The Development and Efffectiveness of International Administrative Law Queen Mary Studies in International Law

Edited by Malgosia Fitzmaurice Panos Merkouris Phoebe Okowa

VOLUME 8

The titles published in this series are listed at brill.nl/qmil The Development and Efffectiveness of International Administrative Law

On the Occasion of the Thirtieth Anniversary of the World Bank Administrative Tribunal

Edited by Olufemi Elias

LEIDEN • BOSTON 2012 Library of Congress Cataloging-in-Publication Data

The development and efffectiveness of international administrative law : on the occasion of the thirtieth anniversary of the World Bank Administrative Tribunal / edited by Elias Olufemi. p. cm. -- (Queen Mary studies in international law, ISSN 1877-4822 ; v. 8) Includes index. ISBN 978-90-04-19470-0 (hardback : alk. paper) -- ISBN 978-90-04-20437-9 (e-book) 1. International administrative courts. 2. World Bank. Administrative Tribunal. 3. International organizations. 4. Judicial review of administrative acts. I. Olufemi, Elias. KZ5274.D48 2012 342’.06--dc23 2012015269

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ISSN 1877-4822 ISBN 978-90-04-19470-0 (hardback) ISBN 978-90-04-20437-9 (e-book)

Copyright 2012 by The International Bank for Reconstruction and Development, The World Bank, with offfĳices at 1818 H Street NW, Washington, DC 20433, U.S.A. and Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers and Martinus Nijhofff Publishers.

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This book is printed on acid-free paper. CONTENTS

Foreword ...... ix Stephen M. Schwebel Editor’s Preface ...... xi Olufemi Elias Members of the World Bank Administrative Tribunal ...... xiii List of Contributors ...... xvii

INTRODUCTION

Introduction The World Bank Administrative Tribunal at Thirty ...... 3 Jan Paulsson, David Caron, David G. Hawkes, Anne-Marie Leroy & Graeme Wheeler

Chapter One The de Merode Decision, and its Influence upon International Administrative Law ...... 15 Robert A. Gorman

PART I THE DEVELOPMENT OF INTERNATIONAL ADMINISTRATIVE LAW AS A FIELD OF LAW

Chapter Two Reflections on the Internal Judicial Systems of International Organizations ...... 33 C. F. Amerasinghe

Chapter Three Administrative Tribunals of International Organizations and World Constitutionalism ...... 59 Pedro Dallari

Chapter Four Administrative Tribunals of International Organizations from the Perspective of the Emerging Global Administrative Law ...... 69 Benedict Kingsbury and Richard Stewart vi contents

Chapter Five The Role of Administrative Tribunals in Safeguarding the Independence of the International Civil Service ...... 105 Lisa Tabassi

PART II THE DEVELOPMENT OF INTERNATIONAL ADMINISTRATIVE LAW BY ADMINISTRATIVE TRIBUNALS

Chapter Six Perfection, Best Practice, Adequacy? The Standard Applied by International Tribunals to the Behaviour of International Organizations ...... 129 Peter Hulsroj

Chapter Seven The Treatment of Monetary Problems by International Administrative Tribunals ...... 137 Rutsel Silvestre J. Martha

Chapter Eight Discovery in Administrative Tribunal Cases ...... 187 Marie Chopra

Chapter Nine The World Bank Administrative Tribunal and the Standard of Proof to be Applied in Investigations of Stafff Misconduct ...... 197 David R. Rivero & Yelina Grados

Chapter Ten Immunity of International Organizations, Marital Obligations of their Stafff and their Duty to Comply with National Court Orders: the Development of World Bank Practice and Procedure ...... 203 Zakir Hafez

Chapter Eleven The Scope of World Bank Administrative Tribunal Remedies: Beyond Individual Relief ...... 233 Francis Robert Augustine Sheed contents vii

PART III THE INSTITUTIONAL FRAMEWORK

Chapter Twelve The New United Nations System of Administration of Justice ...... 243 Maritza Struyvenberg

Chapter Thirteen The European Union Civil Service Tribunal: A Three-tier Structure ...... 251 Waltraud Hakenberg

Chapter Fourteen The Step Below: Can Arbitration Strengthen Administrative Tribunals? ...... 265 Arnold Zack PART IV ISSUES OF EFFECTIVENESS AND LEGITIMACY

Chapter Fifteen Desirable Standards for the Design of Administrative Tribunals from the Perspective of Domestic Courts ...... 273 Gregor Novak & August Reinisch

Chapter Sixteen The Evolution of the Independence of Internal Judicial and Quasi-Judicial Organs of International Organizations: The Case of the World Bank ...... 303 Andrés Rigo Sureda

Chapter Seventeen The Efffectiveness of International Administrative Law as a Body of Law ...... 319 Chris de Cooker

Chapter Eighteen The Efffectiveness of International Administrative Law Compared to Some National Legal Systems ...... 333 Roy Lewis viii contents

Chapter Nineteen The Review of Decisions of International Administrative Tribunals by the International Court of Justice ...... 349 Joanna Gomula

Chapter Twenty The Relation between Due Process in International and National Human Rights Instruments and International Adjudication Mechanisms ...... 375 Santiago Oñate Laborde

Chapter Twenty-One Conflicts of Interest in International Administrative Law ...... 387 Nassib Ziadé

CONCLUDING REMARKS

Chapter Twenty-Two The Role of International Administrative Law ...... 397 Melissa Su Thomas & Olufemi Elias

Index ...... 411 FOREWORD

As early in the history of international organizations as 1921, the League of Nations considered the desirability of establishing an administrative tribunal to settle diffferences between the stafff of the League and the Secretary-General. The Director of the International Labor Offfĳice, Albert Thomas, maintained before the Fourth Committee of the League Assembly that, although there was internal machinery provided by joint boards, it was desirable and necessary to provide for the establishment of a juridical body with functions analogous to those of the Conseil d’Etat in France. In 1927, the League Assembly adopted the Statute of the Administrative Tribunal. The Tribunal had jurisdiction over the League Secretariat, the Pension Fund and the ILO. Thirty-seven cases were decided by the Tribunal between 1927 and 1946. When the League was dissolved in 1946, the ILO took over the Tribunal as the Administrative Tribunal of the International Labour Organization, and other international organizations were authorized to accept its jurisdiction. A great many have. From these important beginnings, administrative tribunals have proliferated with the establishment of the United Nations and its Specialized Agencies, and with the founding of a large number of other specialized international organizations. This volume gives a sense of the number and diversity of those organizations. More than that, it analyzes aspects of the international administrative law developed by those tribunals, and addresses salient issues that have come before them. The origins of this volume lie in a conference, on the theme of the “Development and Efffectiveness of International Administrative Law”, held to mark the thirtieth anniversary of the World Bank Administrative Tribunal. That Tribunal, while a relative newcomer to the ranks of international administrative tribunals, has made signifĳicant contributions to international administrative law from the outset of its work. The conference successfully sought to encourage reflection on the evolution of the law of the international civil service as an efffective, and in some measure, distinct part of the law of international organizations and of international law at large. It attracted the participation of leading experts in the fĳield, among them judges of international administrative tribunals and legal advisers of international organizations. x foreword

As the jurisprudence of international administrative tribunals has bur- geoned, there has been a tendency towards convergence in that jurisprudence. Decisions of one administrative tribunal look to those of other administrative tribunals. There has been reconsideration of the opti- mum institutional framework for the administration of justice within international organizations, exemplifĳied by sweeping changes at the United Nations. The papers delivered cast a critical and expert eye over many of these issues. Many of those papers are reproduced in this volume, together with several signifĳicant contributions by other authorities in the fĳield on issues related to the theme of the conference. In the past thirty years, the World Bank Administrative Tribunal has made a substantial contribution to the development of the law of the international civil service. This volume marks and makes it own contribution to that continuing development.

Stephen M. Schwebel President, World Bank Administrative Tribunal EDITOR’S PREFACE

Some years ago, Nassib Ziadé, my predecessor as Executive Secretary of the World Bank Administrative Tribunal, published Problems of Inter- national Administrative Law, a book based on the proceedings of a conference held to mark the twentieth anniversary of the establishment of the Tribunal. In March 2010, another conference was held to commemorate the Tribunal’s thirtieth anniversary. The 2010 conference, which was co- hosted by the Tribunal and the American Society of International Law, was held at a time of some debate regarding the design of the internal justice mechanisms of international organizations, the most noted of which surrounded the overhaul of the internal justice system of the United Nations. Furthermore, certain recent decisions of some national courts have attracted attention for the scrutiny to which they subjected the internal justice mechanisms of some international organizations. The conference thus provided an opportune moment for reflection on these developments. This book includes a series of essays on topics of interest in international administrative law that build upon the important issues addressed at the conference, and addresses issues of current signifĳicance in international administrative law. It includes some of the presentations made to the conference as well as other contributions from leading academics and practitioners in the fĳield. The volume begins with an introductory section containing the remarks delivered at the opening session of the conference. Those opening remarks are followed by the keynote address delivered at the conference by Judge Robert A. Gorman, former President, founding member and longest-serving judge in the history of the Tribunal, on the signifĳicance for international administrative law of the Tribunal’s fĳirst judgment, de Merode et al v International Bank for Reconstruction and Development (1981). Part I of the volume contains a number of essays relating to the existence, development and role of the body of law known as international administrative law or the law of the international civil service as a fĳield of law applicable in and to international organizations. Part II contains essays on various aspects of the role of administrative tribunals and their contribution to the development of particular areas of administrative law. Part III contains some reflections on the implications of and prospects for a general appellate function in international administrative tribunals, a xii editor’s preface timely question following the establishment of a two-tier tribunal system by the United Nations in 2009. Part IV addresses a number of questions related to the efffectiveness and legitimacy of international administrative law, some of which are the subject of much discussion in view of recent judgments of national and human rights courts in which international administrative tribunals have been evaluated according to standards based on human rights law, especially the right to a fair hearing, and other constitutional or national law standards. This Part also deals with the often-mentioned question of the independence of international administrative tribunals from the organizations over whose actions they exercise jurisdiction. This volume would not have been possible without the support and encouragement of all the members of the Tribunal, especially Professor Jan Paulsson, who was President of the Tribunal at the time of the conference. I am also grateful to Ms. Elizabeth Andersen of the American Society of International Law. I also wish to extend my sincere gratitude to all contributors to this book for their most insightful essays. This volume was very much driven by the rich discussions which were provoked by many of the speakers at the conference, and I thank Ms. Celia Goldman, Ms. Antigoni Axenidou, and Mr. Hernán Sáenz-Jimenez for their contributions at the conference. I am also grateful for the support of my colleagues at the secretariat of the World Bank Administrative Tribunal, namely Ms. Sofĳia Chatzikonstanti, Dr. Zakir Hafez, Ms. Denise Burgess, Ms. Vicky Berberi- Doumar, Ms. Meenadchi Pillai and Ms. Farkanda Haseen, and I am especially indebted to Ms. Melissa Thomas for her invaluable advice and assistance in preparing for both the conference and the publication of this book. Mr. Martin Endicott prepared the index. I am grateful to Ms. Mayya Revzina of the Offfĳice of the Publisher at the World Bank, and to Ms. Ingeborg van der Laan and Ms. Melissa Andersen of Brill for their support regarding the publication of this volume.

Olufemi Elias Washington D. C., October 2011 MEMBERS OF THE WORLD BANK ADMINISTRATIVE TRIBUNAL (1980 – 2010)

Current Members of the Tribunal

Stephen M. Schwebel (United States) has been a member of the Tribunal since 2007 and its President since 2010. He was President of the Adminis- trative Tribunal of the International Monetary Fund since its inception in 1994 until 2010. He has presided over several important international arbitration tribunals. From 1991 to 2000, he was Judge of the International Court of Justice (ICJ), serving as its Vice President from 1994 to 1997, and its President from 1997 to 2000. Prior to his tenure at the ICJ, he was a Deputy Legal Adviser at the U.S. Department of State, and Burling Professor of Law at the School of Advanced International Studies, Johns Hopkins University. He is former Executive Vice President and Director of the American Society of International Law, and a former member of the United Nations International Law Commission.

Florentino P. Feliciano (the Philippines) is Vice-President of the Tribunal, and has been a member of the Tribunal since 2002. He is Senior Counsel at SyCip Salazar Hernandez and Gatmaitan, Manila, Philippines. He is a member of the Curatorium of the Hague Academy of International Law, and a member of the Institut de Droit International. He is a Senior Associate Justice of the Supreme Court of the Philippines (retired); a former Chairman and Member of the Appellate Body of the World Trade Organization Geneva, Switzerland; a former President and member of the Administrative Tribunal of the Asian Development Bank, Manila; and a former member of the ICC International Court of Arbitration, Paris.

Mónica Pinto (Argentina) is Vice-President of the Tribunal, and Dean and professor at the University of Buenos Aires Law School, where she teaches international law and international human rights law. She was Director for Human Rights Afffairs at the Ministry of Foreign Afffairs and Director of Cooperation and International Afffairs at the Ministry of Justice and Human Rights, Argentina. She was appointed as an Independent Expert by the Secretary-General of the United Nations to examine the human rights situation in Guatemala (1993–97) and in Chad (2004–05). She has appeared before several human rights bodies and tribunals, and xiv members of the world bank administrative tribunal before arbitral tribunals both as an attorney and as an expert. She is currently a Commissioner at the International Commission of Jurists and a member of the Board of Trustees for the Voluntary Fund for Technical Cooperation in Human Rights at the United Nations. She has been visiting professor at Columbia Law School, the University of Paris (I and II), the University of Rouen and The Hague Academy of International Law. She has published extensively in the fĳields of human rights and international law.

Jan Paulsson (France) has been a member of the Tribunal since 1999. He served as its President (2006–2010) and Vice-President (2004–2006). He is President of the Administrative Tribunal of the European Bank for Reconstruction and Development. Professor Paulsson holds the Michael Klein Distinguished Scholar Chair at the University of Miami School of Law where he is also the Faculty Chair of the Specialization in Interna- tional Arbitration. He practices law with Freshfĳields Bruckhaus Deringer, and has participated as counsel or arbitrator in over 500 arbitrations in Europe, Asia, the United States and Africa. He is also the President of the International Council for Commercial Arbitration, a Vice-President of the International Court of Arbitration of the International Chamber of Commerce, a member of the Permanent Court of Arbitration in The Hague, and a board member of the American Arbitration Association.

Zia Mody (India) is a corporate attorney and, according to Business Today, one of India’s 25 most powerful business women. Her expertise includes corporate mergers and acquisitions, securities law, private equity and project fĳinance. After spending four years as a corporate associate at Baker & McKenzie in New York City, she started her own law practice in India in the mid-1980s. Ms. Mody’s law fĳirm is India’s second-largest and an international powerhouse that is at the table for most of the multimillion- dollar deals in India. As an advocate of the Mumbai High Court from 1984 to 2001, she handled commercial litigation in corporate and civil property law and arbitrations. Ms. Mody was recently appointed as a non- executive director of the HSBC global board.

Francis M. Ssekandi (Uganda) has over 35 years of legal practice in various areas, including adjudication, arbitration, mediation and civil conflict resolution. He became a Judge of the High Court of Uganda in 1974 and later Justice of Appeal of the Supreme Court of Uganda. In 1981, he joined the United Nations, where he was Deputy Director of the Offfĳice of Legal members of the world bank administrative tribunal xv

Afffairs and then Director of the Offfĳice of the Special Representative of the Secretary-General in Liberia. In 1997, Mr. Ssekandi was appointed General Counsel of the African Development Bank, where he played a role in a series of institutional reforms, including the establishment of the African Development Bank Administrative Tribunal. Mr. Ssekandi is currently a Professor of Law at Columbia University.

Ahmed El-Kosheri (Egypt) is Senior Partner of Kosheri, Rashed and Riad Law Firm Cairo, Egypt. He has served as a judge ad hoc at the International Court of Justice (1992–2003); Professor of Law and President of Senghor University at Alexandria (1997–2003); a judge at the Admin- istrative Tribunal of the African Development Bank (1997–2002); a member of the UN “Redesign Panel” for the Reform of the UN internal judicial system (2006); Vice-Chairman of the International Court of Arbitration of the International Chamber of Commerce (1998–2009); a member of the Appeal Commission of the International Organization for the Francophonie (since 2002); a member of the International Law Institute (since 1987); and has been either counsel or arbitrator in more than 100 arbitration proceedings. He was General Counsel of the Arab Fund for Social and Economic Development (1973–1974) and Secretary of the Islamic Development Bank (1977–1978).

Former Members of the Tribunal

Eduardo Jiménez de 1980 – 1992 President (1980 – 1989) Aréchaga (Uruguay) Taslim Olawale Elias 1980 – 1982 Vice-President (Nigeria) Prosper Weil (France) 1980 – 1999 President (1990–1992) Vice-President (1980–1989) Ahmad Kamal Abul-Magd 1980 – 2002 President (1993–1996) (Egypt) Vice-President (1982–1992) Robert A. Gorman (United 1980 – 2007 President (1998–2001) States) Vice-President (1993–1998) N. Kumarayya (India) 1980 – 1985 Elihu Lauterpacht 1980 – 1998 President (1996–1998) (United Kingdom) Vice-President, (1990–1996) C.D. Onyeama (Nigeria) 1982 – 1989 xvi members of the world bank administrative tribunal

Tun Muhamed Sufffĳian 1985 – 1995 Hashim (Malaysia) Frederick K. Apaloo 1989 – 1995 (Ghana) Francisco Orrego Vicuña 1992 – 2009 President (2001–2004) (Chile) Vice-President (1996–2001) Thio Su Mien (Singapore) 1995 – 2002 Vice President (1998–2002) Bola A. Ajibola (Nigeria) 1995 – 2007 President (2004–2005) Vice-President (2001–2004) Elizabeth Evatt (Australia) 1998 – 2007 Vice-President (2003–2006) Sarah Christie (South 2002 – 2009 Africa)

Executive Secretaries

Georges R. Delaume* (1980) Bruno M. De Vuyst (1980–1981) Chittaranjan F. Amerasinghe (1981–1996) Nassib G. Ziadé (1996–2007) Olufemi Elias (since 2008)

* Mr. Delaume was designated Temporary Executive Secretary in 1980 “until the Tribunal members can meet and be consulted on the selection of a permanent Executive Secretary”. LIST OF CONTRIBUTORS

C.F. Amerasinghe, B.A., LL.B., Ph.D. (Public International Law), LL.D. (Public International Law, Constitutional Law, Roman-Dutch Private Law) (Cambridge, UK), LL.M. (Public International Law) (Harvard, USA), Ph.D. (Ceylon), is a Member of the Institut de Droit International. Formerly he was a Judge of the UN Administrative Tribunal, and of the Commonwealth Secretariat Tribunal. He has been also an Honorary Professor of Law of the University of Colombo, Sri Lanka, a Full Professor of Law, University of Ceylon, Colombo, and Adjunct Professor of International Law, American University Law College, USA. He was the Executive Secretary (Registrar) of the World Bank Administrative Tribunal from 1981 to 1996. He has been a Fellow of Trinity Hall, Cambridge University, UK. He has, as a consultant, advised governments on public international law. He has published many books and articles on public international law and international administrative law. He has also given legal advice to international organizations and their stafff on matters of international administrative law. He was awarded a Certifĳicate of Merit in 1988/89 by the American Society of Inter- national Law for his two volume work entitled Law of the International Civil Service, and is a Yorke Prizeman (1964) of Cambridge University. David Caron is President of the American Society of International law. He is the C. William Maxeiner Distinguished Professor of Law at the University of California, Berkley Law. Caron practiced with the San Francisco fĳirm of Pillsbury Madison & Sutro. From 1985 to 1986, he was a senior research fellow at the Max Planck Institute for Comparative Public and International Law. A Fulbright scholar and former navigator and sal- vage diver in the U.S. Coast Guard, Caron graduated from Boalt in 1983. He then served as a legal assistant to Judges Richard Mosk and Charles Brower at the Iran-United States Claims Tribunal in The Hague. He was a chair of the Advisory Board for the Institute of Transnational Arbitration of the Center for American and International Law from 2005 to 2009 and a member of the U.S. Department of State Advisory Committee on Public International Law. He is a member of the NAFTA Chapter 11 Arbitration Panels in the matters of Glamis Gold v. The United States and Cargill Industries v. The United States of Mexico. He has served as director of studies (1987), director of research (1995) and as a lecturer (2006) at the Hague Academy of International Law. He was a member of the board of editors of the American Journal of International Law from 1990 to 2005 and received xviii list of contributors the 1991 Deak Prize of the American Society of International Law for outstanding scholarship by a younger academic. He has served as chair of the International Law Section of the Association of American Law Schools, a member of the precedent panel of the U.N. Compensation Commission for claims arising out of the Gulf War, counsel for Ethiopia before the Eritrea-Ethiopia Claims Commission, and president of the International Centre for Settlement of Investment Disputes Tribunal in the matter of Aguas del Tunari v. The Republic of Bolivia. In 2000, he received the Stefan A. Riesenfeld Award of the University of California for outstanding achievement and contribution to the fĳield of international law.

Marie Chopra of the fĳirm of James & Hofffman, P.C., is a practicing lawyer specializing in labor and employment law. She has represented clients with grievances against their employers in a variety of fora, including the United States Equal Employment Opportunity Commission, the District of Columbia Offfĳice of Human Rights, courts in D.C. and Maryland, and the internal appeals processes at the World Bank, the International Monetary Fund, the Inter-American Development Bank, and the Pan-American Health Organization. She also has wide experience in representing unions in grievances and collective bargaining. Chris de Cooker holds law degrees from the University of Amsterdam and Columbia University. He started his professional life in 1975 as a lecturer in international law, the law of international organizations and international administration at the University of Leyden in the Netherlands. He was from 1981–1983 Chairman of the Dutch Section of the International Commission of Jurists. He joined the European Space Agency in 1984, where he held a number of positions until his retirement in 2011, mainly concerning internal institutional matters, and including Head of the International Relations Department. He has authored several publications, mostly in the fĳield of International Administration. He is editor of “International Administration, Law and Management Practices in International Organizations” and of “Accountability, Investigation and Due Process in International Organizations”. He is Chairman of the Standing Committee on Supranational Administration and the Inter- national Civil Service of the International Institute of Administrative Sciences, and Member of the Editorial Committee of the International Review of Administrative Sciences. He has advised many regional and global international organizations, particularly in the fĳield of internal dispute resolution. He is an international civil service law arbitrator. He is a member of the International Academy of Astronautics. list of contributors xix

Pedro Dallari is Professor of International Law at the Faculty of Law and at the Institute of International Relations of the University of São Paulo. He is a former judge (between 2004 and 2008) and President (2007 and 2008) of the Administrative Tribunal of the Inter-American Development Bank. In 2009 he served as a member of the Specialists Committee of the Organization of American States (OAS) Mission for the conflict between Colombia and Equator. Since February 2011 he has been on in the roster of panelists for disputes regarding the Free Trade Agreement between the Dominican Republic, Central America and the United States of America. Since January 2012 he has been a member of the Board of Directors of the Justice Studies Center of the Americas (JSCA), an organ of the Organization of American States. At the University of São Paulo, he holds a Bachelor of Law degree, a Master’s degree and a doctorate in international law. He also obtained a Bachelor’s degree in Business Administration at Fundação Getúlio Vargas School of Business Administration of São Paulo. He is the author of books as well as several articles in Brazilian legal periodicals.

Olufemi Elias is Executive Secretary of the World Bank Administrative Tribunal. He was previously Senior Legal Offfĳicer at the Organisation for the Prohibition of Chemical Weapons in The Hague, The Netherlands. Prior to that he served as Legal Adviser and as Special Assistant to the Executive Secretary of the United Nations Compensation Commission in Geneva. He holds the degree of Bachelor of Arts in Jurisprudence from the University of Oxford, a Master of Law in international law from the University of Cambridge and a doctorate in international law from University College, London. He is a member of the Nigerian Bar and is a Visiting Professor and former lecturer in the University of London. He has written books and articles on various aspects of international law.

Joanna Gomula (LLM, University of Warsaw; LLM, University of Michigan; PhD, Polish Academy of Sciences; member of New York Bar) is a Fellow at the Lauterpacht Centre for International Law, University of Cambridge and a Visiting Reader at the Centre for Commercial Law Studies, Queen Mary College, University of London, where she has taught WTO law and international dispute settlement. She also lectures regularly at the Diplomatic Academy in Vienna. Dr Gomula is an editor of the ICSID Reports and is responsible for the WTO section of the Global Community Yearbook of International Law and Jurisprudence. xx list of contributors

Robert A. Gorman is Kenneth W. Gemmill Professor Emeritus of Law, University of Pennsylvania; founding member (1980–2007) and former President, World Bank Administrative Tribunal; member (1995–2004) and former President, Asian Development Bank Administrative Tribunal; member (since 2007) and current President, Inter-American Development Bank Administrative Tribunal.

Yelina Grados is a Legal Associate working in the World Bank’s Institutional Administration Practice Group (LEGIA) and a former Com- missioner of the Defensoría del Pueblo, Lima, Perú. She graduated from the Law Faculty of Pontifĳical Catholic University of Peru and holds a Masters of Law from the University of Liege, Belgium.

Gregor Novak is a researcher at the Section of International Law and International Relations of the University of Vienna and an Associate Editor of the Oxford Reports on International Law in Domestic Courts. Previously, he was a clerk at various courts in Austria, a legal trainee in the dispute resolution practice group of an international law fĳirm and a research assistant. Gregor Novak holds a Master’s degree from the Uni- versity of Vienna and is pursuing a doctorate in law in the area of international dispute settlement.

Zakir Hafez is Senior Counsel at the Secretariat of the World Bank Administrative Tribunal. Prior to the World Bank, he worked at the law fĳirms of Steptoe & Johnson and White & Case in Washington DC. He is a member of the New York State and District of Columbia bars. Mr. Hafez completed his doctoral degree, Doctor of Juridical Science (SJD), from the George Washington University Law School in 2003. Prior to that, he obtained Masters of Laws (LL.M.) in International Law from the same law school in 2000. Before coming to the United States, he studied law in Norway, Malaysia and Bangladesh. He has published a number of books and articles.

Waltraud Hakenberg, born 1955; studied law in Regensburg and Geneva (1974–79); fĳirst State examination (1979); postgraduate studies in Commu- nity law at the College of Europe, Bruges (1979–80); trainee lawyer in Regensburg (1980–83); Doctor of Laws (1982); second State examination (1983); lawyer in Munich and Paris (1983–89); offfĳicial at the Court of Justice of the European Communities (1990–2005); Legal Secretary at the Court of Justice of the European Communities (in the Chambers of Judge Jann, 1995–2005); teaching for a number of universities in Germany, Austria, list of contributors xxi

Switzerland and Russia; Honorary Professor at Saarland University (since 1999); member of various legal committees, associations and boards; numerous publications on Community law and Community procedural law; Registrar of the Civil Service Tribunal since 30 November 2005.

David G. Hawkes, a German attorney, was elected in June 2009 as the First Vice Chair of the World Bank Group’s Stafff Association representing thousands of World Bank Group employees at Headquarters in Washington and in over 100 offfĳices worldwide. Before joining the Bank’s Integrity Vice Presidency in June 2005, where he now heads the Special Litigation Unit, he served as a prosecutor specializing in anti-corruption and complex white collar crime investigations in Berlin and as an offfĳicial in the Federal Ministry of Justice. On behalf of these offfĳices and then for the World Bank Group, he has worked on the ground in more than 20 countries on fĳive continents. He holds a First State Law Degree from Heidelberg University, a Second State Law Degree from Berlin and a doctorate (Dr.iur/J.S.D.) in Administrative Environmental Safety Law (Gene Technology Law) from Freiburg University (Germany). Before moving to the USA, he served as an elected Deputy Federal Chairman of the Deutsch-Indische Gesellschaft e.V. (Indo-German Society) in Stuttgart/Germany, one of the largest bi- national cultural societies in Germany. In January 2000, he was also elected Chairman of the Berlin Prosecutors’ Stafff Council. He held this offfĳice until he joined the Federal Ministry of Justice in October 2003.

Peter Hulsroj took up duty as the Director of the European Space Policy Institute, ESPI, in Vienna, Austria in September, 2011. He pursued his legal studies at the University of Copenhagen and earned a Master’s degree from Harvard Law School. He practiced law in a large commercial law fĳirm in Copenhagen, where he became a full member of the Danish Bar. After some years of private practice, he worked at the European Space Research and Technology Centre of the European Space Agency, ESA, and served for almost 14 years as the Head of Contracts and Legal Afffairs at the European Organisation for the Exploitation of Meteorological Satellites, Germany. He was then the Legal Adviser of the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization in Vienna and after that the Director of Legal Afffairs and International Relations of ESA.

Benedict Kingsbury is Murry and Ida Becker Professor of Law and Director of the Institute for International Law and Justice at New York University School of Law. After completing his LL.B. with fĳirst class honors xxii list of contributors at the University of Canterbury in New Zealand in 1981, Professor Kingsbury was a Rhodes Scholar at Balliol College, Oxford. In 1984 he graduated at the top of his class in the M.Phil in International Relations at Oxford. He subsequently completed a D.Phil in Law at Oxford, and thereafter held a permanent teaching position in the Law Faculty at Oxford before moving to Duke University in 1993. With NYU colleague Richard Stewart, he initiated and directs the IILJ’s Global Administrative Law Research Project, a pioneering approach to issues of accountability and participation in global governance which includes several books and journal symposia and more than 150 scholarly papers. Kingsbury has written on a range of specifĳic contemporary international law topics, extending from investor-state arbitration and inter-state arbitration to trade-environment disputes and the proliferation of international tribunals. Kingsbury has been a visiting professor at Harvard Law School, the University of Tokyo Law Faculty, the University of Padua, and the University of Paris-I (Pantheon-Sorbonne). He was the inaugural Caldwell Lecturer at Trinity College, University of Melbourne, and the New Zealand Law Foundation Distinguished Visiting Fellow.

Anne-Marie Leroy is Senior Vice President and General Counsel of the World Bank Group. Until her appointment as General Counsel, she was President and judge of the Inter-American Development Bank Adminis- trative Tribunal and a partner in charge of the Department of Public Law at the Paris offfĳice of Denton Wilde Sapte LLP since 2005. A graduate of both the Paris Institute for Political Sciences in law and economics, and the National School for Public Administration (ENA), with a graduate degree in the Sociology of Organizations, she joined the Conseil d’Etat, the highest court in France for public and administrative law, where she worked as a judge for fĳive years. She has served as Senior Advisor to the Prime Minister, Lionel Jospin, in charge of government reform. She has also served as a director of legal and international afffairs in the French Ministry of National Education, as a senior public sector specialist in the World Bank’s Middle East and North Africa region as a senior public sector specialist, and as Department Head in charge of Governance and Civil Society issues in the Public Management Service of the OECD.

Roy Lewis is a barrister at Old Square Chambers, London. He has extensive experience of labour arbitration, having been an active member of the Advisory Conciliation and Arbitration Service’s Panel of Arbitrators and Mediators for over 25 years. He is Deputy Chairman of the Central list of contributors xxiii

Arbitration Committee, which adjudicates on disputes over whether trade unions should be recognised for collective bargaining, and was formerly a part-time judge in the employment tribunals, the British version of labour courts. He is Chairman of Royal Mail’s National Appeals Panel. Within the fĳield of international administrative law, he is President of the Administrative Tribunal of the Black Sea Trade and Development Bank, Chair of the Grievance Committee of the European Bank for Reconstruction and Development (EBRD), and a former President of the EBRD’s Adminis- trative Tribunal.

