Handbook of procedures relating to international labour Conventions and Recommendations - 8

VII. Role of employers' and workers' organizations

59. Communication of reports and information to employers' and workers' organizations. By virtue of the constitutional obligations on all member States,⁶⁸ representative organizations of employers and workers have to receive copies of:

(a) information communicated to the Office concerning measures taken to submit Conventions and Recommendations to the competent national authorities;

(b) reports on the application of ratified Conventions;

(c) reports on unratified Conventions and on Recommendations.

In addition, the Office procedures in relation to these obligations⁶⁹ endeavour to ensure that national organizations receive copies of relevant comments of the supervisory bodies and the requests for reports.

60. Consultation of representative organizations. Convention No. 144 and Recommendation No. 152 provide for tripartite consultations on:

(a) government replies to questionnaires and comments on proposed new instruments to be discussed at the Conference;

(b) proposals to be made to the competent authorities when Conventions and Recommendations are submitted to them;

(c) questions arising out of reports on ratified Conventions;⁷⁰

(d) measures relating to unratified Conventions and Recommendations;⁷¹

(e) denunciation of Conventions.

61. Transmission of comments by employers' and workers' organizations. Any employers' or workers' organization -- whether or not it has received copies of government reports -- may at any time transmit its comments on any of the matters arising in connection with paragraphs 59 and 60 above. The Committee of Experts and the Conference Committee have stressed the value of such comments as a means of assisting them, in particular, in assessing the effective application of ratified Conventions.

62. Participation in the Conference. Through their presence at the International Labour Conference, and particularly in the Committee on the Application of Standards, representatives of employers' and workers' organizations may raise matters concerning the discharge of standards-related obligations.

VIII. Interpretation of Conventions and Recommendations

63. Interpretation by the International Court of Justice. The International Court is, by virtue of article 37, paragraph 1, of the Constitution, which reads as follows, considered the only body competent to give authoritative interpretations of ILO Conventions and Recommendations:⁷²

Any question or dispute relating to the interpretation of this Constitution or of any subsequent Convention concluded by the Members in pursuance of the provisions of this Constitution shall be referred for decision to the International Court of Justice.

64. Informal opinion of the International Labour Office. Governments which are in doubt as to the meaning of particular provisions of an ILO Convention or Recommendation may request the Office to express its opinion. The Office, always with the reservation that it has no special authority under the Constitution to interpret Conventions and Recommendations, has assisted governments when asked for its opinion.⁷³ Where the request is for a formal or official opinion or the issue raised is likely to be of general interest, a Memorandum by the International Labour Office will be published in the Official Bulletin, containing the Office's opinion. A simple letter of reply will normally be sent by the Office in cases where a formal or official opinion is not specifically requested.

65. Explanations by the supervisory bodies. Explanations as to the scope and meaning of provisions of Conventions may be found in the reports of the Committee of Experts and the Conference Committee on the Application of Standards, Commissions of Inquiry appointed under article 26 of the Constitution, the Governing Body Committee on Freedom of Association and the Fact-Finding and Conciliation Commission on Freedom of Association.⁷⁴

IX. Revision of Conventions and Recommendations

66. Nature of revision of Conventions. Formal revision (including "partial" revision) may involve the adoption of a new self-contained Convention. However, in some cases, partial revision has been effected through the adoption of (optional) provisions in a Convention or Protocol: in these, it is expressly stated that they constitute a partial revision of the earlier Convention, and they may be regarded as supplementing rather than replacing it.⁷⁶ Such cases of revision proper have to be distinguished from amendments made to provisions incorporated (sometimes merely by reference) into certain Conventions, which, by virtue of the terms of those Conventions themselves, are possible either without an act of the Conference or by specific decision of the Conference.⁷⁷

67. Method and effect of revision of Conventions. A Convention is not regarded as revising an earlier one unless the intention to revise is expressly or implicitly stated in the title, preamble or operative provisions of the later Convention.

