Handbook of procedures relating to international labour Conventions and Recommendations - 4

III. Ratification of Conventions and acceptance of obligations

18. Procedure. Article 19 of the Constitution provides:

5(d) [I]f the Member obtains the consent of the authority or authorities within whose competence the matter lies, it will communicate the formal ratification of the Convention to the Director-General and will take such action as may be necessary to make effective the provisions of such Convention.

19. Form of communication of ratification. No specific requirements as to form are laid down in the Constitution. Each State will have its own constitutional provisions and practice. In order to be registered, an instrument of ratification nevertheless must:²¹

(a) clearly identify the Convention being ratified;

(b) be an original document (on paper, not a facsimile or photocopy) signed by a person with authority to engage the State (such as the Head of State, Prime Minister, Minister responsible for Foreign Affairs or Labour);

(c) clearly convey the Government's intention that the State should be bound by the Convention concerned and its undertaking to fulfil the Convention's provisions, preferably with a specific reference to article 19(5)(d) of the ILO Constitution.

20. Compulsory declarations to be included in or to accompany ratifications. Several Conventions require declarations to be made either in the instrument of ratification itself or in an accompanying document. If no such declaration is received by the Office, the ratification cannot be registered. In some cases, a compulsory declaration will define the scope of the obligations accepted or give other essential specifications. In all these cases, the substance of the declaration has to be considered before the instrument of ratification is prepared and the necessary indications either included in or attached to the instrument of ratification. The Conventions in question (including those adopted up to the 81st Session of the Conference (1994)) are as follows:²²

(i) Convention No. 96: Fee-Charging Employment Agencies (Revised), 1949 -- Article 2(1);

(ii) Convention No. 102: Social Security (Minimum Standards), 1952 -- Article 2(b);

(iii) Convention No. 115: Radiation Protection, 1960 -- Article 3(3)(c);

(iv) Convention No. 118: Equality of Treatment (Social Security), 1962 -- Article 2(3);²³

(v) Convention No. 123: Minimum Age (Underground Work), 1964 -- Article 2(2);

(vi) Convention No. 128: Invalidity, Old-Age and Survivors' Benefit, 1967 -- Article 2(2);

(vii) Convention No. 132: Holidays with Pay (Revised), 1970 -- Article 3(2) and (3) and Article 15(2);

(viii) Convention No. 138: Minimum Age, 1973 -- Article 2;

(ix) Convention No. 146: Seafarers' Annual Leave with Pay, 1976 -- Article 3(2) and (3);

(x) Convention No. 160: Labour Statistics, 1985 -- Article 16(2);

(xi) Convention No. 165: Social Security (Seafarers) (Revised), 1987 -- Article 4;

(xii) Convention No. 173: Protection of Workers' Claims (Employer's Insolvency), 1992 -- Article 3(1).

21. Optional declarations to be included in or to accompany ratifications. In the case of some Conventions (and Protocols) a declaration is needed only where the ratifying State wishes to make use of permitted exclusions, exceptions or modifications. When this applies, the declaration must be included in or attached to the instrument of ratification: if the instrument of ratification is received by the Office without any qualifying declaration, the ratification will be duly registered as it stands and the exclusion, exception or modification will no longer be available. The Conventions in question (including those adopted up to the 81st Session of the Conference (1994)) are as follows:

(i) Convention No. 24: Sickness Insurance (Industry), 1927 -- Article 10(2);

(ii) Convention No. 25: Sickness Insurance (Agriculture), 1927 -- Article 9(2);

(iii) Convention No. 77: Medical Examination of Young Persons (Industry), 1946 -- Article 9(1);

(iv) Convention No. 78: Medical Examination of Young Persons (Non-Industrial Occupations), 1946 -- Article 9(1);

(v) Convention No. 79: Night Work of Young Persons (Non-Industrial Occupations), 1946 -- Article 7(1);

(vi) Convention No. 81: Labour Inspection, 1947 -- Article 25(1);

(vii) Convention No. 90: Night Work of Young Persons (Industry) (Revised), 1948 -- Article 7(1);

(viii) Convention No. 97: Migration for Employment (Revised), 1949 -- Article 14(1);

(ix) Convention No. 102: Social Security (Minimum Standards), 1952 -- Article 3(1);

(x) Convention No. 103: Maternity Protection (Revised), 1952 -- Article 7(1) and (2);

(xi) Convention No. 106: Weekly Rest (Commerce and Offices), 1957 -- Article 3(1);

(xii) Convention No. 109: Wages, Hours of Work and Manning (Sea) (Revised), 1958 -- Article 5(1);

(xiii)

(a) Convention No. 110: Plantations, 1958 -- Article 3(1)(b);

(b) Protocol to Convention No. 110 -- Article 1;

