[p9] By a Resolution dated
May 12th, 1922, the Council of the League of Nations requested the Court, in
accordance with Article 14 of the Covenant, to give an advisory opinion on
the following question :
“Was the Workers' Delegate for the Netherlands at the Third Session of the
International Labour Conference nominated in accordance with the provisions
of paragraph 3 of Article 389 of the Treaty of Versailles ?”
 The request for an advisory opinion on this question was transmitted to
the Court by a letter from the Secretary-General of the League of Nations,
by virtue of authority received from the Council.
 In conformity with Article 73 of the Rules of Court, notice of the
request was given to the Members of the League of Nations through the
Secretary-General of the League, to the States mentioned in the Annex to the
Covenant and to the following organisations: [p11]
The International Association for the Legal Protection of Workers;
the International Federation of Christian Trades Unions, and
the International Federation of Trades Unions.
 The request was also communicated to Germany and Hungary.
 Finally, the Court decided to hear, at a public sitting, the
representatives of any Government and international organisation which,
within a fixed period of time, expressed a desire to be so heard. This
decision was brought to the knowledge of all the Members, States and
organisations mentioned above, and to the International Labour Office at
 The Court thus had at its disposal, when pronouncing its opinion, the
1) A letter from the Director of the International Labour Office to the
Secretary-General, dated March 17th, 1922, together with the Annexes
accompanying this letter.
2) A memorandum from the Netherlands Government, dated June 14th, 1922.
3) A memorandum from the Netherlands General Confederation of Trades Unions
(Algemeen Nederlandsch Vakverbond).
4) A telegram from the Swedish Government.
 The Court also heard oral statements:
1) on behalf of the British Government,
2) on behalf of the Netherlands Government,
3) on behalf of the International Federation of Trades Unions,
4) on behalf of the International Federation of Christian Trades Unions,
5) on behalf of the International Labour Office
 As a result of this information, the following facts are established:
 The Minister of Labour of the Netherlands, with the object of bringing
about the agreement prescribed, in Article 389, paragraph 3 of the Treaty of
Versailles, invited the [p13] five following Netherlands Labour
Organisations, which he regarded as the most important, to take part in a
consultation with regard to the nomination of the workers' delegate for the
third Session of the International Labour Conference:
1) The Netherlands Confederation of Trades Unions, numbering, in April 1921,
2) The Confederation of Catholic Trades Unions, numbering, in April 1921,
3) The Confederation of Christian Trades Unions, numbering in April 1921,
4) The Netherlands General Confederation of Trades Unions, numbering, in
April 1921, 51,195 members;
5) The National Labour Secretariat, numbering in January 1st, 1921, 36,038
 The last of the five organisations mentioned above refused to take part
in the consultation. The consultation did not lead to general agreement. The
second, third and fourth organisations mentioned agreed among themselves to
propose a candidate for nomination, while the Netherlands Confederation of
Trades Unions, on the other hand, considered itself entitled to propose the
 The Netherlands workers' delegate to the first and second Sessions of
the Labour Conference had been nominated from the Netherlands Confederation
of Trades Unions, either without opposition on the part of the other
organisations or with their express consent. The latter, organisations were,
on those occasions represented by technical advisers. The Minister, however,
when nominating the delegate for the second session of the Conference,
expressed the intention of selecting a member of one of the other
organisations as delegate on the next occasion, whilst at the same time
assuring the Netherlands Confederation that it would be represented by an
 The Minister accordingly proposed, in 1921, to choose one of the
technical advisers to the third session of the Conference from amongst the
members of the Netherlands Confederation of Trades Unions, whilst appointing
a candidate [p15] proposed by the other organisations as Workers' Delegate.
The Netherlands Confederation, however, would not fall in with this
 Thereupon, the Queen of the Netherlands, by a Royal Decree, dated
October 4th, 1921, appointed as Workers' Delegate the common nominee of the
 On October 22nd, 1921, the Netherlands Confederation of Trades Unions
sent a letter to the International Labour Office protesting against this
nomination. The Confederation maintained that the nomination constituted a
violation of the provisions of Article 389 of the Treaty of Versailles,
because the selected candidate was not selected in agreement with the
Netherlands Confederation, which taken singly had the largest number of
members, and was, on this account, the most representative organisation
within the meaning of the above mentioned Article.