Rutsel Silvestre Martha is the General Counsel and Director of Legal Afffairs of the International Fund for Agricultural Development since 2008. He was the Minister of Justice of the Netherlands Antilles (1998–2002) and Minister Plenipotentiary in the Netherlands Permanent Representation to the European Union (1990–1998). He also worked as Counsellor in the Legal Department of the International Monetary Fund and as Legal Advisor of the Central Bank of the Netherlands Antilles. He studied law at the University of Leiden where he concentrated on public international law and organization. Thereafter, he obtained the degree of Master of Laws in International Legal Studies at the Washington College of Law of the American University where he concentrated on international banking and fĳinance. He obtained the degree of Doctor of Laws (PhD) at the University of Leiden on a thesis concerning the taxation and public international law. Dr Martha is an Adjunct Professor of Law and the New York University, in which capacity he has been a Visiting Professor of Law at the National University of Singapore since 2007 in the NYU@NUS program. He was also an Adjunct Professor of Law at the Washington College of Law of the American University in Washington (1988–1989). From 1983 to 1986 he was a lecturer in law at the University of the Netherlands Antilles.

Santiago Oñate Laborde is the Legal Adviser (Director) of the Organisation for the Prohibition of Chemical Weapons (OPCW) in The Hague. Prior to that he was the Ambassador of Mexico to the Netherlands. He has held a number of senior positions within the Mexican Government including Minister of Labour, Chief of Stafff of the President’s Offfĳice, Attorney General for Protection of the Environment, and Ambassador of Mexico to the United Kingdom of Great Britain and Northern Ireland. In addition, he was a Professor of Law at Universidad Autónoma Metro- politana, Mexico City, and a Visiting Professor at the Law School, University of Wisconsin-Madison, USA in 1982. He obtained his initial degree in law xxiv list of contributors from the Universidad Nacional Autónoma de México Law School and his Licenciatura en Derecho (L.I.B). He completed his post graduate studies from the Universitá degli Studi di Pavia (Italy) in Procedural Law and International Law and Human Rights from the London School of Economics.

August Reinisch is professor of international and European law at the University of Vienna and professorial lecturer at the Bologna Center/SAIS of Johns Hopkins University. From 2004 to 2006 and as of 2010 he was/is Dean for International Relations of the Law School of the University of Vienna. His professional experience includes expert adviser in Austrian and foreign court litigation as well as international arbitration; he was a Member of the ILA Committee on International Law on Foreign Investment, and he is a member of the ILA Study Groups on Accountability of International Organisations, State Insolvency, and the Role of Soft-Law Instruments in International Investment Law. He is president of the Austrian Branch of the ILA, Executive Board member of the European Society of International Law and of the German Society of International Law, as well as member of ASIL, ACUNS and other professional associations in the fĳield of international law. He has published widely in international law with a recent focus on international investment law, the law of international organizations, international responsibility, human rights and non-state actors. August Reinisch holds Masters degrees in philoso- phy (1990) and in law (1988) as well as a doctorate in law (1991) from the University of Vienna and an LL.M. (1989) from NYU Law School. He is admitted to the Bars of New York and Connecticut (since 1990).

Andrés Rigo Sureda is an international arbitrator and mediator, a judge of the IMF Administrative Tribunal and an external member of the Sanctions Committee of the Inter-American Development Bank. He is a former Assistant General Counsel and Deputy-General Counsel of the World Bank and member of the World Bank’s fĳirst Sanctions Committee (now Sanctions Board). He has written on issues of international law and international organizations, lectured at the Hague Academy of Interna- tional Law on “The Law Applicable to the Activities of the International Development Banks” and delivered the lectures in honor of Sir Hersch Lauterpacht at Cambridge University, published in 2012 under the title: “Investment Treaty Arbitration. Judging under Uncertainty.” He holds a law degree from the Universidad Complutense in Madrid (1966), a diploma in international relations from the School of Advanced International list of contributors xxv

Studies (Bologna Centre) of the Johns Hopkins University (1968), and a PhD in international law from the University of Cambridge (1971).

David R. Rivero is Chief Counsel of the World Bank’s Institutional Administration Practice Group (LEGIA) and a former Associate, Cole & Corette, Washington, D.C. Mr. Rivero received his J.D. from Columbia University. He also holds a Certifĳicate of Studies in Foreign and International Law from Columbia University and a Bachelor of Science in Foreign Service from Georgetown University.

Francis Sheed is Senior Counsel, World Bank Group Stafff Association. Francis Sheed has practiced labour and employment law for nearly twenty years in the U.S. He is a graduate of Swarthmore College and Rutgers Law School/Newark. He began his career with the law fĳirm of Bredhofff and Kaiser, representing both public- and private-sector labour unions. He then worked for several years as Associate General Counsel for the Peace Corps, where he worked on labour and employment policy and disputes in the U.S. and in many other countries. He joined the World Bank Group as Senior Counsel to the Stafff Association in 2009.

Richard B Stewart is University Professor and John Edward Sexton Professor of Law at New York University School of Law. Prior to joining the NYU School of Law faculty, Stewart had served as a Byrne Professor of Administrative Law at Harvard Law School and a member of the faculty of the Kennedy School of Government at Harvard; Assistant Attorney General in charge of the Environment and Natural Resource Division of the U.S. Department of Justice, and Chairman of the Environmental Defense Fund. Professor Stewart, along with NYU Professor Benedict Kingsbury, has also launched a major new project on Global Administrative Law, examining how procedural opportunities for public participation in administrative decision making and review mechanisms can help meet accountability gaps in current global regulatory institutions, ranging from the WTO and the UN to informal networks of environmental and economic regulatory offfĳicials. This project, headquartered at NYU, is proceeding in collaboration with academics and offfĳicials around the globe. He has been a visiting professor at the Universities of Bologna, Chicago, and Rome, the University of California at Berkeley, the European University Institute, and Georgetown University. He is a member of the American Academy of Arts and Sciences and the American Law Institute, a Director of the Health Efffects Institute, and a member of the editorial boards of several European scholarly journals. xxvi list of contributors

Maritza Struyvenberg studied Public International Law at the State University of Leiden, the Netherlands, graduating in 1979. Thereafter, she attended the Fletcher School of Law and Diplomacy and obtained a Master of Arts in Law and Diplomacy in May 1981. She joined the United Nations in the fall of 1981, starting in the Offfĳice of Legal Afffairs, in the Codifĳication Division, as an Assistant Legal Offfĳicer. She then served as Assistant Secretary of the Joint Appeals Board and Joint Disciplinary Committee from 1985 until December 1990, when she was appointed as Deputy to the Director, Representation Unit, Executive Offfĳice of the Secretary-General. From March 1992 until May 1999, she served as Committee Secretary, Economic and Social Council and, for the next 10 years, as the Executive Secretary of the United Nations Administrative Tribunal. Currently, she holds the position of Principal Registrar, Offfĳice of Administration of Justice.

Lisa Tabassi is Chief of the Legal Services Section of the Provisional Technical Secretariat of the Preparatory Commission for the Compre- hensive Nuclear-Test-Ban Treaty Organization (CTBTO) in Vienna, Austria. Prior to that she served as a Legal Offfĳicer in the Technical Secretariat of the Organisation for the Prohibition of Chemical Weapons (OPCW), in The Hague, the Netherlands, where she was primarily responsible for providing legal advice to States Parties on implementing legislation as well as the regulatory framework to administer and enforce the treaty nationally. Before the Chemical Weapons Convention entered into force she was Senior Research Assistant in the Preparatory Commission for the OPCW, throughout its existence (1993–1997). Prior to that, she worked for private law fĳirms in the Islamic Republic of Iran and the United States and for the Iran-United States Claims Tribunal in The Hague. She is a graduate of Leiden University Faculty of Law (LL.M cum laude in Public International Law with a specialisation in International Criminal Law) and Schiller University Paris (B.A. in International Relations). She also holds with distinction the Diploma of International Nuclear Law from the University of Montpellier I. She has written widely and has given lectures at the law faculties of the universities of Amsterdam, Auckland, Geneva, Leiden, Sussex and at the International School on Disarmament and Research on Conflicts (Trento, Italy) and Webster University (Leiden).

Melissa Su Thomas is Counsel at the Secretariat of the World Bank Administrative Tribunal. She was a Legal Offfĳicer with the International Labour Offfĳice and consultant to the Legal Department of the Secretariat list of contributors xxvii of the Basel Convention in the Geneva, Switzerland. She holds a Diplôme d’Études Approfondies, specialising in Public International Law, from the Graduate Institute of International Studies, Geneva, and the degree of Bachelor of Laws from the University of Warwick. She was called to the Bar of England and Wales by the Honourable Society of the Inner Temple.

Graeme Wheeler is a former Managing Director of the World Bank. The Bank’s Conflict Resolution System, of which the Tribunal was a part, is within his purview. Under his leadership, a number of reforms were undertaken to enhance the Tribunal’s independence. He previously held the position of Vice President and Treasurer of the World Bank from August 2001. He joined the World Bank in 1997 as Director of the Financial Products and Services Department. For the previous four years, he was the Treasurer of the New Zealand Debt Management Offfĳice and a Deputy Secretary to the New Zealand Treasury. Prior to this, he was Director of Macroeconomic Policy and Forecasting in the New Zealand Treasury. During the second half of the 1980s, he was the Economic Counselor for the New Zealand Delegation to the Organisation for Economic Cooperation and Development in Paris.

Arnold Zack is President of the Asian Development Bank Administrative Tribunal, an arbitrator and faculty member at the Labor and Worklife Program at Harvard Law School. He specialises in the design and management of dispute resolution machinery and is the author of twelve books on labour management dispute resolution. He was chair of the panel that evaluated the IMF Dispute Resolution Procedures, along with Chris de Cooker and Sarah Christie (former judge of the WBAT).

Nassib G. Ziadé is the Director of the Dubai International Arbitration Centre (DIAC). He was the Deputy Secretary-General of the International Centre for Settlement of Investment Disputes (ICSID) between 2007 and 2011. He also served between April 2008 and June 2009 as Acting Secretary- General of ICSID. He is a Visiting Professor at the University of Miami School of Law and at the University of Paris I Panthéon Sorbonne, where he teaches investment arbitration and the settlement of international economic disputes, respectively. He will deliver a course on public international law in 2012 at The Hague Academy of International Law. Mr. Ziadé has extensive experience in the administration of international legal proceedings and in the management and development of international tribunals. From 1997 to 2007, he served as the Executive Secretary of the World xxviii list of contributors

Bank Administrative Tribunal. In 1998, he was a member of the Grievance Process Review Committee which reviewed and reformed the World Bank’s Internal Conflict Resolution System. In addition, in 2002, he advised the Government of Bahrain on the establishment of its Constitutional Court. Mr. Ziadé has published extensively in the fĳield of international law, and he is a frequent speaker at conferences on a range of legal topics. He is a member of the Court of the London Court of International Arbitration (LCIA) and a member of the Advisory Committee of the Cairo Regional Centre for International Commercial Arbitration. He is a member of the Permanent Court of Arbitration (PCA), a member of the Panels of Arbitrators and Conciliators of ICSID, and a Council member of the International Federation of Commercial Arbitration Institutions. He is a Patron of the American Society of International Law and was between 2007 and 2010 a member of its Executive Council. Mr. Ziadé is also a member of the Société française pour le droit international and the Swiss Arbitration Association. He was Editor-in-Chief of the ICSID Review – Foreign Investment Law Journal, between 2007 and 2011, after serving for a number of years as a member of its Board of Editors. Since 1991, he has been a member of the Editorial Advisory Committee of International Legal Materials and since 1987 he has served as its Corresponding Editor for the Middle East. He is also a member of the Editorial Committee of the Journal of Arab Arbitration. Mr. Ziadé studied at the French University in Beirut, the American University of Beirut, Cambridge University and the Sorbonne. INTRODUCTION

INTRODUCTION

THE WORLD BANK ADMINISTRATIVE TRIBUNAL AT THIRTY

Opening Remarks delivered to the symposium on the Development and Efffectiveness of International Administrative Law 23 March 2010, Washington D.C.

Jan Paulsson

It’s my pleasure, as president of the World Bank Administrative Tribunal and co-sponsor of this symposium, to open our day, which commemorates the 30th anniversary of the establishment of the Tribunal. Let me thank all of you for having come from the four corners of the world to attend this day. We hope that it will be a good one. From our experiences of fĳive years ago and ten years ago, which I can attest to myself, I have every confĳidence that it will be. If I may say a personal word, I would note that I have not been around the Tribunal for three decades, but only for one, the last one. When the Tribunal was formed in 1980, I was a young lawyer with some ambitions to be an international lawyer, and I heard about this mythical tribunal. I didn’t know much about administrative tribunals, and I didn’t know much about the World Bank. But I did remark that this new tribunal was presided by Eduardo Jimenez de Arechaga, the president of the International Court of Justice, and that another member of the Tribunal was Sir Elihu Lauterpacht (as he was to become), son of Sir Hersch Lauterpacht, one of the great legal phi- losophers of the 20th century and the fĳirst president of the International Court of Justice. Eli Lauterpacht himself has perhaps the most silvery of all tongues of those who have ever addressed international tribunals. From France, there was Olympian Professor Prosper Weil. I’m a French lawyer myself, and there I was sitting in Paris thinking, “Well, they just couldn’t go higher than that!” So from the beginning, there was a certain aura about it. I couldn’t have dreamt that 19 years later, when Professor Weil decided to retire, that I would fĳill his shoes, which I have not been able to do and will never believe that I could. But he did decide to retire, and I feel privileged to occupy his seat. 4 introduction

I think the Tribunal by now has seen three former presidents of the International Court of Justice serve among its judges on the Administrative Tribunal, as well as a couple of other judges from the International Court of Justice. They have all contributed analysis, prestige, and luster to a somewhat arcane sub-discipline of public international law; namely, the administrative law of international organizations, benefĳitting from the cross-pollination of personnel from the ICJ and the Administrative Tribunal. Might I also say that one of those eminent judges of the ICJ to have served on the World Bank Administrative Tribunals, namely Judge T.O. Elias, is, in a way, perpetuated in the form of his son, who is the Executive Secretary of the Tribunal. He is with us here today, and will be chairing one of our sessions. It’s a source of particular pleasure to all of us to have him with us. I don’t mean to suggest that the WBAT is among the ancients. As administrative tribunals go, it is perhaps a middle-aged tribunal. The ILO Administrative Tribunal can trace its origin back to the Administrative Tribunal of the League of Nations, and that is 1927; the United Nations Administrative Tribunal, of course, was established in 1949. One of the founding judges of the World Bank Administrative Tribunal is with us here today. Many of you know him – perhaps all of you know him – Professor Robert Gorman, who will be giving a very important speech to us today. He also of course spoke at the 20th anniversary 10 years ago, when he recalled his interview with Robert McNamara, at the time President of the Bank, in the course of which he was invited to be a founding judge of the Tribunal. McNamara explained the Bank’s motivation in creating the Tribunal in these words - note the two ideas here - “To assure, through an impartial agency, that the decisions of the Bank management conform to the rule of law and, as a consequence, to achieve an improved level in the morale of stafff members and in the efffĳicacy of their service”. Judge Gorman said that these considerations motivated the members of the Tribunal during his two and a half decades, and I can attest that they continue to be central in guiding the work of the Tribunal today. The World Bank Tribunal has now issued 426 judgments over the course of 30 years. A few more have been prepared, but are not yet out; we’ve been working the last few days. The majority of 426 cases have been decided by the full Tribunal, but a signifĳicant number have also been decided by panels composed of three or four of the seven members of the Tribunal. Each decision over all these years has been unanimous, even though the Tribunal’s Statute explicitly allows separate and dissenting opinions. introduction 5

This might seem to be a bit of a miracle, because, of course, there have been diffferences of points of view. I might put it this way: I do not think that there has been a single judgment I have signed as a member of a panel or as of the plenary session which is written exactly the way I would have if I had decided it alone. Of course, it’s better! But it’s not what I would have done if left to my desserts. This is the hallmark of consensus. This means using a number of techniques, sometimes the most obvious one being deciding on a narrow point, which enables consensus to emerge and the Tribunal to speak with a unanimous voice. When you think of the fact that throughout the years, the judges have represented diffferent legal traditions and diffferent origins and diffferent continents, it’s quite something. Today, the Tribunal is composed of judges from Argentina, Egypt, the United States, Uganda, India, the Philippines and France. This rich- ness of backgrounds has, I hope, I believe, served to enrich the Tribunal’s decision-making. And the continued tradition of consensus is a testa- ment to the rigor and to the sense of collegiality that has characterized our work. The cases have, over the years, ranged very widely from performance evaluation to termination of employment, from the review of decisions based on fĳindings of misconduct to cases involving allegations of retaliation, from sexual harassment to racial discrimination, to pension and other entitlements claimed by stafff members and, indeed, by relatives of stafff members. And I am only naming some of the major categories which come to mind as I stand here. The Tribunal has also had to decide, very interestingly, a number of cases involving the interface between the rules of the World Bank and its privileges and immunities and the laws of diffferent member states with regard to personnel matters. It is a very interesting area of the law. The Tribunal has, as I said, been able to secure the necessary convergence of views to enable it to preserve this unanimity so far in its judgments. This can of course be debated. I think most of us feel that there is a benefĳit to single judgments in the sense that the force of the judgments and the clarity and the usefulness of the norms that are reflected in them is enhanced by the fact that the Tribunal speaks with one voice, takes the time to fĳind a single way to express something that makes sense. Might I underscore this by referring to the Bank’s Principles of Stafff Employment. Its Principle 2.1 states this, “The Bank shall respect the essential rights of stafff members that have been and may be identifĳied by the World Bank Administrative Tribunal”. 6 introduction

If you had a Tribunal speaking with seven diffferent voices, with all kinds of concurring and dissenting opinions, I’m not sure that would help understanding what are the principles that should guide the decisions of management and the expectations of stafff members, since the Tribunal’s decisions are automatically a part of the Bank’s internal law. Prominent among the several areas in which the Tribunal has provided the groundwork for rules subsequently developed by the Bank, I might mention the rights of stafff members who are the subject of investigations of alleged misconduct. Cases which are familiar inside the Bank include Gyamfĳi, Decision No. 28 [1986] and D, Decision No. 304 [2003], to name just two. Another important area in which the Tribunal’s decisions have had a major impact is in the development of the rules relating to the rights of stafff who are on probation, the leading case being one known as Motabar, Decision No. 346 [2006]. Our symposium, ladies and gentlemen, is entitled “The Development and Efffectiveness of International Administrative Law”. It is intended that the colloquium will examine the nature and development of international administrative law as a distinct fĳield of the law of international organizations. And our 30th anniversary seems to be an appropriate occasion on which to take stock. How far has the law of the civil service come? The four substantive sessions today have been convened with this basic question in mind, and they will look at the same question from various angles. The fĳirst session, led by Judge Gorman, is a retrospective from a founding member of the Tribunal who served on the Tribunal for longer than any other judge. He will speak about the influence of the Tribunal’s fĳirst judgment on international civil service law generally, since that judgment broke some important ground and has been referred to in the decisions of several other tribunals. That session, the fĳirst session, will be devoted to that case. It will also consider the role of decisions of tribunals more generally in creating a distinct body of law and, indeed, whether such a body of law can truly be said to exist. The second session will, again, look at the scope of judicial powers of administrative tribunals, specifĳically, the kinds of remedies that they can award, the standards of conduct to which they hold international organizations, and the kinds of decisions that they are competent to review. The third session will examine the institutional dimension, i.e the organs that apply administrative law in various organizations in light of recent developments in the fĳield. The fourth and fĳinal session will look at introduction 7 the efffectiveness of international administrative law in terms of the guarantees it provides to stafff members when compared with the mechanisms of redress available to employees under national law. A number of decisions in national courts have recently called into question the independence of dispute resolution mechanisms in international tribunals. I don’t think we can speak of a growing trend, but there are inci- dents of these questions being asked. The fact that these decisions have been handed down, of course, warrants consideration of the efffectiveness and legitimacy of administrative law generally. I look forward, and I hope you do, too, as well, to the discussion of these issues by this impressive gathering of speakers and participants that we have here today in what will surely be a fĳitting birthday celebration for the Tribunal. *** David Caron

On behalf of the American Society of International Law, it’s a great pleasure to welcome you all to Washington and to this conference. The Society is delighted to cosponsor once again this meeting with the World Bank Administrative Tribunal. Our sincere thanks to Olufemi Elias for his organizing the conference. Let me just say he’s a pleasure to work with. The annual meeting of the American Society starts tomorrow, and it has a theme that closely complements the theme of this meeting: International Law in a Time of Change. I am not an insider to the administrative tribunal world. Nonetheless, as this conference considers its theme, the development and efffectiveness of international administrative law, I am drawn to the many changes that have occurred over the life of these tribunals. In this sense, I ask as this audience looks back and assesses international administrative law, how is that assessment to incorporate the changes in international organization and the new demands placed on them? Specifĳically, in many dimensions of corporate organization, it is not only that the law and our mechanisms have developed, but more broadly, our notions of accountability have been shifting, are shifting, sometimes rather fundamentally. We have moved from dissatisfaction with statements that one need only trust the organization, to acknowledging the need for reasons in support of decisions, to supporting even greater demands for transparency. 8 introduction

We have moved from sometimes turning a blind eye to allegations of illegality, to a position of intolerance for corruption, to a receptiveness for greater demands for quality in the work of the organization. To be successful, those in international organizations must care deeply about their missions, those missions being ever more important. In this sense, it is appropriate that we ask more of international organizations and of their stafffs. And my point here is that all these changes in context eventually will have repercussions and implications within international administrative law. As we all appreciate, the tribunals, in resolving certain disputes internal to the organization, make them stronger. Aggressively addressing such disputes is both a sign of a mature organization and a way to a more efffective, healthy and just organization. Finally, I close by noting and applauding the decision of the World Bank Administrative Tribunal to make this conference open to the public. Given the remedial role of international administrative law and given the changing and increasing demand for openness, it is an important efffort and one that should recognized and encouraged.

*** David G. Hawkes

Mr. President, ladies and gentlemen, good morning and thank you very much for inviting me, as a representative of the World Bank Group Stafff Association, to be here today at this very impressive symposium. I am particularly happy to see this symposium happening here 30 years after the Administrative Tribunal was founded, because it was the World Bank Group Stafff Association that lobbied very hard for this tribunal to be set up. As we can see, it has become a keystone to our internal justice system. We will certainly hear in more depth today about the legal questions that people have already raised and that are driving the jurisdiction. I would nevertheless like to highlight at least one of them, because it has implications beyond its nature as a legal issue. One of the reasons why the Administrative Tribunal was created was that the World Bank Group, as an International Organization, has privileges and immunities. Stafff cannot take it to court in national jurisdictions. The Administrative Tribunal therefore provided an alternative platform to resolve conflicts between stafff and the institution. In the last 10 to 15 years the whole argument has turned around. introduction 9

We now see that privileges and immunities in many jurisdictions are only respected when the international organization has a robust and independent decision-making body. So while the reason that led to the creation of the Administrative Tribunal persist, we see that having it also protects this institution from being taken to court in national jurisdictions. It has become a very successful story for the Bank as an international institution and not only for the stafff we represent here. You may know the Indian cartoonist R.K. Laxman. One of my favorite cartoons that he has drawn, published in one of the big papers of India on a daily basis, shows a politician in his lavishly decorated living room and this little journalist sitting on the edge of his chair interviewing the politician. And the politician is giving a speech saying, “You know, of course, we promised socialism, but we promised it to the people, so we have to give it to them fĳirst”. The Administrative Tribunal is exactly the opposite. It was not promised to somebody else out there. It brought accountability to this institution, real accountability by an independent decision-maker, accountability that is enforced long before governance and accountability became en vogue. It does this institution a lot of justice that we have this system. We have seen, especially over the past few years, some very interesting and grave cases that the Tribunal has decided. And on behalf of the people we represent here, I think we should always remember nothing gives you, as somebody who thinks his rights have been violated, more satisfaction than an independent decision-maker who makes a fĳinal decision and, hopefully, reinstates the rights that you think have been taken away from you. This has given stafff a lot of confĳidence in the institution. As I have said, it has not only done us well on the legal side, on the HR side, but also as an institution. That is why the Stafff Association continues to support the Administrative Tribunal and the internal justice system, and we are looking forward to the next 30 years of, hopefully, interesting and good decisions.

*** Anne-Marie Leroy

Ladies and gentlemen, let me fĳirst thank the World Bank Administrative Tribunal and the American Society of International Law for organizing this high-level symposium on the occasion of the 30th anniversary of the Tribunal. 10 introduction

As Jan Paulsson just mentioned, I had the privilege to serve the Inter- American Development Bank Administrative Tribunal for fĳive years, and I must say that it has given me a unique perspective; my being on the management side now somewhat changes this perspective. I am, however, committed to remain faithful to that very fond memory that I have of the Tribunal, and I will expand a little bit on why that memory is so good and why I want to keep it. Allow me to acknowledge and comment on the work done by the World Bank Administrative Tribunal and its body of dedicated and world renowned experts and very high-level people, as Jan Paulsson mentioned. The Tribunal has rendered, since 1980, around 450 judgments in a wide variety of cases from every part of the World Bank, from disputed performance reviews, pension claims and such, to more sensitive questions of due process in cases of misconduct. The Tribunal handles these matters with sensitivity to all interests and complete independence. Its provision of a fair and thorough procedure gives both stafff and management confĳidence that its fĳindings are reached after careful consideration to all sides’ points of view. This is very important for two reasons: fĳirst, because its judgments have strengthened the rule of law within the World Bank by aiding management and stafff in understanding their rights and duties. Second, as Jan Paulsson and David Hawkes have both mentioned, it helps us defend the World Bank and other international organizations’ immunities at-large when they are challenged by national courts, and it is very important to defend those immunities. Our stafff is posted all over the world in many diffferent countries with very diverse legal systems and labor laws. This is why, protecting our immunities is crucial. If we lose the privileges and immunities that we enjoy, we would see our employment relationship being approached very diffferently from one country to another, which would mean in like manner that the stafff could be treated very diffferently. As a result, considerable injustice and incoherence could emanate which would be extremely prejudicial not only to the stafff members themselves but also to the institution they represent as a whole, and would defĳinitively jeopardize the institutions’ corporate mission. As Jan Paulsson has also said, it is very disturbing that certain national courts have forgotten these principles and actually challenged these immunities in some recent decisions–fortunately, not many so far. The judgments of the Administrative Tribunal have often served also as signifĳicant precedents in the fĳield of international administrative law. You are all familiar with Dr. Amerasinghe’s opus, “The Law of the International introduction 11

Civil Service”, which was and still is one of the reference books of the Inter- American Bank Administrative Tribunal. It is visible when you read that corpus of decisions that there is an administrative law now well built, and it is probably the civil service law which is the oldest and best established corpus of administrative law for international organizations; whereas all the other aspects of administrative law, their governance, their various grievance mechanisms, and more recently their regulation of ethics or conflicts of interests, the various inspection panels, sanctions procedures in cases of corruption in projects–all these are more recent. This corpus is progressively being built by the practice of various international organizations. Of all the areas of law, labour law is indeed the only area that already has a well-established corpus of rules across international organizations. This is quite evident in various stafff rules and the already built body of jurisprudence, defĳinitely due to the work of the various administrative tribunals, and in which the World Bank Administrative Tribunal played a very signifĳicant role. I don’t know if some scholars have endeavored to do it yet, but I believe that it would be a very useful work tool to have an actual indexing system of the corpus of jurisprudence now and going beyond the compilation. We really need an indexation because the number of cases and judgments rendered is becoming quite important. I believe that this evolution is a welcome sign of an increasing legal maturity of international organizations and a development that has to be welcomed by the management of these organizations. There have been, in recent years, many changes to the Bank and its conflict resolution system; let me just say a few words about those changes. The most recent amendments were a part of a wider ongoing reform of the Bank’s internal justice system, and they originated from a number of assessments that were commissioned by the Bank’s management, and have been evaluated and developed in consultation with the World Bank Group Stafff Association. Under the current system, the Bank has a Conflict Resolution System (CRS), which offfers Bank stafff support ranging from informal counseling to formal review of concerns to preserve fairness in the workplace, and this goes into more formal mechanisms. The offfĳices which make up the CRS include the Ombud’s Offfĳice, Mediation Service and Peer Review Services (PRS). There have also been changes to the Statute of the Administrative Tribunal and the formal internal appeals process – now PRS, which directly impact the work of the Administrative Tribunal. On June 19th, 12 introduction

2009, the Board of Governors adopted a resolution to further enhance the efffectiveness and independence of the Administrative Tribunal. Three new provisions have been added to the statute. One states explicitly that the Tribunal functions independently of management of the Bank Group. Another provision confĳirms that members of the Tribunal enjoy the same immunities enjoyed by Bank stafff with respect to their judicial functions. The third provision confĳirms that the Tribunal shall prepare and manage its budget independently. Under the new CRS, stafff members seeking a review of a termination decision may elect to bypass the peer review process and fĳile an application with the Administrative Tribunal. The elimination of the need to fĳirst fĳile termination and misconduct cases with the PRS has resulted in a streamlined process. While this change is still relatively new, it is our hope that this will result in a more efffĳicient and efffective resolution of cases, which, based on their nature, lend themselves to a more formal review. As the World Bank evolves, so has the Administrative Tribunal. Today, I acknowledge the Tribunal for all its hard work and its continued efffort to provide Bank Group stafff with an independent and superior option to address and resolve workplace disputes.

*** Graeme Wheeler

Welcome to the World Bank and thank you for asking me to join you. Thank you, David, for the support of the American Society of International Law, and for co-sponsoring the Conference. Let me begin by stressing just how valuable a role the Administrative Tribunal plays in the operation of the World Bank Group (WBG). The Tribunal is 30 years old. It’s amazing to think we managed without it for our fĳirst 35 years. We are deeply indebted to the judges who serve on the Tribunal for their expertise and dedication, and to Jan for his outstanding leadership over the past decade. We have excellent representation on the Tribunal, and it is impossible to overstate Jan’s role. Let me also thank Femi and his team, and Nassib before him, for the wonderful support and guidance they provide the Tribunal. One of the great assets of the Tribunal is its independence, and it was particularly pleasing last year to see the Bank’s Board of Governors amend the Statute of the Tribunal to confĳirm that the Tribunal functions independently of WBG management, and take steps to further increase the independence of the Tribunal. introduction 13

Why is the Tribunal so important for the WB Group? Much of the answer lies in the organizational characteristics of the WBG. The WBG is an unusual organization in many respects. The WBG operates in a highly protected environment, and that environment shapes the incentives, expectations, and behaviors of colleagues. If we compare the Bank to a private sector entity (e.g., a medium-sized bank), our capital is not traded, managers cannot be evaluated by how efffectively they respond to relative price shifts, and managers cannot lose their jobs as a result of acquisition, takeover, merger or insolvency. Nor do we have the benefĳits of a well-run government ministry or department. There are no tightly managed performance contracts with the Minister or Secretary, with well-designed delegations cascading to lower levels up management. In tightly managed government agencies, managers know their employment contracting responsibilities. They know their labor law. They are aware of the oversights and the checks and balances provided by control agencies such as a State Services Commission, Congressional or Parlia- mentary Committees, and Employment Courts. The WBG does not have these checks and balances to guide managerial behavior. Instead, we are a global organization (110 offfĳices, 160 nationalities) with powerful international protections. Our legal immunity does not allow WBG colleagues access national legal systems to resolve employment grievances. That is why we had to build the WBG’s Conflict Resolution System. That is why ensuring that it is efffĳicient, efffective, fair, and highly respected is so important. The Administrative Tribunal plays a critical role in the WBG. The Tribunal deals with complex issues – often relating to concerns about termination of employment, the threat of retaliation and access to CRS services. It is held in huge esteem throughout the WBG. All of us are very grateful for the professionalism and dedication of all who serve on or support the Administrative Tribunal.

