REPRESENTATION (article 24) - ETHIOPIA - C111, C158 - 2001

The National Confederation of Eritrean Workers (NCEW)

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Report of the Committee set up to examine the representation alleging non-observance by Ethiopia of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) and the Termination of Employment Convention, 1982 (No.158), made under article 24 of the ILO Constitution by the National Confederation of Eritrean Workers (NCEW)

Report of the Committee set up to examine the representation alleging non-observance by Ethiopia of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) and the Termination of Employment Convention, 1982 (No.158), made under article 24 of the ILO Constitution by the National Confederation of Eritrean Workers (NCEW)

Decision

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

Complaint Procedure

Fifth Supplementary Report:
Representation alleging non-observance by Ethiopia of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and the Termination of Employment Convention, 1982 (No. 158), made under article 24 of the ILO Constitution by the National Confederation of Eritrean Workers (NCEW)
I. Background
1. In a communication dated 23 October 1998, the National Confederation of Eritrean Workers (NCEW) submitted a representation to the International Labour Office pursuant to article 24 of the ILO Constitution, alleging Ethiopia's non-observance of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and the Termination of Employment Convention, 1982 (No. 158).
2. Ethiopia has been a Member of the ILO since 1923. Conventions Nos. 111 and 158 were ratified by Ethiopia on 11 June 1996 and 20 January 1991, respectively. Both Conventions are currently in force for that country. (Endnote 1)
3. The provisions of the Constitution of the International Labour Organization concerning the submission of 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 to be followed for the examination of representations is governed by the Standing Orders as revised by the Governing Body at its 212th (March 1980) Session. In accordance with article 1 of the Standing Orders, the Director-General acknowledged receipt of the representation and informed the Government of Ethiopia of the representation by letter dated 5 November 1998. Thereafter, under article 2, paragraph 1, of the Standing Orders, the Director-General brought the representation before the Officers of the Governing Body who, in accordance with paragraph 3 of the same article, are required to report to the Governing Body on the receivability of the representation. (Endnote 2)
5. At its 273rd Session (November 1998), on the recommendation of its Officers the Governing Body decided that the representation was receivable and to set up a tripartite committee to examine it. At that session, the Governing Body appointed only one member of the Committee: Mr. J.W. Botha (Employer member, South Africa). At its 274th Session (March 1999) the Governing Body appointed the Government and Worker members of the Committee: Mr. S. Pityana (Government member, South Africa) and Mr. G. Sibanda (Worker member, Zimbabwe). Mr. Pityana, having subsequently left the Governing Body, was replaced by Mr. L. Kettledas (Government member, South Africa) at the 277th Session of the Governing Body (March 2000).
6. The tripartite Committee held its first meeting on 23 March 1999. It concluded that, to examine the representation fully and adequately, it must consider the situation in its broader context, with particular reference to the alleged expulsion of Eritrean workers from Ethiopia and Ethiopian workers from Eritrea. The Committee therefore requested and subsequently received information on the issues involved in the representation from the Governments of both Ethiopia and Eritrea as well as from the social partners in both countries. The Committee made it clear in doing so that only Ethiopia was bound by Conventions Nos. 111 and 158, but that the situation in that country could not be examined in isolation.
7. The Committee recalls that, in May 1998, increasingly strained relations between the two countries erupted into armed conflict over a border dispute in which both countries claimed territories along the Ethiopia-Eritrea border. The information received by the ILO indicates that the conflict led to, inter alia, the deportation and forcible displacement of tens of thousands of persons across the Ethiopia-Eritrea border. Both countries are alleged to have engaged in mass expulsions of workers on the basis of their national extraction and political opinion, with Ethiopia allegedly deporting over 70,000 Eritrean nationals and Ethiopian citizens of Eritrean origin and Eritrea allegedly deporting over 40,500 Ethiopian nationals. These displaced workers are alleged to have been summarily dismissed from their employment, denied the right to appeal their termination and deportation and denied accrued wages and employment-related benefits. In addition, both countries are alleged to have seized personal and real property belonging to the other's nationals.
