1 Introduction**
Disasters may have huge impacts on livelihoods, business activities, and workplaces. Institutions may stop functioning, jobs are lost and if there are no rights and social protection, lives are destroyed. When countries are not prepared, recovery is even more difficult, and badly designed responses may not lead to successful recovery. The International Labour Organisation (ILO) is not commonly associated with responding to disasters but rather, with improving conditions of work through the adoption of ‘international labour standards’ (ILS) – that is conventions and recommendations.1 Yet, the ILO has always had a key role to play in the field of disasters.
Consolidating its practice in a legal instrument, the ILO has adopted a recommendation in June 2017 specifically on the topic of disasters: the ‘Employment and Decent Work for Peace and Resilience Recommendation’ (No. 205).2 This Recommendation’s concern is with ‘crisis situations arising from conflict and disasters’. More specifically, it provides guidance to the 187 Member States of the ILO on ‘measures to be taken to generate employment and decent work for the purposes of prevention, recovery, peace and resilience’ with regard to crisis situations.3 It encompasses conflicts – in the broadest sense – but also all disasters arising from all types of hazards. It adds to the body of international law produced by the ILO since 1919. At the same time, it is also a noteworthy addition to international disaster law.
Recommendation No. 205 is particular in international law. It was, as all other international labour standards (ILS), adopted not simply by States, but by a majority of all ILO’s tripartite constituents (governments, employers and workers – representing each member States), having been carefully discussed over two years. Amongst other aspects, it brings the topic of disasters squarely within the ILO’s concerns and, at the same time, grounds the ILO in the framework of disaster management. It also introduces the idea of social justice and decent work into the picture as key elements to take into account to manage, prevent, recover, and prepare for disasters.
This article will be divided into three parts. It will start by giving a backdrop to the connection between the world of work and disasters, analysing how and why the topic of disasters came to be discussed as a standard-setting item within the ILO. Recommendation No. 205 in fact expanded on a previous recommendation (No. 71), which it replaced, by extending its scope from conflicts to disasters. The topic of conflict is quite a natural topic for the ILO – the Organisation was after all set up in 1919 in the Treaty of Versailles putting an end to World War I, on the premise that universal peace can be achieved only if it is based on social justice. The topic of disasters, however, might be a less obvious one, quite far removed from international labour law and the improvement of conditions of work. The article will then unpack the content of Recommendation No. 205. It touches upon many topics related to the world of work (rights at work, labour administration, public services, to name just a few) to more specific ones (migrants and refugees), as well as, in particular, corporate due diligence, those made vulnerable by a crisis, and international cooperation. Four areas where the Recommendation makes contributions will be highlighted: social dialogue; gender; just transitions; and the over- arching nature of this instrument, in the sense that it makes reference to the application of other ILS adopted within the ILO. The article will, in the lastsection, analyse Recommendation No. 205 within broader international law, examining the legal value of recommendations. Both ILO conventions and recommendations are instruments of public international law. Recommendations are not open to ratifications however – so are generally considered ‘soft law’ – but they have nevertheless several legal effects according to, inter alia, the ILO’s Constitution.
Analysing and normatively framing disasters through the lens of the ILO and involving key actors of the world of work – workers’ and employers’ organisations – brings a clear added-value. One of the key ideas behind this recommendation is that decent work is essential to the resilience of societies, it can contribute to reducing the impact of disasters, it can help in the aftermath, and it is crucial to take it into account to ensure a recovery that is not worsening, or deteriorating, international human and labour rights but is improving them.
2 The ILO, Its Mandate, and Disasters
2.1 Preliminary Remarks
Conflicts and disasters are treated together in Recommendation No. 205. The linkages between the two are manifold: for example, disasters (e.g. drought, earthquakes, cyclones) might create conflicts over resources, or might provoke internal displacement that may breed conflicts. But disasters, like conflicts, might as well disrupt societies, create a ‘crisis situation’ involving an increase of inequalities, a breakdown of social justice which might also create conflict, or an unpeaceful situation. It is this ‘unpeaceful’ situation that is of concern for the ILO.
The ILO was established in 1919 by part XIII of the Versailles Treaty that put an end to World War I. It was created in the wake of immense destruction and division and was aimed, among other motives, at avoiding that such events – wars – and the social and economic crisis that flowed from them occurred again. The adoption of ‘international labour standards’ (ILS) to improve working conditions, as well as tripartism between governments, employers’ and workers’ organisations, was perceived to be key factors to ensure this, and to consolidate social justice.
The ILO has therefore been set up – more than a century ago – on the premise that universal peace can be established only if it is based on social justice (Preamble of its Constitution, first paragraph), and on the observation that ‘conditions of labour exist involving such injustice, hardship and privation (…) produce unrest so great that the peace and harmony of the world are imperilled’ (ibid., second paragraph).4 While the notion of ‘social justice’ is not defined by the ILO – and it has evolved over time – it means at its most basic level ‘to improve the human condition’.5 More modern reformulation of the quest for social justice and the improvement of the human condition has been coined in 1999 with the idea of ‘promoting decent work’. Other ingredients are of course necessary to maintain peace – collaboration and cooperation: this is intrinsic to the functioning of an international organisation such as the ILO.
It is generally agreed that the promotion of the application of ILS is a fundamental part of decent work and that it contributes to peace in its widest sense. It was, for example, recalled in a 1974 in-depth review of ILS, that ‘[t]he contribution of international labour standards to universal and lasting peace has been one of the general purposes of ILO standard-setting activities. It must be understood in the wider context of reinforcing democratic institutions, reducing both internal and international tensions, establishing conditions of stability, justice and concord on the national and world levels, developing a sense of international solidarity and setting up ordered structures for bringing about peaceful change’.6
That the ILO would deal specifically with disasters is therefore not surprising as these can undeniably lead to crisis situations that not only may create conditions that may favour conflicts, but that may have a huge impact on societies, disrupt livelihoods, destroy businesses and jobs, increase inequalities and create instability, or an unsmooth path to decent work. Earthquakes, tsunamis, and pandemic all have impacts on economies and societies and consequences for the world of work including on rights at work and on the application of ILS, as has been noted by the ILO supervisory system.7 The fact that disasters have an impact on work and that the governance of the world of work has an impact on the severity of crisis arising from disasters still seemed to have to be explained however, until the COVID-19 pandemic hit. This pandemic with its huge consequences on the world of work is a devastating example of this impact and illustrates why having the ILO involved in disasters is not far-fetched at all. As we know, COVID-19 has not only led to a health crisis, it has also led to job loss and closure of businesses, to worsening working conditions, to increased precarity, inequality, violations in law and in practice of workers’ rights including freedom of association and other basis rights, it has disrupted education and training. The COVID-19 pandemic has had a disproportionate effect on essential workers, health workers but also bus drivers, delivery workers, supermarket workers, who continued to work in often unsafe conditions. Whole sectors have collapsed (tourism, aviation), hundreds of thousands of seafarers have been trapped at sea. COVID-19 has had a devastating impact on the most vulnerable (migrants, low-skilled, domestic workers, informal workers for example), on women, and it has left those with no or insufficient social security without any means to survive.
