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GB.271/4/2
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FOURTH ITEM ON THE AGENDA
Date, place and agenda of the 88th Session (2000)
of the Conference
Proposals for the withdrawal of
Conventions Nos. 31, 46, 51, 61 and 66
1. As stated in paragraph 10 of document GB.271/4/1, the present paper is submitted to the Governing Body containing proposals for the withdrawal of five Conventions that have never come into force.
2. At its 85th Session (June 1997), the International Labour Conference adopted an amendment to the Constitution of the International Labour Organization and to the Standing Orders of the Conference so as to enable the Conference to abrogate or withdraw obsolete international labour Conventions and Recommendations.(1) The Conference noted that, while the withdrawal of such instruments requires exactly the same strict procedural guarantees as those applying to abrogation, the Conference could withdraw a Convention (which had not entered into force or was no longer in force because of denunciations) or a Recommendation without waiting for the entry into force of the constitutional amendment relating to the abrogation of obsolete international labour Conventions.
3. At its 270th (November 1997) Session,(2) the Governing Body adopted an amendment to its Standing Orders (a new article 12bis) relating to the procedure concerning the placing on the Conference agenda of the abrogation of a Convention in force or the withdrawal of a Convention which is not in force or of a Recommendation.
4. At that same session,(3) the Governing Body requested the Office to prepare a report with a view to placing on the agenda of the Conference the withdrawal of the following Conventions: Hours of Work (Coal Mines) Convention, 1931 (No. 31), Hours of Work (Coal Mines) Convention (Revised), 1935 (No. 46), Reduction of Hours of Work (Public Works) Convention, 1936 (No. 51), Reduction of Hours of Work (Textiles) Convention, 1937 (No. 61) and Migration for Employment Convention, 1939 (No. 66). The Governing Body noted, as it had at its 267th Session,(4) that it would not be necessary to wait for the constitutional amendment to come into force before withdrawing these five Conventions since the conditions for their entry into force had not been fulfilled.
5. It should be recalled that these five Conventions have been examined by the Working Party on Policy regarding the Revision of Standards of the Committee on Legal Issues and International Labour Standards.(5) The five Conventions are sectoral in nature and were adopted during the 1930s. Three of them (Conventions Nos 51, 61 and 66) had received no ratifications, while the remaining two (Conventions Nos. 31 and 46) had received two and three ratifications respectively, but these were not sufficient to bring them into force.(6) At its 265th Session, the Governing Body had decided to shelve these five Conventions with immediate effect and to draw the attention of the Members that had deposited instruments of ratification to the possibility of requesting the cancellation or withdrawal of the registrations. However, since that recommendation was made, the Conference amended its Standing Orders so as to provide for the withdrawal of Conventions and Recommendations. There was thus no longer any need to invite Members to withdraw their ratifications. At the 270th Session of the Governing Body, the Working Party recommended by consensus that the five Conventions could be placed on the agenda of the Conference for their withdrawal. This recommendation was endorsed by the Committee on Legal Issues and International Labour Standards and approved by the Governing Body.(7)
6. In accordance with article 12bis, paragraph 1 of the Standing Orders of the Governing Body, the Office is required to place before the Governing Body a report containing all relevant information which it possesses regarding the withdrawal of the five Conventions. The Governing Body may wish to consider that the requirement of this provision has been fulfilled, since these Conventions were examined at its 265th Session (March 1996) based on a document prepared by the Office (see appendix).
7. Article 12bis, paragraph 2, also provides that the provisions of article 18 concerning the fixing of the Conference agenda shall not apply to the decision to place on the agenda of a given session of the Conference an item on abrogation or withdrawal. Article 18 of the Standing Orders of the Governing Body regulates the method of voting in order to fix the agenda of the Conference. Article 12bis, paragraph 2 provides instead that a decision regarding abrogation or withdrawal must be reached as far as possible by consensus or if such a consensus cannot be reached in two successive sessions of the Governing Body, by a four-fifths majority of the members of the Governing Body with a right to vote during the second of these sessions. Since the decisions reached by the Governing Body at its 265th and 270th Sessions regarding these five Conventions were made by consensus, the requirements of this provision can also be deemed to have been met.
