The International Labour Organisation

Some words this chapter uses

Tripartite means made of three parts. Applied to the ILO it means that each member State is represented not by its government alone but by its government, its employers and its workers, each speaking for itself.

Convention, in ILO usage, is an international treaty adopted by the Conference which a member State may ratify, and which binds that State in international law once ratified.

Recommendation is an instrument adopted by the Conference which is not open to ratification and which is not binding. It offers guidance, and it is used, in the words of article 19(1)(b), where the subject or an aspect of it is not considered suitable or appropriate at that time for a Convention.

Ratification is a State's formal act of accepting a treaty as binding on it.

The competent authority is the body within a State whose function it is to legislate on the subject. In India it is Parliament, or a State legislature, depending on the subject.

Specialised agency is the status an international organisation holds when it is brought into relationship with the United Nations under the UN Charter while keeping its own constitution and membership.

Where the ILO came from

1919: Part XIII of the Treaty of Versailles. The Organisation was created as part of the peace settlement at the end of the First World War, in the same instrument that created the League of Nations. India was among its founding members, which matters for the next chapter.

1944: the Declaration of Philadelphia. At Philadelphia on 10 May 1944, with a second war ending, the Conference adopted a Declaration restating the aims and purposes of the Organisation in far broader terms than 1919 had used. Its most quoted propositions are 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 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.

1946: the Declaration is written into the Constitution. The Constitution was amended at Montreal in 1946, and article 1(1) as amended now establishes the permanent organisation "for the promotion of the objects set forth in the Preamble to this Constitution and in the Declaration concerning the aims and purposes of the International Labour Organisation adopted at Philadelphia on 10 May 1944 the text of which is annexed to this Constitution." The Declaration is therefore not a speech about the Constitution. It is part of it.

The same amendment brought the Organisation into the United Nations system, replacing the references to the League of Nations that the 1919 text carried. Under article 1(2) as amended, the Members are the States that were Members on 1 November 1945, together with such other States as become Members under the following paragraphs.

What makes the ILO different from every other international organisation

Tripartism. This is the answer to any question that asks what is special about the ILO, and it is found in article 3(1) of its Constitution:

The meetings of the General Conference of Representatives of the Members shall be held from time to time as occasion may require, and at least once in every year. It 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.

Read the arithmetic in that sentence, because it is the point.

In every other international organisation, a State speaks with one voice, its government's. Here it speaks with three, and two of the three are not the government at all. The employers' delegate and the workers' delegate are not instructed by their government, and article 4(1) confirms the consequence: each delegate is entitled to vote individually on all matters before the Conference. An Indian workers' delegate may vote against the Indian Government, and does.

Article 4(2) has a sanction that makes the tripartism real. If a Member fails to nominate one of the non-Government delegates it is entitled to nominate, the other non-Government delegate is entitled to take part in the discussions of the Conference but is not entitled to vote. So a government which leaves out the workers' delegate does not gain the employers' vote; it loses it.

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

The three organs

The International Labour Conference is the deliberative organ, composed as article 3 describes and meeting at least once a year. It adopts Conventions and Recommendations, adopts the budget, and admits new Members. It is sometimes called the international parliament of labour.

The Governing Body is the executive organ. Under article 7 it is tripartite in the same way, drawn from Government, employers' and workers' representatives, and it settles the agenda of the Conference, elects the Director-General and supervises the work of the Office. The number of persons composing it has been altered by later amendments to the Constitution, and this book deliberately does not print a figure, because the copy of the Constitution available to us is the text as amended in 1946 and that figure has since changed.

The International Labour Office is the permanent secretariat, headed by the Director-General. It prepares the documents for the Conference, carries out research, publishes, and receives the reports member States are required to send.

Article 19: how a standard is made, and what a State must then do

This is the operative article of the whole Constitution for our purposes, because it is where an international decision starts to press on a national legislature.

Article 19(1): the Conference chooses the instrument. When the Conference has decided on the adoption of proposals with regard to an item on the agenda, it rests with the Conference to determine whether those proposals should take the form of (a) an international Convention, or (b) a Recommendation, to meet circumstances where the subject, or an aspect of it, is not considered suitable or appropriate at that time for a Convention.

