The International Labour Organisation

Part II affirms 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 and dignity, of economic security and equal opportunity.

The Declaration of Philadelphia matters for two reasons. It expanded the Organisation's mandate from conditions of labour to social policy generally. And its statement of a right of all human beings irrespective of race, creed or sex, made in 1944, is one of the direct antecedents of the Universal Declaration of Human Rights of 1948.

Structure: articles 2 to 7

The Organisation has three organs: the General Conference, the Governing Body, and the International Labour Office.

Tripartism, the defining rule

Article 3(1). The General Conference shall be composed of four representatives of each of the Members, of whom two shall be Government delegates and the two others shall be delegates representing respectively the employers and the workpeople of each of the Members.

A ratio of two, one and one. No other international organisation seats non-governmental representatives as members of the delegation with the same rights as the State's own.

Article 3(2). Each delegate may be accompanied by advisers, not exceeding two for each item on the agenda, and when questions specially affecting women are to be considered, one at least of the advisers should be a woman.

Article 4(1), the point that makes tripartism real. Each delegate shall be entitled to vote individually on all matters submitted to the Conference. The employers' and workers' delegates are not bound by their government's instructions and may vote against it.

Article 4(2), the sanction for failing to appoint. If a Member has not nominated one of the non-Government delegates it is entitled to nominate, the other non-Government delegate may take part in the discussions but may not vote. A government that leaves out the workers' delegate therefore silences its employers' delegate too.

The Governing Body, under article 7, is composed on the same ratio. As reprinted in the text worked here it consisted of thirty-two persons: sixteen representing Governments, eight representing the employers and eight representing the workers, with eight of the Government seats appointed by the Members of chief industrial importance and eight by Members selected by the Government delegates to the Conference, and six of the sixteen Members represented to be non-European States. The Governing Body determines as occasion requires which Members are of chief industrial importance, and must have that question considered by an impartial committee before deciding. The size of the Governing Body has been enlarged by later amendment; the two, one, one ratio has not changed.

The International Labour Office is the permanent secretariat, under the direction of a Director-General and the control of the Governing Body. Its seat is at Geneva.

What the Organisation produces: article 19

The Conference adopts two kinds of instrument, and the difference between them is examined constantly.

A Convention is a treaty, open to ratification by Members, binding on those that ratify.

A Recommendation is not open to ratification and binds nobody; it guides national law and practice, and is often adopted alongside a Convention to supply detail.

Both require a two-thirds majority of the votes cast by the delegates present for adoption.

Article 19(4). Two copies of the Convention or Recommendation are authenticated by the signatures of the President of the Conference and of the Director-General, one deposited in the archives of the International Labour Office and the other with the Secretary-General of the United Nations, and a certified copy communicated to each Member.

Article 19(5), the obligation that has no parallel in general treaty law. In the case of a Convention:

(a) it is communicated to all Members for ratification;

(b) each Member undertakes that it will, within one year at most from the closing of the session of the Conference, or if that is impossible owing to exceptional circumstances then at the earliest practicable moment and in no case later than eighteen months, bring the Convention before the authority or authorities within whose competence the matter lies, for the enactment of legislation or other action;

(c) Members shall inform the Director-General of the measures taken and of the action of the competent authority.

Read article 19(5)(b) carefully, because students state it wrongly. The obligation is not to ratify. It is to place the Convention before the competent national authority within twelve months, or eighteen at the outside, and to report what happened. A Member that submits a Convention to its legislature which declines to approve it has performed article 19(5)(b) exactly. Compare the ordinary law of treaties in [Making a Treaty: From Full Powers to Entry Into Force], where a State that signs is under no obligation at all to lay the treaty before anyone.

Article 19(3) requires the Conference, in framing a Convention or Recommendation of general application, to 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 to suggest such modifications as it considers may be required. That is flexibility built into the standard rather than achieved by reservation, and it is the reason reservations to ILO Conventions are not permitted: the Constitution's own machinery supplies the accommodation that a reservation would otherwise provide.