8. In accordance with article 45bis of the Standing Orders of the Conference, if the Governing Body decides to place the question of the withdrawal of these Conventions on the agenda of the 88th Session of the Conference, the Office is required to communicate to all governments, so that it reaches them 18 months before the session of the Conference, a short report and questionnaire inviting their opinion. Concerning the procedure to be followed at the Conference, the Office refers to the indication given in an earlier document to the Governing Body.(8) It was proposed that since there would be no need to weigh carefully the content of the proposed provisions one after the other, but to confirm the obsolete nature of a text as a whole, the discussion procedure at the Conference of the report prepared by the Office and proposal could take the form of a simplified version of the single-discussion procedure, it being understood that the Conference could make use -- much more so than in the case of adoption -- of the option to proceed directly to a plenary examination of the question, without referring it to a technical committee.
9. It should be noted that, as article 12bis excludes the application of article 18 of the Standing Orders of the Governing Body, the questions of abrogation or withdrawal, even if they are questions to be placed on the agenda of the Conference, are not taken into account in the procedure for the selection of the items on the agenda for the purposes of article 18.
10. Finally, the question arises of the practical consequences that would flow from a decision by the Conference to abrogate or withdraw a Convention or a Recommendation. This relates to the numbering of such instruments and their publication in the official collection of ILO Conventions and Recommendations. Since the consequences of the abrogation or withdrawal would now make it unnecessary to reproduce the text of such instruments, the renumbering of the other instruments would not be advisable, since some of the most influential ILO Conventions are better known by their number than by their official title. In this respect, it is proposed that a Convention or Recommendation which was either abrogated or withdrawn should continue to appear in the official compendium of ILO Conventions and Recommendations with the full title and number but without the text and with a reference to the session and year of the Conference at which the decision of abrogation or withdrawal was taken.
11. The Governing Body may wish to place on the agenda of the 88th Session (2000) of the International Labour Conference an additional item relating to the withdrawal of Conventions Nos. 31, 46, 51, 61 and 66.
Geneva, 26 February 1998.
Point for decision: Paragraph 11.
Extract from document GB.265/LILS/WP/PRS/1
II. Conventions that have not entered into force
1. Of the 159 Conventions adopted prior to 1985, 13 have never entered into force.(9) Eight of these concern seafarers and will not be examined in this paper.(10) The latter often contain more demanding conditions for their entry into force than the two ratifications that are normally required in the case of international labour Conventions. The five other Conventions that have not entered into force, and which are examined below, were all adopted during the 1930s. They are sectoral Conventions, of which four have to do with hours of work -- in coal mines, in public works and in textiles. The other Convention concerns migrant workers. Of the five Conventions three have received no ratification, and two have already been revised.
II.1. C.31 -- Hours of Work (Coal Mines) Convention, 1931
(1) Ratifications:
(a) Number of ratifications: 2
- Spain 1932
- Argentina 1956
Conditions for entry into force: Ratification by two States from a list of seven specified member States -- none of which has ratified the Convention.(11)
(b) Ratification prospects: Virtually nil (no ratification for the past 40 years). Moreover, according to its Article 22.2, Convention No. 31 should have been closed to new ratifications following the entry into force of Convention No. 46. Since the latter itself never entered into force, Convention No. 31 has remained open to ratification. The ratification of Convention No. 31 by Argentina was in fact recorded subsequently to the adoption of Convention No. 46 revising Convention No. 31.
(2) Need for revision: The Convention has already been revised by the Hours of Work (Coal Mines) (Revised) Convention, 1935 (No. 46) -- three ratifications at 31 December 1995. The latter has not, however, yet entered into force.
(3) Remarks: As it has not entered into force, this Convention has no effect. Its prospects of entering into force are virtually non-existent. Moreover, it has already been revised by Convention No. 46, only four years after its adoption. Consequently, neither the status quo nor a new revision can be recommended.