CHAPTER ONE

THE DE MERODE DECISION, AND ITS INFLUENCE UPON INTERNATIONAL ADMINISTRATIVE LAW

Robert A. Gorman

In 1979, I visited the World Bank and its then President Robert McNamara, who welcomed me as a member of an administrative tribunal that had only recently been constituted. Being a teacher and practitioner of domestic U.S. labour law and arbitration, I lacked a deep understanding of the tribunals that rule upon employment disputes within international organizations. I do not believe I then knew that the League of Nations Tribunal was established in 1927, and that its operations were taken over by the International Labour Organization Tribunal in 1946; nor that three years after that, the United Nations Tribunal was formed. Although at the time of my visit to President McNamara, the World Bank had been in existence for some 35 years and then employed some 5000 stafff members, it had only recently decided to create such a tribunal, to be composed of seven judges drawn from around the world. I clearly recall President McNamara saying that by bringing a system of due process and fair treatment to the stafff members of the Bank, the Tribunal would enhance the morale of the stafff and thus improve the quality and efffĳiciency of their work. It did not take me long to understand the President’s concern with stafff morale. Between 1977 and 1979, a high-level expert commission – appointed by the Executive Directors of the Bank and its sister institution the International Monetary Fund – undertook a comprehensive review of policies regarding stafff compensation and benefĳits. The commission’s 516-page report treated, inter alia, two issues of particular importance to the stafff. One was the policy of tax reimbursement, afffecting some 1,500 stafff members of U.S. nationality or permanent residence, who had to pay local, state and federal income taxes on their Bank income; almost every other member nation had agreed for decades not to impose such income taxes. In order to equalize the net incomes of international stafff members doing comparable work, U.S. stafff members who found their salaries soon reduced by their payments to the U.S. tax authorities were reimbursed by 16 chapter one the Bank to the extent of those tax payments. This reimbursement practice had essentially been in place since 1946, shortly after the Bank was founded. Since those early times, the Bank had made some assumptions to ease the complications of calculating the proper tax reimbursements. Rather than make precise individualized calculations for the 1,500 U.S. stafff members, which would involve examining their so-called itemized deductions that reduced their taxable income, the Bank had for years been making the generalized assumption that all these stafff members had uniformly used what is known in U.S. tax law as the “standard deduction”; this was essentially a minimum-deduction amount, the use of which in the Bank’s calculations had the efffect in almost all cases of exaggerating stafff- member tax liability beyond what was actually paid. Thus, many afffected stafff members had been “over-reimbursed” thousands, and even tens of thousands, of dollars compared with what they actually paid to the U.S. taxing authorities. In May of 1979, the Bank’s Executive Directors had announced efffective January 1, 1980 a change in the tax-reimbursement formula, substituting for the standard-deduction fĳigure a higher fĳigure that was equal to the average itemized deduction taken by U.S. taxpayers with comparable gross incomes. This resulted in a lower calculated tax fĳigure, and thus a lesser amount of tax–reimbursement payments, often signifĳicantly less. Not surprisingly, this was not received well by that large number of stafff members. The second component of Bank compensation that was treated in the May 1979 directive of the Bank’s Executive Directors related to what was known as “salary adjustments”. Since 1969, the Bank had implemented annual increases in stafff salaries, designed roughly to keep pace with upward changes at comparator employments outside of the Bank. The May 1979 action by the Executive Directors provided for a linkage to compensation at private employers in the U.S. and for a resulting Bankwide salary increase of 9.5%; the increase for 1980 was to be 8.3%. Stafff members, however, pointed to cost-of-living increases in the Washington, DC metropolitan area of signifĳicantly more: 11.28% and 11.68% respectively. According to their claims, ultimately presented to the Tribunal, they asserted that under longstanding Bank salary-adjustment policies, increases were to be paid each year that would at least match such Washington increases in the CPI. This issue touched not simply the stafff members of the U.S., but all 5,000 stafff members then employed by the Bank. the de merode decision 17

President McNamara, when I met with him in 1980, was surely aware of the concern of the stafff about the Bank’s 1979 decisions regarding tax reimbursement and salary adjustment; and he no doubt appreciated that an expert and impartial Tribunal could help resolve these troubling matters in a fashion that would be more acceptable to the stafff than would a unilateral disposition by Bank management. In the last week of September of 1980, the seven members of the Tribunal met one another for the fĳirst time to celebrate the founding of the Tribunal as well as to do some formal business. The eminence and accomplishments of my Tribunal colleagues were extraordinary: Eduardo Jimenez de Arechaga of Uruguay had been President of the International Court of Justice, as had T.O. Elias of Nigeria; Prosper Weil of France and Elihu Lauterpacht of England had for many years been preeminent advocates before the ICJ and neutrals in international arbitration panels; they were also renowned professors of international law as was Kamal Abul-Magd of Egypt; and our colleague Kumarayya was a regional supreme court judge from India. The Tribunal judges adopted an initial set of procedural rules, and we quickly, enthusiastically and unanimously agreed upon the selection of our fĳirst President: Judge Jimenez de Arechaga. I have no doubt that that decision was one of the Tribunal’s best and most important, as it placed in the position of President an individual of great reputation and accomplishment, extraordinarily fĳine judgment, expert mediative skills, and warmth of personality, who had previously worked alongside most of the Tribunal judges. It was Judge Arechaga’s leadership style, and the vigorous but friendly interchange that he encouraged within the Tribunal, that quickly set a standard that has carried forward now for three decades. The challenges to the Bank’s modifĳied compensation policies were initially presented by more than 1,300 stafff members. Eventually, applications were fĳiled with the Tribunal in September 1980 by six stafff members; the case took its name from the fĳirst applicant listed in alphabetical order, Louis de Merode. The Bank stipulated that if the Tribunal ultimately resolved the case favourably to the applicants, and if the Tribunal’s reasoning was of general applicability, the Bank would automatically give all similarly situated stafff members – potentially all 5,000 of them – the benefĳits and remedies awarded by the Tribunal to the six applicants. After extended pleadings were fĳiled by the Bank’s Legal Department and by the Stafff Association on behalf of the complaining stafff members, the respective lawyers presented oral arguments to the Tribunal in May 1981. Pursuant to an understanding reached by the Tribunal at our initial meeting in 18 chapter one

September 1980, two of our members had in the subsequent months, after reviewing all of the written pleadings, collaborated on a tentative draft judgment which was discussed by the entire Tribunal in executive session at the conclusion of the oral proceedings. Thus began the Tribunal’s practice of assigning each case to one judge to serve as rapporteur and drafts- person; and, as also immediately became the custom of the Tribunal, we discussed the draft judgment in de Merode – fĳirst, its overall structure and major issues and conclusions, and then while reading the draft aloud word-by-word – in a collective process that took nearly a week. I believe that, with the passing of almost thirty years since then – and the running of the statute of limitations for judicial indiscretion – it would not be ter- ribly imprudent of me to disclose that the two Tribunal members who served as co-rapporteurs were Prosper Weil, working in French, and Eli Lauterpacht in English; they were of course especially well versed in the pertinent issues as scholars and advocates. President Arechaga also played a major role, both in commenting on the draft and in keeping order among the rest of us. The fĳinal judgment in the de Merode1 case was fĳiled on June 5, 1981. As I read the judgment today, nearly thirty years later, it hardly reads like the fĳirst decision of any judicial body. The judgment is lengthy and detailed; it is comprehensive in the issues it addresses and bold in the analysis it adopts; it confronts both the details of the instant cases and larger themes meant to frame analysis in future cases; it examines the jurisprudence of other administrative tribunals and places the World Bank Administrative Tribunal within that framework; it deftly addresses a vexing problem of long standing among the tribunals (the Bank’s power to amend and modify terms and conditions of employment of stafff members); and it sensitively balances the Bank’s need for efffĳicient operations to achieve its missions with the needs for fairness and accountability in the treatment of stafff. Although the Tribunal ultimately decided unanimously to reject the claims of all of the de Merode applicants, it set forth what I will character- ize as three pillars of its decision, all of which imposed major restrictions upon the Bank in its regulation of the working conditions of its stafff members. The fĳirst pillar was the identifĳication of the elements of a stafff member’s contract of employment. Article II of the Statute of the Board of Governors

1 de Merode et al. v. The World Bank, WBAT Decision No. 1 [1981]. the de merode decision 19 that created the Tribunal empowers the Tribunal to resolve claims that the Bank had violated “the contract of employment or terms of appointment of stafff members”. The Tribunal inde Merode concluded that this quoted language is not to be confĳined to the letters of appointment and acceptance, but also includes an array of other employment-related documents: the Bank’s rules and regulations (Article II actually states so), the Articles of Agreement, the bylaws, management memoranda, manuals, reports, circulars and the like. “The [employment letters] may be the sine qua non of the relationships, but it remains no more than one of a number of elements which collectively establish the ensemble of conditions of employment operative between the Bank and its stafff members”.2 Beyond this array of documents, the Tribunal concluded that the terms of employment can also include unwritten practices that are “consistent and longstanding”; but these practices must be more than merely “certain practical or purely procedural methods of operation”, and so must be accompanied by a manifestation, usually verbal, that the Bank is legally committed to follow those practices.3 A third component of employment conditions, enforceable by the Tribunal, are general principles of law. These can have their source in international law, or in the jurisprudence of administrative tribunals, or even in commonly adopted rules of domestic law in member nations. These general principles do not apply directly of their own force, but they become absorbed into an “internal law” of the Bank.4 (I remember ener- getically discussing the question whether the Tribunal should seek to extract a “common law” of international administrative tribunals, directly applicable to the Bank; it was decided that given the special character, missions and workforce of the World Bank, its employment relations should be governed by its own internal law.) The Tribunal in de Merode examined documents, practices and legal principles, and concluded that both tax reimbursement and recurrent salary adjustments were not merely convenient habits but were indeed among the enforceable terms and conditions of employment. In fact, both the Bank and the Stafff Association had acknowledged that this was the case. What separated those parties was the question whether these conditions were subject to unilateral amendment by the Bank. The applicants

2 Ibid. para. 18. 3 Ibid. paras. 22–23. 4 Ibid. paras. 25–28. 20 chapter one contended that, by virtue of their service during a period when tax reimbursement and salary adjustment were consistently practiced by the Bank, these became “acquired rights” which could not be materially modifĳied, or abandoned, by the Bank for current members of the stafff – even into their future. The doctrine of “acquired rights” had been applied in several judgments of diffferent international tribunals since the 1950s and 1960s. Another formula invoked by tribunals was the distinction between so- called contractual terms and statutory terms relating to employment matters; contractual terms, usually directly afffecting individual stafff members, could not be unilaterally modifĳied, whereas statutory terms, usually relating to institutional structures and operations, could be. So, as what might be considered the second pillar of its judgment in de Merode, the Tribunal concluded that the Bank’s power of unilateral amendment depended upon whether the term of employment in issue was or was not “fundamental and essential”.5 A fundamental and essential term is not subject to change by the Bank with respect to current stafff members, even prospectively, unless they give their consent. The Tribunal acknowledged that drawing this line in the abstract is not possible, any more than the line between “reasonable and unreasonable, fair and unfair, equitable and inequitable. Each distinction turns upon the circumstances of the particular case, and ultimately upon the possibility of recourse to impartial determination”.6 The classifĳication of an employment term as fundamental and essential is to be based upon a consideration of a number of factors. It counts heavily whether the issue relates to principle or to methodology of calculation. It may also turn upon qualitative or quantita- tive considerations; or whether the matter is included as “a specifĳic and well-defĳined undertaking in the letters of appointment and acceptance”.7 The Tribunal acknowledged that other administrative tribunals had utilized the “acquired rights” analysis and the “contractual versus statutory” analysis to make determinations concerning unilateral amendment. But it decided against using these formulae, because they were typically merely conclusory and they often led to erroneous solutions. The Tribunal concluded that in the case before it, all that was “fundamental and essential” was the Bank’s obligation (and the stafff member’s right) that all stafff members, whether from the U.S. or not, should be paid the same net compensation, thus entailing the reimbursement of taxes

5 Ibid. para. 42. 6 Ibid. para. 43. 7 Ibid. the de merode decision 21 paid; but the precise method for making that calculation, whether using the standard deduction or average deductions, was not fundamental and essential. What the Bank modifĳied was merely the latter, so that it was permissible to do so (subject to requirements of fairness discussed below). The same was true on the matter of salary adjustment. The Tribunal reviewed the way that that policy had been put into practice, and found that – unlike what the applicants contended – there was never a fĳixed linkage between salaries and cost-of-living changes in Washington; rather, all that the Bank did was to look regularly into the matter of comparators and to make adjustments that did indeed take account of the Washington cost- of-living but only as one among several factors. Thus, the Bank’s obligation regularly to make these multi-faceted and flexible adjustments in pay was “fundamental and essential”, but automatic cost-of-living increases were not. Having traced two of the principal elements of the judgment in de Merode and thus two consequential sources of limitations to Bank power – that is, the wide-ranging identifĳication of the sources of employment rights, and the concept of fundamental and essential conditions of employment – I turn to the third pillar of that judgment. What are the limitations, if any, upon the Bank’s power of amendment with respect to an employment condition that is not fundamental and essential? The Tribunal held that although exercise of this power is not altogether prohibited, it is nonetheless subject to signifĳicant limitations. In language that has been later repeated in its own judgments and in judgments of other administrative tribunals, the Tribunal stated: Discretionary power is not absolute power. First, no retroactive efffect may be given to any amendments adopted by the Bank. The Bank cannot deprive stafff members of accrued rights for services already rendered. This well- established principle has been applied in many judgments of other international administrative tribunals. [The Tribunal suggested that this was perhaps the true meaning of what for decades had been treated as “acquired” or “vested” rights.] The principle of non-retroactivity is not the only limitation upon the power to amend the non-fundamental elements of the conditions of employment. The Bank would abuse its discretion if it were to adopt such changes for reasons alien to the proper functioning of the organization and to its duty to ensure that it has a stafff possessing ‘the highest standards of efffĳiciency and of technical competence’ [language in Article V, Section 5(d) of the Bank’s Articles of Agreement]. Changes must be based on a proper consideration of relevant facts. They must be reasonably related to the objective which they are intended to achieve. They must be made in good faith and must not be prompted by improper motives. They must not discriminate in an unjustifĳiable manner between individuals or groups 22 chapter one

within the stafff. Amendments must be made in a reasonable manner seeking to avoid excessive and unnecessary harm to the stafff. In this respect, the care with which a reform has been studied and the conditions attached to a change are to be taken into account by the Tribunal.8 Considering that de Merode was the Tribunal’s fĳirst judgment, this extremely thorough list of the elements of proper discretionary decision-making is quite extraordinary. It is essentially a condensed statement of the limitations imposed upon management by the requirements of due process, in part procedural (particularly deliberation and consultation) and in part substantive (particularly non-retroactivity and the proportionality of means to purposes). These limitations have become a central element of the Bank’s internal law, and have indeed been adopted by other administrative tribunals as well; and they have been applied not simply in cases of amendment of working conditions but more often to a host of other kinds of institutional decisions. The Tribunal in de Merode applied those principles to the 1979 modifĳications made by the Bank in its compensation policies relating to tax reimbursement and salary adjustment, and found that these requirements had been satisfĳied. I would like to turn next to the legacy of the judgment in de Merode. What has been the influence of that judgment, over the past near-thirty years, on the judgments and jurisprudence of the World Bank Tribunal and of other administrative tribunals? The Tribunal was correct that the task of distinguishing essential from non-essential employment conditions, while not easy in the abstract, would more readily be accomplished over time in the specifĳics of particular cases. Time permits only a brief reference to several such cases. In one, the von Staufffenberg case decided in 1987,9 the Tribunal held that the mutual practice of so-called “parallelism” between the World Bank and the International Monetary Fund with respect to compensation and benefĳits was a fundamental and essential term. Because, however, this practice had never entailed automatic lock-step with IMF salary increases, but rather a more flexible form of consultation and coordination, the applicant’s claim was dismissed. Another applicant, however, in the Pinto case decided in 1988,10 successfully invoked de Merode for her claim that the Bank had improperly frozen her salary as an incident of her

8 Ibid. paras. 45–47. 9 von Staufffenberg v. The World Bank, WBAT Decision No. 38 [1987]. 10 Pinto v. IBRD, WBAT Decision No. 56 [1988]. the de merode decision 23 downgrading to a lower-salary position; she was entitled, held the Tribunal, even after downgrading, to some reasonable upward salary adjustment from year to year.11 The Tribunal concluded, however, in two cases in which former stafff members had given up their Bank employment and sought re- employment some years later, that the Bank’s then new policy limiting such reemployment, either altogether or by imposing time limits on the new employment, related only to non-fundamental terms of employment. The Tribunal held that the rules governing a stafff member’s eligibility for and terms of re-employment in the future were “too peripheral, specula- tive and remote to be regarded as a fundamental and essential element” of employment. Although ordinarily this would have meant that the two stafff members’ re-employment rights could have been curtailed by the Bank, they both won their cases before the Tribunal. In one case, it was held that the Bank had improperly applied the new policy retroactively to a re-employment application made at an earlier date; and in the other, it was held that the Bank’s normal power to amend was overcome by repeated and specifĳic assurances given to the stafff member at the time of her initial departure from the Bank’s service.12 The fĳinal WBAT judgment relying on de Merode that I will discuss is in fact a cluster of sixteen judgments rendered as recently as December 2009. The circumstances of these cases are, regrettably, quite appalling. All 16 applicants were present or past stafff members employed in the Bank’s Department of Institutional Integrity (INT), which had the responsibility to investigate internal allegations of stafff member fraud, corruption or serious misconduct, including harassment, discrimination and coercion directed against other stafff members. In 2005, President Wolfowitz appointed as Director of INT a person identifĳied in the Tribunal judgments only as Ms. X. The management style of Ms. X, in the view of many stafff members in her Department, was all too often abusive and vindictive. For example, she precipitated unwarranted and overlong periods of performance scrutiny and evaluation of INT stafff members who she believed had complained about her and her management style. She threatened to impede and to retaliate against INT stafff members who might seek review

11 But see A. Berg (No. 2) v. IBRD, WBAT Decision No. 87 [1990] and Abdi et al. v. IBRD, WBAT Decision No. 108 [1992]. 12 Compare Addy v. IBRD, WBAT Decision No. 146 [1993] with Brebion v. IBRD, WBAT Decision No. 159 [1997]. 24 chapter one of her conduct through the Bank’s dispute-resolution machinery, including the Administrative Tribunal. The applicants before the Tribunal sought compensation for Ms. X’s coercive misconduct. The Tribunal addressed their claims in decisions numbered 408 through 423, and named anony- mously and alphabetically AK through BA.13 In all of the 16 judgments, the Tribunal rested on de Merode, which had in passing stated that “the right of recourse to this Tribunal … forms an integral part of the legal relationship between the Bank and its stafff members”.14 The Tribunal ruled “that the availability to stafff members of an impartial adjudicator of claims of non-observance of contracts of employment and terms of appointment constitutes an essential condition of employment for all Bank stafff …”. The Tribunal found that Ms. X’s management practices justifĳied the fear of INT stafff members that they would be at risk if they exercised their rights of access to the Bank’s internal grievance mechanisms. Their complaints were serious “as a matter of fundamental principle”, which the Tribunal sought to remedy by awarding each of the applicants the substantial amount of $30,000 net of taxes. In the time that remains, I would like to explore the influence that the de Merode judgment has had upon administrative tribunals at other international organizations. All of the three principal pillars of de Merode – the broad-ranging defĳinition of the terms of employment, the distinction between essential and non-essential terms, and what I have referred to as the due-process limitations on the institution’s discretionary power to amend – have been invoked by other tribunals as foundations for their own analysis. It is not surprising that the administrative tribunal at the World Bank’s sister institution – the International Monetary Fund – would be comfortable with invoking WBAT precedents. In 2006, the IMF Board of Governors, in implementing the principle of international competitiveness for stafff salaries that had expressly been in place since 1979, inter alia increased the weight given as comparators to public-sector salaries outside the Bank (typically not as generous as those in the private sector). In addressing stafff challenges to that policy, the IMFAT in Daseking-Frank15 [Judgment 2007-1] borrowed freely from the analysis in de Merode and von Staufffenberg, and concluded that although “international competitiveness” in compensation was indeed a fundamental element, the precise methodology for

13 WBAT Decision Nos. 408 to 423 [2009]. 14 de Merode, op. cit., para. 21. 15 Daseking-Frank et al. v. IMF, IMFAT Judgment No. 2007-1. the de merode decision 25 giving content to this general standard – which nations to be used as comparators, what relative weights to give them, the balance of public and private comparators, and the like – was not. Such calculations are discretionary, and the Tribunal limited its review to abuse of discretion and to conformity with all of the tests formulated in de Merode, including thor- oughness, deliberation, consultation with stafff, consideration of relevant facts, a reasoned process to achieve appropriate goals (including IMF cost- savings, held to be an allowable consideration), and so forth. Facts even closer to those in de Merode were presented to the administrative tribunal of the Organization of American States in the Brunetti judgment rendered in 1986.16 Since 1949, U.S. stafff members at the OAS were reimbursed for their paid income taxes, sometimes by the U.S. itself and sometimes by the OAS. The applicants before the OASAT challenged a 1984 Executive Order that changed the tax-reimbursement formula to use the average-deduction assumption, just as in de Merode, and to incorporate other assumptions that worked in most instances to reduce the tax reimbursement as compared to the previous arrangements. Although the applicants argued that this Executive Order violated their “acquired rights”, the OASAT instead framed the question as one of “essential rights” and used the de Merode case as the basis for its analysis and outcome: it was the principle of tax reimbursement (or equality of net incomes) that was fundamental and essential, while the method of calculation was “not an essential element of the employment relationship … and therefore cannot be an acquired right”. The applications were dismissed. Perhaps the most challenging and divisive application of the principles of de Merode was by the Asian Development Bank Administrative Tribunal in four judgments from 1994 to 1997 based on the applications of stafff members Mesch and Siy. Again, tax reimbursement was at the heart of the matter. Mr. Mesch was an attorney of U.S. citizenship who joined the ADB stafff in 1980 and paid U.S. income taxes; nothing was said in his employment documents about tax reimbursement. The same was true of Mr. Siy, a Filipino, who had formerly worked at the World Bank (where we know that there was such reimbursement); in his 1989 employment documents at the ADB there was no mention of reimbursement of the taxes that Mr. Siy would have to pay to the Philippines government. Indeed, from its founding in 1946 until 1992, the ADB had never reimbursed stafff members in those limited situations where they paid income taxes on Bank income.

16 Brunetti et al. v. Secretary General of the OAS, OAS Judgment No. 95 [1986]. 26 chapter one

In 1992, both Mesch and Siy asked the Bank to reimburse their 1990 and 1991 income taxes, but the ADB refused. This resulted in a signifĳicant discrepancy between their net after-tax Bank income and the incomes of their stafff colleagues doing similar jobs. The two applicants relied upon Bank administrative and personnel documents dating back to 1967, which declared that stafff members were entitled to “equal pay for comparable work”; they argued that this fundamental and essential term meant equality of net after-tax incomes and so compelled the reimbursement of the taxes paid to the U.S. and Filipino governments. The four judgments in the series of Mesch and Siy cases between 1994 and 1997 warrant an entire morning’s discussion on their own.17 The ADB Tribunal observed that, unlike the World Bank, the Asian Development Bank made no express provision for or allusion to tax reimbursement in the Bank’s foundational documents, or in its stafff rules, or in its letters of appointment and acceptance; nor was there any unwritten practice of such reimbursement. Nonetheless, the Tribunal in the fĳirst Mesch and Siy case held that tax reimbursement was a “term or condition of employment” in 1992, so that the Bank’s refusal then to pay such was a breach of the employment contracts of Messrs. Mesch and Siy. How was this conclusion reached? The Tribunal pointed out the express endorsement of “equal pay for comparable work” in Bank documents through the years; identifĳied the ambiguity as to whether the reference to “equality” meant equality in before-tax salary or after-tax salary; and found that the Bank “could have so structured its terms of employment as to exclude expressly the prospect of equal pay for comparable work and could thus have excluded the need for tax reimbursement. But it never did so”. The interpretive maxim contra proferentum – that ambiguities should be interpreted against the person who drafted the language – was held by the Tribunal to warrant the conclusion that the applicants had the right to be reimbursed for their income taxes. One need not imagine the dismay of the ADB’s high management. Within a few months of the ADBAT decision, the Board of Directors and the Board of Governors adopted a Resolution acknowledging the Bank’s obligation to reimburse for two-year’s worth of past taxes as directed by the Tribunal. But the Resolution fĳirmly went on to “reafffĳirm [the Bank’s] longstanding principle of no reimbursement of taxes” and to declare that

17 See Mesch and Siy v. Asian Development Bank (Nos.1,2,3 and 4), ADBAT Decision Nos. 2 [1994], 6 [1995], 18 [1996] and 35 [1997]. the de merode decision 27 the “principle of equal pay for comparable work … shall be construed to be applied before the imposition of any tax”. The second and third Mesch and Siy cases dealt principally with procedural matters. The Tribunal did, however, clarify that all that the fĳirst judgment had found was that as of its 1994 date, tax reimbursement was a condition of employment binding on the Bank, and not that it was a fundamental and essential term. The Tribunal stated that “the question whether the Bank had any right to change that condition had not arisen; and it is only in relation to the possibility of change that the characterization of the condition as ‘fundamental and essential’ matters”. This central issue – whether the Bank could lawfully cease providing future tax reimbursements for current stafff members – was fĳinally addressed by the ADBAT in Mesch and Siy (No. 4), decided in 1997 by which time I had become a member of that Tribunal. Three of the fĳive judges ruled, given the absence of provision for tax reimbursement in all Bank documents and contracts, and in its practices since 1966, that it was not fundamental and unchangeable. (I can give credit for the principal work on the judgment to the late Mark Fernando, then the Tribunal President, and a man of great intellect, wisdom and humility.) Among the majority’s reasons was that, given the lack of any written provisions for or a longstanding practice of tax reimbursement, the applicants could not at the time of their initial employment or later have had a reasonable expectation that the Bank would provide such a benefĳit; that in the pertinent judgments of other international administrative tribunals not one had found an unmodifĳiable acquired or essential right in the absence of either “express constitutive or personnel documents or in a past practice of sig- nifĳicant duration”;18 and that the ADB Governors in overturning the tax- reimbursement policy had substantially complied with the limitations of process and reasonableness set forth in de Merode. “The policy of before- tax equivalence” and non-reimbursement of taxes “is not so unreasonable as to constitute an abuse of discretion”.19 Heated disagreement was expressed in a dissenting opinion fĳiled by my then ADBAT colleague Brigitte Stern, who would have held equal after-tax salaries to be an unalterable fundamental condition, principally as an included corollary of the fundamental term of “equal compensation for equal work”, which was frequently endorsed in Bank documents since its

18 Mesch and Siy v. Asian Development Bank (No. 4), ADBAT Decision No. 35 [1997], para. 41. 19 Ibid. para. 46. 28 chapter one founding. A second member of the Tribunal joined in several key passages in Judge Stern’s dissenting opinion. A fĳinal look at the impact of thede Merode case on other international tribunals will focus on the United Nations Administrative Tribunal. A most interesting issue was presented in a case decided in September 2005 and arising from the International Civil Aviation Organization (ICAO), one of the organizations subscribing to the UNAT for fĳinal determination of its employment disputes.20 The applicant there had retired from active service in the fall of 1999, and began to draw monthly pension payments. In December 2000, the UN Joint Stafff Pension Fund rules were amended to empower the Fund to pay a portion of a retiree’s monthly benefĳits directly “to one or more former spouses and/or current spouse”. The purpose was to assist courts of member nations to implement judgments of alimony or support rendered against delinquent former stafff members. The applicant, who had failed to make judicially required support payments to his former spouse and his son, found that the UN Pension Fund began in 2002 to pay 50 percent of his monthly pension payments to his former wife. He claimed that as of the date of his retirement in 1999, he had an “acquired right” to the payment to himself, in full, of the pension that he owned at that time. Two judges of the three-judge panel of the UNAT found no impairment of an acquired right, because the right to the applicant’s pension and to its monthly payment was “not touched”; he would be liable to pay the sum to his former spouse even if the Pension Fund were not to pay it to her directly. Re-directing half of his pension payments to his former wife was neither arbitrary nor an abuse of discretion. The third UNAT member, Brigitte Stern (who had dissented at the ADBAT in the fourth Mesch and Siy case just discussed), concurred in the judgment dismissing the application but fĳiled a forceful separate opinion. Choosing not to analyze the matter in terms of acquired rights, but rather adopting the “essential” terminology of de Merode, Judge Stern wrote that while distinguishing essential from non-essential is not an easy matter, one should consider several objective factors: personalized contract terms, principle versus procedure or application, objective importance in the stafff member’s accepting his appointment, gravity of the consequences (usually more than merely fĳinancial), and an examination of the organization’s interests that are promoted by the new regulation.

