CR.t\PTER I

INTRODUCTION

The International Labour Organisation (ILO) was established at the Paris Peace

Conference in 1919 for improving the conditions of labour involving injustice, hardship

and privation suffered by people and ensuring humane conditions of labour in order to

secure permanent peace of the world. 1 The ILO aims at the establishment of universal

peace based upon social justice.2 The Declaration of Philadelphia of 1944, which is now

an integral part of the Constitution of the ILO, affirms that all national and international

policies and measures, particularly those of an economic and financial character, should

be based on the principle that all human beings, irrespective of race, creed, or sex, have

the right to pursue both their material well-being and their spiritual development in

conditions of freedom, dignity, economic security, and equal opportunity.3 The ILO

derives its legal existence and powers from its own Constitution.4

1 Constitution of the International Labour Organisation and Standing Orders of the International Labour Conference (Geneva: International Labour Office, 1998), p.5; see Virginia A. Leary, "Labor", in Oscar Schachter and Christopher C. Joyner (eds.), United Nations Legal Order (Cambridge: Grotius Publications, Vol.l, 1995), p.476; see also Preamble in Section I of Part XIII "Labour" of the Versailles Peace Treaty of 28th June 1919, in Julius Hatschek, An Outline of International Law (London: G. Bell and Sons, 1930), p.333. In the Preamble to the Constitution of the ILO, its founder States declare that they are "moved by sentiments of justice and humanity as well as by the desire to secure the permanent peace of the world"; see Nicolas Valticos, "Fifty Years of Standard-Setting Activities by the International Labour Organisation", International Labour Review, vol.lOO, 1969, p.205. 2 Constitution of the ILO, ibid. The aims and purposes ofthe ILO were originally set forth in the Preamble to its Constitution and in a statement of methods and principles contained in Article 427 of the Treaty of Versailles. They were restated in 1944 in the Declaration of Philadelphia, which was incorporated in the Constitution of the ILO in 1946; see C. Wilfred Jenks, Social Justice in the Law of Nations: The fLO Impact After Fifty Years (London: Oxford University Press, 1970), p.l4. 3 Francis Wolf, "Human Rights and the International Labour Organisation", in Theodor Meron (ed.), Human Rights in International Law: Legal and Policy Issues (Oxford: Clarendon Press, Vo1.2, 1984), p.273. 4

See Jenks, n.2, p.l6. Part XIII of the Treaty of Versailles, 1919 formed the basic text of the original Constitution of the ILO. It is necessary to note that the Constitution of the Organisation formed part of the Treaty of Versailles of June 28, 1919 (Articles 387-427), Part XIII of the Treaty of Neuilly of November 27, 1919 (Articles 249-289) and Part XIII of the Treaty of Trianon of June 6, 1920 (Articles 315-355). In view of the different numbering of the articles of these different treaties and the fact that there were then twenty eight Members of the Organisation which were not the parties to any of them, it had become customary to refer to these provisions, at one time generally described as Part XIII of the Treaty of Versailles, as the Constitution of the International Labour Organisation and to use a numbering of the articles running form I to 41; see C. Wilfred Jenks, 'The Significance for International Law of the Tripartite Character of the International Labour Organisation", in Transactions of the Grotius Society, vo\.22, Problems of Peace and War, Papers Read Before the Society in the Year 1936 ( 1936), p.46, http://www.jstor.org/, 26 September 2005.

Initially, the ILO was created as an autonomous institution of the League of

Nations;5 and it was the only major intergovernmental organisation to survive the Second

World War and the demise of the League ofNations.6 In 1946, the ILO became the first

specialised agency of the United Nations through an agreement concluded between

them.7 The ILO materialises its aims and objectives primarily through the process of

standard-setting which results in the shape of international labour Standards. Standard­

setting is the first of the three functions of the ILO, all of which are closely inter-related. 8

Firstly, the International Labour Conference, the highest decision-making body, adopts

international labour Standards. They take the form of international labour Conventions

and international labour Recommendations, which constitutes a body of international

labour legislation. However, international labour Conventions and Recommendations

differ from the point of view of their legal character. While the Conventions are

international treaties designed to create international obligations for Member States

which ratify them, the Recorrimendations are not designed to create obligations but to

provide guidelines for government action,9 and hence are not open for ratification.

Secondly, the ILO performs resea~ch and information function where the International

5 Sunder Raman, fLO: Role of a Pace-setter (Delhi: Khosla Publishing House, 1978), p.l9. 6 Virginia A. Leary, "Lessons from the Experience of the International Labour Organisation", in Philip Alston (ed.), The United Nations and Human Rights: A Critical Appraisal (Oxford: Clarendon Press, 1992), p.582. 7 Articles 57 and 63 of the United Nations Charter provide that international organisations having wide responsibilities in economic, social, cultural, educational, health and related fields should be brought into relationship with the United Nations through agreements negotiated with these organisations by the Economic and Social Council, subject to the approval of the General Assembly. Such organisations brought into relationship with the United Nations are referred to in the Charter as "specialised agencies". The International Labour Conference, meeting in its 27th Session in Paris on 3 November 1945, adopted a resolution confirming the desire of the ILO to enter into relationship with the United Nations on terms to be determined by agreement. Accordingly, on the basis of the provisions contained in the United Nations Charter and in the Constitution of the ILO an agreement, dated 30 May 1946, was negotiated between the two organisations and subsequently approved by the General Assembly of the United Nations and the International Labour Conference of the ILO. The agreement come into force on 141

h December 1946, whereby the ILO became the first specialised agency of the United Nations system; see Joseph Sulkowski, "The Competence of the International Labour Organisation under the United Nations System", American Journal of International Law, vol.45, 1951, pp.302-303; see also Constitution ofthe ILO, n.1, p.74. 8 G. A. Johnston, The International Labour Organisation: Its Work for Social and Economic Progress (London: Europa Publications, 1970), p.88. 9 N. Valticos and G. von Potobsky, International Labour Law (Boston: Kluwer Law and Taxation Publishers, 1995), p.50. It may essentially be noted that occasionally the Standards take the form of Protocols, which are partial and optional revisions or amendments of earlier Conventions; and are binding, like the Conventions, on the Member States upon their ratification; see ILO, Handbook of Procedures Relating to International Labour Conventions and Recommendations (Geneva: International Labour Office, 1998), p.3.

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Labour office, the permanent secretariat of the ILO, was entrusted with the duty of

collecting and distributing information on all subjects relating to the international

adjustment of conditions of industrial life and labour. Thirdly, the ILO performs the

technical assistance or operational function. Here, the International Labour Office,

subject to such directions as the Governing Body, the executive wing of the ILO, may

provide to governments at their request all appropriate assistance within its power in

connection with the framing of laws and regulations on the basis of the decisions of the

International Labour Conference and the improvement of administrative practices and

systems of inspection. 10 It is significant to note that though the ILO's methods of

functioning have in fact been diversified over the years considerably with strong

emphasis on information and technical assistance, nevertheless, the standard-setting

remains the core of its work." 11

I.l. Tripartite Character of the ILO

Developing international labour Standards at the ILO is a umque legislative

process involving representatives of governments, workers and employers from the

Member States. 12 In other words, a distinctive element in the development of ILO

Standards, which sets them apart from other international standards, is the aspect of

tripartism. The participation of governments, along with the most representative workers'

and employers' organisations, is an integral part of the ILO. This is generally described

as the principle of tripartism. 13 It has been believed that the participation of all three

parties is necessary to find common ground for the achievement of social and economic

goals. 14 It is hence important to note that the composition of the two principal organs, the

10 In the original Constitution only first two functions were explicitly assigned to the ILO. The third function of technical assistance to Member governments was added in 1946 when the Constitution was revised; see Johnston, n.8. Moreover, the functions of the ILO can be summed up in three words, "legislation, information and technical assistance"; see Raman, n.S, pp.21-22. 11 Valticos, n.l, p.20 1. 12 ILO, Rules of the Game: A Brief Introduction to International Labour Standards (Geneva: International Labour Office, 2005), p.l4. 13 C.W. Jenks views that, "the real meaning of the tripartite principle is that industrial management, industrial labour and the community as a whole must all be represented by whoever is best qualified to represent them under whatever happens to be the economic and social structure of the country from which they come", see Jenks. n.2, p.l8. 14 !LO, Fundamental Rights at Work and International Labour Standards (Geneva: International Labour Office, 2003), p.l.

