PUBLICATIONS DE LA COUR PERMANENTE DE JUSTICE
| INTERNATIONALE

SÉRIE B — N° 13
Le 23 juillet 1926

RECUEIL DES AVIS CONSULTATIFS

COMPETENCE DE L'ORGANISATION INTERNATIO-
NALE DU TRAVAIL POUR RÉGLEMENTER ACCES-
SOIREMENT LE TRAVAIL PERSONNEL DU PATRON

PUBLICATIONS OF THE PERMANENT COURT
OF INTERNATIONAL JUSTICE.

SERIES B. — No. 13
July 23rd, 1926

COLLECTION OF ADVISORY OPINIONS

COMPETENCE OF THE INTERNATIONAL LABOUR
ORGANIZATION TO REGULATE, INCIDENTALLY,
THE PERSONAL WORK OF THE EMPLOYER

Société d’Editions
A. W. Säthoft
Leyde

A. W. Sijthoff’s
Publishing Company
- Leyden

PERMANENT COURT OF INTERNATIONAL JUSTICE.

ELEVENTH (ORDINARY) SESSION 1926.
_ July agrd.

. File F.a. XV.
Present : Docket XI. 1.

MM. Huser, President,
Lover, Former President,
Weiss, Vice-President,

Lord FINLAY,

MM. NYHOLM,
Moore,

DE BUSTAMANTE,
ALTAMIRA,

ODA,

ANZILOTTI,
PEsséa.

Judges.

ADVISORY OPINION No. 33.

COMPETENCE OF THE INTERNATIONAL LABOUR ORGANIZATION
TO REGULATE, INCIDENTALLY, THE PERSONAL WORK
OF THE EMPLOYER.

On March r7th, 1926, the Council of the League of Nations
adopted the following Resolution:

“The Council of the League,

“Having considered a letter of February 3rd, 1926, from
the Director of the International Labour Office to the Secretary-
General of the League of Nations by which the Council is
informed of the adoption by the Governing Body of the Inter-
national Labour Office of a Resolution in the following terms :

“The Governing Body of the International Labour
Office, having before it a request of the Employers’ Group
ADVISORY OPINION No. 13 7

for the submission to the Permanent Court of International
Justice of the question of the jurisdiction of the Inter-
national Labour Organization in regard to the personal
work of the employer, decides, although the majority
considers that the International Labour Organization is
competent in the matter to which the request refers, and
declaring that the present decision shall not constitute
a precedent, to transmit the request to the Council of the
League of Nations in application of Article 14 of the Treaty
of Peace, and to state the question to be referred to the
Court as follows : |
“Is it within the competence of the International
Labour Organization to draw up and to propose
labour legislation which, in order to protect certain
classes of workers, also regulates incidentally the
same work when performed by the employer himself?”

“Has the honour to request the Permanent Court of Inter-
national Justice to give an advisory opinion on the question
formulated in the above-quoted Resolution.

“The International Labour Office is requested to afford the
Court all the assistance which it may require in the consider-
ation of the question hereby submitted.

“The Council authorizes the Secretary-General to submit
the present Request to the Court, together with the letter of
the Director of the International Labour Office of February 3rd,
1926, and all other relevant documents, to give all assistance
necessary in the examination of the question and, if necessary,
to take steps to be represented before the Court.”

In pursuance of this Resolution, the Secretary-General of the
League of Nations submitted to the Court, on March 2oth, 1926,
a Request for an advisory opinion in the following terms :

“The Secretary-General of the League of Nations,

“In pursuance of the Council Resolution of March 17th,
1926, and in virtue of the authorization given by the Council,

‘Has the honour to submit to the Permanent Court of
International Justice an Application requesting the Court, in
accordance with Article 14 of the Covenant, to give an advisory
opinion to the Council on the questions which are referred
to the Court by the Resolution of March 17th, 1926.
ADVISORY OPINION No. 13 8

“The Secretary-General will be prepared to furnish any
assistance which the Court may require in the examination
of this matter, and will, if necessary, arrange to be represented
before the Court.” |

In conformity with Article 73 of the Rules of Court, notice of the
Request was given to the Members of the League of Nations and
to the States mentioned in the Annex to the Covenant.

Under the same article, notice of the Request was also given to
the International Labour Organization and to the following further
international organizations considered as likely to be able to
furnish information on the question submitted to the Court :

International Organization of Industrial Employers ;

International Federation of Trades Unions ;

International Confederation of Christian Trades Unions.

It was further brought to the knowledge of the four Organizations
notified that, should they desire to furnish information on the ques-
tion at issue, they would have to file applications in this respect ;
at the same time, a delay for the presentation of written memo-
randa was fixed. Such memoranda were received from all the
organizations concerned, except the International Confederation
of Christian Trades Unions.

At the request of the Organizations, their representatives furn-
ished information at the hearings held on June 28th and 2oth,
1926. These representatives were : .
(x) For the International Labour Organization, M. Albert Thomas,

Director of the International Labour Office.

(2) For the International Organization of Industrial Employers,
Me. Borel, of Geneva, and Me. Lecocg, of Brussels, the Secre-
tary-General of the Organization.

(3) For the International Federation of Trades Unions,
Me. Mendels, of Amsterdam.

(4) Forthe International Confederation of Christian Trades Unions,

' M. Serrarens, of Utrecht, the Secretary-General of the Confe-

deration.

The International Labour Office finally submitted to 5 the Court,
in conformity with the Resolution of the Council of the League of
Nations, a set of documents concerning the treatment by the
ADVISORY OPINION No. 13 9

International Labour Organization of the question of nightwork in
bakeries and concerning the origin of the question submitted to
- the Court. The Director of the Office, in connection with the hear-
ings, filed a certain number of additional documents 1.

I.

The Court considers it expedient, in the first place, to indicate
the circumstances which led the Council of the League of Nations
to ask for an advisory opinion on the question set out in the
Request. .

On the Agenda for the Sixth Session of the International Labour
Conference, held in 1924, there appeared the following item :
"IV. Nightwork in Bakeries.”

