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

Author:Fraterman, Justin
Position: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.


    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)

    1. 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...

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