Final provisions of Conventions > Entry into force
 
  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.