The inclusion of this item in the agenda was not objected to by
any of the Governments of the Members of the International Labour
Organization.

Accordingly, andin conformity with the usual procedure, the Inter-
national Labour Office prepared, after consulting the Governments,
a ‘proposed Draft Convention” concerning nightwork in bakeries,
to be used as a basis for the discussions of the Conference ; this
draft provided, inter alia, that subject to certain exceptions no
work should be carried on in bakeries during the night. For the
purpose of the draft, the term “bakery”’ included all undertakings
where bread, pastry or confectionery is made, but did not include
domestic bakery.

The discussion by the Conference of the subject-matter of night-
work in bakeries resulted in the preliminary adoption, on July 5th,
1924, by 73 votes to 15, of a proposed Draft Convention, referred
for final vote to the Seventh Session of the Conference ; the first
Article of this Draft Convention runs as follows :

“Subject to the exceptions hereinafter provided, the making
of bread, pastry or other flour confectionery during the night is
forbidden.

“This prohibition applies to the work of all persons, in-
cluding proprietors as well as workers, engaged in the making

1 All the documents referred to above are listed in the Annex.
ADVISORY OPINION No. 13 Io

of such products; but it does not apply to work which is
done by members of the same family for their own consump-
tion. .

“This. Convention has no application to the wholesale
manufacture of biscuits.”

The adoption of this proposed draft was the outcome of an.
important discussion. The report of that Commission of the Con-
ference, to which the matter had been referred, was accompanied
by a minority report in which strong exception was taken to the
application made in the Draft Convention of the principle of pro-
hibition of *nightwork to the employer himself. The minority was
composed of members belonging to the employers’ group of the
Conference. Its objections were again expressed with much force
also in the debates of the full Conference.

In the Agenda for the Seventh Session of the Conference was
included, again without objection from the Members of the Inter-
national Labour Organization, the following item :

“TV. Nightwork in Bakeries (final vote on the Draft Con-
vention adopted by a preliminary vote of the Conference at its
’ Sixth Session).”’

The Commission to which this item was referred had to deal,
amongst others, with the following two amendments to Article I
of the Draft Convention: | |

(1) “This prohibition applies to the work of all persons
employed in the making of such products, but it does not apply
to work done by the employer himself or by any person working
on his own account, or to work which is done by members of the
same family for their own consumption, or to work done in a
bakery belonging to an hotel or restaurant or any public or
private institution for consumption in the hotel, restaurant or
institution.”

(Great Britain.)

(2) “This prohibition applies to the work of all persons
engaged in the making of such products ; but it does not apply
ADVISORY OPINION No. I3 IT

to such work done by the head of the undertaking himself or
by any other person working on his own account, nor to work
which is done by members of the same family for their own
consumption.

“Those Members the national legislation of which has already
extended the prohibition of nightwork to the heads of under-
takings agree to maintain this system of general prohibition.”

(Belgium, subsidiary amendment in case the British amendment
is not adopted.) ;

When the Draft Convention was reported back to the Conference,
the first Article was worded as follows :
“ Subject to the exceptions hereinafter provided, the making
of bread, pastry or other flour confectionery during the night
is forbidden.

“This prohibition applies to the work of all persons, includ-
ing proprietors as well as workers, engaged in the making of
such products ; but it does not apply to the making of such pro-
ducts by members of the same household for their own con-
sumption.

“This Convention has no application to the wholesale manu-
facture of biscuits. Each Member may, after consultation
with the employers’ and workers’ organizations concerned,
determine what products are to be included in the term ‘bis-
cuits’ for the purpose of this Convention.”

After discussion, in the course of which the objections raised
by the employers’ group to the application to employers of the
prohibition of nightwork were again stated, the Conference, on
June 5th, 1925, formally rejected the British amendment to Article x
by 73 votes to 36; the Belgian amendment was withdrawn. On
June 8th, 1925, the Draft Convention, including the Article x (set.
out above), was finally adopted by 81 votes to 26.

The employers’ group, however, maintained their doubts as to the
legality of the extension, in the said article, of the prohibition
against nightwork to the personal work of the employer. They
accordingly proposed, at the Thirtieth Session of the Governing
ADVISORY OPINION No. I3 12

Body of the International Labour Office, that this Body should
take the necessary steps in order to obtain the Court’s opinion as to
whether the International Labour Organization was competent
to draw up and propose regulations applying to the work of the
employer himself. In the course of the discussion which ensued,
it was, inter alia, observed that the question on which the Court’s
opinion was required had, in fact, a less general scope and con-
templated only whether the Labour Organization was competen
+o draw up and propose regulations which, primarily and essentiall
intended to deal with the work of employed persons, incidental
affected the work of an employer considered as himself a worker.
‘This view prevailed, and, eventually, the Governing Body adopted,
by 17 votes, there being no contrary vote, a Resolution the terms
of which are reproduced in the Resolution of the Council of the
League of Nations set out above.

The latter Resolution shows that it was in compliance with the
request of the Governing Body that the Council of the League
decided to ask the Court to give an advisory opinion on the question
stated at the outset of the present opinion.

Ii.

The question submitted to the Court is whether it is within the .
competence (compétence) of the International Labour Organization |

“to draw up and propose labour legislation which, in order to protect

|
i

certain classes of workers, also regulates incidentally the same work ,

‘when performed by the employer himself”. a

It appears by the terms of reference and is admitted in the oral
‘declarations made before the Court by the representatives of the
‘organizations concerned that the question submitted to the Court is
general, and does not relate to any particular branch of industry.
For this reason, the conditions of the baking industry, which have
‘been taken into account in the proposed convention concerning
nightwork in bakeries, have not been specifically considered by the
‘Court for the purpose of the present Opinion, except by way of
illustration. No conclusions, therefore, as to what kind of legis-
lation such conditions may justify in any particular case can be
drawn from the answer given by the Court to the question before it.
ADVISORY OPINION No. I3 13

It is further made clear by the terms of the Request that the
Court is not called upon to deal with the work of the employer in |
general, but only in so far as such work is the same as that of the |
worker and as its regulation is incidental to a regulation Proposed |
in order to protect certain classes of workers and to assure such,
protection.