8. An Organization of African Unity (OAU) Framework Agreement on the Settlement of the Dispute between Ethiopia and Eritrea and the Modalities for its Implementation was adopted at the 35th OAU Summit held in Algiers from 12-14 July 1999. The Framework Agreement, inter alia, called for the immediate cessation of hostilities between the two countries, and for Ethiopia and Eritrea to address the negative socio-economic impact of the crisis on the civilian population, particularly on those persons who had been displaced or terminated from their employment and deported. The parties had not reached a consensus on the technical arrangements for the implementation of the OAU Framework Agreement and its Modalities when hostilities broke out again and deportations reportedly resumed.
9. In March 2000, the Governing Body adopted an interim report urging, inter alia, the governments to cease hostilities and move quickly to a peaceful solution of the conflict, and to request the governments to inform the Committee by 15 September 2000 of the steps taken or under way to remedy the situation of displaced workers of both countries.
10. On 15 September 2000, the UN Security Council adopted resolution No. 1320 authorizing the deployment of up to 4,200 troops, including up to 220 military observers, until 15 March 2001 within the framework of the United Nations mission in Ethiopia and Eritrea. Resolution No. 1320 called on Ethiopia and Eritrea to continue negotiations and to conclude a comprehensive and final peace settlement without delay. The Governments of Ethiopia and Eritrea signed a comprehensive Agreement, on 12 December 2000 at Algiers, which was witnessed and supported by the Secretaries-General of the OAU and the United Nations. This Agreement reaffirms the parties' acceptance of the OAU Framework Agreement and the modalities for its implementation, and establishes two commissions - one to handle the boundary issue and the other to handle claims for compensation. The mandate of the claims commission is to decide through binding arbitration all claims for loss, damage or injury by one government against the other, and by nationals of one party against the government of the other party or entities owned or controlled by the other party. The Agreement also provides that in appropriate cases, each party may file claims on behalf of persons of Ethiopian or Eritrean origin who may not be its own nationals. All claims should be submitted to the commission within one year of the date of the 12 December 2000 Algiers Agreement, and it shall be the only body with jurisdiction to hear such claims with the exception of those filed in another forum prior to the date of the Agreement. The commission shall be located in the Hague and shall have discretion to hold hearings and to conduct investigations.
11. The Committee met during the 279th Session of the Governing Body (November 2000) and met again in March 2001 to examine the information received from the Government of Ethiopia and the complainant organization. Based on this information, the Governing Body adopted an interim report in November 2000 urging the governments and social partners concerned to cooperate with the establishment and functioning of the mechanisms created in the Algiers Agreement of 12 December 2000 and urging that all claims raised in the representation be brought before the claims commission for speedy resolution. The Committee requested the parties to provide information on these points.
12. The Government of Ethiopia supplied information on the constitution and functioning of the claims commission on 10 October 2001. The claims commission held hearings on 1 and 2 July 2001 and has commenced work adopting its rules on governing the procedures by which the commission will handle claims. It has issued decisions on its mandate, jurisdiction, claims categories, forms, procedures, remedies and rules of evidence. Decision No. 2 provides that claims may be made by persons for unlawful expulsion from the country of their residence, for unlawful displacement from their residence and for other loss, damage or injury. Decision No. 3 provides that while the appropriate remedy for valid claims should be monetary compensation, the claims commission will consider providing other types of relief in appropriate cases, in accordance with international law. According to the information received, the claims commission expects claims to be presented from Eritrea under the mass claims procedure.
13. The NCEW provided an additional report on 5 November 2001. This report reiterates previous allegations of violation of both Conventions by Ethiopia, and expresses severe disappointment that the Governing Body has not concluded its examination of the present case. No new substantive information was received.
II. Examination of the representation
A. The complainant's allegations
14. In respect of Convention No. 111, the NCEW alleged that Ethiopia had failed to pursue and implement a national policy designed to promote equality of opportunity and treatment in employment and occupation and to eliminate discrimination, in violation of Article 2 of the Convention. The NCEW asserted that Ethiopia's failure to implement the provisions of the Convention was shown by the fact that, between the time that the border conflict began in May 1998 and the filing of the representation in October 1998, over 25,000 Ethiopians of Eritrean origin and Eritreans legally established and residing and working in Ethiopia had been deported from Ethiopia, and the deportations were continuing.