Supervision: articles 22 to 26 and 33

The Organisation's supervisory machinery is the most developed of any specialized agency, and it works by publicity rather than by sanction.

Article 22, regular reporting. Each Member reports annually to the Office on the measures it has taken to give effect to the Conventions to which it is a party, in the form and on the particulars the Governing Body requests. Those reports are examined by a Committee of Experts and then by a tripartite Conference committee.

Article 24, representations. Where a representation is made to the Office by an industrial association of employers or of workers that a Member has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate the representation to the Government against which it is made and invite that Government to make such statement on the subject as it may think fit.

Article 24 is the striking provision, because the complainant is not a State. An employers' or workers' association may put a government's compliance in issue before an international organ.

Article 25. If no statement is received within a reasonable time, or the statement is not deemed satisfactory by the Governing Body, it has the right to publish the representation and the statement, if any, made in reply.

Publication is the sanction. It is the whole of the sanction at this stage, and it works better than a lawyer expects.

Article 26, complaints. Any Member has the right to file a complaint with the Office if it is not satisfied that another Member is securing the effective observance of any Convention which both have ratified. The Governing Body may, before referring the complaint, communicate with the Government in question as under article 24, and if it receives no satisfactory statement within a reasonable time, it may appoint a Commission of Enquiry to consider the complaint and to report thereon. The Governing Body may adopt the same procedure on its own motion or on a complaint from a Conference delegate.

The Commission's report sets out its findings and its recommendations as to the steps which should be taken to meet the complaint and the time within which they should be taken, and the report is communicated to the Governments concerned and published. Each Government must state within three months whether it accepts the recommendations and, if not, whether it proposes to refer the complaint to the International Court of Justice, whose decision on such a complaint or matter is final.

Article 33 provides that where a Member fails to carry out the recommendations of the Commission of Enquiry or of the Court, the Governing Body may recommend to the Conference such action as it may deem wise and expedient to secure compliance. That article was invoked for the first time only in 2000, which is a measure of how rarely the machinery reaches its end.

The Office, the agenda and the final articles

The Constitution's remaining articles are administrative, and knowing where they sit is enough.

The International Labour Office, articles 8 to 11. There is a Director-General, appointed by the Governing Body, responsible under its instructions for the efficient conduct of the Office. Article 9: the staff is appointed by the Director-General under regulations approved by the Governing Body, and, so far as is possible with due regard to efficiency, he shall select persons of different nationalities. Article 10: the functions of the Office include the collection and distribution of information on all subjects relating to the international adjustment of conditions of industrial life and labour, and particularly the examination of subjects proposed to be brought before the Conference. Article 11: government departments dealing with industry and employment may communicate directly with the Director-General through their representative on the Governing Body.

Relations and money, articles 12 and 13. Article 12 requires cooperation with any general international organisation entrusted with coordinating the activities of public international organisations having specialised responsibilities, which is the article under which the relationship with the United Nations was made. Article 13 permits such financial and budgetary arrangements with the United Nations as may appear appropriate.

The agenda and the conduct of the Conference, articles 14 to 18. Article 14: the agenda for all meetings is settled by the Governing Body, which shall consider suggestions from any Member's Government, from any representative organisation recognised for the purposes of article 3, or from any public international organisation. Article 15: the Director-General acts as Secretary-General of the Conference and transmits the agenda so as to reach the Members four months before the meeting. Article 16: a Government may formally object to the inclusion of an item, stating its grounds in a statement circulated to all Members. Article 17: the Conference elects a President and three Vice-Presidents, one a Government delegate, one an employers' delegate and one a workers' delegate, regulates its own procedure and may appoint committees. Article 18: the Conference may add technical experts without power to vote to any committee it appoints.

After adoption, articles 20 and 21. Article 20: a ratified Convention is communicated by the Director-General to the Secretary-General of the United Nations for registration under article 102 of the Charter, and is binding only upon the Members which ratify it. Article 21: a Convention that fails to secure two thirds of the votes cast may nevertheless be agreed among Members themselves and is then communicated for registration in the same way.

