General List No. 48

Advisory Opinion No. 25

 15 November 1932

 

PERMANENT COURT OF INTERNATIONAL JUSTICE

Twenty-Sixth Session

 

Interpretation of the Convention of 1919 concerning Employment of Women during the Night

 

Advisory Opinion

 
BEFORE: President: Adatci
Vice-President: Guerrero
Judges: Baron Rolin-Jaequemyns, Count Rostworowski, Fromageot, Anzilotti, Urrutia, Sir Cecil Hurst, Schücking, Negulesco, Jhr.Van Eysinga
 
    
Perm. Link: http://www.worldcourts.com/pcij/eng/decisions/1932.11.15_women.htm
  
Citation: Interpretation of Convention of 1919 concerning Employment of Women during Night, Advisory Opinion, 1932 P.C.I.J. (ser. A/B) No. 50 (Nov.15)
Publication: Publications of the Permanent Court of International Justice Series A./B. No. 50 Collection of Judgments, Orders and Advisory Opinions A.W. Sijthoff’s Publishing Company, Leyden, 1932.
  
 

  

[p365] THE COURT,
composed as above,
gives the following opinion: [p366]

[1] On May 9th, 1932, the Council of the League of Nations adopted the following Resolution:

”The Council of the League of Nations has the honour to request the Permanent Court of International Justice, in accordance with Article 14 of the Covenant, to give an advisory opinion upon the following question:

Does the Convention concerning employment of women during the night, adopted in 1919 by the International Labour Conference, apply, in the industrial undertakings covered by the said Convention, to women who hold positions of supervision or management and are not ordinarily engaged in manual work?

The Council authorizes the Secretary-General to submit the present request to the Court, to give all assistance necessary in the examination of the question, and, if necessary, to take steps to be represented before the Court.
The International Labour Office is requested to afford the Court all the assistance which it may require in the consideration of the question hereby submitted.”

[2] In pursuance of this Resolution, the Secretary-General of the League of Nations, on May 10th, 1932, transmitted to the Court 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 May 9th, 1932, 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 question which is referred to the Court by the Resolution of May 9th,1932.
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.”

[3] The request was registered in the records of the Registry of the Court on May 12th, 1932. To the request was appended, inter alia, the text of the Convention concerning employment of women during the night, and the report upon which [p367] the Council adopted the above-mentioned Resolution of May 9th, 1932; subsequently, the relevant extract from the Council minutes was also sent to the Court.

[4] Under cover of a letter dated June 6th, 1932, the Secretary-General further sent to the Registrar a number of documents relating to the request for an advisory opinion, collected by the International Labour Office.[FN1] These documents have been duly placed at the disposal of members of the Court.

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[FN1] See list in Annex
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[5] In conformity with Article 73, paragraph 1, sub-paragraph 1, of the Rules of Court, the request was communicated to Members of the League of Nations (through the Secretary-General of the League of Nations) and to other States entitled to appear before the Court. Furthermore, the Registrar, by means of a special and direct communication dated May 21st, 1932, drew the attention of the governments of States which had ratified the Convention of 1919 concerning the employment of women during the night, to the terms of Article 73, paragraph 1, sub-paragraph 3, of the Rules. As a result of this communication, the Government of the United Kingdom of Great Britain and Northern Ireland informed the Registrar, by a letter of June 11th, 1932, that it desired to be represented before the Court in this case. The Court decided to grant this request.

[6] The Registrar, by letters dated May 27th, 1932, also sent to four international organizations considered by the President - the Court not being in session - as likely to be able to furnish information on the question referred to the Court for advisory opinion, the special and direct communication mentioned in Article 73, paragraph 1, sub-paragraph 2, of the Rules; of these organizations - namely, the International Labour Organization, the International Federation of Trades Unions, the International Confederation of Christian Trades Unions and the International Organization of Industrial Employers - the first three stated that they desired to submit written and oral statements to the Court.

[7] By an Order made on May 27th, 1932, the President of the Court - the latter not being in session - fixed August 1st, 1932, as the date by which written statements upon the [p368] question might be filed with the Registry by the interested States and Organizations, and September 12th, 1932, as the date by which second written statements, if in due course admitted, might be filed.

[8] On August 4th, 1932, the Court decided, in the first place, to allow the filing, within the time thus fixed, of second written statements by the States or organizations which had already filed such statements and, in the second place, that the other States and organizations which had been notified of the I request might, if they so desired, be permitted to submit a statement within the same time-limit. In pursuance of this decision, the President of the Court - the latter not being in session - by an Order made on September 6th, 1932, granted a request made by the German Government for permission to submit a written statement; by the same Order, the President extended until September 20th, 1932, the time-limit which was to have expired on September 12th.