Finally, under the terms of reference, it is obvious :

(a) that the labour legislation contemplated in the question, i. e.
legislation for the protection of wage-earners, is assumed to be
within the competence of the International Labour Organization
subject to the question as to its incidentally regulating the work
of the employer ;

(b) that the proposed regulation of the work of the employer is
to be assumed to be really incidental to labour legislation admit-
tedly within the competence of the International Labour Organ-
ization ;

(c) that the word “workers” refers only to wage-earners. This
is in accordance with the sense of the English text and also with the
language of the French text, which uses, as the equivalent of
“workers”, the words travailleurs salariés. The Court is therefore
to treat the English text as if it spoke of “labour legislation which,
in order to protect certain classes of wage-earners, also regulates
incidentally the same work when performed by the employer him-
self”.

The Court is not asked for an opinion as to the existence of any
general power to regulate work done by the employer. Such power
has not been claimed for the International Labour Organization
and, by the very terms of the question, this phase of the subject
seems to have been deliberately excluded from the consideration
of the Court. The question speaks simply of ‘“‘’competence”, and
assuming, as it manifestly does, that the International Labour
Organization has competence to propose labour legislation for the
protection of wage-earners, generally or by classes, asks whether
the Organization can exercise this competence in a case in which the
legislation proposed for the protection of the wage-earner would
incidentally regulate the same work when performed by the employer
himself. |
ADVISORY OPINION No. I3 14

- The question put by the Council, in the opinion of the Court,
further proceeds on the assumption that the employer, when
performing the same work which is performed by the wage-earners,
does not normally fall within the competence of the. International
Labour Organization in respect of such work. It is clear that if the
regulation of the personal work of the employer is normally within
the competence of the International Labour Organization, no
doubt could arise as to the competence in the case now before the
Court. On the other hand, the Organization may be competent
in the case put in the question even if it is not. competent to deal
generally and primarily with the personal work of the employers.
The question is intended to ask whether, on such hypothesis, a
regulation of the personal work of the employers may be proposed
by the International Labour Organization incidentally and in
order to protect certain classes of wage-earners.

r
The question put to the Court is manifestly a question of law,
the answer to which depends upon the terms of‘Part XIII of the
Peace Treaty of Versailles of June 28th, 1919, by which the com-
petence of the International Labour Organization is defined. This
Part of the Treaty is entitled ‘‘Labour’’ and consists of two Sec-
tions. The first of these Sections is entitled: “Organization. of
Labour” and consists of a preamble together with Articles 387
to 426, and an annex. The second of these Sections consists only
of Article 427, and is entitled ‘‘ General Principles”.
The International Labour Organization consists (Article 388) of
(x) a General Conference of representatives of the Members, and (2)
an International Labour Office controlled by a Governing Body.

Turning to the stipulations which relate to the sphere of activity
of the International Labour Organization, we find that Article 387
of the Treaty declares that the Organization was “established for
the promotion of the objects set forth in the Preamble’.

The Preamble opens (paragraph 1) with a recital that the League
of Nations has for its object the establishment of “Universal peace”,
and that such a peace can be established only if it is based on ‘social
justice”.
ADVISORY OPINION No. 13 15

The Preamble then goes on (paragraph 2) to recite that con-
ditions of. labour exist “involving such injustice, hardship and
privation to large numbers of people as to produce unrest so great
that the peace and harmony of the world are imperilled”, that ‘an.
improvement of those conditions is urgently required, as, for
example, by the regulation of the hours of work, including the.
establishment of a maximum working day and week, the regulation
of the labour supply, the prevention of unemployment, the pro-
vision of an adequate living wage, the protection of the worker
against sickness, disease and injury arising out of his employment,
the protection of children, young persons and women, provision
for old age and injury, protection of the interests of workers when.
employed in countries other than their own, recognition of the
principle of freedom of association, the organization of vocational
and technical education and other measures’.

Finally, the Preamble recites (paragraph 3) that ‘the failure of
any nation to adopt humane conditions of labour is an obstacle.
in the way of other nations which desire to improve the conditions
in their own countries”.

After these recitals, the High Contracting Parties declare (para-
graph 4) that, ‘moved by sentiments of justice and humanity
as well as by the desire to secure the permanent peace of the world”’,.
they agree to the provisions establishing the International. Labour
Organization for the promotion (Article 387), as has already been
pointed out, “of the objects set forth in the Preamble’.

This specification of the objects of the Organization is supple-
mented by Article 427 of the Treaty. This article does not define
or limit the powers of the Organization but only emphasizes the
importance, from an international point of view, of the welfare of
wage-earners, and sets forth certain principles as being of special,
and urgent importance. The first of these is that labour should
not. be regarded merely as a commodity or article of commerce ;
and, in addition to this, mention is made, among others, of the
right of association for all lawful purposes by the employed as well.as
by the employers ; the payment of an adequate wage ; the adop-
tion ofan eight hours’ day or a forty-eight hours’ week, and of a
weekly rest of at least twenty-four hours, toinclude Sunday wherever
practicable ; the abolition of child labour and the limitation of the
ADVISORY OPINION No. 13 , 16

labour of young persons; the payment to men and women of
equal remuneration for work of equal value ; the fixing in each
country of a legal standard as to the conditions of labour for all
lawfully resident workers ; and the establishment by each State
of a system of inspection in which women should take part. But
it is declared that this enumeration is not claimed to be ‘‘either
complete or final”.

As it is evident that the measures adopted for the attainment of
these objects may, generally speaking, affect the rights and interests
of employers as well as of the employed, provision is made for the
separate representation of both classes. While all the persons
composing the General Conference are called (Article 388) “ Repre-
sentatives of the Members”, i. e. of the governments concerned, and
are nominated by such Members, yet provision is made for the
distinctive representation of employers as well as of the employed
(Article 389). So, in the constitution of the Governing Body,
by which the International Labour Office is controlled, twelve of
the twenty-four persons of whom the Body is composed are
described as “representing the governments’’, while six represent
the ‘employers’, and six the “workers” (Article 393).

