Abstract
Lord McNair described the international labour convention as “one of the most striking innovations in the field of treaty-making which has occurred during the present century.”1 Since 1919, more than 150 labour conventions have been drafted and adopted by the annual Conference of the International Labour Organization. Although they concern different subject matter, these conventions (hereinafter referred to as “ILO conventions”) share certain common features. A number of the innovative features of this large body of conventions result from the effort to regulate the internal law and practice of states through the device of the treaty.
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Notes
Lord A. D. McNair, The Expansion of International Law (Jerusalem: Magnes Press, Hebrew University, 1962), p. 29.
For general information concerning ILO conventions see C. Wilfred Jenks, Human Rights and International Labour Standards (London: Stevens and Sons, 1960), Some Characteristics of International Labour Conventions, 13 The Canadian Bar Rev. 448 (1935);
E. A. Landy, The Influence of International Labour Standards: Possibilities and Performance, 101 I.L.R. 555 (1970);
Ernest Mahaim, Quelques questions de droit au sujet des conventions internationales du travail, 20 R.I.T. 807 (1929), Les conventions internationales du travail—à propos de débats récents, 10 Revue de droit international et de législation comparée 669–734 (1929) and ibid., 11, 123–146 (1930);
J. F. McMahon, The Legislative Techniques of the International Labour Organization, 41 Brit. Y. B. Int’l L. 1 (1965–66);
Jean Morellet, Un type original de traités: les conventions du travail, 33 R.C.D.I.P. 1 (1938);
Georges Scelle, L’Organisation Internationale du Travail et le BIT (Paris: Marcel Rivière, 1930);
Nicolas Valticos, Droit international du travail (Paris: Dalloz, 1970), Fifty Years of Standard-Setting Activities by the International Labour Organization, 100 I.L.R. 201 (1969). See also The Impact of International Labour Conventions and Recommendations (Geneva: ILO, 1976).
See James T. Shotwell, The Origins of the International Labour Organization (New York: Columbia University Press, 1934), vol. 1, pp. 3–54, and The Impact, op. cit.
On 1 June 1980, 153 ILO conventions had been adopted by the International Labour Conference and 136 had received sufficient ratifications and were in force.
The International Covenant on Economic, Social and Cultural Rights, as well as the European Social Charter, covers in one instrument a number of matters covered in numerous separate ILO conventions.
The Impact, op. cit., pp. 13–14.
Article 3 (Convention No. 41), Convention Concerning Employment of Women During the Night (Revised 1934). The term “night” is defined in Article 2 of the Convention.
Article 1 (Convention No. 29), Convention Concerning Forced or Compulsory Labour, 1930. “Forced labour” is defined in Article 2.
1973 R.C.E. 8–9.
McMahon, Legislative Techniques, 37.
Ibid., 39.
Advisory Opinion on the Interpretation of the Convention of 1919 Concerning Employment of Women During the Night, P.C.I.J., Ser. A/B, No. 50, p. 4, (1932).
McMahon, Legislative Techniques, 85–101. For general information on interpretation of ILO Conventions see C. Wilfred Jenks, The Interpretation of International Labour Conventions by the International Labour Office, 20 Brit. Y. B. Int’l L. 132–141 (1939) and Edward Yemin, Interpretation of Treaties Adopted Within International Organizations (with special reference to the UN and the ILO), unpublished manuscript.
Paul Reuter, Introduction au droit des traités (Paris: Armand Colin, 1972), p. 42 [translation]. Similarly, Scelle has pointed out that “the formal clauses of labour conventions may well require two or three or more ratifications for entry into force. It matters little from the juridical point of view—this is only a practical procedure or rather a hangover from the past. The coexistence of ratifications adds nothing to the voted text... Each adherent is obligated, even if it is alone; it remains obligated even if other ratifying States violate their commitments. And if all the adherents but only one denounce the Convention, this last adherent remains bound by the obligations of the Convention.” Scelle, L’Organisation Internationale du Travail, p. 181 [translation].
Article 19(5), ILO Constitution.
Nicolas Valticos, Conventions internationales du travail et droit interne, 44 R.C.D.I.P. 251, 265 (1955).