Social justice and decent work, or a well-functioning society, make the experience of crisis situations stemming from disasters easier to manage or to recover from. The ILO had in fact decades of experience in working directly in crisis situations when the revision of ILS in this field was put on the table. Indeed, Members States had been asking for the support of the ILO’s small unit in charge of crisis, whether they were facing a conflict or a disaster.8 There are many examples of ILO intervention in disaster hit countries. For example, the ILO was involved in responding to earthquakes in El Salvador in 2001,9 in Nepal in 2015 or Ecuador in 2016, to health crisis such as the 2014 Ebola crisis10 or the outbreaks of avian influenza (2007–2010),11 to tsunami or typhoons, such as the ‘Super Typhoon Haiyan’ that hit the Philippines in 2013,12 or the December 2004 Tsunami in the Indian Ocean.13 The ILO’s involvement was requested precisely because ‘[p]ost-conflict, fragile and disaster-affected environments are characterized by instability, insecurity, poverty and inequality. Lack of employment opportunities and livelihoods, (youth) unemployment and underemployment, inequalities and lack of participation are mutually reinforcing and can be catalysts for conflict. Conflict, natural disasters and fragility aggravate poverty, unemployment and informality, creating a vicious circle leading to even greater fragility’.14 This is the reason why it is so important to think beyond immediate humanitarian support and include issues related to work when responding to a disaster to ‘avoid aid dependency’15 and to restore society. It is also crucial to include thinking about work to better prepare and avoid future crisis situations arising from a disaster. Again, the COVID-19 pandemic is a case in point and the ILO has provided guidance from the onset of this crisis, through analysis, policy advice, and projects.16
Last but not least, a significant feature about the ILO’s involvement in disasters that needs to be highlighted is its tripartite nature and its promotion of social dialogue17 which has been presented as a ‘clear comparative advantage’ in the promotion of decent work in crisis situations and as having ‘a crucial role to play in reconstruction and development efforts in post-crisis situations’.18
Tripartism is a unique feature of the ILO. Although challenging at times,19 it clearly provides the ILO with an undisputable edge as an organisation that gives a voice to civil society through social partners (that is workers and employers’ organisations) in all aspect of its functioning. Institutionally, the ILO is made up of three entities, two of which have a tripartite composition: the Governing Body (that, e.g., decides the agenda of the International Labour Conference and the work of the office)20 and the International Labour Conference (ILC)21 – a forum bringing together thousands of constituents every year to discuss matters related to the world of work and which has as main function to adopt ILS.22 In addition, the ILS supervisory system in charge of verifying the application of ILS in law and in practice is in part tripartite. Tripartism is visible beyond this however, and all constituents have a role to play in the application of ILS, individually or though social dialogue for example, and social partners are involved in ILO activities and projects at national levels.
As is stated in the ILO’s Declaration on Social Justice, adopted unanimously by the tripartite constituents of the ILC in 2008, social dialogue and tripartism are the most appropriate methods for, inter alia, ‘translating economic development into social progress, and social progress into economic development; facilitating consensus building on relevant national and international policies that impact on employment and decent work strategies and programmes; and making labour law and institutions effective …’. Social dialogue arguably gives the ILO a different perspective when approaching concrete crisis situations on the ground. Tripartism at the institutional level of the ILO is also fundamental in the elaboration of ILS, as will be examined in the next section.
2.2 From One Recommendation to the Next: the Origins of Recommendation No. R205
Despite the very clear linkages between disasters and the ILO, both in terms of mandate and practice, it took some time for the notion of crisis situations stemming from ‘all disasters’ (i.e. combining all possible hazards) to find its way explicitly in an ILS, therefore consolidating this de facto link in a legal instrument. This consolidation materialised with the opportunity to replace a recommendation.
Recommendation No. 205 was adopted within the ILO in order to replace Recommendation No. 71 that was adopted towards the end of the Second World War.23 Recommendation No. 71 had a specific aim, established in its preamble: the ‘organisation of employment in the transition from war to peace’. It was very focussed, both in terms of context (post World War II) and in terms of solutions (employment services and skills, mostly geared at the needs of the demobilised armed forces). When it was decided to revise Recommendation No. 71, the context had changed, conflicts had changed, and the approach necessarily had to be broader. Interestingly for us: disasters had to be taken into account.
