ILO Convention Practice: Mixed Methods in Norm-Setting for Social Justice

Abstract

On occasion of the centenary of the International Labour Organization this paper looks at the Organization’s technique of international standard-setting by way of adoption of Conventions. The mechanism as envisaged in Article 19 of the ILO Constitution is a bold design, still today. This paper does not enter into the ILO’s famous ‘tripartite structure’, but rather focuses on the underexplored and undertheorised use of mixed ‘methods’ (and, at a more abstract level, mixed ‘paradigms’ – in this case not an overstatement) in ILO Convention practice: the combination of institutional and contractual law-making. ILO treaty-making partly takes place outside the law of treaties framework, within the ILO’s institutional-legal context. The dominant role of that institutional framework after adoption of the treaty text extends the authority of the Organisation through the treatymaking process. Only with the envisaged concluding legal act of ‘ratification’ by individual states, this process moves squarely within the general law of treaties régime, and ‘member States’ turn into ‘treaty parties’. It is an exceptional design, laid out three decades before the Advisory Opinion in the 1949 Reparation case,[1] in which the independence of international organisations came to the fore as a hard fought conceptualization. The ILO is still the only intergovernmental organization with such an arrangement. It shows how at the time the pursuit of social justice in the world of labour could inspire support for a legal arrangement that would have been politically unfeasible in other areas. To distinguish between the institutional and the contractual has practical importance – for one, to clarify stakeholders’ obligations, responsibilities, legal remedies. This is illustrated in the paper by a 2005 case in which the Dutch Seamen’s Welfare Foundation invoked (unratified) ILO Convention 163 before the Dutch Council of State.

Keywords: ILO Conventions, standard-setting, law of treaties, international institutional law, treaty conclusion, member States, Article 18 VCLT

JEL Classification: J8, J80, J89, K4, K31, K33