By using these materials you acknowledge that you agree to the Terms & Conditions of Use available at http://www.worldcourts.com/index/eng/terms.htm

[1] [*9] By a Resolution adopted on May 12th, 1922, the Council of the League of Nations, in conformity with Article 14 of the Covenant, requested the Court to give an Advisory Opinion on the following question :

“Does the competence of the International Labour Organ­isation extend to international regulation of the conditions of labour of persons employed in agriculture?”

[2] By virtue of authority conferred by the Resolution, the request of the Council was transmitted to the Court by the Secretary-General of the League of Nations, by a letter dated at Geneva, May 22nd, 1922. Accompanying this letter there was a certified copy of the Resolution, and also a Memorandum prepared by the International Labour Office, which the Coun­cil had, by the same Resolution, requested to afford the Court all the assistance which it might require in the consideration of the question submitted to it.

[3] In conformity with Article 73 of the Rules of Court, notice [*11] 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:

The International Federation of Agricultural Trades Unions;

The International League of Agricultural Associations (Internationaler Bund der Landwirtschaftlichen Genossenschaften);

The International Agricultural Commission;

The International Federation of Christian Unions of Landworkers;

The International Federation of Land-workers; The International Institute of Agriculture at Rome;

The International Federation of Trades Unions; The International Association for the Legal Protec­tion of Workers;

The request was also communicated to Germany and Hungary.

[4] 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 of the International Labour Office at Geneva.

[5] The Court had at its disposal, when pronouncing its opinion, the following documents:

1)A certified copy of a letter (undated) from the Di­rector of the International Labour Office to the Secretary-General of the League of Nations, together with a note annexed thereto; also a supplementary note dated July 20th, 1922;

2)A certified copy of a letter dated June 13th, 1922, from the Foreign Minister of the Government of the French Republic to the Secretary-General of the League of Nations, together with a note from that Government, and a note annexed thereto from the: Society of Agriculturists of France; also a supplementary note dated [*13] July 14th, 1922, submitted by the representative of the French Government;

3)A letter dated June 15th, 1922, from the International Federation of Landworkers to the Permanent Court of International Justice;

4)A letter dated June 8th, 1922, from the President of the Central Association of French Agriculturists to the Vice-President of the Permanent Court of International Justice;

5)A letter dated June 19th, 1922, from the President of the International Institute of Agriculture to the Presi­dent of the Permanent Court of International Justice;

6)A note dated June 28th, 1922, addressed to the Court by the International Federation of Christian Unions of Landworkers;

7)A telegram from the Swedish Government, dated July 22nd, 1922;

8)A letter dated June 20th, 1922, from the Inter­national Federation of Agricultural Trades Unions to the Registrar of the Court;

9)A note dated July 6th, 1922, from the Italian Government.

[6] The Court also heard oral statements:

1)on behalf of the French Government;

2)on behalf of the British Government;

3)on behalf of the Portuguese Government;

4)on behalf of the Hungarian Government;

5)on behalf of the International Agricultural Com­mission;

6)on behalf of the International Labour Office;

7)on behalf of the International Federation of Trades Unions.

[7] The following facts are established:

[8] The General Conference, commonly known as the Inter­national Labour Conference, at its first session, at Washington [*15] in October and November, 1919, decided by a vote of 42 to 14 to place questions relating to agricultural labour on the agenda of a future Conference. The second session, at Genoa, in June and July, 1920, dealt mainly with the subject of seamen.

[9] In March, 1920, the Governing Body of the International Labour Office, which, under Article 400 of the Treaty, settles the agenda of the Conference, had included in the agenda of the third session, which was to be held in 1921, the following questions relating to the conditions of agricultural labour:

“2) Agricultural questions :—

a) The adaptation of the Washington decisions to agricultural labour :—

i. Regulation of the hours of work;

ii. Measures for the prevention of or providing against unemployment and its consequences;

iii. The protection of women and children.

b) Technical agricultural education;

c) Living-in conditions of agricultural workers;

d) Guarantee of the rights of association and combina­tion;

e) Protection against accident, sickness, invalidity and old-age.”

