Drafting practice
  1. Flexibility in the Conventions can provide Members with a varying margin of appreciation in determining in practice the scope of application, or can avoid setting in absolute terms the requisite qualitative or quantitative measures. Before examining the various examples from practice set out below, it should be noted that they have been used in a limited number of cases.
  1. This room to manoeuvre is sometimes linked to local, national or climatic conditions, so that the Member is then obliged, for example, to take adequate measures "to the maximum extent possible under local conditions";[304] "unless there is an established local custom to the contrary";[305] or "as required by climatic conditions".[306] Other Conventions emphasize the importance of methods appropriate to national conditions and customs.[307]
  1. In other cases, flexibility is linked to the methods allowed for calculating the minimum percentage of workers covered for Members to be deemed to be in compliance. This mechanism, which is associated above all with social security, was first instituted in the Social Security (Minimum Standards) Convention, 1952 (No. 102) (Art. 9), and has been incorporated into subsequent
    Conventions.[308]
  1. Only a few Conventions explicitly leave considerable discretion to Members in determining the scope of application in practice. For example, the Working Conditions (Hotels and Restaurants) Convention, 1991 (No. 172), stipulates that compliance with the instrument's provisions must be treated as effective if they are applied "to the great majority of the workers concerned" (Art. 8(2)). Similarly, the Part-Time Work Convention, 1994 (No. 175), prohibits the exclusion of "an unduly large percentage of part-time workers" (Art. 8).
  1. Terms used in other Conventions give Members a certain discretion in determining the requisite measures, by qualifying them as (for example) "adequate", "convenient", "appropriate", "compatible" or "satisfactory". This is standard practice, and, in order to give a better idea of the circumstances in which such qualifying terms are used, Appendix 7 shows the provisions of Conventions where they occur.
  1. In some cases, reference is made to the notion of practicability as reflected in terms such as "practicable", "reasonable" or, even more frequently, "possible". Some of these terms are combined and expressions such as "where reasonable and practicable", or "so far as reasonable and practicable" are used.[309] Appendix 8 gives an overview of the uses of these terms.
  1. Other Conventions, in particular in the maritime sector, make use of flexibility mechanisms based on the notion of equivalence, in that they do not require Members to take precisely defined measures but instead recognize that Members can meet their obligations by adopting and implementing measures that are broadly similar and commensurate. These Conventions require that any national laws and regulations be "substantially equivalent", "at least equivalent", or that any protection or benefits be "not less favourable" than those provided for under the Convention.[310]
  1. In other cases, flexibility is provided to a Member by wording to the effect that obligations under the Convention should be met "in any other manner which is consistent with national law and practice", "as appropriate under national law and practice", or "subject to national law and practice".[311] In those cases, rather than indicating the mechanism or institution by which the Convention is to be applied at the national level (see the section on implementation measures at the national level), the expressions in question concern the actual content of national law and practice to which the Member must refer in applying the Convention, as already explained (see the section on terminology and definition). The expression "in accordance with national law or practice", or similar expressions, have generally been used in Conventions only recently; more precisely, they were used in nine Conventions between 1957 and 1979;[312] but have been used in almost all Conventions since 1981. Given the degree of discretion which Members are allowed in these cases, certain minimum guarantees, which are discussed in the section on safeguard measures), must be secured in order to safeguard the universality of standards while respecting the diversity of national conditions. These include prior consultation with organizations of employers and workers, and respect for applicable international standards in national law and practice.
  1. Lastly, flexibility is also ensured in Conventions by calling on Members to accept and pursue certain specific objectives while allowing them considerable discretion to determine the nature and the time frame of the measures taken to achieve them.[313] In one recent instrument, the obligation incumbent on the Member is to establish itself the time frame within which it will take the necessary measures (time-bound measures).[314] These Conventions combine the prescriptive and promotional approaches. For example, the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), not only requires Members to pursue a policy designed to promote equality of opportunity and treatment in respect of employment and occupation but also provides a precise definition of what constitutes discrimination and specifies a range of measures needed to implement the policy in question. Similarly, the Rural Workers' Organisations Convention, 1975 (No. 141), begins by enumerating a series of guarantees that must be provided for rural workers' organizations and then stipulates the measures that governments must take to encourage and facilitate the establishment and development of these organizations.[315]

[304] See C117, Art. 15 (1).
[305] C117, Art. 11 (6).
[306] See C126, Art. 8 (1).
[307] C140, for example, stipulates that "Each Member shall formulate and apply a policy designed to promote, by methods appropriate to national conditions and practice and by stages as necessary, the granting of paid educational leave" (Art. 2). See also C156, Art. 7; and C166, Art. 9.
[308] See in particular C121, Art. 19; C128, Art. 9, 16, 22, 26, 28, 41 and 42; C130. Art. 10, 11, 19, 20, 22 and 33; C168, Art. 11 and 15.
[309] See the section on clauses frequently used with a commonly understood meaning, above.
[310] See in particular the following Conventions: C17, Art. 3; C24, Art. 2 (3); C25, Art. 2 (3); C54, Art. 2 (4) b); C72, Art. 3 (7); C92, Art. 1 (5); C106, Art. 7 (2); C121, Art. 3 (1) and Art. 7 (2); C126, Art. 1 (7); C128, Art. 33 (1); C133, Art. 1 (6); C146, Art. 9; C147, Art. 2; C158, Art. 2 (4); C165, Art. 7; C185, Art. 6 (6).
[311] See C106, Art. 4 (2); C120, Art. 3; C152, Art. 6 (2); C155, Art. 12; C158, Art. 8 (2), Art. 12 (1), Art. 13 (1) b), Art. 14 (1); C161, Art. 9 (1), Art. 9 (3) and Art. 11; C162, Art. 19 (1), Art. 21 (1); C164, Art. 4 d); C167, Art. 9; C168, Art. 8 (1) (“subject to national law and practice”), Art. 27 (2); C170, Art. 14; C172, Art. 4 (2), Art. 4 (3), Art. 5; C173, Art. 1 (1); C175, Art. 6 and Art. 10; C181, Art. 3 (1); C183, Art. 5.
[312] This expression, or similar ones, is found in C106 (Arts. 4(2) and 8(1)) and C120 (Art. 3) (in any other manner consistent with national law and practice); C142 (Art. 3(3)) (in accordance with national law and practice); C152 (Art. 6(2) (appropriate under national law and practice); C131 (Art. 4(3)(b)) (in accordance with national law or practice); C145 (Art. 4(1)(3)) (in a manner determined by national law or practice); C110, (Art. 1(2)(b)) (which by national law or practice are classified as); C135 (Art. 3) (recognized as such by national law or practice); C137 and C145 (Art. 1(2)) (defined as such by national law or practice) and C137 (Arts. 3(1) and 3(3)) (in a manner to be determined by national law or practice).
[313] These Conventions are sometime referred to as “promotional” or “programmatic” .
[314] See C182, Art. 7 (2).
[315] See also C122, C140, C142, C154, C156 and C159.