 The Conference, however, admitted the Workers' Delegate appointed by
the Netherlands Government on the understanding that his admission should
not be treated as a precedent. At the same time it adopted the following
“The General Conference of the International Labour Organisation invites the
Governing Body of the Inter national Labour Office to request the Council of
the League of Nations to obtain, in accordance with Article 14 of the
Covenant of the League of Nations, from the Permanent Court of International
Justice an opinion as to the interpretation of Article 389 of the Treaty of
Versailles and as to the rules which should be observed by the Members of
the International Labour Organisation, in order to comply with the terms of
this Article in appointing non-Government Delegates and Advisers to the
Sessions of the General Conference.”
 In pursuance of this resolution, and under instructions from the
Governing Body of the International Labour Office, the Director of the
Office requested the Council of the League of Nations to obtain from the
Court an opinion upon the question whether the Workers' Delegate for the
[p17] Netherlands at the Third Session of the International Labour
Conference was nominated: in accordance with the provisions of paragraph 3
of Article 389 of the Treaty of Versailles.
 This request was favourably received by the Council, who decided to ask
the Court for an advisory opinion upon the above mentioned question.
 The Court gives its opinion as follows:
 Since the Netherlands Workers' Delegate to the Third Session of the
International Labour Conference was admitted by the Conference, the Court is
of opinion that, the sole object of the question submitted to it is to
obtain an interpretation of the provisions of paragraph 3 of Article, 389.
Though, according to the form given to the question by the Council of the
League of Nations, the method of procedure adopted by the Government of the
Netherlands for the nomination of the Workers' Delegate forms the subject of
the question, this is solely in order to fix clearly the state of facts to
which the interpretation has application.
 The passages material to be considered are the third and seventh
paragraphs of Article 389:
Paragraph 3. - “The Members undertake to nominate non-Government Delegates
and advisers, chosen in agreement with the industrial organisations, if such
organisations exist, which are most representative of employers or
work-people, as the case may be, in their respective countries.”
Paragraph 7. - “The credentials of Delegates and their advisers shall be
subject to scrutiny by the Conference, which may, by two-thirds of the votes
cast by the Delegates present, refuse to admit any Delegate or adviser whom
it deems not to have been nominated in accordance with this Article.”
 The Netherlands Confederation of Trades Unions, is, on the statements
before the Court, the most numerous, organisation of the kind in Holland.
 It would not necessarily follow that it is the most representative, but
for the purposes of this opinion it may be assumed to be so.
 The General Conference of Representatives of the Members of the
International Labour Organisation is composed of four representatives of
each of the Members, of whom two are to be Government Delegates, and the two
others are to be delegates representing respectively the employers and the
workpeople of each of the Members. (See the first paragraph of Article 389).
 There is no limitation upon the freedom of choice by the Government in
appointing the two Government Delegates, but with regard to the choice of
the non-Government Delegates a limitation is imposed. By the third paragraph
of Article 389 of the Treaty, the Members undertake that, if industrial
organisations exist in the country, the Member shall nominate
non-Government. Delegates chosen in agreement with the industrial
organisations which are most representative of employers or workpeople, as
the case may be, in their respective countries.
 The engagement contained in the third paragraph is not a mere moral
obligation. It is a part of the Treaty and constitutes an obligation by
which the Parties to the Treaty are bound to one another.
 The obligation is that the persons nominated should have been chosen in
agreement with the organisations most representative of employers or
workpeople, as the case may be. There is no definition of the word
"representative" in the Treaty. The most representative organisations for
this purpose are, of course, those organisations which best represent the
employers and the workers respectively. What these organisations are, is a
question to be decided in the particular case, having regard to the
circumstances, in each particular country at the time when the choice falls
to be made. Numbers are not the only test of the representative character of
the organisations, but they are an important factor; other things being
equal, the most numerous will be the most representative. The Article throws
upon the Government of the State the duty of deciding, on the data at its
disposal, [p21] what organisations are, in point of fact, the most
representative. Its decision on this question may however, be reviewed under
the seventh paragraph of this Article, and the Conference has the power, by
a two-thirds majority, to refuse to admit any delegate whom it deems not to
have been nominated in accordance with the Article. Such a refusal to admit
may be based on any grounds, either of fact or law, which satisfy the
Conference that the delegates have not been so-nominated.
 The Netherlands Government, whose good faith in this-matter has not
been contested, came to the conclusion that three organisations, the
Catholic Confederation, the Christian Confederation and the General
Confederation were collectively more representative of the workpeople of the
Nether lands than the Netherlands Confederation. The Government accordingly
nominated the delegate in agreement with those three organisations.
 Could the Netherlands Government dispense with an agreement with the
Netherlands Confederation of Trades Unions, and content itself with an
agreement with the three other organisations?
 In order to reply to this question, it must first of all be decided
whether the agreement must be with only one organisation.
