by Professor Alexandre Berenstein, Honorary Chairman of the
Society for Labour Law and Social Security
I was asked to write a chronicle of the International
Society for Labour Law and Social Security to acquaint the
members with its origins and development. This request was
reiterated at the Society's Executive Committee meeting in
Seoul in 1994.
At first I hesitated to accept this task because
a fairly comprehensive account of our Society's founding and
its first twenty years had been very competently written by
the late Professor A.F. Cesarino, Jr. It is reproduced in
the volume published in memory of Professor Otto Kahn-Freund
(Endnote 1)
who, like Cesarino himself, had been President and Honorary
President of the Society. I did not want to compete with our
illustrious colleague and repeat what he had already done
so brilliantly.
In the end I accepted, however, on the understanding
that, instead of a comprehensive history of the Society, I
would focus on my own recollections of its creation and first
years of existence.
It is fitting that at the outset I recall the
memory of two persons who have been the precursors and leading
spirits of our Society: the late Professor Renato Balzarini,
of Trieste, and Professor Cesarino, Jr., of São Paulo.
Both were eminently dynamic personalities with a clear vision
of the international dimension of labour law. Both had understood
that with the creation and development of the International
Labour Organization, labour law could not be restricted to
any one country and remain circumscribed by national boundaries,
but that it had already become, in part at least, international
law and that comparative law played, and continued to play,
an important role in this regard. It was only natural that
an international group of jurists should be formed with an
interest in pursuing the development of labour law beyond
the narrow confines of any particular country, and in dealing
with issues such as the relationship between national systems
of labour law, and how international and national labour law
influence each other. Hence, the creation of an international
association with these goals in mind seemed not only useful
but also necessary.
The First International Congress of Labour
Law was convened in 1951 in Trieste, at Professor Balzarini's
initiative, by the University of Trieste and the International
Institute of Labour Law of Rome. Its agenda covered basic
topics ideally suited to prompt the creation of an international
organization of labour jurists: development of international
labour law and of a common labour law, and the codification
of labour law (Endnote
2). Leading jurists from Europe as well as North
and South America participated. A motion to set up an international
organization of labour jurists, jointly with the International
Society for Social Law (ISSL), founded in 1950 by Professor
Cesarino in São Paulo, was carried.
The ISSL in turn convened its First International
Congress for Social Law in São Paulo in 1954, at which
numerous jurists from North and South America and Europe attended.
The agenda focused on the individual contract of employment,
the collective agreement and social security (Endnote
3). Thus, the latter discipline became linked to labour
law through "social law". One decision that emerged
from São Paulo contemplated the convening of a second
Congress on social law in Brussels in 1958.
Meanwhile, as a follow-up to the decisions
taken in Trieste, Professor Balzarini requested me to organize
the Second International Congress of Labour Law in
Geneva. The launching of an international association of labour
law was to be taken up on that occasion.
The International Labour Office agreed to collaborate
in the organization of this congress which met in 1957, and
assumed responsibility for the agenda item dealing with the
relationship between labour problems and private international
law. The other agenda item, which referred to content, legal
effects, application and execution of collective agreements
was handled by the Swiss organizers of the Congress (Endnote
4). The proposal to create an international association
was approved at a sitting devoted to discussing the subject,
and a committee was appointed to contact the ISSL.
A meeting was organized in 1958 in Geneva under
the chairmanship of Mr. Alfred Borel who, as Geneva's cantonal
minister of public education, had presided the 1957 Congress,
and was attended by Prof. Cesarino, President of the ISSL;
Mr. C. Wilfred, Jenks, Deputy Director-General of the ILO,
who had also been one of the Vice-Chairmen of the Congress;
Mr. Jean de Givry, ILO; and myself. Full agreement was reached
on the organization of the new association. It was to be officially
launched at the Brussels Congress the following year. The
task of drawing up draft Statutes was entrusted to me.
It was against this backdrop that the Second
International Congress for Social Law met in Brussels.
In reality, the Congress held sittings at different Belgian
universities: Brussels, Ghent, Liège and Louvain. The
central topic, discussed under six sub-headings, was the role
of the State in regulating labour and in organizing social
security (Endnote
5).