[10] The Swiss Government addressed to the Governing Body on January 7th, 1921, a letter drawing attention to the diffi­culties involved in the international regulation of the condi­tions of labour in agriculture, and proposing that these ques­tions be removed from the agenda, or that their consideration be at least deferred. The Governing Body, in reply, called attention to Article 402 of the Treaty, which provides that the Government of any of the Members may formally object to the inclusion of any item or items in the agenda, but that the grounds of such objections shall be set forth in a reasoned statement for circulation among all the Members of the Permanent Organisation, and that the items to which objec­tion is made shall not be excluded if at the Conference two-thirds of the Delegates present vote in favour of considering them. The Swiss Government did not pursue its request, [*17] but made answer to the questionnaire prepared by the Inter­national Labour Office, reserving the right to proceed under Article 402, if it should think this desirable.

[11] On May 13th, 1921, the French Government despatched to the International Labour Office a memorandum particu­larly referring to the regulation of hours of labour, and asking, on the ground that the discussion of the subject would be inopportune, that the question of agricultural labour be withdrawn from the agenda of the forthcoming Conference. On October 7th, 1921, however, the French Government with­drew this memorandum and filed another, in which, without abandoning the ground that the discussion of agricultural questions was inopportune, it requested that all such questions be withdrawn from the agenda, observing that the Treaty did not “make specific mention of agricultural workers”, and that, as doubts had been raised as to the competence of the International Labour Office in such matters, this should suffice for the postponement of all agricultural questions, pending an examination of that subject.

[12] In the final version of the agenda of the third session of the International Labour Conference which was held at Geneva in October 1921, the following items comprise the questions relating to agriculture contained in the original draft of the agenda :

2)Adaptation to agricultural labour of the Washing­ton decisions concerning the regulation of the hours of work.

3)Adaptation to agricultural labour of the Washing­ ton decisions concerning:—

a) Measures for the prevention of or providing against unemployment;

b) Protection of women and children.

4)Special measures for the protection of agricultural workers:—

a)Technical agricultural education;

b)Living-in conditions of agricultural workers; [*19]

c)Guarantee of the rights of association and combina­tion;

d)Protection against accident, sickness, invalidity and old-age.

[13] At the third meeting of the Conference on October 27th, 1921, a resolution was adopted by 74 votes to 20, reaffirming the competence of the Conference in matters of agricultural labour, and deciding to consider separately whether it was opportune to maintain on the agenda each of the questions above stated.

[14] At the meeting on October 28th, Question 2 was removed from the agenda, the vote for its retention standing 63 to 39, or less than the requisite two-thirds. On the following day, however, it was decided by a vote of 90 to 17 to retain Question 3, and by a vote of 93 to 13 to retain Question 4. The Con­ference then proceeded to appoint a Committee to consider these questions, together with certain draft conventions and recommendations; and on October 31st the Conference adopted a resolution, on the motion of the British, Italian and Nether­lands Delegations, to put the „regulation of hours of labour in agriculture" on the agenda of the next Conference. The Conference later adopted three draft conventions and seven recommendations concerning the protection of agricultural workers.

[15] At the 16th session of the Council of the League of Nations on January 13th, 1922, the representative of France presented, under instructions of his Government, a resolution to the effect that the Permanent Court of International Justice be requested to give an advisory opinion on the following questions:

“Is the International Labour Organisation competent to deal with questions of agricultural labour? If the reply is in the affirmative, how far do its powers extend in this matter?”

[16] The Council decided to postpone action upon this resolution to one of the succeeding sessions, instructing the Secretary-General to take the necessary measures for its future consider[*21]ation, including consultation with the International Labour Office and with the technical advisers of the Secretariat of the League.

[17] At the 18th Session, on May 12th, 1022, the Council decided to put the question now before the Court, which relates only to the competency of the Organisation, and not to the extent of that competency, if it exists.

*

**

On the facts thus set forth, the Court gives the following opinion :

[18] The question before the Court relates simply to the compet­ency of the International Labour Organisation as to agricul­tural labour. No point arises on this question as to the expediency or the opportuneness of the application to agriculture of any particular proposal.

