Legal Analysis: CLS, International Law, and the Process and Production Method Argument

In order to determine whether the CLS have achieved the status of customary international law, an analysis of the customary nature of labour standards in general is warranted.

The International Court of Justice (ICJ) in the Asylum case laid down the two requirements of customary international law:

[t]he party which relies on custom … must prove that this custom is established in such a manner that it has become binding on the other party … that the rule invoked … is in accordance with a constant and uniform usage, practiced by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State.⁵

The two requirements deduced from the Asylum case are, first, a state practice that is established, widespread, and consistent and, second, opinion juris sive necessitates (opinion as to law or necessity).⁶ Also, in the 1985 Continental Shelf Case (Libya v. Malta), the ICJ stated that the substance of customary international law must be “looked for primarily in the actual practice and opinio juris of States”.⁷

State practice is also referred to as the objective or material element. State practice includes physical acts such as diplomatic acts, public instructions and governmental acts, and official statements. Silence or inaction could mean either tacit agreement or that the state lacks interest in the issue, and this may constitute state practice.⁸ For an action to constitute state practice, it must be of a comparatively short duration, and in which case it must be general and consistent. The practice can be general even though it might not be universally followed. There is no means of determining how widespread this practice is, but in any case, there should be widespread recognition in states that are involved in this activity. However, a principle of customary law is that it is not binding on a state that has indicated its opposition from the principle in the course of its development.⁹

When the ILO Declaration was adopted, 19 Member states abstained, but they have since been cooperating in the implementation of the Declaration by conforming to ILO reporting procedures. This could be considered as state practice for these 19 countries in line with those ILO Members that voted for the Declaration. This could be seen as a consensus in the universal recognition of the CLS.¹⁰

Opinion juris is also referred to as subjective or psychological element. A state practice can become part of customary international law when it appears that the states that follow the practice or rule do so out of a sense of legal obligation.¹¹ There should be evidence of a general practice, a determination of a Court or other international tribunals.¹² In this case, the treaties, resolutions, and the acts of international organisations and also in national constitutions are evidence of state practice and also of opinion juris.¹³ States must show their willingness to follow a practice due to their belief rather than the demands of courtesy, reciprocity, comity, morality, or simple political expediency.¹⁴

The ICJ has laid down a rigorous approach when it stated in the Continental Shelf case:

[n]ot only must the acts concerned [constituting state practice] amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation.¹⁵

Following our examination of the two element theory under customary international law, the CLS and the ILO Declaration, as shown under the analyses of state practice and opinion juris, appear to indicate that there is widespread recognition of the CLS by ILO Members and in the international community as a whole. Further, ILO Member states appear to follow the practice of applying the CLS and conforming to the reporting mechanism out of a sense of legal obligation. Whilst it might appear that the CLS and the Declaration are part of customary international law, the debate about whether all of the CLS or only some of the CLS can be considered as customary law need further analyses.

Article 30 is entitled Application of successive treaties relating to the same subject matter. The relevance of Article 30 is due to the fragmented nature of public international law. This has the probability of leading to contradictions and thus the need for a sequence of rules to resolve such conflict. When there are rules that are aimed at resolving conflicts between treaties, this not only enhances legal certainty and provides clarity, but it also helps contribute to the states observing the treaties and, in so doing, observing public international law.²⁴

Article 30 does refer to all kinds of treaties, irrespective of their content, their nature, and the number of Parties to the agreement, in which case the WTO Agreement is included. Paragraph 1 exemplifies the hierarchical principle, in which case, a treaty when of a higher legal rank prevails over all treaties of a lower legal rank.

The pertinent rules in Article 30 are in paragraphs 3 and 4. In a case none of the colliding treaties include a conflict clause, the rules stated in paragraphs 3 and 4 apply. Paragraph 3 refers to situations whereby the States that are Parties to both treaties are identical. In which case, where the Parties to conflicting treaties are identical, the later treaty prevails but “applies only to the extent that its provisions are compatible with those of the later treaty”.