The Working Party could for the time being contemplate shelving the Convention, pending its possible abrogation by the Conference subsequently. Shelving Convention No. 31 immediately would mean that it would no longer appear in ILO publications (at present it continues to appear, for example, in the list of ratifications that are submitted to the Conference each year). In the long term its formal abrogation could be envisaged in two stages. To begin with, the Working Party could draw the attention of the two States parties to the Convention to the possibility of requesting the cancellation (or withdrawal) of the registration of their ratification, since they cannot denounce the Convention.(12) At the national level, this cancellation request could be decided along the lines laid down by the Governing Body or by Convention No. 144 for denunciations.(13) It should be mentioned that these two member States, Argentina and Spain, are parties to other Conventions on hours of work that are currently in force, such as Convention No. 1. Subsequently, the Working Party could re-examine the status of Convention No. 31 and possibly recommend its abrogation by the Conference.
(4) Proposals:
(a) The Working Party could propose that Convention No. 31 be shelved with immediate effect.
(b) The Governing Body could draw the attention of the two States parties to Convention No. 31 to the possibility of requesting the cancellation or withdrawal of the registration of their ratification.
(c) The Working Party (or the LILS Committee) would re-examine the status of Convention No. 31 in due course, with a view to its possible abrogation by the Conference.
II.2. C.46 -- Hours of Work (Coal Mines) (Revised) Convention, 1935
(1) Ratifications:
(a) Number of ratifications: 3
- Cuba 1936
- Mexico 1939
- Spain 1971
Conditions for entry into force: Ratification by two States from a list of seven specified member States -- none of which has ratified the Convention;(14)
(b) Ratification prospects: virtually nil. Moreover it is most unlikely that any two of the seven member States whose ratification is required for the entry into force of the Convention will ratify it in the foreseeable future if they have not done so over the past 60 years.
(2) Need for revision: This Convention has not been revised. Since it is a sectoral Convention concerned with hours of work, its revision on an individual basis would not seem to be a viable option.
(3) Remarks: The remarks made in connection with Convention No. 31 would seem to be applicable, mutatis mutandis, to Convention No. 46, though the status of the latter is different in so far as it has not been revised. It should perhaps be included in a group of instruments on hours of work (Conventions Nos. 1 and 30 among others) for possible revision. During the preparatory work for the last Meeting of Experts on Hours of Work in 1993, however, the question of Convention No. 46 was not raised. The proposals submitted to the Working Party are therefore the same for Convention No. 31 and for Convention No. 46.
(4) Proposals:
(a) The Working Party could propose that Convention No. 46 be shelved with immediate effect.
(b) The Governing Body could draw the attention of the three States parties to Convention No. 46 to the possibility of requesting the cancellation or withdrawal of the registration of their ratification.
(c) The Working Party (or the LILS Committee) would re-examine the status of Convention No. 46 in due course, with a view to its possible abrogation by the Conference.
II.3. C.51 -- Reduction of Hours of Work (Public Works) Convention, 1936
(1) Ratifications:
(a) Number of ratifications: 0
Conditions for entry into force: After two ratifications.
(b) Ratification prospects: non-existent (no ratification in 60 years).
(2) Need for revision: This Convention has not been revised. Since it is a sectoral Convention concerned with hours of work, its revision on an individual basis would not seem to be a viable option.
(3) Remarks: Same as for Conventions Nos. 31 and 46. Moreover, since Convention No. 51 has received no ratifications, its situation appears even simpler. The Working Party might therefore contemplate its abrogation by the Conference, if it so wishes.
(4) Proposals:
(a) The Working Party could propose that Convention No. 51 be shelved with immediate effect.
(b) The Working Party (or the LILS Committee) would re-examine the status of Convention No. 51 in due course, with a view to its possible abrogation by the Conference.
II.4. C.61 -- Reduction of Hours of Work (Textiles) Convention, 1937
(1) Ratifications:
(a) Number of ratifications: 0
Conditions for entry into force: After two ratifications.