[9] Statements were filed on behalf of the Government of the United Kingdom and of the German Government, as well as by the International Labour Organization, the International Federation of Trades Unions and the International Confederation of Christian Trades Unions.

[10] The statements of the International Confederation of Christian Trades Unions and of the German Government were filed after the expiration of the time-limit, but the President, exercising the powers conferred upon him by Article 33 of the Rules, decided to accept them.

[11] The above-mentioned Governments and Organizations were also represented before the Court, which, in the course of public sittings held on October 14th, 1932, heard the oral arguments submitted by Mr. A. P. Fachiri, Counsel, on behalf of the Government of the United Kingdom, Dr. J. Feig, Assistant Agent, on behalf of the German Government, Mr. Phelan, Head of the Diplomatic Division of the International Labour Office, on behalf of the International Labour Organization, M. Serrarens on behalf of the International Confederation of Christian Trades Unions, and by M. Schevenels on behalf of the International Federation of Trades Unions. [p369]

[12] In addition to the statements and observations of the interested Governments and Organizations and the documents transmitted by the Secretary-General, as stated above, the Court has had before it certain documents collected on its own behalf.

[13] The submission of the case being in all respects regular, these are the circumstances in which the Court is now called upon to give its opinion.

***

[14] The Council of the League of Nations submitted to the Court the question forming the subject of the present advisory opinion at the instance of the Governing Body of the International Labour Office. The circumstances which led the Governing Body to take steps to obtain an advisory opinion from the Court on this point may be summarized as follows:

[15] Pursuant to Article 424 Of the Treaty of Versailles, the first meeting of the "International Labour Conference", the creation of which was provided for in Part XIII of the Treaty, was to take place in October 1919; according to an annex to Article 426, the Conference was to meet at Washington and its agenda was to include the following points: “(3) Women's employment: … (b) during the night; … (5) Extension and application of the international conventions adopted at Berne in 1906 on the prohibition of night work for women employed in industry…”

[16] Although the Treaty of Versailles had not yet come into force, the Conference was held as provided in Article 424 of the Treaty. On November 28th, 1919, it adopted, in accordance with the procedure laid down in Part XIII of the Treaty of Versailles, a draft convention concerning employment of women during the night; in accordance with Article 11, this Convention came into force, so far as concerned the first Members of the International Labour Organization which had registered their ratifications with the Secretariat of the League of Nations, on June 13th, 1921. It contains, inter alia, the following clause: [p370]

“Article 3. Women without distinction of age shall not be employed during the night in any public or private industrial undertaking, or in any branch thereof, other than an undertaking in which only members of the same family are employed.”

[17] Under Article 408 of the above-mentioned Treaty, “each of the Members [of the International Labour Organization] agrees to make an annual report to the International Labour Office on the measures which it has taken to give effect to the provisions of conventions to which it is a Party”.

[18] As regards Great Britain, the Convention concerning employment of women during the night came into force, under the terms of its eleventh article, on July 14th, 1921, the date on which the ratification of the Government of the United Kingdom was registered with the Secretariat of the League of Nations. In its report for the year 1928, the Government of the United Kingdom pointed out that the application of the Convention in Great Britain gave rise to difficulty: in the view of that Government, the above-quoted clause must have the effect of debarring women altogether from entering upon certain employments in which continuous working is necessary; in this connection was cited the case of female engineers who were precluded from holding certain posts in electrical power undertakings, by reason of the fact that they were prohibited from working at night.

[19] This observation led to the submission of a suggestion to the Governing Body of the International Labour Office to the effect that that Body should bear it in mind “in the event of revision of the Convention being subsequently contemplated”. Under the terms of the Convention, the Governing Body could decide, before 1931, to refer to the Conference the question of the desirability of undertaking such revision. In this connection, the Government of the United Kingdom informed the International Labour Office, in June 1930, that the British representative on the Governing Body would propose that the possibility of revising the Convention on the point in question should be further considered. A proposal to this effect was actually made, and on June 28th, 1930, the Governing Body decided that the question of placing the [p371] revision of the Convention on the agenda of the Conference should be considered and also decided to draw the special attention of the governments, which were to be consulted regarding such revision, to the question of the "distinction to be made between working women and women employed in a supervisory capacity ".

[20] The consultation of the governments revealed the existence of a great divergence of views, both as to the interpretation to be placed on Article 3 of the Convention concerning employment of women during the night and as to the desirability of undertaking the revision of this article.

[21] Nevertheless, as a result of this consultation, the Governing Body decided, in January 1931, to place on the agenda of the Conference the revision of the Convention by means of the insertion of a clause to the effect that it “does not apply to persons holding positions of supervision or management”. No objection having been raised, this item was finally included in the agenda (Art. 400 and 402 of the Treaty of Versailles).