. Operating under this control, the International Labour Office
(Articles. 394-398) collects and distributes information, conducts
studies and investigations, prepares the agenda for the meetings
of the Conference, and exercises such powers and performs such
duties as the Conference may assign to it.

. An examination of the provisions of the Treaty shows that, while
the competence of the International Labour Organization, so far as
concerns the investigation and discussion of labour questions and
the formulation of proposals, whether for national legislation. or for
international agreements, is exceedingly broad, its competence
is almost. wholly confined to that auxiliary form of activity. The
most important, if not the only exception to this rule may be found
in the power given to the Organization (Article 408) to deal with
the annual reports of Members concerning their enforcement of
‘international conventions, and (Articles 409-420) to consider and,
ADVISORY OPINION No. 13 17

by means of a Commission, to inquire info complaints against
Members regarding the observance or enforcement of such con-
ventions. The Organization has no legislative power. Each
Member is free to adopt or to reject any proposal of the Organization
either for a national law or for an international convention. The
Treaty requires each Member, without regard to how its represent-
ative has voted at the Conference, to lay any such proposal before
the proper authorities for the enactment of legislation or other
action, but further expressiy provides (Article 405, paragraph 8)
that if no action upon it is taken ‘no further obligation shall rest
upon the Member”.

The terms in which the objects committed to the International
Labour Organization are stated are so general that, as the Court
remarked in its second Advisory Opinion, ‘language could hardly
be more comprehensive” ; but it must be observed that the Treaty -
itself provides a way by which objection may be made to the inclu-
sion of à particular matter in the Organization’s activities. While
the making of recommendations for national legislation and of
draft proposals for international conventions is exclusively com-
mitted to the Conference (Article 405), the settling of the agenda
for the Conference belongs to the Governing Body, half of whose
members, just as in the case of the Conference itself, represent the
governments. The agenda as thus settled must, however, be
transmitted to the governments, and any government may object
to the inclusion of any item. Items to-which objection is thus
made are excluded unless (Article 402) the Conference shall, by:
two-thirds of the votes cast by the delegates present, decide to
include them in the agenda for the following meeting. After an
item is placed on the agenda, a recommendation or draft convention
can be adopted by the Conference only by a similar two-thirds
majority (Article 405, paragraph 2).

Thus, wholly apart from the reference of any question or dispute
to the Court (Article 425), the Treaty provides the means of checking .

: 2
ADVISORY OPINION No.-13 18

any attempt on the part of the Organization to exceed its compet-
ence. In this way the High Contracting Parties have taken pre-
cautions against any undue extension of the sphere of activity
indicated by the Preamble.

*
* *

It results from the consideration of the provisions of the Treaty
that the High Contracting Parties clearly intended to give to the
International Labour Organization a very broad power of co-operat-
ing with them in respect of measures to be taken in order to assure
humane conditions of labour and the protection of workers. It is
not conceivable that they intended to prevent the Organization
from drawing up and proposing measures essential to the accomp-
lishment of that end. The Organization, however, would be so
prevented if it were incompetent to propose for the protection of
wage-earners a regulative measure to the efficacious working of
which it was found to be essential to include to some extent work
done by employers. If such a limitation of the powers of the
International Labour Organization, clearly inconsistent with
the aim and the scope of Part XIII, had been intended, it would
have been expressed in the Treaty itself. On the other hand, it is
not strange that the Treaty does not contain a provision expressly
conferring upon the Organization power in such a very special case
as the present. |

Not only does the entire framework of Part XIII justify the infer-
ence that the International Labour Organization is not excluded
from proposing measures for the protection of wage-earners because
they may incidentally regulate the personal work of the employers,
but there are specific provisions of the Treaty, in the application
of which, as they are generally understood, it may be assumed that
the incidental regulation of the personal work of the employers
is potentially involved. |

One instance is the regulation of the hours of work (Part XIII,
Preamble), and the adoption of a weekly rest of at least twenty-.
four hours, which shall include Sunday wherever practicable (Art-.
icle 427, Principle 5)... It is notorious that, in the application of these
principles, before as well as since the Treaty of Versailles, it has
been a common thing to require the closing of shops, factories and
ADVISORY OPINION No. I3 19

places. of business within certain hours of the day, or on certain
days of the week, thus suspending and regulating the particular
kind of work, whether performed by the employer or by the
employed. Inthe documents before the Court there are examples of ”
such legislation in regard to the baking industry. A similar and
familiar. case is that of the regulation of the industry of barbers.

The prohibition, by the International Convention of 1906, of
the use of white phosphorus in the manufacture of matches has
also been cited : by Article x of this Convention the High Contract-
ing Parties bind themselves to prohibit in their respective territo-
ries ‘‘the manufacture, importation and sale of matches which
contain white (yellow) phosphorus”. It is true that, in the argu-
ments before the Court, there was. some controversy as to the .
motives inspiring the adoption of this last measure. But, so far
as concerns the specific question of competence now pending, it
may suffice to observe that the Court, in determining the nature
and scope of a measure, must look to its practical effect rather than
to the predominant motive that may be conjectured to have inspired
it. Moreover, the High Contracting Parties, in incorporating in
Part XIII, relating to ‘“‘Labour’’, a provision for the first meeting
-of the General Conference (see Article 426, Annex, entitled “First
Meeting of Annual Labour Conference, 1919”) themselves included
in the Agenda of the Conference ‘‘the extension and application”
of the Convention prohibiting ‘the use of white phosphorus in the
manufacture of matches”. The measure was thus treated as falling
within the sphere of labour legislation ; and this may be regarded
as a contemporaneous practical interpretation made by the High
Contracting Parties of the scope of the competence which they had
conferred upon the International Labour Organization.