At its sitting of 13 June 1958 in Brussels,
the Congress unanimously approved the Statutes of the new
association. Thus, the merger of the ISSL with the international
congresses of labour law brought into being a new non-governmental
organization that would embrace jurists of different countries
concerned with labour and social security laws. The International
Society for Labour Law and Social Security was born.
A few explanations are in order for a better
understanding of the Statutes. To begin with the title: its
original wording was to have been "International Association
for Labour Law and Social Security", but was changed
subsequently, at the request of the Secretary General of the
International Social Security Association (ISSA), Mr. Wildmann,
to avoid any possible confusion with the latter. As an organization
comprising social security institutions from around the world,
and with headquarters in Geneva, the ISSA wielded considerable
influence. Mr. Wildmann was prepared to lend support to our
association -- which was to include in its membership both
labour law and social security specialists, who could sometimes,
but not always, be the same persons -- provided the proposed
title was modified. We had no problem in acquiescing and the
term "International Society" was therefore adopted.
As mentioned above, the new association was
to embrace two disciplines: labour law and social security.
Both disciplines had a common origin. Over time, however,
as a result of the development of social insurance, and subsequently
of social security (and of social protection), the latter
made great strides and became a discipline in its own right,
often far removed from labour law. Yet both have much in common
and are major components of what in French terminology is
referred to as "social law", which covers legal
norms meant to implement social policy. Hence the unanimous
desire to bring together within a single association the proponents
of both disciplines. It was also agreed that the Society would
devote equal attention in its activities to both disciplines.
This is why they are reflected in the Society's title and
why each one is given adequate treatment at each of the congresses.
Still on the subject of the title, another
problem arose with regard to the English version. Our American
and British friends pointed out that the term "social
security" was not sufficiently rooted in the English
language as to warrant talking of the "International
Society for Labour Law and Social Security". While some
believed that the term owed much to the American "Social
Security Act" and to the Beveridge Plan, we were told
that in the United States "social security" was
regarded as synonymous with the system created under the Act
and did not have any wider connotation despite the ILO's Convention
No. 102. That is why at first the Society was called "International
Society for Labour Law and Social Legislation" in English.
The German and Spanish versions did not pose any problem.
The Society's purpose was "to study, for
scientific purposes, labour law and social security law at
both a national and an international level, and to promote
the exchange of ideas and information as well as the closest
possible collaboration among the jurists from different countries
within the fields of labour law and social security".
Registered in Geneva, the Society is governed
by the Swiss Civil Code. This is among the most liberal, since
all that is required for the constitution of an association
is a statute setting out the necessary structure. Under Swiss
law, non-lucrative associations like our Society require neither
an official authorization nor any type of official registration.
One basic feature of the Society in its early years was individual
membership. Theoretically, only the Executive Committee could
approve the admission of new members, who, according to the
Statutes, had "to justify their interest in labour law
or social security law, based either on scientific work or
on the nature of their professional activities" to be
eligible. A requirement, however, was that candidatures had
to be routed through national associations duly recognized
by the Executive Committee, wherever such existed. In reality,
however, the Executive Committee decided that, unless in doubt,
candidatures put forward directly by the national associations
would be considered valid. As a testimony to the merger operated
in Brussels, it had been agreed that the members of the ISSL
and of the International Commission elected by the Geneva
Congress as well as the rapporteurs of the four international
congresses should be founding members of the Society.
As for the Society's structure, the Statutes
provided for a General Assembly of its members to meet on
the occasion of each congress, a Board of Directors composed
of between one and five representatives per country appointed
by the General Assembly, and - last, but not least - an Executive
Committee appointed by the Board of Directors to run the day-to-day
affairs of the Society. In practice, however, this structure
remained largely theoretical. Very soon the Board of Directors
was replaced by the Executive Committee whose members were
appointed by the General Assembly. The Congress, meeting once
every two to five years, would continue to be devoted to scientific
tasks and be open to persons not members of the Society.
The Brussels Congress appointed the Executive
Committee members and designated Paul Durand, internationally
renowned professor at the Law Faculty of Paris, as President
of the Society. I was appointed Secretary-General.
