Article 37(2) of the ILO Constitution: can an ILO interpretive tribunal end the hegemony of international trade law? (International Labour Organization)

TABLE OF CONTENTS

INTRODUCTION

  I. THE EXISTING ILO SUPERVISORY MECHANISM
     A. Mechanisms Relating to Observance of Conventions
     B. Mechanisms Relating to the Interpretation of Conventions
        and the ILO Constitution
        1. Informal Opinions of the ILO
        2. Interpretation by the ICJ

 II. IMPLEMENTING ARTICLE 37 (2)
     A. A Possible Intermediate Authority
     B. Interaction with National Courts
     C. The Recent History of Article 37(2)

III. THE WTO AND THE FRAGMENTATION OF INTERNATIONAL LAW

 IV. CONFLICTS BETWEEN ILO- AND WTO-GENERATED LEGAL NORMS

  V. JUDICIAL MECHANISMS FOR ADDRESSING CONFLICTING NORMS
     A. Formal Linkage between the WTO and ILO
     B. Lack of Jurisdiction
     C. ILO-Generated Norms as Interpretive Tools for WTO
        Adjudicatory Bodies

 VI. THE POTENTIAL EFFECT OF AN ARTICLE 37(2) TRIBUNAL ON
     CONFLICTS BETWEEN ILO- AND WTO-GENERATED NORMS CONCLUSION

INTRODUCTION

Speaking before the 2009 International Labour Conference ("the Conference") in Geneva, French president Nicolas Sarkozy, delivered the following, somewhat surprising, exhortation:

   The WTO must not decide everything--every specialized institution
   must be allowed to play its part in the definition of
   international norms and, above all, in their implementation....
   Let us build together a new global governance so that the ILO can
   have its say before the WTO, the IMF and the World Bank....
   The international community cannot be schizophrenic, as it is
   indeed schizophrenic for the international community to ignore
   before the WTO and the Bretton Woods institutions the values
   promoted by the ILO.... From now on the trade judge should
   not be the sole arbiter. From now on trade law should not be the
   only law that prevails. From now on the ILO should be seized every
   time a dispute arises between states which implicates the respect
   for fundamental labor rights. (1)

The issues raised by Sarkozy (the fragmentation of international law, the apparent hegemony of trade law, and the comparative impotence of international labor law) are not novel. However, his remarks helped raise the profile of a discussion that has been ongoing within the International Labour Organization (ILO) and amongst ILO constituents regarding the proper place of international labor law, and of the ILO itself, within the international law universe.

Indeed, at its November 2008 meeting, the Committee on Legal Issues and International Labour Standards (LILS) of the ILO Governing Body had already recommended that the International Labour Office (the Office) prepare a study on improving the interpretation and implementation of international labor agreements and the ILO supervisory mechanism more generally. (2) Amongst the issues the Office was asked to consider was the resuscitation of Article 37 (2) of the ILO Constitution, a long-dormant provision allowing for the creation of an 'in-house' tribunal for the resolution of disputes or questions relating to the interpretation of ILO conventions. (3) As a result, it appears that the ILO may seriously be considering the creation of such a tribunal for the first time since 1993.

In the light of this possible innovation in the ILO's organizational architecture, this paper will explore the parameters and modalities according to which an Article 37(2) tribunal might operate, its possible interaction with the ILO supervisory mechanism and its potential role within the larger universe of international law. Specifically, this paper will examine the degree to which the tribunal could serve as a valuable counterweight to the WTO's dispute settlement system, providing the ILO with an effective response to the hegemony of international trade law. This essay posits that while a new ILO interpretive tribunal would go a long way to clarifying the nature of obligations under international labor law, its likely lack of concrete enforcement power would ultimately prevent it from ensuring compliance with ILO conventions. Thus, the answer to President Sarkozy's challenge lies not only in such a tribunal, but in the strengthening of the other mechanisms and structures of the ILO supervisory architecture.

I. THE EXISTING ILO SUPERVISORY MECHANISM

In order to better understand the interaction between international labor law and other fields of international law, especially international trade law, it is vital to sketch out the tools available to the ILO for supervising and enforcing compliance with ILO conventions. The ILO's highly regarded supervisory system is the product of an organic developmental process that has unfolded over the length of the organization's ninety-year history. Nevertheless, its development has also been punctuated by regular attempts to rationalize the supervisory architecture and render it more coherent. (4) Former ILO Legal Adviser Francis Maupain has divided the supervisory architecture into two types of mechanisms: those aimed at settling of disputes relating to the observance of conventions and those whose purpose it is to help settle disagreements regarding the interpretation of conventions or of the ILO Constitution. (5)

