The Legitimacy of General Surveys

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Title: The Legitimacy of General Surveys
Author: Mooney, Stuart
Other contributor: Helsingin yliopisto, Oikeustieteellinen tiedekunta
University of Helsinki, Faculty of Law
Helsingfors universitet, Juridiska fakulteten
Publisher: Helsingfors universitet
Date: 2017
Language: eng
Thesis level: master's thesis
Discipline: Kansainvälinen oikeus
International law
Abstract: This thesis assesses the legitimacy of general surveys. General surveys are drafted by an independent body of eminent jurists in the International Labour Organization (ILO) called the Committee of Experts on the Application of Conventions and Recommendations (CEACR). Intended to guide state behaviour, general surveys are in-depth analyses of the law and practice of Member States on important international labour law issues. They are said to contain 'authoritative interpretations' of ILO conventions. But there is a debate in the ILO over the legitimacy of general surveys, particularly regarding the 'right to strike'. As general surveys rely primarily on their persuasive rather than legally-binding authority, it is critical to understand and improve their legitimacy to ensure their effectiveness. This analysis focuses on general surveys from 1988, 1994 and 2012. For background and context, the thesis looks first at their legal basis and international legal status. In this regard, from a legal positivist perspective, general surveys are not easily seen as a source of international law. It is also hard to justify calling them 'soft law jurisprudence', 'authoritative interpretations' of ILO instruments or to claim that they progressively develop or make international law. But general surveys might be 'authoritative' as a 'subsidiary means for the determination of rules of law' under article 38(1)(d) of the Statute of the International Court of Justice and as a 'supplementary means of interpretation' under article 32 of the Vienna Convention on the Law of Treaties. After discussing general surveys' legal significance, the thesis then assesses their legitimacy. This is done by adapting and applying the model of legitimacy developed by Thomas Franck in The Power of Legitimacy among Nations (1990) and elsewhere. In Franck's model, the legitimacy of general surveys is determined by how they are drafted and attributes of their text. There are four elements of legitimacy: 1. 'Determinacy': general surveys enjoy high textual clarity and a consistent use of hortatory and imperative language. But their purposes and audience are unclear, and there is no effective clarification process to resolve ambiguity in ILO instruments. 2. 'Symbolic validation': the monitoring process may be a signal for compliance, but general surveys are associated with little ritual and their pedigree is mixed. 3. 'Coherence': general surveys contain uniform application of rules and principles, consistent interpretative practices, and exist in close relationship with other ILO rules and principles and with relevant principles and institutions of international law. 4. 'Adherence': general surveys are made in a well-developed framework, show respect for the rules of treaty interpretation, and connect with 'higher' principles of the ILO and international law. But the absence of a settled community at which they are directed, the lack of formal CEACR competence to issue ‘authoritative interpretations’ of ILO conventions, and their weak connection to state consent as a 'rule of recognition' of international law reduce their adherence. The analysis concludes that general surveys have a significant degree of legitimacy. There are, however, aspects of their drafting that weaken this legitimacy and reduce their inherent persuasiveness. The areas in which the legitimacy of general surveys are weak correspond to recurrent tensions about the legal nature and significance of general surveys and the CEACR's 'quasi-legal' status. The legitimacy of general surveys could be improved by changing certain aspects of the drafting process. Ultimately, however, such changes should be made in light of what the CEACR recognizes as the source of its authority: morality. Ensuring CEACR members exercise not only technical expertise but virtue may be the best way to enhance the legitimacy and persuasiveness of general surveys. More broadly, a principled commitment to the 'virtuous interpretation' of ILO instruments may help improve the legitimacy and effectiveness of the ILO as an institution.

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