Article 19(2): the majority. In either case a majority of two-thirds of the votes cast by the delegates present is necessary on the final vote for adoption.

Article 19(3): the developing-country clause, and it matters to India. In framing any Convention or Recommendation of general application, the Conference shall have due regard to those countries in which climate, the imperfect development of industrial organisation, or other special circumstances make the industrial conditions substantially different, and shall suggest such modifications as it considers may be required to meet the case of such countries.

Article 19(5): the obligation, and this is the paragraph to learn. Where the instrument is a Convention:

• (a) the Convention is communicated to all Members for ratification;
• (b) each Member undertakes to bring the Convention, within one year from the closing of the session of the Conference, or where exceptional circumstances make that impossible then as soon as possible but never more than eighteen months, 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 to bring the Convention before that authority, with particulars of the authority regarded as competent and of the action taken by it;
• (d) if the Member obtains the consent of the competent authority, it will communicate the formal ratification to the Director-General and take such action as may be necessary to make the provisions of the Convention effective;
• (e) if the Member does not obtain that consent, no further obligation rests upon it, except that it shall report to the Director-General at appropriate intervals.

Now read (b) and (e) together, because between them they define exactly how much power the ILO has over a national legislature.

Paragraph (b) is a real and unconditional obligation, and it is an obligation of process. Every member State must place every Convention before its own law-making authority, within a fixed time, whether or not the government likes the Convention and whether or not it intends to ratify. It cannot quietly bury an instrument it dislikes.

Paragraph (e) is the limit. If the legislature says no, that is the end of it. There is no further obligation beyond periodic reporting.

So the ILO cannot legislate for any country. What it can do is force the question onto the table, in public, on a timetable, in a forum where that country's own employers and workers were part of the decision. That is a weaker power than legislation and a much stronger one than persuasion, and it is the mechanism by which the influence described in the next chapter actually operates.

Article 22 completes the machinery: a Member that has ratified a Convention must make annual reports to the Office on the measures it has taken to give effect to it. Ratification is therefore not the end of the process but the beginning of a supervised one.

A worked example

The facts. The Conference adopts a Convention on the maximum weight a single worker may be required to carry. India's delegation at the session consisted of two Government delegates, one delegate nominated after consultation with the central employers' organisations, and one nominated after consultation with the central workers' organisations. The workers' delegate voted for the Convention; the Government delegates abstained. The Convention was adopted by more than two-thirds of the votes cast.

Is the Convention validly adopted despite the Government's abstention? Yes. Article 4(1) gives each delegate the right to vote individually on all matters before the Conference, and article 19(2) requires only a two-thirds majority of the votes cast by delegates present. India's Government does not control India's vote, because India does not have one vote.

Is India now bound by the Convention? No. A Convention binds a State only on ratification. Adoption at the Conference creates no substantive obligation.

Then what must India actually do? Article 19(5)(b): it must bring the Convention before the authority within whose competence the matter lies, for the enactment of legislation or other action, within one year of the closing of the session, or exceptionally as soon as possible and never later than eighteen months. Under 19(5)(c) it must tell the Director-General what it did, which authority it treated as competent, and what that authority decided.

Suppose Parliament declines to legislate. Article 19(5)(e): no further obligation rests upon India, except that it must report to the Director-General at appropriate intervals. The Convention does not become Indian law, and no sanction follows.

Suppose instead Parliament consents and India ratifies. Article 19(5)(d): India must communicate the formal ratification and take such action as may be necessary to make the provisions of the Convention effective, which in practice means legislating. Article 22 then requires an annual report on the measures taken.

What this does NOT mean

It does not mean an ILO Convention is part of Indian law. It is not, unless and until Parliament legislates. India follows the dualist position: a treaty binds India in international law on ratification, and changes the rights of individuals in Indian courts only when a statute says so.

It does not mean a Recommendation is a lesser Convention. It is a different instrument, used deliberately where the Conference thinks the subject is not ripe for a binding treaty. It is not open to ratification at all.