20 UNAT Judgment No. 1253 [2005]. the de merode decision 29

Judge Stern concluded that all of the factors listed by her – clearly overlap- ping those in de Merode – pointed toward a fĳinding that the diversion of pension moneys did not amount to the denial of an essential condition of employment. I would like to reflect briefly on the legacy of the judgment in de Merode. Just as the World Bank Tribunal in that case had identifĳied widely adopted principles of international law as part of the employment contract of Bank stafff members, so now has de Merode itself – and its broad-ranging analysis and rulings – become part of those international principles, respected and applied at other tribunals. Some of the matters that had to be left vague in 1981, most obviously the distinction between essential and non-essential employment terms, have been given more concrete delinea- tion, at the World Bank and at other institutions. The strikingly diffferent outcomes in the tax-reimbursement cases at the World Bank and the Asian Development Bank show that the determination of what is “essential” must be done with a careful eye on the possibly varying circumstances and practices at the diffferent institutions. The Tribunal inde Merode also cast something of a new light upon the meaning and content of the employment contract, with letters of appointment and acceptance being not so much the principal repository of rights and duties but rather the instruments that bring the new stafff member within the larger ensemble that make up the institution’s internal law. And the Tribunal’s compendium of due-process elements to test the legality of changes in employment conditions has become for many tribunals a more generally applicable code that sets forth the limitations upon all exercises of institutional discretion. I close where I began, with some personal reflections. I believe that the decision-making process that characterized the de Merode case was instrumental in shaping many of the very positive aspects of the Tribunal’s work through the nearly 30 years since. President Arechaga’s qualities of mind and character have since been reflected in the half-dozen other presidents with whom I have been privileged to serve, including Jan Paulsson who is presiding at today’s conference. All of the judges through the years have been thorough in their preparation, have been remarkably warm and open-minded, and have engaged in civilized discourse that has resulted – in some 450 judgments – in unanimous decisions without dissenting or even separate concurring opinions. In addition to recalling my admirable colleagues and friends from the Tribunal’s membership, I want to be sure that gratitude is expressed – at least once every thirty years – to those who have served as Executive 30 chapter one

Secretary of the Tribunal. It is the Executive Secretary, the chief of stafff of the Tribunal’s secretariat, who is responsible for facilitating the work of the Tribunal and, at least as important, for communicating on behalf of the Bank and of the Tribunal with the many stafff members who need information and assistance concerning their procedural rights as they seek redress of their employment grievances. The fĳirst Executive Secretary was Bruno deVuyst, who had the challenging task of helping the Tribunal “fĳind its legs” in its fĳirst few years. C.F. Amerasinghe continued during his Tribunal service of some 14 years to produce what is still the most useful and highly regarded scholarship about the history and jurisprudence of all of the international administrative tribunals. During his ten years as Executive Secretary, Nassib Ziadé brought both a scholar’s perspective and outstanding management skills, as well as his tactful yet fĳirm and indispensable advocacy for the independence of the Tribunal. Femi Elias presently carries out the important duties of the post and, fĳittingly, helps to remind us of the days when his distinguished father sat as a founding judge of the Tribunal, with whom I sat as we addressed the difffĳicult issues raised in Judgment No. 1, Louis de Merode and others vs. The World Bank. PART I

THE DEVELOPMENT OF INTERNATIONAL ADMINISTRATIVE LAW AS A FIELD OF LAW

CHAPTER TWO

REFLECTIONS ON THE INTERNAL JUDICIAL SYSTEMS OF INTERNATIONAL ORGANIZATIONS

C. F. Amerasinghe

A. Introduction

It was the view of the ICJ that the General Assembly of the UN had the power to establish an administrative tribunal. In the Efffect of Awards of Compensation Case the Court explained the reasons for its conclusion at length and justifĳied it as follows: When the Secretariat was organized, a situation arose in which the relations between the stafff members and the Organization were governed by a complex code of law. This code consisted of the Stafff Regulations established by the General Assembly, defĳining the fundamental rights and obligations of the stafff, and the Stafff Rules, made by the Secretary General in order to implement the Stafff Regulations. It was inevitable that there would be disputes between the Organization and stafff members as to their rights and duties. The Charter contains no provision which authorizes any of the principal organs of the United Nations to adjudicate upon these disputes and Article 105 secures for the United Nations jurisdictional immunities in national courts. It would, in the opinion of the Court, hardly be consistent with the expressed aim of the Charter to promote freedom and justice for individuals and with the constant preoccupation of the United Nations Organization to promote this aim that it should affford no judicial or arbitral remedy to its own stafff for the settlement of any disputes which may arise between it and them. In these circumstances, the Court fĳinds that the power to establish a tribunal, to do justice as between the Organization and the stafff members, was essential to ensure the efffĳicient working of the Secretariat, and to give efffect to the paramount consideration of securing the highest standards of efffĳi- ciency, competence and integrity. Capacity do this arises by necessary intendment out of the Charter.1

1 Efffect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, ICJ Reports 1954, p. 57. I have in this essay freely made use of ideas and material in volume 1 of my book on The Law of the International Civil Service (2nd edition, Oxford UP, 1994) and in my article entitled “The Future of International Administrative Law”, 45 ICLQ (1996) pp. 773–95. 34 chapter two

For similar reasons all international organizations have the power to establish or to subscribe to internal administrative tribunals. Indeed, this power has now been fully recognized in practice. That settlement by the administrative organ, by a deliberative organ, or even by an ad hoc body of jurists was an inadequate procedure was realized even by the League of Nations at a very early stage. In 1921, soon after the League was created, the desirability of having some method of permanent judicial settlement for employment disputes was discussed by the Assembly of the League. The question was raised in the Assembly, for example, whether the Council of the League, in spite of its high authority was a sufffĳiciently independent body to settle disputes of this kind,2 and the need was emphasized for establishing a judicial body comparable to the French Conseil d’Etat.3 It is signifĳicant that the Rapporteur of the Supervisory Commission,4 who was entrusted with the task of examining the question of an administrative tribunal, fĳirstly, in a negative sense, dis- carded the concept of an advisory body because such a body, even if independent, could never give fĳinal decisions, and secondly, in a positive sense, found in favour of judicial settlement of employment disputes particularly because of the advantages of impartiality and the need for binding decisions. He was of the view that judicial settlement would enhance rather than diminish the authority and position of the administration because it would mean that it was ready, in case of doubt, to submit to an independent judge. The General Assembly of the UN also opted for judicial settlement of employment disputes for the obvious reason that judicial machinery was the most desirable.5 In 1980 when the World Bank Administrative Tribunal (WBAT) was being established, a new idea was injected into the debate. One of the reasons given by the President of the Bank for establishing a tribunal was one of principle.6 It was a principle accepted in many national legal systems and reafffĳirmed in the Universal Declaration of Human Rights. This principle required that where administrative power was exercised, there should be available machinery, in the event of disputes, to accord a fair hearing and due process to the aggrieved party. The procedure of the

2 League of Nations, Records of the 2nd Assembly, Meetings of Committees, II, p. 71. 3 Ibid. pp. 71–72. 4 League of Nations Document C.C. 196. 5 See UN Document 45, A/C.5/56, for the rejection of other alternatives. 6 See Memorandum to the Executive Directors, dated 14 January 1980, from the President of the World Bank, Documents R80-8, and IFC/R80-6, pp. 1–2. reflections on the internal judicial systems 35

Appeals Committee of the Bank was in fact incapable of fulfĳilling this function. Hence, there was a need for an independent judicial body to decide complaints relating to the exercise of administrative power. The fundamental principle that the exercise of administrative power should be subject to judicial control is implied in Article 6 of the European Convention on Human Rights. There appears to have been some doubt about the interpretation of that Article7 but the European Court of Human Rights favoured a broad approach to its interpretation. In Delcourt the European Court said: “In a democratic society within the meaning of the Convention the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Article 6(1) would not correspond to the aim and purpose of that provision”.8 Subsequently, the issue of administrative power was adverted to in Application 4523/1970, X v. Federal Republic of Germany,9 where the application of the principle that the exercise of administrative power should be subject to judicial control was not rejected and impliedly accepted.10 On another matter, it has been generally assumed that each international organization has its own internal law and it would seem that international administrative tribunals (IATs) have in general acted on this assumption, in so far as, for example, a tribunal of one organization would not apply the written law of another organization as such to the employment relationship in the organization in regard to which it has to decide the case before it. But there are nuances to the proposition that each international organization has its own self-contained internal law. For example, in de Merode, the WBAT did discuss some aspects of the question of the breadth and scope of the internal legal system, when it raised the question, in view of the arguments of the parties in the case, in the following way: The parties have discussed the questions whether the conditions of employment incorporate in addition the rights and duties defĳined in relation to other international organizations by administrative tribunals comparable to this one. Or, to put it another way, do there exist rules common to all international organizations, and which must, therefore, ipso facto apply in the

7 See van Dijk and van Hoof, Theory and Practice of the European Convention on Human Rights (1982) pp. 237 fff. 8 11 Publ. E.C.H.R., Series A (1970) p. 15. 9 14 Yearbook of the E.C.H.R. (1971) p. 622 at p. 630. 10 Other reasons underlying the establishment of internal judicial machinery by organizations for the settlement of employment disputes are discussed in Amerasinghe, op.cit. supra n. 1, Vol. I, pp. 42 fff. 36 chapter two

legal relations between the Bank and its employees, in such a way as to determine the rights and duties of the two parties in the present case? Is there a common corpus juris shared by all international offfĳicials?11 The applicants had argued that the opinions of IATs together constituted a body of jurisprudence applicable to the interpretation of inter national employment agreements12 and that, inter alia, because such opinions had “illuminated the expectations and actions of the Bank and its employees”, they provided, at least, “persuasive precedents” upon which the Tribunal should rely.13 The Bank contested this argument on various grounds but principally because the assumptions on which the applicant’s position was based, namely that the decisions of IATs constituted a coherent body of law with developed legal principles freely applied from one organi zation to another and that all international organizations have similar personnel rules and policies and arranged their employment practices in identical fashion to accomplish their institutional functions, were faulty.14 The Tribunal chose not to give a categorical answer in a negative or positive form to the question raised and which it had formulated clearly in terms of a general corpus juris for all international offfĳicials. As it pointed out, whether similar features in the jurisprudence of IATs amounted to “a true corpus juris” was not a matter on which it was necessary for it to express a view.15 It did state that there was an internal law of the Bank which governed conditions of employment and that it must apply that law in deciding, as an international tribunal, internal disputes between the Bank and its stafff which were disputes within the organized legal system of the Bank,16 but at the same time it was quite explicit about the relevance of an international administrative jurisprudence. It said: The Tribunal does not overlook the fact that each international organization has its own constituent instrument; its own membership; its own institutional structure; its own functions; its own measure of legal personality; its own personnel policy; and that the diffference between one organization and another are so obvious that the notion of a common law of international organization must be subject to numerous and sometimes signifĳicant qualifĳications. But the fact that these diffferences exist does not exclude the

11 de Merode et. al.,WBAT Decision No. 1 [1981], para. 26. 12 Consolidated Memorandum in Support of the Applications at p. 15. 13 Ibid. at pp. 25 and 26. 14 Joint Memorandum at pp. 42 fff. 15 de Merode, op cit., supra n. 11 para. 13. 16 Ibid. para. 12. reflections on the internal judicial systems 37

possibility that similar conditions may afffect the solution of comparable problems. While the various international administrative tribunals do not consider themselves bound by each other’s decisions and have worked out a sometimes divergent jurisprudence adapted to each organization, it is equally true that on certain points the solutions reached are not signifĳicantly diffferent. It even happens that the judgments of one tribunal may refer to the jurisprudence of another. Some of these judgments even go so far as to speak of the general principles of international civil service law or of a body of rules applicable to the international civil service… The Tribunal is free to take note of solutions worked out in sufffĳiciently comparable conditions by other administrative tribunals, particularly those of the United Nations family. In this way the Tribunal may take account both of the diversity of international organizations and the special character of the Bank without neglecting the tendency towards a certain rapprochement.17 The Tribunal made two important points. In sufffĳiciently comparable situations the law applied by other tribunals could be taken note of and applied by the Tribunal. Thus, the Tribunal was of the view that there were some common principles. Secondly, where conditions were dissimilar the Tribunal could take note of the diversity of international organizations and the special character of the Bank and apply diffferent and special rules. In practice, tribunals may refer to judgments of other tribunals in deciding cases. While this is no indication that one tribunal regards the decisions of other tribunals as binding, it is evidence particularly that there may be certain general principles of law applicable within internal legal systems of international organizations pertaining to the employment relationship which extend beyond the limits of the internal system of any one organization. With the above introductory background, the task is undertaken of commenting on some important aspects of the internal judicial systems of international organizations.

B. Matters of Structure

The WBAT was created in 1980. It has had a special impact on the development of international administrative law, the international administrative judicial system and the direction in which the latter is going. Although it is a relatively young international administrative court, compared to the ILOAT and the UN Administrative Tribunal, (UNAT), the creation and

17 Ibid. para. 13. 38 chapter two performance of the WBAT have spurred a revival of confĳidence in the system and resulted in the establishment of many other international administrative courts by international organizations. Since the creation of the WBAT, the Inter-American Development Bank (IDB), the Asian Devel- opment Bank (ADB), the Commonwealth Secretariat and the IMF have created administrative courts more or less modeled on it, with many features in common with the WBAT. The Bank for International Settle- ments has also used the WBAT model for setting up its administrative court. The African Development Bank (AfDB) and the European Bank for Reconstruction and Development (EBRD) in efffect looked to the WBAT Statute in the process of deciding how to establish grievance procedures. Article 1 of the WBAT Statute provides explicitly that the WBAT is a judicial body which functions independently of the management of the World Bank Group and that the independence of the Tribunal shall be guaranteed and respected by the Bank Group at all times. Apart from this provision there are three features of the WBAT that are particularly important. First, the provision in its Statute that requires the judges to possess high legal qualifĳications, unlike the provisions of the ILOAT Statute (which is perhaps the oldest extant statute), has enabled the WBAT to have highly qualifĳied jurists appointed to its bench. Article IV(1) states that the judges “shall be persons of high moral character and must possess the qualifĳica- tions required for appointment to high judicial offfĳice or be jurisconsults of recognized competence”, and is modeled on Article 2 of the ICJ Statute. The appointments made as a result of Article IV have not only had a unique efffect on the performance of the WBAT but also led to the WBAT earning special respect in the world of international institutions. It has also resulted in the WBAT having a special influence on international administrative law itself. The same Article explicitly provides that current or former stafff members of the World Bank Group are not eligible for appointment and that judges may not be employed by the Bank Group after their service on the Tribunal.18 A corollary is that the appointment of judges has been efffectively depo- liticized. While the Statute in Article IV(2) vests the appointment of the judges in the Executive Directors (a body representing all the members of the World Bank’s member countries), and the appointments are in fact made by them, the procedure adopted in practice by the World Bank and

18 Attention is drawn to the fact that at least on one occasion in the past the UN Administrative Tribunal had on its bench a former stafff member of the UN, which did not say much for the UN’s appointment process. reflections on the internal judicial systems 39 followed, more or less, by, among other organizations, the IMF and the ADB not only ensures that the provisions relating to the qualifĳications of the judges are respected but has also largely taken the selection of judges out of the realm of politics and horse-trading in elections. In the case of the WBAT, the manner in which the judges are chosen for appointment entrusts the initial selection to the President of the World Bank who submits a list to the Executive Directors. He is to consult both the Executive Directors and the Stafff Association before compiling the list and is to be advised by a committee composed of members with relevant experience. The procedure has resulted in the selection of highly qualifĳied jurists without respect for political preferences. The second feature is the recognition in the Statute of the independence of the Secretariat of the WBAT.19 The Statute clearly provides that the Executive Secretary (Registrar) shall be responsible in the performance of his duties only to the Tribunal. The statutes of some European organizations20 had a similar provision but it is only since the WBAT Statute adopted it that other IATs have had a similar provision incorporated into their statutes. In the World Bank itself the Secretariat and its director (Executive Secretary) are regarded as an independent department which is part of the IAT and outside the regular institutional structure. Administratively, liaison between the Secretariat and World Bank is provided by the Vice President and Secretary of the Bank (not the chief legal offfĳicer, who is the counsel for the respondent in proceedings before the WBAT) and the Secretariat is not interfered with in its functions, both administrative (which involves a relationship also with the judges) and supportive of the judicial. Special institutional rules also apply to it. It is noteworthy that the Secretariat has its own budget, according to the Statute of the WBAT. The Executive Secretary is now appointed for a fĳive-year term with the possibility of renewal only for another fĳive-year term. That the Secretariat enjoys the kind of independence and autonomy it does vis-à-vis the World Bank has done a great deal for the image of the

19 Statute of the Administrative Tribunal of the International Bank for Reconstruction and Development, International Development Association and International Finance Corporation, as adopted by the Board of Governors on April 30, 1980, and amended as of July 31, 2001, (“WBAT Statute”) Art. VI(2). 20 See e.g. COE Administrative Tribunal Statute, Art.14, para.2; ESA Appeals Board Statute, Reg.40. 40 chapter two

WBAT both within and outside the Bank. But above all it has insulated the whole WBAT, including the judges, from any undue influence that might otherwise have been applied by the Bank and from any feeling of obligation towards the Bank that might otherwise have germinated, for whatever reason—particularly considering that the WBAT is fĳinanced by the Bank. The example of the WBAT and the success of the arrangements in the World Bank in respect of the independence and freedom from political influence of the WBAT because of the fact that the Secretariat has had its status guaranteed by the Statute of the WBAT and also by the practice of the Bank has had an influence on other international organizations and the development of IATs on the institutional side. The third important aspect of the WBAT’s impact which is likely to have a lasting influence is the approach that the court has taken to the philoso- phy of giving judgments. Not only are the judgments fully reasoned and discussed in extenso the principles of law involved in the cases to be decided but, where the nature of the case demands, the WBAT has adopted the practice of explaining the principles of international administrative law which govern the case and which it will apply. This practice has, on the one hand, led other IATs21 to cite the judgments of the WBAT as precedents on the law. On the other, more importantly, the WBAT has taken the lead in clarifying and laying down the general principles of international administrative law. An outstanding example of this is its judgment in de Merode,22 its very fĳirst decision. For the fĳirst time an IAT discussed extensively the sources of international administrative law and the principles that govern such matters as amendment of the written law of international organizations. On the matters discussed in that judgment it has become the locus classicus in international administrative law. Some twenty-fĳive years or more after the establishment of the WBAT the UN took a hard look at its internal judicial system and implemented some important changes. There is provision now for a UN Dispute Tribunal (UNDT) which is an administrative court of fĳirst instance. Internal remedies through an Appeals Board have been abolished. There is also now established a UN Appeals Tribunal which hears appeals from the UNDT on certain grounds by either party before the UNDT (Article 2(1) of its Statute). The reforms are far-reaching and supportive of independence,

21 See e.g. COE Appeals Board (now Administrative Tribunal) in Stevens and Others Decisions Nos 101-13, p. 8. 22 de Merode, op. cit. supra n. 11, p. 13. reflections on the internal judicial systems 41 efffĳiciency and impartiality of the tribunals and cover, inter alia, qualifĳica- tions of judges and the process of appointment. Sufffĳice it to cite here the relevant provisions of the Statutes of the tribunals on these matters. Article 4 of the UNDT Statute provides as follows: … 2. The judges shall be appointed by the General Assembly on the recommendation of the Internal Justice Council..… No two judges shall be of the same nationality. Due regard shall be given to geographical distribution and gender balance. 3. To be eligible for appointment as a judge, a person shall: (a) Be of high moral character; and (b) Possess at least 10 years of judicial experience in the fĳield of administrative law, or the equivalent within one or more national jurisdictions. 4. A judge of the Dispute Tribunal shall be appointed for one non- renewable term of seven years.… A current or former judge of the United Nations Appeals Tribunal shall not be eligible to serve in the Dispute Tribunal. … 6. A judge of the Dispute Tribunal shall not be eligible for any appointment within the United Nations, except another judicial post, for a period of fĳive years following his or her term of offfĳice. … 8. A judge of the Dispute Tribunal shall serve in his or her personal capacity and enjoy full independence. Article 3 of the UN Appeals Tribunal Statute provides: 2. The judges shall be appointed by the General Assembly on the recommendation of the Internal Justice Council in accordance with General Assembly resolution 62/228. No two judges shall be of the same nationality. Due regard shall be given to geographical distribution and gender balance. 3. To be eligible for appointment as a judge, a person shall (a) Be of high moral character; and (b) Possess at least 15 years of judicial experience in the fĳield of administrative law, or the equivalent within one or more national jurisdictions. 4. A judge of the Appeals Tribunal shall be appointed for one non- renewable term of seven years.…A current or former judge of the Dispute Tribunal shall not be eligible to serve in the Appeals Tribunal. … 6. A judge of the Appeals Tribunal shall not be eligible for any appointment within the United Nations, except another judicial post, for a period of fĳive years following his or her term of offfĳice. 8. A judge of the Appeals Tribunal shall serve in his or her personal capacity and enjoy full independence. 42 chapter two

The Internal Justice Council referred to is a new body and makes for independent tribunals. It consists of fĳive members, two appointed by the UN Secretariat, two appointed by the stafff of the UN and the fĳifth a neutral. One of the most serious problems of image may appear to arise from the fact that judges of IATs (as, indeed, also the stafff of the Secretariat) are appointed and paid by the international organizations of which the IATs are internal courts and before which the organizations themselves are parties. For all practical purposes the feature is inevitable. How else realistically could judges or Secretariat stafff be appointed and paid? By analogy, judges (and Secretariat offfĳicials) of national courts are generally appointed and paid by governments, even though the same governments, if they litigate, would be parties before the courts. In the case of the IATs, however, there may be an added element which increases the danger of partisanship, where judges are appointed for terms which can be renewed.23 In some cases, it is true, there are limits to renewal.24 The question is whether the existence of the possibility of renewal by the organization could induce judges to favour the organization in their judgments in order to ensure or make more likely their reappointment. It is noted with distinct approval that the Statutes of the UN tribunals provide generally for no renewals of appointments. While the problems and the dangers arising from this situation undoubtedly exist, the experience of IATs thus far is that judges (and secretariats) have displayed remarkable integrity and independence. There may be bad or poor judgments handed down, as may be the decision in the now famous (or infamous) Mullan case25 of the UNAT, but this could happen in any judicial system. What is apparent is that the cause of such decisions is not generally bias, a lack of independence and integrity, or an unprincipled desire to favour the organization. It is more than likely that in most cases the calibre of the judges accounts for this. Of late, however, the question has arisen whether political considerations have not entered into the process of adjudication,26 the reasoning being that international administrative courts may sometimes tend to pay too much attention to the interests of international organizations,

23 See WBAT Statute, op. cit., Art.IV(3). 24 Ibid. and Statute of the Administrative Tribunal of the Organization of American States, Art.III(3). 25 UNAT Judgment No. 162 [1972]. See the discussion in Amerasinghe, op. cit. supra n.1, at pp.140 fff. 26 The issue arose in connection with, e.g., Yakimetz, UNAT Judgment No. 333 [1984]. reflections on the internal judicial systems 43 as such. This is a slightly diffferent point from the previous one. It is really not a case of bias or undue influence but a result of preferences in judicial appreciation. The results flow from excessive weight perhaps being given to the interests of the organization. There are not many examples of cases in which this may be said to have happened. Where it has, the underlying reason is that to some extent in international administrative law, by its very nature, there is a virtual presumption that organizations and their administrations exercise the extensive powers that they have vis-à-vis their stafff in a manner which is acceptable and without question—omnia rite esse praesumuntur. Thus, it is more difffĳicult to prove wrongdoing on the part of organizations and the tendency is to hold that organizations are within their rights in acting as they do, even though sometimes their actions may appear to the layman to be unacceptable. Thus, what appear to be politically motivated judgments may in reality be based on a judicial preference for the rights of organizations to exercise unimpeded their powers, which in general involve a good deal of discretion. This having been said, there are dangers lurking of the judicial system being too “pro-organization”, so to speak. This is a trend that may have to be checked in the future if confĳidence and trust in the international administrative legal system are to continue. The trend, it may be, is a response to the needs of organizations to conduct their business smoothly and without let or hindrance in the face of what may be conflicting interests among their members themselves and between their members and their stafff, which needs are given recognition, albeit too emphatically, by the judiciary. But the scales of justice must be evenly balanced and in the long term it may be a mistake to encourage what could become the tyr- anny of the employer. In this context it is not judicial integrity or independence that is really being threatened. Rather, it is that the future must defend itself against a possible tendency towards judicial hibernation in making value judgments. Fortunately, most IATs have avoided such pitfalls and, perhaps, their example will be a salutary influence on those IATs that have had dif- fĳiculty in doing so. On the other hand, it must also be recognized that it was in connection with organizations where conflicts of interests appear to have been particularly strong, such as the United Nations, that the tendency manifested itself.27 In the context of international administrative

27 With the new Statutes of the UN Dispute Tribunal and the UN Appeals Tribunal the situation in the UN has been transformed. 44 chapter two law, at the same time, it must be admitted that there is a fĳine line between what is just and what is expedient. In the time to come, perhaps, one of the better safeguards against politicization and such weaknesses will be the quality and caliber of the appointments made to the benches of IATs (and also the directorates of secretariats). To some extent it may be useful to insulate such appointments from politics and the reforms at the UN appear to have addressed the issue. The practice of organizations, such as the World Bank, in making non-political appointments to IATs may be worth considering as an alternative wherever this can possibly be adopted. Ultimately, however, it is the quality and integrity of the judges that will be the true safeguard against politicization and other waywardness, whatever the method of appointment. This can be ensured only by responsible conduct on the part of the appointing bodies acting under the conviction that an independent, qual- ifĳied and strong judiciary is a necessary foundation for an efffective organization. The importance of preserving the independence of secretariats has been adverted to earlier. Organizations are becoming increasingly conscious that secretariats must be permitted as much independence in the execution of their functions as judges have in the performance of theirs. While an administrative nexus must exist between secretariats and the organizations, developments show that the trend has been towards avoiding situations where the independence of secretariats may be compromised by undue influence being exerted by administrations through control over administrative oversight. Thus, as in the case of the World Bank, it is desirable and advisable to establish the administrative nexus through a suitable senior offfĳicial other than the respondent’s counsel. Hopefully, the practice of the World Bank and the other organizations that have followed its example will in the future be adopted as the most suitable modus operandi. Another matter of structure which needs to be addressed satisfactorily is remuneration for judicial services provided by judges. If the quality and independence of judges of IATs is to be preserved, respectable compensation must be provided for work done. In the past, for example, the judges of the old UNAT were paid an honorarium which was hardly proportionate to the amount of time and work expended – most recently $3,000 for 2 sessions of 11 or 12 weeks and for work done in preparation. Latterly this honorarium was also taken away and the judges were paid nothing at all. This kind of situation does not promote commitment and work of quality on the part of judges. It is noted reflections on the internal judicial systems 45 with approval that the UN has now changed its system. Judges of both UN Tribunals are paid appointees, the judges of the UNDT being paid the salary of D-II stafff members of the UN and the judges of the Appeals Tribunal being paid at the rate underlying the salaries of D-II stafff members of the UN. The panel of independent experts which reported on the internal justice system of the UN had recommended the use of the salaries of Assistant Secretaries-General as the yardstick but this recommendation was not accepted. This may be a mistake on the part of the UN because it indicates a lack of appreciation of the need for judicial independence and integrity and the need for work of high quality on the part of the judges. It is to be noted in this regard that judges of the WBAT are paid approximately at the rate of $250 per hour ($1,500 for a 6 hour day) for work done which is comparable to legal fees in the US legal sector. The ADB and the IDB, among other organizations, also have provision for respectable judges’ remuneration.

C. Matters of Substance

In regard to the substantive law, on the whole the IATs which have published their decisions have developed this in the most sophisticated manner. There is a very mature body of law which has benefĳited from the experience of the French and Continental European administrative courts of the last century and a half. Yet, this law has a unique character as international administrative law and is not a clone of any particular national law. Many cases brought to IATs involve interpretation of the rules and regulations of organizations relating to stafff. IATs have had no difffĳiculty interpreting such instruments, in general, implicitly according to general principles of interpretation to be found in both international law and in national legal systems. In addition, in other areas including the abuse of discretion, developments have taken place through the elaboration of principles especially in the areas of substantive irregularity,28 procedural irregularity29 and discrimination and inequality of treatment,30 and with a very singular and intricate treatment of the law relating to unilateral amendment of the

28 Amerasinghe, op. cit. supra n.1, Vol. I, pp. 342 fff. 29 Ibid. pp.366 fff. 30 Ibid. pp.313 fff. 46 chapter two written law by organizations.31 It is certain that development of these areas can be expected to continue at a very professional level. In the area of substantive irregularity, reference is made by courts to the well-established categories of abuse of discretion, such as error of law, error of fact and mistaken conclusions. A residual concept, described generally as “arbitrariness”, was recognized explicitly by the WBAT, initially in Durrant-Bell.32 This covers any abuse of discretion which cannot conve- niently be fĳitted into the conventional categories. InDurrant-Bell the misfeasance on the part of the administration was failure to achieve transparency in its dealings with the applicant. The applicant was not permitted to have awareness of the true position in which she was placed at every stage of the procedure leading up to the termination of her employment, although in other respects the respondent had fulfĳilled its obligations and exercised its discretionary powers without fault. The failure of the respondent was characterized as a fault which, while not capable of rendering the decision of the administration null and void, was, nevertheless, a violation of the applicant’s rights which had to be compensated. This residual concept of “arbitrariness” is a source of fertile development of the law and is likely to be elaborated further. Courts have not felt con- stricted by the established categories but have extended constructively the coverage of substantive irregularity. Discretionary powers are numerous – e.g., the power to transfer, promote, classify, dismiss, etc.33 Disciplinary powers are a very special example of discretionary powers. The reason for this is that in disciplining stafff, administrations exercise a quasi-judicial power which is diffferent from other discretionary powers, such as the power to promote or classify, etc. The quasi-judicial nature of the power was adverted to and emphasized for the fĳirst time by the UN Administrative Tribunal in a series of cases beginning in 1998.34 In earlier cases, this tribunal had in efffect paid lip service to the powers of administrations by stating that “in disciplinary matters the Secretary-General has a broad power of discretion”,35 although those powers are not broader than other powers and are subject to stricter

31 Ibid. pp. 402 fff. 32 Durrant-Bell, WBAT Decision No. 24 [1985]. For “arbitrariness” see also e.g. Apkarian, WBAT Decision No. 58 [1983]; Chakra WBAT Decision No. 70 [1988], Decision No. 70. 33 See Amerasinghe, op.cit. supra n. 1, pp. 229–240. 34 See e.g., Augustine, UNAT Decision No. 890 [1998], Jhuthi, UNAT Decision No. 939 [1999], Kiwanuka, UNAT Decision No. 941 [1999]. 35 See e.g., Djimbaye, UNAT Decision No. 583 [1992], para. VI. reflections on the internal judicial systems 47 control. But this was only lip service, as was demonstrated by what the tribunal actually did in such cases which was to control the discretion to discipline strictly. The tribunal said in Shahrour that the exercise of the discretion, for such it is, to impose disciplinary measures “also involve[s] the exercise of a quasi-judicial power to impose sanctions for offfences rather than the exercise of pure executive discretion”.36 The consequence of this is that the control exercised by tribunals (most of them, at any rate) to prevent what may generically be called “abuse of discretion” in disciplinary cases is stricter in many respects, though it may fall short of a substitution of judgment. The WBAT followed the above approach, starting with the decision in Singh.37 The ILOAT’s approach has been similar.38 Briefly the particular strictures are especially in the areas of the establishment of facts incriminating the stafff member, the legality of the characterization of offfences and the nature of the penalty imposed. The ILOAT, the WBAT and the UNAT have in the actual exercise of control acted on the basis that the control is stricter in disciplinary cases.39 In regard to the establishment of the facts against the stafff members, tribunals have been so strict that they have almost substituted their own judgment as to whether the fĳindings against the stafff members should have been made or as to the nature of the fĳindings against the stafff members, though perhaps not quite. Facts are examined in great detail and the tribunals satisfy themselves that the evidence warrants the fĳindings against the stafff members.40 What is the standard used in determining whether the administration has correctly established the facts against the stafff member on the evidence? Is it manifest unreasonableness or simply unreasonableness that will upset the fĳinding by the administration or does the tribunal go further and ask whether it agrees with the fĳinding? The tribunal clearly examines the evidence de novo and, while using the test of reasonableness (not manifest unreasonableness), comes close to establishing whether it agrees with the fĳinding against the stafff member, so strict is its approach. The tribunals review the facts like an appeals court in a national jurisdiction. While they do not examine the evidence in order to come to a fĳinding

