Hostname: page-component-78c5997874-dh8gc Total loading time: 0 Render date: 2024-11-15T02:46:09.568Z Has data issue: false hasContentIssue false
  • English
  • Français

The Competence of the International Labor Organization Under the United Nations System

Published online by Cambridge University Press:  20 April 2017

Joseph Sulkowski
Joseph Sulkowski*
Affiliation:
Associate Professor of Economics, Catholic University of America
Get access Rights & Permissions [Opens in a new window]

Abstract

The International Labor Organization (hereafter referred to as the ILO) was established by the peace treaties concluded at the close of World War I as an autonomous part of the League of Nations for the purpose of promoting social justice.

Type
Research Article
Information
American Journal of International Law , Volume 45 , Issue 2 , April 1951 , pp. 286 - 313
Copyright
Copyright © American Society of International Law 1951

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 For general references on the ILO, see in particular: M. Guerreau, L’Organisation Permanente du Travail (Paris, 1923); International Labor Organization, The First Decade (London, 1931); E. Mahaim, “L'Organisation Permanente du Travail,” in Secueil des Cours de l’Academie de Droit International de La Haye (Paris, 1924) ; P. Périgord, The International Labor Organization (New York, 1926) ; G. Scelle, L’Organisation Internationale du Travail et le B.I.T.(Paris, 1930); J. T. Shotwell (ed.), The Origins of the International Labor Organization (New York, 1934) ; F. G. Wilson, Labor in the League System (London, 1934).

2 Versailles Treaty (Arts. 387-427), this JOURNAL, Supp., Vol. 13 (1919), p. 361; Treaty of St. Germain (Arts. 332-372); Treaty of Trianon (Arts. 315-355), this JOURNAL, Supp., Vol. 15 (1921), p. 135; and Treaty of Neuilly (Arts. 249-289). It has become customary to refer to the provisions of the various peace treaties dealing with the ILO as the constitution of the ILO and to give them a numeration independent from that in the peace treaties.

3 See International Labor Conference, Twenty-Ninth Session, Montreal, 1946, Constitutional Questions, Parts 1, 2; C. W. Jenks, “The Kevision of the Constitution of thé ILO,” in British Year Book of International Law, 1946, pp. 303 ff.

4 For an economic evaluation of the aims and purposes of the ILO, see H. Feis, “International Labor Legislation in the Light of Economic Theory,” in International Labor Beview, 1927; L. Chaudouard, Le ròle de l’Organisation Internationale du Travail dans l’activité économique (Paris, 1933).

5 The Permanent Court of International Justice dealt with the problem of the competence of the ILO in the following advisory opinions: Nos. 2 and 3 concerning the Competence of the ILO in the Field of Agriculture; No. 13 concerning the Interpretation of the 1925 Convention on Night Work in Bakeries; and No. 50 concerning the Interpretation of the 1919 Convention on Night Work of Women. See Publications of the Court, Series B, Nos. 2, 3, 13 and Series A/B, No. 50. For a detailed analysis of these advisory opinions and of the competence of the ILO under the League of Nations system, see J. Chateau, De la compétence de l’Organisation Internationale du Travail (Paris, 1924); J. Morellet, “The Competence of the International Labour Organization,” in International Labour Review, 1926; E. Hiitonen, La compétence de l’Organisation Internationale du Travail (Paris, 1929); C. W. Jenks, “La compétence de l'Organisation Internationale du Travail,” in Revue de Droit International et de la Législation Comparée, 1927; G. Fischer, Les rapports entre l'Organisation Internationale du Travail et la Cour Permanente de Justice Internationale (Paris, 1946).

6 The preamble was enlarged by inclusion of “the principle of equal remuneration for work of equal value,” which in somewhat different wording figured in Article 41, now omitted from the text of the revised constitution.

7 H. Finer, The United Nations Economic and Social Council (Boston, 1946) ; C. Goodrich, The International Labor Organization and the United Nations (New York, 1944, mimeographed) ; A. G. B. Fisher, “ International Economic Collaboration and the Economic and Social Council,” in International Affairs (London, 1945), pp. 459 ff. ; idem, “The Future of International Institutions,” in Yearbook of World Affairs (Lon-don, 1947), pp. 178 ff.; W. R. Sharp, “The Specialized Agencies and the United Nations—Progress Report,” in International Organization (1947), pp. 460 ff. (1948), pp. 247 ft.; Carnegie Endowment for International Peace, United Nations Studies, No. 2: Coordination of Economic and Social Activities (New York, 1948); H. McNeil, “Accomplishments in the Economic and Social Fields,” in International Conciliation (1948), pp. 633 ff.; L. M. Goodrich and E. Hambro, Charter of the United Nations (2nd ed., Boston, 1949), pp. 318-405; H. Kelsen, The Law of the United Nations (New York, 1950), pp. 22 ff., 98 ff. Kelsen's book appeared after this article was already in type