A. Mechanisms Relating to Observance of Conventions

The ILO's so-called "regular supervisory system" mechanism of the ILO is based on Article 22 of the Constitution. This Article requires Members to report, upon the request of the Governing Body, on "measures taken" to give effect to ILO conventions to which they are party. The Committee of Experts for the Application of Conventions and Recommendations is asked by the Conference to examine these reports and issues "direct requests" in order to clarify issues of concern in the of the submitting governments. Where responses to such requests are not satisfactory the Committee compiles "observations" for consideration by government, labor and employer delegates in the Committee on the Application of Standards of the International Labour Conference [the Applications Committee] (which is ultimately responsible for receiving and reviewing the reports). The Applications Committee then chooses a group of "individual cases" which it considers warrant tripartite discussion before the Committee; on occasion, cases of particular concern are referred to in a "special paragraph" included along with the record of the Committee discussion presented to the Conference. (6)

The Committee on Freedom of Association represents another important component of the supervisory mechanism. (7) This tripartite, nine-member committee reviews complaints regarding observance of the ILO constitutional principles of freedom of association and the right to collectively bargain, whether or not the country concerned has ratified the relevant conventions, namely Freedom of Association (No. 87) and the Right to Organize and to Bargain Collectively (No. 98). Findings regarding those complaints are reported to the Governing Body, and, if the government in question has ratified the conventions, violations may result in referral to the Committee of Experts for consideration in line with the "regular procedure". (8)

Two additional supervisory mechanisms are explicitly provided for in the ILO Constitution. The first is the "representation" procedure under Article 24. Representations are assertions by an "industrial association of employers or of workers" that a Member "has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is party." (9) In response to such a representation the Governing Body has the option of communicating it to the Government against which it is made. If no statement is received "within a reasonable time" or the statement is not deemed "satisfactory" by the Governing Body, then the Governing Body shall have the right to publish the representation and, if applicable, the reply. (10)

The second constitutional mechanism is the "complaints" procedure established under Article 26. Similarly to the representation procedure, a complaint must allege a failure to ensure "the effective observance of any Convention." (11) Complaints can only be submitted by other Member States party to the same convention, delegates to the Conference, or by motion of the Governing Body. Once received, the Governing Body may forward the complaint to an ad hoc Commission of Inquiry. As per Article 28, the Commission conducts a factfinding exercise and prepares a report that may include recommendations going forward. The independent report is then communicated to the Governing Body. Having received the report of the Commission of Inquiry, the Governing Body is empowered by Article 33 to recommend to the Conference "such action as it may deem wise and expedient to secure compliance therewith". (12) Up to now twelve Commissions of Inquiry have been established, the most recent concerning Zimbabwe's alleged non-compliance with the Freedom of Association Convention (No. 87) and the Collective Bargaining Convention (No. 98). (13)

Governments "concerned" by the report have recourse to Article 32 which permits reference to the International Court of Justice (ICJ) for a final determination. Specifically, the constitution permits the ICJ to "affirm, vary or reverse any of the findings or recommendations of the Commission of Inquiry, if any." (14) However, no such appeal has ever been brought before the ICJ and Members have typically accepted the findings of Commissions of Inquiry. (15)

Anne-Marie La Rosa contends that in the case of complaints initiated by another Member party to the same convention, both the "complaining" State and the "accused" State could have recourse to an ICJ referral. This is because Article 29(2) allows for governments "concerned" to propose such a reference. (16) However, a plain reading of the related Articles of the Constitution, as per Article 31 of the Vienna Convention on the Law of Treaties (VCLT), (17) does not make clear whether "concerned" indeed refers to both the complainant and Member under investigation or whether it only refers to the Member under investigation. (18) If La Rosa's reading is correct, then such an appeal would be permissible under Article 36(1) of the ICJ statute which grants the court jurisdiction by virtue of "treaties and conventions in force." (19)

In the case of a complaint initiated by the Governing Body on its own or on behalf of a Conference delegate it would appear that referral to the ICJ is impossible as Article 34 (1) limits the competence of the court in contentious cases to disputes between States. (20) In such circumstances both the Governing Body and the accused State would be precluded from appeal. As La Rosa has pointed out, this creates a certain asymmetry in the referral procedure whereby findings of the Commission of Inquiry will be appealable only where proceedings have been initiated by a Member State. (21)

A final, but critical question remains: what is meant by "wise and expedient" action as described in Article 33 of the ILO Constitution? (22) What vehicles are available to the Conference to compel treaty observance in the face of a finding of non-compliance? The travaux preparatoires of the sessions leading up to the adoption of the 1946 constitutional amendments reveal that the drafters envisioned that the language of Article 33 would "leave the Governing Body a discretion to adapt its action to the circumstances of the particular case and permit it to make recommendations to the member of the Organization or, if appropriate, to draw a case of such failure to the attention of the Security Council of the United Nations." (23) However, the UN Charter limits the Security Council's mandate to the "maintenance of international peace and security", thereby precluding it from acting on issues of international labor law in all but the rarest (and, frankly, unforeseeable of circumstances. (24)