(xiv) Convention No. 119: Guarding of Machinery, 1963 -- Article 17(1);

(xv) Convention No. 121: Employment Injury Benefits, 1964 -Article 2(1); Article 3(1);

(xvi) Convention No. 128: Invalidity, Old-Age and Survivors' Benefits, 1967 -- Article 4(1); Article 38; Article 39;

(xvii) Convention No. 130: Medical Care and Sickness Benefits, 1969 -- Article 2(1); Article 3(1); Article 4(1);

(xviii) Convention No. 138: Minimum Age, 1973 -- Article 5(2);

(xix) Convention No. 143: Migrant Workers (Supplementary Provisions), 1975 -- Article 16(1);

(xx) Convention No. 148: Working Environment (Air Pollution, Noise and Vibration), 1977 -- Article 2;

(xxi) Convention No. 153: Hours of Work and Rest Periods (Road Transport), 1979 -- Article 9(2);

(xxii) Convention No. 168: Employment Promotion and Protection (Unemployment), 1988 -- Article 4(1); Article 5(1) and (2);

(xxiii) Convention No. 173: Protection of Workers' Claims (Employer's Insolvency), 1992 -- Article 3(3).

22. Optional declarations to extend obligations under a Convention. For all the cases²⁴ referred to in paragraphs 20 and 21 above, a Member which has made use of the option to limit the scope of the Convention's application to it may subsequently modify, cancel or withdraw such limitation: this is done by a further declaration, notification or statement of renunciation in a report under article 22 of the Constitution,²⁵ as the case may be according to each Convention. In addition, the following provide for declarations to extend the scope of the Convention's application by the State concerned either at the time of ratification or at any subsequent time: ²⁶

(i) Convention No. 129: Labour Inspection (Agriculture), 1969 -- Article 5(1);

(ii) Convention No. 146: Seafarers' Annual Leave with Pay, 1976 -- Article 2(4), (5) and (6);

(iii) Convention No. 172: Working Conditions (Hotels and Restaurants), 1991 -- Article 1(2) and (3).

(iv) Protocol of 1996 to Convention No. 147: Merchant Shipping (Minimum Standards) Convention, 1976 -- Article 3.

23. Ratification of Protocols. A Protocol is an instrument which partially revises a Convention. It is open to ratification by a State already bound by or simultaneously ratifying and becoming bound by the Convention in question. Two Protocols so far adopted by the Conference effectively introduce greater flexibility into the two respective Conventions. They are:

(i) Protocol of 1990 to Convention No. 89: Night Work (Women) Revised, 1948;

(ii) Protocol of 1982 to Convention No. 110: Plantations, 1958.

Two other Protocols extend the obligations under the Conventions which they partially revise:

(iii) Protocol of 1995 to Convention No. 81: Labour Inspection, 1947.

(iv) Protocol of 1996 to Convention No. 147: Merchant Shipping (Minimum Standards) Convention, 1976.

²¹ An instrument of ratification in these terms must always be communicated to the Director-General of the ILO, in order for the ratification to become effective in international law. If this is not done, it may be that a Convention is regarded by a State as "ratified" in its internal legal system, but this will be of no effect in the international legal system. For compulsory declarations see para. 20, below. An instrument ratification might thus contain the following statement: "The Government of ... hereby ratifies the ... Convention and undertakes, in accordance with article 19, para. 5(d), of the Constitution of the ILO, to fulfil its obligations in this respect" and be signed by a person authorized to engage the State.

²² Note also that the Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147), is not open to ratification by States which have not fulfilled the requirements to which ratification is made subject by Article 5(1), unless they give the undertaking required under Article 5(2).

²³ (a) When a member State ratifies this Convention, it should also communicate to the Office a confirmation in terms of Article 2(1) that it has "in effective operation legislation covering its own nationals within its own territory" in the branch or branches of social security in respect of which it is accepting the obligations of the Convention. A similar confirmation should be given in the case of a notification of acceptance of further obligations under Article 2(4). (b) Each Member accepting the obligations of the Convention in respect of any branch of social security which has legislation providing for benefits of the type indicated in Article 2(6)(a) or (b) must at the time of ratification communicate to the Office a statement indicating such benefits. Under Article 2(7), a similar statement should be made on any subsequent notification of acceptance of the Convention's obligations under Article 2(4), or within three months of the adoption of relevant legislation. Though such statements are compulsory, they are for information purposes and failure to make them does not invalidate the ratification or notification.

²⁴ There is no provision to this effect in the cases of Conventions Nos. 24 and 25.

²⁵ As to which reports, see below, paras. 33 to 36.

²⁶ This does not include cases where determinations by a Member may have the effect of extending the obligations of a Convention, although there is no provision for a formal declaration, e.g. Convention No. 111, Article 1(1)(b).