The Revision of Conventions and Recommendation. Protocols

Principles governing revision. The developments which may occur in social needs and conceptions or the difficulties which may be encountered in the implementation of certain standards make it sometimes necessary to revise international labour standards with a view to adjusting them to changing circumstances or to experience. Such revision raises, apart from the procedural questions already referred to above, a more general question of policy: that of deciding how closely revision should seek to adapt the international standard to changes in ideas and needs. Naturally, labour legislation, whether international or national, cannot be a rigid and immutable code. It must be responsive to changing conceptions and even techniques. Therefore, the revision of Conventions should be made possible without having to face insuperable legal obstacles. On the other hand, however, the legal rules laid down by international labour standards must have a minimum of stability and provide a certain measure of security in international relations. They should not be amended too frequently of for considerations which are temporary in nature. In order to reconcile these requirements of change and of stability, the revision procedure has been made subject to time limits and formalities, which, without being excessive, are designed to prevent over-hasty decisions.

Clauses relating to Revision. The first ILO Conventions contained a clause providing that at least once in ten years the Governing Body of the ILO should present a report on the working of the Convention and consider the desirability of placing on the Agenda of the Conference the question of its revision. This standard clause was modified in 1949 to provide for greater flexibility by enabling the Governing Body to present such reports only when it considered it necessary. Meanwhile, in 1928, when the first ten-year period for the consideration of the possible revision of the Conventions adopted in 1919 was about to expire, the question of the procedure for revision and the effect of revision on the original Convention was the subject of extensive discussion and of wide differences of opinion in the Governing Body, Some employer members of the Governing Body were of the opinion that international labor Conventions were not contracts between States, but conditional international laws and that the new Convention should accordingly replace the original one. The then Legal Adviser of the ILO (Jean Morellet) took the opposite view on the ground that, in spite of their special character, international labour Conventions entailed legal obligations between the States parties to them, and that one Convention could not be automatically substituted for another when the first had been ratified and come into force.

Finally, the solution adopted was to include in the Conventions adopted after 1929 a clause providing:

a. that the adoption of a new revising Convention would not entail the abrogation of the original Convention;

b. that the original Convention should cease to be open to ratification as from the date when the new Convention came into force; and

c. that ratification by a Member State of the new Convention should automatically involve the denunciation by it of the original Convention.

A few years later, in 1933, this clause was refined to allow the International Labour Conference discretion to decide, when adopting a revised Convention, that its entry into force should not have the effect of closing the original Convention to ratification and that its ratification by a State would not automatically entail the denunciation by that State of the original Convention. This latitude may sometimes be useful, especially to keep the earlier Convention open to ratification by States which have not yet reached a stage of development which would allow them to ratify the most recent standard. It has been used in certain cases.

Use made of revision procedures. In the light of the principles, rules and procedures described above, over forty Conventions have been formally revised by subsequent Conventions. A number of these revisions have been aimed at making the wording of the original Convention more flexible in order to take account of the difficulties experienced and to facilitate ratification, as in the case of night work of women (apart from the more basic re-examination of the whole principle, which took place in 1990). In other cases, on the contrary, revision was designed to raise the earlier standard and provide for greater protection (as in the case of occupational diseases and of minimum age of admission to employment). Sometimes, these two types of operations were combined. Another reason which led to revision was the need to take account of technological changes (thus the revision of Conventions No.28 and No.32 on dock work). Some Conventions have each undergone more than one revision in the course of years: there were two revisions of the Convention concerning night work by women3 and three revisions of the wages, hours of work and manning on board ship Conventions.

Apart from formal revisions, there have also been cases of the adoption of Conventions which, although not revisions in a technical sense, have supplemented earlier instruments, or dealt with the same subjects from a different angle or according to new concepts. This will be explained later in respect of the forced labor Conventions, of the social policy Conventions, of the 1952 Social Security (Minimum Standards) Convention (No. 102) and the 1990 Night Work Convention (No. 171).

In the case of Recommendations, formal revision is not as frequent or as necessary as for Conventions, since they do not involve international obligations. However, it may sometimes be useful to state expressly that a new instrument supersedes an earlier one, in order to make it clear to governments that it is the new instrument which should guide their action. Such a course was followed in the case of vocational training Recommendations. It may also be desirable where a Recommendation is supplementary to a Convention and the latter is being revised, to proceed as well with the revision of the Recommendation, as was done in the case of migrant workers.

During the review of international labour standards carried out by the Governing Body between 1974 and 1979, the idea was launched of adopting a Protocol to an existing Convention. The purpose was one of simplification, because there would be no need to have two Conventions - the original instrument and its revised version - with very few differences. The Protocol has the same effect as a revised Convention, which does not close the original Convention to further ratifications. It constitutes in fact the revision of an existing Convention and must be regarded as a form of Convention coming within the provisions of the Constitution relating to Conventions. It must therefore be adopted by the Conference by a two-thirds majority and must afterwards be communicated to Member States for submission to their national competent authorities in accordance with article 19 of the Constitution. This type of instrument was adopted for the first time in 1982 in connection with the Plantations Convention, 1958 (No. 110) and then again in 1990 with regard to the Night Work (Women) Convention (Revised), 1948 (No. 89).

Other ILO Instruments. The ILO has also laid down standards in certain types of instruments which are less formal than Conventions and Recommendations. This is the case, in the first instance, of Resolutions adopted by the International Labour Conference. Some of these resolutions are currently used by the various supervisory bodies of the ILO as guidelines and terms of reference for the appraisal of national situations and the recommendations addressed to governments. This applies in particular to the 1952 Resolution concerning the independence of the trade union movement and to the 1970 Resolution concerning trade union rights and their relation to civil liberties (which were referred to for instance, by the Commission of Inquiry in the case of Greece in 1970 and by the Fact-finding and Conciliation Commission in the case of Chile in 1974).

Other types of standards are embodied in the resolutions and conclusions of technical committees of experts and of meetings or bodies set up to deal with particular sectors (industrial committees, etc.) or particular subjects, such as social security and occupational health and safety, multinational enterprises, statistics, etc. or of regional Conferences and technical meetings.

These various types of texts vary considerably, first as regards their subject matter: some deal with basic principles while others are of a very practical technical nature. They also differ in respect of the weight they carry. None have the authority of Conventions and Recommendations, but a resolution adopted by the Conference carries more weight than the conclusions of a less comprehensive body. The value of such texts lies mainly in the fact that they are adopted by bodies representative of the interests concerned. Resolutions adopted by the International Labour Conference have also been important in certain cases for the development of the program of the ILO in certain fields. This was the case as regards labour-management relations, workers' education, rural development and working conditions and environment.

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