The ILO and the World Court: A historical perspective

According to article 37(1) of the ILO Constitution, the International Court of Justice (ICJ) is the only entity empowered to render an authoritative interpretation of the ILO Constitution or of any international labour Convention.

The ILO has made use of this provision – originally article 423 of the Treaty of Versailles – on six occasions. At that time, requests for advisory opinions by the Permanent Court of International Justice (PCIJ) had to be channeled through the Council of the League of Nations in application of article 14 of the Covenant of the League.

The first advisory opinion of the PCIJ was rendered in July 1922 at the ILO’s request following the complaint of the Netherlands Confederation of Trade Unions which considered that the nomination of the Dutch worker delegate to the 3rd Session of the ILC was inconsistent with article 389 of the Treaty of Versailles which required that nominations of non-governmental delegates be made in agreement with the most representative of employers or workers organizations. To date, this advisory opinion remains the most authoritative reference guiding the Credentials Committee of the International Labour Conference.

In 1922, the ILO requested the PCIJ to determine whether it had competence to deal with the conditions of work of persons employed in agriculture, especially in view of the opposition of the French Government to such competence. A further opinion was requested as to whether the ILO had the competence to deal with issues related to agricultural production. The PCIJ rendered its advisory opinion on both these issues in August of the same year.

Following the adoption of the Night Work (Bakeries) Convention, 1925 (No. 20), a new question on the mandate of the ILO was referred to the PCIJ. In fact, the Court was requested to make a determination on the competence of the Organization to adopt standards which, while protecting workers, would also incidentally regulate the work performed by the employer.

In 1930, the question whether the special legal status of the Free City of Danzig was such as to enable it to become a member of the ILO was brought before the Court. The Court answered the question in the negative as Poland had the right to conduct the foreign relations of Danzig and therefore certain ILO activities, such as the ratification of Conventions, could not be undertaken by Danzig authorities without Poland’s consent.

In 1932, following a proposal by the United Kingdom, the PCIJ was asked to rule on the applicability of the Night Work (Women) Convention, 1919 (No. 4) to women which held positions of supervision or management and were not ordinarily engaged in manual work.