Implementation measures
Adoption of binding measures
  1. The various measures that can be taken by States to respect, or ensure respect for, the provisions of Conventions and Recommendations are often specified in the instruments themselves, although this is not a uniform practice.[185] Lists of measures that can be taken may be limitative or not. Non-limitative lists are generally worded to include a reference to any other method consistent with national conditions and practice in the State ratifying the Convention.[186] Conventions use the verb “shall” to indicate binding obligations.
  1. Although there is no formal standard clause as regards measures for the implementation or application of Conventions, the relevant provisions show certain recurring features. Generally speaking, reference is almost invariably made to the law as the main or a subsidiary means of implementation. The legislative method is provided for by the expressions "laws or regulations", or "national laws or regulations".[187] However, there is greater variation in references to other implementation measures. Collective agreements[188] and arbitration awards[189] are frequently mentioned; court decisions[190] less so. Some measures appear only occasionally, such as the adoption of codes of practice;[191] ratification of another ILO Convention, the adoption of a bilateral or multilateral agreement;[192] the work of a statutory body[193] or the adoption of works rules.[194] These implementation measures are often accompanied by the expression "or in such other manner consistent with national practice" or an equivalent. This is sometimes supplemented by an obligation to consult with organizations of employers and workers before determining the method or means of application consistent with national practice. In the absence of any clause authorizing an extension of the range of permissible implementation measures beyond those enumerated, the measures are limited to those listed in the provisions of the Convention.
  1. Some instruments give laws and regulations the function of a safeguard guarantee.[195] They provide - in terms that do not differ substantially from each other - that the provisions of a Convention, in so far as they are not otherwise made effective by collective agreements, arbitration awards, court decisions or in any other manner consistent with national practice, shall be given effect by national laws or regulations. In such cases, some Conventions also require prior consultation with organizations of employers and workers.[196]
  1. Finally, the measures that may be adopted for the implementation of the provisions of a Convention or a Recommendation are often the subject of a general provision applicable to the whole of the instrument. Frequently, however, the provisions that lay down specific obligations also lay down the measures by which those obligations may be met.[197] Where there is incompatibility, the methods of application expressly indicated for specific obligations have primacy over any other measures covered by a general provision in the same Convention.[198]
[185] More than one-quarter of Conventions contain a provision for this purpose.
[186] The final Paragraph of the preamble of all Recommendations adopted between 1919 and 1933 states that the text of Recommendations will be submitted to Members “with a view to effect being given to [them] by national legislation or otherwise”.
[187] See, for example, C153, Art. 12; C155, Art. 8; C171, Art. 11(1); C173, Art. 2, and C181, Art. 14(1) (laws or regulations); C132, Art. 1; C145, Art. 7; and C154, Art. 4 (national laws or regulations).
[188] See, for example, C68, Art. 2; C70, Art. 10(1); C82, Arts. 14(1) and 18(1)(a) (which uses the term “labour legislation and agreements”); C99, Art. 2(1); C130, Art. 23(7); C137, Art. 7; C140, Art. 11; C149, Art. 8; C164, Art. 2; C172, Art. 8(1).
[189] See, for example, C106, Art. 1; C129 Art. 2 (which specifies that the term “legal provisions” includes arbitration awards); C137, Art. 7; C140, Art. 5; and C153, Art. 12.
[190] See, for example, C132, Art. 1; C149, Art. 8; C156, Art. 9; C164, Art. 2.
[191] See, for example, C115, Art. 1, and R114, Para. 1. This kind of measure is often ambiguous in its effect, particularly where it is intended as a measure for the application of a Convention. It is generally recognized that this type of document is not binding – although it is difficult to see how that can be the case in the context in which it is used in C115, where it seems to be placed on an equal footing with laws and regulations. What is more, the CEACR considers that, where a code of practice is not given binding status, this is not sufficient to meet a State’s obligation to apply a particular Convention. In this respect, cf. Individual observation concerning Convention No. 115, Radiation Protection, 1960, Ghana (ratification 1961), Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 1A), 2003, p. 537, in which the CEACR notes that “non-binding guides do not suffice for the application of the Convention”.
[192] See C118, Art. 8; R86, Para. 21.
[193] See C146, Art. 1.
[194] See C156, Art. 9. See also R119, Para. 1; R130, Para. 1; and R153, Para. 1. There are significantly more references to works rules in Recommendations than in Conventions. The terms “règlements d’entreprise” and “règlements intérieurs” in French both correspond to the English term “works rules” (see C164, Art. 2).
[195] See in particular C106, Art. 1; C132, Art. 1; C137, Art. 7; C145, Art. 7; C153, Art. 12; C154, Art. 4; C158, Art. 1; C171, Art. 11 (1).
[196] See in particular C171, Art. 11 (2).
[197] See, for example, C178, Art. 1 (2): “National laws or regulations shall determine which ships are to be regarded as seagoing ships for the purposes of this Convention.” (italics added).
[198] In accordance with the principles of interpretation of international public law, the specific provisions control the general expressions. See Case concerning the payment of various Serbian loans issued in France, PCIJ Judgment No. 14, Series A, Nos. 20/21, at p. 30.