36 Sharour, UNAT Decision No. 939 [1999], par. IX. 37 Singh, WBAT Decision No. 105 [1991]. See also King, WBAT Decision No. 131 [1993], Carew, WBAT Decision No. 142 [1995] and Planthara, WBAT Decision No. 143 [1995]. 38 See e.g., Connolly-Battisti (No. 2), ILOAT Decision No. 274 [1976]. 39 See Connolly-Battisti (No. 2), ILOAT Decision No. 274 [1976], Shahrour, UNAT Decision No. 939 [1999], Kiwanuka, UNAT Decision No. 941 [1999], Mustafa, WBAT Decision No. 207 [1999]. 40 See cases referred to above in footnotes 34, 37, 38. 48 chapter two as a court of fĳirst instance, they do examine the evidence in order to satisfy themselves that the fĳindings against the stafff member were warranted, indeed, almost to the extent of determining whether they agree with the adverse fĳinding or to what extent they do. In the area of proportionality of sanctions, tribunals are very particular in protecting stafff members from injustice – injustice in the tribunals’ opinion. The practice of tribunals in this regard is exemplifĳied by the complete analysis and application of the principles of proportionality in a recent case decided by the WBAT.41 Similarly, tribunals will not hesitate to fĳind that the administration erred in law in defĳining what was an offfence subject to discipline, if they conclude that the characterization was improper in their opinion. It may be appropriate to cite from Kiwanuka (UNAT) the statement of general principle relating to the control of disciplinary powers: The jurisprudence … has been developing and defĳinitions have been refĳined. In reviewing this kind of quasi-judicial decision and in keeping with the relevant general principles of law, in disciplinary cases the Tribunal generally examines (i) whether the facts on which the disciplinary measures were based have been established; (ii) whether the established facts legally amount to misconduct or serious misconduct; (iii) whether there has been any substantive irregularity (e.g., omission of facts or consideration of irrelevant facts); (iv) whether there has been any procedural irregularity; (v) whether there was an improper motive or abuse of purpose; (vi) whether the sanction is legal; (vii) whether the sanction imposed was disproportionate to the offfence; (viii) and, as in the case of discretionary powers in general, where there has been arbitrariness.… Most recently in Judgment No. 898, Uggla, paragraph II (1998), the Tribunal made a similar general statement. Clearly the Tribunal takes the view that the imposition of disciplinary sanctions involves the exercise of a discretionary power by the Adminis- tration. It further recognizes that, unlike other discretionary powers, such as transferring and terminating services, it is also a special exercise of quasi- judicial power. For these reasons the process of review exercised by the Tribunal is of a particular nature. The Administration’s interest in maintaining high standards of conduct and thus protecting itself must be reconciled with the interest of stafff in being assured that they are not penalized unfairly or arbitrarily”42 The statement covers all that generally is pertinent to the control of discretionary powers, but what is of interest is the reference particularly to the area of establishment of facts, characterization of the offfence and

41 AJ, WBAT Decision No. 389 [2009], paras. 114–19. 42 Kiwanuka, UNAT Decision No. 941 [1999] p. 11. reflections on the internal judicial systems 49 proportionality of sanctions. The WBAT has taken a similar (but perhaps not identical) approach.43 The precedents show that tribunals take great pains to investigate these areas in disciplinary cases. Indeed, proportionality is rarely referred to in other areas. It would seem that tribunals have been careful, and rightly so, to protect stafff members from prejudice in this area because injustice could result in serious damage to their careers – even more so apparently than in the case of dismissal, e.g., for unsatisfactory service. So important is this approach to the exercise of disciplinary powers that in a series of cases decided in 1998 and 1999 from UNRWA, where the administration had dismissed stafff members under a regulation which permitted dismissal in the interests of the agency and where it appeared from the record that the stafff members had been dismissed for disciplinary reasons (namely misconduct), the UNAT treated the dismissals as for disciplinary reasons and applied the standards and general principles relevant to the control of the discretion to discipline. While the interest of the administration to maintain high standards of conduct is acknowledged and respected and cannot be ignored, tribunals are most concerned to protect the interests of stafff members in not being punished improperly for disciplinary violations. In the fĳield of procedural irregularities, the law has been refĳined by a general elaboration of a broad concept of due process.44 Courts have not felt themselves limited by the established categories, such as the right of defense and the requirements of warnings and notice, which they do, indeed, recognize, but have formulated a residual idea of fair treatment in regard to procedures for administrative decision-making. This development leaves IATs room for efffectively safeguarding the procedural rights of stafff members by reference to general but legal notions of procedural justice and fair play. In regard to unilateral amendment of the written law by organizations, it is well known that there are several diffferent approaches to the protection of stafff members from what could have been an unfettered discretion.45 What has emerged is that IATs have been particularly sensitive to the need to protect certain rights of stafff members, whether they have considered them based on acquired rights, essential conditions of employment or some other such concepts; what is important is that IATs

43 See e.g., Carew, WBAT Decision No. 142 [1995], Planthara, WBAT Decision No. 143 [1995], Mustafa, WBAT Decision No. 207 [1999], AJ, WBAT Decision No. 389 [2009]. 44 See Amerasinghe, op. cit. supra n.1, pp. 395 fff. 45 For the approaches see ibid., pp. 419–439. 50 chapter two have with no uncertain emphasis concluded that there are certain rights enjoyed by stafff members which cannot unilaterally be abrogated by the organization, even though they may have taken diffferent routes in arriving at this conclusion and have elaborated diffferent formulae, which may or may not overlap in content, for afffording this protection. The variety of approaches to the problem is undoubtedly an example of innovative skill. IATs can be expected to defĳine with experience more accurately the scope of protection given and its limits, while not emasculating the powers of organizations to alter the written law in the light of changing circumstances and their need to keep pace with developments in the world of international organization and co-operation and personnel management. An aspect to which more attention will have to be paid relates to the fundamental law of the international civil service, sometimes referred to as jus cogens. The issue has been discussed in detail elsewhere.46 In the past some IATs were hesitant to nullify the application of the written laws of organizations or amendments to them on the ground that they were not in accord with fundamental norms of international law and international administrative law.47 This could have emanated from a desire to respect the legislative powers of the highest organizational body. Some IATs have been bolder and have sought ways and means of recognizing a body of such fundamental law.48 In de Merode,49 for instance, the WBAT recognized clearly that the principle of non-retroactivity was such a fundamental norm which the organization could not violate. Clearly, there are other such norms in the realms of substance and procedure. There may be certain aspects of due process which are inviolable, while the principle of non-discrimination, if properly defĳined and elaborated, may be a fundamental norm which cannot be violated. Many of these principles require not only clear statement but judicious and sagacious elaboration in regard to limits. For example, the principle that salaries cannot be reduced generally50 may be a fundamental principle of international administrative law. However, the challenge is to defĳine the limits of this principle, which may not be absolute. The ILOAT circumscribed it somewhat when faced with the budgetary crisis in the ILO some time ago.51

46 See ibid., pp. 156–157. 47 Apparently the attitude implied in Mullan, op. cit. supra n. 25. 48 See apparently e.g. Artzet, COE Appeals Board, Appeal No. 8 [1973]. 49 de Merode, op. cit., supra n.11. 50 See Amerasinghe, op. cit. supra n. 1, Vol. II, pp. 329 fff. 51 De los Cobos and Wenger, ILOAT Judgment No. 39 [1980] (ILO). reflections on the internal judicial systems 51

A distinction may have to be made between reduction of salary and dock- ing of salary. The limits of ins cogens will need to be established by thought and prudent disposition.52

D. The Matter of Procedure

IATs have developed through their rules, and other means, a sophisticated procedure for proceedings before them. The fairness of these has not in general been questioned. The rules provide for elaborate written proceedings which form the basis of the procedure before the IATs, for interven- tions as parties, for participation as amici curiae, for oral hearings and for other matters. An aspect that may raise problems is oral hearings. The rules of all the more important IATs provide for oral hearings.53 In most cases, these are at the discretion of the court rather than a right of the parties. Some courts, such as the UN Dispute Tribunal and the administrative courts of the African Development Bank, the Organization of American States and the Inter-American Development Bank have oral hearings as a matter of routine; many others such as the ILOAT, WBAT and the administrative tribunals of the International Monetary Fund and the Asian Development Bank have had them very rarely. It may be asked why there are such diffferences in this regard. The recourse to oral hearings is a function of the culture of an IAT. Clearly, the OASAT and IDBAT and many of the administrative courts of European organizations have a tradition of relying heavily on oral hearings in order to gather information and evidence necessary to decide cases, while the ILOAT and the WBAT do not in their practice place an absolute value on such hearings. It would be inaccurate to postulate that oral hearings are always necessary or that they are always unnecessary. Indeed, the quality and fairness of judgments resulting from either procedure have never been questioned in general. Thus, absence or presence of oral hearings has not been found to be the reason for good judgments or bad judgments. The operative reason for not calling for oral hearings when there is a discretion to do so or not and the parties have no right to such hearings is that the court concludes that it has sufffĳicient evidence based on the written proceedings to decide the case fairly. There is no reason to doubt that, if a court which has

52 See the discussion in Amerasinghe, 2 op. cit. supra n. 1 pp. 329 fff. 53 See e.g., Rules 17 and 18 of the WBAT Rules, Art. 12 of the ILOAT Rules of Court, Arts. 16 and 17 of the UNDT Rules, Art. 18 of the UN Appeals Tribunal Rules. 52 chapter two an unfettered discretion to have or not to have oral hearings thinks that it has insufffĳicient evidence on the basis of the written proceedings to decide a case fairly, it will hold oral hearings. Of course, there may be instances where courts enjoying a discretion have held an oral hearing irrespective of the insufffĳiciency of evidence, principally to permit the applicant or the respondent to have his day in court, but this is really not an issue. In reality there are no grounds for concluding that obligatory oral hearings result in fairer and better judgments. The issue is whether the cause of justice would be advanced by obligatory (or more frequent) oral hearings or whether it sufffers from the institution of oral hearings. As it emerges at present, it cannot be concluded that the absence of oral hearings necessarily has a negative impact, while oral hearings undoubtedly have fĳinancial implications for both parties. The practice of leaving the incidence of oral hearings to the discretion of the court is perhaps the best solution from many points of view. Apart from the dictates of culture there is no particular virtue as such in obligatory (or more frequent) oral hearings. IATs are certainly mature and prudent enough to exercise a discretion to hold oral hearings in a manner that would promote the interests of efffĳicient and economical justice. The future could profĳitably turn more towards discretionary rather than obligatory oral hearings, with an eye not only on efffĳiciency and economy but also on the speedy disposal of cases. Apart from the issue of oral proceedings, problems of procedure have arisen in connection with orders for the production of documents (or for the appearance of witnesses). For example, Article 18 of the UNDT Rules of Procedure refers to such orders, as does Rule 19 of the WBAT Rules of Procedure. The issue is how such orders can be enforced by the IAT if the relevant party refuses to produce the documents (or the witness). Generally, it is the respondent who refuses to produce documents on the basis of confĳidentiality. IATs have no authority to issue subpoenas or their equivalent. However, IATs have found a way of dealing with such refusals. If the document is important enough, the party refusing to produce it runs the risk of having judgment delivered against him or her. Such a judgment by default was given recently in the Bertucci Case by the UNDT.54 It was said that the inference to be drawn from the non-production by the UN of a document ordered by the tribunal to be produced was that the material

54 Judgment No. UNDT/2010/80. reflections on the internal judicial systems 53 not disclosed would signifĳicantly assist the applicant’s case and adversely afffect the respondent’s. In giving judgment by default for the applicant, the tribunal explained: The applicable principle is not only clear but rests upon sound notions of procedural justice: the respondent cannot put an applicant to proof when material that is or my reasonably be thought to be part of that proof is withheld from disclosure by the respondent despite an order for it to be produced. This would enable the respondent to profĳit from its own illegal actions in breach of its contractual obligation towards the applicant and its instrumental obligations to the Tribunal. To remove this profĳit is not to penalize the respondent in any relevant sense. It is not, in my view, a just or reasonable course to ask whether the applicant, on the material which he is able to adduce, is entitled to judgment, since this is to ignore the fundamental point that he cannot be justly limited to this evidence, but is entitled to adduce the material ordered to be produced. Although the content of that material is not known, except that ex hypothesi it must be relevant, the only fair assumption is that it would assist the applicant and the respondent cannot be permitted, by declining to enable the assumption to be tested by production to the Tribunal, to contend otherwise… The only just outcome is that the applicant must have judgment by default against the respondent.55

E. The Matter of Remedies

The efffĳicacy of a legal system depends to some extent on the nature of the remedies available to its courts. The remedies that IATs can prescribe are generally referred to in their statutes.56 Some statutes appear to specify only certain kinds of remedies. Thus, the statute of the Administrative Tribunal of the Council of Europe (COEAT) refers to annulment of the administrative decision as apparently the only remedy that may be ordered. In the opinion of this writer it could be somewhat counterproductive to limit available remedies explicitly in this way. Thus, in the case of the COEAT the explicit reference to annulment as apparently the only remedy has led the court only to annul administrative decisions or to declare them legally valid. The resort to one of these two alternatives could result in a miscarriage of justice, as where a defect in an administrative decision is in reality not sufffĳiciently serious to render the decision a

55 Ibid. paras. 34–35. The Appeals Tribunal upheld the judgment on this point; see Judgment No. 2011-UNAT-121 (11 March 2011). 56 See e.g., Art. 10.5 of the UNDT Statute; Art. VIII of the ILOAT Statute; Art. XII of the WBAT Statute. 54 chapter two nullity. Either the applicant is not compensated at all or the administration’s decision is declared a nullity when it should not be, with the result that the applicant is overcompensated. It may be pointed out that there is no compelling reason for regarding such narrow conceptions of the extent of permissible remedies as being inherent in the nature of international administrative law. Another issue relates to limitations to the award of remedies delineated in statutes. Many IATs have been commendably courageous and enterpris- ing in their approach to the problem of limitations in general. Practically all statutes of the better-known IATs contain provisions which deal with available remedies in no uncertain terms. The intention is purportedly to place limitations on the available remedies. The manner in which limitations are formulated and their extent vary. IATs have addressed these limitations in two ways. First, limitations relating to the amount of monetary compensation that may be awarded have been scrupulously respected. When these limitations are two-tiered and permit circumvention in exceptional circumstances there is in efffect no limitation, although a jus- tifĳication must be given for exceeding the specifĳied limit. Where this is not the case but there is in efffect a limit on the amount of compensation the situation becomes more complex. There is good reason for not permitting awards of exorbitant compensation, given the circumstances of international organizations. On the other hand, the limits must not be so low that awards of compensation cease to be truly compensatory or to act as a deterrent on the organizations. Second, where statutes on their face have limited available remedies in other ways, most IATs have resorted to what may be described as “inherent powers” in order to prescribe remedies in a manner or to an extent not envisaged in the statutes. This has generally been done without explicit discussion or articulation but as a matter of course.57 Thus, though compensation other than as an alternative to reinstatement may not be referred to in their statutes as a possible remedy, IATs have in general arrogated to themselves the power to award compensation per se, without ordering annulment or reinstatement, as the case may be. This kind of innovative and imaginative approach to what otherwise may be a stultifying situation is to be lauded. The governing principle which is evidently being followed is that, unless there are imperative indications to the contrary in a statute, an IAT has the inherent power to grant

57 See discussion in Amerasinghe, op.cit., supra n.1, pp. 444. fff. reflections on the internal judicial systems 55 a remedy which is appropriate to the injury done. This principle has an afffĳinity to the maxim: there cannot be a wrong without a remedy. It is noted that in international administrative law machinery to enforce judgments of IATs against organizations is absent. Attempts efffectively to enforce judgments through national courts would generally be met with claims of immunity, while there is no way in international law of enforcing such judgments against organizations. There are many questions that arise consequently, such as: is international administrative law efffective? Can international administrative law be characterized as law in the absence of enforcement mechanisms? Why should organizations carry out judgments of IATs? Organizations do carry out judgments of IATs. Practically never have judgments not been respected by them. The reason for this is a psychological one relating to the need to promote morale and confĳidence among stafff and respect for the good faith of the organizations themselves in international society.58 The question of efffectiveness seems to be a ster- ile one. The same reasons which make the system efffective and enable judgments of IATs to be carried out by organizations will prevail. If at all, with the continuing importance of international organizations and the growing perception that the international civil service (however composed) is a necessary foundation for the success of international organization and co-operation, the practical efffectiveness of the international administrative legal system will be enhanced because the system is virtually a sine qua non for an efffĳicient and satisfĳied international civil service. As for characterization as law of international administrative law this is a jurisprudential question for legal theory. It is my opinion that the element of enforcement is not an essential requirement of law defĳined as such.59 It is unnecessary to examine this issue in any depth here for the present purposes. Sufffĳice it to say that, unlike international law in general, international administrative law – which is part of international law – has never seriously been denied the quality of law nor has its legal quality been seriously questioned. It has always been recognized that it is a legal system which has functioned efffectively.

58 Ibid., pp. 80 fff. 59 See C.F. Amerasinghe, “Theory with Practical Efffects: Is International Law neither Fish nor Fowl?” 37 Archiv des Völkerrechts (1999) p. 1. 56 chapter two

F. Concluding Observations

The prospects for the international administrative legal system and the internal judicial systems of international organizations will be determined to a large extent by how much importance the world attaches to international organizations and particularly to the maintenance of an independent international civil service as a means of securing international peace and security, promoting development and fostering international cooperation. Governments must support by their attitudes international organizations as a means to this end. Moreover, there must also be an acknowledgment of the singular importance of an independent civil service in the process. There is concern about the administrative structures and the fĳinancial cost and burden of international organizations and of maintaining a civil service in its present form, among other things. The concern is certainly legitimate. What we are seeing today is perhaps a backlash to the excessive proliferation of international organizations, the failure to economize in the area of administrative expenses and, perhaps, the unrestrained reliance on organizations as a panacea and as a means of solving international problems. But it is unlikely that the international organization as a vehicle of human progress and development in a multinational world, built as it is on the concept of the nation State, will ever be stifled or dis- mantled. Equally, the independent international civil service has achieved too much and been too productive for its usefulness and its existence to be forgotten or ignored. What is taking place today is an inevitable interlude for reassessment and taking stock. International organizations and the international civil service, it is expected, will come away strengthened, revived and, it would appear, re-formed. This is the scenario against which the prospects of an international civil service governed by international administrative law must be assessed. In particular, in regard to the civil service what is being foreshadowed is a hard-core body of permanent or regular stafff members in organizations upon whom will rest the responsibility of maintaining independence, continuity and values, assisted by a considerable number of other kinds of stafff member, such as consultants. This structure will not only make it possible for economies to be achieved but infuse an element of external experience and fresh insights into the administrative milieu of organizations. International administrative law has developed considerably (in the last 80 years or so) since the 1920s, when it was fĳirst recognized with the reflections on the internal judicial systems 57 creation of the LNT60 as a viable system of law governing the relations between organizations and their stafff. Since then the system of law has become an integral part of the law of international organizations and the international legal system itself. It has evolved through the creation of numerous international organizations after the Second World War which have submitted to the jurisdiction of internal courts, namely IATs. These courts have successfully settled disputes between the stafff and organizations, their judgments being generally not disregarded. The law that an international administrative court applies is international administrative law. To the extent that the judgments of these courts are published they have contributed to the development of certain uniform principles61 which have come to be regarded as the principles of international administrative law. While each organization has its own written law contained in regulations and rules which a court settling disputes between that organization and its stafff must apply, general principles are invoked particularly in the interpretation of the written law, seemingly as jus cogens (fundamental law) or where there are lacunae. It is these principles that have made it possible to conceive of a system of international administrative law, despite the diversity and individuality of written laws pertaining to the diffferent organizations and the multiplicity of courts applying them. What is now referred to as international administrative law has been constructed as a result of the work of the numerous administrative courts of organizations, with special reliance being placed on the published judgments of the courts of the leading universal and closed organizations. While international administrative law is part of the law of international organizations in general and the system embraces collectively the individual administrative legal systems of all organizations, it is through the published work of a few courts exercising jurisdiction over a few organizations that the law and the system have come to be viewed and identifĳied. It is an appropriate observation also that an international administrative court is the judicial organ of the organization creating it. The international administrative legal system and the law it embodies are really the backbone of international organization and its successful functioning. It is unlikely and practically impossible that the system of administrative justice as it now exists in international organizations will

60 For the LNT, see C.F. Amerasinghe, op. cit., supra n. 1, pp. 49 fff. 61 See de Merode, op. cit., supra n. 11, p. 13. 58 chapter two ever be displaced. The signifĳicance of the creation of the WBAT in 1980 and its impact as a paradigm on the future structure, organization and operation of international administrative courts (IATs) cannot be overes- timated. The structural reforms of its IAT carried out by the UN need to be emphatically noted. The system seems today to function without the independence of IATs being afffected in practice and the integrity of judges and of the system appears by and large not to be in question. What may and should change in principle could be the prevalence of a certain preference in the value system of some IATs for over-protecting organizations in certain areas of the law. The requirement of the independence of secretariats or registries must also receive attention. The substantive law has in general been developed accurately and adequately. The question of oral hearings in the procedure before courts requires a more balanced and less peremptory answer than has thus far generally been given. While oral hearings may promote justice, sometimes there is no compelling need to encourage them. Finally, the absence of compulsory means of enforcement of judgments against organizations—a feature evidently shared with international law in general—is not in practice a decisive lacuna. The possibility of institut- ing such enforcement procedures does not seem a feasible alternative in the future. In any case, however, their absence neither deprives the international administrative legal system of its character as law nor has made or will make it inefffective. CHAPTER THREE

ADMINISTRATIVE TRIBUNALS OF INTERNATIONAL ORGANIZATIONS AND WORLD CONSTITUTIONALISM

Pedro Dallari*

The jurisprudence of international administrative tribunals has been the most relevant element in the development of international administrative law. Moreover, that jurisprudence allows the identifĳication of two particular features in the development of international administrative law that signifĳicantly distinguish it from other areas of international law. First, principles and rules of international administrative law are not set out in a framework convention or even in a system of international treaties. The existing written rules are produced by the internal administrative bodies of international organizations based on the explicit or implicit powers that arise from the charters of such organizations. From this situation results the second feature of international administrative law, namely, its character as a body of universal principles and rules set forth by the action of judicial bodies that have no institutional bonds among them – the very administrative tribunals of international organizations. These courts – and not legislative or administrative international bodies – have been responsible for establishing international administrative law as a broad-ranging and coherent set of rules. The integration between administrative tribunals is materialized through the intensive use that each court makes of the jurisprudence issued by other similar tribunals. This particularity of international administrative law is reflected in the deepest and most comprehensive work on Law that governs employment relations within international organizations based on the product of the administrative tribunals, and even in its title – The law of the international civil service (as applied by international administrative tribunals) by C.F. Amerasinghe, who served for a long time as Executive

* A fĳirst version of this essay was presented in the form of comment on the keynote address of Professor Robert Gorman, at the symposium on “The Development and Efffectiveness of International and Administrative Law”, held in Washington, DC in 23 March 2010. 60 chapter three

Secretary in the World Bank Administrative Tribunal.1 This peculiar origin did not prevent the consolidation of international administrative law as a specifĳic branch of international law. The founding and consolidation of the abovementioned World Bank Administrative Tribunal (created in 1980) and the majority of the similar tribunals took place during a time that could be considered as the third wave in the process of evolution of the role and relevance of international administrative tribunals, starting in the 1960s and gaining dimension in the 1980s and 1990s. In 1927, the establishment of the League of Nations Administrative Tribunal, which was taken over by the Administrative Tribunal of the International Labour Organization (ILO) in 1946, was the inaugural moment of this type of court. The creation of the United Nations Administrative Tribunal in 1949 could be considered the beginning of a second wave, a high point of which was the advisory opinion rendered by the International Court of Justice in 1954 in the case concerning the Efffect of awards of compensation made by the United Nations Administrative Tribunal. In that advisory opinion, the International Court of Justice stated that the General Assembly was fully competent to establish an administrative court under the authority granted by the Charter of the United Nations. Furthermore, considering the formal validation of the establishment of the United Nations Administrative Tribunal, the Court examined the merits of the creation of such a judicial body, and corroborated it under such standpoint as well, understanding it fĳitted the administrative performance requirements necessary for the proper development of the activities of such organization, besides being coherent with the effforts of the United Nations in human rights promotion. Thus, the International Court of Justice granted full support and recognized the competence of an international organization to establish an administrative tribunal, and, moreover, the convenience of such judicial body. Consequently, in subsequent years administrative tribunals grew in number, resulting in the third wave mentioned above, leading to the conclusion of agreements conferring jurisdiction on the administrative tribunal of one international organization over labour disputes of other organizations. The ILO Administrative Tribunal, for instance, has jurisdiction over

1 C.F. Amerasinghe, The Law of the International Civil Service (2nd edition, Oxford University Press, 1994). world constitutionalism 61 disputes arising out of more than 50 international organizations, which is further evidence of the role of such courts in setting overall normative standards. If the advisory opinion of the International Court of Justice in 1954 can be seen as a landmark of the second wave in the evolution of the role and importance of international administrative tribunals, the landmark of the third wave is the decision adopted in 1999 by the European Court of Human Rights (ECHR) in the Waite and Kennedy vs. Germany judgment.2 In that case, the court sitting in Strasbourg examined the claim against Germany instituted by two persons that, having rendered services to the European Space Agency (ESA), fĳiled labour claims before the German judiciary, which recognized the immunity of the organization from German jurisdiction and did not admit the claim. This compelled the interested parties to turn to the ECHR to uphold the guarantee of access to justice provided in Article 6 of the European Convention on Human Rights. In its decision, the ECHR indicated the importance of immunity from national jurisdiction for international organizations, and then underlined the correspondence between such immunity from national jurisdiction and the commitment of the international organization to the protection of fundamental rights (including the existence of mechanisms to receive and process its own employees’ claims). Finally, the ECHR unanimously decided not to uphold the claim against Germany, considering that the German judiciary, by recognizing the immunity from national jurisdiction of any international agency that includes an internal justice system, did not infringe the guarantees of the due process of law and a fair trial required by in the European Convention of Human Rights. The ECHR went on to state that, in view of the lawful purpose of the immunity from national jurisdiction granted to international organizations, Article 6 of the European Convention of Human Rights, which protects the right of access to justice, should not be construed so as to compel international organizations to submit to national jurisdiction or be subject to the legislation of the respective State. According to the ECHR, such understanding would frustrate the proper functioning of international organizations, in opposition to the current trend favourable to the extension and strengthening of international cooperation. The fundamental guarantee of access to justice may be perfectly ensured by internal jurisdictional mechanisms of international organizations.

2 ECHR, Application n° 26083/94, judgment of February 18, 1989. 62 chapter three

Thus, if the advisory opinion of the International Court of Justice of 1954 had already supported the existence of administrative tribunals in light of the role of such courts for the proper management of international organizations, the decision of the European Court of Human Rights of 1999 went further by noting that, in light of the fundamental right of access to justice established in the conventions of human rights, the establishment of administrative tribunals by international organizations was a necessary condition for the immunity accorded to international organizations from national jurisdiction. The rejection of immunity by national courts in the absence of internal judicial mechanisms was subject to particular attention in a conference organized by the United Nations Administrative Tribunal in November 2007 – International Administrative Tribunals in a Changing World – and was examined by several lecturers. In an article included in the conference proceedings, the Belgian jurists Nicolas Angelet and Alexandra Weerts refer to two national court decisions – one of the Brussels Labour Court of Appeal (Siedler vs. Western Europe Union) of September 17, 2003 and the other of the French Cour de Cassation (Banque Africaine de Dévelopment vs. M.A. Degboe) of January 25, 2005 – whereby the immunity of jurisdiction of the Western European Union and the African Development Bank, respectively, were disregarded. In both cases, the decisions were grounded on the absence of mechanisms in both organizations for the proper examination of claims fĳiled by their employees.3 Judicial experience in Brazil demonstrates some of the difffĳiculties faced by international organizations in securing recognition of their immunities. The long distance between the administrative tribunals (typically located in headquarters) and the location of applicants working in other countries, coupled with the absence of provisions in Brazilian law concerning the use of arbitration in the resolution of such disputes (which is adopted by international organizations in consulting services agreements) are some of the arguments that have led labour courts to assume jurisdiction in some disputes involving international organizations. Undoubtedly, only the certainty that the right to the due process of law and a fair trial are guaranteed will grant efffective protection to international

3 “Challenges to immunities on the basis of the right to a fair trial”, in K. Papanikolaou (ed.), International Administrative Tribunal in a Changing World (United Nations Administrative Tribunal Conference, New York, November 2007) (2008), pp. 33–49. world constitutionalism 63 organizations. The current preponderance granted to human rights under- scores the necessity of establishing judicial mechanisms for the resolution of labour disputes by international organizations. Moreover, this is a time of major transformations in the fĳield of international law. The twentieth century has seen signifĳicant changes in the contribution of international law to the regulation of international life. From a normative framework fundamentally dedicated to regulating the coexistence between States, international law has evolved to develop systems of rules aimed to formalize universal standards of social behaviour in an international community composed of States, international organizations and, above all, human beings. This notion of international community is derived not only from the impressive increment of the number of international rules agreed on, but results from systemic characteristics that emanate therefrom. Hence, the International Law expansion evolved towards a legal system framework destined to govern the international community. In the twenty-fĳirst century, certain trends can also be identifĳied that build on the indicators already present in the fĳinal quarter of the last century, towards the further development of international law towards true global legal governance, i.e. transnationalization of the law, whereby the instruments of international law are used not only to give form to normative content contingently agreed on by the States, but also to achieve institutional structures that may generate, with an increasing degree of autonomy and in a political environment that has been conventionally qualifĳied asglobalization , commands of a judicial nature. The present moment is one of major international challenges. The recurrent threats to international security highlighted by the re- emergence of the nuclear agenda, the instability of the international economic system, the flagrant disregard of human rights and environmental stress all call for the strengthening of multilateral international regulatory mechanisms which have always been desirable but are now a necessity. The idea of global governance in political science corresponds in law to the idea of international constitutional law, and its structuring is the most relevant and fascinating legal task of the present time. In face of the inevitable and even desirable movement towards the strengthening of international institutional structures, it is imperative that the institutions be submitted to control mechanisms that warrant the supremacy of values and principles which, along with modern international law, were established in the last century. Within this global 64 chapter three political context – where a speedier densifĳication of the institutional weave is advocated under the protection of valuational criteria that express the principles upheld by civilization – the constitutional perspective for a legal system that governs the international order acquires renewed importance. This is a distinct concept from the one that, under the inspiration that gave rise to the League of Nations, also advocated a constitutionalizing perspective for international law that would have the purpose of creating a centralized and structured political order such as a federation of States subordinated to a world government. Currently, the idea of international law constitutionalism is related to the purpose of establishing a political order that results in integration, where the idea of “world government” gives way to the idea of global governance. The honourable Professor of the University of Victoria in British Columbia, Douglas M. Johnston, states: “modern international law can be envisaged idealistically, in ethical and institutional terms, as a collective efffort to achieve universal order through the development of constitutional structure and procedure among nations”.4 In contemporary international law doctrine, several scholars have scrutinized this international law constitutionalism, several varied approaches have been adopted. The diffferent perspectives converge, however, at the assumption of elements that are clearly explained in the treatment that the scholar and judge of the German constitutional court, Brun-Otto Bryde, accords to international constitutional law. He says: “The core of a constitutionalized international law is the general acceptance of a common interest of mankind that transcends the sum of individual state interests. This acceptance has materialized in very diffferent areas of international law”. He states: “Another important – though not necessary – feature of a constitutionalized system, a hierarchy of norms, has also been achieved. International law is no longer governed by a positivist concept of the omnipotence of the lawmaking states. In creating law, states are bound by constitutional principles. The existence of jus cogens from which states cannot depart even if they agree has been generally recognized […]

4 D.M. Johnston, “World constitutionalism in the theory of international law”, in R.J. Macdonald and D.M. Johnston (eds.) Towards World Constitutionalism: Issues in the Legal Ordering of the World Community. (Martinus Nijhofff, 2005), p. 15. The compilation that includes Professor Johnston’s article was organized by him in cooperation with the former judge of the European Court of Human Rights Ronald St. John Macdonald and gathers articles related to the perspective of constitutionalism in international law written by renowned experts, some of which have been quoted herein. world constitutionalism 65

Thereby, the “higher law” concept of constitutionalism has been transferred to international law. International jus cogens comprises not only the basic principles of international relations, especially the ‘sovereign’ equality of states and the prohibition of the use of force, but in addition the core of human rights. With the recognition of jus cogens, constitutionalization of international law ceases to be a vague idea of idealist scholars and their wishful thinking but has become an accepted feature of positive international law”.5 In this process of systematization of international constitutional law, international organizations have a fundamental role in so far as they constitute structures primarily charged with the implementation of universal standards expressed through legal rules. International organizations, and their judicial organs, including international administrative tribunals, have an important role to play. The Brazilian jurist Antonio Augusto Cançado Trindade, member of the International Court of Justice, describes the densifĳication of the international jurisdictional weave as follows: “Throughout the last years the old ideal of international justice has been revitalized and has gained ground, with the considerable expansion of the international judicial function, reflected in the creation of new international tribunals; the work of these latter has been enriching contemporary international case-law, contributing, as already indicated, to assert and develop the aptitude of international law to regulate adequately the juridical relations in distinct domains of human activity”.6 He also stresses the fact that this strengthened judicial structure serves not only States, but is available to other subjects of international law, especially individuals, producing and granting supremacy to universal human rights principles, a situation that is fully applicable to the administrative tribunals of international organizations. In the abovementioned conference organized by the United Nations Administrative Tribunal in November 2007, aimed to examine the role of International Administrative Tribunals in a Changing World, the scholar and Judge of the Italian constitutional court, Sabino Cassese, was adamant in his observations upon emphasizing the “constitutional role” of international tribunals in the process he describes as being a transition from a

5 B. Bryde, “International democratic constitutionalism”, in MacDonald and Johnston, op. cit., supra n. 4, p. 108. 6 Antônio Augusto Cançado Trindade, “The relevance of international adjudication revisited: reflections on the need and quest for international compulsory jurisdiction”, in MacDonald and Johnston, op. cit., supra n. 4, p. 535. 66 chapter three

“global legal environment” to a “global legal order”; “though global regulatory regimes are ‘self-contained’, they do not however float in an empty legal space, but rather are subject to general principles and communicate between each other. But all of this is due to the work of the courts. Global courts perform this constitutional function, weaving a connective tissue between specialized regimes, and thus slowly producing the missing unit”. Grounding his point of view, Cassese referred to the conclusions of the International Law Commission of the United Nations in his report Fragmentation of International Law: Difffĳiculties Arising From the Diver- sifĳication and Expansion of International Law, of 2006: “The Inter national Law Commission of the United Nations recently […] had to face the problem of the fragmentation of global regulatory systems; examining the jurisprudence of supranational courts, it concluded that fragmentation did not exist. But the connective tissue of principles, rights and linkages exists because of the work of the courts, not by the will of the global ‘legis- lators’, whose jurisdiction is, in any case, always limited by the principle of speciality”.7 Despite the perception that the participation of international judges in the creation of law is of recent origin,8 the circumstances in which the international judicial function is currently exercised are substantially dif- ferent today. The globalized society is presented with a perspective of an efffective – and integrated – action of the courts in the constitutional process of structuring a global legal order. It is worth stressing, however, that in the same manner and for the same reasons normative structures produced within international law should not be necessarily considered better than those rendered by national States. They are also the product of the social context that generates them and are subject to political assessment. International courts in the exercise of their current valuable contributions are not necessarily destined to generate individual and social rules of conduct with higher quality than those conceived by other international players. An international legal order built by jurisprudence cannot subsist in the absence of a political community equipped with representative bodies.