The rest of the supervisory machinery, articles 27 to 34. Article 27: Members undertake, whether directly concerned or not, to place at the disposal of a Commission of Enquiry all the information in their possession bearing on the subject-matter. Article 28: the Commission prepares a report embodying its findings on all questions of fact and containing its recommendations. Article 29: the report is communicated to the Governing Body and to each Government concerned and published, and each Government states within three months whether it accepts the recommendations or will refer the matter to the Court. Article 30: a Member that fails to take the action required by article 19 on submission to the competent authorities may be referred to the Governing Body by any other Member. Article 31: the decision of the International Court of Justice on a complaint referred under article 29 shall be final. Article 32: the Court may affirm, vary or reverse any of the findings or recommendations of the Commission. Article 34: a defaulting Government may at any time inform the Governing Body that it has complied, and may request the constitution of a Commission of Enquiry to verify it.

Territories, amendment, interpretation and status, articles 35 to 40. Article 35: Members undertake that Conventions they have ratified shall be applied to the non-metropolitan territories for whose international relations they are responsible, subject to the article's own qualifications. Article 36: amendments adopted by the Conference by two thirds of the votes cast take effect when ratified or accepted by two thirds of the Members, including five of the ten Members of chief industrial importance. Article 37: any question or dispute relating to the interpretation of the Constitution or of any Convention concluded under it shall be referred for decision to the International Court of Justice. Article 38: the Organisation may convene regional conferences and establish regional agencies. Article 39: the Organisation possesses full juridical personality, including the capacity to contract, to acquire and dispose of immovable and movable property, and to institute legal proceedings. Article 40: it enjoys in the territory of each Member such privileges and immunities as are necessary for the fulfilment of its purposes, and delegates to the Conference, members of the Governing Body and the Director-General and officials enjoy such privileges and immunities as are necessary for the independent exercise of their functions.

Article 39 is the provision to notice. It states in terms what the Charter left the Court to infer in [The United Nations: Purposes, Principles and Membership]: the Organisation has full juridical personality, and the Constitution says so rather than leaving it to be implied.

Membership and withdrawal: articles 1 and 2

Members of the United Nations may become Members of the Organisation by communicating formal acceptance of the obligations of the Constitution. Other States may be admitted by the Conference by a two-thirds majority of the delegates present, including two-thirds of the Government delegates present and voting. A Member may withdraw on giving notice, which takes effect two years after the notice, subject to the Member having fulfilled its financial obligations, and withdrawal does not affect the continuing validity of obligations under ratified Conventions for the period the Convention provides.

India is a founder Member, having been a party to the arrangements of 1919, and has ratified a substantial number of Conventions, though it has not ratified all of the instruments treated as fundamental.

A worked example

The Conference adopts a Convention on working hours by 240 votes to 100 with 30 abstentions, and a Recommendation on the same subject. State AA's workers' delegate votes against its Government delegates. State AA does not ratify the Convention but lays it before its Parliament fourteen months after the session closes. A workers' federation in State BB, which has ratified, complains that State BB is not observing it. State CC, which has also ratified, files a complaint against State BB.

Was the Convention validly adopted? Adoption requires a two-thirds majority of the votes cast by the delegates present. Abstentions are not votes cast, so the majority is measured on 340, and 240 exceeds two thirds of that.

The workers' delegate voting against his own Government. Article 4(1) entitles each delegate to vote individually on all matters. That is tripartism working as designed, not a defect.

Is State AA in breach for not ratifying? No. Article 19(5)(b) obliges a Member only to bring the Convention before the competent authority within one year, or at the earliest practicable moment and in no case later than eighteen months, where exceptional circumstances prevent the shorter period. Fourteen months is within the outer limit if exceptional circumstances explain the delay, and State AA must inform the Director-General of the measures taken and the action of the competent authority under article 19(5)(c).

Is the Recommendation binding on anyone? No. It is not open to ratification, and it operates as guidance for national law and practice.

