Employers' Handbook on ILO Standards-related Activities

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METHODS OF RENEWING ILS Abrogation, withdrawal and shelving of ILS Abrogation, withdrawal and shelving are methods of renewing the body of ILS by eliminating outdated and obsolete instruments which have already been replaced or where there is no intention to replace them: l The possibility of abrogating a Convention was introduced by the ILC only in 1997 in an amendment to the ILO Constitution (future art. 19, para. 9, ILO Constitution; since this amendment has not yet entered into force (see box below) this procedure cannot be used for the time being). According to this amendment, the ILC is enabled to abrogate, by a majority of two-thirds of the votes of delegates present, any Convention in force that is considered to have lost its purpose or no longer to make a useful contribution to attaining the ILO’s objectives. Before considering the abrogation of a particular Convention by the ILC, the GB should, as far as possible, reach a consensus on this question, or, if such a consensus cannot be reached, take a decision by a four-fifths majority of its members (art. 12bis, para. 2, Standing Orders of the GB). l Withdrawal concerns outdated Conventions which have not entered into force or which are no longer in force as a result of denunciations, or outdated Recommendations (art. 11 and 45bis, Standing Orders of the ILC). The above-mentioned rule concerning the decision by the GB on abrogation of ILS applies to withdrawals, too. For the first time, five outdated Conventions from the 1930s were withdrawn by the ILC in 2000; the withdrawal of a further 20 Recommendations is foreseen for the ILC in 2002. l Shelving of Conventions means that their ratification is no longer encouraged and that their publication in Office documents, studies and research papers will be modified. It also means that detailed reports on the application of these Conven- Status of ratification regarding the constitutional amendment on the abrogation of Conventions l According to art. 36 of the ILO Constitution, a constitutional amendment takes effect when it has been accepted or ratified by “two-thirds of the Members of the Organisation including five of the ten Members which are represented on the Governing Body as Members of chief industrial importance …”. l By July 2001, the constitutional amendment regarding the abrogation of Conventions has been ratified by 65 out of the necessary 117 Members and five out of the necessary five Members of chief industrial importance (for up-to-date figures, see the ILO website: www.ilo.org (Sitemap/Legal Services). tions will no longer be requested on a regular basis. However, shelving has no effect on the status of a Convention in the legal system of member States that have ratified them, nor does it remove the obligation for these States to implement the Convention. Consequently, shelved Conventions can still be the subject of exami- 41
42 EMPLOYERS’ HANDBOOK ON ILO STANDARDS-RELATED ACTIVITIES nation in ILO regular supervision, as well as of complaints/representations under ILO special supervisory procedures. The employers have welcomed the new abrogation and withdrawal procedures as important complements to the existing methods of renewing ILS. They expressed the hope that the constitutional amendment regarding abrogation will soon receive the necessary number of ratifications so that it can enter into force and be put in practice. From an employers’ viewpoint, it is also to be hoped that the four-fifths majority requirement for a GB decision to put an abrogation or withdrawal item on the ILC agenda will not turn out to be an obstacle to the use of this procedure. It should be noted that this requirement does not exist for the inclusion of standard-setting items on the agenda of the ILC. Pending the coming into effect of the above constitutional amendment regarding abrogation, in the employers’ view, the possibilities of shelving of outdated Conventions should be more fully exploited. Ratification of shelved Conventions should be actively discouraged by the Office and supervision of such instruments should be avoided, as far as possible. Denunciation of Conventions Renewal is also an issue for individual ILO member States wishing to keep up to date their obligations under ratified Conventions. Denunciation provides an important means to terminate obligations under Conventions which, in the view of a government, are outdated or no longer correspond to the needs of the country. In legal terms, it is the actus contrarius to the ratification of a Convention. There are two forms of denunciation: l Denunciations connected to the ratification of a revising Convention: The standard final articles as from Convention No. 27 usually provide that a ratified Convention is “automatically” denounced when a revising Convention (which has entered into force) is ratified. Once ratification of the new revising Convention becomes effective the commitments arising from the original instrument come to an end. This is the most frequent case of denunciation. l “Pure” denunciations: In the absence of a new revising Convention, or if there is no intention to ratify a revising Convention, there is also the possibility of a “pure” denunciation. However, most Conventions contain a provision restricting such “pure” denunciations to intervals of one year after periods of ten years from the Convention’s coming into force. A “pure” denunciation usually takes effect one year after its registration with the Director-General of the ILO. Convention No. 144 provides for government consultations with national employers’ and workers’ organizations on any proposal to denounce a ratified Convention (Art. 5, Para. 1 (e); see also para. 5 (f) of Recommendation No. 152). Such consultations are obligatory for countries having ratified Convention No. 144. In addition, the ILO Governing Body has stated as a general principle that, if denunciation is contemplated, the government should fully consult employers’ and workers’ organizations on
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