MULUNGUSHI UNIVERSITY

NAME; Hopekings Kaoma

STUDENT NUMBER; 202002550

COURSE; International Labour Law and Domestic Law

COURSE CODE; LIR 461

LECTURER; Mr. Zacks Yuma

QUESTION; It is often stated that domestic courts play a crucial role in the implementation of
international legal norms at the national level. However, different legal, as well as political factors
influence the efficiency of the implementation of constitutional provisions with regards to international
law and its place in the domestic legal order in a state. Such factors may favour or, to the contrary,
oppose direct application of international law and include the nature of applicable rules, independence
and professionalism of the judiciary, participation in international institutions and strengths of national
democratic institutions as well as the rule of law. While in some of the states’ constitutional provisions
concerning international law have little impact on the functioning of national legal systems, the most
important precondition for the effective implementation of such constitutional provisions is the
establishment of the rule of law and democratic institutions in a given state. With your recently acquired
skill in international labour law and domestic law, give an opinion on how to international conventions
are utilized by the adjudicators in resolving conflict both in a single and dual legal system.

DUE DATE; 2nd October, 2023.

The adjudicators of domestic law in different types of legal systems play an important role in the
utilization of international conventions as they are the ones vested with the interpretation of laws in
their country. In monist countries the application or implementation of international conventions is
stated to be directly applicable to any case at hand provided that the convention that the adjudicators
are relaying on is a convention that has been ratified by the state.

International conventions in any country has I have come to learn in studying international labour law
can be utilized in various ways but my main focus in this essay is going to focus on how adjudicators can
utilize international conventions to resolve a dispute.

RESOLVING OF A CONFLICT

Both monist and dualist countries can refer to an international convention that has been ratified and
whether it has been or has not been domesticated to resolve a dispute before them directly. This can be
done in three ways. The first is; to fill a gap in domestic law.

TO FILL A GAP IN DOMESTIC LAW

This means that were there is no relevant provision in domestic law to address or resolve the dispute
brought before the domestic court, the domestic court can rely on the use of a ratified international
convention.

In India, in Vishaka and others v. the State of Rajasthan and others, Supreme Court of India, 13 August
1997. In the absence of specific legislation defining and prohibiting sexual harassment at work, the
Supreme Court of India referred to the United Nations Convention on the elimination of all forms of
discrimination against women, and to the comments of its Supervisory Body. On this basis the Court
ruled that the general prohibition of sex discrimination enshrined in the Constitution should also be
interpreted as prohibiting cases of sexual harassment as defined internationally. As regards the use of
international law as a guide for interpretation, the Court stated as follows: ‘It is now an accepted rule of
legal interpretation that attention must be drawn to international conventions and standards to
construe domestic law when there is no incompatibility between them and when there is a gap in the
domestic law. There is no reason why these international conventions and standards cannot be used to
construe the fundamental rights specifically guaranteed by the Constitution of India, which embodies
the basic concept of gender equality in all spheres of human activity1.’

The case that I have referred to above saves as an example of how domestic courts can refer to an
international convention to help them resolve or address an important issue before them if the
domestic legislation is not clear or silent on such an important issue. This case shows how the domestic
adjudicators can utilize international conventions to resolve a dispute.

1
Xavier Beaudonnet (2010 p.26)
In Italy, in the case of AMSA v. Miglio, Milan Court of First Instance, 28 March 1990. In this case the
Italian court did not have any domestic provision to specify the amount to wages to paid during paid
holidays. The Court of First Instance referred to the ILO Holidays with Pay Convention (No. 132)20,
ratified by Italy. Article 7(1) of the Convention states that the remuneration received during the period
of the holiday shall not be lower than the normal or average remuneration received by the worker 2.

In this case referred to above the adjudicators were not sure of the amount to be paid to workers while
on holiday, to resolve this conflict the court relied on international conventions.

In Zimbabwe, in the case of Frederick Mwenye v. Textile Investment Company, Industrial Relations
Court, 8 May 2001, No. LRT/MT/11/01.Noting the gap in domestic legislation in the area of sexual
harassment, the Court of First Instance relied directly on General Recommendation 19 of the Committee
on the Elimination of Discrimination against Women54 to classify the complainant’s conduct as sexual
harassment and thus confirm that his dismissal was valid.

In this case referred to above the adjudicators relied on an international convention to help resolve the
dispute of sexual harassment that had occurred at the work place.

The second way in which courts can resolve a dispute is; .to set aside a provision of law less favourable
to workers.

TO SET ASIDE A PROVISION OF LAW LESS FAVOURABLE TO WORKERS

This does not mean that the international provision being relied on has invalidated the domestic law,
this simply means that the domestic court is going to rely on it’s provisions because it offers more
protection to workers than the domestic law.

In Brazil, to similar effect in connection with holidays with pay, the Brazilian labour courts give priority
to the direct application of Articles 5 and 11 of ILO Convention No. 13222 over the domestic legislation
in order to grant holiday pay to workers whose contract concludes within less than one year 3.

As well as in Colombia, the Constitutional Court of Colombia, 5 February 2000, Case C-385/2000. The
Constitutional Court of Colombia declared that an article of a statute limiting foreign workers’ access to
senior posts in trade unions was unconstitutional, ruling primarily that it violated Article 3 of ILO
Convention No. 8725, which, among other things, recognizes trade unions the right to elect their
representatives in full freedom4.

