Handbook of procedures relating to international labour Conventions and Recommendations

III. Ratification of Conventions and acceptance of obligations

Procedure

19. Article 19 of the Constitution provides:

5.

...

(d) if 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.

20. 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 must nevertheless: (Endnote_1)

(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.

21. 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 adopted up to the 91st Session of the Conference (2003) that are open for ratification are as follows: (Endnote_2)

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

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

(iii) Convention No. 118: Equality of Treatment (Social Security), 1962 - Article 2, paragraph 3; (Endnote_3)

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

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

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

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

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

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

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

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

(xii) Convention No. 183: Maternity Protection, 2000 - Article 4, paragraph 2.

22. 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 adopted up to the 91st Session of the Conference (2003) which are still open for ratification (Endnote_4) are as follows:

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

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

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

(iv) Convention No. 81: Labour Inspection, 1947 - Article 25, paragraph 1; Protocol of 1995 - Article 2, paragraph 1;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(xx) Convention No. 185: Seafarers' Identity Documents (Revised), 2003 - Article 9.

23. For all the cases referred to in paragraphs 21 and 22 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, (Endnote_5) 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: (Endnote_6)

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

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

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

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

(v) Convention No. 176: Safety and Health in Mines, 1995 - Article 2;

(vi) Convention No. 181: Private Employment Agencies, 1997 - Article 2, paragraph 7;

(vii) Convention No. 183: Maternity Protection, 2000 - Article 2, paragraph 7;

(viii) Convention No. 184: Safety and Health in Agriculture, 2001 - Article 3.

24. 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.

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

(iii) Protocol of 1995 to the Labour Inspection Convention, 1947;

(iv) Protocol of 1996 to the Merchant Shipping (Minimum Standards) Convention, 1976;

(v) Protocol of 2002 to the Occupational Safety and Health Convention, 1981.

25. Conventions contain various provisions ensuring flexibility (see paragraphs 8 and 9 above), including some specifically enabling ratifying States to limit or qualify the obligations assumed on ratification (paragraphs 21-24). However, no limitations on the obligations of a Convention other than those specifically provided for (i.e. no reservations) are possible. (Endnote_7)

26. The final provisions of all Conventions contain Articles on the registration of ratifications by the Director-General, their notification to member States and the communication of 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. Declarations and other acts accepting or modifying obligations referred to in paragraphs 21-24 above are dealt with in the same way.

27. 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.

28. 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. (Endnote_8) This means ensuring their implementation in practice, as well as giving them effect in law or other means that are in accordance with national practice (such as court decisions, arbitration awards or collective agreements).

29. 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 laws or regulations 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.

30. 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.

31. 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. (Endnote_9)

32. 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.

33. The Office publishes a report to the Conference (Endnote_10) listing ratifications by Convention and by State. Regularly updated information on ratifications and denunciations are also available on the Office's web site.

Endnotes