[22] Accordingly, the Conference, which met in May, 1931, prepared a new text of the Convention concerning employment of women during the night, revised on this point inter alia, the original wording of Article 3 being replaced by the following: “This Convention does not apply to persons holding a responsible position of management, who do not ordinarily perform manual work.” The revised text of the Convention was not adopted, as it failed to obtain a two-thirds majority (Art. 405 of the Treaty of Versailles). The proposal for the revision of Article 3 of the Convention was therefore rejected.

[23] According to the written Statement submitted to the Court on behalf of the International Labour Organization, as the result of the foregoing, “one thing alone remained clear: and that was that the terms of the Convention were interpreted in two very different ways. Some governments read into Article 3 a prohibition against night work for all women. Others thought they were entitled to exempt certain categories of working women from the application of the Convention.”

[24] In view of this situation, the British Government considered that it was extremely desirable that steps should be taken to [p372] obtain an authoritative ruling on the point, and it accordingly proposed to the Governing Body of the International Labour Office, in a letter of January 20th, 1932, that the Court should be asked to give an advisory opinion on the following question:

“Does the Draft Convention concerning the employment of women at night apply to women employed in the industrial undertakings covered by the Draft Convention who hold positions of supervision or management and are not ordinarily engaged in manual work?”

[25] The intention of the British Government was that the Governing Body should adopt the British proposal and should decide to ask the Council of the League of Nations to obtain the desired opinion from the Court.

[26] The Governing Body took this course. On April 6th, 1932, it decided to ask the Council of the League of Nations to submit to the Court a request for and advisory opinion on the point raised by the British proposal. On April 29th, the Director of the International Labour Office communicated this decision to the Secretary-General of the League of Nations, and the Council of the League, complying with the request of the Governing Body, adopted its above-mentioned Resolution of May 9th, 1932.

[27] These are the circumstances in which the question has been submitted to the Court.

***

[28] The question upon which the Court is asked to advise is worded as follows:

“Does the Convention concerning employment of women during the night, adopted in 1919 by the International Labour Conference, apply, in the industrial undertakings covered by the said Convention, to women who hold positions of supervision or management and are not ordinarily engaged in manual work?”

[29] The important article of the Convention is Article 3, which provides as follows: [p373]

“Women without distinction of age shall not be employed during the night in any public or private industrial undertaking, or in any branch thereof, other than an undertaking in which only members of the same family are employed.”

[30] The doubt which has arisen in connection with the interpretation of the article is whether or not it was mean to apply to certain categories of women other than manual workers.

[31] The wording of Article 3, considered by itself, gives rise to no difficulty; it is general in its terms and free from ambiguity or obscurity. It prohibits the employment during the night in industrial establishments of women without distinction of age. Taken by itself, it necessarily applies to the categories of women contemplated by the question submitted by the Court. If, therefore, Article 3 of the Washington Convention is to be interpreted in such a way as not to apply to women holding posts of supervision and management and not ordinarily engaged in manual work, it is necessary to find some valid ground for interpreting the provision otherwise than in accordance with the natural sense of the words.

[32] The terms of Article 3 of the Washington Convention, which are in themselves clear and free from ambiguity, are in no respect inconsistent either with the title, or with the Preamble, or with any other provisions of the Convention. The title refers to “employment of women during the night”. The Preamble speaks of “women’s employment during the night”. Article 1 gives a definition of an “industrial undertaking”. Article 2 states what is scope of Article 3, which provides that “women shall not be employed during the night either in any public or private industrial undertaking, or in any branch thereof.”

[33] The question which the Court is now called upon to answer amounts therefore to deciding whether there exist, in respect of this Convention concerning the employment of women during the night, good grounds for restricting the operation of Article 3 to women engaged in manual work. [p374]

*

[34] The first ground which the Court has considered is whether any such restriction results from the fact that the Convention is a Labour convention, i.e. one prepared within the framework of Part XIII of the Treaty of Versailles of 1919, and in accordance with the procedure provided for therein, and whether in consequence a clause, such as Article 3, which is couched in general terms, must be interpreted as intended to apply only to manual workers, upon the ground that it was the improvement of the lot of the manual worker which was the principal object of Part XIII.

[35] No question arises as to the validity of the Convention. It could not be maintained that the Convention is not valid on the ground that its terms are wide enough to cover persons other than those engaged in manual work.

