By Eunice Ifeoluwa Adeleke, Cherish Carrillo and Michael Iannalfo
Since its inception in 1919, the International Labour Organization (ILO) has strived to promote communication between governments, employers, and workers. It accomplishes these goals through conventions, legally binding treaties that may or may not be ratified by member states, and recommendations, non binding guidelines. Unfortunately, there are still aspects of the ILO that could be improved. Specifically, the monitoring and enforcement of the conventions and recommendations could be altered so that the ILO can have a stronghold in the compliance from its member states. Monitoring and enforcing the conventions and recommendations are the ILO’s barrier to effectiveness. In order for the ILO to become more effective, it is our recommendation that it move from hard law to soft law by switching from a rights based approach to a principle based approach and rely on other states to help enforce past conventions and recommendations.
Soft law will allow for member states to customize ILO labour standards so that they would not threaten to leave. While conventions are technically voluntary, they are formed through detailed negotiations making them easier for states to agree on. In the same manner, recommendations are not intended to be mandatory but act as simple guidelines for national and international policy. In many cases, conventions are supported by recommendations in order to clarify articles within conventions or provide further guidelines to follow. The ILO has difficulty monitoring the implementation of these conventions and recommendations. To alleviate this problem the organization should focus more on implementing nonbinding soft law conventions than binding hard law conventions. Since conventions are legally binding once ratified, they have the effect of being hard law despite the fact that they completely voluntary for states to ratify them. The binding power that conventions have on states makes it less likely that states will ratify them or fully implement them. This is especially true if a state believes that one of these conventions or recommendations threatens its sovereignty. Therefore, the problem has caused the number of conventions that have been ratified to decrease drastically over time.
Moving from hard law to soft law will allow for states to have a greater influence on monitoring practices and help to enforce the ILO mandates that were previously difficult for the ILO to enforce. One way the ILO could implement more soft law is by switching its governance from rights, which are found within ILO conventions and recommendations and lead to obligations, to that of principles, which are followed by virtue of being ILO members. Thus, principles are more soft law and rights are more hard law. Overall, this strategy would alleviate the threat of states withdrawing and give the ILO strength. Another way this can be accomplished, is by having states enforcing the ILO mandates while the ILO uses soft law mechanisms and softens the conventions to ensure states will sign on to them. Allowing states to enforce mandates, as well as name and shame non-compliant states allows the ILO to continue to work with a particular country while states are enforcing sanctions. It would also increase the likelihood that states will follow labor standards set by the ILO because they will fear tangible sanctions by other states. The ILO itself has no way of enforcing sanctions, states do.
When countries can implement the conventions and recommendations as they see fit it makes it easier for poorer countries to implement ILO mandates. The ability to implement ILO standards in unique ways, while still abiding by them allows for both labor to be protected, and the interests of the state to be maintained. In this way, the ILO transforms from an organization with no enforcement mechanism for states that ratify conventions but do not follow them, to one that is assisted by states. These strategies would serve two purposes. They would make ILO conventions and recommendations more attractive for states, and, by moving toward soft law, they would allow those ILO policies to be enforced easier.
Moving forward, the ILO must be cautious. Therefore in order to ensure compliance of soft law, it is has to be implemented with the proper incentive. The first step is to focus more on implementing nonbinding soft law conventions than binding hard law conventions. Soft law conventions give room for non-state actors to sign the instrument and engage in compliance mechanisms, which might encourage state actors to comply. The second step is for the ILO to allow states to have a greater influence on monitoring practices and help to enforce ILO mandates that the ILO has difficulty enforcing itself. Thus, to solve the ILO’s barrier to effectiveness it should move to soft law.
Reforming International Organizations 