An article published in last week’s Business Times authored by Franklyn Amerasinghe (former Director General, EFC) titled “Employers’ group challenges sanctity of interpretations by the ILO (International Labour Organisation) committee of experts” refers to some controversial issues dealing with the definition, exercise and the applicability of international principles on the right to strike in Sri Lanka.
The right to strike is a topic of intense discussion in industrial relations. The limits within which it can be exercised and the applicability of international standards have always remained a grey and contested area in Sri Lanka’s industrial relations process. In this context, it would be important to examine this issue from a broader and realistic perspective, given the prevailing confusion over Sri Lanka’s international obligations arising out of ratification of Conventions and rulings of respective supervisory bodies.
Sri Lanka obtained membership in the ILO in 1948 and thereby it is obliged to act in terms of the Constitution of the ILO.� Ratification of Conventions is optional and warrants compliance. Similarly, member States are not permitted to exclude themselves from certain provisions or principles of these Conventions. A memorandum submitted to the International Court of Justice (ICJ) by the ILO in 1951 states that international labour Conventions are intrinsically incapable of being ratified subject to any reservations. This has been the consistent view of the ILO since its inception.
A basis for this position can be traced to the memorandum submitted by the Director General of the ILO in 1927 to the ILO Committee of Experts for the Codification of International Law with respect to labour conventions.� “…..these agreements are not drawn up by the Contracting States in accordance with their own ideas: they are not the work of plenipotentiaries, but of a conference which has a peculiar legal character and includes non-Government representatives. Reservations would still be inadmissible, even if all the States interested accepted them; for the rights which the treaties have conferred on non-Governmental interests in regard to the adoption of international labour Conventions would be overruled if the consent of the Governments alone could suffice to modify the substance and detract from the effect of the conventions (see League of Nations, Official Journal, 1927, at p. ).”
It is in this context that the role of the special supervisory procedure of the ILO Governing Body (GB); Committee on Freedom of Association (CFA) is unique. The CFA is made up of the members of the governing body of the ILO representing three persons each from the three constituents and it is chaired by an eminent independent person. The CFA’s tripartite composition guarantees a balanced examination of cases and the “consensus based” decision-making process inevitably reflects the political positions of all three stakeholders in its pronouncements. Decisions of the CFA, once adopted by the governing body, form part of the official position of the ILO. As such, they ought to be honoured by the relevant Government and all other member States. It is well within the Committee’s purview to define and interpret the applicability of ILO Convention No.87 and 98 on freedom of association and protection of the right to organise and collective bargaining.� During this process, it has established a body of principles, which according to the ILO constitutes a veritable international law on freedom of association. In 1953, the Chairman of the ILO Committee on Freedom of Association held that it is “a kind of customary rule in common law, outside or above the scope of any Conventions or even of membership of one or other international organizations.” By being competent and instrumental in defining the contours of the two fundamental Conventions, the CFA has today qualified to be ranked as a quasi-judicial body. [See The Committee on Freedom of Association: Its impact over 50 years, Eric Gravel, Isabelle Duplessis and Bernard Gernigon].
It is correct that the employers’ group at the 101st International Labour Conference of the ILO has taken up the position that the mandate of the Committee of Experts on the Application of Convention and Recommendations (CEACR) does not give it authority to express a view that is binding as an interpretation of the Convention. The CEACR is purely a panel of legal experts devoid of any tripartite character and examines issues from a legalistic perspective. Its decisions do not necessarily seek to accommodate or reflect a tripartite standpoint or consensus.
It should be stated clearly, that the work, the mandate or the competence of the ILO Committee on Freedom of Association (CFA) has in no way been called into question. We must remember that the conclusions of ILO Case No.2519 on Sri Lanka on the right to strike are of the ILO CFA. They carry the express consensus of the representatives of global capital, possibly affiliates or allies of the International Organisation of Employers (IOE) at the level of the CFA and have the unanimous endorsement of the governing body of the ILO. At the time this decision was adopted Sri Lanka had the unique privilege of chairing the governing body. The Government in its submissions to the ILO in the said case has stated in writing that it would abide by the decision of the ILO in this regard (see para 1135 of decision of ILO Case No.2519). Therefore, it would not require the Government to invoke provisions of Article 37 of the ILO Constitution in order to contest the interpretation of the Convention before the ICJ. The written submissions of the Government have an estoppel effect before any international tribunal.
