(delivered on behalf of the significant majority of member states in ASPAG)

(GB.347/INS/5: Legal Certainty, 15th March 2023)

Chair,

1. I am speaking on behalf of the significant majority of member states in ASPAG. We thank the Office for preparing the document and organizing tripartite informal consultations on this item to facilitate early exchange of views.

2. First of all, we respect the aspiration expressed by some GB members for seeking legal certainty through Art. 37 of the ILO Constitution on interpretation questions arising from International Labour Convention. However, we are of the view that in an Organization of more than 100 years history of tripartism, tripartite consensus built upon meaningful and constructive social dialogue should always remain as the top choice to resolve any disputes in the world of work including matters related to Convention interpretation. Other than Art. 37 which is the last resort and must be used with caution, we are committed to discussing any other options that would lead to a pragmatic solution to the disputes on the interpretation of Convention.

3. As for Art. 37 (1), while some of our proposals have been incorporated, we also noted with deep regret that our major concerns were not adequately accommodated in the introductory note and procedural framework. Firstly, we are aware that the 1949 Conference resolution delegated the authority to the Governing Body regarding the decision on referral requests to the ICJ. However, we would like to highlight an even more important fact that the current political, economic, social and geographical contexts of the world of work and ILO have evolved significantly in the past 74 years. Therefore, we believe that the International Labour Conference as the supreme and most representative body of ILO’s tripartite constituency is the most suitable platform to hold comprehensive, substantive and in-depth discussions of the interpretation question and make the decision on referral requests to the ICJ. Secondly, in the same vein, any follow-up action upon receiving the Court’s opinion should also be determined by the same body notably, the ILC. Thirdly, considering the binding effect of an ICJ advisory opinion in our context, it would be more appropriate to make a decision on referral on the basis of consensus rather than through a simple majority vote. For the purpose of pursuing consensus, we could be flexible with setting a time-limit of two consecutive sessions for the debate before submitting the referral to the ILC for substantive discussions, with the Governing Body being given the discretion to extend discussions to further sessions if needed. Fourthly, we agree with the proposition that a proper threshold should be set for the Governing Body to examine a referral request taking into account procedural economy and efficiency. This threshold should be on the higher end to signal the gravity of the request, considering that referral to the ICJ would be for serious, important and sensitive questions or disputes. We are open to discussion on what exactly the numbers for the threshold should be and to this end, seek clarification from the Office as to the basis for the numbers proposed in the draft procedural framework.

4. We note with great interest and welcome the additional proposals prepared by the Office for the implementation of article 37(2) on the establishment of an in-house tribunal. Nevertheless, we understand the current proposal is at the preliminary stage and requires further improvements. We welcome tripartite consultations with a view to preparing a set of draft rules for the tribunal. We would like to take this opportunity to share some of our key considerations on this proposal. Firstly, the exact language in Art. 37(2) clearly confirms that any dispute or question relating to the interpretation of a Convention could be referred to the in-house tribunal. Therefore, we do not support putting any limit or restriction on the competence of this tribunal. Secondly, we are in favor of ad hoc arrangements for the tribunal to enable a specific interpretation question to be examined by a panel of judges with specific expertise. Meanwhile, we strongly support and agree that the judges should all be of different nationalities and the composition should demonstrate, to the greatest extent possible, representation of the principal legal systems, fair geographical distribution and gender balance. 

5. Finally, we want to emphasize that due to the complementary nature of Art.37(1) and (2), the proposals on both options should be discussed and approved in their entirety to ensure the tripartite constituents have all options before them before any decision is made regarding the issue of referral requests on a specific interpretation question. Furthermore, it would be unadvisable to rush to a conclusion since there are still quite a number of divergent views on some critical parts of the introductory note and procedural framework of Art. 37(1).  

6. With all the views expressed above, we are not in the position to endorse the original decision point proposed by the Office in para 62. AS we request more consultations on both Art. 37(1) and (2), we support the amendment proposed by the Employers’ Group. 

Thank you, Chair!