Paragraph 4 refers to the rule to be observed in situations where the rules are not identical. Under the provisions in this paragraph, two situations are considered: (i) in cases where States are Parties to both treaties (4(a)) and (ii) the relationship between a State that is party to both treaties and a State that is party to only one of the two treaties (4(b)). In the latter case, paragraph 4(b) states that “the treaty to which both States are parties governs their mutual rights and obligations”.

The rules in both paragraphs 3 and 4 are based on the lex posterior principle that the provisions of the later treaty prevails. Further, the provisions of Article 30 embody the principles of pacta sunt servanda and pacta tertiis.²⁵

Paragraph 5 lists all the situations that otherwise remain unaffected by the rules governing the conflict between treaties. The first situation that is not affected has to do with agreements to modify multilateral treaties between certain of the parties only, the rule as stated in Article 41.

The prevailing situation in international relations is beset with conflicting interests that require amendments to multilateral treaties and agreements. In such situations, amending a treaty with a large number of parties is a challenging and burdensome process. But in some cases, it might be that only some of the Parties to the treaty wish to modify the treaty as between themselves alone.²⁶ In which case, the Parties that modify the treaty between themselves might do so because these have common interests or to strengthen their relationship. It could also be that they want to ensure that they achieve higher standards of treaty obligations and lead the way in this regard. The signing of RTAs has seen the inclusion of the so-called WTO-plus obligations and, for our purposes, the inclusion of labour standards in RTAs.²⁷

During the Vienna Conference, the issue of the modification of multilateral treaties was considered not a common practice. Although there are examples of clauses in treaties that provide for the possibility of modifications as far back as the nineteenth century, there appeared not to be any common rules and also no jurisprudence on the issue.²⁸

The VCLT provides in Article 41, entitled Agreements to modify multilateral treaties between certain of the parties only:

1.

Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if:

(a)

the possibility of such a modification is provided for by the treaty; or

 

(b)

the modification in question is not prohibited by the treaty and:

(i)

does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligation;

 

(ii)

does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole.

 

 

 

2.

Unless in a case falling under paragraph 1(a) the treaty otherwise provides, the parties in question shall notify the other parties of their intention to conclude the agreement and of the modification to the treaty for which is provides.

 

The term inter se was coined by the International Law Commission, and according to Mathis the drafters of Article 41 thought that an inter se agreement was very likely to disrupt the object and aims of a multilateral treaty as compared to a treaty amendment that all Parties participated. This, in his view, made the conditions under which Parties to the multilateral treaty could modify as between themselves only more narrowly prescribed.²⁹

Article 41 provides for two possibilities: first, where the treaty permits a “contracting out” by Parties signatory to it, the possibility for such a modification expressly stated in the treaty. However, should the treaty only allow for certain kinds of modifications only, then all other modifications shall be prohibited under subparagraph 1(a). It has been argued that the term “or” at the end of subparagraph 1(a) and the introductory words of subparagraph 1(b) indicate that a modification falls either under subparagraph 1(a) or under 1(b).³⁰

The second possibility is where the treaty does not prohibit modifications. Article 41 in subparagraph 1(b) provides the additional requirement or first conditions that the enjoyment of the rights of other parties are not affected and does not add to their obligations. The second condition is that any modification will not cause derogation from a provision that is incompatible with the effective execution of the object and purpose of the treaty in its entirety. In which case, if the object and purpose of the treaty can no longer be effectively executed, then the modification is not permitted.

The question is whether GATT 1994 permits a modification in line with Article 41 that two or more parties to a treaty can modify as between themselves alone. GATT Article XXIV:5 states:

Accordingly, the provisions of this Agreement shall not prevent, as between the territories of contracting parties, the formation of a customs union or of a free-trade area or the adoption of an interim agreement necessary for the formation of a customs union or of a free-trade area; Provided that:…

It appears from the wording of Article XXIV:5 that Parties to the GATT/WTO Agreement are permitted to make modifications when they form free-trade areas and custom unions after having met some conditions. The Appellate Body, in its ruling in Turkey-Textiles,³¹ stated that the right to modify the GATT/WTO Agreement is subject to showing that the conditions in paragraphs 8 and 5 are met. In meeting the conditions in paragraph 5 for modification of the agreement, the subset of Parties are required to notify the Contracting Parties. In this respect, Article XXIV:7 requires the submission of the plan and schedule, as stated in paragraph 5. What is apparent from this in light of GATT 1994 is that Article 41 1(a) VCLT provides that “the possibility of such a modification is provided for by the treaty”.³²

Are there rules of international law that, by consent, individual subjects of international law cannot modify? International jus cogens convey the idea of rule of international law that may not be changed by consent between individual subjects of international law.