7 Sabino Cassese, “The constitutional function of supranational courts: from global legal space to global legal order”, in Papanikolaou, op. cit., supra n. 3, pp. 243–244. 8 See, e.g., Manley O. Hudson, International tribunals: past and future, (reprint of the original edition Washington: Carnegie Endowment for International Peace and Brookings Institution, 1944, The Lawbook Exchange, 2003), pp. 246–247. world constitutionalism 67

This leading judicial role in the systematization of international law has given rise to challenges. Its qualifĳication as judicial activism expresses the criticism of those who maintain that the judiciary should not usurp the international legislative role incumbent on the States and the management of international organizations. The fact that the statutes of the new United Nations Dispute Tribunal and the United Nations Appeals Tribunal provide that the respective rules of procedure shall be submitted to the approval of the General Assembly is symptomatic of the tension that is reversing a settled tradition of leaving such matters entirely in the hands of the judges. Nevertheless, it should be highlighted that the performance of international courts has been very signifĳicant in establishing the supremacy of human rights, which constitutes the basic criterion of assessment under the constitutional framework of a global legal order that includes and integrates the international law normative set. This occurs not only in specialized human rights courts, but in other international judicial bodies. In this scenario of principles, criteria and procedures aimed at granting, under the banner of commitment to the protection of human rights, more systematization and even constitutionality to international law, the role of the administrative tribunals of international organizations is clear. As the Austrian jurist August Reinisch has stated, “the relationship between the scope of jurisdiction of Administrative Tribunals and immunity of international organizations in employment matters, originally devised as a practical matter at ensuring the autonomy and independence of the internal stafff law of international organizations, has received renewed attention from a human rights perspective and the growing demand for ‘good governance’ within international organizations”.9 From the establishment of the League of Nations tribunal in 1927 to the creation of the new United Nations tribunals as late as 2009 – which may point to the beginning of a fourth wave – the evolution of international administrative tribunals has been marked by the progressive incorporation of tools directed to promote the fundamental right of access to justice with the guarantee of the due process of law and fair trial. And such movement results not only from the constant innovation of the legal framework, but also from positions that have consolidated in light of the decisions rendered in cases submitted to judicial examination. Hence, such internal judicial bodies of international organizations express in

9 A. Reinisch, “Administrative tribunals and questions of jurisdiction and immunity”, in Papanikolaou, op. cit., supra n. 3, p. 71. 68 chapter three their structure and work the transformations that have occurred in international law under a constitutional perspective. With their performance, pari passu to the set of international legal tribunals, they operate within the framework of, and signifĳicantly contribute, to the global legal order.10

10 A fortuitous coincidence illustrates this integration: the Swiss Luzius Widhaber, president of the European Court of Human Rights at the time of the resolution adopted in the case Waite and Kennedy vs. Germany in 1999 – where the guarantee to the due process of law and a fair trial by an independent judicial body should be offfered to the stafff of international organizations as a condition for the recognition of the immunity from jurisdiction – had previously served on the Administrative Tribunal established within the Inter-American Development Bank from 1989 to 1994. CHAPTER FOUR

ADMINISTRATIVE TRIBUNALS OF INTERNATIONAL ORGANIZATIONS FROM THE PERSPECTIVE OF THE EMERGING GLOBAL ADMINISTRATIVE LAW

Benedict Kingsbury & Richard B. Stewart*

A. Introduction

Much global regulatory governance – in fĳields as diverse as trade and investment, fĳinancial and economic regulation, environment and labor, intellectual property, international security, and human rights, as well as the internal management of international organizations – can now be understood as administration. The shift of regulatory authority and activity from domestic to global bodies has outstripped traditional domestic and international law mechanisms to ensure that regulatory decision makers are accountable and responsive to those who are afffected by their decisions. In response to these defĳicits, regulatory decision making by global bodies is increasingly being held to norms of an administrative law character, including requirements of transparency, participation, reasoned decision and decisional review, with a view to ensuring greater accountability and responsiveness. The rise of administrative law-type principles and mechanisms to chan- nel and discipline global regulatory decision making is the focus of the Global Administrative Law Project at NYU School of Law.1 The project,

* Professors at New York University School of Law; Benedict Kingsbury is also Visiting Professor at the University of Utah College of Law. The authors warmly thank Lorenzo Casini and Michelle Juan for comments, and Emma Dunlop for research assistance and very helpful drafting suggestion with regard to the work of UN internal justice bodies. This paper builds from the authors’ contribution to International Administrative Tribunals in a Changing World (Katerina Papanikolaou / Martha Hiskaki eds., London: Esperia, 2008). 1 See B. Kingsbury, N. Krisch, R.B. Stewart, “The Emergence of Global Administrative Law”, 68 Law and Contemporary Problems (2005) 15. NYU Law School Institute for International Law and Justice’s research project on global administrative law has a website, including a series of working papers and extensive bibliographies as well as links to papers from other scholars around the world, reached via www.iilj.org. Sets of papers from this project have appeared in several journal symposia, including: B. Kingsbury, N. Krisch, R.B. Stewart, J. Wiener (eds), “The Emergence of Global Administrative Law”, Law and 70 chapter four which engages academics and practitioners in North America, Europe, Latin America, Africa, Asia, and the Pacifĳic region,2 seeks to study this burgeoning fĳield of practice and theory systematically, with a view to analyzing its elements and shaping its inevitable future development so as to help realize such potential as it offfers for justice and efffectiveness in global regulatory governance. More than 200 papers mapping and analyzing these phenomena have now been written under the auspices of the project. Although the landscape is highly variegated, the overall picture these papers present is of the formation of a thickly populated global administrative space, and the development of principles and practices that may be termed Global Administrative Law. This paper highlights some implications of analyzing administrative tribunals of international organizations (including appeals boards, appeals tribunals and the like) as part of the administration of global governance and in particular as contributors to, and subjects of, the emerging global administrative law. These administrative tribunals reach their decisions by reference to such sources as: stafff employment contracts; stafff rules and regulations; internal orders, circulars, handbooks and practices of the organization; the constituent instruments of the relevant organization and of the specifĳic tribunal; and a somewhat open-ended range of other sources including, in particular, general principles of law.3

Contemporary Problems, Vol. 68:3–4 (Summer-Autumn 2005), pp. 1–385; N. Krisch, B. Kingsbury (eds), “Global Governance and Global Administrative Law in the International Legal Order”, European Journal of International Law vol. 17 (2006), pp. 1–278; L. Boisson de Chazournes, L. Casini, B. Kingsbury (eds), “Global Administrative Law in the Operations of International Organizations”, International Organizations Law Review, Vol. 6:2 (2009), pp. 315–666; H. Cisse, D. Bradlow, B. Kingsbury (eds), “International Financial Institutions and Global Legal Governance”, World Bank Legal Review, Vol. 3 (2011), pp. 1–105; and the “Global Administrative Law symposium” in NYU Journal of International Law and Politics, Vol. 37:4 (2005). See also Global Administrative Law: Cases, Materials, Issues, edited by S. Cassese et al. (second edition 2008), published by the Institute for Research on Public Administration and the Institute for International Law and Justice (http://www.iilj.org/ GAL/GALCasebook.asp). 2 Global regulatory regimes, especially in areas like trade, investment, and fĳinance, often disproportionately burden developing countries, who at the same time often lack the capacities efffectively to participate in or otherwise influence the governance of such regimes and promote greater accountability to their interests. The Global Administrative Law Project engages with academics, government offfĳicials and practitioners in developing countries and promotes research and writing on global administrative law from a developing country perspective. Jointly with leading law schools and research institutes in Asia, Africa and Latin America, it has convened conferences in Buenos Aires, New Delhi and Cape Town, Bogota, Sao Paulo, Beijing, Singapore and Abu Dhabi. Publications and reports from these initiatives created the Global Administrative Law Network and are at www.iilj .org/GAL. 3 On this range of sources see e.g. World Bank Administrative Tribunal Decision No. 1, de Merode (1981), esp. paras 18–30 (this case addressed issues on salary adjustment and tax perspective of the emerging global administrative law 71

Through their decisions on the use of these sources and their interpretations of particular principles they are producers of global administrative law materials. These materials are directly relevant to claimants and to the administration of the institutions each tribunal directly regulates; they are also relevant to other institutions and tribunals (indirectly) through the development of a corpus juris among diffferent international organizations; and they have a wider impact in helping shape and refĳine concepts of general legal importance such as due process,4 discrimination,5 reviewability of discretionary decisions,6 a duty of care toward stafff,7

reimbursement that precipitated the creation of this Administrative Tribunal, and related to well over 800 afffected employees); and Asian Development Bank Administrative Tribunal Decision No. 1, Lindsey (18 December 1992). 4 See e.g. Sokolofff, UNAT Judgment No 1246 (22 July 2005), discussed by K. Baxter, S. Flogaitis, What Process is due? The Sokolofff Casein: International Administrative Tribunals in a Changing World, 129 (K. Papanikolaou / M. Hiskaki eds., London: Esperia, 2008); Shkurtaj, UNDT/2010/156 (31 August 2010); ILOAT Judgment No. 2232 (“OPCW”, 16 July 2003), discussed in Global Administrative Law: Cases, Materials, Issues, 119 (S. Cassese et al eds., Institute for Research on Public Administration and the Institute for International Law and Justice, 2nd ed., 2008); “BB”, WBAT Decision No. 426 (9 December 2009); and “D”, WBAT Decision No. 304 (12 December 2003), discussed by R. Gorman, Due Process in Misconduct Cases, unpublished paper World Bank Administrative Tribunal Colloquium on International Administrative Tribunals and the Rule of Law (27 March 2007). 5 On sex discrimination see e.g. Mendaro, WBAT Decision No. 26 (4 September 1985), treating the prohibiton of discrimination on grounds of sex as a general principle of law; to be contrasted with Mullan, UNAT Judgment No. 162 (10 October 1972), refusing to overturn a stafff rule treating dependent husbands less favorably than dependent wives. A series of cases in the UN Dispute Tribunal rescind decisions on promotion taken under a gender- based quota system held to be inconsistent with existing UNHCR regulations: see e.g. Andrysek, UNDT/2009/038 (16 October 2009); Mebtouche, UNDT/2009/039 (16 October 2009) (an appeal by the Applicant was allowed in part, and compensation awarded to the Applicant by UNDT increased accordingly: see Mebtouche, 2010/UNAT/033 (30 March 2010) ); Ardisson, UNDT/2009/040 (16 October 2009) (upheld on appeal in Ardisson, 2010/ UNAT/052 (1 July 2010); Ippolito, UNDT/2009/041 (16 October 2009). On same-sex domestic partnerships and marriages, see Adrian, UNAT Judgment No. 1183 (30 September 2004), and ILOAT Judgment No. 2549 (“AHRC-J”, 12 July 2006) – for a critique of Tribunal lawmaking getting ahead in these cases of many member states and the political bodies of the organizations, see A. Gordillo, The Administrative Law of International Organizations: Checks and Balances in Law Making – The Case of Discrimination, European Review of Public Law 18 (2006), pp. 289–312. For a careful analysis of discrimination on other less publicly controversial grounds, see “R”, IMFAT Judgment No. 2002–1 (5 March 2002). 6 M. Gentot, Le contrôle du pouvoir discrétionnaire par les tribunaux administratifs internationaux, 23 in: Problems of International Administrative Law On the Occasion of the Twentieth Anniversary of the World Bank Administrative Tribunal (N.G. Ziadé ed., Leiden: Martinus Nijhofff, 2008); N. Valticos, A Propos du Contrôle du Pouvoir Discretionnaire par les Tribunaux Administratifs des Organisations Internationales, 31 in: Problems of International Administrative Law On the Occasion of the Twentieth Anniversary of the World Bank Administrative Tribunal (N.G. Ziadé ed., Leiden: Martinus Nijhofff, 2008). 7 Grasshofff, ILOAT Judgment No. 402 (24 April 1980); Bares, ADBAT Decision No. 5 (31 March 1995); Mwangi, UNAT Judgment No. 1125 (25 July 2003); Durand, UNAT Judgment 72 chapter four and publicness. At the same time, these tribunals are themselves exercising public power in global governance, and thus they are increasingly subject to demands that the organizational design (matters such as appointment of members, enforceability of orders, and appeals) and the operations of these tribunals (fair hearings, reasoned judgments, etc.) conform to emerging standards of global administrative law. Moreover, while the jurisdiction of these tribunals is typically limited to matters concerning the stafff of the particular organization involved, their design, jurisprudence and experience have implications for other initiatives to broaden the accountability of intergovernmental organizations, particularly to third parties these organizations may harm. The next section of this paper sets out in more detail the case for view- ing much global governance as administration, and the basic elements of the global administrative law approach. The subsequent sections briefly explore a few of the ways in which a global administrative law approach may help international organizations, and specifĳically international administrative tribunals, to meet efffectively some current challenges of legitimacy and accountability.

B. Global Regulatory Bodies and the Development of Global Administrative Law

1. Global Regulatory Bodies The consequences of worldwide economic integration, transboundary environmental spillovers, cross-border movements of populations, and other phenomena of globalization can no longer be efffectively managed by separate national regulatory and administrative measures. In response, many diffferent systems of international and transnational regulation or regulatory cooperation have been established by states, international organizations, domestic administrative offfĳicials, and multinational businesses and NGOs, producing a wide variety of global regulatory regimes. The growing density of international and transnational regulation enables us to identify a multifaceted “global administrative space” populated by several distinct types of regulatory administrative institutions and various

No. 1202 (19 August 2005). Several earlier cases are reviewed in the Durand Judgment. See also B. Stern, The Law Applied by International Administrative Tribunals, unpublished paper World Bank Administrative Tribunal Colloquium on International Administrative Tribunals and the Rule of Law (27 March 2007). perspective of the emerging global administrative law 73 types of entities that are the subject of regulation, including not only states but fĳirms, NGOs and individuals. Increasingly, the ultimate aim of global regimes is to regulate the conduct of private actors rather than states; private actors also play a major role in influencing the decisions of these regimes. The regulatory bodies subject to the new global administrative law fall into two basic categories: international or transnational public and private bodies on the one hand, and domestic administrative bodies whose decisions have signifĳicant external regulatory impacts on the other. Intergovernmental and transnational regulatory authorities can be clas- sifĳied into four basic types. The fĳirst group consists offormal intergovernmental organizations, often established by treaties, that adopt and implement regulatory standards in a variety of areas. They typically include a secretariat and a variety of other internal organs of an administrative character and, in some cases, dispute settlement authorities. Examples include UN bodies such as the Security Council and High Commissioner for Refugees, trade regimes like NAFTA and the WTO, the IMF and World Bank, environmental regimes like the Kyoto and Montreal Protocols, the OECD, which promotes regulatory harmonization and cooperation in a wide variety of sectors, and mis- cellaneous bodies such as the World Health Organization, International Atomic Energy Agency, and World Intellectual Property Organization. These regulatory standards are often implemented domestically by par- ticipating nations, although in some cases, such as refugee status determinations by the UN, international organizations may act directly against individuals. A second form of global regulatory regime consists of intergovernmental networks of national regulatory offfĳicials responsible for specifĳic areas of domestic regulation, including antitrust, banking, securities, money laundering, telecommunications, chemicals, food safety, taxation, and transportation safety. These offfĳicials may agree to common regulatory standards and practices which they then implement domestically.8 Many such networks are developing fairly complex institutional structures with signifĳicant administrative components.

8 For an introduction to global regulatory networks, see A. Slaughter, A New World Order (Princeton: Princeton University Press, 2004); and A. Slaughter / D. Zaring, “Networking Goes International: An Update”, Annual Review of Law and Social Sciences 2 (Dec. 2006), p. 211. 74 chapter four

The third group is that of hybrid intergovernmental-private bodies, composed of both public and private actors – a form that is becoming increasingly signifĳicant in contemporary governance. Examples include the Codex Alimentarius Commission, the Internet Corporation for Assigned Names and Numbers (ICANN), and the World Anti-Doping Agency. These bodies often have signifĳicant administrative components, including expert committees for developing and steering the implementation of regulatory norms. The fourth type of global regulators consists of private bodies exercising public governance functions. The International Standards Organization, for example, has adopted over 13,000 standards that harmonize product spec- ifĳications and process rules around the world. ISO has adopted elaborate administrative structures and procedures for the development of standards. Many NGOs have developed product certifĳication programs, for example in the fĳields of sustainable timber and fair-trade cofffee. Such “voluntary” standards often become commercially obligatory under the pressures of the market through the demands of consumers and contract partners.9 Domestic administrative agencies whose regulatory decisions signifĳi- cantly afffect other countries or their citizens are increasingly subject to both substantive and procedural regulatory norms adopted by global bodies such as the WTO, the Security Council 1267 Committee, the Financial Action Task Force, and international arbitral tribunals operating pursuant to bilateral investment treaties and NAFTA. Global administrative law norms are emerging to ensure the accountability of these domestic agencies to global interests in fĳields such as trade regulation, investment, antiterrorism, environmental protection, fĳinance, and product safety. Examples include administrative law requirements imposed on the US by the WTO Appellate Body in its Shrimp/Turtle decision,10 and standards set by the World Bank’s good governance indicators, which often condition design and operation of national administrative agencies. While the classifĳication of regulatory bodies as intergovernmental or transnational, on the one hand and domestic on the other is analytically

9 On private regulatory governance generally, see H. Schepel, The Constitution of Private Governance: Product Standards in the Regulation of Integrating Markets (Oxford: Hart Publishing, 2005); T. Buthe, W. Mattli, The New Global Rulers (Princeton: Princeton UP, 2011). 10 See, e.g., Appellate Body Report, United States – Defĳinitive Safeguard Measures on Imports of Certain Steel Products, WT/DS248/AB/R (Nov. 10, 2003); Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (Oct. 12, 1998), paragraph 180. perspective of the emerging global administrative law 75 convenient, global regulation typically does not operate on two distinct, vertically separated levels. Rather, regulation in global administrative space is highly fragmented. Diffferent regimes are organized along sectoral lines in specifĳic fĳields of regulation, often with more than one organization in a given sector.11 Global regulation functions through a web of interactions and influences, horizontal, vertical, and diagonal, among a diverse multiplicity of diffferent regimes, subjects, and actors. These include international organizations, transnational networks of government offfĳicials, and various private and hybrid transnational bodies, domestic agencies, and international and domestic business fĳirms, trade associations and NGOs. The various global regulatory regimes are linked by ongoing informal communication and negotiation and more established ties through inter-organization representation and participation and consultation procedures that may promote cooperation, equivalence, and harmonization. The overall result is a spontaneously evolving, untidy regulatory mass without center or hierarchy. There is no clear separation of function, activity, or in many cases of personnel between global bodies and domestic agencies. National systems of administration and law become porous; global norms flow into them, often circumventing the national legislature. Reciprocally, global regimes absorb norms of domi- nant states and influential societies.12

2. Critiques of Globalized Regulatory Administration In the traditional conception, states consent through treaties or other agreements to regulatory norms which they then implement domestically. The processes of state consent and state implementation are in turn subject to domestic mechanisms of political and legal accountability. The rise of the highly variegated, polycentric system of global regulation sketched above has completely outstripped the ability of these traditional conceptions and mechanisms to control and legitimate regulatory decisions. Even in the case of treaty-based international organizations, much norm creation and implementation is carried out by subsidiary bodies of an administrative character that operate informally with a considerable

11 For a political economy analysis of the factors that explain the fragmented character of global regulation, see E. Benvenisti / G. Downs, “The Empire’s New Clothes: Political Economy and the Fragmentation of International Law”, Stanford Law Review 60 (2007), p. 595. 12 See S. Cassese, Global Administrative Law: An Introduction 13–18, 20–26 (Feb. 22, 2005), available at http://www.iilj.org/global_adlaw/documents/Cassesepaper.pdf. 76 chapter four degree of autonomy. Other global regulatory bodies – including networks of domestic offfĳicials and private and hybrid bodies – operate wholly outside the traditional international law conception and are either not subject to domestic political and legal accountability mechanisms at all, or only to a very limited degree. The globalization of regulation has dissolved what were once fĳirm distinctions between decision making at the international and at the domestic levels. Global regulatory norms are often adopted and implemented through difffuse, low visibility processes. The resulting accountability gaps have stimulated sharp criticisms by non-governmental organizations (NGOs), politicians, and the media that global regulation has been captured by the wealthy and powerful, to the detriment of developing countries and environmental, consumer, labor, and other social interests. The “capture” of global regulatory decision- making, it is claimed, has in turn led to a weakening of domestic regulatory protections.13 The problems of legitimacy raised by this shift of power and authority to extra-state processes and norms are graphic and unresolved. So too are the problems of confĳiguring suitable democracy-respecting but func- tionally efffective relationships between national institutions (including national and sub-national administrative agencies and courts) and extra- national or private institutions of global governance.

3. The Rise of Global Administrative Law National experience shows that administrative law can both check and steer the exercise of government power. This is accomplished by protecting individuals against unauthorized or arbitrary exercises of offfĳicial power, and by promoting administrative responsiveness to broader public interests, including in the adoption and implementation of general norms as well as in decisions on particular matters. These elements form an integral part of democratic systems and, more generally, ensure a basic form of accountability of public power. Because of very signifĳicant diffferences in institutional and political conditions, domestic systems of administrative law cannot simply be transposed to the exercise of public power by global regulatory bodies. Nonetheless, accumulating experience shows

13 See, e.g., L.M. Wallach, “Accountable Governance in the Era of Globalization: The WTO, NAFTA, and International Harmonization of Standards”, 50 University of Kansas Law Review 823 (2002); and generally on capture issues see W. Mattli, N. Woods (eds), The Politics of Global Regulation (Princeton: Princeton University Press, 2009). perspective of the emerging global administrative law 77 that administrative law mechanisms for transparency, participation, reasoned decision and review, in appropriately modifĳied form, can serve to promote greater accountability and responsiveness by global regulatory bodies to the various interests impacted by their decisions. Recasting global governance as administration, to include all forms of law making other than treaties or other international agreements on the one hand and episodic dispute settlement on the other has a number of important advantages. Firstly, it allows us to develop a more rigorous conceptual schema of the various institutional structures and relations involved in the notoriously slippery notion of global governance. Secondly, it allows us to refocus the question of accountability in the more precise terms of administrative law, providing us with a set of basic tools for transparency, participation, reason-giving and review that can be adapted for use in the global setting. Thirdly, it allows us to draw on the experiences of both national administrative law and public international law, without being hamstrung by the conceptual and jurisdictional limitations of either in addressing global regulation. Administrative law mechanisms are indeed emerging in many diffferent areas of global regulatory governance in response to the defĳicits in accountability and responsiveness discussed above. They are reflected in the decisions of domestic courts in reviewing Security Council sanctions against individuals; in the Inspection Panel set up by the World Bank to ensure its own compliance with its internal policies; in notice- and-comment procedures adopted by international standard-setters such as the Basel Committee or the OECD; in the inclusion of NGOs in regulatory bodies like the Codex Alimentarius Commission; in rules about foreign participation in domestic administrative procedures as set out in the Aarhus Convention; in the review of domestic administrative procedures and decisions by international panels in the WTO context; and in the work of international administrative tribunals and other mechanisms of accountability in international organizations. The pattern that emerges from these and other, often embryonic mechanisms is not yet coherent: such mechanisms and principles operate in some areas and not in others, and diverge widely in their forms. Yet the overall picture is of widespread, and growing, commitment both to principles and practices of transparency, participation, reasoned decision and review in global governance. Procedural participation constitutes, in the domestic setting at least, one of the classical elements of administrative law; and some aspects of it are being steadily transposed to the realm of global governance. For example, the WTO Appellate Body held in the Shrimp/Turtle case that the US 78 chapter four had failed to provide any of the states whose exports of shrimp products to the US had been adversely afffected by its domestic administrative regulations with any “formal opportunity to be heard, or to respond to any arguments that may be made against it”,14 and required the US to amend its administrative procedures in order to allow for such procedural participation. Instruments as diverse as the Aarhus Convention and the WADA Code require that national administrative authorities provide such participation rights. Many intergovernmental and transnational administrative bodies have sought to enable some forms of participation in their own regulatory activity for civil society actors and afffected economic and social interests: the Basel Committee, for example, established during the development of its Basel II regulations a notice-and-comment procedure through which banks and other interested parties could participate in the formation of the standards; the International Civil Aviation Organization allows for signifĳicant participation in its own standard-setting function, for industry interests at least, through the International Air Transport Association; and the Codex Alimentarius Commission likewise provides for NGO participation in its norm generation procedures. This spread of procedural participation is far from being either uniform (in that a vast range of diffferent participatory roles and powers are involved in diffferent contexts) or complete. For example, claims that due process requires that the Security Council’s program for listing suspected terrorist fĳinanciers affford those subject to listing an opportunity directly or indirectly to be heard are unresolved. The establishment of an Ombudsperson to assess requests for delisting under Security Council Resolution 1904 represents an incremental step towards greater procedural participation for listed persons.15 Transparency and access to information are absolutely crucial to the promotion of accountability, and to the exercise of meaningful participation and review. A wide range of international organizations, from the WTO to the OECD to the World Bank have taken signifĳicant steps to make documents and records of proceedings available to the public in response to widespread criticisms of secretive decision-making practices. Many regulatory networks, including the Basel Committee, the IOSCO, and the hybrid networks dealing with certifĳication of sustainable forestry practices, have created websites that furnish considerable detail on internal

14 Shrimp/Turtle (1998), op. cit., paragraph 180. 15 See S/RES/1904 (17 December 2009). perspective of the emerging global administrative law 79 procedures and on the information on which decisions have been based. Domestic administrative authorities are increasingly subject to global regulatory requirements of transparency, such as those imposed by the Aarhus Convention concerning environmental regulation or the WTO requirements for trade regulation. Transparency is also a key element in the World Bank’s work on the indicators of good governance, which strongly influence the Bank’s decisions on the granting of development aid.16 The requirement to provide reasoned decisions for administrative action, including responses to arguments raised by the interested parties, is another that has seen considerable – and growing – expansion from domestic administrative law to the global setting. As with transparency, it is often a crucial factor in rendering meaningful any accountability mechanisms. Again, the Aarhus Convention provides one good example of this, with numerous diffferent articles mandating that all administrative decisions in a number of diffferent contexts must be accompanied by a written statement of reasons. The Shrimp/Turtle decision and subsequent case law has also established this as a central principle of the WTO regime as applied to domestic administrative authorities. Providing reasons for the adoption of regulatory standards is a common practice in many global regulatory bodies, including the Codex Alimentarius, Basel II, and numerous others. In many cases states and other entities are not obliged to adopt or implement such standards; in these circumstances, giving reasons may be critical to ensuring acceptance and use of the standards. A diffferent example is the UNHCR’s requirements for refugee status determinations, which provide that all applicants should receive a written decision with a statement of reasons for the disposition. The right to review of administrative decisions is a bedrock of domestic administrative law. Its development in global regulatory governance has been very patchy which is unsurprising, given the paucity until recent years of tribunals with regularized review jurisdiction within the international legal order. Administrative tribunals for stafff of international organizations have long been a special case, but specialized reviewing bodies

16 The creation, use and regulation of indicators is the subject of increasing scholarly attention. See K.E. Davis, B. Kingsbury, S.E. Merry, Indicators as a Technology of Global Governance, Law and Society Review 46 (2012), pp. 71–104; K.E. Davis, A. Fisher, B. Kingsbury, S.E. Merry (eds), Governing by Indicators (Oxford: Oxford University Press, 2012); D. Kaufmann, A. Kraay, M. Mastruzzi, “Governance Matters VIII: Aggregate and Individual Governance Indicators, 1996–2008”, World Bank Policy Research Paper No. 4978. 80 chapter four are becoming increasingly common in other areas. These include examples as diverse as the World Bank Inspection Panel and the Court of Arbitration for Sport. Global regulatory norms and decisions may also be subject to various forms of review by standing international courts and tribunals with more general jurisdiction, and by domestic courts. Review may take place in a diffferent form when one global body, such as the WTO Appellate Body, decides whether and how much legal signifĳicance to accord to a standard or decision of another body, such as an ISO product standard. The right to review is also part of global administrative law norms and principles imposed on national administrative authorities. The Aarhus Convention contains in its Article 9 a very robust “access to justice” provision; the TRIPs agreement requires domestic authorities dealing with intellectual property infringement claims to provide such a right; and bilateral investment treaties contain arbitration clauses, through which the decisions of national agencies can be subjected to third-party review at a supranational level. These procedural elements are the most important elements of the developing global administrative law, although there are preliminary signs that certain common substantive principles, such as proportionality, fair and equitable treatment, and legitimate expectations, are emerging in the decisions of reviewing bodies. Leading intergovernmental and transnational bodies have adopted global administrative law mechanisms in order to further a variety of institutional objectives. They may take such steps in order to respond to external criticisms and pressures, including from NGOs, business fĳirms, the media, and domestic legislatures and governments. Criticisms may also be made internally. External and internal critics challenge these bodies’ decisional processes as closed and unresponsive, and their substantive policies as disregarding environmental, social, and other afffected interests. By adopting the procedural mechanisms of administrative law, these bodies respond directly to process-based criticisms. By afffording afffected interests greater opportunities for engagement and influence, they may also deflect or meliorate criticisms of substantive policies. In some cases, most notably in the case of the WADA, adverse decisions by domestic courts or threat thereof may impel reform. Global bodies such as ISO, Basel II, the Convention on International Trade in Endangered Species, or the International Civil Aviation Organization may also embrace greater transparency, participation, and reasoned decision making in an efffort to improve the quality of the norms and decisions adopted and enhance their acceptance by relevant constituencies. Another objective may be perspective of the emerging global administrative law 81 to improve internal accountability. Transparency, participation and reasoned decision making are likely to enhance the ability of a global institution’s management or its principals (states, domestic offfĳicials, businesses or NGOs) to monitor the decisions of the regime’s stafff, expert committees, and other administrative components. Review mechanisms may also serve this goal. Thus, the World Bank’s Inspection Panel is a means of monitoring stafff compliance with environmental and social guidelines (themselves adopted in response to pressures from NGOs and the US Congress), as well as being a mechanism of accountability enabling residents of developing countries and NGOs to challenge Bank-funded projects as violative of the Bank’s own guidelines. Domestic administrative bodies may be obliged to adopt global administrative law requirements of transparency, participation, reasoned decision and review by virtue of treaties such as the Aarhus Convention, the WTO Agreements, and bilateral investment treaties. Often these requirements are developed or elaborated by global tribunals such as the WTO Appellate Body or investment treaty arbitral panels, often influenced by other international norm-enunciating bodies such as international human rights courts and international administrative tribunals, which have evolved increasingly elaborate and demanding standards of regulatory due process. In other cases, the incentives for domestic authorities to follow such norms stem from conditions on fĳinancial assistance, based for example on USAID or World Bank “good governance” standards, or through reputational or sociological influences which lead governments to strive for more favorable ratings on the World Bank’s “doing business” indicators and other widely recognized measures of economic or social performance. It cannot be supposed that the development of global administrative law, which will inevitably reflect the tug and pull of diffferent conflicting interests and values, will be a smooth or harmonious process. Developing countries and global NGOs, for example, may oppose the development of administrative law disciplines to safeguard economic interests but support their adoption in other contexts, such as development assistance conditionality. The need for confĳidentiality, informality, and flexibility in many aspects of global decision making will be a serious challenge to the extension of administrative law disciplines. Because administrative law as traditionally understood, at least in the developed countries, depends on a relatively high degree of institutional diffferentiation and legalization, a critical question is the extent to which international regulatory institutions will develop in the direction of greater complexity and legalization. 82 chapter four

There is also a question of which of the various approaches reflected in domestic administrative law may be best adapted for global bodies, including for example the US interest representation model of administrative law or emerging European practices of consensus-based deliberation. Approaches to administrative law drawn from other countries and regions deserve much more attention than they have thus far received.

