abandoning a post is provided for only in the General Regulation of the Public Service, for which (as has already been mentioned) Mauritanian nationality is required. Act No. 67-169 (as amended) provides in section 64 that an official is dismissed from his office, without it being necessary to consult the disciplinary committee, for abandoning his post. Nevertheless, paragraph 2 of this section provides that: "This decision must be preceded by a written notice from the Minister of the Public Service by which the official shall be informed of the measure to which he will be subject if he does not comply, within two weeks from the duly noted receipt of the notification, with the order to take up his service or to return to the post assigned to him." As for auxiliary staff, Act No. 74-071 provides for dismissal without notice for serious misconduct, among the disciplinary sanctions (section 29), none of which may however be imposed without the accused agent having been called upon to provide explanations (section 34). For other workers, the Committee notes that the Labour Code provides that a contract may be broken without notice in case of serious misconduct, subject to the findings of the competent court of law as regards the gravity of the misconduct (Book I, section 22, Code). The notion of serious misconduct is thus not defined in the Code, but is evaluated by the competent labour tribunals in resolving individual conflicts concerning employment contracts (Book IV, Title 1 of the Code). A similar provision can also be found at section 27 of the collective labour agreement.
Endnote 8
Mauritania has accepted the obligations of the Convention for Parts V (Old-Age Benefit), VI (Employment Injury Benefit), VII (Family Benefit), IX (Invalidity Benefit) and X (Survivors' Benefit).
Endnote 9
Mauritania has accepted the obligations of the Convention for the following branches: (d) invalidity benefit; (e) old-age benefit; (f) survivors' benefit; (g) employment injury benefit; and (i) family benefit.
Endnote 10
See also in this connection the memorandum addressed to the Government of France by the International Labour Office concerning certain provisions of Convention No. 102 (Official Bulletin, Vol. XLVIII, No. 4, 1965, p. 341.
Endnote 11
Under Article 10, paragraph 2, Convention No. 118 does not apply to special schemes for civil servants, inter alia.