Among the measures proposed by the International Labour -
Organization the Court may also notice the Convention concerning
the use of white lead in painting. By this Convention Members
of the Organization undertake to prohibit various uses of white
lead and sulphate of lead and of all products containing those pig-
‘ments except in certain specified cases; and in these cases they under-
take to prohibit the employment of males under 18 years of age
ADVISORY OPINION No. 13 : ‘ 20

‘and of any females, with certain exceptions.. It appears from a
document filed by the International Labour Organization that at
least eleven governments have already ratified this Convention,
and the attention of the Court has not been called to any objection
made to the competence of the Organization to draw up and
propose it.

It is not an unusual thing, in countries in which legislative power
is limited by a fundamental charter, for the Courts, in deciding whe-
ther certain legislation is constitutional, or infra vives, to resort
to practice, national or international, for the determination of the
extent of a particular governmental power. On this principle
illustrations from existing labour legislation might be multiplied ;
but the examples already given are precise and pertinent and will
suffice.

Moreover the Court, in answering the enquiry now before it,
may advert to some of the reasoning employed in its third Advisory
Opinion. In the case of its second Advisory Opinion, the Court was
asked to answer the enquiry whether the competence of the Inter-
national Labour Organization extended “‘to international regulation
of the conditions of labour of persons employed in agriculture”.
This enquiry the Court answered in the affirmative. But, while the
question was pending before the Court, it was asked to render an
opinion upon the further question whether the examination of
proposals for ‘‘the organization and development of methods of
agricultural production, and of other questions of a like character”,
fell within the “competence” of the International Labour Organiz-
ation. The Court held that the answer to this question must ‘‘depend
entirely upon the construction to be given” to Part XIII of the Ver-
sailles Treaty ‘‘from which alone that Organization derives its
existence and its powers”, and decided that, tried by this test,
the organization and development of the means of production were
“not committed to the Organization”. But, while holding this
to be the case, the Court, in order to guard against a too extensive
interpretation of its answer, took care to say that it did not follow
that the Organization “must totally exclude from its consideration
the effect upon production of measures which it may seek to
promote for the benefit of the workers” ; and that, while, broadly

3
ADVISORY OPINION No. I3 ai

speaking, any. effect which the performance by the Organization
of its functions under the Treaty might have on production was
only ‘‘incidental”, yet it was evident that the Organization could
not be “excluded from dealing with the matters specifically com-
mitted to it by the Treaty” on the ground that this might ‘involve
in some aspects the consideration of the means or methods of
production”, or of the “effects” which the proposed measures would
have upon production.

It is true that Opinion No. 3 deals with incidental effects on
production whilst the question now pending before the Court con-
cerns incidental regulation of the personal. work of the employer.
No sharp line can, however, in practice be drawn between incidental
effect and incidental regulation, and the question whether the effect
or the regulation is primary.or only.incidental cannot depend upon
the mere circumstance that the employer is or is not mentioned
in the proposed legislation. It follows, therefore, from the reason-
ing cited from Opinion No. 3 that, if it is assumed for the purpose
of the argument that the competence of the International Labour
Organization is limited to the work of the wage-earner, the Organiz- .
ation is not excluded from proposing regulations for the protection
of wage-earners: because such regulation may have the effect of
regulating at the same time and incidentally the work of the
employer.

Other reasons might be given for the conclusions at which the
Court has arrived, but the Court refrains from discussing them
because this might take it into domains which have been deliberately
excluded from the scope of the question put.

s * *

The question put to the Court has been argued before it both
in writing and orally, and the discussions, especially in the written
documents, cover a wide range of topics, including national sover-
eignty, individual liberty, and various controversial theories of
society and government. If these topics, which have to some extent.
a political character, and which are constantly debated in national.
ADVISORY OPINION NO. 13 22

assemblies when the enactment of labour and other legislation
is pending, were considered in the framing and adoption of Part XIII
ofthe Peace Treaty of Versailles, this was natural and unavoid-
able, as the making of laws, whether national or international, is
a political act and as such may involve the application of political
principles. That such topics were considered in the framing and
adoption of Part XIII may be inferred from the express reservation
by the High Contracting Parties, as regards the enactment of
international as well as of national measures, of their full, free,
individual legislative power, carrying with it the exclusive right
to determine, each for itself, what political principles and social
theories should be applied within the national jurisdiction. On the
other hand, the High Contracting Parties must be assumed to have
acted deliberately in providing for the co-operation, strictly limited
as it is, of the International Labour Organization in the exércise
of their sovereign powers in respect of labour measures, national
and international.

In this connection, and especially with regard to national sover-
eignty, it may be observed that arguments, similar to those just
mentioned, were addressed to the Court four years ago, when it
was asked to give an advisory opinion on the question whether the
competence of the International Labour Organization extended “to
international regulation of the conditions of labour of persons
employed in agriculture’. The Court answered this question in the
affirmative; and in the course of its opinion said :

“It was much urged in argument that the establishment of
the International Labour Organization involved an abandon-
‘ment of rights derived from national sovereignty, and that
the competence of the Organization therefore should not be
extended by interpretation. There may be some force in this
argument, but the question in every case must resolve itselt
into what the terms of the Treaty actually mean, and it is
from this point of view that the Court proposes to examine
the question.” |
ADVISORY OPINION No. 13 23

So, in the present instance, without regard to the question whether
the functions entrusted to the International Labour Organization
are or are not in the nature of delegated powers, the province of the
Court is to ascertain what it was the Contracting Parties agreed
to. The Court, in interpreting Part XIII, is called upon to per-
form a judicial function, and, taking the question actually before
it in connection with the terms of the Treaty, there appears to be
no room for the discussion and application of political principles
or social theories, of which, it may be observed, no mention is made
in the Treaty.

It has been argued that measures for carrying out the principles |
laid down in Conventions proposed by the International Labour
Organization fall within the domain reserved to the Members who
ratify the Conventions, and that it would therefore be exclusively
for such Members to initiate and carry out measures to secure,
as, for instance, by incidentally regulating the same kind of work
of the employer, the protection of the worker under a Convention
which they have adopted. In this respect the Court observes that
Part XIII makes no distinction between principles and provisions
to ensure their application. A distinction of this kind would indeed
lead in practice to insuperable difficulties and it is entirely in con-
formity with the broad wording of the above-mentioned Preamble
that it should be left to the Labour Conference itself to decide
if and in what degree it is necessary and opportune to embody in
a proposed Convention provisions destined to secure its full exe-
cution. The International Labour Organization no doubt has at
its disposal, with a view to the carrying out of Conventions proposed
by it, the special procedure provided for in Articles 409-420 ;
nevertheless, the Conference itself may, in the first instance, include
in its proposed Conventions provisions calculated to ensure as far
as possible the realization of their object.

