La contribución de la OIT a la construcción normativa del Derecho del Trabajo

Resumo

Since its founding in 1919 and the adoption of its first international Convention, the International Labour Organization (ILO) has maintained a continuous interrelation with the labour systems of the States that have ratified their Conventions, incorporating them into their domestic law. However, it is not possible to give a general answer on its influence on the normative construction of Labour Law, as if the set of national rights came equally from the ILO’s normative source and the institutional weight of the Organization had been projected with the same intensity everywhere. It is clear that this has not been the case, in the light of the different national experiences in this field, the political and cultural features of each one of them, as well as the unique historical trajectory and periodization that each one has experienced in shaping its own regulations. While this being the case, it is no less true that the different unique experiences, beyond their own institutional vicissitudes and variable chronology, have usually been adjusted to general guidelines that allow a qualitative understanding of the reference process. To the extent that, of course, the description of the common historical path is also predicable for each particular story, without prejudice to any corrections of detail and exceptional punctuations that would have to be made in each case. Consequently, the assessment of the effective influence of the ILO legislative series on the normative construction of Labour Law requires a treatment related to each national legal system and the features of each unique legal history, which certainly far exceeds the purpose of the present pages. The legislative developments and the details of the labour system of each State, or at least a large part of them, which are most relevant to this purpose, should be reviewed in this case, while specifically addressing the chronological process and the conditions of ratification of each ILO international Convention by each State, if any, paying attention to those who were not and the reasons for each rejection. Nevertheless, it is possible to note that the ILO system has had an irregular influence on the first normative development of national labour rights. Thus, the states with the greatest economic and industrial development and a rich history of labour and trade union movements throughout the nineteenth and early decades of the twentieth century, together with a widespread and vigorous perception of the “social question” and the associated political claims, already counted in 1919, when the ILO’s legislative action was initiated, with labour systems based on normative, institutional and technical considerations without, of course, prejudice to its further and progressive development and institutional improvement. Therefore, as international Conventions were adopted by the General Conference of the Organization and were gradually incorporated into the relevant domestic law after ratification, they served in these cases, in general terms, to complement the legislative solutions already adopted, which were thus given an added argument of international legitimacy. These patterns would be maintained over time, as far as the overall influence of ILO is concerned. Much less in comparative terms and beyond the moral authority of the Organization, always recognized. In other cases, however, the ILO legislative production would directly lead to the absolute introduction of “labour regulation” in national systems. The role of the Organization in these States of delayed or insufficient industrialization has been central in the building and maintenance of the respective labour systems. One only needs to pay attention to how the ILO, its policy and technical cooperation action are perceived in different countries, in Europe or outside Europe, for example. This study analyses this issue in relation to the Spanish law. In the end, in order to prove that when the ILO was starting its legislative process, Spain already had an extended labour system, which had been produced and applied judicially for decades, so little was to be done by this body to “construct” our Labour Law, which had already been built on a certain basis. Another thing, however, is that the ILO has not had its influence on the normative development of our Labour Law, which certainly has, in a variable way over time, which is otherwise the subject of consideration in the article