 It was suggested that the third paragraph of Article 389 spoke of
organisations in the plural, only because it was dealing with the case of
the employers as well as with the case of the workers, and that what was
meant was that the Government, in nominating the employers' delegate, should
proceed in agreement with the views of the one organisation most important
amongst those representative of the employers, and in choosing the workers'
delegate,, in accordance with the views of the one organisation most
important amongst those representative of the workers.
 The Court cannot accept this interpretation.
 The view maintained by the Netherlands Confederation is not
sufficiently supported by the text of the Article, [p23] and it is at all
events obvious that the ideas inspiring the provisions of paragraph 3
clearly demonstrate that the only possible construction that can be given to
the word ”organizations” is that the plural refers as well to employers’ as
to workers’ organisations.
 In accordance with the terms of the first paragraph of Article 389, the
Workers' Delegate represents all workers belonging to a particular Member.
The only object of the intervention of industrial organisations, in
connection with the selection of delegates and technical advisers, is to
ensure, as far as possible, that the Governments should nominate persons
whose opinions are in harmony with the opinions of employers and workers
respectively. If, therefore, in a particular country there exist several
industrial organisations representing the working classes, the Government
must take all of them into consideration when it is proceeding to the
nomination of the workers' delegate and his technical advisers. Only by
acting in this way can the Government succeed in choosing persons who,
having regard to the particular circumstances, will be able to represent at
the Conference the views of the working classes concerned.
 The following example will show how widely the view maintained by the
Netherlands Confederation of Trades Unions differs from the spirit of
Article 389 of the Treaty of Versailles. In a given country there are six
organisations of workers, one with 110,000 members, and five others each
with a membership of 100,000. According to the view of the objectors to the
nomination made in the present case, the candidate proposed by the five last
organisations jointly would have to be discarded in favour of the candidate
of the first. One hundred and ten thousand workers would dictate to five
 Such a result is enough to condemn the interpretation which would make
it possible, and unequivocal terms would be required to compel its adoption.
Now the wording of the Article lends no support to such an interpretation.
 It has been contended that it would be advantageous if the delegate
were to represent a single organisation and [p25] not a group of
organisations, whose policies may differ. The Court confines itself to
observing that no suggestion to the effect that only one organisation should
be represented is anywhere to be found in the Treaty, which, on the
contrary, expressly refers, in the first paragraph of Article 389, to there
presentation of the workers of each particular country.
 The Netherlands Confederation of Trades Unions has also contended that;
even admitting that the text of paragraph 3 of Article 389 purports to
include several workers' and employers' organisations, the delegate was not
nominated in accordance with the provisions of the paragraph in question,
because an agreement with three organisations which do not include the most
numerous organisation, is not an agreement with the most representative
organisations. The meaning of this appears to be that if the plural
construction of the text is adopted, the agreement should be made with all
the most representative organisations. Even admitting that such an
interpretation is reconcilable with the letter of paragraph 3 of Article
389, it is clearly inadmissible. In order to realise this, it will suffice
to point out that the construction in question would make it possible for
one single organisation, in opposition to the wishes of the great majority
of workers, to prevent the reaching of an agreement. A construction which
would have this result must be rejected.
 The aim of each Government must, of course, be an agreement with all
the most representative organisations of employers and workers, as the case
may be; that, however, is only an ideal which it is extremely difficult to
attain, and which cannot, therefore, be considered as the normal case and
that contemplated in paragraph 3 of Article 389.
 What is required of the Governments is that they should do their best
to effect an agreement, which, in the circum stances, may be regarded as the
best for the purpose of ensuring the representation of the workers of the
 This is precisely what the Netherlands' Government did, when, after
failing to reach an agreement with all the industrial organisations which it
regarded as the most representative, it nominated the Workers' Delegate in
agreement with the organisations which, taken together, included a [p27]
majority of the organised workers of the country. This does not mean that
the fortuitous and temporary combination of three different organisations
was treated by the Netherlands Government as a single organisation which,
ipso facto, had become the most representative in place of the Netherlands
Confederation of Trades Unions. Such a fiction is in no way necessary in
order to explain and justify the action taken by the Government.
 For These Reasons,
The Court is of opinion that the Workers' Delegate for the Netherlands at
the third Session of the International Labour Conference was nominated in
accordance with the provisions of paragraph 3 of Article 389 of the Treaty
of Versailles, and therefore answers in the affirmative the question
referred to it.
 Done in French and English, the French text being authoritative, at the
Peace Palace, the Hague, this thirty-first day of July, one thousand nine
hundred and twenty-two, in two copies, one of which is to be placed in the
archives of the Court and the other to be forwarded to the Council of the
League of Nations.
(Signed) Ĺ. Hammarskjöld