Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Libya (Ratification: 1961)

Article 1 of the Convention. Definition and grounds of discrimination. Legislation. The Committee notes the Constitutional Declaration of August 2011 establishing a basis for the exercise of power in the transitional period until the adoption of a permanent Constitution. It notes that article 6 of the Constitution Declaration provides that Libyans are equal before the law, and that they enjoy equal civil and political rights and equal opportunities in all areas without distinction on the grounds of religion, belief, language, wealth, gender, kinship, political opinion, social status, or tribal, regional or familial adherence. The Committee notes that the principle of equality before the law and equal opportunities in article 6 of the Constitutional Declaration does not include reference to the grounds of race, colour, and national extraction, and that the term “social status” may be more restrictive than “social origin” contained in the Convention. The Committee further notes the draft Libyan Constitution, awaiting adoption by referendum, in which article 7 provides that men and women citizens are equal before the law and that any discrimination between them on the grounds of ethnicity, colour, language, sex, birth, political opinion, disability, origin or geographical affiliation is prohibited. The Committee notes, however, that the grounds of race, national extraction and social origin are not included in the prohibition of discrimination contained in the draft Constitution, and that this prohibition only covers citizens.

The Committee notes, from the 2017 Report of the United Nations High Commissioner for Human Rights (UNHCHR) on the situation of human rights in Libya, the adoption in 2015 of the Libyan Political Agreement (LPA 2015) which establishes a temporary executive authority, the Government of National Accord, which will remain in place until the adoption and implementation of the Libyan Constitution (A/HRC/34/42, paragraph 4). It notes that Governing Principle 8 of the LPA 2015 affirms the principle of equality between Libyans by providing for, among other things, “equal opportunity and rejection of any discrimination between them for whatever reason”. The Committee notes the Government’s general statement, in its report, that national legislation prohibits discrimination on the grounds of race, colour, sex, religion and national extraction. In this respect, the Government refers to section 3 of Law No. 12 of 2010 promulgating the Labour Relations Act (LRA 2010). However, the Committee notes that section 3 of the LRA 2010 prohibits discrimination only on the grounds of “trade union affiliation, social origin or any other discriminatory basis”, and that the grounds of race, colour, sex, religion, political opinion and national extraction are not explicitly mentioned. The Committee further notes that the LRA 2010 does not appear to contain a definition of discrimination. It draws the Government’s attention to paragraph 743 of its 2012 General Survey on the fundamental Conventions, in which the Committee recalled that clear and comprehensive definitions of discrimination in employment and occupation are critical in identifying and addressing the many manifestations in which it may occur. Article 1(1)(a) of the Convention defines discrimination as “any distinction, exclusion or preference made on the basis of [certain grounds], which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation”. Through this broad definition, the Convention covers all discrimination that may affect equality of opportunity and treatment. Any discrimination – in law or in practice, direct or indirect – falls within the scope of the Convention. The Committee further recalls that when legal provisions are adopted, they should include at least all of the grounds of discrimination enumerated in Article 1(1)(a) of the Convention. Consequently, the Committee asks the Government to:

• (i) consider amending article 7 of the draft Constitution to ensure that the grounds of race, national extraction and social origin are included as prohibited grounds of discrimination;
• (ii) include a definition of the term “discrimination” contained in section 3 of the Labour Relations Act (2010);
• (iii) confirm that the grounds of race, colour, sex, religion, political opinion, and national extraction would be included in the terms “any other discriminatory basis” of section 3 of the Labour Relations Act (2010) and revise section 3 to make that apparent;
• (iv) provide information on the concrete measures taken to ensure that direct and indirect discrimination on all of the grounds enumerated in Article 1(1)(a) of the Convention are prohibited, in law and in practice.

Articles 1 and 2. Discrimination on the basis of race, colour or national extraction. Sub-Saharan migrant workers. In its previous comments, the Committee observed the lack of measures taken by the Government to address discrimination against migrant workers, especially those originating from sub-Saharan Africa, on the basis of race, colour or national extraction in employment and occupation and to provide information on the steps taken to prevent and eliminate the occurrence of ethnic or racial discrimination in employment and occupation. The Committee notes that the Government’s report is silent on this point. The Committee notes, from the 2017 Report of the UNHCHR on the situation of human rights in Libya, that Sub-Saharan Africans are especially vulnerable to abuse as a result of racial discrimination (A/HRC/34/42, paragraph 45). The Committee further takes note of the statement of the United Nations Committee on the Elimination of Racial Discrimination (CERD) at its ninety-fourth session in 2017 under its Early Warning and Urgent Action Procedures, and deeply deplores that black persons from sub-Saharan countries are being sold in slave markets in Libya, and that they are subject to colour-based racial discrimination. With regard to the forced labour practices involving sub-Saharan migrant workers in Libya, the Committee refers to its detailed comments under the Forced Labour Convention, 1930 (No. 29). The Committee urges the Government to take immediate measures to address the situation of racial and ethnic discrimination against migrant workers originating from sub-Saharan Africa (including women migrant workers), in particular to bring an end to forced labour practices. It also asks the Government to provide detailed information on all of the measures it is taking to prevent and eliminate the occurrence of ethnic or racial discrimination in law and in practice in all aspects of employment and occupation. Further, the Government is asked to provide detailed information on the measures it is taking to promote tolerance, understanding and respect between Libyan citizens and workers from other African countries.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to supply full particulars to the Conference at its 108th Session and to reply in full to the present comments in 2019.]