- Whether definitions are included in an instrument depends on the circumstances of each case. The following guidelines should make the choice easier.
- Recourse to newly coined terms, when they can be replaced by terms currently in use, should be avoided. In the case where the use of newly coined terms is justified, those terms should be defined in the instrument.
- If definitions are felt to be necessary, they should be included at the beginning of the instrument in the section concerning its scope. If, however, the definition concerns only one article, it should be given within the article and expressly state that it applies only to that article.
- Recommendations should refer to the Conventions with the words "The provisions of this Recommendation supplement those of the [name of the Convention], and should be applied in conjunction with them." Furthermore, a Recommendation should not define the term "Convention" by referring to the Convention it supplements.
- The definition of terms should be avoided in cases where they:
| - |
add nothing to the usually accepted meaning; |
| - |
are tautological; |
| - |
obscure the usual meaning; |
| - |
refer to national law for the definition of a term, unless the provision requires prior consultations concerning the definition with organizations of workers and employers. |
- In addition, it would be preferable to avoid using expressions such as "branches of economic activity", "competent authority" and "national laws and regulations", which are frequently used in ILO instruments and already have a well-established meaning acquired through practice. In those cases, unless it is necessary to attribute to them a different scope or meaning within a particular Convention, it would be better not to define them at all.
- The expression "branches of economic activity" means branches in which workers are employed, including the public service. Its inclusion in certain instruments might imply that instruments in which it is not included do not apply to the public service.
- It should be noted that a considerable number of instruments leave it to the "competent authority" (or "competent authorities") to determine the methods and means of implementation of their often detailed provisions. These expressions, which are used in many international instruments, should as far as possible be left undefined, given the fact that the intention is precisely to allow States - whose constitutional, legislative and administrative arrangements vary considerably - to determine which of their authorities is "competent" for the purposes of implementation and compliance.
- In order to avoid a reference only to legislation in the strict sense of the term, the expression "national laws and regulations" (in French "législation nationale") is used to cover other forms of legal prescriptions, such as regulations, decrees, and ordinances, as well as any customary law when it has legal force in accordance with national practice. If other forms of implementation measures are to be covered, such as collective agreements or judicial and arbitral decisions, they should be the subject of a separate provision. The expression "in accordance with national law/s and practice/s", or similar expressions, confirm that ILO instruments take into account the discretion that the member States have in relation to their internal organization. These expressions become especially meaningful when it comes to the choice of means and methods of implementation (see the part concerning national implementation measures). However, they have also been used as flexibility measures affecting substantive provisions. In these cases, attention should be given not to devoid the substantive provisions of the instrument of their scope by referring, without a minimum guarantee, to national laws and practices to determine the scope, the nature, or even the definition of the protection (see section "Changes to scope and application of obligations").
- Lastly, a glossary of terms currently defined in ILO instruments appears in Appendix 5. In addition to the definitions themselves, it includes references to the instruments in which they are found and their French equivalents.
|
