Article 37(2) of the ILO Constitution: Can an ILO Interpretive Tribunal End the Hegemony of International Trade Law?

Article excerpt

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. …