Article 53 of the Vienna Convention on the Law of Treaties (VCLT) states:

A treaty is void, if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.³⁴

In Article 64 of the Vienna Convention, the International Law Commission envisaged the emergence of new rules of jus cogens at a future time. This shows the Commission’s view that the concept of jus cogens is still evolving. Article 64 states: “If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.” The VCLT negotiations did not produce any list of rules that constitute jus cogens.

However, violations of human rights, slave trade or slavery, and genocide have come to be regarded universally as peremptory norms of international law or, in other words, jus cogens. It is important to note that from the enforcement point of view, jus cogens apply erga omnes (i.e., to everyone). This implies that non-compliance of the rules under jus cogens may be reprimanded by any legal body under international law. The International Court of Justice made this point clear in the Barcelona Traction, Light and Power Company Ltd case. In that case, the Court’s opinion reads in part:

[A]n essential distinction should be made between the obligations of a State towards the international community as a whole, and those arising vis-a-vis another state in the field of diplomatic protection. By their very nature the former concern all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights have entered into the body of general international law…; others are conferred by international instruments of a universal or quasi-universal character.³⁵

Concerning the consequences of identifying an international violation as jus cogens, Bassiouni (1997) raises the threshold question of whether such a status places obligations ergo omnes upon states or merely gives them certain rights to proceed against perpetrators of such crimes. Bassiouni further states that the threshold question carries with it the full implications of the Latin word obligatio or that it is denatured international law to signify only the existence of a right rather than a binding legal obligation.³⁶

Has the CLS acquired the status of peremptory norms to qualify as jus cogens? Vandaele (2005) provides a two-test approach. First, the CLS should be recognised by the whole international community of States. In respect of this, the CLS, as stated in the ILO Declaration, have to a great extent been recognised by all ILO Members and WTO Members that are also Members of the ILO.

The second test is whether the CLS are norms that are non-derogable. The non-derogative character of a right brings to fore the definition of jus cogens given by the Mexican delegate to the United Nations Conference on the Law of Treaties, when he stated:

The rules of jus cogens [are] those rules which derive from principles that the legal conscience of mankind deem[s] absolutely essential to coexistence in the international community.³⁷

This definition was further echoed in the opinion of the German Federal Constitutional Court, when the Court stated:

The quality of such peremptory norms [jus cogens] may be attributed only to such legal rules as are firmly rooted in the legal conviction of the community of nations and are indispensable to the existence of the law of nations as an international legal order and the observance of which can be required by all members of the international community.³⁸

The questions that the definition and opinion above raise for the CLS debate are whether a derogation from the CLS norms affects the conscience of the international community so as to require all countries to seek the observance thereof. If we are to go by the argument that considering the number of countries that have accepted the CLS as international norms and have incorporated them into their national laws, given the fact that 185 Member States have accepted the ‘ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up’ by virtue of their membership in the ILO, all Members have an obligation to promote those rights listed above even if they have not ratified the individual conventions. Then the CLS could possibly be considered as peremptory norms to be protected as jus cogens.

Further to this is the argument that the CLS are part of the large body of human rights and have acquired an obligatory character in international law. The acceptance of CLS in principle as part of human rights by many States has elevated the CLS as legal obligations in international law.

Does this, however, indicate that the CLS have reached the level of international acceptance that they should be considered as jus cogens? In spite of the reasoning above, it cannot be concluded that CLS have reached the level of jus cogens. In addition, it is not clear as to whether the international community is prepared to promote the CLS irrespective of their universal acceptance by virtue of the ILO Membership under the 1998 Declaration to the level of peremptory norms that should qualify as jus cogens.