It took however more than 40 years from the time it was noted that Recommendation No. 71 was not anymore current, to the time it was actually revised. The need to revise Recommendation No. 71 came on the table as early as 1974,24 when the Office noted that this instrument ‘may be considered to be no longer of current interest’.25 Because there is no simple ‘amendment’ procedure in the ILO, and decisions around standard-setting can be quite a complicated process,26 the decision to go ahead with the revision of Recommendation No. 71 was taken only in 2014 when the topic was placed on the agenda of the 2016–2017 International Labour Conference.27
It is interesting to note that when the topic of revising Recommendation No. 71 was brought before the Governing Body in November 2002, this revision was just concerning ‘conflicts’, as was the case in 2012. It was already clear however that the effects of conflicts were similar to those of disasters: these were ‘massive unemployment, underemployment and poverty’, ‘young persons entering the labour force find that there are no jobs available’ which ‘can lead to further violence, conflict and social instability’, ‘destruction of economic and social infrastructure’, ‘deterioration in the law and order’ and ‘threats to democracy, to the rights of trade unions and employers’ organizations and to the observance of human rights and labour standards’.28 The solutions overlapped as well: ILS provide a framework for ‘reconstruction and a return to development’ and the tripartite structure of the ILO facilitates contact with actors on the ground ‘to obtain up-to date information’.29 The need to pursue decent work in conflict and unstable situations was underlined.30 However, it is only in 2013 that disasters were mentioned as included in the revision of Recommendation No. 71, but only insofar as they overlapped with conflict situations.31
Finally, in 2014, the Office suggested to the Governing Body a revision that encompassed disasters fully in its scope: the Office simply argued that (1) the ‘contexts and approaches to post-conflict recovery have evolved significantly in recent decades’ and (2) ‘natural disasters including in relation to climate change are occurring more frequently and playing a destabilizing role in communities, and further exacerbating patterns of poverty and inequality’ and (3) ‘[s]ignificant experience has been gained by the international community in addressing a variety of crisis situations including through employment-centred recovery from natural disasters’.32 The focus was only on ‘natural’ disasters however. The so-called ‘white report’ (the first report of the Office presenting the topic for the discussion at the ILC), suggested to define disasters in a more all-encompassing way, as induced from either natural hazards or human processes33 – without acknowledging, however, that the origin of disasters may be a combination of both. The current thinking around the notion of crisis situations arising from disasters in their broadest sense took some time to be reached. This is not because the ILO and crisis situations are foreigners; it is more because it is not usual for ILS to approach a single context within which they apply. Recommendation No. 71 was exceptional, to respond to an exceptional event. ILS are rather concerned with fundamental rights (freedom of association, forced labour, child labour, discrimination), governance issues (employment policy, labour inspection, tripartism), sectors of the economy (e.g. agriculture), certain workers (e.g. domestic workers, part-time workers; seafarers) and conditions of work more generally (e.g. social security, working time, wages, occupational health and safety).
The scene was set, in very concrete terms, on what was the relevance of the ILO in the field of disasters at the onset of the discussions in 2016. Taking the floor, the Government member of Japan described his country’s experience with disasters. He insisted in particular on the importance of ‘information sharing; implementing employment and labour policies from the outset; addressing occupational safety and health in reconstruction and restoration; and ensuring that specific measures were put in place for the resettlement of affected persons according to the nature of the disaster’. He also stressed that ‘swift implementation of employment and labour policies was often underestimated, those policies being essential to limiting damage and achieving a rapid recovery’.34
3 Recommendation No. 205 and Its Added Value to Approaching Disasters
The preamble of Recommendation No. 205 highlights the ‘need to revise the Employment (Transition from War to Peace) Recommendation, 1944 (No. 71), with a view to broadening its scope and providing up-to-date guidance on the role of employment and decent work in prevention, recovery, peace and resilience with respect to crisis situations arising from conflicts and disasters’. In fact, not much remains of Recommendation No. 71. As mentioned earlier, Recommendation No. 205 expanded Recommendation No. 71 in all aspects touching on its scope, its subject matter, its objective, its purpose, the legal environment in which it is placed and which it refers to (many ILS have been adopted since 1944, not to mention other developments in international law). It deals with reconstruction but also with prevention, preparedness, resilience, anticipation, mitigation, cooperation and includes every aspect of decent work. ‘Decent work’ is a concept developed in 1999 and institutionalised in the ILO 2008 Declaration on Social Justice for a Fair Globalization – all Members of the Organization must pursue policies based on four strategic objectives: employment, social protection, social dialogue, and rights at work (this is the ‘decent work agenda’).35
3.1 Main Content of Recommendation No. 205
Recommendation No. 205 is quite a lengthy text, with 48 paragraphs (some with as many as 12 or 14 sub-paragraphs) spread across 13 sections..36 It approaches conflicts and disasters together, as it is concerned with the crisis situation ‘arising from’ conflicts and disasters (paragraph 1) which, as we have seen, confronts us with the same underlying issues when it comes to generate employment and decent work.
The first section sets out the objectives and scope of the instrument, including who it applies to,37 and provides definitions of disasters38 and resilience,39 ‘based on internationally agreed terminology’ (chapeau of paragraph 2).40 The definition of disasters is in line with the Sendai Framework for Disaster Risk Reduction 2015–2030. This definition is broad enough to cover all situations and it does encompass the crisis situation that has resulted from COVID-19, as has been noted by the ILO41 and some observers.42
The next two sections of Recommendation No. 205 set out the ‘guiding principles’ and ‘strategies’ that should inspire ILO Members States in responding to crisis situations as well as in preventing them. No less than fourteen guiding principles are listed, amongst them ‘the promotion of full, productive, freely chosen employment and decent work’, ‘the need for a just transition towards an environmentally sustainable economy as a means for sustainable economic growth and social progress’, ‘the need to pay special attention to population groups and individuals who have been made particularly vulnerable by the crisis’, the ‘importance of social dialogue’, ‘the need for international solidarity, burden sharing and cooperation, in accordance with international law’ and ‘the need for close coordination and synergies between humanitarian and development assistance … avoiding duplication of mandates’.43
Recommendation No. 205 then suggests twelve distinct strategic approaches for ‘promoting peace, preventing crisis, enabling recovery, and building resilience’. These include ‘immediate social protection and employment measures’, the promotion of ‘local economic recovery for employment and decent work opportunities and socio-economic reintegration’, ‘ensuring consultations and encouraging active participation of employers and workers’ organisations in planning, implementing and monitoring measures for recovery and resilience’; ‘providing support to employers with regards to due diligence’; ‘creating economic, social and legal frameworks at the national level to encourage lasting and sustainable peace and development, while respecting rights at work’; ‘developing the capacity of governments … and of workers and employers’ organisations’.44
It also suggests (para. 9) measures for crisis response in the immediate aftermath of a conflict or disaster (these include inter alia an urgent response to satisfy basic needs, safe and decent working conditions for all workers, and the re-establishment, if necessary, of government institutions and of employers and workers’ organisations).
