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Handbook of procedures relating to international labour Conventions and Recommendations - 524. Inadmissibility of reservations. Conventions contain various provisions ensuring flexibility (see paragraphs 7 and 8, above), including some specifically enabling ratifying States to limit or qualify the obligations assumed on ratification (paragraphs 20 to 23). However, no limitations on the obligations of a Convention other than those specifically provided for (i.e. no reservations) are possible.27 25. Registration of ratifications and acceptances of obligations. The Final Articles of all Conventions contain provisions for the Director-General to register ratifications, notify member States of them and communicate particulars to the Secretary-General of the United Nations for registration in accordance with article 102 of the United Nations Charter. All ratifications are reported to the Governing Body and are notified to member States through publication in the Official Bulletin. The declarations and other acts accepting or modifying obligations referred to in paragraphs 20 to 23 above are dealt with in the same way. 26. Entry into force. Each Convention contains a provision as to how it comes into force. Most often, since 1928, Conventions come into force 12 months after registration of the second ratification and afterwards for each State 12 months after its ratification. Several maritime and some other Conventions contain different provisions. Until a Convention comes into force, it can have no effect in international law. 27. Obligations arising out of ratification. The obligation under article 19, paragraph 5(d), of the Constitution is to "take such action as may be necessary to make effective the provisions" of a ratified Convention.28 This means ensuring implementation in practice, as well as giving effect in law. 28. Incorporation in internal law. In some countries, the Constitution gives the force of internal law to ratified Conventions. In those cases, it will still be necessary to take specific measures: (a) to eliminate any conflict between the provisions of the Convention and earlier national law and practice; (b) to give effect to any provisions of the Convention which are not self-executing (e.g. provisions requiring given matters to be prescribed by national law or regulation or determined by the competent authorities or requiring special administrative arrangements); (c) to prescribe penalties, where appropriate; (d) to ensure that all interested persons and authorities (e.g. employers, workers, labour inspectors, courts, tribunals, other administrative bodies) are informed of the incorporation of the Convention into internal law and where necessary given guidance. 29. Consultation of employers' and workers' organizations. Paragraph 5(c) of Recommendation No. 152 provides for consultation of representatives of employers' and workers' organizations, subject to national practice, on the preparation and implementation of legislative or other measures to give effect to Conventions -- especially when ratified -- and Recommendations. This applies in particular as regards measures implementing provisions as to consultation and collaboration with employers' and workers' representatives. 30. Non-metropolitan territories. Article 35 of the Constitution provides for declarations to be made by member States as to the application of Conventions to non-metropolitan territories for whose international relations they are responsible.29 31. Effect of withdrawal from the ILO. Article 1, paragraph 5 (last sentence), of the Constitution provides: ... When a Member has ratified any international labour Convention, ... withdrawal [from the Organization] shall not affect the continued validity for the period provided for in the Convention of all obligations arising thereunder or relating thereto. 32. Lists of ratifications. The Office publishes a report to the Conference30 listing ratifications by Convention and by State.
33. Obligation to report. Article 22 of the Constitution31 provides: Each of the Members agrees to make an annual report to the International Labour Office on the measures which it has taken to give effect to the provisions of Conventions to which it is a party. These reports shall be made in such form and shall contain such particulars as the Governing Body may request. 34. Reporting system. The following system of reporting was approved by the Governing Body in November 1993,32 so as to come into force in 1996 for a trial period of five years:33 (a) First and second reports. A first detailed34 report is requested the year following that in which a Convention comes into force in a given country. A second detailed report is requested two years after the first (or one year after, if that is the year when a periodic report is in any event due from all countries bound by that Convention). (b) Periodic reports. Subsequent reports are requested periodically on one of the following bases, on the understanding that the Committee of Experts on the Application of Conventions and Recommendations may request detailed reports outside the normal periodicity. (i) Two-yearly reports. Detailed reports are automatically requested every two years on the following ten Conventions, regarded as priority Conventions:35
(ii) Five-yearly reports. Simplified36 reports are requested every five years on other Conventions according to the table below. A detailed report is nevertheless required:
(c) Non-periodic reports. Non-periodic detailed reports on the application of a ratified Convention are required: (i) when the Committee of Experts, of its own initiative or that of the Conference Committee on the Application of Standards, so requests; (ii) when the Committee of Experts is called on to consider the follow-up to proceedings instituted under articles 24 or 26 of the Constitution or before the Committee on Freedom of Association;37 (iii) when comments have been received from national or international employers' or workers' organizations and the Committee of Experts considers that a detailed report is warranted in the light of the government's comments in reply or the fact that the government has not replied; (iv) when no report is supplied or no reply is given to comments made by the supervisory bodies (given that, where there is repeated failure to reply or the reply is manifestly inadequate, the Committee of Experts may examine the matter on the basis of available information). (d) Exemption from reporting. Subject to the conditions and safeguards laid down by the Governing Body,38 no reports are requested on Conventions which do not correspond to present-day needs.39 35. Detailed reports. A detailed report should be in the form approved by the Governing Body for each Convention. The form sets out the substantive provisions of the Convention, information on which has to be supplied. It includes specific questions as to some of the substantive provisions, designed to aid in the preparation of information which will enable the supervisory bodies to appreciate the manner in which the Convention is applied. A typical report form also contains questions on the following matters: (a) Laws, regulations, etc. All relevant legislation or similar provisions should be listed and -- unless this has already been done -- copies supplied. (b) Permitted exclusions, exceptions or other limitations. Several Conventions allow given categories of people, economic activities or geographical areas to be exempted from application, but require a ratifying State which intends to make use of such limitations to indicate in its first article 22 report the extent to which it has recourse to them. It is therefore essential for the first report to include indications in this respect, since, if it does not, the limitations will no longer be possible. The same Conventions may call for information to be included in subsequent article 22 reports indicating the extent to which effect is nevertheless given to the Convention in respect of the excluded persons, activities or areas. (c) Implementation of the Convention. Detailed information should be given for each Article on the provisions of legislation or other measures applying it. Some Conventions ask for particular information to be included in reports (as to the practical application of the Convention or certain Articles or as to application in cases of exclusion). (d) Effect of ratification. Information is asked for as to any constitutional provisions giving the ratified Convention the force of national law and any additional measures taken to make the Convention effective.40 (e) Comments by the supervisory bodies. Where the Committee of Experts or the Conference Committee on the Application of Standards have made comments or asked for information, the report should indicate the action taken and supply the information wanted. (f) Enforcement. Governments are asked to indicate the authorities responsible for administration and enforcement of the relevant laws, regulations, etc., and to supply information on their activities. Copies of the authorities' own reports may be appended or -- if they have already been supplied -- referred to. (g) Judicial or administrative decisions. Governments are asked to supply either a copy or a summary of relevant decisions. (h) General appreciation. Governments are asked to give a general assessment of how the Convention is applied, with extracts from any official reports, statistics of workers covered by the legislation or collective agreements, details of contraventions of the legislation, prosecutions, etc. (i) Observations of employers' and workers' organizations. Full information together with any government response should be given.41 (j) Communication of copies of reports to employers' and workers' organizations. The names of the organizations to which copies are sent should be given.42 36. Simplified reports. These will contain only: (a) Laws, regulations, etc.: information on whether any changes have occurred in legislation and practice affecting the application of the Convention and on the nature and effect of such changes; (b) Implementation of the Convention: statistical information or other information and communications prescribed by the Convention in question (including required information on any permitted exclusions); (c) Communication of copies of reports to employers' and workers' organizations: an indication of the employers' and workers' organizations to which copies of the simplified report have been addressed; (d) Observations of employers' and workers' organizations: comments received from employers' and workers' organizations to which a copy of the simplified report has been addressed. 37. Consultation of employers' and workers' organizations. Article 5(1)(d) of Convention No. 144 and Paragraph 5(e) of Recommendation No. 152 provide for consultation of representatives of employers' and workers' organizations on questions arising out of reports to be made on ratified Conventions. 38. Communication of reports to employers' and workers' organizations. Under article 23, paragraph 2, of the Constitution, copies of all reports on the application of ratified Conventions should be communicated to representative organizations of employers and workers. This may be done either prior to finalization of the report, inviting comments which can yet be taken into account, or at the same time as the reports are sent to the ILO. In any event, when forwarding their reports to the ILO, governments should indicate the organizations to which communication has been made. Those organizations may make any observations they wish on the application of ratified Conventions. 39. Observations of employers' and workers' organizations. Observations may be received by a government directly from an organization, concerning the implementation of a ratified Convention or relevant legislation. They may or may not relate specifically to one of the government's reports. Full details -- including, normally, a copy of the observations -- should be sent in the government's report, together with the government's response if any. Observations may alternatively be received by the Office straight from an organization: in this case, the Office acknowledges receipt and simultaneously forwards a copy to the government concerned, so that it might respond. 