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International Labour Conference and the Governing Body, is itself tripartite as both the

organs consist of representatives from government, employers' and workers'

organisations. It is the tripartite character of the ILO, the new role of the employers' and

workers' organisations and representatives both in the formulation and in supervising the

application of international labour Conventions, which has so altered the nature of the

international legislative process as to make it necessary to reconsider, in respect of

international labour Conventions, the substance of the ordinary rules of treaty law. 15

I.2. India's Relationship with the ILO

India is a founder Member of the ILO. Although India was not irtdependent in

1919, the British Government gave an assurance thatBritish India was "democratically

administered" and upon this India was to be admitted to the ILO membership. 16 The

Government oflndia holds a permanent seat in the Governing Body of the ILO, as one of

the ten countries of chief industrial importance. 17 India and the ILO have certain common

aims and goals and are committed to world peace, social and economic justice. 18 It is

worth noting that there is a striking similarity between the goals of and the principles

cherished by the ILO (for example, the Declaration of Philadelphia) on the one hand and

the aims stated in the Preamble to the Indian Constitution (that is, justice, liberty, equality

and fraternity) and the Directive Principles enshrined therein on the other. 19 The

influence ofthe ILO on the Indian labour policy is remarkable. On the model of the ILO,

the Government of India has set up tripartite bodies such as the Indian Labour

Conference, the Standing Labour Committee and the Industrial Committee. The labour

policy followed by the Government is largely the hard work of these tripartite bodies and

all important legislative and other measures in the labour field are brought up before

these bodies for consideration.20 The approach of India with regard to international labour

15 Jenks, n.4, p.58. 16 Preeta Joshi, International Labour Organisation and its Impact on India (Delhi: B.R. Publishing Corporation, 1985), p.40; see also Aamir Ali, "Fifty Years of the ILO and Asia", International Labour Review, vol.99, 1969, pp.347-348. 17 Ministry of Labour at a Glance in the New Millennium, "India and the ILO", http://labour.nic.in/ glance/molglance.html, 24 October 2007. 18 Joshi, n.16, p.43. 19 L.R. Verma, "India and the International Labour Organisation", in J.N. Mongia (ed.), Readings in Indian Labour and Social Welfare (Delhi: Atma Ram and Sons, 1980), p.621. 20 Ibid., p.640.

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standards has always been positive. They have provided guidelines and useful framework

for the evolution of legislative and administrative measures for the protection and

advancement of the interest of labour. As ratification of a Convention imposes legal

obligations on the Member State concerned, India has been careful in ratifying

Conventions.21 India ratifies a Convention when it is fully satisfied that its laws and

practices are in conformity with that Convention. India considers that a better course of

action is to proceed with progressive implementation of the Standards, leaving the formal

ratification for consideration at a later stage when it becomes practicable.22 The

Government of India is of the view that labour standards should be promoted through

national laws and regulations and by pursuing appropriate economic and social policies.23

India has ratified 40 out of 188 Conventions, and 1 out of 5 Protocols of the ILO.

1.3. Treaty-Making Process at the ILO

The standard-setting process of the ILO is a unique process of treaty-making at

the international level, particularly amongst the United Nations and its other specialised

agencies.24 International labour Convention was described as "one of the most striking

innovations in the field of treaty-making which has occurred during the present

century".25 It was further stated that, "the international labour Convention differs from

the general run of treaties in its negotiation, its conclusion, its application, its durability,

and its essential juridical character".26 This fact can be substantiated by the following

characteristics of the international labour Conventions, which differentiate them from

general run of international treaties. Those characteristics also show that the treaty­

making process at the ILO is non-traditional in several significant respects. 27

21 Ministry of Labour, Government of India, "India and ILO", http://www.labour.nic.in/ilas/indiaandilo.htm, 24 October 2007. 22 Ibid. 23 Ministry of Labour at a Glance in the New Millennium, n.l7. 24 It may be said that the "standard-setting" at the ILO is a broader term in connotation to "treaty-making", as the former process contains the adoption of international labour Recommendations, which are non­binding in nature upon the Member States as they are not open to ratification. 25 Lord McNair, Selected Papers and Bibliography (Leiden: A.W. Sijthoff, 1974), p.335; see Virginia A. Leary, International Labour Conventions and National Law (The Hague: Martinus Nijhoff, 1982), p.6. 26 McNair, ibid., p.336; see Jenks, n.2, p.33. 27 Frederic L. Kirgis, Jr., "Specialised Law-Making Processes", in Oscar Schachter and Christopher C. Joyner (eds.), United Nations Legal Order (Cambridge: Grotius Publications, vol.l, 1995), p.II2.

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Firstly, the Conventions are adopted in an institutional framework. The adoption

of the 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.28

Secondly, 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.29

Thirdly, the desire to make Conventions effective explains another series of rules,

which were innovations in international law: (i) Conventions are not signed by the

Member States. They are adopted in plenary session of the Conference by a majority of

two-thirds votes cast. This shows that unanimity is not necessary for the adoption of

Conventions. The adopted Conventions are then signed by the President of the

Conference and Director-General of the International Labour Office; (ii) governments

should submit Conventions to their competent authority or authorities, as a rule to their

Parliaments,30 within whose competence the matter lies for the enactment of legislation

or other action (usually it is a matter of ratification and consequent action for domestic

implementation), normally within a period of one year, or if it is not possible owing to

exceptional circumstances to do so within the period of one year, then at the earliest

practicable moment and in no case not later than eighteen months from the closing of the

session of the Conference;31 (iii) governments are under an obligation to supply reports

on ratified Conventions32 and also on unratified Conventions33 as well as on

28 Valticos, n.9. 29 Ibid. 30 Ibid., p.51. 31 Article 19(5)(b) of the Constitution ofthe ILO. Similar rule is applicable in case of Recommendations under Article 19(6)(b) ofthe Constitution. 32 Article 22 of the Constitution provides that, "Each of the Members agrees to make an annual report to the International Labour Office on the measures which it has taken to give effect to the provisions of Conventions to which it is a party. These reports shall be made in such form and shall contain such particulars as the Governing Body may request". 33 Article 19(5)(e) provides that, "if the Member does not obtain the consent of the authority or authorities within whose competence the matter lies, no further obligation shall rest upon the Member except that it shall report to the Director-General of the International Labour Office, at appropriate intervals as requested by the Governing Body, the position of its law and practice in regard to the matters dealt with in the

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Recommendations34 as and when requested by the Governing Body of the ILO; (iv)

withdrawal of a Member State from the ILO in accordance with Article 1 paragraph 5 of

the Constitution, does not affect the vaiidity of obligations resulting from a ratified

Convention for the period provided for in the Convention. 35 lt is important to note that a