Controversy, of course, may arise, at different stages of the proce-
dure of the International Labour Organziation, as to whether a
specific proposal for the regulation of the personal work of the
employer (patron) would be primary rather than ‘“incidental”,
and therefore alleged to be outside the competence of the Organiz-
ation. Obviously, sucha question involves the exercise of judgment
by the proper authorities on the circumstances of each case as it
ADVISORY OPINION No. I3 24

may arise, and Part XIII, Article 423, of the Versailles Treaty
provides that “any question or dispute relating to the interpreta-
tion of this Part of the present Treaty or of any subsequent conven-
tion concluded by the Members in pursuance of the provisions of
this Part of the present Treaty shall be referred for decision to the
Permanent Court of International Justice’. The Court does not
intend to indicate the limits of any discretionary powers which the
International Labour Organization may possess as regards the
making of incidental regulations. The Court would exceed, its
own competency should it essay to consider controversial cases,
actual or hypothetical, on which its opinion is not asked, and to
intimate what, in its judgment, the decision upon them should be.

FoR THESE REASONS,

The Court is of opinion

That it is within the competence of the International Labour
Organization to draw up and to propose labour legislation which,
in order to protect certain-classes of workers, also regulates incident-
ally the same work when performed by the employer himself.

Done in English and in French, the English text being author-
itative, at the Peace Palace, The Hague, this twenty-third day of
July, one thousand nine hundred and twenty six, in two copies,
one of which is to be placed in the archives of the Court and the

eOther to be forwarded to the Council of the League of Nations.

(Signed) Max HUBER,
President.

(Signed) À. HAmmarskJÜLD,
Registrar,


48

INDIVIDUAL OPINION OF JUDGE LEVI CARNEIRO
{Translation]

Though I have voted with the majority on nearly all the
questions and have accepted the conclusions of the Judgment,
I nevertheless venture to draw attention to some secondary
differences of view, and to refer to certain considerations which
have influenced my attitude in regard to questions which have
been raised, but which have not been dealt with in the Judgment.

2. It has been decided not to join the Objection to the merits,
in conformity with Article 62, paragraph 5, of the Rules of Court,
as had been requested by one of the Parties.

I consider that such a joinder should only be made when it
is absolutely necessary. However, it often happens that, although
no joinder is made, the decision on the jurisdiction involves a
summary, superficial, or prima facie consideration of certain
questions pertaining to the merits. Such an examination is mainly
confined to the legal issues, without dealing with the facts that
are in dispute, and the decision on the jurisdiction may then
be founded on considerations which touch upon these questions,
without dealing exhaustively with them and without prejudging
them.

3. In my opinion, in order to establish the Court’s jurisdiction
in the present case, it should have been decided that the Ambatielos
claim is “based’’ on the Treaty of November roth, 1886—that
is to say, that it has given rise, in the words of the Protocol of
the same date, to a controversy “‘respecting the interpretation
or the execution” of the Treaty.

The United Kingdom Counter-Memorial has correctly indicated
the line of argument by which the Hellenic Government justifies
the Court’s jurisdiction :

‘“… it contends that the treatment accorded to the clarmant
gave rise to a claim against the United Kingdom under Article XV
of the Treaty of 1886; that, since the United Kingdom rejects
this claim, it should be submitted to arbitration under the Protocol
annexed to that Treaty and continued in force after the termination
of the Treaty by the Declaration made on the date of signature
of the Treaty of 1926; and finally that the refusal of the United
Kingdom to go to arbitration raises a dispute as to the application
of the Declaration which the Court has jurisdiction to decide
under Article 29 of the Treaty of 1926” (paragraph 10, British
Counter-Memorial) (my italics).

Certainly, the Hellenic Government’s argument was correctly
summarized in that passage. The Greek Memorial expressly
contended that there had been a violation of Article XV, para-

27
INDIVIDUAL OPINION OF JUDGE LEVI CARNEIRO 49

graph 3, of the Treaty of 1886, consisting of a denial of justice,
and of Article X of the said Treaty, consisting of inequality of
treatment (Memorial, paragraphs 14 and 22).

The invocation of these provisions of the Treaty seems to be
relevant. Without passing on the facts stated in the Memorial,
or recognizing the correctness of these allegations, it would not
be possible to say whether the invocation of the clauses of the
Treaty of 1886 was justified. The Court cannot do so at the present
stage of the proceedings. However, this invocation must, prima
facie, be regarded as acceptable. That is both sufficient and
necessary to enable the Court’s jurisdiction to be asserted. If
the claim manifestly went beyond the terms of the Treaty of
1886, the Court would have no jurisdiction. For example, if the
claim related to facts prior to the Treaty of 1886, the Court’s
lack of jurisdiction would have to be at once admitted; the
invocation of this Treaty would—even prima facie—appear to
be ill-fourided. In fact, what has to be decided is simply whether
the claim is or is not admitted by the Treaty.

4. In the present case, recognition of the fact that the claim
is based on the Treaty of 1886 follows from the declarations of
the Parties.

In the Counter-Memorial (paragraph 11), after the summary
of the Hellenic Government’s reasoning, which I have quoted
above, the- Agent for the United Kingdom Government submitted
that this reasoning ought to be rejected because :

“‘(a) the Declaration does not form part of the Treaty of 1926
and Article 29 of the Treaty is therefore not applicable to it, and

because
{b) the Declaration was only intended to apply to claims brought
before the date of its signature (16th July 1926).”’

The British Government did not reject the reasoning on the
ground that the claim was not based on the Treaty of 1886,
although it disputed the denial of justice and the inequality of
treatment. On the contrary, it admitted that the claim was, prima
facie, based on the Treaty of 1886.