Recommendation No. 205 then has six sections fleshing out various aspects of the world of work and their relevance in the design and implementation of crisis prevention and response measures (paras. 10–40). These sections concern the four pillars of decent work (employment, social protection, rights, and social dialogue) as well as education, vocational training, and guidance. On this last point, the recommendation interestingly mentions education on ‘disaster risk education, reduction, awareness and management’ to prevent and respond to crisis situations (para. 19b(ii)). Two further sections concern migrants affected by crises, and refugees and returnees. Final sections offer guidance on (1) prevention, mitigation, and preparedness for crises (including identification of risks and evaluation of threats, risk management, and preventing and mitigating adverse effects) (para. 41); and (2) the need for strengthened international cooperation (paras. 42–48) – cooperation in accordance with international law is present throughout the text. Importantly, Recommendation No. 205 seeks to cement the ILO’s role in this area and states that ‘the ILO should play a leading role in assisting Members to provide crisis responses based on employment and decent work … in close cooperation with regional and international institutions’ (para. 46).
3.2 Key Contributions to Approaching Disasters
It is worth drawing attention to some of the highlights of Recommendation No.205 – as there are many, we will limit ourselves to examining four of these.
First, Recommendation No. 205 is significant in that it not only deals directly with crisis situations resulting from disasters that can be caused by climate change, but it advocates for response and recovery measures that, importantly, take into account the ‘need for a just transition towards an environmentally sustainable economy’, including in its guiding principles. The ILO and its ILS have been dealing with the environment for quite some time (for example, ILS on occupational health and safety tackle, e.g., the disposal of chemicals ‘in a manner which eliminates or minimises the risk to safety and health and to the environment’45).46 However, Recommendation No. 205 is the first ILS to mention the concept of just transition,47 referred to in many international settings and detailed in Guidelines for Just Transitions adopted by the ILO in 2015.48 This is noteworthy, as sufficient support has not yet been found in the Governing Body to support the possible adoption of an ILS on just transitions and because clear linkages between work and climate change, through the concept of just transition, is essential.49
Second, this Recommendation insists specifically on the importance of social dialogue and the full involvement of social partners in the development and promotion of the measures included in the text (Section IX). Social dialogue ensures that the possibly conflictual positions in matters concerning work are taken into account and compromises are made. This ensures smooth proceedings, shared knowledge, less frictions and tensions, more predictability, and ownership. It ensures that businesses can continue to operate while rights are upheld. Yet, social dialogue is not always fully developed for tackling crisis situations and actions are sometimes taken both spontaneously and separately by governments and social partners.50 At the same time, it can be argued that engaging in social dialogue on matters related to disasters may be less confrontational than engaging in social dialogue on an issue such as wages (or even conflicts, since the social partners may not be neutral). There is indeed a more perceivable common interest when confronted with a crisis situation as there may be a stronger interest on the side of employers to maintain their business and on the side of workers to maintain their jobs. In all cases, social dialogue needs at a minimum an enabling environment respecting freedom of association51 fully in line with Convention No. 87 on Freedom of Association and Convention No. 98 on Collective Bargaining.52
Third, it has quite a strong gender component. From its preamble, it is recognised that ‘crises affect women and men differently’ and that ‘gender equality and the empowerment of women and girls in promoting peace, preventing crises, enabling recovery and building resilience’ are of the critical importance. Applying a gender perspective ‘in all crisis prevention and response design, implementation, monitoring and evaluation activities’ is listed among the strategic objectives of the Recommendation. Prevent and punishing ‘all forms of gender-based violence, including rape, sexual exploitation and harassment, and protect and support victims’ is highlighted as is the need for ‘gender-inclusive social dialogue’, which is often lacking. The specific attention given to women and gender perspective of disasters fits with, and reinforces, other initiatives in international law.53
Finally, Recommendation No. 205 is very-much an over-arching instrument. Indeed, it makes reference to the application of key ILS – whether conventions or recommendations – related to the topics it tackles (i.e. ILS on employment policy, child labour, forced labour, discrimination, freedom of association and collective bargaining, social protection, labour inspection, private employment agencies).54 These ILS and their subject matter need to be taken into account in order to prevent crisis, enable recovery, and build resilience. Importantly, it also recalls the need to respect all human rights and ILS in times of crisis (preamble), and that crisis responses should ‘be consistent with applicable [ILS]’ (para. 43). With regard to the former, ILS apply in times of crisis as they do in times of peace: there is no general indication (in the ILO Constitution or elsewhere) as to the possibility to suspend or limit ILS in times of emergency/crisis.55 With regard to the latter, in some cases, national labour law is unnecessarily suspended or modified – as has been noted following the COVID-19 pandemic.56
4 The Form of Recommendation No. 205 and Its Influence on Its Potential Impact
As there are not many international law instruments dealing “directly” with disasters, and as the draft articles of the International Law Commissions on the ‘Protection of persons in the event of disasters’ remain draft articles,57 analysing the legal implications weight of Recommendation No. 205 is particularly important in order to make full use of it.
The ILO is a standard-setting agency. It is generally described as the most prolific organisation in terms of producing international law. Indeed, since its establishment in 1919, 190 conventions, 206 recommendations and 6 protocols have been adopted within the ILO.58 Their aim is to further the objectives set in the Organisation’s Constitution: improve conditions of work in the broadest sense. ILS keep on being adopted, and conventions keep on being ratified, testifying to the ILO’s continued relevance, as well as that of its mandate, in today’s world.59
While conventions and protocols are treaties that are open to ratification, recommendations are generally described as providing guidelines and are not open to ratification. Recommendations are resorted to in various circumstances: they are either independent, because the topic does not lend itself well to a more binding instrument or because a topic was not ripe enough for a convention, or they are used to supplement a convention – the convention providing general matters and the recommendation providing details on its implementation.60
As has been noted more generally about non-binding instrument, their impact varies from one type to the next, being influenced not only by the institutional setting within which they are adopted but also the setting within which they are applied, as well as by their wording and their content.61 ILO recommendations are a special specimen in international labour law in this regard and should not be dismissed as “just soft law” or “just non-binding” – they are a special type of soft law. There are several reasons for this: (1) recommendations – as conventions – are part of international law; (2) they are elaborated and adopted in the same manner as conventions – following the same procedure that involves the ILO’s tripartite constituents; and (3) both conventions and recommendations are the object of a follow-up provided for in the ILO constitution.