Member State is still under an obligation to submit the adopted instruments to the

competent authority and to supply reports on them to the International Labour Office

even if the votes of all four delegates of the Member State have been cast against the

adoption of instruments; 36 (v) Member States are bound to provide the copies of reports

to the representative employers' and workers' organisations in the reporting stage,37 and

these organisations may send their observations to the ILO. This enables these

organisations to apply pressure upon their governments to comply fully with their

obligations. 38

Fourthly, a striking feature of the treaty-making process at the ILO is that

Member States are not permitted to ratify Conventions appending reservations. This does

not mean that the corpus of international labour Conventions is rigid. 39 The rigidity of

this rule is tempered by the use of "flexibility devices" (in the form of clauses) provided

in the majority of the Conventions, which permit ratifying Member States some leeway in

their application of the provisions of the Conventions.40

The present study therefore aims at examining the nature and utility of flexibility

devices contained in various selected Conventions. But before going into the aspects of

flexibility devices as such, the study carries out an examination of the matter on the

Convention, showing the e:o.:tent to which effect has been given, or is proposed to be given, to any of the provisions of the Convention by legislation, administrative action, collective agreement or otherwise and stating the difficulties which prevent or delay the ratification of such Convention". 34 In case of Recommendations Member States have similar obligation in respect of reporting under Article 19(6)(d) ofthe Constitution. 35 Valticos, n.9, p.51. 36 Kirgis, n.27, p.ll3. 37 Article 23(2) of the Constitution provides that, "Each Member Shall communicate to the representative organisations recognised for the purpose of article 3 copies ofthe information and reports communicated to the Director-General in pursuance of articles 19 and 22". 38 Kirgis, n.27, p.ll4. 39 Jenks, n.2, p.30. 4° Kirgis, n.27, pp.l13-114.

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inadmissibility of reservations to ILO Conventions, which is the one of the basic factors

for the insertion of flexibility clauses in those Conventions.

1.4. Inadmissibility of Reservations to ILO Conventions

In order to understand effectively the feature of impermissibility of reservations to

ILO Conventions, it is at the outset designed to briefly look at the general meaning and

nature of reservations to international treaties. The process of multilateral treaty-making

would prove increasingly difficult with adverse consequences for international co­

operation without the flexibility in the treaties in order to have binding domestic

execution to treaties necessary to accommodate diverse State interests.41 The traditional

method of permitting flexibility was the practice of reservations.42 In general treaty­

practice, "Reservation" means a unilateral statement, however phrased or named, made

.by a State or an international organisation when signing, ratifying, formally confirming,

accepting, approving or acceding to a treaty or by a State when making a notification of

succession to a treaty, whereby the State or organisation purports to exclude or to modify

the legal effect of certain provisions of the treaty in their application to that State or to

that international organisation.43

The right to make reservations is a manifest action of the sovereignty of States

and of the principle of consent.44 The object of reservations is to exclude or modify the

legal effect of certain provisions of a treaty or of the treaty as a whole with respect to

certain specific aspects in their application to the State which formulates the

reservations.45 Though reservations are not unconditionally permissible, the making of

reservations is essentially a discretionary function of the government of the ratifying

State.46 Reservations become a necessity for a State which could not succeed to get its

41 Catherine Redgwell, "Universality or Integrity? Some Reflections on Reservations to General Multilateral Treaties", British Year Book of International Law, vol.64, 1993, p.247. 42 Jenks, n.2, p.29. It is to be noted that at no point of time the ILO has considered the flexibities provided within the Conventions to be tantamount to reservations. 43 Report of the International Law Commission, "Chapter VII: Reservations to Treaties", 52nd Session, 2000, p.222. 44 Yogesh Tyagi, "The Conflict of Law and Policy on Reservations to Human Rights Treaties", British Year Book of International Law, vol.71, 2000, p.l83. 45 Report of the International Law Commission, n.43, p.223. 46 Tyagi, n.44, pp.l85, 190.

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national assertions duly reflected in the formulation of a treaty.47 However, it is important

to note that under traditional international law no State Party could attach a reservation to

a treaty at signature, at ratification or even subsequently without the consent of all other

State Parties. This was based on the unanimity rule where the unanimous acceptance of

all other State Parties along with reserving State was required to a reservation. If any

State entitled to object to the reservation did so, either the reservation was withdrawn or

the reserving State was not regarded as a party to the treaty.48

Later, the International Court of Justice in 1951, in Reservations to the

Convention on the Prevention and Punishment of the Crime of Genocide case;~9 rejected

the unanimity rule viewing as it was directly inspired by a notion of contract in

appropriate to a multilateral Convention of the nature of the Genocide Convention. 50 In

respect of such a Convention one cannot speak of individual advantages or disadvantages

to States, or of the maintenance of a perfect contractual balance between rights and

duties. This is because the contracting States do not have any interests of their own; they

merely have one and all, a common interest, namely the accomplishment of those high

purposes which are the raison d'etre of the Convention.51 The Court opined that a

reserving State could be considered a party to the Genocide Convention notwithstanding

objection to its reservations by one or more Parties but not by others, so long as the

reservation was compatible with the object and purpose ofthe Convention. 52

Thus, the object and purpose ofthe Convention limit both the freedom of making

reservations and that of objecting to them.53 It follows that it is the compatibility of a

reservation with the object and purpose of the Convention that must furnish the criterion

for the attitude of a State in making the reservation on accession as well as for the

appraisal by a State in objecting to the reservation.54 The General Assembly approved

47 Ibid., p.255. 48 Redgwell, n.41, p.246. 49 Advisory opinion concerning Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Reports, 1951, pp.lS-55. Further, it will be mentioned as Genocide Case in the present study. 50 Redgwell, n.41, p.250. 51 Ibid., ICJ Reports, n.49, p.23. 52 Redgwell, n.4 I, pp.250-251. 53 ICJ Reports, n.49, p.24. 54 Ibid.

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advisory opinion; and the International Law Commission kept under review the aspects

of reservations to treaties. Later on, aspects of reservations were codified in Article 19 of

the Vienna Convention on the Law of Treaties, 1969. Pursuant to Article 19, a State may

when signing, ratifying, accepting, approving, or acceding to a treaty, formulate a

reservation unless (a) the reservation is prohibited by the treaty; (b) the treaty provides

that only specified reservations, which do not include the reservation in question, may be

made; or (c) the reservation is incompatible with the object and propose oftreaty.55

As far as the matter of reservation to international labour Conventions is

concerned, from the outset till date the ILO has been following a different practice. The

ratification of international labour Conventions subject to reservations has always been

regarded as inadmissible. 56 In other words, the consistent Constitutional practice of the

ILO has been that reservations to labour Conventions are impermissible. No exception

has ever been made which has been justified by the International Labour Office on the

ground that circumstances prompting such an approach are themselves extraordinary and

flow from the unique juridical character and function of the international labour

Conventions.57 Though international labour Conventions are international treaties, a form

of flexibility can not be introduced through allowing ratification of Conventions subject

to reservations. It has been the consistent and long-established practice of the ILO not to

accept for registration instruments of ratification of international labour Conventions

when accompanied with reservations. 58 The practice is not based on any explicit legal

provision of the Constitution, the Standing Orders of the International Labour

Conference, or the international labour Conventions, but finds its logical foundation in

the specificity of labour Conventions and the tripartite structure of the Organisation.59

The main reason for the firm stand of the ILO lies in the fact that its Conventions do not

affect Member States exclusively but also private labour and management groups.

Because of its special function, that is the protection of labour and management at the

global level, the traditional type of reservation has repeatedly been rejected. Specifically,

55 Tyagi, n.44, p.l86. 56 The International Labour Code, 1951 (Geneva: International Labour Office, vol.l, 1952), p.XCIX. 57

J. F. McMahon, "The Legislative Techniques of the International Labour Organisation", British Year Book of International Law, vol.41, 1965-66, p.77. 58 Report of the International Law Commission, n.43, p.231. 59 Ibid.