So much for the Society's launch. Its first
years of existence could well be termed the heroic period,
in the sense that, because of the individual nature of the
Society's members, there was a direct link between them and
the Secretary-General. The Society periodically published
updated membership lists, and members who paid their dues
received their membership cards, usually through the national
associations, signed personally by the Secretary-General and
the Treasurer. The last membership list to be issued was on
1 March 1973 and included 1,143 names from 47 different countries.
Communication with members was conducted through
circulars. The series marked (CE) was for members of the Executive
Committee, the (S) series was for the national associations
and the (M) series was used for the individual members, especially
in advance of the international congresses. The circulars
contained information about the Society's own activities and
those of the national associations.
Apart from organizing international congresses,
the Society has established close contacts with other international
organizations. These include the International Labour Office,
which had helped with the setting up of the Society and is
represented in it, and the ISSA with which an agreement had
been reached providing for its representation in the Executive
Committee. Close links have also been established with the
International Association of Legal Sciences and the International
Association for Comparative Law. Good relations existed with
the now defunct International Association for Social Progress,
the successor organization of the International Association
for the Legal Protection of Workers which in turn had been
one of the forerunners of the ILO.
The Society also sponsored the International
School for Comparative Labour Law in Trieste, originally set
up by the International Faculty of Comparative Law in Strasbourg
which in turn was an off-spring of the International Association
for Comparative Law. Professor Balzarini directed the School,
which was presided first by Otto Kahn-Freund and subsequently
by me. Courses were held every year in July and August by
professors from different countries who were leaders in the
realm of labour and social security law. Many of the students
later became university professors and presently play an important
role in our Society.
A few years after the founding of the Society
saw the creation of the International Industrial Relations
Association (IIRA) which, while pursuing similar aims, focused
on just one aspect of social policy, namely industrial relations
and did this from different perspectives that went beyond
a strictly legal approach of the subject. Hence, its membership
included economists and sociologists in addition to jurists.
Though the Society's Statutes were modified subsequently to
permit membership of economists and sociologists, whose disciplines
were inseparably tied to ours, we fully understood the reasons
behind the creation of the new organization and have therefore
established close relations with it. Relations also exist
with other specialized organizations and regional bodies,
such as, in particular, the Ibero-American Association for
Labour Law.
The Society's initial and most pressing concern
at the time of its creation was the preparation of the next
scientific congress as a follow-on of those held in Trieste,
São Paulo, Geneva and Brussels, to be known as the
Fifth International Congress for Labour Law and Social
Security. With this in mind our President, Paul Durand,
immediately contacted various Latin American countries, but
to no avail.
Then tragedy struck. In March 1960 we learned
to our great dismay that our President, who had gone to Morocco
to give a course, and his wife, had been killed in the terrible
Agadir earthquake of 29 February. This piece of sad news was
not only a blow to each one of us personally, but also frightened
us because we lost a president whom we had just elected and
on whom our Society had pinned such high hopes.
We had not foreseen the designation of a vice-president.
I thought that it was within the prerogatives of Professor
Cesarino, honorary President of the Society, to step in as
an acting president. He turned down the suggestion in the
belief that it was incumbent on the Secretary-General to assume
such a responsibility. It was now up to me to take the necessary
steps to secure the nomination of a successor. The situation
could not have been more delicate. In those days travel was
not as easy as at present, so that convening the Executive
Committee members at short notice, many of whom came from
distant countries, would have carried the risk of our ending
up with a rump committee that would not have been sufficiently
representative. I therefore proposed that we proceed by mail
ballot, whereby each Committee member would be entitled to
vote for three candidates in order of priority, with the first
name listed on the ballot sheet being assigned three points,
the second two points and the third one point. This would
produce a more reliable result than if each member were asked
to vote only for one candidate. My suggestion was duly accepted
and Otto Kahn-Freund, professor at the London School of Economics,
and like Professor Durand an outstanding authority in labour
law, obtained the highest number of votes. I informed him
of the results and on asking him if he would accept, he replied
in the affirmative. I then advised the other members of the
Committee and asked them if they would unanimously vote for
Kahn-Freund in a second round. Everybody agreed. May I thank
here all concerned for the trust they placed in me, for I
was the only one to receive and verify the ballot sheets and
to announce the results!
Once Kahn-Freund was in office, preparations
for the convening of the Fifth Congress were taken up again.
The greatest difficulty, as Professor Durand had already discovered,
lay in finding support, such as meeting facilities, from a
government or from another source. Labour law at the time
simply did not have the same status within legal science as
at present.
