Lecture 2. Sources of the International Labour Law

LECTURE COURSE

The sources of international labor law are international legal acts, and also other non-personal acts, which regulates individual and collective labor relations at international level, and also domestic legislation which regulates individual and collective labor relations with foreign elements.

The sources of international labor law almost always have more abstract and generalized nature than acts of domestic legislation, because they are applied in countries with different economic conditions, social, judicial and cultural traditions.

The so-called soft law occupies an important place among the sources of international labor law. Soft law has no blinding judicial force for states, but it is the guideline for domestic politics of states. The acts of soft law are Recommendations of ILO, Charters of Council of Europe, model legislation of Commonwealth of Independent States (CIS).

The discussion about hierarchy of sources of international labor law is still under way. The main question of this discussion is correlation between acts of UNO, ILO and regional international acts. There are no formal differentiations of these acts by judicial force. In practice the principle lex specialis derogat legi generali is usually used.

One of the peculiarity of sources of international labor law is that not only ratified international acts have blinding force, but also generally acknowledged principles of international law have status of source of law. Thereupon the ILO’s Declaration on Fundamental Principles and Rights at Work which contains 4 fundamental principles and rights at work is very significant.

There are a lot of discussions about operation of sources of international labor law at national level. In this connection all states are divided in two groups: monistic model of incorporation of international law sources and dualistic model of incorporation of international law.

But in most cases ratification of any international act it is not enough for the beginning of its realization. Because of that all international acts are divided into self-excusable and not self-excusable. The acts of first group contain direct rights and obligations of the subjects of domestic law. That’s why there are no need to adopt special laws.

But overwhelming majority of international labor acts also contains non self-excusable rules. That’s why there is always a need not only for ratification of any international act, but also a need of adopting special law. For example, Article 2 of ILO Tripartite Consultation Convention No.144 designates that each member of the International Labour Organisation which ratifies this Convention undertakes to operate procedures which ensure effective consultations. These procedures, of course, should be defined in domestic legislation.

Sources of international labor law are mainly to be found in the Conventions and Recommendations adopted by the ILO. International labor instruments have also been produced by regional institutions such as the Council of Europe and the Arab Labor Organization, to say nothing of the European Union's specific legislation. However, ILO cooperates with these institutions on the preparation of their respective texts to avoid conflicts. In some cases (as for the Council of Europe), the organizations exchange observers who sit in on certain meetings of the other institution's supervisory bodies, in order to ensure that the decisions taken by those bodies are as coherent as possible.

Numerous bilateral and multilateral treaties are also concluded in the field of labor and social security. Those treaties deal specifically with migration, equality and the transfer of social security entitlements. They are too numerous and diverse to be analyzed. In some cases ILO has convened a special conference to discuss a topic of interest to only a limited number of States. In the past those meetings concerned in particular European countries. They resulted, for example, in the 1950 agreements concerning Rhine Boatmen and the 1956 European Convention Concerning the Social Security of Workers Engaged in International Transport.

The treaties adopted by the United Nations and its specialized agencies, such as the United Nations Educational. Scientific and Cultural Organization (UNESCO), are not directly related to issues of labor and social security since those fields are the special preserve of ILO within the UN structure. General instruments, such as the International Covenants on Human Rights, nevertheless cover all or some of the fundamental labor freedoms and social rights. We shall not analyze them during our course because they deal with human rights in more general terms. It should be noted, however, that the oversight mechanisms for their application are markedly different from those of ILO.

The sources of international labor law are quite various. That’s why any classification of sources of international labor law can promote a better understanding of the body of interest.

There are different criteria of classification of sources of International Labour Law:

1. The number of involved countries: multilateral act (ILO conventions), bilateral (treaties concerning some questions such as migration, health and safety at work etc.) and unilateral acts (they are non-traditional).In every sense of the word only Generalized System of Trade Preferences of USA can be described as an unilateral source of international labor law. This unique source of international law also contains the responsibility of violation of labor rights of employees of other state.

2. Form of international act: international treaties, rules of common international labor la (jus cogens), domestic legislation, international collective agreement and International framework agreement of Multinational corporations. The discussion on concerning recommendations as a source of international law.

3. ILO classifies its conventions depending on status:

· Actual acts

· appointed to review acts

· acts with intermediate status

· acts in mode of information request

· deferred conventions

· changed recommendations

· outdated acts

· excepted acts

· abrogated acts

ILO sources of international labour law can be found in the Constitution itself of the Organization, in the numerous Conventions and Recommendations adopted by it, and in a number of less formal instruments. Apart from these sources, reference should be made to the interpretation of the ILO Constitution and Conventions and to what can be described as case-law, A final category comprises the instruments adopted by special Conferences convened by the ILO.