40. ILO procedures for requesting reports.43 (a) Letters requesting reports on the application of ratified Conventions are sent to governments each February, together with a list of the Conventions on which respectively detailed and simplified reports are due; the report forms adopted by the Governing Body in the case of the detailed reports; shorter questionnaires in the case of simplified reports; copies of observations and direct requests of the Committee of Experts to which replies are due; copies of any discussion of an individual case on which a report is due in the Conference Committee on the Application of Standards; and guidance notes on matters to be taken into account in preparing the reports. Copies of the requests for reports and related comments of the Committee of Experts are also sent to national organizations of employers and workers. (b) In accordance with the Governing Body decision, reports are requested to reach the Office between 1 June and 1 September at the latest each year.44 Reminders are sent to governments which do not transmit their reports on time, and the matter may be raised with government delegates at the June session of the Conference. ILO field offices may also be asked to assist by contacting governments concerned. (c) In response to the Committee of Experts' request, the Office, when it receives governments' reports, checks to see whether they contain information and documents in reply to any observations or direct requests of the Committee of Experts itself or observations of the Conference Committee. If they do not, the Office will, without entering into the substance of the matter, draw the attention of the government concerned to the need for a reply. The Office is also requested to write to governments concerned when reports are not accompanied by copies of relevant legislation, statistics or other documentation at issue and these are not otherwise available, and to ask them to send such documentation. The substance of information supplied is examined by the responsible supervisory bodies. 41. Summary. Under article 23, paragraph 1, of the Constitution, a summary of reports on the application of ratified Conventions has to be laid before the next meeting of the Conference. Such summary appears in an abbreviated, tabular form in Report III (Part 1A). In addition, the Office (through the secretariat of the Committee on the Application of Standards) makes copies of reports on ratified Conventions available for consultation at the Conference, if required. Notes: 27 See memorandum submitted by the ILO to the International Court of Justice in the Genocide Case (ILO Official Bulletin, Vol. XXXIV (1951), pp. 274-312). 28 As to the termination of obligations under a ratified Convention through denunciation, see paras. 69 to 73, below. 29 In 1964, the Conference adopted an instrument of amendment of the Constitution to replace article 35 with new provisions in respect of non-metropolitan territories to be inserted in article 19. That instrument of amendment has not come into force. 30 Report III (Part 2). 31 The obligation under article 22 to report on the application of ratified Conventions is distinct from various other obligations laid down by individual Conventions, requiring information (such as statistics or labour inspection reports) to be regularly supplied to the International Labour Office. The obligations under individual Conventions are independent and remain unaffected by changes in the article 22 reporting system described here. 32 See documents GB.258/6/19 (Appendix I); and, as to transitional measures, GB.261/LILS/4/4 (Nov. 1994). 33 It was decided that annual general reports would no longer be requested under article 22. 34 For the contents of a detailed report, see para. 35, below. 35 The Governing Body may periodically review the list of priority Conventions. 36 For the contents of a simplified report, see para. 36, below. 37 As to which, see below, paras. 74 to 82. 38 At its 229th Session (February-March, 1985). Paragraph 4 of document GB.229/10/9 reads as follows: (a) Should circumstances change so as to give renewed importance to any of the Conventions concerned, the Governing Body could again require detailed reports to be presented on their application. (b) Employers' and workers' organizations would remain free to present comments on problems encountered in the fields covered by the Conventions concerned. In accordance with established procedures, these comments would be considered by the Committee of Experts on the Application of Conventions and Recommendations, which could request such information (including a detailed report) as it might deem appropriate. (c) On the basis of information given in the general reports or otherwise at its disposal (for example, legislative texts), the Committee of Experts would be free at any time to make comments and to request information concerning the application of the Conventions concerned, including the possibility to ask for a detailed report. (d) The right to invoke the constitutional provisions relating to representations and complaints (articles 24 and 26) in respect of the Conventions concerned would remain unaffected. 39 The 21 Conventions currently regarded as falling into this category are Nos. 15, 20, 21, 28, 34, 35, 36, 37, 38, 39, 40, 43, 48, 49, 50, 60, 64, 65, 67, 86, 104. 40 See para. 28, above. 41 See para. 39, below. 42 See para. 38, below. 43 Procedures for the examination of reports are described in para. 54, below. 44 Governments may transmit their reports all together or in batches. The reports should cover the period up to the time when they are transmitted.    |
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