This point of view has had some practical relevance as is apparent from an early controversy concerning the modification or repeal of a convention on hours of work. Representatives at ILO Conferences in the twenties argued that ILO conventions did not create contractual obligations of states towards each other but rather created obligations towards the ILO itself, that ILO conventions were conditional international laws which states might accept or reject but could not amend (by reservations), and that, therefore, the Organization itself had the capacity to relieve Member States of their obligations by modifying or repealing a convention ratified by members. The opponents of these views prevailed, however. They insisted that what was intended at Versailles when the ILO was created was to set up a permanent organization to draft conventions and not to create a super-parliament. The setting up of a permanent organization, the new mode of elaboration of international labour conventions and the supervisory machinery created were means of avoiding some of the defects perceived in earlier efforts at elaboration and adoption of international labour conventions; it was not intended to undertake such a radical departure from current international practice as the creation of machinery for true international legislation. Mahaim, Les conventions internationales du travail, 10 Revue de droit international et de législation comparée 669, 722–732 (1929). In 1951 the Court of Appeal in Aix-en-Provence, France, held that a state of war between France and Italy did not have the effect of abrogating an international labour convention but simply of suspending its operation during hostilities. The reason given for the decision was that the ratification of such conventions does not result in bilateral or multilateral agreements but rather in affiliation to a régime instituted by an international organization and that the state of war between two members of the organization does not ipso facto cancel their commitments to the organization. Judgment, Court of Appeal, Aix-en-Provence, 7 May 1951, concerning the application of the Equality of Treatment (Accident Compensation) Convention, 1925 (ILO Convention No. 19), Etablissements Cornet v. Gaido, International Law Reports (1951), No. 155. See McNair, The Expansion of International Law, p. 42.
Scelle, L’Organisation Internationale du Travail, pp. 182–183.
Clive Parry, “The Law of Treaties,” chapter 4 in Max Sorensen, ed., Manual of Public International Law (London: MacMillan, 1968), p. 197.
Scelle, L’Organisation Internationale du Travail, p. 184 [translation].
Article 19(5), ILO Constitution.
Mahaim, Les conventions internationales du travail, 10 Revue de droit international et de législation comparée 669, 718–722 (1929).
See Advisory Opinion of the Permanent Court of International Justice concerning the competence of the ILO: “The Organization has no legislative power. Each member is free to adopt or to reject any proposals of the Organization either for a national law or for an international convention.” Competence of the International Labour Organization to Regulate, Incidentally, the Personal Work of the Employer, P.C.I.J., Ser. B., No. 13, pp. 1, 17 (1926).
For examples see C. Wilfred Jenks, “Human Rights, Social Justice and Peace, The Broader Significance of the ILO Experience,” in Asbjorn Eide and August Schou, ed., International Protection of Human Rights (Stockholm: Almqvist and Wicksell, 1968), pp. 239–292.
International Labour Code 1951 (Geneva: ILO, 1952), vol. I, p. 74. ILO recommendations (adopted by the International Labour Conference) often contain more advanced and detailed standards than those laid down in conventions. They are not intended to be ratified and do not create binding legal obligations. They are thus not included in this study.
Valticos, Conventions internationales du travail, 251, 265.
“They [ILO Conventions] seem to me to be typical Vereinbarungen, their object being to secure identical rules upon the topics regulated by them in the different countries which adopt them... They are in fact permanent law-making treaties.” Lord A. D. McNair, The Law of Treaties (Oxford: Clarendon Press, 1961), p. 752;
Charles Rousseau, Droit international public (Paris: Dalloz, 5th ed. 1970), pp. 47–48; Reuter, Introduction au droit des traités, p. 42;
D. P. O’Connell, International Law (London: Stevens and Sons, 2d ed. 1970), vol. II, pp. 757–758;
Herbert W. Briggs, The Law of Nations (New York: Appleton-Century-Crofts, Inc., 2d ed. 1952), pp. 875–878,
Herbert W. Briggs, The Law of Nations (New York: Appleton-Century-Crofts, Inc., 2d ed. 1952), pp. 884–890.
U.N. Conference on the Law of Treaties, Official Records, First Session, Vienna, 1968, A/Conf. 39/11, Eighth, Ninth and Tenth Meetings, pp. 42–58. Article 5 of the Vienna Convention on the Law of Treaties provides that “the present Convention applies to any treaty which is the constituent instrument of an international organisation and to any treaty adopted within an international organisation without prejudice to any relevant rules of the organisation.” This Article, which permits the lex specialis of an international organization to prevail over any conflicting rules of the Vienna Convention, was particularly desired by the specialised agencies of the U.N. C. Wilfred Jenks, the ILO observer at the Conference which drafted the Vienna Convention, took the leading role in pushing for its adoption. His intervention at the Conference sets forth a number of rules and practices relating to international labour conventions which differ from the comparable rules eventually included in the Vienna Convention.
See chapter 2, sec. 4.3.
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Leary, V.A. (1982). Labour Conventions and National Law. In: International Labour Conventions and National Law. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-6804-7_2
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