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the ILO Conventions are intended to serve as instruments facilitating the establishment of

a world-wide network of minimum labour standards, incorporating far more than

governmental interests. 60

The matter of inadmissibility of reservations to international labour Conventions

was pointed out by the ILO in two Memoranda: (i) the March 1927 Memorandum

submitted by the ILO Director to the Committee of Experts for the Progressive

Codification of International Law of the League of Nations on the Admissibility of

Reservations to General Conventions: and (ii) the Memorandum submitted by the ILO to

the International Court of Justice in 1951 in connection with the Genocide Case.61

In the 1927 Memorandum the Director of the International Labour Office

maintained inter alia as follows:

If reservations made on the occasion of ratification were accepted, a legal deadlock would inevitably be reached; every State would thus be contracting engagements of varying scope according to the significance of its reservations. This argument may be applied in a very general way to all collective treaties; but, in the case of international labour conventions, it has a special importance, on which stress must be laid. The object of the International Labour Organisation is to safeguard conditions of labour against the detrimental influence of international competition; and this is the reason why international labour conventions must establish a network of mutual obligations among the various States. It is essential that exact reciprocity should be preserved in these obligations, and to that end the Peace Treaties establish an extremely detailed procedure for the enforcement of the conventions. It is perfectly obvious that the admission of reservations on the occasion of ratification would soon destroy the practical value of the international engagements in question and upset the balance which it is the object of the conventions to establish as regards industrial competition. The procedure of enforcement would become inoperative, and the entire system of the International Labour Organisation would collapse.62

Besides, the Memorandum adduced three grounds on which the admissibility of

reservations to international labour Conventions must be rejected. The first was the

tripartite character of the Organisation in reference to which the Memorandum observed

that the rights which the treaties have conferred on non-governmental interests in regard

to the adoption of international labour Conventions would be overruled if the consent of

60 Paul Gormley, "The Modification of Multilateral Conventions by Means of "Negotiated Reservations"

and Other "Alternatives": A Comparative Study of the ILO and Council of Europe-Part One", Fordham Law Review, vol.39, I 970-l97I, p.66. 61

Report of the International Law Commission, n.43, p.23 I. 62 Gormley, n.60.

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governments alone should suffice to modify the substance and detract from the effect of

the Conventions; secondly, the International Labour Conference is under an obligation

under Article 19(3) of the Constitution of the Organisation to give preliminary

consideration to the special circumstances of each country, a fact in virtue of which it is

not for individual countries to formulate at a later stage in the shape of reservations

proposed modifications to meet their individual circumstances; and thirdly, the admission

of reservations would serve only to frustrate the object of the Organisation and the

function of international labour Conventions, which was to establish a network of mutual

obligations among the various States and it was deemed essential to preserve exact

reciprocity in these obligations. The League Committee of Experts after examining the

memorandum reported to the Council of the League that the main contention of the

memorandum is entirely accurate and that it rightly draws attention to the objections to

any unilateral reservation or modification which a State might claim to attach to its

assent.63

Most importantly, the matter of inadmissibility of reservations was made clear by

the ILO in the 1951 Memorandum submitted to the International Court of Justice in

connection with the Genocide case. The ILO has stated that international labour

Conventions are adopted and entered into force by a procedure which differs in important

respects from the procedure applicable to other international instruments and that the

special features of this procedure have always been regarded as making international

Labour Conventions intrinsically incapable of being ratified subject to any reservation.64

In order to categorically understand the practice of the ILO on the inadmissibility

of reservations, it is essential to see those cases, mentioned in the Memorandum, in which

some Member States have brought the instruments of ratification appending reservations.

For the first time, in 1920, the International Labour Office was requested by the Polish

Government to advice on the question whether it would be possible to ratify three

63 k Jen s, n.4, pp.59-60; McMahon, n.57, p.80. 64

Memorandum submitted by the ILO to the International Court of Justice in the Genocide Case (Geneva: ILO Official Bulletin, vol.34, 1951), pp.274-312, at p.275. See The International Labour Code, n.56, pp.XCIX-C.

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international labour Conventions65 subject to reservations. The Office replied that

reservations would not be possible, and that such procedure would appear to be contrary

to the spirit of the Labour Part of the Treaty of Versailles, 1919.66 The Office had

justified its Constitutional practice on three grounds: first, it was undoubtedly the

intention of the Treaty that any modifications necessary should be considered by the

Conference and dealt with by it in the Convention if it thought fit; second, when the

Conventions were adopted by the International Labour Conference, there was no

exchange of ratification and so no opportunity for other States to express assent or dissent

when ratifications were communicated to the Secretary-General67 of the League of

Nations; and third, as the international labour Conventions were negotiated by a tripartite

body, the government alone should not have the chance of acquiescing in a reservation ._.-

put forward by a country. This view of the Office was accepted by the Polish

Government, and subsequently it ratified one of the Conventions without a reservation68

and abstained from ratifying the other two.69

In 1921 the Government of India informed the Secretary-General of the League of

Nations when ratifying certain Conventions that if ratification subject to reservations was

permissible it was also prepared to ratify the Minimum Age (Industry) Convention, 1919

(No.5). The Secretary-General communicated the letter of the Government of India to the

International Labour Office. The Office advised that ratification subject to reservations

was not permissible and the Government accepted that view, which was confirmed when

explaining its inability to ratify the Minimum Age (Sea) Convention (Revised), 1936

(No.58). 70

In 1928 the Cuban Government communicated to the Secretary-General of the

League of Nations instruments of ratification of eight Conventions, out of which the

65 The Unemployment Convention, 1919 (No.2). the Maternity Protection Convention, 1919 (No.3) and the Night Work (Women) Convention, 1919 (No.4). 66 Memorandum, n.64, pp.282-283. See McMahon, n.57, p.78. 67 During the period of the League of Nations, the Secretary-General of the League of Nations was responsible for the registration of the instruments of ratification oflnternational Labour Conventions. 68 On 26 June 1924 Poland ratified the Unemplo\ment Convention, 1919 (No.2) without reservation. ~ -

Memorandum, n.64, pp. 282-284. See McMahon, n.57, pp.78-79. 70 Memorandum, ibid., pp.282-283.

13

ratification of three Conventions 71 contained reservations. The Secretary-General

consulted the Director of the International Labour Office before registering the

ratifications. The Office took the view that reservations were inadmissible; and this view

was accepted by the Secretary-General and by the Cuban Government, which

subsequently ratified the Hours of Work (Industry) Convention, 1919 (No. I) without

reservations in 1934. The instruments of ratification of other two Conventions were not

registered. 72

Again in 1936 when a decree was submitted to the Peruvian Congress proposing

the ratification of certain Conventions subject to reservations, the International Labour

Office drew the attention of the Peruvian Government to the legal impossibility of such

reservations. The Peruvian Minister of Foreign Affairs acknowledged the validity of the

thesis put forward by the Office, transmitted the communication received by the Office to

the Congress, and suggested the withdrawal of the proposed reservations. 73

Moreover, the arguments put forward by the ILO in the 1951 Memorandum can

be summarised in the following words: The principle of customary international law on

the basis of which a rese·rvation to the ratification of international Conventions in certain

circumstances may be regarded as admissible, for such Conventions are simply an

expression of the will of, and in a sense the exclusive property of, the States which are

parties to them, and are subject to modification at any time if the consent of all States can

be. obtained, has no application to international labour Conventions. They are not the

exclusive property of the parties theret9 but are governed by special rules consisting of

the accepted principles of treaty law and practice as qualified by the Constitution of the

Organisation, the body of accepted Constitutional practice which has developed in the

course of years on the basis of the Constitution, and relevant provisions of the individual

Conventions. 74

· 71 The Hours of Work (Industry) Convention, 1919 (No.I), the Weekly Rest (Industry) Convention, 1921 (No.14); and the Inspection ofEmigrants Convention, 1926 (No.21). 72 Memorandum, n.64, p.283. 73 Ibid. 74 Ibid., p.287.