[19] The Treaty of Peace between the Allied and Associated Powers, on the one hand, and Germany on the other, signed at Versailles on June 28th, 1919, is divided into fifteen Parts, of which Part XIII relates to Labour. Part XIII is composed of two sections, the first of which, opening with a Preamble, embraces Articles 387-426, while the second, consisting of Article 427, enunciates certain “General Principles”. Section I, which is entitled “Organisation of Labour”, provides for a “permanent organisation”, international in character, com­monly called the International Labour Organisation. This organisation consists (1) of a General Conference, to be held at least once a year, of Representatives o1 the Members of the International Labour Organisation, and (2) of an Inter­national Labour Office, controlled by a Governing Body.

[20] The Conference is composed of Delegates nominated by the Members of the Organisation, each Member being entitled to name four, two of whom are Government Delegates, and two non-Government Delegates, the latter “represent­ing respectively the employers and the workpeople of each [*23] of the Members”. Each Delegate may be accompanied by “advisers”, not exceeding two for each item on the agenda of the meeting (Article 389).

[21] The Governing Body of the International Labour Office consists of twenty-four persons, as follows: twelve “repre­senting the Governments”, six elected by the Delegates “representing the employers”, and six by the Delegates “representing the workers”, and it is provided that of the twelve persons representing the Governments, eight shall be named by the Members “of the chief industrial importance”. “Any questions as to which are the Members of the chief industrial importance shall be decided by the Council of the League of Nations.” (Article 393).

[22] In considering the question before the Court upon the language of the Treaty, it is obvious that the Treaty must be read as a whole, and that its meaning is not to be determined merely upon particular phrases which, if detached from the context, may be interpreted in more than one sense.

[23] It was much urged in argument that the establishment of the International Labour Organisation involved an abandon­ment of rights derived from national sovereignty, and that the competence of the Organisation therefore should not be extended by interpretation. There may be some force in this argument, but the question in every case must resolve itself 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.

[24] As Part XIII expressly declares, the design of the Contract­ing Parties was to establish a permanent labour organis­ation. This in itself strongly militates against the argument that agriculture, which is, beyond all question, the most ancient [*25] and the greatest industry in the world, employing more than half of the world’s wage-earners, is to be considered as left outside the scope of the International Labour Organisation because it is not expressly mentioned by name.

[25] The comprehensive character of Part XIII is clearly shown in the Preamble, which declares that “conditions of labour”, (conditions de travail), exist “involving such injustice, hardship and privation to large numbers of persons as to produce unrest so great that the peace and harmony of the world are imperilled”. An improvement of these conditions the Preamble declares to be urgently required in various par­ticulars, the examples given being (1) “the regulation of the hours of work, including the establishment of a maximum work­ing day and week”; (2) “the regulation of the labour supply”; (3) the “prevention of unemployment”; (4) the “provision of an adequate living wage”; (5) the “protection of the worker against sickness, disease and injury arising out of his employ­ment”; (6) the “protection of children, young persons and women”; (7) “provision for old-age and injury”; (8) “protec­tion of the interests of workers when employed in countries other than their own”; (9) “recognition of the principle of the freedom of association”; and (10) the “organisation of voca­tional and technical education”.

[26] The Preamble then goes on to state that the reason for dealing with the enumerated measures internationally is 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”. This in itself is as applicable to navigation as to any industry, and it is also applicable to some extent to fishing and to agriculture. The adoption of humane conditions of labour in any of these three industries might to some extent be retarded by the danger that such conditions would form a handicap against the nations which had adopted them and in favour of those which had not, in the competition of the markets of the world. [*27]

[27] “Moved”, then, so the Preamble declares, “by sentiments of justice and humanity as well as by the desire to secure the permanent peace of the world”, the High Contracting Parties proceeded, in the very next clauses of the Treaty (Articles 387, 388) to establish the “permanent organisation", “for the promotion of the objects set forth in the Preamble”.

[28] These are the terms in which the Treaty expressly defines the competence of the International Labour Organisation, and language could hardly be more comprehensive.

