Final provisions of Conventions
 
  1. The final provisions are an integral part of the operative provisions of any international convention or treaty and have binding force in law. Nevertheless, the final provisions have a different purpose from the other provisions. They are usually technical in nature and are intended as guidance for the implementation of the instrument, relating specifically to its entry into force, its expiry and ratification formalities. For this reason, they are sometimes referred to as "formal clauses" or "standard clauses".
  1. Final provisions in multilateral treaties vary in nature. Most contain articles on: the settlement of disputes; amendment and revision of the instrument; the status of any annexes; signature; ratification; accession; entry into force; duration; denunciation; reservations; designation of the depositary and the associated functions; registration; and authoritative language versions. Depending on the nature and substance of the instrument, there may also be other provisions referring to a transitional period; suspension of the instrument's provisions; or its relationship with previous instruments.
  1. The Constitution of the ILO contains no provisions regarding the conditions of ratification of Conventions, their entry into force, revision or denunciation, or notification of ratifications to Members. These matters are determined by the provisions contained in the Final Articles of Conventions. The ILO has generally used standard provisions reproduced without any major modifications in the Final Articles of each new Convention. These standard provisions have been adopted as such by the ILC.
  1. The first standard final provisions were proposed in 1919 by the Conference Drafting Committee to supplement the Hours of Work (Industry) Convention, 1919 (No. 1), and it was decided that these should also be included in subsequent Conventions. Most standard final provisions in their present form date from the 11th Session (1928) of the ILC.. At that session, six proposed Final Articles were adopted based on the previous practice of the Standing Orders Committee. They concerned the following questions: (a) ratification; (b) entry into force; (c) notification of ratifications to Members; (d) denunciation; (e) report and consideration for revision by the Governing Body; and (f) authentic texts. A seventh article concerning the effects of a possible revision of Conventions was introduced in 1929 before taking its present form in 1933. In its 29th Session in 1946, the Conference made certain adjustments to the standard Final Articles on the ratification and denunciation procedures. These modifications had become necessary following the dissolution of the League of Nations (whose functions with regard to the deposit of treaties and international agreements were assumed by the United Nations) and the constitutional amendments that resulted from this. On that occasion, an eighth article concerning notification of ratifications to the Secretary-General of the United Nations was added. Finally, in 1951, the article concerning the examination of the issue of revision was changed to its current form. Several standard provisions have been adopted using wording that leaves a certain number of parameters open, such as the number of ratifications necessary for Conventions to come into force and the length of the various intervals relating to entry into force and denunciation.
  1. In accordance with well-established practice, Articles containing the final provisions are added by the ILC Drafting Committee to the text of the proposed Convention attached to the report of the technical committee responsible to draw up a proposed text. This draft of the Convention is then submitted to a final vote in the plenary session of the Conference. The Drafting Committee uses the standard final provisions, although changes to them are made as required by the technical committees of the Conference. The parameters left open in the standard final clauses adopted by the Conference are usually, in the absence of any instructions from the technical committees, left unchanged by the Drafting Committee, which resorts to the default parameters indicated in brackets in the final provisions. These default parameters are discussed below.
  1. The standard final provisions adopted by the Conference have comprised two types of significant developments. The first concerns entry into force, which was significantly modified in some of the maritime labour Conventions adopted since 1936. The second concerns the practice that has developed with regard to the final provisions of the five Protocols adopted since 1982, which differ in certain respects from the standard Final Articles by virtue of their special legal nature characterized by their attachment to another Convention.
  1. Once included in a Convention, the final provisions, like any other provisions in a Convention, cannot be amended except by revision of the Convention of which they are an integral part. In order to get around that difficulty, the Organization adopted the Final Articles Revision Conventions, Nos. 80 and 116, in 1946 and 1961 respectively, with a view to harmonizing the system applied to Conventions following the adoption of new standard final clauses.
  1. The standard final provisions in their present form comprise normally eight Articles on the following subjects: (a) entry into force of the Convention; (b) denunciation; (c) revision of the Convention; (d) depositary functions of the Director-General and United Nations Secretary-General; (e) authoritative language versions.
