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By Prentiss B. GILBERT, AMERICAN Consul, GENEVA, SWITZERLAND \HE International Labor Office may, for all practical purposes,

be regarded as the vehicle established to carry out the provisions of Part XIII (arts. 387 to 437) of the treaty of Versailles. Like the secretariat of the League of Nations, it is continuously in operation and has a direct relationship with Governments.

To understand its status and character, it must be kept in view, however, that the office" forms a part of what is known as the International Labor Organization, the other part being the “General Conference," and that it is controlled by the Governing Body.” A glance at the nature of these other bodies and the relationship of the labor office to them is, therefore, essential to an understanding of its legal position.

International Labor Organization The constitution of the International Labor Organization is incorporated in Part XIII of the treaty of Versailles. It was drafted in Paris by the Commission on International Labor Legislation, composed of delegates from the following countries: Belgium, the British Empire, Cuba, Czechoslovakia, France, Italy, Japan, Poland, and the United States of America. The objects for which the International Labor Organization was called into being are set forth in the preamble to Part XIII of that treaty. The text of this preamble is as follows:

Whereas the League of Nations has for its object the establishment of universal peace, and such a peace can be established only if it is based upon social justice;

And whereas conditions of labor 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 work are imperiled; and an improvement of those conditions is urgently required; as, for example, by the regulation of the hours of work, including the establishment of a maximum working day and week, the regulation of the labor 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;

Whereas also the failure of any nation to adopt humane conditions of labor is an obstacle in the way of other nations which desire to improve the conditions in their own countries:

The high contracting parties, moved by sentiments of justice and humanity as well as by the desire to secure the permanent peace of the world, agree to the following:

[Here follow the detailed provisions for the establishment of the International Labor Organization.]

It will be noted that in Part XIII of the treaty of Versailles it is provided that the original States, members of the League of Nations, should be the original members of this organization. The number of member States has been increased since the establishment of the organization by new accessions, and the total number of member States is now 55. These States are as follows:

Albania, Argentina, Australia, Austria, Belgium, Bolivia, Brazil, British Empire, Bulgaria, Canada, Chile, China, Colombia, Cuba, Czechoslovakia, Denmark, Dominican Republic, Ethiopia, Estonia, Finland, France, Guatemala, Germany, Greece, Haiti, Honduras, Hungary, India, Írish Free State, Italy, Japan, Latvia, Liberia, Lithuania, Luxemburg, Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Persia, Peru, Poland, Portugal, Rumania, Salvador, Siam, South Africa, Spain, Sweden, Switzerland, Uruguay, Venezuela, and Yugoslavia.

The permanent organization, as has been stated above, consists of the General Conference of representatives of the members and the International Labor Office, controlled by the Governing Body. The functions of the conference are legislative in character, those of the office are administrative and executive.

General Conference

The meetings of the General Conference of representatives of the member States may, by article 389 of the treaty of Versailles,' be held from time to time as occasion may require, and must be held at least once in every year:

The conference is composed of four representatives of each of the member States, of whom two are Government delegates and two are delegates representing, respectively, the employers and the workers of each of the member States. Each delegate may be accompanied by advisers, who may not exceed two in number for each item on the agenda of the meeting. When questions especially affecting women are to be considered by the conference, it is provided that at least one of the advisers should be a woman. These advisers may, under certain conditions, replace the delegates at the conference and exercise the full rights of membership. They may also act for the delegates on commissions and committees set up by the conference.

The member States undertake to nominate non-Government delegates and advisers chosen in agreement with the industrial organiza

1 All future references to "articles" refer to the treaty of Versailles.

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tions (if such organizations exist), which are most representative of employers or workers, as the case may be, in their respective countries.

The decisions of the conference take the form either of draft conventions or of recommendations. Both require for final adoption a majority of two-thirds of the votes cast. On any matter a valid vote requires the participation of at least half of the delegates attending the conference.

By article 405 of the treaty

Each of the members undertakes that it will, within the period of one year at most from the closing of the session of the conference, or if it is impossible owing to exceptional circumstances to do so within the period of one year, then at the earliest practicable moment and in no case later than 18 months from the closing of the session of the conference, bring the recommendation or draft convention before the authority or authorities within whose competence the matter lies, for the enactment of legislation or other action.

It is also provided in article 405 that in the case of a draft convention the member shall, if it obtains the consent of the authority or authorities within whose competence the matter lies, communicate the formal ratification of the convention to the secretary general of the League of Nations, and shall take such action as may be necessary to make effective the provisions of such convention. In the case of a recom

a mendation, the members shall inform the secretary general of the action taken. If no legislative or other action is taken to make a recommendation effective, or if the draft convention fails to obtain the consent of the authority or authorities within whose competence the matter lies, no further obligation rests upon the member.

It is specifically provided that in the case of a Federal State, the power of which to enter into conventions on labor matters is subject to limitations, it shall be in the discretion of that Government to treat a draft convention to which such limitations apply as a recommendation only, and the provisions of article 405 with respect to recommendations shall apply in such case.

It is further laid down in that article that the provisions of article 405 shall be interpreted in accordance with the following principle:

In no case shall any member be asked or required, as a result of the adoption of any recommendation or draft convention by the conference, to lessen the protection afforded by its existing legislation to the workers concerned.