It does not mean the ILO enforces anything. There is no ILO court that can strike down a national law, and no penalty for declining to ratify. The Organisation works by standard-setting, supervision, reporting and publicity.

It does not mean the tripartite delegates are a formality. The non-Government delegates vote independently, and article 4(2) penalises a government that tries to leave one of them out by disqualifying the other from voting.

Limits and criticism

Ratification is voluntary and uneven. A Convention adopted by an overwhelming majority may be ratified by very few States, and the Organisation's own standards therefore apply patchily.

The obligation in article 19(5)(b) is procedural. It guarantees that the question is asked. It guarantees nothing about the answer.

Supervision depends on self-reporting. Articles 19 and 22 work through reports made by the very governments whose compliance is in issue.

And the tripartite structure assumes something that is not always true, namely that there exist, in each member State, employers' and workers' organisations free enough to choose their own delegates. Where they do not, the two non-Government seats can be filled by the government in substance if not in form.

Quick revision

• Founded 1919, by Part XIII of the Treaty of Versailles. Now a specialised agency of the United Nations, after the 1946 amendment made at Montreal.
• Preamble: universal and lasting peace can be established only if based on social justice; and one nation's failure to adopt humane conditions of labour obstructs other nations that wish to improve their own.
• Declaration of Philadelphia, 10 May 1944, is annexed to and part of the Constitution by article 1(1). Labour is not a commodity; poverty anywhere is a danger to prosperity everywhere.
• Tripartite, article 3(1): four representatives per Member, two Government, one employers', one workers'. Article 4(1): each delegate votes individually. Article 4(2): fail to nominate one non-Government delegate and the other loses the vote.
• Three organs: International Labour Conference (deliberative, meets at least yearly), Governing Body (executive, tripartite), International Labour Office (secretariat, Director-General).
• Article 19(1): Convention or Recommendation. 19(2): two-thirds of votes cast. 19(3): due regard to countries whose industrial conditions differ.
• Article 19(5)(b): bring every Convention before the competent authority within one year, exceptionally never more than eighteen months. 19(5)(e): if consent is refused, no further obligation beyond reporting.
• Article 22: annual reports on ratified Conventions.

Test yourself

1. What is the ILO's own stated reason for existing? Its Preamble gives two. First, that universal and lasting peace can be established only if it is based upon social justice, conditions of labour involving injustice and privation producing unrest that imperils the peace and harmony of the world. Second, that the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations desiring to improve conditions in their own countries, so that no country can safely raise its standards alone.

2. What is meant by saying that the ILO is tripartite, and where is it in the Constitution? Article 3(1) 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. Each Member is therefore represented by its government, its employers and its workers rather than by its government alone, and by article 4(1) each delegate votes individually, so the non-Government delegates may and do vote against their own government.

3. Distinguish a Convention from a Recommendation.

4. India's Parliament declines to enact a Convention that India's delegation voted for. What are India's obligations? India must still have brought the Convention before the competent authority within one year of the closing of the session, or exceptionally as soon as possible and never more than eighteen months, under article 19(5)(b), and must have informed the Director-General of the measures taken, the authority treated as competent and the action taken, under article 19(5)(c). Since the consent of the competent authority was not obtained, article 19(5)(e) provides that no further obligation rests upon India except that it shall report to the Director-General at appropriate intervals.

5. Why does article 19(3) matter particularly to India? Because it requires the Conference, in framing any Convention or Recommendation of general application, to have due regard to countries in which climate, the imperfect development of industrial organisation or other special circumstances make industrial conditions substantially different, and to suggest such modifications as may be required to meet their case. It is the provision that allows a universal standard to be framed so that an industrialising economy can accept it.

6. "The ILO can compel India to change its labour law." Comment. The statement is wrong. The ILO cannot legislate for any member State and has no court that can strike down a national law. What article 19(5)(b) compels is a process: every Convention must be placed before the competent law-making authority within a fixed time, whatever the government thinks of it. If that authority refuses its consent, article 19(5)(e) leaves no further obligation beyond periodic reporting. The influence is real but it operates through obligation to consider, supervision, reporting and publicity, not through compulsion.