One of our colleagues, André Brun, professor
at the Faculty of Law in Lyon, finally volunteered to take
in hand the material arrangements for the Fifth Congress.
The Executive Committee accepted the offer enthusiastically
and the Congress met in Lyon in 1963. The agenda comprised
the following topics, as approved by the Executive Committee:
the relationship between unions and their members; the settlement
of disputes arising from the exercise of disciplinary authority
by the employer, including dismissal; the liability of the
individual worker for damage done to the employer, to fellow
workers and to third parties; and employer's relationship
with social security in the event of work accidents or occupational
illnesses (Endnote
6).
The Fifth International Congress for Labour
Law and Social Security, which met in Lyon, was magnificently
organized. Our friend Brun had been bold enough to volunteer
organizing it thinking that its financing would be easy to
arrange. Unfortunately his initial funding appeals went almost
unheeded, and at the Congress's opening he was still wondering
if he would obtain the money he needed to meet all the bills.
But his audacity paid off: the media echoed the success of
the Congress and money began to pour in, thus relieving the
organizers' anxieties.
The same problem arose again when it came to
publishing the Proceedings. No funds were available to pay
the printer. Fortunately, however, on the occasion of a trip
to the United States, Kahn-Freund was able to reach an agreement
-- thanks to the help of the President of the American branch
of our Society, Harold Katz -- with the School of Law of Ringers
University in New Jersey for the publication of the Proceedings
since in any event the University had the authority to publish
the English language version of the main reports submitted
to the Lyon Congress (Endnote
7). Shortly afterwards Brun was informed that official
funds had become available, but they were no longer needed!
The Sixth Congress was held in Stockholm
in 1966 under the direction of Folke Schmidt, professor at
the University of Stockholm (Endnote
8). From then on our congresses became a matter
of routine. The Society was well represented in most countries
and had reached cruising speed. Since my purpose is to give
an account of the beginnings of our Society, I am not detailing
the topics here which were discussed in Stockholm; they are
enumerated in the annex which also contains details of the
subsequent congresses.
Since Otto Kahn-Freund declined to be re-appointed,
he was succeeded by Folke Schmidt in the presidency of the
Society. It was during his term that, at the invitation of
Professor Waclav Szubert, head of the Polish association,
the Seventh Congress was convened in Warsaw in 1970 (Endnote
9). This Congress, the first and only one to be held
in an East European country, turned out to be as successful
as the preceding ones. Apart from the scientific topics, the
Congress devoted one of its sittings to discussing collaboration
with the ISSA and another to the 50th anniversary of the ILO.
As an anecdote, I should recall that it was our Polish friends
who designed for the occasion what has since become the Society's
logo: the paragraph sign and within it a cogwheel, the former
symbolizing the law and the latter, labour.
The Eighth Congress met four years
later, in 1974, in Selva di Fasano, Italy, at the invitation
of the Italian association, presided by Professor Giuliano
Mazzoni (Endnote
10). A few days before the Congress met, the ILO
organized a roundtable meeting in Geneva for the benefit of
the Third World country representatives who then participated
in the Congress.
On this occasion, both the Society's President
and its Secretary-General asked to be relieved of their functions:
the President, because he felt the moment had come to leave
office, and the Secretary-General (myself), because it was
a good time to hand over responsibilities to someone younger
and above all, because I had been elected to the Swiss Federal
Tribunal and would therefore lack the necessary time to devote
to the Society.
Professor Jean-Maurice Verdier assumed the
presidency. As for the secretary-generalship, I thought that
the election would be a propitious occasion to associate the
ILO closer with the Society's activities. The ILO had indeed
been giving us moral backing, but had let it be known that
it could not provide any material support, except in special
instances. Hence, there was every advantage in seeking to
integrate the Society's secretariat into the ILO. The Office
could be entrusted with such secretariat functions as the
publication, and dispatch, of the circulars and bulletins
in the languages used by the Society - a task for which the
ILO was far better equipped than the artisanal-style secretariat
which, for want of adequate resources, I had been directing.