15. The NCEW alleged that Ethiopia's conduct in deporting the people concerned constituted acts of discrimination in violation of Article 1 of the Convention. The complainant organization alleged that most of the deportees were people born in Ethiopia of Eritrean parents or grandparents or who had spent most of their lives in Ethiopia, and that the deportees held either Ethiopian passports or Ethiopian identification cards. The NCEW also stated that all the deportees had either been accused of having engaged in activities prejudicial to the security of the State of Ethiopia or had been told that they were under suspicion of having engaged in such activities. The NCEW alleged that none of the deportees had been given the opportunity to address any of the accusations or suspicions directed towards them or to appeal against the deportation orders, in violation of Article 4 of the Convention.
16. The NCEW alleged that the circumstances of the deportations were such that the deportees had not been able to make any arrangements in regard to their families or properties, their properties had been confiscated, their bank accounts had been frozen, and families had been forcibly separated, including families with small children and aged dependants. Information received on 6 May 1999 from the Employers' Federation of Eritrea (EFE) supported the NCEW's allegations, stating that since May 1998 the Government of Ethiopia had arrested, detained and deported to Eritrea over 57,000 Eritrean nationals and Ethiopians of Eritrean origin. The EFE stated that the persons concerned were taken from their homes, schools, offices and farms and deported to Eritrea in buses, without first being provided with due process of law. It also indicated that many deportees who had paid into pension funds in Ethiopia throughout their working lives there had been denied access to their pension benefits.
17. In respect of Convention No. 158, the NCEW alleged that Ethiopia had failed to pursue and implement a national policy to prevent the dismissal from employment on the grounds of race, political opinion, national extraction or social origin, in violation of Article 5 of the Convention. The complainant organization alleged that this failure was shown by the fact that, since the border conflict began in May 1998, many Ethiopians of Eritrean origin and Eritreans legally established and residing and working in Ethiopia, who were employed by state-owned or state-held enterprises in Ethiopia, had been summarily dismissed from their employment and deported, and that the Government of Ethiopia had failed to take measures to prevent the discriminatory dismissal of such persons by employers other than state-owned or state-held enterprises.
18. The NCEW alleged that the terminations described were not connected to the capacity or conduct of the workers, or to the operational requirements of the employers, but that the employment of Eritreans was terminated because of their race, political opinion, national extraction or social origin, contrary to the provisions of Article 1 of Convention No. 111. The NCEW further alleged that at no stage had any of the Ethiopians of Eritrean origin or Eritreans legally established, residing and working in Ethiopia, been given the opportunity to appeal against their dismissal and deportation as required by Articles 8, 9 and 10 of the Convention.
B. Observations by the Government of Ethiopia
19. The Government of Ethiopia presented its observations and substantial amounts of information. In response to the NCEW's allegations, the Government stated that it had formulated a national policy in accordance with Article 2 of Convention No. 111. In this regard, the Government cited article 25 of the Constitution of the Federal Democratic Republic of Ethiopia, which provides that "all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect the law shall guarantee to all persons equal and effective protection without discrimination on grounds of race, nation, nationality (Endnote 3) or other social origin, colour, sex, language, religion or other political opinion, property, birth or other status". The Government also referred to Ethiopian Labour Proclamation, No. 42/1993, which establishes that "discrimination between workers on the basis of nationality, sex, religion, political outlook or any other conditions constitutes unlawful activity".
