The Diversity of National Conditions

The Problems encountered in Framing Conventions and Recommendations

In framing Conventions and Recommendations various problems of substance or form are encountered. They relate in particular to the diversity of national conditions for which the instrument should cater, which in turn raises the question as to whether universal standards are appropriate, what should be the level of the standards and what flexibility clauses should be incorporated in the Conventions, They also relate to the nature of the rights that may be the subject of international standard, to the choice between the form of a Convention or a Recommendation and to the adjustment of instruments to change, which raises the question of their revision.

Since international labour Conventions and the Recommendations are intended to produce effects - and in the case of the former to create legal obligations - in countries with very different economic, social and political conditions, as well as different Constitutional and legal systems, the diversity of the conditions prevailing in the world raises a number of questions.

Regional standards cannot replace universal standards altogether, as the coexistence of different sets of regional standards would tend to accentuate rather than to reduce existing discrepancies between the different parts of the world. It would also eliminate the spur for emulation and the factor of harmonization provided by universal standards. In the case of coexistence or regional with universal standards, the danger would reside in their overlapping, as a multiplicity of standards would lead to divergences between them and to both the universal and the regional instruments being discredited. Reference is often made to the meeting in 1972 of the African Advisory Committee of the ILO, in the course of which it was underlined that any attempt to adopt standards on a regional basis would be a backward step and would produce anomalies and tensions between different regions' and that sub-standards for sub-humans had no place in the ILO. When, in 1976, the Governing Body of the ILO considered the request of a wide in-dept review of international labor standards, it concluded that Conventions should remain universal in character and that the special needs of countries should be taken into account through appropriate provisions in these instruments. The ILO has therefore approached the matter as one of framing universal standards capable of being applied in differing circumstances.

The purpose of standards is not simply to harmonize legislation, but primarily to promote generalized progress. In 1963, the Director- General of the ILO also stressed, in the same connection, that 'the terms of Conventions should, unless they deal exclusively with a simple issue of fundamental principle and contain no detail, be sufficiently flexible in character to be susceptible of application under widely varying national conditions', that a Convention should not contain rigid requirements in regard to matters in respect of which national practice may reasonably vary widely; it should not enter into too much 'administrative detail', but that 'this general approach should not, of course, be carried to the point at which a Convention ceases to be worth having. A measure of flexibility the result of which is that a large proportion of the Members of the Organization are not called upon to do more than they are already doing may deprive an international standard of much of its value as a stimulus to further action and achievement'. The problem is not only to decide, in each case, what the appropriate level of a standard should be. It is, more generally, to avoid that the standard may concern only a more or less limited group of countries because of its level, whatever it may be. The aim, therefore, has increasingly been to frame standards which will be relevant to the greatest number of countries. To this end, various types of flexibility clauses have been devised and included in several Conventions.

Дата добавления: 2014-01-11