10.2. Regular supervisory process for unratified Conventions and Recommendations

10.2. Regular supervisory process for unratified Conventions and Recommendations42

PROCEDURE FOR THE REGULAR CONTROL OF UNRATIFIED CONVENTIONS

What is the procedure for the regular control of unratified Conventions and Recommendations?

The procedure for the control of unratified Conventions and Recommendations is an obligation of ILO Member States under the Constitution.

Under Article 19.5.e of the Constitution, in the case of a Convention which has not been ratified by a Member State, the latter has an obligation to

“inform the Director-General of the International Labour Office, at such intervals as may be fixed by the Governing Body, of the position of its law and practice in regard to the matters dealt with in the Convention, showing the extent to which effect has been given, or is proposed to be given, to any of the provisions of the Convention, whether by legislation, administrative action, collective agreement or otherwise, and stating the difficulties which prevent or delay the ratification of the Convention.”

Under Article 19.5(d) of the Constitution, in the case of a Recommendation, each Member State is required "to inform the Director-General of the

International Labour Office, at intervals to be fixed by the Governing Body, of the position of its law and practice in regard to the matters dealt with in the Recommendation and of the extent to which effect has been given, or is proposed to be given, to the provisions of the Recommendation and of such modifications to these provisions as are considered or may be considered necessary for their adoption or implementation.”

In the case of federal states, this procedure is regulated by Article 19(7)(b) (iv) and (v) of the Constitution.

What are General Surveys?

The reports submitted by Member States under Article 19 serve as a basis for the General Surveys prepared each year by the Committee of Experts on the Application of Conventions and Recommendations and subsequently examined by the Committee on the Application of Standards.

The General Surveys enable the Committee of Experts to:43

Carry out a detailed study of the content of the standards analyzed;

Take stock of their implementation in the various member countries;

42. Source: Handbook of procedures relating to international labour Conventions and Recommendations (ILO, 2019), pp. 31-33. Rules of the Game: An introduction to the standards-related work of the International Labour Organization. Centenary edition. 2019, pp. 106-109.

43. BEAUDONNET, Xavier. Derecho internacional del trabajo y derecho interno. Manual de formación para jueces, juristas y docentes en derecho. Turín: Centro de Formación Internacional de la OIT, Edición 2010, pp. 76-77.

https://www.ilo.org/public/libdoc/ilo/2009/109B09_177_span.pdf

Highlight the difficulties that have arisen in their implementation;

Review the solutions that have been found to solve them;

Analyze the various measures taken by Member States with regard to the content of the standards analyzed. This enables the Committee to decide on the conformity of certain national laws and practices with the conventions analyzed and to suggest more appropriate implementation mechanisms; and

Express observations on certain practices or situations of recent appearance that could not be considered at the time of the elaboration of the convention, but might be incorporated in its scope of application to be incorporated in its scope of application. In this way, the General

Surveys encourage a dynamic reading and application of international labor conventions. General Surveys are an essential tool for the understanding and interpretation of the content of International Labour Conventions and Recommendations:

In each General Survey, the Committee of Experts dwells on the various

Articles of the instruments analyzed to clarify their meaning and scope.

When the General Survey deals with convention(s) ratified in a given country, a reading of these clarifications can be very useful in determining whether jurisprudence applies domestic law in a manner consistent with a State's international obligations.

Even when a General Survey deals with a convention that has not been ratified in a given country, the analysis by the Committee of Experts of the concepts contained in the Convention may constitute a source of inspiration for national judges and legal operators when interpreting their own domestic law. The General Surveys and the results of the related review by the Committee on the Application of Standards are useful in many ways as, for example, for:

The establishment of an ILO programme of activities;

The possible adoption of new or revised standards;

To enable the effectiveness and present value of the instruments under control to be assessed; and

To give governments and social partners the opportunity to review their policy and to implement other measures in sectors of major interest, and in that case to proceed to further ratifications.