[36] But the Court has considered whether it could be maintained that, in view of the fact that the improvement of the lot of the manual worker was the aim of Part XIII, a provision in a Labour convention couched in general term must be assumed to be intended to apply only to manual workers unless the opposite intention is made manifest by the terms of the Convention. This would be tantamount to saying that, as no such contrary intention is shown to exist in the case of this Convention, Article 3 must be regarded as applying only to manual workers.

[37] The Court holds that it would not be sound to argue thus.

[38] It is certainly true that the amelioration of the lot of the manual worker was the main preoccupation of the authors of Part XIII of the Treaty of Versailles of 1919; but the Court is not disposed to regard the sphere of activity of the International Labour Organization as circumscribed so closely, in respect of the persons with which it was to concern itself, as to raise any presumption that a Labour convention must be interpreted as being restricted in its operation to manual workers, unless a contrary intention appears.

[39] The Court has already had occasion to consider some aspects of the question concerning the limits of the sphere of activity [p375] of the International Labour Organization in its Advisory Opinions Nos. 2 and 3 of August 12th, 1922, and No. 13 of July 23rd, 1926. These Opinions, it is true, dealt with questions relating to the competence of the Organization, whereas the point which is under consideration at the moment relates to the interpretation of an instrument whose validity is not questioned; but the principles underlying these earlier decisions throw light on the question whether there is any solid foundation for the suggested rule of interpretation.

[40] To justify the adoption of a rule for the interpretation of Labour conventions to the effect that words describing general categories of human beings such as "persons" or "women" must prima facie be regarded as referring only to manual workers, it would be necessary to show that it was only with manual workers that the Labour Organization was intended to concern itself.

[41] An examination of the Opinions referred to above is sufficient to show that the limits of the sphere of the Labour Organization are not fixed with precision or rigidity in Part XIII, and a study of the text of Part XIII provides ample material for arriving at the same conclusion.

[42] The words used in the Preamble and in the operative articles of Part XIII - both in the French and English texts - to describe the individuals who are the subjects of the International Labour Organization's activities are not words which are confined to manual workers. The words used are "travailleurs", "workers", "workpeople", "travailleurs salariés", "wage-earners", words which do not exclude employed persons doing non-manual work, as perhaps might have been held to be the case if the words used had been "ouvrier" or "labourer". In this connection, the wording of Article 393 - providing for the election of Members of the Governing Body of the International Labour Office - is noteworthy. In paragraph 5 of that article, the word "workers" in the English text is represented by "employés et ouvriers" in the French text.

[43] The text, therefore, of Part XIII does not support the view that it is workers doing manual work - to the exclusion of [p376] other categories of workers - with whom the International Labour Organization was to concern itself. This being so, the fact that the Washington Convention is a Labour convention does not provide sufficient reason for interpreting "women" in Article 3 of that Convention as confined to women doing manual work.

*

[44] It has further been maintained that the circumstances in which the Convention was adopted at Washington afford sufficient reason for confining the operation of Article 3 to female workers doing manual work. The argument is as follows:

[45] The business before the Washington Conference in 1919 was (as regards this subject of the employment of women at night) that of the extension and application of the Berne Convention of 1906 on the prohibition of night work for women employed in industry. As the Berne Convention covered only women engaged in manual work, Article 3 of the Washington Convention, however general in its terms, must be interpreted in the light of the corresponding provision in the Berne Convention, and must be restricted to female workers. The limitation in the meaning of Article 3 results, according to this view, from the work in which the Washington Conference was engaged. The Convention should be read in the light of the agenda of the Conference as fixed by Part XIII of the Treaty of Versailles. This argument is not based on the "preparatory work" or travaux préparatoires of the Convention, but on the fact that the programme of the Conference was fixed and on the contents of that programme.

[46] The weakness of this line of argument is that the agenda of the Washington Conference as laid down in Part XIII contained two items, each of which would cover the Convention concerning employment of women during the night. Item 3 was: "Women's employment . . . (b) during the night." Item 5 was: "Extension and application of the international conventions adopted at Berne in 1906 on the prohibition of [p377] night work for women employed in industry...” The text of the Convention as adopted made no reference to the Berne Convention. The third paragraph of the Preamble of the Washington Convention connects this Convention with the third item in the agenda and not with the fifth; this paragraph runs as follows: "Having decided upon the adoption of certain proposals with regard to ‘women's employment during the night’, which is part of the third item in the agenda for the Washington meeting of the Conference…”

[47] The Washington Convention cannot therefore be said, by reason of the work on which the 1919 Conference was engaged, to be so intimately linked with the Berne Convention as to require that the terms of the Washington Convention should bear the same meaning as the terms of the Berne Convention.