8 There are at present the following functional and regional commissions and subcommissions: Economic and Employment, with Subcommissions on Employment and Economic Stability; Transport and Communications; Fiscal; Population; Social; Statistical, with a Subcommission on Statistical Sampling; Narcotic Drugs; Human Eights, with Subcommissions on Freedom of Information and Prevention of Discrimination and Protection of Minorities; Status of Women; Economic Commission for Europe, with Inland Transportation Committee and Coal Committee; Economic Commission for Asia and the Far East; Economic Commission for Latin America; Economic Commission for the Middle East (proposed). The activities of most of these commissions and subcommissions overlap with the activities of the ILO and of other specialized agencies of which there are at present ten altogether, with three others being proposed.

9 L. M. Goodrich and E. Hambro, op. cit., pp. 517 ff.

10 For Kelsen's interpretation of Art. 103 of the Charter, see his work cited supra,note 7, pp. 111 ff.

11 International Labour Conference, Twenty-Ninth Session, Constitutional Questions, Part 1, Montreal, 1946, p. 30.

12 J. H. E. Fried, “'Relations between the United Nations and the ILO,” in American Political Science Review, 1946.

13 The question may be asked whether this provision, inserted in a kind of an executive agreement concluded between the U.N. and the ILO, is binding upon their membership. It is conceivable that Members of the U.N., and particularly those Members of the U.N. which are not at the same time members of the ILO, may dispute the validity of the renunciation of U.N. competence in matters which have been assigned to it by the Charter in favor of the ILO (or any other specialized agency). Since such Members of the U.N. which are not at the same time members of the ILO are in the minority, however, they are not likely, to succeed in invalidating the relative provision of the agreement by a decision taken to that effect by the U.N. Neither is it likely that such a dispute will be submitted for an advisory opinion of the International Court of Justice.

14 Such agreements have been concluded by the ILO with the FAO, UNESCO, and WHO. A conclusion of similar agreements is contemplated with the ITO and the IMCO, when they are finally established. See First Report of the ILO to the United Nations, Vol. II, p. 393; Second Report, pp. 131, 135; Third Report, pp. 183, 188. All these agreements contain a stereotype provision for close coöperation and consultation in regard to matters of common interest, for reciprocal representation and establishment of joint commissions, but do not deal expressly with the problem of solving com-petence conflicts.

15 Thus, the terms in the English text “any question or dispute” are identical with those used in Art. 14 of the Covenant of the League of Nations with reference to advisory opinions, and would imply that the article under discussion had advisory opinions in mind. On the other hand, the term “shall be referred for a decision” would indicate a decision of the Court rendered in a contentious procedure, and not an advisory opinion. This latter conclusion, however, is not corroborated by the term “appréciation” used in the French text as equivalent to “decision” in the English text, which would point rather to an advisory opinion and not to a decision or judgment.

16 M. O. Hudson, The Permanent Court of International Justice (New York, 1934);G. Fischer, op. cit.

17 C. W. Jenks, “ The Status of International Organizations in Relation to the International Court of Justice,” in Transactions of the Grotius Society, 1947.

18 In spite of the clear language, some authors attribute to advisory opinions a binding effect to a greater or lesser extent. See on this point Hudson, op. cit., pp. 455 ff.; Fischer, op.cit., pp. 76 ff.

19 A more thorough evaluation of the new provision is not feasible as long as the rules concerning the appointment of the tribunal have not been elaborated by the Governing Body and approved by the General Conference of the ILO. According to available information, the establishment of such a tribunal is not being contemplated in the near future in view of the fact that the authorization given by the U.N. General Assembly to the ILO enables the latter to approach the Court directly.

20 The provision under discussion is deficient in many respects. The expression “any applicable judgment or advisory opinion” is rather misleading, since the decision of the Court has a binding force only between the parties involved in the dispute and only with regard to that particular case, and the advisory opinions of the Court have no binding force at all. This being so, what the provision actually had in mind was the applicability of the judgment or advisory opinion as a precedent. Another point of interest in the provision is the reference only to the judgments and advisory opinions of the International Court of Justice to the exclusion of those of the Permanent Court of International Justice. It is impossible to state whether this discrimination between the decisions of the two Courts is due to the realization of the authors of the provision that the decisions of the Permanent Court of International Justice might have lost their applicability even as precedents due to the radical environmental changes, or rather to the desire to emphasize that the International Court of Justice should have a clean start. Actually, there was no reason whatsoever to bind the tribunal in advance by any rules concerning its free evaluation of the decisions of any inter-national tribunal as possible precedents. The restrictive provision to that effect is indicative of the inferior status attributed to the tribunal