[29] The language (Article 389) regarding the composition of the General Conference is equally comprehensive. In each delegation there is to be a representative of the “workpeople", or, in the French text, travailleurs. This delegate, together with his advisers, is to be chosen by the Government in agree­ment with the “industrial organisations” most representative of the “workpeople”. The French text speaks of organi­sations professionnelles and of travailleurs without quali­fication. The word “industrial" in the English text is applic­able to agriculture, and the word professionnelles, the English for which in the Preamble is “vocational", is in its ordinary sense applicable to organisations of agricultural workers.

[30] So, when we come to Article 396, defining the functions of the International Labour Office, we find that they include “the collection and distribution of information on all subjects relating to the international adjustment of conditions of indus­trial life and labour”. The equivalent in the French text of the phrase “conditions of industrial life and labour” is conditions des travailleurs et regime du travail, the word industriel not being used.

[31] Further on, the Office is directed (Art. 396, paragraph 4) to publish “a periodical paper dealing with problems of industry and employment of international interest”. In the French text the equivalent of “employment” is the equally wide word travail. [*29]

[32] At the oral hearing there was much elaboration of the argument that Part XIII could not have been intended to comprehend agricultural labour, because certain of the general principles enunciated in its second section, which forms Article 427 of the Treaty, are inapplicable to agriculture.

[33] The general principles enunciated in Article 427 are (1) that “labour should not be regarded merely as a commodity or article of commerce”; (2) that the employed as well as em­ployers should enjoy “the right of association for all lawful purposes”; (3) that workers should be paid “a wage adequate to maintain a reasonable standard of life as this is understood in their time and country”; (4) that an 8-hour day or a 48-hour week should be adopted “as the standard to be aimed at where it has not already been attained”; (5) that “a weekly rest of at least 24 hours, which should include Sunday wherever practicable", should be adopted; (5) that “child labour” should be abolished, and such limitations imposed „on the labour of young persons as shall permit the continuation of their education and assure their proper physical development”; (7) “that men and women should receive equal remuneration for work of equal value”; (8) that “the standard set by law in each country with respect to the conditions of labour should have due regard to the equitable economic treatment of all workers lawfully resident therein”; (9) that “each State should make provision for a system of inspection, in which women should take part, in order to ensure the enforcement of the laws and regulations for the protection of the employed”.

[34] That most of these principles are as applicable to agricul­tural as to any other form of labour was not denied. It was not even suggested that, in agriculture, labour should be regarded merely as a commodity, that it should be forbidden to form associations, that it should not be adequately compensated, that it should be excepted from the rule of equal pay for work of equal value, that it was not to have the benefit of legal standards based on the equitable economic treatment of all [*31] resident workers. The principles to which objection has been made were the fourth, fifth, sixth and ninth.

[35] Were it material now to consider whether, or to what extent those principles are applicable to agricultural labour, it would be pertinent to point out, as a matter of common knowledge, that the general limitation of working hours and of child labour has already, even with regard to agriculture, in some measure been directly imposed by or has resulted from existing legislation, and that there are other industries, admittedly embraced in Part XIII, to which fixed and rigid limitations of that kind would be as difficult of application as to agriculture. But it is sufficient for the present question to say that this difficulty is fully recognised in the Treaty, and that, while no measure can be applied in any country that does not see fit to adopt it, there is nothing in Article 427 that enjoins the application of all the principles in their entirety by any particular nation, or at any particular time, or to any partic­ular kind of labour. On the contrary, their enunciation is introduced with the explicit declaration that the Contracting Parties “recognise that differences of climate, habits and cus­toms, of economic opportunity and industrial tradition, make strict uniformity in the conditions of labour difficult of im­mediate attainment”, but that, “holding as they do, that labour should not be regarded merely as an article of commerce, they think that there are methods and principles for regulating labour conditions which all industrial communities should endeavour to apply, so far as their special circumstances will permit”. And it is to be observed that the Treaty, in defining the powers of the General Conference, similarly provides (Article 405) that “in framing any recommendation or draft convention of general application, the Conference shall have due regard to those countries in which climatic conditions, the imperfect development of industrial organis­ations or other special circumstances make the industrial conditions (French text les conditions de l’industrie ) [*33] substantially different, and shall suggest the modifications, if any, which it considers may be required to meet the case of such countries”. It is obvious that these clauses are in their terms applicable to agriculture.