4. Conceptual and Normative Issues in Global Administrative Law with Particular Signifĳicance for International Administrative Tribunals Questions of legitimacy and of accountability are among the most press- ing in the present and future conditions of global regulatory governance. Global administrative law concepts, mechanisms, principles and rules can be of considerable signifĳicance in framing, vindicating and cabining concepts of legitimacy and accountability. Many of the central issues in the practice of global administrative law, and in the academic and conceptual analysis currently being undertaken in the Global Administrative Law Project, bear directly or indirectly on legitimacy and accountability in global governance. Future work could very productively consider the design and operation of international administrative tribunals by reference to these issues. Some of the key conceptual and normative issues in this respect are the following.

4.1. Conceptual Issues Accountability has become a rhetorical slogan in the globalization debates. Too often, demands are made for greater accountability without serious analysis of precisely what it consists in, how it can be achieved, and what its goals are.17 Global Administrative Law Project scholars are conducting a more precise analysis of accountability and its relation to the global

17 Jonathan Koppel, for example, observes that disagreement about the meaning of accountability is “masked by consensus on its importance and desirability”. Nevertheless, analysis of the concept of accountability within public administration is important because “conflicting expectations borne of disparate conceptions of accountability undermine organizational efffectiveness”. J. Koppel, “Pathologies of Accountability: ICANN and the Challenge of ‘Multiple Accountability Disorder’ ”, 65 Public Administration Review (2005). On the complexity of the concept generally, see also R. Mulgan, “ ‘Accountability’: An Ever-Expanding Concept?”, 78 Public Administration (2000) 555; J. Mashaw, “Structuring a ‘Dense Complexity’: Accountability and the Project of Administrative Law”, Issues in Legal Scholarship, The Reformation of American Administrative Law (2005): Article 4; and R.W. Grant, R.O. Keohane, “Accountability and Abuses of Power in World Politics”, IILJ Working Paper 2004/7 (Global Administrative Law Series). perspective of the emerging global administrative law 83 administrative law mechanisms of transparency, participation, reasoned decision, and review, all of which also require careful analysis. This work shows that “accountability” does not exist in the abstract and should not be viewed as an end in itself. Yet agreement is seldom attained on what underlying goods and policy objectives accountability structures should efffectively advance. Nor has enough work been done on how to assess and contain the distortions and costs that the establishment and operation of accountability mechanisms can easily entail – what might be termed the pathologies of accountability.18 The starting question for practical analysis is who is accountable to whom, and through what types of mechanisms, including those of administrative law. The conclusion is that real accountability mechanisms are far more limited than the rhetoric would suggest. They consist of legal, electoral, fĳiscal, supervisory, and hierarchical accountability mechanisms. Accountability mechanisms are one among three basic types of global governance tools that can be used to redress the disregard by global regulatory bodies of afffected but marginalized social and economic interests. The others are decision rules (the rules and practices that govern decision making by global authorities), and a residual category of other measures to promote responsiveness to disregarded interests (these measures include transparency, reason giving, and non- decisional participation). The analysis provides a more precise institutional grammar for examining the role and potential contributions of administrative law in achieving more accountable and just global regulatory decision making. “Administration” is another critical concept for global administrative law that requires clarifĳication and analysis of its implications for governance arrangements. International law has long recognized a cate gory known as “international administration”, but this term covers only a limited range of activities carried out mainly by formal intergovern mental organizations. The premise of global administrative law is that a much wider range of activities, carried out by many diverse types of global bodies, should be regarded as administrative in character and therefore appropriate for administrative law disciplines. In the domestic context, the question of what constitutes “administrative” action is for the most part not controversial, even if administration is only defĳined negatively, as public power that is neither legislative nor judicial in character.

18 For a detailed conceptual analysis of accountability, see R.B. Stewart, Accountability, Participation, and the Problem of Disregard in Contemporary Global Governance (forthcoming). 84 chapter four

Conceptually, a similar – if much less developed – functional diffferentiation can be observed at the global level: administration here difffers from legislation in the form of international agreements, and from adjudication in the form of episodic dispute settlement between states or other consenting parties. But the precise contours of what constitutes administration in the global context remain unclear. Does it include any, or all, decisions of the Conference of the Parties to a treaty? Of expert committees? Of courts or tribunals that have regulatory functions, a category that arguably includes certain WTO Panels and NAFTA treaty tribunals reviewing domestic regulatory decisions? The answers to these questions have important implications for the scope and content of global administrative law. “Publicness”. Even if the boundaries of “administration” in the global context are clarifĳied, there is also a need to determine the limits of what constitutes “public” power so as to warrant the application of administrative law mechanisms, including the requirement that decisions be justi- fĳied by public reason.19 This is particularly important in the context of hybrid public-private and purely private governance structures: at what point do these become essentially public in nature, rendering the application of administrative law both desirable and appropriate? In some cases, the answer appears clear enough: the rules generated by the International Olympic Committee (private) or WADA (hybrid) have such important regulatory efffects, and are presented in such standard legal form, as to render their inclusion within the broadly public realm largely uncontroversial. What, however, of NGO-led certifĳication programs or eco-labeling initiatives, such as the forest management certifĳication and wood product labeling system of the Forest Stewardship Council? These can represent a profoundly important barrier to trade in certain contexts – should they thus be brought under the general oversight of WTO bodies, and should they be subject to requirements of participation, transparency, reasoned decision and review? Legal Theory. A further fundamental issue is the legal theory underpinning global administrative law, and in particular how to separate out, from

19 A.von Bogdandy et al (eds.), The Exercise of Public Authority by International Institutions (Springer, 2010); B. Kingsbury, “International Law as Inter-Public Law”, in H. Richardson, M. Williams (eds.), Moral Universalism and Pluralism: NOMOS XLIX (New York University Press, 2009); B. Kingsbury, The Concept of “Law” in Global Administrative Law, 20 EJIL (2009), 23; B. Kingsbury, M. Donaldson, “From Bilateralism to Publicness in International Law”, in U. Fastenrath et al (eds.), Essays in Honour of Bruno Simma 79 (Oxford University Press, 2011). perspective of the emerging global administrative law 85 among the myriad of rules, norms, standards and practices that constitute global regulatory governance, those that can be viewed as being legal (and binding) as opposed to prudential in character. International law has long challenged classical positivist understandings of law, in particular through its use of the notion of “soft law”, under which norms or guidelines, initially non-binding, can “harden” over time into genuine legal obligations, either through incorporation into national regulations, through application by external judicial bodies, or simply through their development into custom having generated legitimate expectations through long and unchallenged practice. The Global Administrative Law Project posits that the fĳield of study of global administrative law encompasses “the mechanisms, principles, practices, and supporting social understandings” that promote accountability, transparency, participation and review. Whether all of these norms and understandings can be properly characterized as “law”, and the implications of a conclusion one way or another, remain to be resolved. And, to the extent that they are “law”, what are their sources? Positive Political Theory. What are the factors that lead to (or hinder) the development of particular administrative law mechanisms in specifĳic areas of global regulation, and under what conditions are such mechanisms likely or unlikely to be successful? For example, are forms of review most likely to emerge and to be successful in situations where power is delegated by a principal to an agent? Will global administrative law be more likely to emerge as a response to the accretion of rules and adjudicative systems at the global level that efffectively bind those who have not consented to particular norms or decisions (just as national administrative law has emerged in response to the expansion of the regulatory state), and less likely to emerge where global institutions adhere to traditional international law techniques of treaty-making and of adjudication only between states with state consent? Who anticipates benefĳiting from such mechanisms and so has incentives to promote them? Who are the losers? Will implementation of a predominantly formal set of measures ostensibly guaranteeing things like accountability, transparency, participation and access to information succeed in empowering marginalized and often disregarded interests to bring about a more responsive and just system of global regulation? Can the successful elements of experience with Public Interest Law in the US and elsewhere be replicated on the global scale? Or will global administrative law mechanisms instead favor corporate or other well-organized groups that have the resources to participate efffectively in specialized and complicated administrative proceedings all over the globe? Applied to the creation and structuring of international 86 chapter four administrative tribunals, positive political theory calls for analysis of the interests served by diffferent degrees and forms of independence of the tribunals from the political bodies of the institution, from the major member states, and from the secretariat. Thus the members may be chosen quite independently, but be constrained by tight rules set by the political bodies, or vice versa. Members eligible for reelection or for future employment with the institution might (or might not) perform diffferently than if these possibilities were precluded. Tribunals might have considerable independence, but little power to compel the secretariat or member states to provide remedies or make reforms.20 Tribunals might have wide jurisdiction, but be inundated by complaints on relatively small issues because in the pre-tribunal phases stafff and managers do not have enough incentives or capacity to settle cases earlier.

4.2. Normative Foundations As a fĳirst approximation, three basic normative conceptions of the role of global administrative law can be discerned:21 internal administrative

20 The UN Administrative Tribunal hesitated to assert an implied power to make an order for enforcement of its own earlier award (for payment of compensatory salary to a wronged employee) when the UN for a considerable period failed to comply with the award, whereas the ILO Administrative Tribunal has asserted such a power. See Mbarushimana, UNAT Decision 1283 (28 July 2006). (The UN’s non-payment was related to the Rwandan government’s continuing efffort to prosecute the applicant, a Rwandan national and erstwhile UNMIK employee in Kosovo, for genocide and crimes against humanity allegedly committed in Rwanda.) The UN Appeals Tribunal, which replaced the UN Administrative Tribunal under the 2008 UN Redesign reforms, appears to have jurisdiction to issue enforcement orders for its own awards. Article 10(8) of the UN Dispute Tribunal Statute and and Article 9(5) of the UN Appeals Tribunal Statute also empower the Tribunals to refer cases to the Secretary-General or the executive heads of separately administered UN funds and programs to enforce accountability. 21 A full treatment of normative issues would require a much more extensive discussion of more complex and nuanced positions, many of which do not fĳit very closely into these three simple archetypes. It also calls for debate on the relations between Global Administrative Law and regulatory efffĳicacy, social welfare, democracy, and justice. Should Global Administrative Law embody commitments to promote overall social welfare, encouraging rejection or rethinking or justifĳication on other grounds of policies that reduce social welfare, and promoting policies that increase social welfare? Should it be driven by equity concerns and seek to assure just treatment of marginalized and disregarded economic and social interests? Or should its ambitions be more modest – to promote orderly administration and accountability to those who establish and support or are directly regulated by global regimes? Is Global Administrative Law ultimately dependent on a democratic framework, or can it operate (with perhaps more limited functions) outside democratic contexts? Will the spread of global administrative law, particularly its aspi- rations to accountability and participation, itself help promote democracy around the perspective of the emerging global administrative law 87 accountability, protection of private rights or the rights of states, and promotion of democracy.22 The fĳirst normative conception, internal administrative accountability, focuses on securing the accountability of the subordinate or peripheral components of an administrative regime to the legitimating center (whether legislative or executive), especially through ensuring the legality of administrative action. This conception empha- sizes organizational and political functions and regime integrity rather than any specifĳic substantive normativity, making it a potential model for an international order, particularly a pluralist one that lacks a strong consensus on substantive norms. The second normative conception is liberal and rights-oriented: administrative law protects the rights of individuals and other civil society actors, mainly through their participation in administrative procedures and through the availability of review to ensure the legality of a decision. This may also be extended to the protection of the rights of states; this idea may be especially valuable for many developing countries and other weak states that lack political and economic bargaining power and influence. This conception may also overlap with the notion that global administrative law can promote the rule of law by ensuring the public character of regulatory norms, their reasoned elaboration, and their impartial and predictable application. These two normative conceptions inform quests for legitimacy and accountability in the work of international institutions, and have a direct bearing on the design and functioning of international administrative tribunals and other international tribunals designed to enhance accountability of international organizations. A third conception views the role of global administrative law as promoting democracy. National administrative law in many countries has a democratic component: it ensures the accountability of administrators to parliament by ensuring their compliance with statutes and to broader economic and social constituencies through public participation in administrative decision making procedures. But at the global level, a system of electorally based representative democracy is far beyond reach. Nor does a consociational conception of democracy at the global level

world? Considering the great diversity of global regulatory regimes and their goals, universal answers to these questions are improbable, but they point to an important agenda of specifĳic research questions. 22 On similar normative conceptions behind domestic administrative law, see E. Schmidt-Assmann, Das Allgemeine Verwaltungsrecht als Ordnungsidee (Berlin, Heidelburg: Springer, 2nd ed., 2004). 88 chapter four based on civil society entities seem viable. Nonetheless, the development of a global administrative law could work to strengthen representative democracy at the national level by making global regulatory decisions and institutions more visible and subject to efffective scrutiny and review within domestic political systems, and thereby promote the accountability of global regulatory decision makers through those systems. Systems of global administrative law might also support the development of deliberative democracy at the level of global regulatory regimes, although the elements of such a conception as well as the conditions of its efffective realization have yet to be resolved.23 These objectives are usually too remote from the work of international administrative tribunals to play any direct role in their design or functioning, although in special cases particular democratic goals may become relevant. With these conceptions in mind, the next two sections turn briefly to discuss legitimacy and accountability, with specifĳic reference to the roles and work of international administrative tribunals.

C. Legitimacy Considerations in the Design and Operation of International Administrative Tribunals

Several of the most prominent of the international administrative tribunals are of venerable age. Following from the work of the League of Nations Administrative Tribunal and associated structures which began in the 1920s, the ILO Administrative Tribunal (established in 1946) and the UN Admin- istrative Tribunal (1949, but transformed into the UN Appeals Tri bunal from 2009), each of which also exercises jurisdiction in respect of various other consenting international organizations,24 have acted as a template for tribunals adopted by many institutions. This model was at the leading edge of, and in some respects pre-dates, both the global transformations in national judicial or tribunal review of offfĳicial action, and the increasing consciousness of individual rights as a constraint on administration.25

23 See R. Howse, “Transatlantic Regulatory Cooperation and the Problem of Democracy”, in G.A. Bermann, M. Herdegen, P.L. Lindseth (eds): Transatlantic Regulatory Cooperation: Legal Problems and Political Prospects, 469 (2000). 24 For a list see http://www.unjiu.org/data/reports/2004/en2004_3a.pdf. Well over 40 organizations use the ILOAT. 25 The well-established form of these earlier tribunals has been replicated, with varia- tions, in many other institutions, including the World Bank (1980) and the IMF (1994). perspective of the emerging global administrative law 89

However changes in the practice and politics of global governance mean that issues going to legitimacy now arise that were barely considered in earlier periods. The 2006 Redesign Report that heralded a recasting of the UN Administrative Tribunal model was highly critical of the pre-existing system, holding it to be “neither professional nor independent” and stating that it failed “to meet many basic standards of due process established in international human rights instruments”.26 Greater attention to due process requirements in administrative tribunal models will continue in the future. As the Executive Secretary of the World Bank Administrative Tribunal noted in 2007: “times are changing quickly. Practices that were considered unobjectionable twenty years ago would be highly problematic today and could give national courts grounds to pierce a tribunal’s veil of independence. Public scrutiny has greatly increased, and the demands for transparency have become ever more stringent… International administrative tribunals were created in the fĳirst half of the last century, and proliferated in its second half. International administrative law was developed through the genius of leading members of the international legal community. The fĳield can no longer, however, rest solely on the reputation of its founders and successors”.27 Some current legitimacy issues relating to the design and the operation of international administrative tribunals may be briefly noted.

1. Legitimacy in the Design of International Administrative Tribunals Concerns about the adequacy, and indeed the legitimacy, of stafff grievance processes have driven the creation of administrative tribunal structures in very many international organizations, and increasingly these considerations are prompting re-design of the role and composition of existing tribunals.28 Some of these issues of legitimacy are similar to those facing many tribunals exercising power in global governance. The issues of legitimacy facing international administrative tribunals may be

26 See Report of the Redesign Panel on the United Nations system of administration of justice, A/61/205 (28 July 2006), paragraph 5. 27 N. Ziadé, “The Independence of International Administrative Tribunals”, unpublished paper presented at the World Bank Administrative Tribunal Conference March 27, 2007, p. 17. 28 For an overview of concerns leading to the establishment of the new UN internal justice system, see P. Hwang, “Reform of the Administration of Justice system at the United Nations”, 8 The Law and Practice of International Courts and Tribunals (2009) 181. 90 chapter four compared, for example, with those confronting investor-state arbitration tribunals under bilateral and multilateral investment treaties.29 These two sets of tribunals are also comparable in that both are developing a jurisprudence on substantive and procedural issues of global administrative law.30 The background threat of review in national courts drives pressure in international organizations for fair, efffective and independent mechanisms for addressing employment grievances, lest the immunity from suit of the organization in question be lifted by national courts.31 In cases brought by stafff members against international organizations on matters connected to employment, the Brussels Court of Appeal denied immunity to the General Secretariat of the African, Caribbean and Pacifĳic Group of States (4 March 2003), and the Labor Court of Brussels denied immunity to the West European Union (17 Sept 2003), in both cases because the international organization lacked adequate internal mechanisms to address the complaint. The Labor Court evaluated the West European Union’s Appeals Board process under such criteria as: its impartiality and independence from the parties (the members were appointed by an intergovernmental process for two year renewable terms, and hence were not sufffĳiciently independent); judicial and adversarial character of its proceedings; its ability to render binding and reasoned judgments; right of parties to appear; and the public character of the proceedings and hearings, including the publication of the eventual decision (the WEU Appeals Board did not meet these requirements as its hearings were closed and the decisions were not published).32

29 On legitimacy in investment arbitration, see B. Kingsbury and S. Schill, “Investor- State Arbitration as Governance: Fair and Equitable Treatment, Proportionality and the Emerging Global Administrative Law” IILJ Working Paper No. 2009/6. 30 IMF Administrative Tribunal President Stephen Schwebel, World Bank Administrative Tribunal President Jan Paulsson, WBAT member Francisco Orrego Vicuna, and UNAT member Brigitte Stern are among several leading fĳigures in investor-state arbitration who also played or play important roles in international administrative tribunals. 31 In relation to investor-state arbitral awards, national courts have not (so far) threatened to lift the immunity of foreign states, let alone lift the immunity of administering international organizations such as ICSID, on grounds of inadequate arbitral process. However, varying standards of national judicial review of arbitral awards in the place of arbitration or enforcement, and the threat of more aggressive review where the legitimacy of the arbitral tribunal or its process is in question, are increasingly part of the strategic thinking of key actors. 32 The Brussels Labor Court in a later case evaluated NATO’s Appeal Board by reference to similar criteria and concluded its immunity was justifĳied; holding hearings in private was excusable given the nature of NATO’s work. On these cases see N. Ziadé, perspective of the emerging global administrative law 91

Strong pressures now exist to incorporate a layer of appeal or at least robust review against fĳirst-instance determinations of employee rights. These pressures reflect the need to provide a workable realization of (or surrogate for) a general human right to a judicial-type process, including appellate review, for certain kinds of claims.33 Pressures also exist to reform appointments processes to these tribunals, so that robust qualifĳications are required, outside experts are involved at least in preparing a list of possible candidates, members are not recent or current employees, and members are not constrained by considerations concerning their possible reappointment or future employment. The tribunal registrars and their stafffs may also benefĳit from some comparable protection and guarantees of independence. Tribunal autonomy in fĳinancing and in management of cases and processes is also increasingly required. Reforms to the UN internal justice system exemplify many of these tendencies. The revised system is emerging as a robust institution that

“The Independence of International Administrative Tribunals”, unpublished paper presented at the World Bank Administrative Tribunal Conference March 27, 2007; A. Reinisch, “Administrative Tribunals and Questions of Jurisdiction and Immunity”, in: K. Papanikolaou, M. Hiskaki (eds.) International Administrative Tribunals in a Changing World (London: Esperia, 2008); and G. Novak and A. Reinisch, “Desirable Standards for the Design of Administrative Tribunals from the Perspective of Domestic Courts” in Chapter 12 below. On comparable cases in Brazil see W. Berenson, Squaring the Concept of Immunity with the Fundamental Right to a Fair Trial: The Case of the OAS, 3 World Bank Legal Review (2011). In Brzak v. United Nations (SDNY, 29 Apr. 2008), the US District Court upheld the immunity of the United Nations and former very senior offfĳicials in a workplace sexual harassment claim by a stafff member, without inquiring into the availability of adequate UN internal remedies. This decision was afffĳirmed on appeal (US 2nd Cir., 2 March 2010) and certiorari to the Supreme Court denied (Order List 562 U.S 09-1481, 4 October 2010). The Appeals Court held that the Convention on Privileges and Immunities of the United Nations (13 February 1946, 21 U.S.T 1418) granted absolute immunity to the UN unless “expressly waived” by the organization, and that former employees enjoyed functional immunity. Purported inadequacies in the United Nations’ internal dispute mechanism could not dis- place the efffect of the word “expressly” in the Convention. The Court noted however that Brzak could fĳile a claim under the state law tort of battery in state courts for conduct that fell outside the scope of the defendant’s immunity. Generally on this issue, see E. Gaillard, I. Pingel-Lenuzza, “International Organizations and Immunity from Jurisdiction: To Restrict or to Bypass”, 51 International and Comparative Law Quarterly (2002) 1; R. Martha, International Financial Institutions and Claims of Private Parties: Immunity Obliges, 3 World Bank Legal Review (2011). 33 See e.g. K. Wellens, “Fragmentation of International Law and Establishing an Accountability Regime for International Organizations: The Role of the Judiciary in Closing the Gap”, 25 Michigan Journal of International Law (2004) 1, at pp. 6–7. The investor-state tribunal system is subject now to some pressure also to build in an international juridical appeals mechanism from Tribunal awards. 92 chapter four embodies attributes of transparency and due process sought through global administrative law. Its structure and resources seek to answer criticism of the prior system as “extremely slow, underresourced, inefffĳi- cient, and thus, ultimately inefffective”.34 Effforts to imbue fairness into determinations are evidenced by the UN’s movement away from peer review bodies competent only to make non-binding recommendations, to a two-tiered judicial system stafffed by judges. The evolution of the Administrative Tribunal into the UN Appeals Tribunal reflects the incorporation of a workable appeals organ, to hear appeals from a UN Dispute Tribunal (which replaces the cumbersome structures of the Joint Appeals Board and the Joint Disciplinary Committees). In its fĳirst six months of operation, the Tribunal passed down 97 decisions that included a substantial backlog from the unwieldy Joint Appeals Board. In order to enhance access to justice for stafff working in-country, the UN Dispute Tribunal has seats in New York, Geneva and Nairobi and may also hold sessions at other duty stations.35 The current judicial nomination process seeks to instill independence, accountability and professionalism into the appointments process. Under the reforms, responsibility for nominating 2–3 candidates for each judicial vacancy to the General Assembly lies with the Internal Justice Council (‘IJC’).36 The IJC is composed of fĳive members: one UN stafff representative, one management representative, two external jurists nominated by stafff and management respectively, and a third external jurist chosen by a consensus of other members to be Chairperson. The IJC held its fĳirst meeting in May 2008, chaired by the then Justice Kate O’Regan of the Constitutional Court of South Africa. A full public process was adopted to identify suitable judicial candidates, with vacancy advertisements placed in The Economist, The International Herald Tribune, Le Monde, Jeune Afrique, and the Asia edition of The Wall Street Journal.37 Notices were also sent to international criminal tribunals, judges associations, and all UN information centers and resident coordinators.38 237 applications were received, and 41 short-listed candidates interviewed for the 12 judicial positions.39

34 Report of the Redesign Panel on the United Nations system of administration of justice, A/61/205 (28 July 2006), paragraph 5. 35 Rules of Procedure of the United Nations Dispute Tribunal, Article 4. 36 A/RES/62/228 (6 February 2008), paragraph 37(b). 37 Report of the Internal Justice Council, A/63/489 (16 October 2008), paragraph 6. 38 Ibid. 39 Id at paragraph 7. perspective of the emerging global administrative law 93

Curricula vitae of the eventual nominees were published as annexes to the 2008 Report of the Internal Justice Council in an efffort to increase transparency in the selection process. The General Assembly is bound to elect judges from amongst the nominations forwarded by the IJC by secret ballot in accordance with Rule 92 of the General Assembly Rules of Procedure. Strict qualifĳications for judicial appointments have also been mandated. A candidate must possess at least 10 years of judicial experience in administrative law to sit on the Dispute Tribunal and 15 years of experience to be eligible for the Appeals Tribunal.40 Each judge is elected for one non-renewable term of seven years and may only be removed by the General Assembly for misconduct or incapacity.41 To remove any perception of bias based on considerations of future employment, both the UN Dispute Tribunal and Appeals Tribunal Statutes render judges ineligible for any UN appointment other than a judicial post for fĳive years after the expiration of their term of offfĳice.42 A cost-sharing agreement has been implemented to ensure adequate resources for the current system, with resources drawn from various budgets including the United Nations, peacekeeping operations, the United Nations Children’s Fund, the ICTY and the ICTR.43 The importation of these accountability measures suggests that a perception of independence and impartiality in the UN internal justice system is premised on the election of independent professionals with unimpeachable records, chosen in turn by a regularly elected cross-section of the UN community and respected jurists. These reforms certainly progress the aims of global administrative law in that they raise standards of transparency and accountability. The judicialization of the internal justice system also sharpens critical questions regarding relevant case

40 Statute of the United Nations Dispute Tribunal, Article 4(3)(b); Statute of the United Nations Appeals Tribunal, Article 3(3)(b). 41 Statute of the United Nations Dispute Tribunal, Article 4(4), 4(10); Statute of the United Nations Appeals Tribunal, Article 3(4), 3(10). 42 Statute of the United Nations Dispute Tribunal, Article 4(6); Statute of the United Nations Appeals Tribunal, Article 3(6). Amendments to the Statute of the Administative Tribunal of the IMF in 2009 also demonstrate a move to deepen legitimacy and bolster due process mechanisms. The amendments extend the term of all members of the IMF Administrative Tribunal to four years, and introduce term limits to ensure that no member holds their position for longer than 12 years. Under Article VIII, members of the Tribunal may not have any prior or present employment relationship with the IMF, and are ineligible for employment with the IMF after the expiry of their term on the Tribunal. 43 Administration of Justice, Report of the Secretary General, A/62/294 (23 August 2007), [159]–[161]. 94 chapter four law, implied powers, and the practical authority affforded to judges beyond the strictures of domestic judicial systems.

2. Legitimacy in the Operation of Tribunals: Precedent, Cross-Citation, and Reason-Giving In a phrase that is much quoted, perhaps because it now carries both sincere and gently ironic undertones, C.F. Amerasinghe remarked in 1988 that it has been in large measure “left to the initiative and innovative genius of the tribunals themselves to determine from what formal sources they will derive the rules they intend to apply”.44 These tribunals frequently refer to their own precedents, and also to precedents from other administrative tribunals. It is not uncommon for judges to cite national decisions, including precedent from the UK Supreme Court, the European Court of Human Rights and the High Court of Australia.45 If judges have sustained long careers in a particular domestic jurisdiction, there can be a tendency to draw on familiar cases and concepts as an aid to analysis. Although perhaps an inevitable by-product of the move to electing professional judges to administrative tribunals, such practices may raise concerns of consistency. One UN Dispute Tribunal judgment favored referring to principles of “most national jurisdictions” to determine if an interim measure should be ordered, raising questions of which jurisdictions fall within the purview the decision-maker’s knowledge.46 The tribunals in varying ways place emphasis both on consistency and development of a corpus juris, and on freedom of tribunals to depart from prior decisions. Departure from their own earlier decisions is attributed to evolutionary interpretation, and the justifĳication most usually given for departure from decisions of other tribunals is that scope must be allowed for each to exercise its own judgment in context. The history and composition of the various tribunals, and the approaches taken by individual members drawing on their own past experiences and their perceptions of the particular organization and its needs, can potentially have a signifĳicant impact upon the

44 C.F. Amerasinghe, The Law of the International Civil Service, vol. 1 (Oxford: Oxford University Press, 1st ed.,1988) p. 109. 45 Cases in the new UN Justice System to date have drawn on such sources: See e.g. Abboud, UNDT/2009/015 (31 August 2009) (citing decisions of then House of Lords and the High Court of Australia); Morsy, UNDT/2009/036 (16 October 2009) (citing inter alia decisions of the Privy Council and South African jurisprudence). 46 Kasmani, UNDT/2009/017 (11 September 2009), paragraph 9.2.1. perspective of the emerging global administrative law 95 jurisprudence each produces.47 Investor-state tribunals deliberate about many of the same issues concerning precedent and cross-citation, and parallels may also be drawn with other specialized international bodies seeking to develop a body of substantive and procedural law in contexts where there is appreciable decisional freedom and a lot of scope for individual initiative of tribunal members. Special signifĳicance attaches to reason giving as a factor in the legitimacy of international tribunals. Courts and tribunals in democratic States are expected to give convincing legal reasons partly because courts are not themselves democratically accountable. Reason-giving by an international tribunal helps justify its decisions by reference to pre-specifĳied law, and perhaps also to wider equitable considerations. Reason-giving is also important for the international institution as a potential repeat defendant, and for non-litigants more generally, as it is the part of the decision which may guide future conduct and shapes the normative expectations of a wider audience as tribunals increasingly follow precedent, even though there is no de iure concept of stare decisis in international law in general or in international administrative law. It is this prospective efffect or shaping impact that requires that such tribunals see themselves as regulators of future conduct and normative expectations, not simply as adjusters of past situations.

