The Choice between a Convention and a Recommendation

The Nature of the Rights which may be the Subject of International Standards

There is a wide difference in the nature of the rights which may be the subject of international standards. Some of these rights lend themselves to immediate application to individuals (such as minimum age, holidays with pay of a specified duration, freedom of association) and they might be considered as self-executing in countries where the Constitutional system provides that ratified treaties become automatically part of the law of the land. On the contrary, other rights are more of a programmatic nature, i.e. they consist of a general statement of the objectives aimed at and lay programs of action, which require measures to be taken by governments, sometimes on a long-term basis, and do not create any direct individual claim for protected persons. This can be said for employment policy, social security, action against discrimination and equal remuneration (if one considers the terms of ILO Convention No.100). In his Report to the Conference in 1984, devoted to the ILO's standard-setting activities, the Director- General pointed out that the so-called promotional Conventions can be a powerful stimulus to national action. However - he warned - such Conventions have increasingly dealt with less clearly defined objectives, at times calling for action over wide areas of public policy, where it becomes difficult both for ratifying States to know what measures of implementation are required of them and for the ILO supervisory bodies to evaluate compliance with international commitments. There is a credibility risk for ILO standard setting and he raises the question whether greater use should not be made of other non-mandatory instruments, leaving Conventions for 'important issues capable of precise definition and action.

At the time of the drafting and adoption of a new instrument, the question of whether it should take the form of a Convention or a Recommendation is often discussed in view of the differences existing between these two types of instruments from the point of view of their legal character and of their respective roles. The Convention certainly is the typical instrument of international labour legislation. When the establishment of the present system of international labour standards was considered by the Peace Conference in 1919, Conventions were the only type of instrument envisaged at the outset of the discussions. The idea of Recommendations was introduced later in the course of these discussions, with a view to meeting the difficulties and objections of the United States, However, it was also realized at that time that Recommendations might serve to deal with certain matters about which the adoption of a Convention would not be possible or appropriate. Later, in 1946, when the ILO Constitution was amended, it was specified in Article 19, para., 1 that it would rest with the Conference to determine whether the proposals before it 'should take the form: (a) of an international Convention, or (b) of a Recommendation to meet circumstances where the subject, or any aspect of it, dealt with is not considered suitable or appropriate at this time for a Convention.

In the light of the above principle the role of Recommendations has become clearer over the years, while still frequently disputed in particular cases. It has often happened that a Recommendation has been considered more appropriate when a subject has not yet been ripe for the adoption of a Convention. Thus, in a number of cases, the adoption of a Recommendation has paved the way for the adoption of a Convention on the same subject, several years later.

A second function of a Recommendation, which has become increasingly important, is to supplement a Convention. Now it is common practice followed in the case approximately 80 Conventions, to adopt, on the same subject, a Convention laying down the basic rules and a Recommendation containing more detailed provisions for their application which might furnish guidelines for governments without the Recommendation having the binding force of a Convention. In some cases, in particular in the field of social security, the supplementary Recommendation sets a higher standard than the Convention,

A third function of Recommendations is to deal with matters concerning which the standards laid down have to be of so technical and detailed a character that they may call for frequent adjustment to the situation in different countries, or the nature of which is such that there are wide variations in circumstances and practices from one country to another Among such subjects reference can be made to industrial relations, training, workers housing, employment of women with family responsibilities. The form of a Recommendation has been preferred in such cases because strict international obligations could hardly be contemplated in the fields concerned.

Generally, however, the Recommendation, as a form of instrument, has often been objected to, generally by the workers, especially when it is envisaged as the only instrument - and not as supplementary to Convention - to deal with a given subject. The objections are due to the fact that Recommendations are weaker instruments than Conventions. They cannot be the subject of international commitments, nor can their application be supervised as strictly and regularly as that of Conventions. Recommendations have, therefore, frequently been considered as poor relations of Conventions. Nevertheless, they perform a useful function in cases where Conventions would probably not have been adopted or, if adopted, would not have been widely ratified, and where the existence of international standards embodied in a Recommendation may sometimes exercise a substantial influence on national law and practice. The position of the employers is, that the importance of Recommendations as separate instruments should be increased. In his report to the Conference in 1994, the Director-General referred to this question in the following words: My predecessor was quite right, in his Report of 1984, to lament the fact that Recommendations are often seen as second-class instruments. Whenever a Convention cannot be made ratifiable without first watering down the standards it sets, it would seem preferable to adopt instead a fully autonomous, clear, precise and detailed Recommendation, which might guide Member States along their path to fuller development. Eventually, it might pave the way for a Convention. The Conference should give this question all the attention it deserves, and perhaps reconsider the practice of almost systematically adopting a Convention and a Recommendation on the same subject.

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