|
[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.
---------------------------------------------------------------------------------------------------------------------
[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 salari�s", "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 "employ�s 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 pr�paratoires 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 - ouvri�res -, 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 �ouvri�res�.
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 �ouvri�res�,
and once only the word used is "ouvri�res ", 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
sant� des ouvri�re�. 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) �. Hammarskj�ld
Registrar
[69] Baron Rolin-Jaequemyns, Count Rostworowski, MM. Fromageot and Sch�cking,
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) �. 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 ouvri�res) 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 ouvri�res).
[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 (ouvri�res). 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 (ouvri�res) 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 (ouvri�res). 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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