How are the instruments that will be the subject of this procedure and the preparation of the General Surveys selected?

Each year, the Governing Body selects the instruments for which reports are to be submitted as follows:

Since the adoption of the 2008 Declaration on Social Justice for a Fair

Globalization and the inclusion of recurrent items on the ILO's strategic objectives in the agenda of the Conference, the Governing Body has sought to reconcile the theme of the General Survey with that of the corresponding recurrent discussion so that the General Surveys and

related discussions in the Committee on the Application of Standards can contribute to the recurrent discussions, as appropriate; As part of the standards initiative, the Governing Body has been considering the use of Article 19, paragraphs 5 (e) and 6 (d) of the Constitution. In November 2018, it decided to further consider concrete and practical measures to improve their use, in particular with a view to strengthening the functions of the General Surveys and improving the quality of the discussion and the follow-up.

What is the procedure of the Office for requesting the reports?

Once the Governing Body has decided on the subject of the General Survey and adopted the corresponding form of report, the Office sends a communication to governments requesting them to submit reports under Article 19.

Copies of these requests are sent to national employers' and workers' organizations.

Reminders are sent to Governments that have not submitted their reports by that date.

Reports should be sent to this address: NORM_REPORT@ilo.org

What is the deadline for the submission of reports?

By decision of the Governing Body, the reports must reach the Office by the end of February of the year in which they are to be examined by the

Committee of Experts.

Are States obliged to communicate the reports to workers' organizations?

Under Article 23.2 of the ILO Constitution, governments are required to communicate copies of their reports on unratified Conventions and

Recommendations to representative organizations of employers and workers and to indicate, when sending their reports to the ILO, the organizations to which these copies have been transmitted.

These organizations, as well as any other employers' and workers' organizations, may make such observations as they deem appropriate on the matters concerned.

Are States obliged to conduct tripartite consultations?

States that have ratified Convention 144 on Tripartite Consultation (International Labour Standards) are obliged to put in place procedures to ensure effective consultation between government, employers', and workers' representatives on the re-examination at appropriate intervals of unratified Conventions and Recommendations to consider what measures could be taken to promote their implementation and possible ratification.

The status of ratifications of Convention 144 can be found at this link: https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO::P11300_INSTRUMENT_ID:312289 Recommendation 152 on tripartite consultation (ILO activities), complementary to Convention 144, states that States should put in place procedures to ensure effective tripartite consultation on matters which may arise from reports to be communicated to the Office concerning unratified Conventions and Recommendations (paragraph 5.e) and on the re-examination, at appropriate intervals, of unratified Conventions and Recommendations to consider what measures could be taken to promote their implementation and eventual ratification (paragraph 5.d).

Can trade unions send comments directly to the ILO?

Yes. Workers' organizations, as well as employers' organizations, may also send their observations directly to the Office for submission to the ILO

Committee of Experts.

In this case, the Office acknowledges receipt and at the same time sends a copy to the government concerned.

The list of observations by workers' organizations is contained in one of the annexes to the General Survey. For example, see Annex III of the 2020

General Survey (pages 420,421) which can be found at the following link: https://www.ilo.org/ilc/ILCSessions/109/reports/reports-to-the-conference/WCMS_738283/lang—es/index.htm

How is the discussion of the General Survey conducted in the Committee on the Application of Standards?

The working method of the Committee on the Application of Standards is the same as that indicated in the case of reporting obligations for ratified

Conventions.

Following the independent and technical examination of the documentation by the Committee of Experts, the meetings of the Committee on the

Application of Standards provide an opportunity for a tripartite review of the content of the General Survey.

The general discussion of the General Survey takes place in the early days of the work of the Committee on the Application of Standards.

What is the content of the Report and conclusions of the Committee on the Application of Standards?

The report of the Committee on the Application of Standards includes the general discussion and conclusions of the tripartite review of the General

Survey.