[36] But, recurring to Article 427, its terms leave the Court in no doubt as to its comprehensive character. The first paragraph takes pains to recite that the “permanent machinery” provided in Part XIII is concerned with “the well-being, physical, moral and intellectual”, of “industrial wage-earners”, or, as the French text reads, travailleurs salariès. Here there is no limitation or qualification. Nor was any to be expected, in view of the fact heretofore pointed out, that Part XIII, at the very outset, had broadly declared that the concern of the permanent organisation was the amelioration of the “conditions of labour” (conditions de travail).

[37] The argument for incompetence is found, on analysis, to rest almost entirely upon the contention that, because the words Industrie and industrielle, which ordinarily refer to manufactures, occur in the French text of certain clauses, Part XIII as a whole must now be confined within that limit.

[38] Before considering this contention in detail, it may be helpful to examine the senses in which these words are used.

[39] In the French dictionary by Littrè, we find, under Industrie, the following:

“4. Nom sous lequel on comprend toutes les opérations qui concourent à la production des richesses : I'industrie agricole, l’industrie commerciale et l'industrie manufacturière. L'industrie agricole s'applique principalement à provoquer l’action produc­tive de la nature ou à en recueillir les produits. . . . L'industrie se dit quelquefois de tons les arts industriels, sauf l’agriculture, par opposition à l'agriculture.” [*35]

[40] The adjective industriel, industrielle, in the same dic­tionary, is defined as signifying qui appavtient a l’industrie, and, while there can be no doubt that it is generally used in a special and restrictive sense, the question here is in what sense, reading the Treaty as a whole, it should be understood.

[41] By Article 440 of the Treaty, it is provided that the English and French texts „are both authentic" (feront foi).

[42] In the Oxford Dictionary, among the definitions of „indus­try" we find :

“4. Systematic work or labour; habitual employment in some useful work, now esp. in the productive arts or manufac­tures. (This, with 5, is the prevalent sense). ... 5. A particular form or branch of productive labour; a trade or manufacture.”

[43] In the same dictionary, the adjective “industrial” is first defined : “A. adj. pertaining to, or of the nature of industry or productive labour resulting from industry.” In the exam­ples given, the phrase “industrial fruits” if defined as “fruits grown or cultivated by human industry”. As a substantive, “industrial” is defined as “one engaged in industrial pursuits”, and the first example given is from the Pall Mall Gazette of 16th August, 1865, where we find this classification : “com­mercials. . . . agriculturists. . . . and industrials”.

[44] Evidently, the function of the French words industrie and industriel is not essentially unlike that of the English words “industry" and “industrial”. Though used in a restricted sense in opposition to agriculture, in their primary and general sense they include that form of production. At the present day the adjective is, especially in French, most commonly used in relation to the arts or manufactures, and would ordinarily be so understood, unless the context indicated that it was to be interpreted otherwise. But the context is the final test, and in the present instance the Court must consider the position in which these words are found and the sense in which they are employed in Part XIII of the Treaty of Versailles. [*37]

[45] As to their position, it will be observed that, in the Preamble, by which the field of activity of the International Labour Organisation is defined, they do not occur at all. There the fundamental words are “conditions of labour” — conditions de travail. So, as has been seen in the description of the organ­isation in agreement with which the Governments are to choose the work-peoples’ delegates and their advisers, the word professionnelles, which, beyond all question, is wide enough to include all forms of industry, is used. Again, in Article 409, relating to complaints made to the International Labour Office by “an industrial association of employers or of work­ers”, as to default by a Member in enforcing a convention, the French text speaks of une organisation professionnelle ouvrière ou patronale.

[46] Turning now to clauses containing the word industrielle, reference may first be made to Article 412 which provides for the formation of a panel from which a Commission of Enquiry may be drawn for the purpose of investigating a complaint made by a Member of the Organisation that another Member is not securing the effective observance of any Con­vention which both have ratified in accordance with Part XIII.