Maupain suggests that the Conference would be empowered to take "measures of an economic character", including the adoption of resolutions encouraging other Members to initiate trade sanctions. (25) However, because Members could not be compelled to take such action, such a resolution could potentially result in a secondary compliance problem. Furthermore, an offending State once sanctioned by the Conference could always renounce its adhesion to the particular convention in question, thereby evading punishment. (26) The imposition of trade sanctions could also fall afoul of various international trade regimes (especially the WTO)--a dynamic which will be examined in further detail below. Finally, other potential forms of action could involve expelling the offending State from the ILO or limiting its rights within the organization.

Having examined the various legal vehicles available to the ILO for ensuring compliance with its conventions, it has become clear that the existing supervisory mechanism, in spite of its extensive and comprehensive structure and its impressive pedigree, ultimately lacks the ability to meaningfully compel compliance with international labor law. We will now turn to the mechanisms available to the ILO for the interpretation of its conventions and its Constitution.

B. Mechanisms Relating to the Interpretation of Conventions and the ILO Constitution

Fundamental to the question of observance of international labor law is the issue of interpretation. Without a clear understanding of what is actually mandated by ILO conventions it becomes very difficult to demand observance by states or, by implication, to hold them accountable for failure to comply. Simply put, in the absence of a definitive system of interpretation, Member States considering ratification of a convention may be unable to clearly discern what will be expected of them. Similarly those having already ratified a convention may be unsure as to whether their national legislation is compliant with convention obligations. (27) The current ILO system of interpretation consists of two vehicles: informal opinions of the International Labour Office and a procedure for referral to the ICJ. A third option, provided for under Article 37(2) of the ILO Constitution, but as of yet, never implemented, is the creation of an ILO-based interpretive tribunal.

1. Informal Opinions of the ILO

The International Labour Office has provided non-authoritative interpretations of ILO conventions almost since the Organization's inception. (28) Many of these opinions have been published in the Official Bulletin and for some time were also presented to the Governing Body. Minutes from an early Governing Body meeting show that as early as 1921 the Office considered that in providing non-authoritative interpretations it was "fulfilling the function for which it was intended in endeavoring ... to secure that the decisions which [Members] take should be in accord with the interpretation which would seem to have been generally given." (29)

However, such a procedure is not explicitly provided for within the ILO Constitution, and thus, the Office has always been careful to indicate that "it is not competent to give interpretations and that the explanations given by it are of an unofficial nature." (30) In this manner the Office has avoided prejudicing any subsequent decisions handed down by the ICJ, which, absent an Article 37(2) tribunal, is currently the only body competent to issue authoritative interpretations.

However, such a procedure is not explicitly provided for within the ILO Constitution, and thus, the Office has always been careful to indicate that it has no specific authority to provide interpretations, "and that all that it can furnish is an objective review of all the information which may help to enable the State to come to a conclusion on its own responsibility." (31) As a result, this specific aspect of the practice was halted. Nevertheless, in the interest of transparency, Office interpretations continued to be printed in the Official Bulletin for some time.

Despite being non-authoritative, the Office clarifications continue to serve an important, if limited, role in the ILO machinery. Whereas individual Members may lack the ability to conduct research into the preparatory work behind conventions, the Office has the technical means, linguistic capacity and experience in the art of interpretation that allows it to provide well researched and fully considered replies to the clarificatory requests of Members. This service is particularly vital to Members in the process of contemplating convention ratification.

The limits of this practice are found in its lack of constitutional grounding. As a result, the interpretations offered by the Office are in no way authoritative, and cannot bind third parties, such as other international organizations or non-members. This also means that these interpretations cannot be invoked against other bodies in the supervisory mechanism, such as the Committee of Experts or the Committee on the Application of Standards. (32) There is also a risk of lack of transparency unless these interpretations continue to be published in the Official Bulletin.

2. Interpretation by the ICJ

Under the Treaty of Versailles, the Permanent Court of International Justice (PCIJ) was granted authority to resolve questions concerning the interpretation of conventions. (33) Article 26 of the Statute of the PCIJ indicated that a special Chamber of five judges would be constituted to hear labor cases. These judges would be assisted by four technical assessors sitting with them but without the right to vote, and chosen with a view to ensuring the just representation of the competing interests. The Statute also granted the International Labour Office with the right to furnish the Court …