Flexibility as regards the scope

THE FLEXIBILITY CLAUSES

Some of the earlier Conventions, in particular four of the Conventions adopted in 1919, specified that certain named countries, because of the state of their development, might observe a standard lower than the general standard. This type of clause was soon abandoned and recourse was had to more refined and more diversified clauses of a general character. They can be grouped under various categories.

Certain types of flexibility clauses give States the possibility of choosing, at the time of ratification, by means of a formal declaration, the extent of the obligations which they decide to undertake. This is the case for some Conventions consisting of several parts of which ratifying States can accept only one or a minimum number, Naturally, States which make use of such a possibility may, at a later stage, extend their acceptance to other parts of the Convention, and this type of clause thus permits the progressive application of the Convention as a whole, A well-known illustration of this formula has been the Social Security (Minimum Standards) Convention, 1952 (No. 102) which comprises nine parts, at least three of which must be accepted on ratification. A slightly different formula which is used in certain Conventions, allows certain parts or articles of them or annexes to them to be excluded from the ratification, in a different case, a Convention comprises two parts, the one involving strict obligations and the other less strict ones, and States have the option to accept either of these parts at the time of ratification. Finally, another type of clause, which has been used in particular in some Conventions on minimum age and on holidays with pay allows States to specify, at the time of ratification, the exact level of the standard which they undertake to observe and as a rule the standard thus specified by ratifying States may not be lower than a minimum laid down in the Convention.

The drafting itself of the standard is often flexible enough to give governments a certain amount of latitude in its implementation.

Sometimes the flexibility resides in the way in which the scope of the Convention is defined, in particular as regards the persons to be covered or the regions in which the Convention must be made applicable. In some cases governments may decide for themselves, subject to certain consultations, what the scope of the Conventions shall be, or they may be permitted to exclude certain categories of persons or undertakings, or again the definition of the persons covered may be based on a specified percentage of the wage earners or the population of the country concerned. Sometimes, exceptions are allowed for certain parts of the country which are sparsely populated or insufficiently developed, In the case of a number of Conventions which cover a particular branch of the economy, such as industry, it is provided that governments may themselves define the line of division separating that branch from others.

There are various cases where the formulation of the basic substantive rule itself makes provision for flexibility. This applies in particular to certain 'promotional' Conventions, which do not set a definite objective to be attained immediately, but formulate a general policy in a given field to be followed by each country with due regard to its particular circumstances. The most well-known cases in this connection are the Conventions dealing with social policy (No.117 of 1962), equal remuneration (No.100 of 1951), equal opportunity and equality of treatment (No.111 of 1958).

This method is generally coupled with the device of including only the fundamental principles in the Conventions and in adopting at the same time a supplementary Recommendations - i.e. a non-binding instrument - containing more detailed suggestions for their implementation. Some sixty Conventions are based on this method.

Flexibility may also be attained by the use of general terms such as 'appropriate measures', 'adequate protection', 'sufficient number', or 'appropriate arrangements', or by requiring certain measures to be taken only in so far as they may be 'necessary'. Conventions such as these might be used to provide loopholes for evasion if their application was not, as we shall, subject to a close system of supervision.

Conventions also often allow for exceptions to the general rule which they establish. There have been various types of such exceptions. Apart from the exceptions for certain named countries, which are no longer resorted to, certain Conventions authorize countries which do not yet have any regulations on the subject to ratify on the basis of a standard lower than the general standard. More recently, many of the social security Conventions permit countries whose economy and medical facilities are insufficiently developed to have recourse to specified temporary exceptions. Exceptions are also sometimes permitted on account of special circumstances (materials subject to rapid deterioration, exceptional cases of pressure of work, processes necessarily continuous in character etc.) and adjustment of the standard in respect of night work to climatic conditions is also allowed. Moreover, special arrangements are permitted under certain conditions, or the application of certain Conventions may be suspended in the event of war, force majeure or, if in the case of serious emergency, the national interest demands it.

One of the devices which are most frequently used seeks flexibility as regards the methods of application of the standard. Originally, many Conventions provided that effect should be given to them through national legislation, but this term has always been interpreted in a very broad sense. Generally, having regard to the fact that the ILO Constitution provides, in Article 19, para.. 5(d), that a State which ratifies a Convention shall take such action as may be necessary to make effective the provisions of such Convention, custom, administrative measures or, in certain circumstances, collective agreements may, in principle, suffice to give effect to Conventions. It is, moreover, expressly stated in some Conventions, that effect may be given to them by methods appropriate to national conditions and practice, which can be national laws or regulations, collective agreements, arbitral awards, etc. or a combination of these means. Clauses of this type appear in a number of Conventions, such as those, mentioned above, relating to equal remuneration (No.100 of 1951) and to discrimination in employment (No.111 of 1968).

Some Conventions have also been deliberately so drafted as to permit their application by means of action by federal authority.

Apart from the diversity of national conditions, there are also other reasons which call for flexibility in the formulation of standards, These are the differences between legal systems - in particular between common law and civil law countries - or between Constitutional systems - federal and unitary - so that it is necessary to avoid too strict and detailed drafting and to leave to States a certain choice - as was seen in No.103 above - as regards the legal methods of application.

While there have been cases in which the effort to introduce the necessary flexibility in Conventions has not been successful and consequently certain Conventions still contain an element of excessive rigidity or, on the contrary, have been drafted in too loose terms, one may consider that the majority of ILO Conventions, on the whole, are neither too stringent to be beyond the reach of developing countries in general nor so flexible as to be devoid of interest for the more advanced ones. The average number of ratifications per country naturally is higher for the industrialized States. But it is significant in this connection that, for instance, in the ten-year period from 1974 to 1983, one-third of the ratifications came from industrialized countries and two-thirds from developing countries. Leaving aside ratifications representing the confirmation of obligations by States upon joining the ILO, of the total number of ratifications in this period 45 percent came from industrialized countries and 55 percent from developing countries.

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