[47] The Article provides that the panel shall be composed of “persons of industrial experience”, the French text reading: personnes compètentes en matières industrielles. Taking this phrase in connection with the rest of the Treaty, the natu­ral inference would appear to be that the phrase matières industrielles was intended to include the industry of agri­culture. But, even if it were not so read the consequences would be that there would seem to be merely a defect in the constitution of the machinery in this particular instance, and not that the powers given to the international organisation with regard to conditions of labour were to be similarly limited.

[48] But the chief stress in the argument was placed on the use [*39] of the phrase importance induslrielle, in Article 393, and the phrase communautès industrielles, in Article 427.

[49] As has already been seen, Article 393 provides that the eight persons representing the Governments in the Governing Body of the International Labour Office shall be named by Members, as the English text reads, “of the chief industrial importance”, and, as the French text reads, dont l’importance industrielle est la plus considèrable. In Article 427 the phrase “industrial communities”, and in the French text, communautès industrielles, occurs in an expression of opinion, at the close of the Article, that the general principles enunciat­ed in it will, if adopted and applied by “industrial communi­ties” (communautès industrielles), confer lasting benefits upon “the wage-earners of the world”.

[50] In the arguments against the inclusion of agriculture, the Court thinks that too much importance has been attached to the occasional use in the Treaty of the French adjective industriel. The word professionnel which has been used in other clauses for the purpose of clearly including agri­culture, is not applicable in all connections. For instance, in Article 393, importance professionnelle would be too wide in its meaning and industrielle is used to take the place of the English word “industrial”. It was in truth difficult to find for this purpose any word in French which would not be open to objection as either too wide or too narrow.

[51] As regards the inclusion of agriculture, the Court is unable to find in Part XIII read as a whole any real ambiguity. The Court has no doubt that agricultural labour is included in it. If there were any ambiguity, the Court might, for the purpose of arriving at the true meaning, consider the action which has been taken under the Treaty. The Treaty was signed in June, 1919, and it was not until October, 1921, that any of the Con­tracting Parties raised the question whether agricultural labour fell within the competence of the International Labour Organisation. During the intervening period the subject of agriculture had repeatedly been discussed and had been dealt [*41] with in one form and another. All this might suffice to turn the scale in favour of the inclusion of agriculture, if there were any ambiguity.

[52] Every argument used for the exclusion of agriculture might with equal force be used for the exclusion of navigation and fisheries. As has been pointed out already in this opinion, the second session of the International Labour Conference was almost entirely devoted to seamen. And in that session a recommendation was also made on June 30th, 1920, for the limitation of hours of work in the fishing industry. It was never even suggested that either of these great industries was not within the competence of the Labour Organisation.

[53] Much prominence was given in the written and oral argu­ments to the preparatory work of the Commission on Inter­national Labour Legislation, by which Part XIII of the Treaty was formulated and submitted to the Peace Conference. Questions were raised by counsel for the French Government, especially in a written memorandum filed with the Court after the close of the oral hearings, as to the admissibility of this kind of evidence in the present instance, the contention being, in substance, that, as the terms of the Treaty clearly excluded the claim of competence, there was no room for the consider­ation of extrinsic evidence to the contrary, and that Powers who took no part in the preparatory work were invited to accede to the Treaty as it stood, and did so accede. The Court does not think it necessary to discuss these contentions, as it has already on the construction of the text itself reached the con­clusion that agricultural labour is within the competence of the International Labour Organisation, and there is certainly nothing in the preparatory work to disturb this conclusion. [*43]

FOR THESE REASONS:

[54] The Court is of opinion that the competence of the Inter­national Labour Organisation does extend to international regu­lation of the conditions of labour of persons employed in agricul­ture, and therefore answers in the affirmative the question referred to it.

[55] Done in English and French, the English text being authoritative, at the Peace Palace, The Hague, this twelfth day of August, 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) Loder,

President.

(Signed) Å. Hammarskjöld,

Registrar.

[56] M. Beichmann, deputy-judge, took part in the deliberations of the Court concerning the present opinion, but was com­pelled to leave for Norway before the terms of the opinion were finally settled.

[57] M. Weiss, Vice-President, and M. Negulesco, deputy-judge, availing themselves of the right accorded them under Article 71 of the Rules of Court, declare that they are unable to concur in the opinion given by the Court.

(Initialled) L.

(Initialled) A. H.