First and foremost, an ILO recommendation is part of public international law. As the Legal Adviser of the ILO clearly recalled during the 2017 discussions on Recommendation No. 205 (to answer doubts expressed by some in the room), what was being negotiated ‘was a formal instrument which, if adopted by the Conference, would become part of what was known as international labour law, a distinct branch of international law that addressed standards of conduct of sovereign States and other entities enjoying international legal personality in matters of labour and social policy and that comprised both conventions which produced binding legal effect upon ratification and recommendations which offered non-binding policy guidance’. According to the Legal Adviser ‘international labour standards, whether legally binding or not, formed part of international law’.62 This assessment is based on the fact that, contrary to resolutions, conclusions, or guiding principles adopted within the ILO, recommendations have a constitutional origin and constitutional obligations attached to them63 that we will examine below. As such, recommendations have a specific legal value, or legal influence.
A second aspect that places ILO recommendations apart is the fact that not only is the procedure followed for their adoption the same as for the adoption of conventions, but this procedure is tripartite. Taken together, this arguably gives ILO recommendations additional legitimacy. Indeed, the elaboration and adoption of both conventions and recommendations involve the same long consultations, preparations, and discussions, defined in the Constitution’s ‘Standing Orders of the International Labour Conference’. Each of these steps involves the three constituents of the ILO. More specifically, after a topic for standard setting is suggested to the tripartite Governing body,64 it is discussed – often over several years – and a decision is taken, through agreement or by vote, whether to place it on the agenda of the ILC (i.e. the International Labour Conference).65 A discussion then takes place at the ILC, within a tripartite committee, over two year.66 All constituents are consulted several times through questionnaires, and their replies are used by the Office to draft the instrument that is presented for each discussion at the ILC. The final draft of a text is put to a vote for its adoption, in the plenary of the ILC. A draft needs two-thirds of the votes cast by the delegates present at the ILC to be adopted and a quorum needs to be reached.67 Generally, it is quite unusual for a draft not to be adopted considering that ILS reflect extended discussions, concessions, and compromises made by the three groups. Recommendation No. 205 was adopted with an overwhelming majority of 378 votes, with only 5 votes against its adoption and 8 abstentions.68 This is an additional argument to request and expect implementation of its content.69
The tripartite elaboration and adoption of ILS has significant effects on the application of international treaty law.70 Although States remain responsible for ratification,71 they may not make reservations upon ratification, for example, as conventions are adopted by the tripartite ILC and not by individual States.72 In addition, Article 5(c) of Convention No. 144 on Tripartite Consultations states that consultations shall take place on ‘the re-examination at appropriate intervals of unratified Conventions and of Recommendations to which effect has not yet been given, to consider what measures might be taken to promote their implementation and ratification as appropriate’. This Convention has been ratified by 156 States. Furthermore, while States are responsible for the enforcement of conventions and the application of recommendations (respectively paragraph (5)(d) and (6)(d) of Article 19 of the Constitution), the enforcement of many ILS relies also explicitly on the participation of Employers and Workers’ Organisations – Recommendation No. 205 is a perfect example of this, as we have seen. Recommendations may also have a broader influence because they ‘belong’ also to employers and workers’ organisations.73 These have additional arguments to request their implementation, or their involvement in decision making with regards to disasters and the world of work.
The third element that sets ILO recommendations apart is the fact that their application is the object of follow-up. The ILO supervisory mechanism is quite developed,74 and for the purpose of this article, mention will only be made of what is relevant for recommendations. The supervisory system is both report based, and complaint based, and recommendations are only the object of the former. The examination of reports on ILS is done by the Committee of Experts on the Application of Conventions and Recommendations (CEACR), which exists since 1926 and is composed of independent legal experts. It is in charge of examining the application in law and in practice of ILS. Every year, it examines reports on ratified conventions but it also drafts a General Survey, on a topic decided by the Governing Body, which concerns the application of certain instruments (conventions and recommendations) in all the ILO’s member states.75 The obligation to report on application of a recommendation is contained in the ILO constitution.76 Furthermore, Employers and Workers’ organisations can also submit comments on the application of ILS.77 The General Survey produced each year is then discussed at the ILC, within the Committee on the Application of Standards (CAS) that was established at the same time at the CEACR. While the latter is an experts committee, the former is a tripartite political committee. Of course, no one knows when Recommendation No. 205 will be the object of a General Survey, but Recommendation No. 204 on the transition from the informal to the formal economy which was adopted in 2015, was examined in a General Survey in 2020.78 The obligation to report on the application of recommendations, and the supervision that follows, arguably gives ILO recommendations additional strength. Not only it is a reminder of their existence, but it allows the supervisory bodies to apply them in different contextual settings, therefore giving practical meaning to their content.
Flowing from the three points elaborated above, there is an added expectation that recommendations will be implemented. More generally, common to all forms of law, ratified or non-ratified conventions and recommendations may influence international law adopted outside the ILO and be “embedded” within it.79 One example concerning Recommendation No. 205 is its mention in the United Nations Global Compact on Refugees.80 Another aspect that influences the legal weight of soft law is its content – the words and expression used, and the references to hard law. Here, the impact of Recommendation No. 205 is more nuanced. On the one hand, it has at times weak language (‘as applicable’, ‘according to national circumstances’ are expressions that have been added during the discussions in 2016 and 2017).81 On the other hand, it refers throughout its text to the “hard obligations” contained in ILO conventions.
5 Conclusion
Recommendation No. 205 offers a vast array of guidance and tools to governments and social partners to face the eventuality or the occurrence of crisis situations resulting from disasters using the ILO framework of decent work, including its ILS. It was adopted in specific circumstances – to revise a recommendation aimed at the special context of the aftermath of the second world war. In doing so, the constituents of the ILO both expanded and fine-tuned the ILO’s influence through an international legal instrument.
Recommendation No. 205 would have certainly benefited from being more streamlined and to the point.82 For several reasons – some practical and others political (but without any links to the topic at hand), Recommendation No. 205 is not as concise as it could have been. In addition, because of the ‘cafeteria approach’83 that prevails in the ILO which means that not all ILS are ratified in a coherent manner, there is often a perceived need to repeat what has already been established in previously adopted ILS. Another inconvenience of this recommendation is that it contains quite a lot of flexibility within its text. Flexibility is often resorted to in ILO Conventions, as they are not open to reservations. However, recommendations cannot be ratified, and are therefore “soft law” instruments. Despite the fact that Recommendation No. 205 has many examples of “soft content”84 (i.e. weak language), it does refer considerably to conventions (“hard law”). In any case, it would be misleading to conclude that Recommendation No. 205 does not have any effect, as we have analysed in the last part of this article.