Unlike in the instance of the committee of experts, employers cannot raise issues of sanctity or question the decisions of the ILO CFA on Sri Lanka, as unfair, devoid of tripartite character or lacking Constitutional mandate. In short, the global employer representatives have endorsed the decision and its interpretations at the CFA and at the GB. The matter is clear, settled and tripartite to the last letter.� It is now up to all parties concerned to respect in good faith the principles and process of the ILO. Constituents should now come forward to formulate and make possible the adoption of enabling legislation in keeping with CFA conclusions.
Applicability of norms of international law
The complete isolation of constitutional law from the dynamic impact of international law and the obligations arising out of ratifications of ILO Conventions is neither possible nor practical today. Therefore, national courts as well as labour policy formulation bodies have a duty to take into consideration the obligations arising out of ratification of international instruments. Laws need to be interpreted and policies should be formulated keeping this broader commitment in mind. Absence of enabling legislation too can be progressively engaged in many ways.
In a “dualist” legal system such as the one prevalent in Sri Lanka, there is significant precedent for international law and ILO Conventions to be used and applied. Justice Robyn Layton (former chairperson of the ILO Committee of Experts and former Deputy President of the Commonwealth Administrative Tribunal) in her writings has expressed that the only specific limitation to its application is in the event where the national law is clearly and unambiguously inconsistent with international law and international Conventions. She recalls, in particular, that dualist countries have an additional feature not possessed by “monist” countries, namely the application of common law not embodied in statute but instead evolved by interpretation in the courts. This provides an added opportunity for international law and principles of ILO Conventions to be used and accepted by way of judicial precedent.
Customary international law
Customary international law also contributes greatly to the application of principles of International Conventions and/or Treaties such as that of the ILO into local legal systems. The adoption of customary international law is perfectly possible, subject to certain conditions. States following the dualist system such as Sri Lanka and many countries of the British Commonwealth have consistently observed this rule. The general principle applied by courts in dualist-type systems is that “customary rules are to be considered part of the law of the land and enforced as such, with the qualification that they are only incorporated so far as is not inconsistent with Acts of Parliament or prior judicial decisions of final authority” (See Ian Brownlie, Principles of Public International Law ). However, in the event of the existence of ratified international legal instruments such as Conventions, it is incumbent upon the State to adopt necessary enabling legislation to harmonise the legal system with international treaty obligations.
Indian example on incorporating principles of Conventions
The fact that a particular dualist country may have ratified an international Convention but not incorporated it into domestic law, does not mean that the Convention is thereby rendered ineffectual in that country. The Vienna Convention on the Law of Treaties effectively provides that every treaty in force is binding upon the parties to it and it must be performed by them in good faith (pacta sunt servanda). Therefore, States are legally bound to implement ratified international conventions in a manner similar to international treaties.
Today it is possible to observe many dualist countries resorting to incorporating principles of international Conventions and/or Treaties to which they are a party, despite the fact that legislation for their incorporation is at times not provided for.
India is a strict dualist State, but in the case of Vishaka and others Vs. State of Rajasthan and others, it sought to positively adopt international principles into its body of laws.� Article 32 of the Indian Constitution empowered the Supreme Court to issue guidelines for the enforcement of constitutionally guaranteed rights. Since domestic law did not address the issue and did not formulate effective measures to prevent sexual harassment of working women at the workplace, the Court decided to formulate general principles in order to define the concept of sexual harassment and to ensure its eradication. The Court referred to the Convention on the Elimination of All Forms of Discrimination against Women and on the statements of the United Nations Committee on the Elimination of Discrimination against Women (the international body responsible for supervising the application of this Convention) [Source: Justice Layton – Chairperson of ILO CEACR].