An issue prominent in human rights law is the clash between individual and collective rights. At the heart of this issue is whether the human rights laws built principally on the recognition of individual rights can also facilitate collective rights. In our view, the answer is yes. Whilst the international human rights framework might appear to advocate only individual rights, it also envisages collective rights.

In recent times, a number of proposals appear to push the collective rights agenda, such as the right to development, the rights of peoples, and the rights of mankind. Whilst such rights have gained acceptance on a wider scale, it has faced opposition from a number of legal experts steeped in the traditionalist line of thinking.⁴³

The international labour standards, in particular the CLS, are examples of how the ILO, whilst advocating for collective rights, also allow for individuals to enjoy rights at the individual level. This raises the issue of whether the individual as part of a group can enjoy his individual right without achievement at the collective level.

For example, ILO Convention 111 on Discrimination (Employment and Occupation) requires the enactment of legislation for the elimination of discrimination in access to employment, training, and working conditions, on grounds of race, colour, sex, religion, political opinion, natural extraction, or social origin, and to promote equality of opportunity and treatment. This Convention has both individual and collective rights embedded in it. In a country where there is a policy of discrimination against a certain group, the right of the individual to employment and occupation is inextricably linked to the respect for the collective rights of his group. Failure to recognise the collective right of the group will definitely affect the right of an individual belonging to this group. In effect, the right of an individual cannot be looked at in isolation.

Cleveland (2003) also argues that at the basic level, the international human rights standards and the international labour standards are the same. She argues that the theory underpinning the international human rights movement is that all persons are entitled to certain minimum standards.⁴⁴ It is important to note that the attempt to abolish slavery was a labour rights movement.⁴⁵ In addition, incorporated in the 1919 Treaty of Versailles was the call for domestic protection of freedom of association, reasonable wages, eight-hour-work per day, forty-eight-hour work week, equal rights for migrant workers, prohibition of child labour, and equal pay for men and women. The CLS have, over the years, been viewed as falling under international human rights as envisaged under the Universal Declaration of Human Rights (UDHR), 1948.⁴⁶ Under the Universal Declaration, a “common standard of achievement for all peoples and all nations”⁴⁷ includes under its umbrella a general prohibition against discrimination, the rights to freedom of association and to form and be able to join unions, the prohibition against slavery, and the rights to work, to free choice of employment, to equal pay for equal work, etc.

The linkage between the CLS and human rights is clearly seen in respect for human rights, better standards of living, full employment, and social and economic progress, which after the Second World War were perceived as important factors in keeping the peace. For instance, Article 55 of the UN Charter states:

With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:

These objectives are also expressed in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The existence of more than 100 multilateral and bilateral treaties on the protection of human rights, which almost all WTO Members have ratified, obliges members to accept and respect workers’ rights both under international law and under their respective domestic laws. Even though human rights are not explicitly mentioned in the WTO Agreement, the acceptance of all 160 Members⁴⁸ of the Agreement is recognition of the importance of human rights in the trade agreement. The Preamble of the Marrakesh Agreement Establishing the World Trade Organisation states:

Recognizing that their (Contracting Parties/Members) relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development.

The International Court of Justice (ICJ) has also ruled that all United Nations (UN) member states have legal obligations to respect human rights under the UN Charter and under general international law.⁴⁹

Since World War II, international law has changed human rights law in significant ways. It is now generally acknowledged that the treatment by the state of its citizens is not only a matter under that particular state’s jurisdiction but also a matter of international concern. The advent of globalisation and the rising dominance of global capitalism, with its influence in the political and economic spheres, have in many ways weakened the authority of the sovereign state. Nowhere is this clearly seen than in the debates in the linkages between core labour standards and international trade.

The labour standards were internationally acclaimed about a quarter of a century before the inclusion of human rights in the Universal Declaration and also in the UN Charter. In fact, René Cassin, the principal author of the Universal Declaration writing in 1950 stated that the ILO Constitution, which was a central part of the peace treaty at Versailles in 1919, represented the first instance of a contractual foundation for “international law regarding fundamental individual freedoms”.⁵⁰