20. With regard to the allegations that it had expelled Ethiopians of Eritrean origin and Eritrean nationals from its territory after May 1998, the Government of Ethiopia did not dispute that it had deported persons, but indicated that the deportees were all of Eritrean nationality. The Government stated that the persons concerned had lost their Ethiopian nationality after having voluntarily acquired Eritrean nationality by operation of the Eritrean Nationality Proclamation, No. 21 of 1992, and that the persons deported were therefore all Eritreans because they had acquired Eritrean nationality and lost their Ethiopian nationality by operation of the law. The Government of Ethiopia explained that, pursuant to section 2(2) of the Eritrean Nationality Proclamation of 6 April 1992, persons eligible for Eritrean nationality included persons born to a mother or father of Eritrean origin, whether they were born in Eritrea or abroad. The Government indicated that Eritrean nationality was "automatically conferred upon persons born to the aforementioned categories of individuals". The Government also stated that "thousands of Eritreans residing in Ethiopia" acquired Eritrean nationality by officially renouncing their Ethiopian nationality and obtaining an Eritrean certificate of nationality. The Government further stated that, in April 1993, Eritrean nationals who had acquired Eritrean nationality pursuant to the Eritrean Nationality Proclamation "once again officially identified themselves as Eritrean citizens by voluntarily participating in the referendum (voting for the independence of Eritrea from Ethiopia)". According to the Government, "identification of Eritrean nationals has not been and will never be a subject of controversy, because Eritrean nationals have identified themselves by possessing an identification card which clearly shows that they are holders of Eritrean nationality and/or voting in the referendum". The Government also stated that, following the Eritrean Nationality Proclamation and the referendum on Eritrean independence, "the Eritrean nationals in Ethiopia continued to live in peace without any encumbrances much more like (Ethiopian) nationals than foreigners and, more often than not, in possession of Ethiopian documents".
21. The Government of Ethiopia denied that the deportations had targeted Eritreans living in Ethiopia generally, and stated that there were still thousands of Eritreans residing in Ethiopia. The Government stated that it had deported only those Eritreans who were found to constitute threats to the national security of Ethiopia. The Government also indicated that very few of the deportees were workers or employees.
22. The Government of Ethiopia stated that, on 12 June 1998, it announced its decision to deport those Eritreans who were considered to constitute a threat to national security. It stated that its decision was based on concrete evidence that these individuals were engaged in espionage activities detrimental to Ethiopia's national security. The Government indicated that the persons concerned were connected with or working for the Government of Eritrea and the Eritrean People's Liberation Front (EPLF), raising funds or other resources for Eritrea, or found to be spying for Eritrea. The Government asserted that its decision to deport certain Eritreans was not based on their race, colour, sex, religion, political opinion, national extraction or social origin, but rather on the grounds of national security. According to the Government, each of the deportees was found or proven to have engaged in activities prejudicial to the security of the State and the deportation measures were taken in full transparency and in accordance with Ethiopian domestic law.
23. The Government stated that the deportations in question were governed by the Ethiopian Immigration Proclamation, No. 271/1969, which regulates the movement of foreign nationals and establishes the administrative procedures for deportations. According to the Government, the Proclamation provides that a foreign national who disturbs or endangers the security of the State is considered to be an undesirable alien. The Government stated that the decision to deport the individuals concerned was taken in an orderly manner, after careful examination of each case, and that the persons affected were provided the right of appeal. The Government stated that a number of Eritreans who felt aggrieved by the deportation order of the Immigration Department in fact appealed against the deportation orders to the Review Body.
24. The Government denied that it had confiscated the property of the deportees, stating that it had enabled the deportees to maintain ownership of their assets in Ethiopia by permitting them to appoint caretakers to look after their property on their behalf. It also denied the NCEW's allegations that the deportations had resulted in the forcible separation of family members.
25. The Government of Ethiopia denied that the deportees had been terminated from their employment, but stated that the termination of their employment was merely a consequence of the deportation order.
26. In its reply to the NCEW's allegations, the Government of Ethiopia asserted that Eritrea had arbitrarily dismissed and deported over 40,500 Ethiopians working in Eritrea. It confirmed its application of the principles established in ILO Conventions Nos. 111 and 158 and expressed its desire to resolve the armed conflict between the two countries peacefully in the context of the OAU Framework Agreement.