[48] What the Court has said above must however not be taken to express any opinion as to what is the correct interpretation of the Convention of Berne. That question has not been referred to the Court, and is not relevant to the question upon which the Court is asked to advise, unless it can be established that the interpretation of the Washington Convention is controlled by the terms of the Convention of Berne.

*

[49] It has been stated that in 1919, when the Convention was adopted at Washington, very few women actually held positions of supervision or management in industrial undertakings, and that the application of the Convention to women holding such posts was never considered. Even if this were so, however, it does not by itself afford sufficient reason for ignoring the terms Convention. The mere fact that, at the time when the Convention Work of Women was concluded, certain facts or situations, which the terms of the Convention in their ordinary meaning are wide enough to cover, were not thought of, does not justify interpreting those of its provisions which are general in scope otherwise than in accordance with their terms. [p378]

*

[50] The grounds considered above upon which it has been suggested that the natural meaning of the text of the Convention can be displaced, do not appear to the Court to be well founded.

*

[51] The Court has been so struck with the confident opinions expressed by several delegates with expert knowledge of the subject at Geneva during the discussions in 1930 and 1931 on the proposal to revise the Washington Convention on Night Work of Women to the effect that the Convention applied only to working women - ouvrières -, that the Court has been led to examine the preparatory work of the Convention in order to see whether or not it confirmed the opinions expressed at Geneva.

[52] In doing so, the Court does not intend to derogate in any way from the rule which it has laid down on previous occasions that there is no occasion to have regard to preparatory work if the text of a convention is sufficiently clear in itself.

[53] The history of this Convention as shown by the preparatory work is as follows:

[54] The task of organizing the First Labour Conference was entrusted to an international Committee, the membership of which, like the agenda of the Conference, was fixed by Part XIII of the Treaty of Versailles. The recommendation of this Organizing Committee was that the Conference should urge all States, Members of the League of Nations, to accede to the Convention of Berne.

[55] A Committee was appointed by the Conference to deal with the subject of the employment of women. As regards the employment of women by night, this Committee went beyond the proposals of the Organizing Committee and recommended a new convention which was to supersede that of Berne, but was to follow it in outline, while effecting a series of changes [p379] which are indicated in the Committee's report. Whether it was the intention of the members of the Committee that the new convention which they recommended for adoption should follow so closely the Convention it was to supersede as to carry into the new convention any agreed interpretation of phrases and words in the old Convention, is a matter which the Committee's report is insufficient to determine. As many phrases can be found which tell one way as the other. On the other hand, the wording of the report does not seem sufficient to show that the word “women” is used in the sense of “ouvrières”. To be exact, in the French text only, six times words are used which are consistent with the view that “femmes” means “femmes”, and not “ouvrières”, and once only the word used is "ouvrières ", and that only in the general statement at the end of the report that an effective prohibition of night work for women will constitute a marked progress in the “protection de la santé des ouvrière”. As to this last sentence, it is well to note that the French and English texts do not correspond, that the English word is the phrase "women workers", and that Miss Smith, who submitted the report, was English and used her own language.

[56] The report of the Committee was adopted unanimously and was referred to the Drafting Committee of the Conference with instructions to prepare a new convention on the lines of the Convention of Berne, embodying the amendments adopted, and to add new formal paragraphs.

[57] The Drafting Committee submitted to the Conference at one and at the same time the text of the proposed convention on night work, together with that of four others. The speech made on behalf of the Drafting Committee in submitting these draft texts to the Conference shows that the members of that Committee attached importance to the various conventions being uniform. The Rapporteur said: “In so far as possible, these conventions have been drafted along uniform lines. … In drafting the substantive parts of [p380] the various draft conventions, the Drafting Committee has employed standard expressions whenever the use of these expressions has not interfered with the meaning of the report or the draft referred to this Committee by the Conference. The Drafting Committee wishes to suggest to the Conference that it is of the highest importance that such uniformity should be observed as far as possible, in order that there may be no confusion in the future concerning the legal results which flow from these draft conventions.”

[58] The text submitted by the Drafting Committee was unanimously adopted by the Conference.

[59] The fact that the Preamble of the Convention as prepared by the Drafting Committee attached this Convention to item 3 in the agenda (Women’s employment … during the night) and not to item 5 (Extension and application of the Convention of Berne) has been noted above, page 377.

[60] The impression derived from a study of the preparatory work is that, though at first the intention was that the Conference should not deviate from the stipulations of the Berne Convention, this intention had receded into the background by the time that the Draft Convention was adopted on November 28th, 1919. The uniformity of the terms of this Draft Convention with those of the other draft conventions which were being adopted, and which had their origin in the programme set forth in Part XIII of the Versailles Treaty, had become the important element.