  1. Article B in the final provisions governing entry into force now has the following form:
Article B
  • This Convention shall be binding only upon those Members of the International Labour Organisation whose ratifications have been registered with the Director-General.
  • It shall come into force [twelve] months after the date on which the ratifications of [two] Members have been registered with the Director-General.
  • Thereafter, this Convention shall come into force for any Member [twelve] months after the date on which its ratification has been registered.
  1. Since the adoption of the Minimum Age (Agriculture) Convention, 1921 (No. 10), this article has been divided into three paragraphs, the content of which was the same as it is now but arranged in a different order. The first paragraph is simply a reminder of what is already established under article 19, paragraph 5(d) and (e), of the Constitution of the ILO, namely, that a Member of the ILO is only obliged to give effect to the provisions of a Convention which it has ratified, in accordance with a well-established principle of customary law.
  1. Paragraph 1 of Article B nevertheless goes somewhat beyond the final sentence of article 20 of the Constitution, in stipulating that for a Convention to be binding on Members, ratification must be registered by the Director-General. Such a condition is unusual in international treaties, and would appear to be a special feature of ILO Conventions. If a ratification communicated to the Director-General is for any reason not registered, the Member would not be bound by the Convention that had been ratified. The effect of ratification thus depends on a positive act - namely, registration - by the depositary. By contrast with the usual role of the depositary under international law, the Director General of the ILO can refuse to register a ratification for reasons that go beyond questions of form. For example, a ratification which involved lack of conformity on a matter of substance, or which would effectively constitute a reservation, can be refused by the ILO Director-General himself. Paragraph 1 of Article B above thus imposes a procedural condition, in addition to that of article 20 of the Constitution and general international law according to which normally the mere fact of ratification gives rise to obligations. In practice, this additional condition has been useful as a means of ensuring that ratifications accompanied by declarations having the effect of reservations (which are not admissible) are revised and amended by the States concerned.
  1. Paragraphs 2 and 3 of Article B set the date of entry into force of the Convention, which is essential for the Convention to give rise to obligations on member States. The paragraphs draw a distinction between two phases of entry into force. The first is the initial or "objective" entry into force with regard to the ILO, which is the starting point for the purpose of reckoning time limits for denunciation (see denunciation) and brings into effect the obligations and rights under articles 22, 24 and 26 of the Constitution. It also marks the entry into force of the Convention for member States which ratified it 12 months or more before this date (paragraph 2). The second phase of entry into force is the individual or "subjective" entry into force for each Member that ratifies the Convention after its initial entry into force (paragraph 3). These time limits are not set by the Constitution of the ILO or by any provision of public international law.
  1. As regards the objective entry into force (paragraph 2), three specific parameters need to be considered: (i) the number of ratifications necessary for entry into force; (ii) the stipulation of the Members whose ratifications are necessary for entry into force; and (iii) the interval before the Convention comes into force.
  1. The standard number of ratifications needed for a Convention to enter into force was set by default in the final provisions at two. All ILO Conventions, except for the Unemployment Convention, 1919 (No. 2), which specifies three ratifications, and 18 of the 40 maritime Conventions, for which the number of ratifications required varies from 5 to 12, have adhered to this standard number of ratifications.
  1. A certain number of ILO Conventions require not only a specified number of ratifications to be registered, but also stipulate that a certain number of those ratifications be registered by specific named Members. The relevant provisions of the Hours of Work (Coal Mines) Conventions of 1931 and 1935 (Nos. 31 and 46), of the Plantation Convention, 1958 (No. 110), as well as of 12 of the 18 maritime Conventions mentioned above, specify that the ratifications that are counted for the purpose of entry into force must come from Members on a list. Furthermore, in the case of maritime labour Conventions, a certain number of ratifications must come from countries with a merchant fleet of a certain size as measured by gross tonnage. In some cases, there is a provision indicating that these conditions are included for the purpose of facilitating and encouraging early ratification of the Convention by member States.