The workers' federation. Article 24 permits a representation by an industrial association of employers or of workers that a Member has failed to secure effective observance of a ratified Convention. The Governing Body may communicate it to State BB and invite a statement, and under article 25 may publish the representation and any reply if none is received in a reasonable time or the reply is unsatisfactory.

State CC's complaint. Article 26 permits it because both States have ratified the Convention. The Governing Body may appoint a Commission of Enquiry, whose report is published with recommendations and a time for compliance, and State BB must say within three months whether it accepts them or proposes to refer the matter to the International Court of Justice, whose decision is final. On failure to comply, article 33 lets the Governing Body recommend to the Conference such action as it deems wise and expedient.

Change one fact: State AA never appointed a workers' delegate. Then by article 4(2) its employers' delegate may take part in the discussions but may not vote.

Distinctions table

What it does NOT mean

Adopting a Convention does not bind a Member. Ratification does.

Article 19(5)(b) is not an obligation to ratify. It is an obligation to submit to the competent authority and report.

A Recommendation is not a weak Convention. It is a different instrument, not open to ratification at all.

Reservations are not available. Article 19(3) flexibility is built into the standard instead.

The employers' and workers' delegates are not their government's agents. Article 4(1) gives each delegate an individual vote.

The supervisory machinery does not impose sanctions in the ordinary sense. Its instruments are publication under article 25, a published Commission of Enquiry report under article 26, and article 33.

Limits and criticism

The Organisation legislates and cannot enforce. Its Conventions bind only those who ratify, and ratification rates for the more demanding instruments are uneven, with several of the largest economies outside several of the fundamental Conventions.

Publicity is the sanction, which works on States that care about their standing and not on those that do not, and article 33 was used for the first time in 2000, more than eighty years after the Constitution was written.

Tripartism assumes free and representative organisations of employers and workers. Where trade unions are controlled by the State, the second and third delegates add nothing but a second and third government voice, and the Constitution's own principle in the Declaration of Philadelphia, that freedom of expression and of association is essential to sustained progress, is the standard by which that failure is measured.

Its reach stops at the formal economy. The great majority of the workers in many Member States, India among them, work informally, outside the employment relationships that labour Conventions regulate, so the standards operate where they are least needed and are silent where they are needed most.

Quick revision

Founded 1919 by Part XIII of the Treaty of Versailles; the first specialized agency brought into relationship with the United Nations in 1946 under Charter article 57. Seat at Geneva.

Preamble: universal and lasting peace can be established only if it is based upon social justice; conditions of labour producing injustice, hardship and privation imperil peace; the failure of any nation to adopt humane conditions of labour is an obstacle to others.

Declaration of Philadelphia, 10 May 1944, annexed to the Constitution: labour is not a commodity; freedom of expression and of association are essential to sustained progress; poverty anywhere constitutes a danger to prosperity everywhere; the war against want requires workers' and employers' representatives enjoying equal status with those of Governments; all human beings irrespective of race, creed or sex have the right to pursue material well-being and spiritual development in conditions of freedom and dignity, of economic security and equal opportunity.

Three organs: General Conference, Governing Body, International Labour Office.

Tripartism, article 3(1): four representatives per Member, two Government, one employers', one workers'. Article 4(1): each delegate votes individually. Article 4(2): if one non-Government delegate is not appointed, the other may speak but not vote. The Governing Body follows the same two, one, one ratio.

Article 19: Conventions (open to ratification, binding on ratifiers) and Recommendations (not open to ratification); both adopted by two-thirds of the votes cast; 19(5)(b), each Member must bring a Convention before the competent authority within one year, in no case later than eighteen months, and report. No reservations; article 19(3) builds in flexibility instead.

Supervision: article 22 annual reports; article 24 representation by an industrial association of employers or of workers; article 25 publication; article 26 complaint by a Member, Commission of Enquiry, report published, reference to the International Court of Justice whose decision is final; article 33, the Governing Body may recommend action to the Conference.