[61] The preparatory work thus confirms the conclusion reached on a study of the text of the Convention that there is no good reason for interpreting Article 3 otherwise than in accordance with the natural meaning of the words.

[62] At this point the Court would refer to what it has already said, viz. that it has no intention of expressing any opinion whatever as to the correct interpretation of the Convention of Berne.

*

[63] The similarity both in structure and in expression between the various draft conventions adopted by the Labour Conference [p381] at Washington in 1919 leads the Court to attach some importance to the presence in one of the other Conventions of a specific exception that the provisions of that Convention should not apply to persons holding positions of supervision or management, nor to persons employed in a confidential capacity.

[64] The Convention in question is that limiting the hours of work in industrial undertakings to eight in the day, usually known as the Eight Hour Day Convention.

[65] This Convention begins with a definition of industrial undertaking very similar in terms to that in the Convention on Night Work of Women. Article 2 then provides that the working hours of persons employed in any public or private industrial undertaking or in any branch thereof, other than an undertaking in which only members of the same family are employed, shall not exceed eight in the day and forty-eight in the week, with the exceptions therein provided for. It then adds the clause quoted above that the Convention is not to apply to persons holding positions of supervision or management, nor to persons employed in a confidential capacity. The wording of this exception is not identical with the formula employed in the question on which the Court is asked to advise, but it makes a specific reference to persons holding positions of supervision or management.

[66] If in the Eight Hour Day Convention, after a prohibition applicable to “persons”, it was necessary to make an exception in respect of persons holding positions of supervision or management, it was equally necessary to make a corresponding exception in respect of women in the Convention on Night Work of Women, if it was intended that women holding positions of supervision or management should be excluded from the operation of the Convention. [p382]

[67] For These Reasons, the Court, by six votes to five, is of opinion that the Convention concerning employment of women during the night, adopted in 1919 by the International Labour Conference, applies, in the industrial undertakings covered by the said Convention, to women who hold positions of supervision or management and are not ordinarily engaged in manual work.
[68] Done in English and French, the French text being authoritative, at the Peace Palace, The Hague, this fifteenth day of November, one thousand nine hundred and thirty-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) M. Adatci
President
(Signed) Å. Hammarskjöld
Registrar

[69] Baron Rolin-Jaequemyns, Count Rostworowski, MM. Fromageot and Schücking, Judges, declare that, in their opinion, the agenda, documents and minutes of the Washington Conference which refer to the Berne Convention of 1906 on the prohibition of night work for women employed in industry, do not permit them to subscribe to the grounds and conclusion of the present opinion.

[70] M. Anzilotti, Judge, declaring that he is unable to concur in the opinion given by the Court and availing himself of the right conferred on him by Article 71 of the Rules of Court, has delivered the dissenting opinion which follows hereafter.

(Initialled) M. A.
(Initialled) Å. H. [p383]

Dissenting Opinion by M. Anzilotti

[Translation]

[71] 1.– I regret that I am unable to concur in the opinion given by the Court.

[72] In my view the question is not whether it is possible to find a valid ground for placing upon Article 3 of the Convention concerning the employment of women during the night an interpretation other than that which is consistent with the natural meaning of its terms; notwithstanding the fact that the article is perfectly clear.

[73] If Article 3, according to the natural meaning of its terms, were really perfectly clear, it would be hardly admissible to endeavour to find an interpretation other than that which flows from the natural meaning of its terms.

[74] But I do not see how it is possible to say that an article of a convention is clear until the subject and aim of the convention have been ascertained, for the article only assumes its true import in this convention and in relation thereto. Only when it known what the Contracting Parties intended to do and the aim they had in view is possible to say either that the natural meaning of terms used in a particular article corresponds with the real intention of the Parties, or that the natural meaning of the terms used falls short of or goes further than such intention. In the first alternative it may rightly be said that the text is clear and that it is impossible, on the pretext of interpretation, to endow it with an import other than that which is consistent with the natural meaning of the words. In the other alternative, since the words have no value save as an expression of the intention of the Parties, it will be found either that the words have been used in a wider sense than normally attaches to them (broad interpretation) or that they have been used in a narrower sense than normally attaches to them (narrow interpretation).

[75] The first question which arises therefore is what is the subject and aim of the convention in which occurs the article to be interpreted. [p384]

[76] 2. – The Convention of Washington concerning the employment of women during the night was concluded in accordance with Part XIII of the Treaty of Versailles and as a part of the programme which this Treaty assigns to the International Labour Organization.

