Employers' Handbook on ILO Standards-related Activities

APPENDIX 6
tion of a Convention, undertook the moral commitment to bring about its ratification. 27 Only
this can explain the presence – which today seems so incongruous (c) of special provisions
aimed at certain countries expressly mentioned in a number of the first Conventions. 28 It is in
this context, that one can also understand better the conviction, so widely shared before the
Second World War, that international labour legislation should contribute effectively towards
equalizing conditions for competition (and a contrario the criticisms of the Office made by the
British employers at the beginning of the 1930s that it had not succeeded in adequately promoting
ratifications more than ten years after the creation of the Organization). 29 It might admittedly
be conceded that a government could in all good faith and in full knowledge of its responsibilities
vote for a text knowing well that it would be impossible to ratify it for the time being,
provided that it felt that this instrument might further the cause of international labour legislation
and that it envisaged ratifying it in the longer term. This reasoning cannot, however, be
carried too far because it might all too well create a situation – unfortunately far too common
today – in which the Convention would become obsolete before having received enough ratifications
– and even sometimes before entering into effect! Interestingly, there has been a certain
change of attitude at the Conference; some member States have abstained or voted against a
text, explaining that they took this stand because they did not want their intentions to be misconstrued.
One way of dealing with this inconsistency has, although in an entirely different context,
been examined by successive working parties examining the revision of standards. They have
proposed, for instance, increasing the number of ratifications required for Conventions to enter
into force. But even supposing that this idea was accepted and that the number of ratifications
also increased, it would only take care of the consequences rather than the causes. Yet it should
not be too difficult to return to the causes themselves, merely by using more systematically the
procedure provided for under the Constitution to confront certain governments with their inconsistencies.
Indeed, under article 19(5)(b) 30 of the Constitution, Members are obliged to
bring the Convention before the competent authority and, subsequently, under article 19(5)(c),
give account of the measures they have taken. In so far as the intention of the constitutional
provisions is perfectly clear, it would be logical that governments having voted in favour of the
Convention should be called upon to give account either, in the first case, of the recommendation
they made to the competent authority or, in the second case, of the reasons why ratification
has not occurred. This very moderate requirement should not discourage member States from
voting for a text that they consider as a sound basis for legislation even if they are unable to
ratify it at once; it should merely encourage them to be more consistent in their attitude, both
with regard to their recommendation to the competent authorities and with their subsequent
action.
The Workers have been unremitting in their preference for the adoption of Conventions,
despite the low level of ratifications; they have argued, without being contradicted by the Employers,
that even unratified Conventions can have an influence on national law and practice. In
itself, this statement is difficult to deny, as the Director-General already noted (with regret) in
his Report to the 27th Session (1945!) of the Conference: “it may well be ... that at certain
periods in the history of the Organization, the form of the Convention acquired an undue
symbolical importance, as the result of which it came to be used in cases in which a Recommendation
would have been more appropriate”. 31 But this approach does not stand up to close
scrutiny and brings damaging repercussions for the efficiency and credibility of standard-setting
activities as a whole in its wake. As pointed out more than 50 years ago, “it tends to discredit
the Convention technique by resulting in widespread failure to ratify, and it equally tends
to discredit the Recommendation by gratuitously implying that because a Recommendation is
not an instrument for the creation of obligations it is therefore ineffective as an instrument
designed to influence policy and legislation by the definition of an international standard”. 32
I believe it is important to explain briefly why.
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