14

In addition, special considerations are applicable to international labour

Conventions as: they are adopted by a Conference with a unique tripartite composition by

a special procedure as provided in the Constitution of the Organisation; the Constitution

of the Organisation requires the submission of Conventions to national competent

authorities, normally legislatures, in the form in which they were adopted by the

Conference, and provides for ratification when the consent of the competent authority is

obtained; the Constitution of the Organisation grants to employers' and workers'

organisations rights to invoke and to initiate procedures in connection with the

application of the provisions of Conventions, and gives their representatives an important

place in the international organs entrusted with the supervision of such application; they

are designed to promote uniformity of conditions and such purpose would be frustrated if

reservations were permitted, so derogating from the international network of the mutual

obligations; the Constitution of the Organisation provides a procedure for the

modification of the provisions of the Conventions to meet special circumstances, and

provision has therefore been made for the necessary flexibility by other procedures

expressly sanctioned by the Constitution and the Conference; and the Constitution of the

Organisation provides for a system of reports as an alternative to the acceptance of

international obligations in cases in which a member is not in a position to accept the full

obligations of a Convention. 75

The Court found it unnecessary to comment on the matter for the purposes of the

Genocide Case, but the International Law Commission, which was invited by the General

Assembly of the United Nations to study the question of reservations to multilateral

conventions both from the point of view of codification and from that of the progressive

development of international law in connection with the above case, subsequently

included in the report to the General Assembly on the work of its Third Session the

following reference to the subject: "Because of the its Constitutional structure, the

established practice of the International Labour Organisation as described in the written

statement dated 12 January 1951 of the Organisation submitted to the International Court

of Justice in the case of reservations to the Convention on Genocide, excludes the

75 Ibid., pp.287-288.

15

possibility of reservations to international labour Conventions. However, the texts of

these Conventions frequently take account of the special conditions prevailing in

particular countries by making such exceptional provisions for them as will admit of their

proceeding to ratification; indeed, this course is enjoined on the General Conference by

Article 19(3) and other Articles of the Constitution of the Organisation".76 Hence, it is

significant to note that a measure of flexibility cannot be introduced into international

labour Conventions by way of reservations, and this aspect makes the present study of

flexibility devices in ILO Conventions very essential.

1.5. Flexibility Devices

In framing Conventions and Recommendations, various problems of substance or

form are encountered. As Conventions and Recommendations are generally directed to

countries with different economic, social and political conditions, as well as different

constitutional and legal systems, they raise the problem of the appropriate level of

Standards which they should contain.77 The Constitution of the ILO does not require

different Standards on conditions of employment to be formulated for different countries

or regions.78 Besides, as discussed above, the Conventions cannot be ratified by Member

States appending reservations, which are wholly inadmissible under the ILO practice.

While framing the Standards, it has been therefore important not only to decide, in each

case, what the appropriate level of a Standard should be, but also to avoid that the

Standard may concern only a more or less limited group of countries because of its level.

The aim has been to frame Standards which will be relevant to the greatest number of

countries.79 In other words, Standards must be so framed as to have due regard to

differences in levels and conditions of development, in order to allow the greatest number

of countries to implement progressively the protection envisaged in them. 80 To this end,

the ILO Constitution directs that in drawing up the Conventions and Recommendations

due regard should be paid to the need for flexibility in· order to make allowance for

76 The International Labour Code, n.56, p.CI. 77 Valticos, n.9, pp.SS-56. 78 J.M. Servais, "Flexibility and Rigidity in International Labour Standards", International Labour Review, vol.l25, no.2, 1986, p.194. 79 Valticos, n.9, p.57. 80 Report of the Conference Committee on the Application of Conventions and Recommendations. General Report, International Labour Conference, 77th Session, 1990, para.17.

16

differences of conditions prevailing in different countries. 81 In this regard, Article 19(3)

of the Constitution provides that, "In framing any Convention or Recommendation of

general application the Conference shall have due regard to those countries in which

climatic conditions, the imperfect development of industrial organisation, or other special

circumstances make the industrial conditions substantially different and shall suggest the

modifications, if any, which it considers may be required to meet the case of such

countries".

The International Labour Conference is thus expressly required to introduce an

element of flexibility into the instruments it adopts. In this respect, the International

Labour Conference has gradually evolved a wide range of flexibility devices for the

purpose of permitting and circumscribing the needed flexibility in the Conventions. The

flexibility devices are introduced in the form of flexibility clauses, the general effect of

which is to leave certain matters to national discretion on prescribed conditions and

within defined limits and in certain cases to define the extent of the obligation undertaken

at the time of ratification by a procedure and within limits defined by the Convention

itself. 82 Therefore, the essential purpose of flexibility is to afford a choice in the range,

nature and level of protection to be provided. In drawing up standards, flexibility may be

necessary to take into account the differences in the levels and conditions of development

of Member States, but which must be incorporated without prejudicing the universal

prospective in which Standards must be adopted. 83 There was agreement among the

governments and occupational organisations that international labour standards should

continue to be drawn up on a universal basis, and that they should be conceived so as to

respond to the needs of all Member States. The principle of universality84 necessarily

81 Follow-up to the Report of the Governing Body Working Party on International Labour Standards, 244th Session, G.B.244/SC/3/3, (Geneva: International Labour Office, 1989), p.3. 82 Jenks, n.2, p.30. 83 Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III, Part 4A, International Labour Conference, 77'h Session, 1990, para.48, p.22. 84 The Government members of Cuba and Japan particularly stressed that the principle of universality implies also effective participation by a greater number of States in the process of elaboration of standards in order to reach as wide a consensus as possible; see Report of the Conference Committee on the Application of Conventions and Recommendations, General Report, International Labour Conference, 81 st

Session, 1994, para.229. According to the Government member of Saudi Arabia flexibility of standards shall enable them to be adapted to conditions in various Member States and their variable ability to comply

17

implies also the effective participation, on an equal footing, of the greatest number of

Member States in the process of selecting and preparing international labour Standards.

In order to maintain its thrust, the body of ILO Standards should be capable of

adaptation, in an appropriate manner and time, to perceived or emerging changes

affecting working life. 85 Besides, universality in the application of standards means that

there should be no relativity or "double standards" in their interpretation and the manner

in which they are supervised by the ILO. 86 On the whole, from the above discussion what

emerges precisely is that factors that the maintenance of the universal character of

instruments and inadmissibility of reservations into them have also necessitated the

introduction and promotion of flexibility devices in international labour Conventions by

the ILO. In short, the ILO Conventions are provided with in-built flexibility mechanism.

1.5.1. Constitutional Base for Flexibility

The genesis of flexibility in respect of international labour Conventions can be

traced back to the 1919 Constitution of the ILO itself. Article 19(3) of the Constitution,

which is often referred to as the "Special Countries Clause", is the first basic provision

designed to recognise and provide for the flexibilities in the Conventions. This provision

was originally interpreted as limited to countries explicitly specified in the Convention to

be authorised for the application of stated modification of the normal Standard prescribed

by the Convention. 87 The formula contained in Article 19(3) concerning the cognizance

to be taken, when framing a Recommendation or Convention, of countries in which

climatic conditions, imperfect development of ind_ustrial organisations or other special

circumstances make the industrial conditions substantially different, was not considered

by the Commission on International Labour Legislation but was put forward

with standards, although that does not mean less attachment to the principle of universality and indivisibility of standards; see ibid., para.227. 85

Report of the Governing Body Working Party on International Labour Standards (Geneva: ILO Official Bulletin, vol.70, series A, 1987), para.6. 86

In this regard, the Workers' members at the Conference Committee has considered that the principle applies to the manner in which the Committee selects and treats individual cases and at neither stage different criteria shall be used according to a Member State's economic or strategic importance, and that there shall be equal treatment among Member States; Report of the Conference Committee on the Application of Conventions and Recommendations, General Report, International Labour Conference, 801

h

Session, 1993, para.46. 87

C. Wilfred Jenks, Flexibility in International Labour Conventions (Geneva: International Labour Office, 1960), p.3.

18

subsequently at the proceedings of the preliminary Peace Conference. India attached

great significance to such a provision which was only the first of innumerable subsequent

devices attempting to accommodate and regulate within one Convention or

Recommendation unduly disparate economic and social circumstances.88

Under the Hours of (Industry) Convention, 1919 (No.I ), for example, seven

countries mentioned by name were permitted to deviate from and to modify the normal

Standard. 89 However, the application of the provision in such a limited manner proved

unsatisfactory. In 1946 first conscious attempt was made to include in a group of

Conventions, namely the Medical Examination of Young Persons (Industry) Convention

(No.77), the Medi~al Examination of Young Persons (Non-Industrial Occupations)

Convention (No. 78), provision for modifications of the normal Standard not limited to

countries specified by name but applicable to all countries fulfilling a prescribed

condition. 90 Thus, the latter interpretation has made the Article 19(3) more effective in

respect of promotion of Conventions through the provision of flexibility.