(a) Conventions Nos. 1 to 26. These contain no provisions as to the consequences of the adoption or ratification of a revising Convention. The adoption of a revising Convention by the Conference in itself therefore neither closes the earlier one to further ratifications nor involves automatic denunciation of it.⁷⁸

(b) Conventions Nos. 27 and after. These contain a Final Article specifying unless the new revising Convention provides otherwise the following consequences of the ratification and coming into force of a later revising Convention:

(1) ratification by a Member of the revising Convention will involve the automatic denunciation by it of the earlier Convention from the date on which the revising Convention comes into force;

(2) from the date when the new revising Convention comes into force, the earlier Convention will be closed to further ratification;

(3) the earlier Convention, once it has come into force, will remain in force as it stands for Members which have ratified it but not the later revising Convention.

(c) Alternative provisions. The Final Articles of each Convention have to be referred to in order to determine whether the above provisions apply.

68. Revision of Recommendations. Since Recommendations cannot have the obligatory force of Conventions, revision of them has lesser consequences. Nevertheless, the Conference has on occasion included in a Recommendation an indication that it revises or supersedes an earlier one. In those cases, it may be considered that reference should be made to the later Recommendation only.

X. Denunciation of Conventions

69. Conditions for denunciation. Every Convention⁷⁹ contains an Article determining the conditions in which States which have ratified it may denounce it (i.e. terminate their obligations).⁸⁰ Each Convention's precise terms have to be referred to, but in general:

(a) Conventions Nos. 1 to 25. Denunciation is possible at any time after an initial period of five or ten years (as indicated) of the Convention first coming into force;

(b) Conventions Nos. 26 and after. Denunciation is possible after an initial period of five or (more often) ten years (as indicated) of the Convention first coming into force, but only during an interval of one year. Denunciation similarly becomes possible again after subsequent periods of five or ten years, as indicated.

70. Consultation of employers' and workers' organizations.

(a) The Governing Body has stated as a general principle that, in any case in which the denunciation of a ratified Convention may be contemplated, it is desirable for the government, before taking a decision, fully to consult the representative organizations of employers and workers on the problems encountered and the measures to be taken to resolve them.⁸¹

(b) Article 5(1)(e) of Convention No. 144 and Paragraph 5(f) of Recommendation No. 152 provide for consultation of representatives of employers' and workers' organizations on any proposals for the denunciation of ratified Conventions.

71. Form of communication of denunciation. Denunciation, according to the relevant Article in each Convention, is effected by an act communicated to the Director-General of the International Labour Office for registration. The instrument of denunciation must:⁸²

(a) clearly identify the Convention being denounced;

(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 indicate that it constitutes a formal denunciation of the Convention concerned.

72. Office procedures

(a) On becoming aware of any case in which the denunciation of a Convention is contemplated, the Office will draw the attention of the government concerned to the general principle as to consultation referred to in paragraph 70(a), above.

(b) In any case in which a government communicates the denunciation of a Convention without any indication of the reasons which have led to its decision, the Office will request the government concerned to provide such indications for the information of the Governing Body.

(c) Registration of denunciations. Every denunciation registered by the Director-General is notified to the Secretary-General of the United Nations, reported to the Governing Body and published in the Official Bulletin.

73. Effect of denunciation. Denunciations take effect in accordance with the Final Articles of each Convention (usually one year after they are registered by the Director-General).⁸³

XI. Special procedures

A. Representations as to the observance of ratified Conventions

74. Constitutional provisions. Articles 24 and 25 of the Constitution read as follows:(83bis)

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.

75. Procedure for the examination of representations. Under the special Standing Orders:⁸⁴

(a) the Office acknowledges receipt and informs the government concerned;

(b) the matter is brought before the Officers of the Governing Body;

(c) the Officers report to the Governing Body on the receivability of the representation, for which purpose it must --

(i) be communicated to the ILO in writing;

(ii) come from an industrial association of employers or workers;

(iii) make specific reference to article 24 of the Constitution;

(iv) concern a Member of the ILO;⁸⁵

(v) refer to a Convention to which the Member in question is a party;

(vi) indicate in what respect it is alleged that that Member has failed to secure the effective observance within its jurisdiction of that Convention;