Test yourself

1. What is tripartism and where is it in the Constitution?

Tripartism is the representation of governments, employers and workers together in the organs of the Organisation, and it is in article 3(1), which provides that the General Conference shall be composed of four representatives of each Member, of whom two shall be Government delegates and the two others delegates representing respectively the employers and the workpeople. Article 4(1) makes it real by entitling each delegate to vote individually on all matters submitted to the Conference, so an employers' or workers' delegate may vote against his own government. Article 4(2) protects the arrangement by providing that where a Member has not nominated one of the non-Government delegates it is entitled to nominate, the other non-Government delegate may take part in the discussions but may not vote. The Governing Body is composed on the same two, one, one ratio.

2. Distinguish an ILO Convention from a Recommendation.

A Convention is a treaty: it is communicated to Members for ratification and binds those that ratify it. A Recommendation is not open to ratification and binds nobody; it is guidance for national law and practice, and is frequently adopted alongside a Convention to supply the detail. Both are adopted by a two-thirds majority of the votes cast by the delegates present. Both attract the submission obligation, since article 19 requires each Member to bring the instrument before the authority within whose competence the matter lies. And in neither case may a Member enter a reservation, because article 19(3) requires the Conference itself to have due regard to countries whose industrial conditions are substantially different and to suggest such modifications as may be required.

3. What does article 19(5)(b) oblige a Member to do?

To bring the Convention before the authority or authorities within whose competence the matter lies, for the enactment of legislation or other action, within one year at most from the closing of the session of the Conference, or, where exceptional circumstances make that impossible, at the earliest practicable moment and in no case later than eighteen months from the closing of the session. Article 19(5)(c) then requires the Member to inform the Director-General of the measures taken and of the action of the competent authority. It is not an obligation to ratify. A Member which lays the Convention before its legislature within the time and reports what followed has complied, even though the legislature declines to approve it, and this duty of submission has no parallel in the general law of treaties.

4. Describe the ILO's supervisory machinery.

Article 22 requires each Member to make an annual report on the measures it has taken to give effect to the Conventions to which it is a party, in the form and with the particulars the Governing Body requests, and those reports are examined by a committee of experts and by a tripartite Conference committee. Article 24 permits a representation by an industrial association of employers or of workers that a Member has failed to secure the effective observance of a ratified Convention, which the Governing Body may communicate to the Government concerned, inviting a statement. Article 25 permits the Governing Body to publish the representation and any reply where no statement is received in reasonable time or the statement is unsatisfactory. Article 26 permits a Member to file a complaint against another Member which has ratified the same Convention, and the Governing Body may appoint a Commission of Enquiry whose report, with recommendations and a time for compliance, is published, the Government concerned then stating within three months whether it accepts them or will refer the matter to the International Court of Justice, whose decision is final. Article 33 permits the Governing Body, on failure to comply, to recommend to the Conference such action as it may deem wise and expedient.

5. What is the Declaration of Philadelphia and why does it matter?

It is the Declaration concerning the aims and purposes of the International Labour Organisation adopted by the General Conference at Philadelphia on 10 May 1944 and annexed to the Constitution, so it forms part of the constituent instrument. Part I reaffirms that labour is not a commodity, that freedom of expression and of association are essential to sustained progress, that poverty anywhere constitutes a danger to prosperity everywhere, and that the war against want must be carried on within each nation and by concerted international effort in which the representatives of workers and employers enjoy equal status with those of governments. Part II affirms 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 and dignity, of economic security and equal opportunity. It matters because it broadened the Organisation's mandate from conditions of labour to social policy generally, and because its statement of universal rights in 1944 is a direct antecedent of the Universal Declaration of Human Rights.

6. Why is the phrase in the Preamble about the failure of any nation important?

Because it supplies the economic reason for having international labour standards at all. The Preamble recites that the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations which desire to improve conditions in their own countries. A State that raises wages, limits hours or improves safety on its own raises the cost of its own production while its competitors do not, so each State has an incentive to hold back and the general result is that none improves. Standards agreed and applied internationally remove that disadvantage, which is why the subject is treated internationally, and it is the same reasoning that underlies the Preamble's central proposition that universal and lasting peace can be established only if it is based upon social justice.