27. Information submitted by the Ethiopian Employers' Federation (EEF) supported the statements by the Government of Ethiopia, indicating that those Eritreans deported from Ethiopia were deported solely because they were found to present a threat to the national security, and asserting that the appropriate severance payments were made to the deportees in question. The EEF also stated that the Government of Ethiopia had not instructed any employers to dismiss Eritrean workers and denied that any employers had dismissed Eritreans from their employment in contravention of Convention No. 111. Statements made by the Confederation of Ethiopian Trade Unions (CETU) also supported the position of the Government of Ethiopia, indicating that Ethiopia had deported a few Eritrean nationals who posed a threat to Ethiopian national security and that the deportations were carried out in accordance with the relevant Ethiopian law.
28. During the course of these proceedings, the Office received information, including extensive documentation, relevant to the matters alleged in the representation. The Committee wishes to point out that, while it has examined all of the information submitted, it is not in a position to verify the specifics of each of the individual cases mentioned in the voluminous supporting documents received.
III. The Committee's conclusions
29. This representation involves allegations that Ethiopia violated the principles established in two Conventions ratified by that country, Conventions Nos. 111 and 158. The Committee wishes to emphasize that, during the course of these proceedings, the Government of Ethiopia has uniformly expressed its acceptance of the principles enshrined in Conventions Nos. 111 and 158 and its willingness to promote and implement a policy of equality of opportunity and treatment in employment and occupation. The Committee also welcomes the fact that the Governments of Eritrea and Ethiopia and their social partners have expressed a desire to reach a peaceful solution to the border dispute between the two countries, reaffirming their acceptance of the OAU Framework Agreement and Modalities for its Implementation in the Agreement on cessation of hostilities. In this regard, the Committee notes that Technical Arrangements for the Implementation of the OAU Framework Agreement and Modalities for its Implementation have been elaborated which call for the Governments to address humanitarian concerns resulting from the conflict, "particularly the issues of those persons who have been deported or displaced, as well as the socio-economic consequences of the dispute" (Framework Agreement, article 8(b) and Technical Arrangements, article 14). The Committee notes the establishment of the claims commission and its jurisdiction over the claims of the deportees on whose behalf this representation has been filed. It draws attention to the deadline of one year from 12 December 2000 for the filing of claims. As previously indicated, it is this Committee's view that it would be appropriate for the issues raised in this representation to be dealt with in the claims commission as it has jurisdiction and powers to grant monetary and other appropriate relief in relation to the resolution of the Ethiopian-Eritrean border conflict. In this regard, the Committee notes that liability and compensation is based upon the showing of deportation or removal due to this conflict and is not based upon the establishment of violation of international labour Conventions. While the Committee has made findings that these Conventions have been violated based on the available information, its purpose is not to apportion blame but rather to assist the governments, the claimants and the claims commission in their assessment of the employment- and occupation-related damages incurred by workers who were subject to mass deportations.
A. Convention No. 111
30. The NCEW alleged that, during the conflict between Ethiopia and Eritrea beginning in May 1998, Ethiopia summarily deported over 25,000 Ethiopians of Eritrean origin and Eritrean nationals legally residing and working in Ethiopia, (Endnote 4) and that this was done because they were engaged in activities prejudicial to the security of the State. The NCEW has alleged that Ethiopia failed to pursue and implement a national policy designed to promote equality of opportunity and treatment in respect of employment and occupation, in violation of Article 2 of the Convention. The complainant organization further alleged that the acts by the Government of Ethiopia in deporting the people concerned constituted acts of discrimination as defined by Article 1 of Convention No. 111. (Endnote 5) Further, the NCEW alleges that the deportees were not provided the right of appeal, in violation of Article 4 of Convention No. 111.
31. The Committee notes that Article 1(1)(a) of Convention No. 111 defines discrimination as "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". For the purposes of the Convention, the terms "employment" and "occupation" include "access to vocational training, access to employment and to particular occupations, and terms and conditions of employment" (Article 1(3)). The Committee notes that, in ratifying Convention No. 111, Ethiopia undertook "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" (Article 2). Article 3 provides that each Member shall repeal any statutory provisions and modify any administrative instructions or practice which are inconsistent with the policy. The Committee notes that the concept of national extraction in Convention No. 111 does not address the distinctions that may be made between the citizens of the country concerned and those of another country, but it does cover distinctions made on the basis of a person's place of birth, ancestry or foreign origin. (Endnote 6)
32. The NCEW's allegations that the Government of Ethiopia failed to observe Article 2 of Convention No. 111. The Committee notes that Ethiopia has given legal expression to equality of opportunity and treatment in employment and occupation in article 25 of the Constitution of the Federal Democratic Republic of Ethiopia and in Ethiopian Labour Proclamation, No. 42/1993.