Article 19(9) of the Constitution as framed in 1919 was another provision

designed to mitigate the rigour of obligations contained in ILO Conventions. This clause,

which is commonly referred to as the "Federal States Clause", provided that "in the case

of a Federal State, the power of which to enter into Conventions on labour matters is

subject to limitations, it shall be in the discretion of that Government to treat a draft

Convention to which such limitations apply as a Recommendation only, and the

provisions of this Article with respect to Recommendations shall apply in such case". But

this was never a satisfactory provision and it was taken over in 1946 by what is now

Article 19(7). It therefore has no continuing influence on the current problem.91

Further, Article 35 of the Constitution, which is commonly referred to as the

"Colonial Application Clause", gives rise to flexibility in respect of application of

Conventions to non-metropolitan territories. The original Article obliged Member States

88 McMahon, n.57, p.9. 89

Ibid., p.31. Japan under Article 9; British India under Article 1 0; China, Persia, and Siam under Article II; Greece under Article 12, and Rumania under Article I3 of the Hours of Work (Industry) Convention, I919. 90 Jenks, n.87, p.6. 91 Ibid., pp.7-8.

19

to apply the Convention which they had ratified to their colonies, protectorates and

possessions which were not fully self-governing, except where owing to the local

conditions the Convention might be inapplicable or subject to such modifications as

might be necessary to adapt the Convention to local conditions. This Article was

superseded by a more detailed Article in 1946 when the Constitution was amended. The

new Article had taken cognizance of a case where the subject-matter of the Convention

was within the self-governing powers of the territory.92 Both the original Article and the

amended Article provided for a flexibility clause permitting modification of the

obligations contained in a Convention when this was necessary to adapt the Convention

to local conditions.93 Thus, of the three provisions providing for flexibility contained in

the Constitution as framed in 1919 only one now remains in force in its original form,

that is, the Special Countries Clause, though the same can not be applied effectively in

the manner in which the Conference attempted to apply.94

There are two other circumstances which reinforce the spirit and the general need

for flexibility in the international labour Conventions. First, under second paragraph of

Article 41 95 of the Constitution, the general concept of flexibility was expressed through

the declaration of general principles. The second paragraph of Article 41 provides that,

"They (The High Contracting Parties) recognise that differences of climate, habits and

customs, of economic opportunity and industrial tradition, make strict uniformity in the

conditions of labour difficult of immediate attainment. But holding as they do that labour

should not be regarded merely as an article of commerce, they think that there are

methods and principles for regulating labour conditions which all industrial communities

should endeavour to apply, as far as their special circumstances will permit" (emphasis

added). 96 Second, the Declaration of Philadelphia of 1946, which is an integral part of the

92 McMahon, n.57, p.33. 93 Ibid., p.34. 94 Jenks, n.87, p.9. 95 Article 41 was abrogated owing to the comment made in the report of the Conference Delegation on Constitutional Questions on the basis of which the Constitution was revised in 1946. The report felt that in view of the proposed incorporation in the Constitution of the Organisation of the Declaration of Philadelphia, it would seem unnecessary to retain in the Constitution Article 41, which sets forth certain methods and principles for regulating labour conditions which were regarded in 1919 as being of special and urgent importance; see The International Labour Code, n.56, p.24. 96 McMahon, n.57, p.34; Jenks, n.87, pp.9-1 0.

20

Constitution, provides for the concept of flexibility while paving the way for progressive

application ofthe Declaration among Member States. The Declaration concludes with the

affirmation "that the principles set forth in this Declaration are fully applicable to all

peoples everywhere and that, while the manner of their application must be determined

with due regard to the stage of social and economic development reached by each people,

their progressive application to peoples who are still dependent, as well as to those who

have already achieved self-government, is a matter of concern to the whole civilized

world". 97

1.5.2. Structure and Nature of Flexibility

The majority of Conventions are drafted in such away as to afford the maximum

amount of flexibility consonant with the assumption by a Member State of a real measure

of obligation. Accordingly, the Convention is often short in the form and restricted in the

formulation of a few broad obligations. It is not encumbered by unnecessary details

which might only serve to delay ratification and may be dealt with more appropriately in

the form of a Recommendation. The normal Convention is composed of a brief preamble,

a few general obligations, a number of exceptions, implementing provisions which allow

wide discretion to the national authority and the final clauses concerning ratification,

denunciation, duration and revision. 98

More generally, flexibility has always been seen as a key element in the ILO

Constitutional theory and practice. It has remained a basic parameter for the standard­

setting at the ILO. The Conference Delegation on Constitutional Questions, which

formulated the instruments of Constitutional amendment of 1946, in its first Report has

observed that, "flexibility is the first essential good of a constitution. The circumstances

in which it may have to be applied in the future cannot now be foreseen and are likely to

change greatly in the course of years. Flexibility allows of growth and of adaptation to

Tt-t- t s-cr'11: -97 McMahon, ibid., pp.34-35; Jenks, ibid., p.ll. Apart from these two circumstances, a measure of flexibility in Conventions was also felt to be needed by the Conference Delegation on Constitutional Questions in 1946; see McMahon, ibid., p.35. 98 Leary, n.25, p.8.

21

the needs and opportunities of the unknown future; rigidity is likely to result in frustration

rather than progress". 99

It is therefore instructive to understand the extent to which the flexibilities are

made available during the formulation of international labour Conventions. This requires

a systematic examination of flexibility devices based on the study of form and substance

of flexibilities. The present study is aimed at exploring and analysing the flexibility

devices developed by the ILO through various clauses in Conventions, which can be

broadly placed under the following heads: flexibility in objective of Conventions; scope

of applic~tion including geographical coverage; standards and methods of

implementation; and emergencies.

1.5.3. Forms ofFlexibility

Exploring flexibility in the Conventions on the basis of their objectives, certain

Conventions can be categorised into (i) promotional Conventions and (ii) Convention of

principle. An important form of flexibility is provided by the adoption of promotional

Conventions. 100 They 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. Among several promotional Conventions, the

Employment Policy Convention, 1964 (No.122), which was ratified by India, is an

important example. On the other hand, the only Convention of principle, that is the Forty­

Hour Week Convention, 1935 (No.47), requires a particular objective to be achieved by

ratifying States, while leaving the measures to secure that objective to those States. 101

Flexibility in scope allows a great amount of discretion on the competent

authority in definition, interpretation, and application of the provisions of the

Conventions by reference to special local circumstances. In some Conventions,

governments may decide for themselves, subject to certain consultations, what the scope

99 George P. Politakis, "Deconstructing flexibility in International Labour Conventions", in Jean-Claude Javillier et Bernard Gemigon (sous Ia direction de), Les normes internationales du travail: un patrimoine pour l'avenir- Melanges en l'honneur de Nicolas Valticos (Geneve: Bureau international du travail, 2004), p.463. 10° Follow-up to the Report of the Governing Body Working Party, n.81, p.5. 101 Jenks, n.87, p.43.

