Reception of international labour standards in common-law legal systems

• Jurisdiction: South Africa
• Published date: 15 August 2019
• Date: 15 August 2019
• Author: Halton Cheadle
• Pages: 348-364

Reception of international labour standards

in common-law legal systems

HALTONCHEADLE*

Fundamental human rights, which include the core international labour

standards, are inherent in all human beings and f‌ind expression in international

human rights instruments, national constitutions and legal systems throughout

the world. Although the dualist approach to international law regards domes-

tic law and international law as separate systems of law, there has been an

increasing use of international human rights law by municipal courts in

common-law systems that adopt the dualist approach. Common-law systems

provide a range of mechanisms for incorporating international law into

domestic law or relying on it to develop domestic law.The contribution looks

at three broad mechanisms of incorporation: legislative enactment (transfor-

mation); common-law incorporation (international customary law and

common-law development); and constitutional and statutory interpretation.

It argues that even in the most rigid of dualist approaches, there are legal

pathways available to practitioners and courts to use international labour

standards as a source to enrich domestic law and harmonise it with compara-

tive and international best practice.

I INTRODUCTION

It is the vital duty of . . . [the] judiciary . . . to interpret and apply national

constitutions and ordinary legislation in harmony with international human

rights codes and customary international law, and to develop the common law

in the light of the values and principles enshrined in international human rights

law.

1

There is an increasing use of international law in municipal courts even in

countries that adopt the dualist approach to the reception of international

* Professor of Public Law, University of Cape Town. This contribution is based on an

annual presentation that I currently give in a course on ‘International Labour Standards for

Judges, Lawyers and Legal Educators’at the ILO International Training Centre in Turin. I wish

to acknowledge the work of a previous presenter, Justice Robyn Layton (a Judge of the

Supreme Court of South Australia and Chairperson of the ILO Committee of Experts on the

Application of Conventions and Standards), in the preparation of this contribution.

1

Excerpt from the Bangalore Statement reproduced in Lord Lester of Herne Hill ‘The

challenge of Bangalore: Making human rights a practical reality’ 1999 EHRLR 1–20; and see

also Commonwealth Secretariat Developing Human Rights Jurisprudence: Volume8: Eighth Judicial

Colloquium on the Domestic Application of International Human Rights Norms, Bangalore, India

27–30 December 1998 at 267–70.

348

2012 Acta Juridica 348

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law.

2

The frequency, vintage and diversity of application of international

law in domestic law are well illustrated by the cases that follow. There are

several reasons for this. There has been an increasing emphasis on human

rights in international law, and an increasing use of supervisory machinery

to hold governments true to their international law human rights prom-

ises. There are initiatives such as the judicial colloquia organised by the

Commonwealth Secretariat, at which the chief justices and senior judges

of the Commonwealth member states have developed a set of principles

for judicial conduct, a subset of which concerns the use of international

law by domestic courts.

3

The reforms in several common-law countries

provide for greater engagement on the part of the legislature in interna-

tional law-making with the inevitable spill over into adjudication.

4

The

standard-setting activities and outreach programmes

5

of the International

Labour Organization (ILO) have had the effect of an increasing recourse

to international labour standards

6

in municipal law-making, including

adjudication. The harmonisation of commercial and labour law f‌lowing

from the creation of economic trading blocs has also introduced an

international law dimension to municipal labour law,

7

and the dynamic of

globalisation has created not only an easily accessible information

exchange of comparative law but has spawned a new generation of

2

E Gravel and Q Delpech ‘International labour standards: Recent developments in

complementarity between international and domestic systems’ (2008) 147(4) International

Labour Review 403.

3

Judicial colloquia on the DomesticApplication of International Human Rights Norms are

organised by the Commonwealth Secretariat. Their proceedings are published by the

Secretariat. The colloquia are attended by eminent judges from the Commonwealth and South

Asia. The f‌irst was held in Bangalore, India in 1988. Thereafter colloquia have been held in

Harare (1989); Banjul, The Gambia (1990); Abuja, Nigeria (1991); Oxford (1992); Bloemfon-

tein (1993); Georgetown, Guyana (1996); and Bangalore again (1998). They have issued several

statements referred to as the Bangalore Principles (1988), the Balliol Statement (1992) and the

Bangalore Statement (1998), further details of which are discussed below.See nn 17–21.

4

MA Waters ‘Creeping monism: The judicial trend towards interpretive incorporation of

human rights treaties’ (2007) 107 Columbia Law Review 628 at 696; L Barnett and S Spano

‘Canadian parliamentary involvement in foreign policy’ (18 November 2008) available at

http://www.parl.gc.ca/Content/LOP/ResearchPublications/prb0860-e.pdf (accessed on 16

November 2011).Australia, New Zealand, and Canada have implemented reforms providing a

greater role for the legislative branch of government in the negotiation, review, and/or

ratif‌ication of international treaties. In Canada, for example, the executive retains the authority

to ratify treaties, but prior to ratif‌ication, Parliament is now afforded an opportunity to review

the treaty and conduct a non-binding vote whether to recommend its ratif‌ication.

5

The ILO regional off‌ices have provided technical support in labour law reform initiatives

that have culminated in amendments to existing legislation and, on occasion, new statutes,

particularly in southernAfrica and west Africa.

6

I use the phrase ‘international labour standards’as shorthand for a range of instruments and

decisions of the ILO supervisory bodies with varying degrees of legal force. They are the ILO

Constitution, ratif‌ied and unratif‌ied conventions and recommendations, decisions and reports

of the supervisory bodies on those conventions and recommendations, declarations and

resolutions of the ILO Conference, and non-ILO instruments that impact on labour matters.

7

For example, in the European Union and the Southern African Development and

Economic Community.

349RECEPTION OF INTERNATIONAL LABOUR STANDARDS

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