33. On the basis of the information presented by both parties, the Committee concludes that large-scale deportations of persons including workers from Ethiopia to Eritrea and vice versa occurred following the outbreak of the border conflict in May 1998. The Committee notes that expulsion from the country would have the effect of discrimination in employment and occupation, in so far as it was based on a ground prohibited under Convention No. 111 and resulted in loss of employment and related benefits, and was not otherwise permitted under the Convention.
34. With respect to dismissals from employment and deportations on the basis of their political opinion and the denials of the right to appeal from the terminations and deportations in violation of Article 4 of the Convention, Article 4 provides that -
Any measures affecting an individual who is justifiably suspected of, or engaged in, activities prejudicial to the security of the State shall not be deemed to be discrimination, provided that the individual concerned shall have the right to appeal to a competent body established in accordance with national practice.
35. Pursuant to Article 4 of the Convention, measures regarding activities prejudicial to the security of the State are not deemed to constitute discrimination and are excluded from the application of Article 1(1)(a). As the ILO Committee of Experts has previously noted, measures regarding activities prejudicial to the security of the State under Article 4 should be directed at individual activities, whether proven or justifiably suspected, and not be motivated by membership in a particular group or community, or by expression or demonstration of opinions opposed to established political principles and institutions without the use or advocacy of violent methods to change them. Such measures should be sufficiently well defined and should be applied in the light of the bearing of the activities in question on the performance of the job, task or occupation by the persons concerned. (Endnote 7)
36. The Committee points out that the substantive and procedural protections set forth in Articles 1 and 4 of Convention No. 111 apply to all workers regardless of their nationality or citizenship. The Committee notes that, in the absence of any indication that the individuals concerned were expelled on the basis of their own individual activities, this would amount to a presumption regarding their political opinion based on their nationality or national extraction, as the case might be, without a showing of activity prejudicial to the security of the State. Moreover, deportations of tens of thousands of persons, conducted on such a large scale, cannot be regarded per se as measures taken within the meaning of Article 4. While the Government has stated that its decision to deport the individuals concerned was based on concrete evidence that these persons were engaged in activities detrimental to national security, the Committee was not provided with specific evidence of individual cases where individuals were shown to have engaged in activities prejudicial to the security of the State. The Committee is therefore bound to conclude that at least some of the deportations constituted discriminatory acts on the basis of political opinion within the meaning of Article 1(1)(a) of the Convention.
37. Turning to the issue of the right of appeal provided for in Article 4, the Committee notes that the existence of a right of appeal, while constituting a necessary condition for the application of the exception to the principle of the Convention, is not sufficient in itself. There must be an appeals body that is separate from the administrative or governmental authority and which offers a guarantee of objectivity and independence. This body must be competent to hear the reasons for the measures taken against the person in question and to afford him or her the opportunity to present his or her case in full. (Endnote 8) Noting the Government's statement that the deportees had the right to appeal to the Review Body of the Immigration Department, the Committee points out that this body forms part of the governmental authority. The Committee further notes that, while the Government of Ethiopia indicated that at least some of the individuals concerned appealed the deportation orders, no information was provided regarding the occurrence of the proceedings themselves or the outcomes. Accordingly, the Committee cannot conclude that the persons deported were provided the effective right of appeal within the meaning of Article 4 of the Convention.