Its first submission was that the Court

“has no jurisdiction to entertain a request by the Hellenic Govern-
ment that it should order the United Kingdom Government to
submit to arbitration a claim by the Hellenic Government based
on Article XV or any other article of the Treaty of 1886”.

Subsequently, during the oral proceedings before the Court,
the recognition of this fact became quite clear. Counsel for the
United Kingdom, at the hearing on May 15th, stated the condi-
tions which he regarded as necessary for the admission of the
Court’s jurisdiction : (1) that the Declaration was a provision of

28

INDIVIDUAL OPINION OF JUDGE LEVI CARNEIRO 50

the Treaty of 1926; (2) that the Greek claim was both ‘‘based
on the Treaty of 1886” and covered by the Declaration (Oral
Argument, page 16). He sought to show that the Declaration
did not form part of the Treaty of 1926, and that it did not cover
the claim ; but he did not attempt to show that the claim was
not based on the Treaty of 1886.

In conclusion, the Greek Counsel said :

“e

.. even our opponents agreed that our legal bases included at
least one which they recognized as pertinent : that was Article XV,

,,

paragraph 3, of the Treaty of 1886....”.

I think that this fact should have been recognized. The Court’s
jurisdiction results from the fact that the dispute is within the
framework of the Declaration of 1926: the claim is ‘“‘based’’ on
the Treaty of 1886.

5. It might perhaps have been possible to anticipate the final
decision of this case by at once affirming—or denying—the
obligation of the United Kingdom Government to submit to
arbitration its dispute with the Hellenic Government in regard
to M. Ambatielos’s claim.

The fullness of the arguments appeared to allow of such a
decision—and I myself was in favour of giving it. I now recognize
that the present Judgment deals solely with the Objection to
the jurisdiction. In presenting it, the British Government very
clearly separated the question of jurisdiction from the question
of the merits. In regard to the latter, it said that the claim of
the Hellenic Government was barred by reason of the delay in
its submission, and that the Court should, in accordance with
the Hellenic Government’s proposal, substitute itself for the
Arbitration Commission, etc. On the preliminary question, what
was alleged was the Court’s lack of jurisdiction to order the
British Government to submit to arbitration a claim by the
Hellenic Government, etc.

The present decision of the Court, in its Judgment on the
Preliminary Objection, is limited to an affirmation of its com-
petence to give the ruling referred to.

Subsequently, in the next stage of the procedure, the Hellenic
Government’s request will be adjudicated upon. Then, and only
then, will the Court be in a position to adjudge and declare, as
requested by the Hellenic Government :

“that the United Kingdom Government is under an obligation
to refer its present dispute with the Hellenic Government to

vo

arbitration....””.

It is true that the Hellenic Government itself, in its “Obser-
vations and Submissions’ departed from this attitude and asked
the Court

29
INDIVIDUAL OPINION OF JUDGE LEVI CARNEIRO SI

“to hold that the United Kingdom Government is bound to
accept the submission to the International Court of Justice,
sitting as an arbitral tribunal, of the dispute now existing between
that Government and the Hellenic Government, and accordingly
to fix time-limits for the filing by the Parties of the Reply and
the Rejoinder dealing with the merits of the dispute”.

A modification resulted from the acceptance by Counsel of the
two Parties, during the oral proceedings, of the principle that
the Court should exercise the functions of the Commission of
Arbitration referred to in the Protocol of 1886. This proposal,
which was proposed by Counsel for the Hellenic Government,
was accepted by the United Kingdom Counsel, subject to the
condition that the Court should first hold that it was competent.
It has been very correctly decided in the Judgment that the
Court has not thereby been invested with jurisdiction to decide
on the merits.

In my view, it should be declared expressly that the Court
could assume the function of the Arbitral Commission as a result
of a Special Agreement between the two Governments. The
declarations of the Agents, or even of Counsel, in the course of
the proceedings, may suffice to establish the competence of the
Court, by a prorogation of jurisdiction. However, in the present
case, the Court holds that competence belongs to the Commission
of Arbitration provided for in the Protocol of 1886. In my opinion,
the Court could not agree to any derogation from the clause
contained in this inter-governmental agreement on the basis of
the mere declarations of Counsel ; nor could it admit that juris-
diction to adjudicate on the dispute has been transferred to it
by virtue of such declarations.

In short, in the submission which I have quoted from its
“Observations’’, the Greek Government envisages, in addition to
this proposal regarding the Court’s competence—which is unac-
ceptable—the continuation of the proceedings by a Repiy and a
Rejoinder. This is required by Articles 41, paragraph 2, and 62,
paragraph 5, of the Rules of Court, just as Articles 47 et sqq. call
for further oral argument.

In this second phase, the question whether the claim is based
on the Declaration of 1926 will be fully examined. One of the
points that will then have to be decided is that raised by Counsel
for the United Kingdom in his sixth argument, where he contended
that the alleged denial of justice committed in violation of the
general principles of international law did not constitute a violation
of the Treaty of 1886, because this Treaty contained no provi
to that effect. I agree that this question ought not te be decided
at the present stage of the proceedings, but not on the scound
that it has not yet been fully argued by the Parties. That on
by the Parties might be interpreted by the Court ; bur I consider
that it would not be a ground for failing to decide this question,

30

SION
INDIVIDUAL OPINION OF JUDGE LEVI CARNEIRO 52

if it were opportune to do so. In fact, it is because this question
pertains to the merits of the case that the Court cannot decide
it at this time. That is all the more true because it is not necessary
to consider this question in order to assert the Court’s jurisdiction.

There will still be a third phase if the Parties agree, only after
the end of the second phase, to confer the arbitral function upon
the Court.

The Court’s concern not to delay the proceedings cannot be
allowed to prevent this prolongation of the case if the Parties
do not find means of avoiding it.