  1. A list of specified countries can only be established for the purposes of a particular Convention if the aim is to ensure ratification by a minimum number of those countries that are most directly concerned by its provisions. Provisions setting out this condition can therefore be adopted only on a case-by-case basis in the light of the subject matter of the Convention, and cannot be included in standard Final Articles. Clearly, they must also be discussed by the competent technical committees.
  1. The period between registration of the last ratification needed and the objective or subjective entry into force is set at 12 months in the standard final provisions. Where no specific time limits are stipulated in the instrument, entry into force would be immediate, that is, takes effect as soon as the requisite number of ratifications is reached. The time limits must therefore be fixed in each Convention, at least as default provisions. They were not specified in the first 23 Conventions, which entered into force therefore as soon as they were ratified. The Sickness Insurance (Industry) Convention, 1927 (No. 24), and the Sickness Insurance (Agriculture) Convention, 1927 (No. 25), provide for a period of 90 days after ratification before entry into force. From the adoption of the Minimum Wage-Fixing Machinery, 1928 (No. 26), onwards, the period for the entry into force was set at one year to allow ratifying States to bring their legislation into line with the ratified instrument. The period of 12 months under Article B adopted in 1928 could not be amended, and it was only the adoption of new standard final provisions in 1946 that made amendment possible. Although Article B as adopted in 1946 indicated no time limit for entry into force, the practice of setting that period at 12 months has been maintained. There have nevertheless been some exceptions, for which a six-month period has been set. These derogations concern above all the maritime Conventions.
  1. Denunciation is the act whereby a Member may terminate its obligations under a Convention it has ratified, as well as its constitutional obligations with respect to that Convention. In the absence of a provision in the Constitution of the ILO on the possibility of denouncing a ratified Convention, any provision allowing for denunciation must therefore be included in each Convention along with any time limit within which denunciation can take place. There are broadly two types of denunciation: those that follow automatically from the ratification of a Convention revising an earlier Convention (see revision); and "pure" denunciations effected by an act of denunciation communicated to the Director-General of the International Labour Office. The relevant provision is as follows:
Article C
  • A Member which has ratified this Convention may denounce it after the expiration of [ten] years from the date on which the Convention first comes into force, by an act communicated to the Director-General of the International Labour Office for registration. Such denunciation shall not take effect until [one year] after the date on which it is registered.
  • Each Member which has ratified this Convention and which does not, within the year following the expiration of the period of [ten] years mentioned in the preceding paragraph, exercise the right of denunciation provided for in this Article, will be bound for another period of [ten] years and, thereafter, may denounce this Convention at the expiration of each period of [ten] years under the terms provided for in this Article.
  1. This provision, adopted in its present wording with the Underground Work (Women) Convention, 1935 (No. 45), provides for a number of different time limits: (i) an initial period of validity of the Convention, reckoned from the date of its initial entry into force; (ii) the period during which denunciation is permissible; (iii) a third period during which the Convention remains in force if it has not been denounced, at the end of which period the denunciation-validity cycle is repeated, resulting in a system of "windows" for denunciation; and lastly (iv) a period of notice between registration of denunciation and the denunciation taking effect.
  1. In the ILO's practice, the first period of validity has normally been ten years, or five years in exceptional cases, reckoned from the date of the Convention's initial entry into force. After that period, Conventions adopted between 1919 and 1927 can be denounced at any time. In 1928, considering that offering States this possibility introduced an element of precariousness in the system of mutual obligations established by Conventions, the Conference established the principle of the denunciation-validity cycle, leaving open the question of the duration of the initial and subsequent periods of validity. Barring exceptions, the duration of the period during which denunciation is possible has been one year, while the subsequent period during which the Convention remains in force was fixed at ten years in most cases from 1933 onwards. Before that date, some Conventions fixed it at five years. A study of practice in the area of denunciations has shown, however, that the period within which denunciation is admissible coincides with the first year of the new period of validity which starts from the end of the previous period of validity. Lastly, the period of notice is invariably one year, and has been since 1919.