B. Convention No. 158
38. In respect of Convention No. 158, the Committee notes that Article 4 provides that "the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service". Article 5(d) of the Convention establishes that "race ... political opinion, national extraction or social origin" do not constitute valid reasons for termination. Further, States ratifying Convention No. 158 undertake to provide workers with the right to appeal terminations of employment to an impartial body, such as a court, labour tribunal, arbitration committee or arbitrator (Article 8). These bodies must be empowered to examine the reasons given for the termination and the other circumstances relating to the case and render a decision on whether the termination was justified (Article 9). Article 10 of the Convention establishes that, if the bodies mentioned find that the termination was unjustified, they shall have the power to order payment of adequate compensation or such other relief as they may deem appropriate.
39. The Committee notes that if the expulsions were themselves based on grounds of discrimination prohibited under Conventions Nos. 111 and 158, then the terminations have a direct causal relationship with the expulsions, and cannot be characterized as "mere consequences" that bear no relationship to Convention No. 158. The deportations that took place resulted in the constructive termination of the employment of the persons concerned. Thus, for the reasons set forth in the Committee's conclusions under Convention No. 111, to the extent that the expulsions were based on national extraction and/or political opinion, they constituted a violation of the provisions governing termination of employment set forth in Convention No. 158.
IV. The Committee's recommendations
40. The Committee recommends that the Governing Body -
(a) approve the present report, and in particular the conclusions contained in paragraphs 29-39, on the basis of the information presented to the Committee;
(b) decide that, in so far as the expulsions that took place were based on national extraction or political opinion, they constituted violations of Conventions Nos. 111 and 158;
(c) urge the governments and social partners concerned to cooperate with the establishment and functioning of the mechanisms created in the Algiers Agreement of 12 December 2000, in particular the claims commission;
(d) urge that all claims raised in this representation be brought before the claims commission in a timely manner for speedy resolution;
(e) recalling that its purpose is not to apportion blame but to assist, encourage the governments to remedy as fully as possible the situation of the displaced workers of both countries in accordance with the provisions of Conventions Nos. 111 and 158, and that appropriate relief be granted, including but not limited to possible reinstatement of displaced persons in their employment, where appropriate, payment of accrued employment-related wages and benefits (e.g. pensions and old-age benefits), where appropriate; and payment of compensation for economic losses (e.g. tools, equipment, and property) sustained as a result of displacement and deportation;
(f) encourage the governments to provide for an effective right of appeal for those persons that may be accused in the future of engaging in activities prejudicial to the security of the State;
(g) invite the Government of Ethiopia to continue to provide information on the situation of Eritrean workers and employers in Ethiopia in its reports on the application of Conventions Nos. 111 and 158 under article 22 of the ILO Constitution, so that the Committee of Experts on the Application of Conventions and Recommendations can continue to examine this matter;
(h) invite the Committee of Experts to review the situation in this respect in Eritrea when the Government reports on the application of Convention No. 111, which entered into force on 22 February 2001;
(i) declare closed the procedure initiated as a result of the representation by the NCEW alleging non-observance on the part of Ethiopia of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and the Termination of Employment Convention, 1982 (No. 158).
Geneva, 12 November 2001, (Signed), L. Kettledas, Chairperson, J.W. Botha, G. Sibanda.
Endnote 1
Eritrea has been a Member of the ILO since 1993. It ratified Convention No. 111 on 22 February 2000 and that Convention entered into force for Eritrea on 22 February 2001. It has not ratified Convention No. 158.
Endnote 2
GB.273/15/5.
Endnote 3
The Government indicates in its communication that, "in the Amharic version of the Constitution, which has final legal authority, the term 'nationality' refers to ethnic origin and not to citizenship".
Endnote 4
The Committee notes that the number of persons alleged to have been deported rose over the course of the proceedings.
Endnote 5
The Committee notes that the NCEW alleged discrimination on the basis of social origin. However, as no information was provided regarding those allegations, the Committee makes no findings in this regard. The Committee finds it unnecessary also to address the allegations concerning race discrimination, given the NCEW's allegations of discrimination on the basis of national extraction.
Endnote 6
See General Survey on equality in employment and occupation, ILO, 1988, para. 36; and Special Survey on equality in employment and occupation, ILO, 1996, para. 33.
Endnote 7
See General Survey on equality in employment and occupation, ILO, 1988, paras. 135-137.
Endnote 8
General Survey, paras. 135-137.