(b) Ratification prospects: Non-existent (no ratification in 59 years).
(2) Need for revision: This Convention has not been revised. Since it is a sectoral Convention concerned with hours of work, its revision on an individual basis would not seem to be a viable option.
(3) Remarks: Same as for Convention No. 51.
(4) Proposals:
(a) The Working Party could propose that Convention No. 61 be shelved with immediate effect.
(b) The Working Party (or the LILS Committee) would re-examine the status of Convention No. 61 in due course, with a view to its possible abrogation by the Conference.
II.5. C.66 -- Migration for Employment Convention, 1939
(1) Ratifications:
(a) Number of ratifications: 0
Conditions for entry into force: After two ratifications.
(b) Ratification prospects: Convention closed to ratification.
(2) Need for revision: Convention already revised by the Migration for Employment Convention (Revised), 1949 (No. 97) -- 40 ratifications as at 31 December 1995 -- which has been supplemented by the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) -- 17 ratifications as at 31 December 1995.
(3) Remarks: Same as in the case of Conventions Nos. 51 and 61. Moreover, Convention No. 66 has already been revised and is closed to ratification.
(4) Proposals:
(a) The Working Party could propose that Convention No. 66 be shelved with immediate effect.
(b) The Working Party (or the LILS Committee) would re-examine the status of Convention No. 66 in due course, with a view to its possible abrogation by the Conference.
1. Provisional Record No. 10 (International Labour Conference, 85th Session, June 1997).
3. GB.270/LILS/3/(Rev.1), para. 94, appended to GB.270/9/2.
4. GB.267/LILS/WP/PRS/1, paras. 5 and 7.
7. GB.270/LILS/3(Rev.1), para. 94, and GB.270/9/2.
10. See document GB.264/LILS/4, para. 27.
12. Since the possibility of denouncing a Convention depends on its entry into force, it follows that States that have ratified it cannot denounce it. On the other hand they can request that the registration of their ratification be cancelled. This has already happened in the past. In 1954 and 1966, for instance, the registration of ratifications of the Reduction of Hours of Work (Public Works) Convention, 1936 (No. 51), and the Reduction of Hours Work (Textiles) Convention, 1937 (No. 61), were cancelled at the request of the Government of New Zealand. The Director-General informed the Governing Body of his intention to cancel the registration of these ratifications in view of the long period of time which had elapsed since their ratification by New Zealand (16 and 27 years, respectively) without any other ratification having been registered for the entry into force of the Convention. At the time the Director-General pointed out that, had these Conventions entered into force shortly after their adoption, the Government of New Zealand would have had the possibility of denouncing them ten years later, pursuant to the provisions they contain. See Official Bulletin, 31 Dec. 1954, Vol. XXXVII, No. 7, pp. 376-379, and Official Bulletin, Apr. 1966, Vol. XLIX, No. 2, pp. 209-211. It should be noted that, whereas the ILO has previously used the term "cancellation" of the registration of a ratification, Article 65 of the Convention of Vienna on the Law of Treaties uses the word "withdrawal".
13. At its 184th Session the Governing Body:
- endorsed the general principle that, in any case in which the denunciation of a ratified international labour Convention may be contemplated, it is desirable for the government concerned, before taking a decision on the matter, fully to consult the representative organizations of employers and workers on the problems encountered and the measures to be taken to resolve them;
- requested the Director-General, in any case in which he becomes aware that the denunciation of an international labour Convention is contemplated, to draw the attention of the government concerned to the above-mentioned principle endorsed by the Governing Body;
- requested the Director-General, in any case in which a government communicates to him the denunciation of an international labour Convention without an indication of the reasons which have led to its decision, to request the government concerned to provide such indications, for the information of the Governing Body. (See document GB.184/11/18, Nov. 1971, para. 34. See also document GB.264/LILS/WP/PRS/1, Nov. 1995, para. 57.)
14. The same States as in the case of C.31; see note 1 above.