Reasonably practicable measures
  1. Expressions such as "so far as is practicable", "reasonably practicable", or "reasonable and practicable" are used in a number of instruments.[263] They introduce a degree of flexibility into the process of implementation of a given provision, and all the more so given that these expressions are based on a concept that is difficult to measure - the notion of what is "reasonable". There are two aspects to this flexibility. On the one hand, this flexibility allows the measures taken to be made commensurate with the means available. On the other hand it emphasizes the nature of the obligation to which it applies, that is, an obligation to deploy the necessary resources and adopt the sort of conduct expected. The extent of that obligation depends on what is regarded as reasonable in a given context, and can therefore vary according to circumstances. It is thus a matter for each State which ratifies the Convention to apply and evaluate the measures to take and the means to implement the objective of the Convention.[264]
  1. The legal consequences of these expressions may vary according to the particular national legal system involved. They should be avoided, to the extent possible, in international instruments. In some legal systems, an obligation is absolute if a clause does not contain any qualifying expression of the type referred to above. In others, on the contrary, it is assumed that an obligation, even when expressed in absolute terms, must be met only to the extent that available means allow, and thus implies the notions of reasonableness and practicability. In such cases, even if those terms are not explicitly included, there is an obligation to take all reasonable measures to achieve a given objective, but not to guarantee that the objective will be met in all cases. The inclusion of such a clause can thus water down the protection to a level below the level desired.
  1. Consequently, and in order to circumvent the problem posed by the different approaches in different national legal systems, the ILC technical committees should indicate in their reports their own ideas as to how provisions framed in absolute terms in proposed texts must be interpreted. Such a paragraph would undoubtedly be part of the context within which the instrument would have to be interpreted, and would obviate any need to include such indications within the text of the instrument itself.[265]
  1. Lastly, it must be emphasized that the phrase "so far as is practicable" has a somewhat different meaning from the expressions considered above. It gives no indication as to technical or financial criteria, appropriateness or other factors (for example, what would be regarded as reasonable) which might be applied to determine whether a given measure is practicable; it therefore considerably extends the element of flexibility and should also be avoided.
  1. In any case, expressions such as "reasonably practicable" should be used with caution. Rather than using general formulas similar to those mentioned above, it would be appropriate, wherever possible, to identify concrete solutions to the situations presented (instead of adopting an over-broad exception). For example, in the Safety and Health in Agriculture Convention, 2001 (No. 184), when provision is made for employers to ensure appropriate training for workers in agriculture, said provision likewise states that account must be taken of the level of education and differences in language.[266]
[263] See, for example, C28, Art. 9 (6); C32, Art. 16; C152, Art. 17 (2); C155, Art. 4 (2); C162, Art. 11 (2); R160, Para. 7 (1) b); R164, Para. 10 a); and R172, Para. 16. See also the section on changes to scope and application of obligations.
[264] See ILO: Safety and health in agriculture, report of the Committee on Safety and Health in Agriculture, Report IV(1), ILC, 89th Session, Geneva, 2001, p. 3.
[265] The Committee on Safety and Health in Agriculture during the 89th Session of the ILC provided a convincing example of this.
[266] C184, Art. 7.