[77] In my view there can be no doubt that Part XIII of the Treaty of Versailles has for its object the regulation of the employment of manual workers (ouvriers). I am prepared to admit that the provisions of this Part do not necessarily restrict the competence of the International Labour Organization to manual workers (ouvriers) properly so-called and that it is open to that Organization also to concern itself with certain other categories of workers (travailleurs); but this latter task is a secondary and in a sense an incidental one, whereas the regulation of the conditions of employment of manual workers (ouvriers) is the essential and normal task of the Organization.

[78] This follows, in the first place, from the historical connection between this Part of the Treaty of Versailles and the scientific and practical movement which, especially since the early years of the century, had prepared and already in part brought into being what was called "international labour legislation" (in French: "droit-international ouvrier" or "le droit international du travail") and which, whatever name it was known by, was intended to make possible and to guarantee, by means of international agreements, certain measures for the protection of labour. Part XIII of the Treaty of Versailles takes up and carries on this movement under the new conditions resulting from the war: the basis adopted is much broader, since the Organization includes, at all events potentially, all States; the procedure is more effective since the Organization is permanent; but the subject and aim remain the same viz. the protection of labour by the regulation of conditions of work.

[79] There is nothing in Part XIII of the Treaty of Versailles – nor, if it is desired to refer to them, in the records of the preparatory work – to justify the idea that what was aimed at was no longer the protection of manual workers (ouvriers) but the protection of workers in general (travailleurs). On the contrary, notwithstanding the deficiencies [p385] or inconsistencies of the terms used in one or other of the texts, Part XIII of the Treaty of Versailles clearly indicates that its object is the protection of labour, that what the High Contracting Parties agree jointly to carry out is the old programme of social reforms in the interest of the working class.

[80] Thus, the Preamble of this Part of the Treaty of Versailles, in which is set out the programme of the Organization, after stating that "conditions 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" and that "an improvement of those conditions is urgently required", indicates the principal directions in which such improvements should be made, and mentions "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 provision 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". Clearly, these are the claims which the working class had long since raised and which are closely bound up with the conditions of manual work in modern industrial organization.

[81] Similarly, the Preamble explains why these improvements must form the subject of an international understanding: "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". In point of fact, humanitarian efforts to bring about reforms in the domain of the protection of labour had hitherto encountered a very serious objection consisting in the impossibility of placing a national industry in a position of inferiority by imposing upon it burdens which foreign industry had not to bear. Part XIII of the Treaty of Versailles is designed to [p386] remove this obstacle: accordingly it contemplates the regulation of conditions of work in industry, this word "industry" being construed in its wider sense and as covering agriculture as well as industry properly so-called (Opinion No. 2).

[82] This idea, which emerges so clearly from the Preamble, also serves as the basis of the organization which is described in Chapter I of this Part of the Treaty of Versailles and which presupposes the existence of industrial organizations of employers and workers. It has never been questioned that the workers' industrial organizations are manual workers' organizations (organisations ouvrières) as opposed to employer's organizations. If this idea be not accepted, the whole of Part XIII of the Treaty of Versailles – whether sound or not – becomes incomprehensible; I do not see, for instance, how one could decide which organizations were most representative of the workers in a particular country, if account had to be taken of labour organizations other than manual labour organizations (organisations ouvrières).

[83] Finally, it should be observed that Article 427 enunciates "general principles", i.e. methods and principles for regulating labour conditions" which the High Contracting Parties agree to apply. After observing that "the well-being, physical, moral and intellectual, of industrial wage-earners is of supreme international importance", this article declares 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"; which methods and principles, "if adopted by the industrial communities who are Members of the League . . . will confer lasting benefits upon the wage-earners of the world ". I have some difficulty in understanding how all this could have been written with anything else in mind except the labour conditions of manual workers.

[84] As regards the "methods and principles" enunciated in the article, perusal of them will suffice to show that their object is the introduction of certain measures of protection directly concerning manual workers (ouvriers), even though the possibility [p387] of sometimes endowing such measures with a wider application is not excluded. It is worthy of note that the "guiding principle" referred to in the second paragraph of Article 427 and formulated under No. 1 is to the effect that "labour should not be regarded merely as a commodity or article of commerce".

[85] 3. – If the task allotted by Part XIII of the Treaty of Versailles to the Organization which it establishes is the regulation of conditions of manual labour, it is only natural to infer that any convention concluded under this Part is to be regarded as relating to manual labour and not to labour in general. Another and more general intention is conceivable but cannot be presumed: it must be proved.

[86] It is in regard to this point more particularly that I disagree with the present opinion. The Court's view appears to be as follows: Article 3 of the Convention, taken by itself and considered separately, certainly applies to the women referred to in the question submitted to the Court; accordingly, to be able to construe it as not applying to women who hold positions of supervision or management, some valid ground for construing the article otherwise than in accordance with the natural meaning of the words must be found. In my view, on the other hand, Article 3 should not be taken by itself and considered separately; it should be construed in relation to the Convention of which it forms part and which, by its nature, concerns the employment of women manual workers (ouvrières). Accordingly, it has merely to be considered whether, having regard to the terms used, this article affords proof that the intention of the High Contracting Parties was to prohibit, not only the employment of women manual workers during the night, but in general the employment at night of women in industry.