Recommendation No. 205 did take into account developments outside the ILO and involved other agencies in the discussions. It is however unfortunate that Recommendation No. 205 did not engage more fully with any of the “legal developments” outside the ILO, in particular, that of the International Law Commission which was mentioned only briefly in the preparations to the recommendation with regard to the definition of disaster (and not used as an authoritative source).85 Apart from the continuing fragmentation of international law, this could be explained by the fact that the work on this recommendation was led by a unit that is very much oriented to projects and technical assistance to countries rather than by lawyers within the Office. Recommendation No. 205 does not contradict the work of the International Law Commission, however. It has a much more focused scope that it examines in much more details.
The increased prevalence of conflicts and disasters together with the prevalent fragility of the world of work made it necessary for the ILO to adopt Recommendation No. 205. This Recommendation has the benefit to attract attention to the linkages between crisis situation and work-related issues. As the worker’s vice chairperson stated during the 2016 discussions, ‘[m]ost crisis situations constituted both the underlying causes and the consequences of inequality and human rights deficits.’86 It also brings the attention of social partners to this, and it gives them a tool to request being part of the solutions through social dialogue. There are sufficient elements in Recommendation No. 205 to provide a menu of actions to governments and social partners. It is clear that all ILS are applicable in times of peace as in times of crisis – however, this recommendation is very much about the articulation of all measures provided for in ILS and promoted by the ILO. It will guide governments and social partners, it gives visibility to social partners, it will also support the ILO in having a clear place in a very crowded field, bringing a very different and crucial perspective.
Senior specialist in International Labour Standards and Legal Issues, ACTRAV, ILO, Geneva.
The views expressed herein are my own and do not necessarily reflect those of the International Labour Organization.
ILS encompass only conventions – that is treaties – (and protocols that complement them), and recommendations. Other ILO legal instruments – the Constitution, declarations, resolutions are not part of ILS.
Employment and Decent Work for Peace and Resilience Recommendation, 2017 (No. 205) <
Article 1.
The third premise is that ‘the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations which desire to improve the conditions in their own countries’ (international labour legislation was considered to be a conditio sine qua non for the existence of national labour legislation since it was understood that international competition would otherwise make it impossible to protect workers nationally. Labour law would be international or would not be, as Valticos stated (‘La législation du travail serait internationale ou ne serait pas’ (Nicolas Valticos, Droit international du travail (Dalloz 19832) 3). The war and the crisis situation that followed (strikes all over Europe and the resilience of the Bolshevik revolution) crystallised these 3 premises and gave rise to the ILO (see Daniel Maul, Human Rights, Development and Decolonization: The International Labour Organization, 1940–70 (Palgrave/ILO 2012) 2. See also Bruno Cabanes, The Great War and the Origins of Humanitarianism 1918–1924 (CUP 2014) 79; and Robert W. Cox, ‘ILO: A Limited Monarchy’ in Robert W. Cox and Harold K. Jacobson (eds), Anatomy of Influence: Decision Making in International Organization (Yale University Press 1973) 102).
See Valticos (n 4) 112. For a more recent analysis, see Daniel Maul, The International Labour Organization: 100 years of global social policy (De Gruyter Oldenbourg/ILO 2019) 7.
ILO, In-Depth Review of International Labour, GB.194/PFA/12/5, 194th session (1974) para. 7.
The supervisory bodies of the ILO pointed to, for example, allegations of violations of collective bargaining in Haiti after the 2010 earthquake (see e.g. Observation (CEACR) – adopted 2011, published 101st ILC session (2012), Right to Organise and Collective Bargaining Convention, 1949 (No. 98) – <
The first such unit, the ‘In Focus Programme on Crisis and Reconstruction’, was created in 1999 and did not build on any previously existing unit. It had 7 professional staff. It was meant to strengthen the ILO’s capacity to deliver its mandate in the form of ‘more rapid, coherent, continued and reliable responses to crises’ (Independent evaluation of the InFocus Programme on Crisis Response and Reconstruction October (2003) on file with the author). Four types of crises were included: conflicts, natural disasters, financial and economic downturns, and turmoil. One of the first intervention of this unit regarded Venezuela in the context of the 1999 landslide described as the worst disaster in 50 years.
ILO’s intervention included measuring the impact on employment and elaborating a strategy for recovery with the Minister of Labour.
See key resources listed on the ILO website: ‘ILO’s role and response to the 2014 Ebola outbreak’, (<
ILO, ‘Project on avian flu and the workplace’ Governing Body GB.300/STM/6/2, 300th Session 2007. See, also ILO, Avian Flu and the Workplace Project, Briefing Note No. 15: ILO-IUF Partnership for Avian Influenza Prevention and Preparedness (2008). This project aimed ‘to promote best workplace practices in poultry production to limit the effects of avian flu; and to encourage behaviour change through awareness raising, capacity building and training activities on preventive and protective measures in the workplace’ (GB.300/STM/6/2, para. 3).
See ‘ILO Response to Disasters’ (<
ILO, World of Work Magazine No. 53, April 2005 – special issue on the Tsunami and the ILO response.
ITC-ILO, Towards a Framework of Action for ILO Engagement in Fragile States: 7– 9 September 2015, Turin Workshop report (2015) 5.
ILO, Report V(1), Employment and decent work for peace and resilience: Revision of the Employment (Transition from War to Peace) Recommendation, 1944 (No. 71), ILC, 105th Session (2016) para. 12.
See information on COVID-19 on the ILO website: Thematic analysis and practical advice (<
‘Social dialogue’ encompasses negotiation, consultation, and information exchange between and among governments, employers’ and workers’ organisations (see ILO website <
ILO, Agenda of the International Labour Conference – Proposals for the agenda of the 103rd Session (2014) and beyond of the Conference, GB.317/INS/2(Rev.) (2013) para. 35.
See Claire La Hovary, ‘A Challenging ménage à Trois? Tripartism in the International Labour Organization’ (2015) 12/1 International Organizations Law Review, 204–236.
The Governing Body is composed of 28 government members, 14 employer members, and 14 worker members (Article 7, Constitution).
The ILC brings together delegations from each member state of the ILO consisting of two government delegates, one Employer delegate and one worker delegate (Article 3(1), Constitution).
The third entity, the International Labour Office (‘Office’), is a secretariat of civil servants.
