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Judge Anzilotti on the Interpretation of Treaties

Published online by Cambridge University Press:  12 April 2017

Charles Cheney Hyde
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Type
Editorial Comment
Information
American Journal of International Law , Volume 27 , Issue 3 , July 1933 , pp. 502 - 506
Copyright
Copyright,© by The American Society of International Law 1933

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References

1 Publication of the Court, Series A/B 50, p. 383. The precise question involved was whether the Convention concerning Employment of Women during the Night, adopted in 1919 by the International Labor Conference, applied, in the industrial undertakings covered by the convention, to women who held positions of supervision or management and were not ordinarily engaged in manual work. The court was of opinion that the convention did so apply, for the following reasons. The “ important” Article 3 of the convention—referred to as the Washington Convention—was said to be “ general in its terms and free from ambiguity or obscurity.” It was declared that if it were to be interpreted in such a way as to be inapplicable to women holding posts of supervision and management and not ordinarily engaged in manual work, it was necessary to find some valid ground for interpreting the provision otherwise than in accordance with the “ natural sense” of the words. Adverting to the fact that the Washington Convention was a labor convention prepared within the framework of Part XIII of the Treaty of Versailles, the court examined the latter, and concluded that from both the preamble and the operative articles, Part XIII did not support the view that it was “ workers doing manual work” to the exclusion of other categories who were of concern to the International Labor Organization, or to which, accordingly, the Washington Convention should be deemed to be confined. Declaring that the convention should be read in the light of the agenda of the Washington Conference as fixed by Part XIII of the Treaty of Versailles (which was not regarded as strictly preparatory work), it was said that the agenda had two items, each of which would cover the Convention concerning Employment of Women during the Night. These were item 3 (“ Women's employment. . . —(b) during the night” ), and item 5 (“ Extension and application of the International Convention adopted at Berne in 1906 on the prohibition of night work for women employed in industry” ); that the text of the Washington Convention as adopted made no reference to the Berne Convention; that the third paragraph of the preamble of the Washington Convention connected with the third item in the agenda and not with the fifth. Hence it was concluded that the Washington Convention could not, by reason of the work on which the 1919 Conference was engaged, be deemed 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. None of these circumstances impelled the court to conclude that the “ natural meaning” of the text of the Washington Convention should be displaced. Examining (under reservation) the work preparatory to the Washington Convention, the court declared that it confirmed the conclusion reached on a study of the text of that convention that there was “ no good reason for interpreting Article 3 otherwise than in accordance with the natural meaning of the words.” The court moreover attached some importance to the fact that the Eight Hour Day Convention, prepared at the Washington Conference of 1919, in terms excluded from its application persons holding positions of supervision and management, declaring that it was equally necessary to make a like restriction in the convention under consideration in order to make it inapplicable to women employed in a supervisory capacity.

2 Wigmore on Evidence, 2d ed., Vol. V, §2458; also dissenting opinion of Judges Anzilotti and Huber in the case of the S.S. Wimbledon, Publications of the Court, Series A, No. 1, pp. 35-36.

3 Publications of the Court, Series A/B No. 50, p. 378. See also the Advisory Opinion No. 2 concerning the question whether agricultural labor was embraced within the competence of the International Labor Organization. Id., Series B, No. 2, p. 41; Case of the S.S. Lotus, id., Series A, No. 10, pp. 16-17; Advisory Opinion No. 14 concerning the jurisdiction of the European Commission of the Danube between Galatz and Braila, id., Series B, No. 14, pp. 28 and 31; Advisory Opinion interpretative of the Statute of the Memel Territory (Preliminary Objection) June 24,1932, id., Series A/B, No. 47, p. 249.

4 This was true in the instant case. To quote the language of the court: “ 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.” (Id., 380.)

5 See Advisory Opinion No. 12 interpretative of the Treaty of Lausanne of July 24,1923, in relation to the frontier between Turkey and Iraq, id., Series B, No. 12, pp. 22-26; also the Judgment No. 16 relating to the territorial jurisdiction of the International Commission of the River Oder, Ruling of Aug. 20, 1929, id., Series A, No. 23, pp. 41-42.It should be noted that in Advisory Opinion No. 14 concerning the Jurisdiction of the European Commission of the Danube between Galatz and Bralla, the court declared that: “ The record of the work preparatory to the adoption of these articles being confidential and not having been placed before the Court by, or with the consent of, the competent authority, the Court is not called upon to consider to what extent it might have been possible for it to take this preparatory work into account.” (Id., Series B, No. 14, p. 32.)

6 Id., Series A/B, No. 50, p. 382.

7 Series A/B, No. 50, p. 388.

8 See, for example, case of S.S. Wimbledon, Publications of the Court, Series A, No. 1, pp. 23-25; Advisory Opinion No. 10 concerning exchange of Greek and Turkish Populations, Series B, No. 10, pp. 19-21; Advisory Opinion No. 7 concerning the acquisition of Polish Nationality, Series B, No. 7, p. 20; Advisory Opinion No. 12, in relation to the frontier between Turkey and Iraq, Series B, No. 12, p. 25.

9 See, “ The Interpretation of Treaties by the Permanent Court of International Justice,” this Journal , Vol. 24 (1930), p. 1 at p. 19.