Moreover, ILO staff would be well placed, in the course of
their official travel, to maintain and strengthen the Society's
contacts with distant countries. The fact that Geneva had
been chosen as the seat of our Society militated in favour
of this solution. And, besides, did not the ILO already host
the newly established IIRA? There seemed to be no reason for
the ILO not to accord us the same treatment, all the more
so as it had been instrumental in the Society's creation,
thanks at the time to the intervention and active role of
the then Deputy Director-General, and subsequently Director-General,
Wilfred Jenks. The ILO, too, would surely be able to draw
benefits from closer association with the Society.
The Executive Committee members who I consulted
on the matter shared my views. We therefore appealed to Johannes
Schregle, director of the ILO's Industrial Relations and Labour
Administration Department, to take up the Society's secretariat
functions. In the event, we did not have to regret our move
and subsequent developments fully vindicated my views as to
the advantages that could be derived from such an arrangement.
The German association, under the direction
of Professor Gerhard Müller, President of the Federal
Labour Court, and of Professor Franz Gamillscheg, hosted the
Ninth Congress in Munich in 1978 (Endnote
11).
At Selva di Fasano it had been decided that
the Society's Statutes needed to be revised. They were originally
framed with an association of individual members in mind.
With the growth in the Society's membership, however, the
structure became too unwieldy. The Munich Congress offered
an opportunity for the General Assembly to adopt a revised
text of the Statutes.
The principal change concerned membership.
In principle, only national associations, and not individuals,
now become members. Only individuals who are not members of
national associations (either because these do not exist in
their countries or because they are international officials)
can remain as individual members. Likewise, the Society can
also accept membership of scientific institutions. Persons
other than jurists but expert in matters concerning labour
law and social security can qualify for membership of national
associations. The words "Social Legislation" in
the English version of the Society's title were replaced by
"Social Security" to align it with the other languages.
The Board of Directors, which had never functioned, was eliminated.
The Executive Committee's membership would primarily comprise
representatives of all the national associations.
Thus ended what I have termed the "heroic"
period of the Society's existence. The Secretary-General would
no longer be in touch with individual members, but instead
with national associations.
The Society has continued to grow. The following
stages were the Congress in Washington in 1982 (Endnote
12), the one in Caracas in 1985, convened by President
Rafael Caldera (Endnote
13), the Madrid Congress in 1988 organized by Professors
Manuel Alonso Olea and LA. Sagardoy, the one held in Athens
in 1991 and organized by Professor Jean Koukiadis and Dr.
T. Mitsou, and finally, the Seoul Congress in September 1994
organized by Professor Chi-Sun Kim. The venue for the Fifteenth
Congress, scheduled for September 1997, is to be Buenos Aires.
I should add that Professor Cesarino, one of the Society's
honorary Presidents, was appointed to succeed Professor Verdier
on completion of the latter's term; that Professor Benjamin
Aaron, who had chaired the Washington Congress, was in turn
appointed in Caracas President of the Society. The subsequent
Presidents of the Society have been László Nagy,
professor at Szeged, following the Madrid Congress, and Professor
Gamillscheg at the Athens Congress. At present the office
is held by Professor Kim since the Seoul Congress. Johannes
Schregle's term as Secretary-General ended at the Madrid Congress
and he was replaced by another senior ILO official, Jean-Michel
Servais, who, as competent as Schregle, has been following
very much the same line. The Society is thus in good hands.
This historical review would be incomplete
if one were to omit mentioning the geographical expansion
of the Society's activities. The revised Statutes encourage
the holding of regional meetings. Thus, regional congresses
of the Society have been held in the Americas, Asia and Europe,
and more recently in Africa. They are all listed in the annex,
with an indication of their agendas. Many of the national
associations, of course, also periodically organize congresses.
Finally, I should recall that the bulk of the
functions of the now defunct Trieste International School
of Comparative Labour Law, which the Society had sponsored,
have been assumed by Professor Nagy's International Seminar
for Comparative Labour Law and Social Security in Szeged which
offers courses in the summer months. May I on this occasion
commend Professor Nagy for his initiative.
Thus, as we have seen, the International Society
for Labour Law and Social Security has been able to advance
the cause of these legal disciplines, either directly through
its own activities or indirectly through activities it has
sponsored elsewhere. It is safe to say that the Society has
fulfilled its founders' expectations.
Alexandre Berenstein
Honorary President of the
International Society for Labour Law and Social Security
November 1994 |