Both of these case referred to show how the domestic court can rely on the provisions of the domestic
court were there is a conflict involving workers if the international convention offers more protection to
workers than the domestic legislation and is therefore more favourable to workers than the domestic
legislation.

In France, in the case of Castanié v. Dame veuve Hurtado, Cour de cassation, Appeals Division, Req.
27 February 1934. In relation to a dispute concerning the right of a foreign worker involved in an
industrial accident to obtain compensation equal to that of a French worker, the Cour de cassation did
not hesitate to set aside the 1898 act on work-injury provisions to apply directly Article 1(1) of the ILO
2
Xavier Beaudonnet (2010 p.18)
3
Xavier Beaudonnet (2010 p.18)
4
Xavier Beaudonnet (2010 p.19)
Equality of Treatment (Accident Compensation) Convention (No. 19)21. This Article stipulates that each
State that ratifies the Convention undertakes to grant to the nationals of a country that has ratified it
who suffer personal injury due to industrial accidents the same treatment as it grants to its own
nationals.

In Canada, in the case Dunmore v. Ontario (Attorney General), Supreme Court of Canada, 20
December 2001, No. 2001 CSC 94. The Supreme Court of Canada, construing the Canadian Charter of
Rights and Freedoms in the light of Article 2 of ILO Convention No. 8745, invalidated a provincial act
excluding agricultural workers from the guarantees afforded to other workers in the area of freedom
of association.

In the case that I have referred to above the court held that lack of a positive framework that protected
farm workers from employer reprisals for exercising their associational rights under the Charter
constituted a “substantial interference” of their right to freedom of association. The court invalidated
the provincial Act because it offered less protection to the rights of farm workers.

The third situation in which domestic courts can implement or utilize international conventions
directly to resolve conflict is; to invalidate a domestic provision that is against a ratified international
convention.

TO INVALIDATE A DOMESTIC PROVISION THAT IS AGAINST A RATIFIED INTERNATIONAL CONVENTION.

In Chile, in the case of Víctor Améstida Stuardo and others v. Santa Isabel S.A., Supreme Court of Chile,
19 October 2000, Case No. 10.695. The Court had to determine whether the special protection granted
to workers’ representatives was applicable to workers who had applied to be trade union
representatives just before their union was officially registered. Noting the contradiction between two
articles of labour legislation concerning the starting point for granting the status of trade union
representative, the Supreme Court of Chile referred to the ILO conventions ratified by the country to
determine which of the two solutions should ultimately prevail. The Court referred in particular to
Article 3 of ILO Convention No. 8742, which gives trade unions the right to elect their representatives in
full freedom, and to Conventions No. 9843 and No. 13544, which require states to ensure effective and
adequate protection against discrimination for workers engaged in trade union activities. On this basis
the Supreme Court ruled that the domestic legislation should have been so construed that persons
applying to be representatives were effectively protected against discrimination even when their
application was submitted before the union was officially registered. As regards the use of international
law as a guide for interpretation, the Supreme Court held as follows: ‘It is clear that, in the light of any
doubts our domestic law may raise, the principles of international legislation set down in International
Labour Conventions Nos. 87, 98 and 135 should be taken into consideration, taking particular account of
the provision in Article 5 of the Constitution of the Republic. Article 3 of the Freedom of Association and
Protection of the Right to Organize Convention (No. 87) refers to the autonomy of these organizations,
one aspect of which is the freedom to elect their representatives. It seems obvious that if, due to the
formation of a trade union and the election of its officials, representatives are dismissed for an
undemonstrated presumed need of the company, our legislation will not be consistent with
international legislation.’
 In Costa Rica, in the case of Antonio Blanco Rodríguez and others v. the President of the Republic, the
Minister for Government and Policy, the Institute for Agrarian Development and the National
Commission for Indigenous Affairs, Supreme Court of Justice, Constitutional Division, 11 August 1999,
Res. No. 06229-aa, Exp. No. 96-007361-007-CO-C. The Supreme Court of Costa Rica invalidated a decree
reducing the size of an indigenous reservation on the sole ground that it violated Article 11 of ILO
Convention No. 107245.

In Germany, Constitutional Court of the Federal Republic of Germany, 18 November 2003, 1 BvR
302/96 In this case concerning the validity of a maternity insurance scheme where the employer had to
directly pay part of the benefits to the employee, the German Federal Constitutional Court ruled that
this method of financing was unconstitutional since in practice it could encourage discrimination against
women. In this judgment the Court not only reinforced its thinking by referring to the objectives of ILO
Convention No. 11151, but also referred to Article 6(8) of ILO Convention No. 18352, which Germany
has not ratified.

In the case that I have referred to above, the court ruled that the maternity scheme was
unconstitutional when it referred to the international convention and thus invalidated the scheme.

There are many was in which adjudicators can utilize international conventions to help them resolve
conflicts in a case before them, the three situations in which courts can utilize international conventions
to help them resolve conflicts in cases are just of the ways that I have come to learn while studing
international labour law and domestic law.

The general conclusion that one can draw from this essay is that adjudicators of any state, whether a
monist or dualist state can utilize international conventions to help them resolving a conflict in any case
before them if that international convention is more clear, specific and in line with the rule of law.

REFERENCE LIST

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Xavier Beaudonnet (2010 p.19)
1. Xavier Beaudonnet, 2010, International Labour Law and Domestic Law: A training manual for
judges, lawyers and legal educators, International Training Center for ILO, Turin, Italy.