22

of the Conventions shall be. 102 An appropriate discretionary clause can be found in the

Labour Inspection Convention, 1947 (No.81). Flexibility in scope of application can be

attained through the use of exclusionary clauses. They may take the form of permanent

exceptions involving explicit exclusion clauses, temporary exceptions, and escalator

clauses. Precisely, they offer exclusion, exception or exemption from the nonnal

operation of the provisions ofthe Convention in question. Further, flexibility in scope can

also be achieved by allowing ratification of Conventions in parts. 103 For instance, the

Social Security (Minimum Standards) Convention, 1952 (No.102), allows its ratification

in parts, where acceptance of three out of nine branches is sufficient for ratification.

Flexibility in scope can also be had in some Conventions by employing a device of

excluded area clause, which is called flexibility in geographical coverage. The device is

used in a Convention to exclude the less developed areas in a concerned Member State

from the operation of the Convention. 104

Flexibility in Conventions can also be attained in terms of standards, which can be

expressed in Conventions through the use of broad concepts of flexible character, such

as, "adequate", "appropriate", "effective", "fair", "reasonable", "sufficient", and

"suitable", as a question of judgement in determining how much detail is needed to

include in a Convention, and what degree of generality or precision a Convention should

have. 105 Flexibility in terms of special clauses for specified countries, which has been

discussed above with reference to special countries clause, embodying modifications of

the normal Standard in the manner envisaged by Article 19(3) of the ILO Constitution

can be found in certain Conventions. Further, flexibility in Conventions can be seen

through different methods of giving effect to the Conventions. It means that clauses can

be found in the Conventions allowing Member States to implement them through national

laws, collective agreements, work rules, arbitration awards, and court decisions. 106

Flexibilities are made available in certain Conventions taking into consideration the

application with respect to federal States as they pose a special problem owing to the

102 Valticos, n.9, p.58. 103 Jenks, n.87, p.44. 104

N. Vaidyanathan, International Labour Standards: A Hand Book (Calcutta: Minerva Associates, 1977), p.12. 105 Jenks, n.87, p.62. 106 Valticos, n.9, p.60.

23

division of legislative and administrative authorities to give effect to the provisions of the

Conventions between the federal Government and the federated units. 107 So, under the

flexibility in application to federal States, the operation ofthe Conventions can be limited

to the regulation ofthe central authority of the federal or state governments.

Certain Conventions allow for the suspension of all or some of the provisions in

case of emergency. This may include national emergency in the event of war or other

emergency endangering national safety. Besides, in certain Conventions the flexibility is

made available to deal with the cases ofjorce majeure. 108

1.5.4. India on Flexibility

As far as India is concerned, it is relevant to note that India has found it necessary

to have flexibility devices in international labour Conventions. In this respect the

Government of India at the Seventieth Session of the International Labour Conference in

1984 suggested that all efforts should be made to divide an ILO Convention into three

parts. The first part could enunciate principles and objectives ofthe proposed instrument,

the second part could prescribe the minimum standards, which may be within the reach of

the least developed and developing countries in the near future which are in the nature of

absolute minimum standards for ratification, and the third could provide for higher

standards, as a long-term objective to be achieved by all. 109 The overall effect of the

flexibility devices is often similar to that sought by the Indian suggestion. 110 India has

observed that the need for flexibility in ILO Standards has all along been emphasised by

the developing countries, but the Standards adopted based on the experience of the

developed countries have been rigid in their coverage and application. 111 That means

most of the developing countries found it difficult to ratify or implement them because of

the scope and coverage envisaged by these Conventions are very wide and such coverage

is not practicable due to the constraints of resources or other problems. So, if flexibility

107 The International Labour Code, n.56, p.LXXIX. 108 Jenks, n.87, pp.II4-115. 109 P.A. Sangma (ed.), India in fLO (1969-1993) (NOIDA: National Labour Institute, 1994), p.I63. 11° Follow-up to the Report ofthe Governing Body Working Party, n.81, p.l6. 111 Sangma, n.l09, p.l53.

24

devices are provided they will facilitate the ratification of many Conventions.112

On the

other hand, in respect of ratification and implementation of Conventions, India needs to

review its laws, regulations and practices in consultation with employers' and workers'

organisations in the light of flexibility devices provided within the Conventions.

1.5.5. Workers and Employers on Flexibility

Though the aim of flexibility in the Conventions is not frequently contested, there

are however different attitudes in the interpretation of the notion and the desired level of

flexibility particularly by employers' and workers' organisations. Wi1iie employers'

representatives were in favour of more flexible and less detailed standards, as they

attributed the low number of ratifications to the technicality or inflexibility of certain

instruments, the workers' organisations considered that excessive flexibility would render

standards meaningless and warned of the dangers of adopting minimalist Conventions

lacking clearly-defined obligations. 113 According to certain Workers' members trade

unions are not against flexibility in the sphere of labour so long as equilibrium between

workers' and employers' interests is not damaged to the detriment of the former.

Flexibility must not mean enabling governments to apply or not to apply standards or to

interpret them as they wish. 114

It may therefore be noted that the representative employers' and workers'

organisations play a key role in the formulation, ratification and implementatio_n of

Conventions in Member States. In this respect, government needs to have prior

consultation with these organisations for the implementation of the provisions of the

Conventions. For instance, Article 5(1) of the Night Work (Women) Convention

(Revised), 1948 (No.89) provides that, "The prohibition ofnight work for women may be

112 Ibid., p.l64. India has again taken a supportive stand on the inclusion of flexibility in the Conventions by expressing that objective should be to adopt a flexible Convention so that a large number of Member States are able to ratify it; see ibid., pp.221-222. 113 Politakis, n.99, pp.468-469. 114 Report of the Conference Committee, n.84, para.l5; In this regard, the Workers' member of Germany observed that many Conventions contain flexibility clauses enabling their scope to be limited so that the small numbers of ratifications of them cannot be attributed to lack of flexibility. For new Conventions, there should be as concrete provisions as possible, in order to avoid doubt as to their purpose; and he further observed that the Employers' members were self-contradictory when they came out in favour of Conventions with no concrete content while at the Same time criticising the supervisory system, whose function is to give substance to the contents of Conventions; ibid.

25

suspended by the government, after consultation with the employers' and workers'

organisations concerned, when in case of serious emergency the national interest

demands it". This shows that the employers' and workers' organisations must be

consulted beforehand for making use of flexibilities provided in the Convention.

Therefore, the study is also intended to see the role played by the employers' and

workers' organisations in respect of the inclusion and utilisation of flexibility in

Conventions.

1.6. Objectives of the Study

The present study is intended:

1. To explore to what extent the flexibility devices are made available m

international labour Conventions during their formulation.

2. To examine how far the flexibility devices help ratification and implementation of

international labour Conventions within the domestic sphere of Member States.

3. To analyse how far unratified international labour Conventions can be

progressively implemented in the light of flexibility devices.

4. To know the role of the representative employers' and workers' organisations on

the inclusion of flexibility devices in international labour Conventions and their

domestic application.

5. To assess to what extent India has availed of the flexibility devices in

international labour Conventions during the stages of ratification and domestic

application.