While the Constitution of the ILO contains mainly provisions relating to the organs and the functioning of the Organization, it also lays down a number of general principles which have come to be regarded in certain respects as a direct source of law. Such principles are contained in the Preamble to the Constitution and in the Declaration concerning the Aims and Purposes of the Organization, adopted by the Conference in Philadelphia in 1944 and incorporated in the ILO Constitution in 1946. ILO bodies have frequently drawn legal consequences from them, particularly in the field of freedom of association and in the field of racial discrimination (Apartheid), and States Members of the ILO have been regarded as bound to some extent by these Constitutional principles.

The ILO Conventions and Recommendations are, by far, the main source of international labour law. This is due to their number (189 Convention)

International labour Conventions and Recommendations differ from the point of view of their legal character: Conventions are instruments designed to create international obligations for the States which ratify them, while Recommendations are not designed to create obligations but to provide guidelines for government action.

More particularly international labour Conventions have a number of specific features which can be grouped under three main ideas. Firstly, they are adopted in an institutional framework., Thus the adoption of Conventions does not follow the type of diplomatic negotiation which is usual in the case of treaties, but it is prepared by discussions in an assembly which has many points in common with parliamentary assemblies. The institutional character of these instruments also explains the rules relating to their signature and to the deposit of ratifications. For the same reason, the interpretation of Conventions cannot be given by the States parties to them, but can be given only by the International Court of Justice.

Finally, the Director-General of the ILO is frequently consulted by governments as to the interpretation of Conventions and the opinions which he gives, with the proviso that he has no special competence in the matter, are communicated to the Governing Body of the ILO and published in the Official Bulletin, and seem to be tacitly accepted. They provide authoritative documentation on the subject and have acquired considerable weight. A very large number of such opinions have been given by the ILO over the years.

Lastly, legal opinions on important matters were given in memoranda from the Director-General or the Legal Adviser of the ILO concerning questions connected with the Constitutional framework of ILO Conventions, such as the nature of the competent authority contemplated by Article 19 of the Constitution of the ILO and the practice of reservations to multilateral Conventions. In the latter case an ILO memorandum was submitted to the International court of Justice in the genocide case and it set forth the reasons why international labour Conventions cannot be ratified subject to reservations.

Similarly, the revision of a Convention cannot be decided by the States parties to it, but by the General Conference, which is the legislative body of the Organization.

A second characteristic is that, as a consequence of the tripartite structure of the ILO, the International Labour Conference, which adopts Conventions and Recommendations, is not constituted by representatives of governments only, but also of representatives of employers and workers, each delegate being entitled to vote individually. This is one of the reasons why ratification of a Convention cannot be made subject to reservations.

Thirdly, the desire to make Conventions particularly effective explains another series of characteristics, such as the rules - which were innovations in international law - that a two-thirds majority is sufficient for the adoption of Conventions and Recommendations and that governments should submit Conventions and Recommendations to their competent authorities, i.e. as a rule to their Parliaments, the obligation of States to supply reports - when requested to do so by the ILO - on Conventions which they have not ratified, as well as on Recommendations, the effects of ratification as regards the application of ratified Conventions to non-metropolitan territories (which went further than the classical 'colonial clause'), the practice of new Member States to confirm the obligations previously accepted on their behalf by the State responsible for their international relations, the provision of Article 1, paragraph 5 of the ILO Constitution according to which the withdrawal of a State from the ILO does not affect the validity of the obligations resulting from a ratified Convention, and the setting up, by specific provisions of the Constitution and by a series of decisions which followed, of a sophisticated system of supervision.

The various special features of international labour Conventions gave rise, in the early years of the introduction of this type of instrument, to a famous theoretical discussion about the real nature of these Conventions, Georges Scelle, in particular, maintained ILO Conventions were not of a contractual type, but amounted, in a way, to 'international laws', and that the International Labour Conference, which adopted them, was an 'international legislative body'. According to this view, Conventions were legislative instruments, requiring only a 'conditional act', namely ratification - which could be analyzed as being simply an accession to a pre-existing act - to acquire the force of an internal law. There is a large amount of truth in the views of Georges Scelle. In fact, international labour Conventions represents a compromise between the notions of contract-making treaties and law-making treaties.

Thus, international labour Conventions have preserved certain features of traditional treaties. Despite the more radical proposals submitted in 1919 when the system was established by the Peace Conference, a Convention is binding on a State only if it has been ratified by it. Similarly, the influence of the older notion of multilateral treaties can be found in the rule according to which the entry into force of a Convention requires a minimum number of ratifications, though usually not more than two. The same can be said about the rule, established after detailed theoretical discussions around 1930 about the legal effects of the revision of international labour Conventions: according to that rule, when a Convention is revised, the former text continues to be binding on the States which ratified it in its original form until they have ratified it in its revised form.

While the international labour Conventions and Recommendations which were adopted over the years are separate legal instruments, they constitute, from a certain point of view, a comprehensive whole which has often been described as the 'International Labour Code. The term should not be taken literally, as the various Conventions of which the Code is composed may give rise to independent international obligations and as its content is in constant development and revision.

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