  1. Between 1938, the year of the first denunciation, and December 2004, there were 118 "pure" denunciations (for 7,245 registered ratifications as of 13 December 2004). Of these, 21 were for the Night Work (Women) Convention (Revised), 1948 (No. 89), making it the Convention with the most denunciations.
  1. The standard final provisions include two articles concerning the revision of Conventions. The first one reads as follows:
Article F
  • At such times as it may consider necessary the Governing Body of the International Labour Office shall present to the General Conference a report on the working of this Convention and shall examine the desirability of placing on the agenda of the Conference the question of its revision in whole or in part.
  1. Unlike the provisions contained in Conventions adopted before 1951 and amended subsequently, which require the Governing Body to present a report at least once every ten years, this provision leaves it to the Governing Body to choose the best time to report. The procedure followed in these cases is referred to in article 11 of the Standing Orders of the Governing Body and article 44 of the Standing Orders of the Conference. It was last used in 1952, for the purpose of revising the Maternity Protection Convention, 1919 (No. 3). In practice, because it is rather cumbersome, it was abandoned in favour of a simpler procedure by which the revision of a Convention is simply placed as a normal item on the agenda of the ILC.
  1. Article G concerns the consequences of revision of a Convention, as follows:
Article G
  • Should the Conference adopt a new Convention revising this Convention in whole or in part, then, unless the new Convention otherwise provides:
    • a) the ratification by a Member of the new revising Convention shall ipso jure involve the immediate denunciation of this Convention, notwithstanding the provisions of Article [C] above, if and when the new revising Convention shall have come into force;
    b) as from the date when the new revising Convention comes into force this Convention shall cease to be open to ratification by the Members.
  • This Convention shall in any case remain in force in its actual form and content for those Members which have ratified it but have not ratified the revising Convention.
  1. This article was first included in the Marking of Weight (Packages Transported by Vessels) Convention, 1929 (No. 27), and has undergone very few changes since then. It determines the consequences of revision as provided for in principle in Article F. It states that ratification by a Member of the new revising Convention entails ipso jure (that is, automatically and without the need for a declaration to that effect) the immediate denunciation by that State of the Convention being revised. This also closes the old Convention to ratification, unless there is a specific provision to the contrary.
  1. Following the dissolution of the League of Nations and, in particular, the decision to transfer to the ILO Director-General and the United Nations Secretary-General the depositary functions formerly assumed by the Secretary-General of the League of Nations, the standard Final Articles A, D and E, which took their present form in 1946, set out the functions of these officials in the following terms:
Article A
  • The formal ratifications of this Convention shall be communicated to the Director-General of the International Labour Office for registration.
Article D
  • The Director-General of the International Labour Office shall notify all Members of the International Labour Organisation of the registration of all ratifications and denunciations communicated to him by the Members of the Organisation.
  • When notifying the Members of the Organisation of the registration of the last of the ratifications required to bring the Convention into force, the Director-General shall draw the attention of the Members of the Organisation to the date upon which the Convention will come into force.
Article E
  • The Director-General of the International Labour Office shall communicate to the Secretary-General of the United Nations for registration in accordance with Article 102 of the Charter of the United Nations full particulars of all ratifications and acts of denunciation registered by him in accordance with the provisions of the preceding Articles.
  1. The provisions of Articles A and D supplement article 19, paragraph 4, of the Constitution, according to which the Director-General as depositary is required to communicate a certified copy of the Convention to each Member. Under the terms of Article A, the depositary functions include registration of ratifications and, under Article C concerning denunciation (see denunciation), also include dealing with denunciations. Article D adds the obligation to notify all Members of any registrations and denunciations. Lastly, when notifying Members of registration of the second ratification (the standard number, discussed under Number of ratifications necessary for entry into force), the Director-General is required to draw Members' attention to the date of entry into force of the Convention.