1.7. Scope of the Study

The present study is principally based on the up-to-date Conventions and Protocols of the

ILO. 115 There are seventy-five up-to-date Conventions out of total 188 Conventions, and

115 The ILO Governing Body in 1995 set up a tripartite working party for detailed examination of the international labour Standards. The working party completed its work in 2002. The Governing Body on the basis of the examination of Standards by the tripartite working party came to a conclusion that out of 184 International Labour Conventions, a total of 71 Conventions are up-to-date and should be promoted on a

26

five Protocols. The Conventions, which will be dealt with in the present study, broadly

relate to the areas of basic human rights, employment, labour administration, conditions

of work, occupational safety and health, and sociai security. The study does not include

Conventions relating to seafarers, indigenous and tribal peoples, dockworkers,

plantations, tenants and share-croppers, nursing personnel, and hotels and restaurants, as

they can be individual subjects of study. Yet, as complementary, the study may have

cross-reference to them. The study does not include international labour

Recommendations except for references. Therefore, the study primarily focuses on eight

fundamental (core) human rights Conventions, 116 four priority Conventions, 117 five up-to­

date Conventions and a Protocol 118 ratified by India falling within the areas dealt with in

the study. Further, the study also specially examines eight more Conventions119 which are

pnonty basis. For reasons of clarity, the decisions taken by the Governing Body with regard to Conventions and Recommendations have been arranged into five catego·ries: "Up-to-date instruments", "Instruments to be revised", "Outdated instruments", "Requests for information", and "Other instruments". The up-to-date Conventions include the fundamental and priority Conventions and Conventions adopted since 1985, and those the implementation of which the Governing Body has decided to promote following the recommendations of the Working Party; see Follow-up to the Recommendations of the Governing Body Working Party on Policy Regarding the Revision of Standards, 283rd Session, G.B.283/LILS!WP/PRS/l/2, (Geneva: International Labour Office, 2002), pp.1-45. 116 Eight international labour Conventions have been identified by the Governing Body of the ILO as being fundamental to the rights of human beings at work, irrespective of levels of development of individual Member States. These rights are a precondition for all the others in that they provide for the necessary implements to strive freely for the improvement of individual and collective conditions of work. The core Conventions are: (i) Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.87); (ii) Right to Organise and Collective Bargaining Convention, 1949 (No.98); (iii) Forced Labour Convention, 1930 (No.29); (iv) Abolition of Forced Labour Convention, 1957 (No.105); (v) Equal Remuneration Convention, 1951 (No.IOO); (vi) Discrimination (Employment and Occupation) Convention, 1958 (No.lll); (vii) Minimum Age Convention, 1973 (No.l38); and (viii) Worst Forms of Child Labour Convention, 1999 (No.182); see ILO, "Fundamental ILO Conventions", http://www.ilo.org/public/english/ standards/norrn/whatare/fundam/, 24 April2006. 117 The Governing Body of the ILO has also designated another four Conventions as "priority" Conventions, thereby encouraging Member States to ratify them because of their importance for the functioning of the international labour standards system. They are: Labour Inspection Convention, 1947 (No.8 I); Labour Inspection (Agriculture) Convention, 1969 (No.l29); Employment Policy Convention, 1964 (No.l22); and Tripartite Consultation (International Labour Standards) Convention, 1976 (No.144); see ILO, "Conventions and Recommendations", http://www.ilo.org/public/english/standards/norrn/ introduction/what.htm, 23 November 2007. 118 Weekly Rest (Industry) Convention, 1921 (No.l4); Protocol of 1990 to the Night Work (Women) Convention (Revised), 1948 (P89); Radiation Protection Convention, 1960 (No.ll5); Equality of Treatment (Social Security) Convention, 1962 (No.ll8); Rural Workers' Organisations Convention, 1975 (No.l41 ); and Labour Statistics Convention, 1985 (No.l60). 119 Hours of Work (Industry) Convention, 1919 (No. I); Forty-Hour Week Convention, 1935 (No.47); Night Work (Women) Convention (Revised), 1948 (No.89); Social Security (Minimum Standards) Convention, I 952 (No.1 02); Invalidity, Old-Age and Survivors' Benefits Convention, 1967 (No.l28); Merchant Shipping (Minimum Standards) Convention, 1976 (No.l47); Termination of Employment Convention, 1982 (No.1 58); and Safety and Health in Mines Convention, 1995 (No.176).

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regarded essential to explain and analyse certain flexibility devices. For the purpose of

chapterisation, certain flexibility devices, which can be interrelated by their nature and

usability, are grouped together without losing their vigour and effectiveness. It explores

and analyses various flexibility devices in selected up-to-date Conventions and examines

how they assist ratification and effective implementation by Member States. In case of

unratified up-to-date Conventions, the study seeks to find out as to how the flexibility

devices are advantageous in their progressive application. It tests as to what extent India

has been benefited from the in-built flexibilities within Conventions in the processes of

application after ratification and progressive application in case of non-ratification.

1.8. Hypotheses

1. The flexibility devices as such do not impair the fundamental character of

international labour Conventions as universal Standards.

2. The flexibility devices relating to objectives, and scope of application of

Conventions are more useful than other devices for a developing country like

India.

3. Not all flexibility devices are useful to all parties involved in the implementation

of international labour Conventions.

4. The implementing domestic legislations especially in India are m consonance

with the flexibility devices provided in the international labour Conventions.

5. The sustainability of flexibility devices in practice depends on the strength of the

trade union movement in the country concerned.

6. The flexibility devices strengthen the international labour Conventions through

wider ratification and thereby the implementation.

1.9. Chapterisation

The second chapter on "Objectives of Conventions" analyses relevant

Conventions in order to find out the flexibility on the basis of objectives of the

instrument. It focuses on the analysis of promotional Conventions and a Convention of

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principle. Further, it examines as to what extent the promotional flexibility is useful in

ratifying and implementing the Conventions by the Member States, particularly by India.

The third chapter on "Scope of Application" finds out the flexibility in terms of

scope of application of the Conventions. It explores the flexibility in the Conventions

mainly through discretion in interpretation and definition of Conventions, exclusionary

clauses involving permanent and temporary exceptions, escalator clauses, ratification by

parts, and geographical coverage. Besides, the study identifies the corresponding flexible

provisions under relevant Indian laws in order to see how far the domestic laws are in

consonance with the flexibility in terms of their scope embedded in the Conventions.

The fourth chapter on "Standards and Methods of Implementation" examines the

flexibility in the Conventions through the use of broad concepts of flexible character,

special clauses for specified countries, equivalent clauses, and different methods of

implementation. It looks at the flexibility in the Conventions on their application to

federal States. Further, it discusses the flexibility in terms of colonial application clause.

For these, the study explores analogous flexible provisions under applicable Indian laws.

It also looks at the importance of the employers' and workers' organisations in utilising

such flexibility in the Conventions.

The fifth chapter on "emergencies" analyses the flexibility in application of the

Conventions in cases of emergency situations, such as war and events endangering

national security, and events of force majeure. It sees how far these flexibilities are

beneficial in ratifying and implementing the Conventions by Member States, particularly

by India.

The last chapter on "Conclusions and Suggestions" first summarises the whole

study, and then assesses the viability, merits and demerits of flexibility devices as such in

order to understand how effective they are in allowing the international labour

Conventions for ratification and implementation processes in Member States, especially

in India. It concludes with some suggestions regarding the inclusion and utilisation of

flexibility devices in the implementation of international labour Conventions.

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1.10. Research Methodology

The study is based on historical, descriptive and analytical methods. It has made

use of both primary and secondary sources. Primary sources include the Constitution of

the ILO and Standing Orders of the International Labour Conference, relevant

international labour Conventions and Recommendations, Official Bulletin of the

International Labour Office and Governing Body documents of the ILO, and Reports of

the Governing Body Working Party on International Labour Standards. The study has

analysed the Reports of the Committee of Experts including General Surveys, and the

Reports ofthe Conference Committee on Application of Standards. The study has utilised

the Reports of the Government of India to the ILO, and the Constitution and relevant

labour legislations of India. Further, the study has made use of secondary sources, such as

books, articles, and reviews and comments of eminent scholars and publicists.

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