Employment (Transition from War to Peace) Recommendation, 1944 (No. 71).
ILO, In-Depth Review of International Labour Standards, GB.194/PFA/l2/5, 194th Session (November 1974). R71 was classified in the category of ‘other instruments’ by the Ventejol Working Parties of 1979 and 1987 (this working party was in charge of studying the relevance of existing ILS at the time).
This was mainly because more up-to-date ILS on the issue of employment had been adopted (i.e. Convention No. 122 and Recommendation No. 122 on employment policy, adopted in 1964 – GB.194/PFA/l2/5 (1974) 57).
Replacing a convention or a recommendation requires the adoption of a completely new convention or recommendation, through a standard (2 year) procedure. There are therefore competing topics that are put forward for possible standard-setting at the Governing Body every year, which complicates matters, and there needs to be consensus amongst the tripartite constituents in the governing body, which can be difficult to find. Revision of Recommendation No. 71 was thereafter discussed in the Governing Body in 1998, it was considered by a working party in charge of the revision of standards, it was examined again by the Governing Body in 2002, 2012 and 2013.
ILO, Agenda of the International Labour Conference, GB.320/INS/2, appendix 1 (March 2014) para. 1.
ILO, Proposals for the agenda of the 93rd Session (2005) of the International Labour Conference, GB. 285/2 (November 2002) para. 72–73.
Ibid., para. 73.
Ibid.
ILO, Agenda of the International Labour Conference GB.317/INS/2(Rev.) (March 2013) para. 33.
ILO, Agenda of the International Labour Conference GB.320/INS/2, Appendix 1 (March 2014) paras. 2 and 3.
ILO, Report V(1), Employment and decent work for peace and resilience: Revision of the Employment (Transition from War to Peace) Recommendation, 1944 (No. 71), ILC, 105th Session (2016) 8.
ILO, Provisional Record 2016, 15–2(Rev.)/7 (2016) para. 33.
The concept of decent work has had considerable influence since it was launched. It is not defined further as it is a moving objective to strive for (similar to social justice) rather than an achievable floor – it is grounded in ILS however.
A fourteenth section contains a single paragraph stating that Recommendation No. 205 supersedes Recommendation No. 71.
All workers, jobseekers, employers in all sectors of the economy; it also applies to volunteers participating in the response. In 2018, the ILO held a tripartite meeting of experts that adopted Guidelines on decent work in public emergency services, complementing Recommendation No. 205 (<
Paragraph 2 (a) defines disaster as ‘a serious disruption of the functioning of a community or a society at any scale due to hazardous events interacting with conditions of exposure, vulnerability and capacity, leading to one or more of the following: human, material, economic and environmental losses and impacts.’
Paragraph 2 (b) defines resilience as ‘the ability of a system, community or society exposed to hazards to resist, absorb, accommodate, adapt to, transform and recover from the effects of a hazard in a timely and efficient manner, including through the preservation and restoration of its essential basic structures and functions through risk management’.
The first definition suggested by the Office in 2016 was not agreed to; the Office suggested a new definition before the 2017 discussions, based on the agreement within the OEIWG (Open-Ended Intergovernmental Expert Working Group on indicators and terminology relating to disaster risk reduction) which is ‘compatible with the definition used by the International Law Commission as well as the UNISDR Terminology 2009’ (ILO, Report V(2A) Employment and decent work for peace and resilience: Revision of the Employment (Transition from War to Peace) Recommendation, 1944 (No. 71), ILC, 106th Session (2017) 15.
ILO, ILO Standards and COVID-19 (coronavirus) – Version 3.0, April 2021, Geneva (<
Selberg rightly noted ‘While citizens of the world note with concern how major institutions of international co-operation – UN, EU and EMU, WHO, IMF, NATO etc. – seem to lose some of their relevance at a time when they are needed the most, we should not forget that the ILO already has a standard on the books for crisis prevention and building resilience in relation to crisis’ (Niklas Selberg, ‘The ILO Response to Covid-19: ILO and International Labour Standards in Times of a Pandemic’ (2020) 1/13 Italian Labour Law e-Journal, 162).
See paragraph 7 (a), (j), (h), (k), (m), (n).
See paragraph 8 (a), (b), (d), (f), (h), (k).
See Article 14 of the ILO Chemicals Convention, 1990 (No. 170).
For a more thorough investigation on how ILS are relevant to climate change, see ILO, World Employment and Social Outlook 2018: Greening with Jobs (2018) 71–81.
‘Just transitions’ is understood as an all-encompassing framework that addresses the need for action on climate change with the need for decent work for all, social inclusion, and eradication of poverty.
ILO, Guidelines for a just transition towards environmentally sustainable economies and societies for all (2015). These were adopted by a Tripartite Meeting of Experts that met from 5–9 October 2015 and were later endorsed by the Governing Body (<
For more on this link, see ILO, The role of the ILO in addressing climate change and a just transition for all, Governing Body 338th session, March 2020, GB.338/POL/1.
ILO, Managing Conflicts and Disasters: Exploring Collaboration between Employers’ and Workers’ Organizations (2020).
Respect for this fundamental right is lacking (for a review of freedom of association in the world, see ITUC, Global Rights Index, 2020 (<
The word ‘fully’ is used here, as freedom of association must include the right to strike which introduces balance in the respective power of the partners in social dialogue. Without such a right (which is associated specifically with collective bargaining), broader social dialogue may become a meaningless process (N.B. the existence of a right to strike is contested by employers in the ILO).
In this regard, see in particular the UN Committee on the Elimination of Discrimination against Women, ‘General Recommendation No. 37 (2018) on the Gender-related Dimensions of Disaster Risk Reduction in the Context of Climate Change’ (13 March 2018) CEDAW/C/GC/37). See also Monika Mayrhofer, ‘Gender (In)equality, Disaster and Human Rights – the CEDAW Committee and General Recommendation No. 37’ (2019) 1 YIDL 233–257.
An annex containing a full list of relevant ILS and other international instruments was drafted during the 2016 discussion but finally left out during the 2017 discussions for, inter alia, practical reasons.