  1. The Director-General fulfils his obligation to notify Members principally by publishing the relevant information in the ILO's OB (Series A). In practice, this information does not include notice of automatic denunciations arising from ratification of a revising Convention. This can be explained by the fact that such denunciations do not come about through "acts of denunciation" within the strict meaning of Article D, paragraph 1. Detailed information, including the mention of any automatic denunciations, is also presented annually to the Conference in a special section of the report of the CEACR. Lastly, the Governing Body in its March and November sessions is also informed, through the report of the Director-General, of any ratifications and denunciations, including any reasons given by governments for denunciation, as it had requested at its 184th Session.
  1. Article 20 of the Constitution, according to which any ratified Convention must be communicated by the Director-General of the ILO to the Secretary-General of the United Nations for registration, in accordance with Article 102 of the United Nations Charter, was included in the 1946 Constitution in recognition of the importance of including Conventions in the general register of treaties maintained by the United Nations. It was felt, however, that registration of a Convention would be incomplete unless any subsequent act affecting its application - such as ratifications, denunciations and declarations - was also registered by the Secretary-General. Article E of the final provisions thus provides for the Director-General to communicate to the Secretary-General, for the purpose of registration, full particulars concerning ratifications and denunciations that have been registered. The procedure for depositing and registering ILO Conventions with the United Nations was confirmed in a Memorandum of Agreement signed by the two organizations in 1949.
  1. In practice, the Director-General in his communications to the United Nations indicates the cases in which ratification entails automatic denunciation of another Convention, although such a denunciation does not result, in the wording of Article E, from an “act of denunciation” or “in accordance with the provisions of the preceding Articles”. Given that communication of that information is nevertheless required, it might be possible to adapt the wording of Article E to reflect that practice.
  1. Article H stipulates that the French and English language versions are both equally authoritative. This Article has remained fundamentally unchanged since its inclusion in the first Convention in 1919. It was amended in 1946, with the adoption of Convention No. 68 and has not been changed ever since. Article H in its current form reads as follows:
Article H
  • The English and French versions of the text of this Convention are equally authoritative.
  1. The authoritative languages are the official languages of the Conference in accordance with article 6, paragraph 3, and article 24, paragraph 1, of the Standing Orders of the Conference. The French and English language versions of the Convention are authenticated by the President of the Conference and the Director-General.
  1. In light of the foregoing considerations, the following observations and recommendations may be made:
  1. The recommendations which follow are addressed to the Conference Drafting Committee which will apply by default the figures in brackets unless a contrary indication is provided by the technical committees.
  1. It would be appropriate to review generally the formal wording of the Final Articles in order to better reflect the proposals in this Manual (for example, with regard to the use of tenses and gender-inclusive wording. See the section on drafting rules and methods).
  1. More specifically, the final provision on denunciation (Article C) should be modified to state clearly that the period of one year during which the Convention may be denounced runs concurrently with the subsequent period of validity.
  1. The terms "in whole or in part" applied to the revision of a Convention once adopted by the Conference should be eliminated (even if a reference to the same has appeared on the ILC agenda). In all cases, the revision of a Convention, whether in whole or in part, leads to the adoption of a new Convention that replaces the previous one.
  1. A comparative table of the present and proposed wording of the Final Articles follows (proposed changes in French may differ):
 
Current final provisions With proposed amendments
Article A Article A
The formal ratifications of this Convention shall be communicated to the Director-General of the International Labour Office for registration. The formal ratifications of this Convention shall be communicated to the Director-General of the International Labour Office for registration.
Article B Article B
  1. This Convention shall be binding only upon those Members of the International Labour Organisation whose ratifications have been registered with the Director-General.
  1. This Convention shall be binding only upon those Members of the International Labour Organisation whose ratifications have been registered with the Director-General.
  1. It shall come into force [twelve months] after the date on which the ratifications of [two] Members have been registered with the Director-General.
  1. It shall come into force [twelve months] after the date on which the ratifications of [two] Members have been registered with the Director-General.
  1. Thereafter, this Convention shall come into force for any Member [twelve] months after the date on which its ratification has been registered.
  1. Thereafter, this Convention shall come into force for any Member [twelve] months after the date on which its ratification is registered..