In this instance, the Supreme Court of India held that “Gender equality includes protection from sexual harassment and the right to work with dignity, which is a universally recognized basic human right. The common minimum requirement of this right has received global acceptance. The international conventions and norms are, therefore, of great significance in the formulation of the guidelines to achieve this purpose.”
It is also possible to observe that further consensus was reached through the 1988 “Bangalore Principles” on the Domestic Application of International Human Rights Norms in dualist countries. A Judge of the Sri Lanka’s Supreme Court was also officially involved in the deliberations leading to the development of these principles, which consisted of a high level judicial colloquium administered by the Commonwealth Secretariat chaired by Justice P.N. Bhagwati.
Paragraph 7 of the “Bangalore Principles” on the Domestic Application of International Human Rights Norms articulates that it is within the proper nature of the judicial process and well established judicial functions of domestic courts to have regard to international obligations which a country undertakes whether or not they have been incorporated into domestic law, for the purpose of removing ambiguity or uncertainty from constitutions, legislation or common law.
The “Bangalore Principles” also clearly state that: “however, where national law is clear and inconsistent with the international obligations of the State concerned in common law countries the national court is obliged to give effect to national law. In such cases the court should draw such inconsistency to the attention of the appropriate authorities since the supremacy of national law in no way mitigates a breach of an international legal obligation, which is undertaken by a country”.
ICCPR and its Optional Protocol
Through the ratification of the International Covenant on Civil and Political Rights (ICCPR) and its Optional Protocol, Sri Lanka has accepted the jurisdiction of the United Nations Human Rights Council (UNHRC) to inquire and make determinations on individual complaints. The implications of the UNHRC and its telling political impact is very clear. Article 22 of the ICCPR refers to the right to freedom of association. On the subject of freedom of association the ICCPR provides that nothing in it shall authorize State parties to the ILO Convention No.87 on Freedom of Association and Protection of the Right to Organise to either take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, guarantees provided for in that Convention. This makes it clear that on the issue of Freedom of Association, ILO Convention No.87 prevails as the benchmark for the ICCPR. In terms of the Optional Protocol, any aggrieved citizen is entitled to utilise the Geneva treaty body option after having exhausted the highest appellate remedy in local courts. Sri Lanka through an “optional protocol” has acceded to subject the decisions of its highest court for review on human rights related issues. Though some issues exist in the interpretation of the right to strike at the UNHRC all other aspects of freedom of association are applicable to Sri Lanka.
Sri Lankan example
In the Rubberite Company Vs. Labour Department, Court of Appeal Case No.104/86 [1990-2SLR Part 2], Justice Sarath Silva, held “..the basic right of workmen to strike to express their grievances and to win their demands is not only consistent with the international obligations undertaken by the Government of Sri Lanka in ratifying the Covenant on Economic, Social and Cultural Rights but also consistent with the accepted standards in other national and regional jurisdictions.� Therefore, I hold that under our law, workmen have a basic right to strike as a measure of Collective Action directed against the employer to express their grievances and to win their demands.”
The above examples illustrate the dynamic impact of international law and obligations arising out of ratification of international legal instruments. They can no longer be overlooked merely on the basis that no enabling legislation exists. They form a strong corpus of customary international law national courts can make use of. This provides a compulsion to the State and relevant constituents to make the local law and practice conform to international treaty obligations. It should not be perceived as a means of undermining the national legislature. It helps to enrich and improve domestic judicial decision making in order to protect human rights and achieve social justice. In the context of economic globalisation, labour law and its enforcement through national courts and tribunals remain important to achieve social justice [See A Fair Globalization. The role of the ILO, Report of the Director-General on the World Commission on the Social Dimension of Globalization, ILO, 2004]. Therefore, attempts to isolate the local judiciary and policy formulation processes from principles of international law will certainly obstruct the attainment of social justice.