The CEACR has clearly stated this in the context of COVID-19: ‘The crisis does not suspend obligations under ratified international labour standards; any derogations should be exercised within clearly defined limits of legality, necessity, and proportionality and non-discrimination. Similarly, the obligation to report on measures taken to give effect to ratified and non-ratified standards under articles 19, 22 and 35 of the ILO Constitution is not suspended’ (see ILO, Report III/Addendum (Part A), 2021 Report on the application of international labour standards, Addendum to the 2020 Report of the Committee of Experts on the Application of Conventions and Recommendations (CEACR) General Report (2021) para. 49).
The CEACR noted this in its General Report of 2021.
International Law Commission, ‘Report of the International Law Commission – Sixty- eighth session’ (2 May–10 June and 4 July–12 August 2016) UN Doc A/71/10, paras. 13 and 48.
Not all of these are up-to-date – Recommendation No 205 replaced Recommendation No 71 for example.
18 treaties (conventions and protocols) were ratified in March 2021 alone (see <
ILO GB.194/PFA/12/5 (1974) para. 10. See generally on this, and on other points developed in this part: Anne Trebilcock, ‘Alternative means of giving effect to ILO standards – embedding, practical application and feedback functions’ (2020) 3 Soziales Recht, 96–104. See also references, and analysis, in Claire La Hovary, ‘The ILO’s supervisory bodies’ ‘soft law jurisprudence”, in Adelle Blackett and Anne Trebilcock (eds), Research Handbook on Transnational Labour Law (Edward Elgar 2015) 316–328.
Abi-Saab mentioned the topic, the number of parties involved, the wording, implementation procedures, reservations, votes for adoption and results. As he observes, ‘[l]e degré d’obligatoriété ne dépend pas tant de l’instrument que de son contenu et du cadre institutionnel qui entoure son application’ (Georges Abi-Saab, Introduction, in ‘Les résolutions dans la formation du droit international du développement’ 9 (1971). He distinguishes between two types of soft law: ‘soft law du negotium’ (soft law of the content – this can be the content of a binding treaty or a non-binding instrument) and ‘soft law de l’instrumentum’ – the non-binding nature of the instrument itself (resolutions, recommendations, etc). See also Georges Abi-Saab, ‘Eloge du ‘droit assourdi’ – Quelques réflexions sur le rôle de la soft law en droit international contemporain’, in Nouveaux itinéraires en droit, Hommages à François Rigaux (Bruylant 1993) 62–3.
ILO, prov – rec 13–2, ILC 106th Session (2017) para. 238.
See Georges Politakis and Kroum Markov, ‘Les recommandations internationales du travail: instruments mal exploités ou maillon faible du système normatif’, in Jean-Claude Javillier et Bernard Gernigon (eds), Les normes internationales du travail: un patrimoine pour l’avenir Mélanges en l’honneur de Nicolas Valticos (2004) 498 ( n 3).
Article 14(1), Constitution, states that the agenda of the Conference is ‘settled by the Governing Body, which shall consider any suggestion as to the agenda that may be made by the government of any of the Members or by any representative [employers’ or workers’] organization … or by any public international organization’.
See Articles 34 and 35, Standing Orders of the Conference, for complete details.
A single-discussion procedure is also possible – Art. 38, Standing Orders of the Conference; see also ILO, Handbook of procedures relating to international labour Conventions and Recommendations (2019) para. 4.
Article 19(2) and 17(3) of the Constitution, respectively.
ILO, Final record vote on the adoption of the Employment and Decent Work for Peace and Resilience Recommendation, ILC, 106th session (2017).
Not all ILS have received such support.
For example, Wilfred C. Jenks, ‘The Significance for International Law of the Tripartite Character of the International Labour Organisation’ 22 Transactions of the Grotius Society (1936) 45–81.
Although Article 5 of Convention No. 144 on Tripartite Consultations requires consultations with employers and workers organisations at appropriate intervals in this regard.
Jenks (n 70) 58–61. This was established and communicated to member States in 1920. See also E. Osieke, Constitutional law and practice in the International Labour Organisation (Martinus Nijhoff 1985) 154–56; and Guido Raimondi, ‘Réserves et conventions internationales du travail’ in Javillier, Gernigon and Politakis (eds), Les normes internationales du travail: un patrimoine pour l’avenir – Mélanges en l’honneur de Nicolas Valticos (ILO 2004) 531–33. Of course, ILS have adapted as a result and most allow for flexibility (ibid., 535–37).
See Politakis and Markov (n 63) 520.
ILO, Rules of the Game: An introduction to the standards-related work of the International Labour Organization (Centenary edition 2019).
See <
See art 19 (6) d) – ‘Apart from bringing the Recommendation before the said competent authority or authorities, no further obligation shall rest upon the Members, except that they shall report to the Director-General of the International Labour Office, at appropriate intervals as requested by the Governing Body, the position of the law and practice in their country in regard to the matters dealt with in the Recommendation, showing the extent to which effect has been given, or is proposed to be given, to the provisions of the Recommendation and such modifications of these provisions as it has been found or may be found necessary to make in adopting or applying them’ (italics added).
On the basis of Article 23 of the ILO Constitution.
ILO, CEACR, Report III(B) Promoting employment and decent work in a changing landscape (2020).
See Trebilcock (n 60) 97.
Report of the United Nations High Commissioner for Refugees, Part II Global compact on refugees, General Assembly Official Records Seventy-third Session Supplement No. 12 (A/73/12 (Part II)), 2018, para. 70.
See Thomas Lieby, L’organisation internationale et son secrétariat en temps de crise : L’exemple de l’OIT face à la covid-19, Annuaire français de droit international (forthcoming 2021).
Ibid., where Lieby diplomatically states ‘Si cette norme a indéniablement vu juste dans son principe et sa raison d’être, les recommandations qu’elle contient ne sont peut-être pas à la hauteur du besoin d’orientations claires et concertées appelées par les grandes crises’.
Francis Maupain, Revitalization Not Retreat: The Real Potential of the 1998 ILO Declaration for the Universal Protection of Workers’ Rights (2005) 16/3 European Journal of International Law 444.
“Soft law of the negotium” refers typically in international law to the use of “should” rather than “shall”, see Abi-Saab (n 61).
See Report V (2A), Employment and decent work for peace and resilience Revision of the Employment (Transition from War to Peace) Recommendation, 1944 (No. 71) ILC, 206th session (2017) 15.
ILO, Provisional record, 15–2(Rev.)/5 (2016) para. 23.