Article C Article C
  1. A Member which has ratified this Convention may denounce it after the expiration of [ten] years from the date on which the Convention first comes into force, by an act communicated to the Director-General of the International Labour Office for registration. Such denunciation shall not take effect until [one year] after the date on which it is registered.
  1. A Member which has ratified this Convention may denounce it after the expiration of [ten] years from the date on which the Convention first comes into force, by an act communicated to the Director-General of the International Labour Office for registration. Such denunciation shall not take effect until [one year] after the date on which it is registered.
  1. Each Member which has ratified this Convention and which does not, within the year following the expiration of the period of [ten] years mentioned in the preceding paragraph, exercise the right of denunciation provided for in this Article, will be bound for another period of [ten] years and, thereafter, may denounce this Convention at the expiration of each period of [ten] years under the terms provided for in this Article.
  1. Each Member which has ratified this Convention and which does not, within the year following the expiration of the period of [ten] years mentioned in the preceding paragraph, exercise the right of denunciation provided for in this Article, will be bound for another period of [ten] years and, thereafter, may denounce this Convention within the first year of each new period of [ten] years under the terms provided for in this Article.
Article D Article D
  1. The Director-General of the International Labour Office shall notify all Members of the International Labour Organisation of the registration of all ratifications and denunciations communicated to him by the Members of the Organisation.
  1. The Director-General of the International Labour Office shall notify all Members of the International Labour Organisation of the registration of all ratifications and denunciations that have been communicated to him by the Members of the Organisation.
  1. When notifying the Members of the Organisation of the registration of the last of the ratifications required to bring the Convention into force, the Director-General shall draw the attention of the Members of the Organisation to the date upon which the Convention will come into force.
  1. When notifying the Members of the Organisation of the registration of the last of the ratifications required to bring the Convention into force, the Director-General shall draw the attention of the Members of the Organisation to the date upon which the Convention will come into force.
Article E Article E
The Director-General of the International Labour Office shall communicate to the Secretary-General of the United Nations for registration in accordance with Article 102 of the Charter of the United Nations full particulars of all ratifications and acts of denunciation registered by him in accordance with the provisions of the preceding Articles. The Director-General of the International Labour Office shall communicate to the Secretary-General of the United Nations for registration in accordance with Article 102 of the Charter of the United Nations full particulars of all ratifications and denunciations that have been registered
Article F Article F
At such times as it may consider necessary the Governing Body of the International Labour Office shall present to the General Conference a report on the working of this Convention and shall examine the desirability of placing on the agenda of the Conference the question of its revision in whole or in part. At such times as it may consider necessary, the Governing Body of the International Labour Office shall present to the General Conference a report on the working of this Convention and shall examine the desirability of placing on the agenda of the Conference the question of its revision in whole or in part.
Article G Article G
  1. Should the Conference adopt a new Convention revising this Convention in whole or in part, then, unless the new Convention otherwise provides:
  • the ratification by a Member of the new revising Convention shall ipso jure involve the immediate denunciation of this Convention, notwithstanding the provisions of Article [C] above, if and when the new revising Convention shall have come into force;
  • as from the date when the new revising Convention comes into force this Convention shall cease to be open to ratification by the Members.
  1. Should the Conference adopt a new Convention revising this Convention in whole or in part, then, unless the new Convention otherwise provides:
  • the ratification by a Member of the new revising Convention shall ipso jure involve the immediate denunciation of this Convention, notwithstanding the provisions of Article [C] above, if and when the new revising Convention shall have come into force;
  • as from the date when the new revising Convention comes into force this Convention shall cease to be open to ratification by the Members.
  1. This Convention shall in any case remain in force in its actual form and content for those Members which have ratified it but have not ratified the revising Convention.
  1. This Convention shall in any case remain in force in its actual form and content for those Members which have ratified it but have not ratified the revising Convention.
Article H Article H
The English and French versions of the text of this Convention are equally authoritative. The English and French versions of the text of this Convention are equally authoritative.