Article 406 provides that any convention ratified shall be registered by the secretary general of the League of Nations but shall be binding only upon the member States which ratify it.

When a State ratifies a convention it undertakes a series of obligations. It must take the necessary legislative and administrative action to bring the provisions of the convention into operation within its country. Furthermore, each of the members agrees to make an annual report to the International Labor Office on the measures which it has taken to give effect to the provisions of conventions to which it is a party.

The responsibility for securing the effective observance of the convention by all parties within its jurisdiction rests upon the Government concerned. The due fulfillment by each Government of this responsibility is intended to be secured by a system of sanctions. The procedure to be followed in connection with this system of sanctions is laid down in detail in articles 409 to 420 of the treaty.


Special Obligations of Member States

It is perhaps of interest, because of the rather peculiar nature of these obligations from the viewpoint of international law, to survey the considerations which apparently led the Commission on International Labor Legislation to reach its decisions with regard to the obligations imposed upon member States, and in particular to the modification of these obligations in the case of countries with a federal form of government.

The original draft proposed that any draft convention adopted by the conference by a two-thirds majority must be ratified by every State participating, unless within one year the national legislature should have expressed its disapproval of the draft convention. This implied an obligation on every State to submit any draft convention approved by the conference to its national legislature within one year, whether its own Government representatives had voted in favor of its adoption or not. This provision was, it would seem, inspired by the belief that, although the time had not yet come when anything in the nature of an international legislature, whose decisions should be binding on the different States, was possible, yet it was essential for the progress of international labor legislation to require the Governments to give their national legislatures the opportunity of expressing their opinion on the measures favored by a two-thirds majority of the labor conference.

The records of the proceedings indicate that the French and Italian delegations went so far as to contend that States should be under an obligation to ratify conventions so adopted, whether their legislative authorities approved them or not, subject to a right of appeal to the Executive Council of the League of Nations. The council might invite the conference to reconsider its decision, and in the event of its being reaffirmed there would be no further right of appeal.

Other delegations, although expressing themselves as not unsympathetic to the hope that in course of time the labor conference might, through the growth of an international spirit, acquire the powers of a truly legislative international assembly, felt that the time for such a development was not yet ripe. They took the position that if an attempt were made to deprive States of a large measure of their sovereignty in regard to labor legislation, the result would be that a number of States would probably resign their membership in the League of Nations rather than jeopardize their national economic position by being obliged to carry out the decisions of the International Labor Conference. The majority of the commission therefore decided in favor of making ratification of a convention subject to the approval of the national legislatures or other competent authorities.

It is understood that the American delegation, however, found themselves unable to accept the obligations suggested by the foregoing, on account of the limitations imposed on the central executive and legislative powers by the constitutions of certain States and particularly by the Constitution of the United States. They pointed out in particular that the United States Government could not accept an obligation to ratify conventions dealing with matters within the competence of the various States of the Union, with which the power of labor legislation for the most part lay. Further, the United States Government could not guarantee that the various States, even if they


passed the necessary legislation to give effect to a convention, would put it into operation, nor could it provide against the possibility of such legislation being declared unconstitutional by the American judicial authorities. The Government could not therefore engage to do something which was not within its power to perform, and the nonperformance of which would render it liable to complaint.

The commission at this juncture appeared to feel that it was faced by a serious dilemma, which threatened to make the establishment of any effective system of international labor legislation relatively impossible. On the one hand, its range and effectiveness would be seriously limited if a country of such industrial importance as the United States did not participate. On the other hand, if the scheme were so weakened as to impose no obligation on States to give effect to, or even to bring before their legislative authorities, the decisions of the labor conference, it was clear that the work of the conference would tend to be confined to the mere passage of resolutions instead of resulting in the promotion of social reforms with the sanction of law behind them.

The commission spent a considerable amount of time in attempting to devise a way out of this dilemma, and ultimately arrived at a compromise solution. Article 405, as finally drafted, represents a plan formulated by a subcommittee consisting of representatives of the American, British, and Belgian delegations specially appointed to consider the question. It provides that the decisions of the labor conference may take the form either of recommendations or draft conventions. Either must be deposited with the secretary general of the League of Nations, and each State undertakes to bring it within one year before its competent authorities for the enactment of legislation or for other action. If no legislation or other action to make a recommendation effective follows, or if a draft convention fails to obtain the consent of the competent authorities concerned, no further obligation rests on the State in question. In the case of a Federal State, however, whose power to enter into conventions on labor matters is subject to limitations, its Government may treat a draft convention to which such limitations apply as a recommendation only.

The Governing Body The Governing Body controls the International Labor Office, appoints its director, determines its expenditure, compiles the agenda of the General Conference, and exercises certain duties in connection with alleged nonobservance of conventions. It meets, as a rule, four times a year.

It is composed of 24 members—12 representing Governments, 6 employers, and 6 workers. Its members are appointed for a period of three years.

The employers and workers are elected by the delegates, respectively, of the employers and of the workers present at the session of the conference at which the election is made.

The scheme under which Government representatives are appointed is somewhat complicated. It is felt, however, that at least a summary explanation is essential to an understanding of the relationship of the various powers to the entire matter.

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