8.3.Procedure for the ratification of international labour standards

8.3. Procedure for the ratification of international labor standards33

PROCEDURE FOR THE RATIFICATION OF INTERNATIONAL LABOR STANDARDS

What is ratification?

It consists of the expression of acceptance by the Member State of the ILO, through the competent authority, of the international labor convention (or international labor protocol) in its domestic legal system.

The procedure is regulated by Article 19. 5. d) of the ILO Constitution 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.

How is ratification communicated?

There are no specific provisions in the ILO Constitution regarding the manner of reporting ratifications, which may vary according to the constitutional laws and practice of each State. In order to be registered, the instrument of ratification must:

Clearly specify the convention or conventions being ratified;

Be an original document (and not a facsimile or a photocopy), signed by a person with authority to act on behalf of the State (for example, the

Head of State, the Prime Minister, the Minister of Foreign Affairs or the

Minister of Labour);

Clearly indicate the intention of the Government that the State will be bound by the Convention concerned and its commitment to fulfil the obligations of the Convention, preferably with a specific reference to

Article 19(5)(d) of the ILO Constitution.

Instruments of ratification should always be communicated to the Director-

General of the ILO in order to make ratification effective under international law. If this is not the case, the State may consider that the Convention has been "ratified" in its domestic legal system, but it will not have effect in the international legal order.

The instrument of ratification could include the following declaration: “The

Government of ... hereby ratifies the ...Convention and undertakes, in accordance with Article 19, para. 5(d), of the Constitution of the ILO, to fulfil its obligations in this respect.”

33. This section is based on information in Handbook of procedures relating to international labour Conventions and Recommendations. ILO, 2019, pp. 16-21.

Are reservations admissible when ratifying international labor standards?

The reservation is a mechanism by which a State seeks the modification (modifying reservation) or exclusion (excluding reservation) of the application of certain clauses of the international treaty.34

Conventions contain various provisions ensuring flexibility, 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.

What are the "declarations" to be included in the instrument of ratification?

In light of the universal application of ILO's standard-setting instruments, which implies their acceptance or ratification by economically, socially, or culturally diverse countries, the ILO Conference has resorted to various means to give flexibility to the scope, methods of application, or substantive obligations of international standards. Any kind of flexibility requires express declaration.

Certain ILO Conventions provide for the possibility of the inclusion of "declarations”.

There are three types of declarations:

Mandatory declarations to be included in the instrument of ratification or in an accompanying document;

Optional declarations to be included in the instrument of ratification or in an accompanying document; and

Optional declarations on the scope of a convention.

How does the procedure for ratification of Protocols work?

A Protocol is an instrument that partially revises a Convention. It is open to ratification by a State that is already bound by the Convention, or if it ratifies it simultaneously, it is also bound by the Convention.

Two Protocols adopted so far by the Conference effectively introduce more flexibility into the two Conventions concerned and provide for the extension of the obligation. These are:

P089 – Protocol of 1990 to the Night Work (Women) Convention (Revised), 1948;

P110 – Protocol of 1982 to the Plantations Convention, 1958.

Four other protocols extend obligations under the terms of the relevant conventions:

P081 – Protocol of 1995 to the Labour Inspection Convention, 1947;

34. SALMÓN, Elizabeth. Curso de derecho internacional público. Lima: Fondo Editorial de la Pontifica Universidad Católica del Perú, 2014, pp. 200-202.

P147 – Protocol of 1996 to the Merchant Shipping (Minimum Standards) Convention, 1976; P155 – Protocol of 2002 to the Occupational Safety and Health Convention, 1981; P029 – Protocol of 2014 to the Forced Labour Convention, 1930.

How does the procedure for registering ratifications work?

The final provisions of all the Conventions contain Articles concerning the registration of ratifications by the Director-General and his notification of them to all Member States, as well as their communication to the Secretary-

General of the United Nations, for the registration of Conventions in accordance with Article 102 of the Charter of the United Nations.

All ratifications are communicated to the Governing Body, and Member

States are notified by publication in the Official Gazette. The same applies to declarations and other documents accepting or modifying obligations.

An example is Convention 151 on Labour Relations in the Public Service. In its final provisions, it sets out the procedure for registration of ratification as follows:

C151 - Labour Relations (Public Service) Convention, 1978

Part VII. Final Provisions Article 10

The formal ratifications of this Convention shall be communicated to the

Director-General of the International Labour Office for registration. Article 11 1. This Convention shall be binding only upon those Members of the

International Labour Organisation whose ratifications have been registered with the Director-General. Article 13 1. The Director-General of the International Labour Office shall notify all

Members of the International Labour Organisation of the registration of all ratifications and denunciations communicated to him by the Members of the Organisation. Article 14

The Director-General of the International Labour Office shall communicate to the Secretary-General of the United Nations for registration in accordance with Article 102 of the Charter of the United Nations full particulars of all ratifications and acts of denunciation registered by him in accordance with the provisions of the preceding Articles.

When do international labor standards come into force?

The entry into force is the moment when the International Labour Convention (or the Protocol) begins to unfold its legal effects.

There are two moments:

The entry into force of the Convention itself. The condition for the entry into force of a Convention is generally a certain number of ratifications.

The entry into force of the Convention in respect of each State which ratifies it. Only once the Convention enters into force do the States that have ratified it become parties to it. Until it enters into force, a Convention cannot have effect in international law. All ILO Conventions contain provisions concerning their entry into force (usually in the "final provisions"). Since 1928, it has been established as a general rule that the entry into force of Conventions takes place 12 months after the registration of the second ratification and subsequently, in respect of each ratifying State, 12 months after the registration of its ratification. There are different provisions in certain Conventions. For example, for the Maritime Labour Convention, 2006 (MLC, 2006) to enter into force it had to be ratified by at least 30 Member States which together had at least 33 per cent of the world's gross tonnage of ships. In the case of Convention 151 on labour relations in the public service, the entry into force of the Convention follows the general rule:

C151 - Labour Relations (Public Service) Convention, 1978

Part VII. Final Provisions Article 11 2. It shall come into force twelve months after the date on which the ratifications of two Members have been registered with the Director-

General. 3. Thereafter, this Convention shall come into force for any Member twelve months after the date on which its ratification has been registered.

What obligations arise from the ratification of international labor standards?

When ratifying an International Labour Convention (or a Protocol), the following obligations arise:

Obligation to communicate formal ratification to the Director-General of the ILO.

Obligation to take the necessary measures to give effect to the provisions of the ratified Convention (Art. 19, para. 5, d, ILO Constitution).

Obligation to send periodic reports to the ILO on the level of compliance with the provisions of the ratified Convention (Art. 22).