[87] This question I feel bound to answer in the negative. As I see it, the only argument that can be adduced in support of the interpretation that the Washington Convention applies to women in general and not only to women manual workers (ouvrières) is that that Convention, in Article 3, as also in other places, uses the expression "women" without adding [p388] anything to indicate that women manual workers and not women in general are meant.

[88] But this argument, which in itself is sufficiently weak, for it has no regard to the nature of the Convention in which the expression is used, loses all its force when we observe that this expression is used in documents relating to labour legislation to designate women industrial workers, just as the expressions children and young persons mean, not children and young persons in general, but those engaged in manual work (travail d'ouvrier). National legislation would furnish a large number of examples; but I will only mention the Preamble of Part XIII of the Treaty of Versailles and Article 427, No. 6, of that Treaty, as also the Convention of Berne of 1906 concerning the prohibition of night work for women employed in industry, where the same general expression is used repeatedly to indicate women manual workers (ouvrières). I find it difficult to believe that the delegates at the Washington Conference, who must have been more or less familiar with the texts in question, should have used an expression which, to say the least, is ambiguous, if they really intended to extend the prohibition to all women.

[89] 4. – For these reasons, I am of opinion that a correct interpretation of Article 3 of the Convention of Washington leads to the conclusion that that Convention applies exclusively to women manual workers.

[90] If however any doubt were possible, it would be necessary to refer to the preparatory work, which, in such case, would be adduced not to extend or limit the scope of a text clear in itself, but to verify the existence of an intention not necessarily emerging from the text but likewise not necessarily excluded by that text.

[91] Now the preparatory work shows most convincingly that the intention of the Washington Conference was to maintain – whilst for technical reasons adopting a new convention – the main lines of the Berne Convention, save for a certain number of clearly indicated modifications none of which relate to the [p389] question before us. And since the Berne Convention, according both to its actual terms and to the universally adopted interpretation thereof, refers only to women manual workers, it follows that the intention of the Conference was to regulate the night employment of women manual workers. Thus the preparatory work would, if need be, confirm the interpretation which, in my view, naturally flows from the text of the Convention.

[92] 5. – This being so, it only remains for me to add that the answer to the question put to the Court should, in my view, have been based on investigations in two directions. On the one hand, it should have sought to obtain as accurate as possible a definition of the category of workers (manual workers: ouvriers) referred to in Part XIII of the Treaty of Versailles; a category which is far from being clear and definite. On the other hand, it should have investigated the nature of the duties of supervision or management referred to in the request, in order to establish whether and, if so, in what circumstances, women who are engaged in these duties can be included in the category of workers in question.

(Signed) D. Anzilotti [p390]

Annex
I. – Documents Collected by the International Labour Office and Transmitted through the Secretary-General of the League of Nations:

(1) Verbatim report of the First Session of the International Labour Conference (Washington, 1919); one volume in English, one volume in French.
(2) Text of the draft conventions and recommendations adopted by the International Labour Conference at its First Session.
(3) A certified true copy of an extract from the minutes of the 49th Session of the Governing Body of the International Labour Office (June 1930); in English and French.
(4) A certified true copy of an extract from the minutes of the 51st Session of the Governing Body of the International Labour Office (January 1931); in English and French.
(5) Report of the Governing Body of the International Labour Office upon the application of the Convention concerning the employment of women during the night, presented at the Fifteenth Session of the International Labour Conference (Geneva, 1931); one brochure in English, one brochure in French.
(6) Report on the partial revision of the Convention concerning the employment of women during the night, compiled by the International Labour Office preparatory to the Fifteenth Session of the International Labour Conference (Geneva, 1931); one brochure in English, one brochure in French.
(7) Verbatim report of the Fifteenth Session of the International Labour Conference (Geneva, 1931); in English and French - Volume I, Parts I, II and III (in two vols.).
(8) Certified true copy of an extract from the minutes of the 57th Session of the Governing Body of the International Labour Office (April 1932); in English and French.
(9) Certified true copy of the letter from the Director of the International Labour Office, dated April 29th, 1932, to the Secretary-General of the League of Nations.

II. - Document Filed as an Annex to the Written Statement of the Agent of the German Government:
"The meaning of the term ‘women’ in the Conventions of Berne (1906) and Washington (1919) according to German legislation."


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