6. The Court’s future decision on the merits, being confined to
a decision on the question whether the Ambatielos claim falls
within the framework of the Declaration of 1926, there is no
reason to fear that the judgment of the Commission of Arbitration
would conflict with such a decision. The only point which the
Court will have to decide will be the competence of that Com-
mission. It is clear that even the Commission itself could not
then declare that it lacks jurisdiction. If the Court should hold
the Commission competent, it will be for it to decide the sole
question of the validity of the Ambatielos claim. If the Com-
mission, its competence having thus been established by the
Court, refuses to decide this question, the Court will have to
order a new commission to be constituted. Something has been
said of the autonomy of the arbitral commissions ; in my view,
their autonomy is limited by the instrument which institutes
them—and in the present case that instrument is constituted
by the Judgment of this Court.

While not exceeding the limits of a decision as to its com-
petence, the Court should not reduce its decision to a doctrinal,
abstract or theoretical assertion; it must necessarily relate its
decision to the specific case. The Court’s jurisdiction is derived
from treaties, and from the features of the particular case before
it. And so the Court will definitively determine the extent of
its jurisdiction and that of any other organ which has to act in
the same case.

7. The most important of the questions submitted is, as has
been recognized in the Judgment, whether the Declaration annexed
to the Treaty of July 16th, 1926, is a patt of that Treaty. The
Court’s reasons in this connection are amply sufficient.

There is, however, I suppose, some doctrinal interest in empha-
sizing the juridical nature of this Declaration.

It is—it must be so described—according to a current expres-
sion, an “interpretative declaration”. Declarations of this sort
are often made bv one of the parties concerned to define the
attitude adopted towards a given treaty, a method of executing

31

INDIVIDUAL OPINION OF JUDGE LEVI CARNEIRO 53

it (Fenwick, International Law, p. 438 ; Oppenheim, International
Law, 6th edit., Vol. I, p. 787).

In the British Year Book of International Law (1948, pp. 201-
202), Mr. A. B. Lyons, referring to a declaration by the French
Government on the most-favoured-nation clause, observed that
the competent court had “held that the interpretative declaration
must be read with and deemed to form part of the text of the
treaty and was binding on the courts”.

The Declaration of 1926, which has been referred to, was signed
by the same representatives of the two Governments who were
signatories of the Treaty of the same date. It has the significance
of an authentic interpretation, embodied in the Treaty itself.
The Treaty consists of three parts—Articles, Customs Schedule
and Declaration.

Marcel Sibert has said that a declaration removes various
uncertainties from the principles which are considered as the
expression of the international law in force. Thus, the Declaration
embodied in the Treaty of 1926 removes some uncertainties in
regard to the application of that Treaty and of the earlier treaty
which it replaced.

It is true that the Declaration relates to the Treaty of 1886,
in that it saves claims—which have been or may yet be presented—
based on the provisions of that Treaty, and ensures the continuity
of their remedies in certain cases. Now, this safeguard only became
necessary because a new treaty made its appearance in 1926.
Thus, the Declaration restricted the application of the Treaty
of 1926 by providing that it should not apply to the cases it
mentioned. In virtue of that fact, it could be inserted in the new
treaty, and it forms an integral part thereof; it was so regarded
by the two Governments in their instruments of ratification.

From an intellectual, ideological and juridical point of view,
the Declaration forms part of the Treaty of 1926.

8. There is another consideration which supports that conclu-
sion : if it were not adopted, there would be no pre-established
procedure for the settlement of a dispute between the two Govern-
ments on the interpretation and application of the Declaration.

But such a situation must be avoided, more especially in the
case of two friendly nations—like Greece and the United King-
dom—which are united by their love of democracy and of peace :
they would not fail to provide for a friendly settlement of disputes
which might arise in connection with their two successive com-
mercial treaties. I could never believe that the United Kingdom
and Greece, having concluded two treaties, forty years apart, in
the operation of which there was no interruption, motivated by
the same solicitude for the safeguarding and assisting of their
respective nationals in the territory of the other State, and having
expressly provided, in two instruments, for the friendly settlement

32
INDIVIDUAL OPINION OF JUDGE LEVI CARNEIRO 54

of their disputes (Protocol annexed to the Treaty of 1886, Article 29
of the Treaty of 1926), should find themselves unable to agree
on the application of one of these Treaties, without there being
any solution for such disagreement, either by arbitration or by
recourse to some organ of international justice.

g. I consider such a situation all the more strange and unac-
ceptable because the progress of international law, in its efforts
to prevent war and promote internationa] co-operation, is above
all directed to the pacific settlement of disputes.

The interpretation and application of treaties constitute the
special domain of arbitration for the very reason that they give
rise to purely juridical questions. This was declared by the Second
Hague Conference in 1907 and in Article 13 of the Covenant of
the League of Nations and now, once more, in Article 36 of the
Court’s Statute.

If it is held that the Declaration of the 16th July, 1926, forms
part of the Treaty signed on that day, the difference regarding
the interpretation or application of that Declaration must be
settled by the International Court of Justice, in accordance with
Article 29 of the said Treaty in conjunction with Article 37 of
the Statute of the Court.

10. In regard to the retroactive application of procedural
provisions, and provisions relating to jurisdiction—which the
Court has rejected—-I venture to add that, in the sphere of inter-
national law, such an application can only be allowed when it
is expressly provided for. Even when the organ which was formerly
competent has been abolished, its powers cannot be regarded
as automatically transferred to the new organ which replaces
it. Thus, in order that this Court might inherit the powers of the
Permanent Court of International Justice, it was necessary that
this should be expressly laid down in Article 37 of the Statute.
But, in the Treaty of 1926, there is no provision abolishing the
Arbitral Commissions provided for in the Treaty of 1886. On the
contrary, there is nothing to prevent these Commissions from
being constituted, should that be necessary. From another point
of view, the Declaration annexed to the Treaty of 1926 expressly
maintains the means of settlement by arbitration, in accordance
with the Protocol annexed to the Treaty of 1886, of disputes
based on that Treaty; Article 29 of the Treaty of 1926 limits
the powers of the International Court to the settlement of disputes
as to the interpretation or application of any of the provisions
of the new treaty. The retroactive application of Article 29 would
not be justified and has been expressly excluded.

(Signed) LEVI CARNEIRO.

33