(d) the Governing Body reaches a decision on the receivability without discussing the substance of the matter;

(e) if the representation is receivable, the Governing Body either sets up a tripartite committee to examine the matter according to rules laid down in the Standing Orders; or, if the matter relates to a Convention dealing with trade union rights, it may refer it to the Committee on Freedom of Association;

(f) the committee reports to the Governing Body, describing the steps taken to examine the representation and giving its conclusions and recommendations for decisions to be taken by the Governing Body;

(g) the government concerned is invited to be represented in the Governing Body consideration of the matter;

(h) the Governing Body decides whether to publish the representation and any government statement in reply and notifies the association and government concerned.

⁶⁷ See also the Office's Note on the Role of Employers' and Workers' Organizations in the Implementation of ILO Conventions and Recommendations (paper D.40.1987). As to the role of employers' and workers' organizations in relation to special procedures, see paras. 74 to 82 below.

⁶⁸ See paras. 15, 38 and 50, above.

⁶⁹ See paras. 13, 40 and 48 above.

⁷⁰ Under Recommendation No. 152, consultations should also take place on questions arising out of article 19 reports (on submission to the competent authorities and on unratified Conventions and Recommendations); and, subject to national practice, on questions of legislation to give effect to Conventions (particularly when ratified) and Recommendations.

⁷¹ This question should be re-examined "at appropriate intervals".

⁷² Only one formal interpretation has at the time of printing been given: see Official Bulletin, Vol. XVII (1932), p. 179.

⁷³ In practice, the Office endeavours to assist employers' and workers' organizations similarly.

⁷⁴ Given that there are special procedures for complaints alleging infringement of freedom of association, the Office has generally considered it inappropriate to express an opinion on the interpretation of standards in that field (Minutes of the Governing Body, 122nd Session (1953), p. 110).

⁷⁵ As for the revision procedure, see paras. 5 and 45, above.

⁷⁶ Examples of partial revisions include the Final Articles Revision Conventions (Nos. 80 and 116).

⁷⁷ See, in particular, social security Conventions Nos. 102, 118, 121, 128 and 130. The International Standard Industrial Classification of All Economic Activities incorporated in those Conventions is amended by the Economic and Social Council of the United Nations; the scheduled List of Occupational Diseases in Convention No. 121 is amended by a two-thirds majority decision of any session of the International Labour Conference at which the matter is included on the agenda.

⁷⁸ A revising Convention may provide that ratification of it, under given conditions, constitutes an act of denunciation of the earlier Convention (e.g. Convention No. 138 (Article 10(5)), as regards Conventions Nos. 5, 7, 10 and 15). It may be necessary to await the first article 22 report under Convention No. 138, in order to know whether the earlier Conventions are denounced. As to denunciation, see further below, paras. 69 to 73.

⁷⁹ Except the Final Articles Revision Conventions (Nos. 80 and 116).

⁸⁰ Such Article is additional to one providing for automatic denunciation by virtue of ratification of a revising Convention -- as to which, see para. 67, above. In three cases (Conventions Nos. 102, 128 and 148), denunciation is possible also in respect of separate Parts only.

⁸¹ Minutes of the Governing Body, 184th Session (November 1971), pp. 95 and 210.

⁸² Cf. requirements for instrument of ratification in para. 19 above.

⁸³ It is possible to denounce a Convention (according to the usual procedures described here) and "re-ratify" it simultaneously. This is a means by which a State which is bound by a Convention but has omitted to make use of flexibility clauses which, under the terms of the Convention, are now no longer available may be released from obligations which it regards as too strict and yet immediately commit itself to more flexible obligations open to States newly ratifying.

^{83bis. An item concerning the possible revision of this procedure was due to be considered by the Governing Body at its 271st Session (March 1998)}

⁸⁴ Adopted by the Governing Body -- see Official Bulletin, Vol.LXIV, 1981, Series A, No. 1, pp. 93-95: an offprint is available.

⁸⁵ Or former Member remaining bound by the Convention in question.