3. Legitimacy in the Reception of International Administrative Tribunals The operational legitimacy of an administrative tribunal is also afffected by its reception in the ranks of senior management. Judgments in the WBAT and the UN internal justice system reflect a determination to instill an attitude of deference towards administrative tribunals and ensure compliance with interim orders. In BI v International Bank for Reconstruction and Development,48 the World Bank Administrative Tribunal awarded the Applicant US$ 45,000 on the basis that her manager failed to explain why he provided her with a negative performance evaluation, despite being

47 See, for example, P.C. Hansen, “The World Bank Administrative Tribunal’s External Sources of Law: A Retrospective of the Tribunal’s First Quarter-Century (1981–2005)”, 6 The Law and Practice of International Courts and Tribunals (2007) 1, at pp. 2–3, suggesting that the external sources of law used by the World Bank Administrative Tribunal mirror the sources doctrine of public international law more generally, in part driven by former ICJ judges serving on the Tribunal. 48 “BI”, WBAT Decision No. 439 (29 October 2010). 96 chapter four called on to do so by the Tribunal. As a result of the failure to comply, the Tribunal held that the Bank could not show that feedback on the Applicant’s performance was considered in a fair and balanced manner. The Tribunal noted: “Mr. B’s failure to provide an explanation, and the Bank’s apparent inability to bring Mr. B. to comply with the Tribunal’s order, amount to a failure to respect the Tribunal’s role or, at best, a lack of understanding of the function of this Tribunal. This generates considerable concern on the part of the Tribunal, as it indirectly afffects the ability of all stafff members to seek meaningful recourse before it and aggravates the perception of unfairness by a stafff member who has taken the required steps to pursue his or her claim.…”49 Actions taken by management to hinder access to internal justice mechanisms are treated particularly seriously by the World Bank Administrative Tribunal. In its fĳirst decision de Merode, the Tribunal held a right to recourse to the Tribunal to form “an integral part of the relationship between the bank and its stafff members”.50 In 2009, the Tribunal awarded a base sum of US$ 30,000 to 16 individual applicants claiming harassment and intimidation under similar circumstances, on the grounds that management practices stifled their rights of access to the Bank’s internal grievance processes.51 A culture of compliance is a necessary aspect of a fair, open and consistent system of justice. Immediately after the establishment of the new institutions of the UN internal justice system in 2009, judges in these bodies began taking steps to receive due deference from organs of

49 Id. at [45]. 50 de Merode, WBAT Decision No. 1 (5 June 1981). See generally Robert Gorman, The deMerode Decision and its Influence upon International Administrative Law, in Olufemi Elias ed., The Development and Efffectiveness of International Administrative Law (The Hague: Kluwer, 2012). 51 See “AK”, WBAT Decision No. 408 (9 December 2009); “AL”, WBAT Decision No. 409 (9 December 2009); “AM”, WBAT Decision No. 410 (9 December 2009); “AN”, WBAT Decision No. 411 (9 December 2009); “AQ”, WBAT Decision No. 412 (9 December 2009); “AO”, WBAT Decision No. 413 (9 December 2009); “AP”, WBAT Decision No. 414 (9 December 2009); “AR”, WBAT Decision No. 415 (9 December 2009); “AS”, WBAT Decision No. 416 (9 December 2009); “AT”, WBAT Decision No. 417 (9 December 2009); “AU”, WBAT Decision No. 418 (9 December 2009); “AV ”, WBAT Decision No. 419 (9 December 2009); “AW ”, WBAT Decision No. 420 (9 December 2009); “AX”, WBAT Decision No. 421 (9 December 2009); “AZ”, WBAT Decision No. 422 (9 December 2009); “BA”, WBAT Decision No. 423 (9 December 2009). The 16 applicants, all current or former stafff of the Bank’s Department of Institutional Integrity (“INT”), contested the bank’s decisions not to award relief recommended by an INT Stafff Grievance Review Panel for alleged violations of due process, unfair treatment, abuse of discretion within the INT. A number of the applicants also received compensation for retaliation. perspective of the emerging global administrative law 97 the United Nations. The Dispute Tribunal determined that it possesses inherent power to discipline parties for disobeying an order of the Tribunal, grounding such power “in the very character of a Tribunal itself as a legal entity exercising a jurisdiction reposed in it for specifĳied purposes”.52 The Tribunal’s approach rapidly brought it into some conflict with some other key parts of the United Nations system, most strikingly the Secretary-General’s offfĳice. InBertucci, a UN employee sought review of his non-selection for the post of Assistant Secretary-General in the Depart- ment of Economic and Social Afffairs. The Dispute Tribunal ordered the Secretary-General to produce certain documents considered by the selection committee, and records of deliberations, in an interlocutory ruling.53 Counsel for the Secretary-General refused to produce the documents on the grounds that the Secretary-General’s discretionary powers were comparable to “the power of a Head of State”, and that by analogy any decision to appoint one cabinet offfĳicial over another was not justiciable.54 Holding the Secretary-General’s conduct to be a “direct and brazen attack on the rule of law created by the General-Assembly”, the Dispute Tribunal retaliated by fĳinding that the respondent was not entitled to appear or advance evidence in any case before the Tribunal until it obeyed the order.55 A subsequent order that the offfĳicer responsible for the decision not to comply with the disclosure order appear before the Tribunal was also disregarded.56 In its fĳinal judgment the Tribunal found the Secretary-General’s decision concerning the appointment to be unlawful and a breach of Bertucci’s employment contract. The Secretary-General was ordered to pay Bertucci the equivalent of two years salary under the post, an additional USD$ 200,000 for loss of enhanced reputation and

52 Bertucci, UN Dispute Tribunal, Order No. 59 (NY/2010)/Rev.1 (26 March 2010), paragraph 4. An appeal against this order was dismissed by the UN Appeals Tribunal on grounds that the Tribunal generally has no jurisdiction to receive interlocutory appeals and that furthermore a fĳinal judgment had been entered:Bertucci , 2010/UNAT/062 (1 July 2010), Judge Boyko dissenting. The Appeals Tribunal did note however that such matters could be raised in an appeal to the judgment itself. 53 Bertucci, UN Dispute Tribunal, Order No. 40 (NY/2010) (3 March 2010). 54 On the Secretary-General’s refusal to obey the order for reasons set out in its previous submissions see Bertucci, UN Dispute Tribunal, Order No. 42 (NY/2010) (8 March 2010). For those reasons Bertucci UN Dispute Tribunal, Order No. 40 (NY/2010) (3 March 2010), paragraph 11. 55 Bertucci, UN Dispute Tribunal, Order No. 43 (NY/2010) (8 March 2010), paragraph 10. 56 See Bertucci and Islam, UN Dispute Tribunal, Order No. 44 (NY/2010) (9 March 2010), paragraph 2; Bertucci, UN Dispute Tribunal, Order No. 46 (NY/2010) (10 March 2010), paragraph 2. 98 chapter four status, USD$ 10,000 to counter-balance the prejudice caused by the Secretary-General’s lack of disclosure, and costs on the grounds that the respondent “manifestly abused the proceedings”.57 In a separate decision, the Dispute Tribunal ordered that a whistleblower be given access to an investigative report prepared by the Offfĳice of Internal Oversight Services (OIOS) which found his claims of retaliation to be baseless.58 The UN Appeals Tribunal dismissed an interlocutory appeal by the Secretary- General against the disclosure order.59 The fact that professional judges stafff the new UN internal justice organs enhances an expectation from the bench that processes will be complied with and orders respected. The judges from the outset took seriously the Tribunal’s mandate as an “independent, transparent, profes- sionalized, adequately resourced and decentralized” system of justice.60 Episodic conflict between the Tribunals and upper echelons of the UN personnel system were to be expected, if radical change from the unsatisfactory previous arrangements was to be pursued, and such conflicts do not in themselves undermine a robust emerging jurisprudence. Signifĳicant awards have been made for breach of due process rights,61 unfair dismissal,62 and unlawful non-appointment to posts.63 The UN Appeals Tribunal has afffĳirmed that the both tiers of the Tribunal system have the power to award interest in the normal course of ordering compensation,64 despite there being no reference to the award of interest in the Tribunals’ Statutes. Decisions of the Tribunals are also attracting media attention as a positive mechanism for securing greater accountability and transparency in UN operations.65 A deeper question arises as to the efffect of greater transparency and accountability on the operations of an international civil service that is

57 Bertucci, UNDT/2010/080 (3 May 2010), paragraphs 42–53; UNDT/2010/117 (30 June 2010) (on compensation). These judgments were annulled by the UN Appeals Tribunal in 2011-UNAT-121 (11 March 2011), because the Secretary-General should not have been excluded from proceedings, but the general obligation to produce documents was upheld. 58 Wasserstrom, UN Dispute Tribunal, Order No. 19 (NY/2010) (3 February 2010). 59 Wasserstrom, 2010/UNAT/060 (1 July 2010). 60 See General Assembly Resolution 63/253, Preamble. 61 See e.g. Shkurtaj, UNDT/2010/156 (31 August 2010); Nogueira, UNDT/2009/088 (31 March 2010). 62 See e.g. Mmata, UNDT/2010/053 (31 March 2010). 63 See e.g. Bertucci, UNDT/2010/080 (3 May 2010). 64 See e.g. Warren, UNAT/2010/059 (1 July 2010) at paragraph 14 (Judge Boyko dissenting). 65 See e.g. Hooray for the U.N – A Dispute Tribunal vindicates a Whistleblower, Wall Street Journal (3 September 2010), p.8; Neil MacFarquhar, Review Panel Judges see a Culture of U.N. Secrecy, New York Times (16 June 2010), p. A8. perspective of the emerging global administrative law 99 premised on ideals of neutrality, impartiality, and professionalism. The ILO Administrative Tribunal has noted that independence of the international civil servant is “an essential guarantee, not only for the civil servants themselves, but also for the proper functioning of international organisations”.66 The rise and relative anonymity of the international civil service sharpens requirements of accountability and transparency in both appointments processes and fulfĳillment of duties, in an attempt to stymie charges of “undemocratic liberalism” in operations.67 However the imposition of ideals of transparency may in turn have a chilling efffect on the efffĳiciency and responsiveness of the service. There is perhaps some bene- fĳit in insulating certain internal deliberations of international civil servants from the public eye in order to maintain principles of neutrality and avoid political scrutiny by interested governments. Judge Boyko’s dissenting opinion on the interlocutory Bertucci appeal, holding that particular attention should attach to claims of privilege, suggests a keener consideration of the advantages of carving out a zone of executive privilege in the afffairs of the international civil servants.68

D. The Demand for Accountability in Global Governance: International Administrative Tribunals as Accountability Mechanisms

Traditional approaches to international legal accountability based on fĳirst demonstrating a breach of treaty or of customary international law, then establishing international legal responsibility of states or of inter-state

66 ILOAT Judgment No. 2232 (“OPCW”, 16 July 2003), discussed in Global Administrative Law: Cases, Materials, Issues, 119 (S. Cassese et al (eds.), Institute for Research on Public Administration and the Institute for International Law and Justice, 2nd ed. 2008). The Tribunal noted that Bustani’s removal from a fĳixed-term offfĳice on the basis of political considerations not only violated the terms of his contract but also “contravened the general principles of the law of the international civil service”. For commentary on bureaucratic independence as a constitutional norm within a domestic system, see L. Sossin, “Speaking truth to power? The search for bureaucratic independence in Canada”, 55 University of Toronto Law Journal (Winter 2005) 1. 67 On the concept of undemocratic illiberalism see M. Barnett and M. Finnemore, Rules for the World: International Organizations in Global Politics, (Cornell University Press, 2004) p. 15. 68 Judge Boyko, dissenting , in Bertucci, 2010-UNAT-062 (1 July 2010). She notes at paragraph 2 that “[r]uling on the admissibility of privileged evidence where a party seeks to exclude it, therefore, falls into a category that demands more particular attention than ruling on evidence sought to be excluded on other grounds”. 100 chapter four organizations for the breach, are not adequate frames through which to address current demands for accountability of global regulatory bodies. This demand for more complex or innovative forms of accountability for the actions of global regulatory bodies comes from many sources (sometimes these sources are in tension with one another). One source of demand is from those whose interests are disregarded or undervalued in a substantive global administrative governance action, or in the global decision processes (the “problem of disregard”). A second source of demand is from agencies or components of national governments, dissatisfĳied with an international institution’s performance or processes. A particular dimension of this is pressure from national or European Union courts, which may increasingly consider applying their own public law review criteria to rules or decisions of global institutions directly, or to national measures intended to implement these.69 Third, a “top-down” demand for accountability comes from the leadership (member states or the secretariat) of global regulatory bodies who, for reasons of efffectiveness or “good governance” or rights protection, choose to discipline the internal workings of the organization by the use of internal (though perhaps independent) accountability mechanisms.70 The international administrative tribunals are an important instance of the top-down creation of a rights-protecting accountability mechanism. Their capacity to review administrative action reflects to some extent a transposition of national administrative law accountability mechanisms to extra-state institutions. It is of course a limited jurisdiction, generally covering only employment- related disputes between the international organization in question and its stafff members. Increasingly, however, international organizations must consider ways of securing (and cabining) their own accountability for actions they or their agents take that impact upon the rights and interests of third parties.71 The criteria for assessing the legitimacy of tribunals

69 On this “bottom-up” approach to global administrative law, see generally R.B. Stewart, U.S. Administrative Law: A Model for Global Administrative Law?, 68 Law and Contemporary Problems (2005) 63, at pp. 76–88; see also Kingsbury, Krisch, Stewart, loc. cit. n. 1, at pp. 54–57. 70 On this, see generally Stewart, ibid., at pp. 88–107; see also Kingsbury, Krisch, Stewart, loc. cit. n. 1, at pp. 34–36. 71 This is an important implication of the 2007 decisions of the European Court of Human Rights in the Behrami case, suggesting that the UN is responsible for any negligent action or inaction by troops in a UN-mandated force, if for example they failed to clear or to efffectively warn civilians of dangerous cluster bombs when they had the knowledge and reasonable opportunity to do so. The Court implied, controversially, that civilians who were predictably injured in such circumstances should have a mechanism of direct claim perspective of the emerging global administrative law 101 established by international organizations for their own accountability require careful consideration, even while existing international administrative tribunals for the most part do not face major legitimacy crises at present. International organizations more and more fĳind themselves confronting the question of their accountability to non-employee and non- state third parties whom they may allegedly have harmed. Accountability defĳicits are a critical problem in some such situations. In certain cases these relate to general regulatory standards set by inter-governmental institutions (for example, on safety and efffectiveness of medicines and vaccines, or on calculation of credit risks and adequacy of bank reserves) that have major consequences for economic actors and for ordinary individuals. More often the issues relate to specifĳic regulatory actions directly afffecting individual third parties: refugee status determinations, day- to-day administration of camps and, indeed, of entire territories (as in both Kosovo and East Timor in the fĳirst decade of the 21st century), as well as military and peacekeeping operations.72 While the consequences of maladministration in these regulatory functions may be very grave, such international mechanisms as exist to provide accountability in these settings typically are less robust in their protection of the afffected third parties than are stafff-focused administrative tribunals such as UNAT.73

against the UN. Behrami v. France; Saramati v. France, Germany and Norway, (2007) 45 EHRR SE10. 72 See M. Zwanenburg, Accountability of Peace Support Operations (Leiden: Martinus Nijhofff, 2005) at pp. 288–292. For a number of detailed studies of human rights and accountability issues in terms of the fĳield operations of international organizations, see M. O’Flaherty (ed.), The Human Rights Field Operation: Law, Theory and Practice (Aldershot: Ashgate, 2007). A proposal for the UN to compensate local victims of certain specifĳied peacekeeper abuses on the basis of a limited evidential showing (akin to some existing mass claims processes), rather than demanding a tort-law standard of proof of the UN’s liability which it would be impossible for most victims to meet in situations such as those prevailing in the Democratic Republic of Congo, is made by C. Sweetser, “Providing Efffective Remedies to Victims of Abuse by Peacekeeping Personnel”, 83New York University Law Review (2008) 1643. The Hague Court of Appeals ruled in July 2011 that the Dutch state was legally responsible and must pay compensation to families of persons massacred in Srebrenica by Serb militias, based on the Dutch contingent ‘Dutchbat’ having forced the victims out of its UN peacekeeping force compound when Dutchbat ought reasonably to have known that this would place the victims in grave danger. The same court had ruled in March 2010 that the United Nations was immune from suit in the same matter, and it does not appear that any remedy against the UN was available to the victims’ families. 73 Enraveled in this is the problem of civil or criminal liability of persons employed by international organizations for acts outside their offfĳicial functions. It is extremely difffĳicult for an international organization to impose such liability itself, or to responsibly use the organization’s funds to compensate victims if the act is unrelated to or egregiously 102 chapter four

The question of using standing international tribunals to establish accountability of international organizations to third parties, and to stafff, is inextricably linked to questions about how to attain legitimacy for any such mechanisms, given that such mechanisms are likely to have been created by, and perhaps will seem to be influenced by, the very institutions they call to account. Max Weber analyzed the legitimacy (and hence the claim to authority outside the power to coerce obedience) of laws and institutions as coming from one or more of three sources: tradition (a long-accepted way of conducting matters), charismatic leadership, or bureaucratic rationality. Newly-created stafff tribunals have sought to draw on the longstanding traditions of UNAT and the ILOAT by emulating their structures and referring at times to their jurisprudence, but such a route will not easily be open to any new international organization accountability tribunals dealing with accountability to non-employee third parties. International administrative tribunals have in some cases relied on the distinguished reputations of certain members (for example, as leading national judges or international lawyers) and some of these persons may over time have built up a degree of charismatic authority within secretariats. But this will also be difffĳicult to emulate where tribunals are required to deal with highly diverse third parties. So in Weberian terms, tribunals dealing with third parties will be required, even more than current stafff tribunals, to win legitimacy through the legality and rationality of their design, their processes, and the technical quality and persuasiveness of the reasons the tribunals give in explaining and justifying their decisions. Such third-party tribunals will face much greater demands for general public legitimacy and justifĳication than do essentially in-house tribunals, although even existing international administrative tribunals may come under wider scrutiny in high-profĳile cases or cases that reach national courts. Electoral democracy provides a diffferent and more elaborate means of legitimation. A particular feature of democratic elections by secret ballot outside the duties of the employee. When International Monetary Fund Managing Director Dominique Strauss-Kahn was arrested in New York in May 2011 for an alleged sexual assault on a hotel worker, the IMF appears not to have claimed that he was entitled to immunity. This was consistent with the IMF Articles of Agreement, which stipulated for immunity of stafff only ‘with respect to acts performed by them in their offfĳicial capacity’. However, had the US been party to the 1947 Convention on the Privileges and Immunities of United Nations Specialized Agencies, a much more difffĳicult waiver question would have confronted the IMF. That Convention provides that the executive head of each specialized agency has the same immunities as diplomatic envoys, which would entail comprehensive immunity res personae from criminal process. perspective of the emerging global administrative law 103 is that they allow for the special democratic freedom of the voters to engage in political expression through acting arbitrarily. Leaders elected in this way bring this legitimacy to the international institutions they establish or control or support (as founders and funders), and to institutions over which they themselves can exercise what might be arbitrary political authority, for example to remove a cabinet minister or the head of a government agency. Extending this democratic legitimation to international institutions in general is not easy. Extending it to international tribunals aimed at making these institutions accountable to third parties is very difffĳicult. These tribunals must be somewhat independent of states, if they are to hold to account organizations established by states and whose funds for meeting liabilities typically come from states. What then are the non-electoral mechanisms of legitimation of transnational institutions exercising public power? Here global administrative law concepts can play a central role. They can help to defĳine, and to specify the criteria for securing institutional practices that can serve to promote legitimacy, such as participation, transparency, due process, reason-giving, review mechanisms, accountability, and respect for basic public law values including rule of law. This question of non-electoral legitimation is fundamental in all kinds of transnational institutions, especially where they have real powers of governance afffecting the rights and responsibilities of individuals, corporations, States, and other groups. Concerns about legitimacy, efffectiveness and acting justly, combined of course with political pressure and protests, have led many transnational agencies to change their practices and their views as to what the applicable norms are and indeed what their roles are as regulative institutions and public actors in relation to public issues. Such concerns are also likely to be one influence in a slow, patchy, but signifĳicant growth in the use of juridical means to establish accountability of international organizations to third parties in limited and defĳined situations. In summary, the design, work, and future evolution of international administrative tribunals is both subject to, and a creative influence on the development of, global administrative law. In addition to the practical work of helping address and resolve particular stafff situations, these tribunals have constructed an ever-growing body of specifĳic jurisprudence on stafff issues in international institutions, and they enrich the growing general jurisprudence of global administrative law on matters ranging from due process and whistleblower protection to same-sex unions. They strike balances between demands for generality in the enunciation and application of core principles, and the need for contextualization in 104 chapter four specifĳic institutional or socio-cultural settings. Reforms in their design and operations are being guided, in part, by global administrative law concepts and norms that bear on legitimacy and accountability in global governance. Building on this platform, the international administrative tribunals are one source of experience and in certain respects a model for future attempts to build and to legitimate mechanisms for accountability of international institutions to third parties they may directly and detri- mentally afffect. CHAPTER FIVE

THE ROLE OF ADMINISTRATIVE TRIBUNALS IN SAFEGUARDING THE INDEPENDENCE OF THE INTERNATIONAL CIVIL SERVICE

Lisa Tabassi*

In accordance with the established case law of all international administrative tribunals, the Tribunal reafffĳirms that the independence of international civil servants is an essential guarantee, not only for the civil servants themselves, but also for the proper functioning of international organizations… - Administrative Tribunal of the International Labour Organization (ILOAT), 16 July 20031

A. Introduction

The integrity of international organizations rests on their independence. The credibility of the work carried out by their stafff members – as peace- keepers, monitors of treaty compliance, verifĳiers of non-proliferation and disarmament, fact-fĳinders, mediators, fĳinancial regulators, court offfĳicers and other roles – is contingent upon them remaining outside politics and beyond influence. The dependence of international organizations on the resources of their Member States, however, leaves them in a vulnerable position. While independence was recognized by States as essential nearly from the outset, they have been reluctant to support that principle through the dispute resolution mechanisms established under the constituent instruments of the organizations they have created. Instead it has fallen to administrative tribunals to safeguard the principle of independence, in adjudicating the claims of afffected stafff members. The administrative tribunal judgments upholding the principle of independence, rendered over a period of more than 50 years, have contributed

* The views expressed herein are those of the author and cannot otherwise be attributed. My thanks to Joahnna Bollozos for her excellent research assistance and to Odette Jankowitsch-Prevor and Lorena Mereles Gonzalez for the many discussions on independence and integrity. 1 ILOAT Judgment 2232 (2003). 106 chapter five to the progressive development of international administrative law. They have weakened the ability of Member States to: (a) demand termination of contracts on political grounds; (b) control appointments and renewals through secondment of their nationals; (c) use the rotation of seconded offfĳicials to reserve posts for their nationals; (d) disrupt the efffĳicient functioning of offfĳicials by subjecting them to national taxation procedures; and (e) dismiss an unpopular executive head without due process. The role administrative tribunals have played is reflective of their own judicial independence and even judicial activism in some instances. For a Legal Adviser faced with providing advice to the executive head on a politically-charged issue, often the most efffective tool in promoting good governance2 is to cite relevant dicta of the tribunals, when they exist. Key judgments related to the principle of independence are celebrated below. Considering the increasing global interdependence and reliance upon international organizations for intergovernmental coordination, the role these judgments have played in the development of international law, promoting good governance and the rule of law, cannot be underestimated.

B. Origin of the Principle of Independence

Only a century ago the Covenant of the League of Nations formally established the fĳirst permanent international administration. The Covenant was silent as to the character of the “permanent secretariat” leaving it to be developed in practice. Almost immediately, in 1920, it was proposed that “the members of the Secretariat once appointed are no longer the servants of the country of which they are citizens, but become for the time being the servants only of the League of Nations. Their duties are not national but international …”.3 That view was embraced by the fĳirst Secretary- General of the League, Eric Drummond, who introduced the legal articulation of the principle in the Stafff Regulations.4

2 T. Dunworth, “The Legal Adviser in International Organizations: Technician or Guardian?”, 46 Alta.L. Rev. (2008–2009) 869–884. 3 Arthur Balfour, British Member of the Council of the League of Nations, in his report on the stafff of the Secretariat to the Council, May 1920, cited in G.A. Finch, “The Work of the League of Nations”, 14 Am. J. of Int’l Law (1920) 620. 4 UN Secretary-General Dag Hammarskjöld, Lecture delivered at Oxford University, 30 May 1961. the role of administrative tribunals 107

In the negotiations of the Charter of the United Nations (UN), proposals for a secretariat composed of seconded national offfĳicials were opposed by the majority. The proposal that stafff appointments should be subject to the consent of the State of which the individual held nationality, to assess qualifĳications and ensure the confĳidence of the respective government, was rejected as well.5 Instead it was decided that the independence of the Secretariat should be provided for in the Charter itself, entrenching it as a constitutional requirement, not left to the discretion of the policy- making organs or the Secretary-General.6 The UN Charter accordingly provides: Article 100 (1) In the performance of their duties the Secretary-General and the stafff shall not seek or receive instructions from any government or from any other authority external to the Organization. They shall refrain from any action which might reflect on their position as international offfĳicials responsible only to the Organization. (2) Each Member of the United Nations undertakes to respect the exclusively international character of the responsibilities of the Secretary-General and the stafff and not to seek to influence them in the discharge of their responsibilities. The principle was also incorporated in the UN Stafff Regulations. Equivalent provisions are found in the constitutent instruments of nearly all other international organizations, their respective stafff regulations, oaths taken upon employment and the Standards of Conduct of the International Civil Service.

C. Rationale and Enforcement

Initially, in the absence of any established practice for international administrations, independence was ensured by reference to diplomatic practice and according full diplomatic privileges and immunities to senior stafff and functional immunity to all.7 The purpose was to enable stafff to

5 B. Simma, The Charter of the United Nations: A Commentary (Oxford University Press, 2002) at 1235. 6 S.M. Schwebel, “The International Character of the Secretariat of the United Nations”, 30 Brit. Y.B. of Int’l Law (1953) 71 at 76–77. 7 Report of the Preparatory Commission of the United Nations (document PC/20 (1945) ) 62, 85. 108 chapter five function efffectively, protected from the pressure or influence of national authorities and on an equal footing with them.8 The privileges and immunities were provided for in Article 105 of the UN Charter, the general conventions on privileges and immunities and headquarters agreements. As the International Court of Justice (ICJ) explained: To ensure the independence of the agent and, consequently, the independent action of the Organization itself, it is essential that in performing his duties he need not have to rely on any other protection than that of the Organization (save of course for the more direct and immediate protection due from the State in whose territory he may be). In particular, he should not have to rely on the protection of his own State. If he had to rely on that State, his independence might well be compromised, contrary to the principle applied by Article 100 of the Charter. And lastly, it is essential that – whether the agent belongs to a powerful or to a weak State; to one more afffected or less afffected by the complications of international life; to one in sympathy or not in sympathy with the mission of the agent – he should know that in the performance of his duties he is under the protection of the Organization … The obligations entered into by States to enable the agents of the Organization to perform these duties are undertaken not in the interest of the agents, but in that of the Organization…9

D. Dispute Settlement by Administrative Tribunals

A leading jurist has warned that the independence of the Secretariat (as expressed in recruitment practices, absence of interference in operations, fĳinancial independence of stafff from Member States, job security and personal immunity) is threatened in actual practice.10 In some respects this is curious since “under the protection of the Organization” suggests that cases of undue pressure or influence by a State will be challenged by the organization concerned and, if not resolved, addressed under available dispute settlement mechanisms. Actually those mechanisms are rarely, if ever, invoked. Instead it is afffected stafff members themselves who have submitted the disputes to the only forum available:

8 S. Tarassenko and R. Zacklin, “Independence of International Civil Servants (Privileges and Immunities), in C. de Cooker (ed.), International Administration (Martinus Nijhofff, 1990) at 485–486. 9 Reparations for Injuries Sufffered in the Service of the United Nations, Advisory Opinion, 1949 ICJ Reports 184–185. 10 See Simma, op. cit., supra n. 5, p. 1232. the role of administrative tribunals 109 the administrative tribunals which are competent to examine and rule on breaches of the terms of appointment of individual stafff members, stafff regulations or even general principles of law.11 In one recent press article, such recourse has been suggested as a viable alternative when the organization fails to take action against violations of protected rights.12

E. Independence in the Recruitment, Renewal, Promotion and Termination of Staff

As one tribunal has pointed out, “Relations with a Member State may be good without the Organization’s allowing any of its member States the right to interfere in the area of personnel management”.13 Tribunal judgments serve as an important articulation of international administrative law and enable executive heads to assert the principle of independence more authoritatively, as reflected in the following cases.

1. Independence from Political Persecution During 1952–1953 a number of stafff members employed by the UN or UNESCO were requested to appear before internal security bodies of their Member State to answer questions about political activities they may formerly have engaged in. Some chose not to appear or refused to answer all questions. An independent “Commission of Jurists”, established to advise the UN Secretary-General on the matter, recommended a set of “Principles with Regard to Offfĳicials Accused or Suspected of Disloyalty to the Host Country”. Following this the Secretary-General decided upon dismissal or non-renewal of the contracts of those stafff members.14 Stafff members appealed. Although the United Nations Administrative Tribunal (UNAT) jurisprudence on those cases was somewhat uneven,15 the principle of independence was implied: It is not clear to the Tribunal in what way the services of any stafff member can be of less value in her employment with the United Nations, by reason

11 ILOAT Judgment 2912 (2010) para. 5. 12 See Charlemagne, “Hungary’s Other Defĳicit”, The Economist (8 January 2011) at 28, in which it is suggested that the failure by the European Union to address contentious legislation restricting the media could be redressed by the afffected individuals in the Council of Europe’s European Court of Human Rights. 13 ILOAT Judgment 1249 (1994), para. 5–7. 14 See further, Schwebel, op. cit., supra n. 6, 89–115. 15 Cf. UNAT Judgment 19 (1953). 110 chapter five

of declining to name some one person who invited her, many years before the creation of the United Nations, to join the Communist Party, a membership which she had terminated within just over one year … Stafff Regulation 1.4 recognised the right of stafff members not to give up their political opinions. So that a membership of any particular party would not, of itself, be a justifĳication, in the absence of other causes, for dismissal. … A decision based on such premises is a violation of an inalienable right of stafff members and represents a misuse of power. For these reasons the Tribunal decides that the decision to terminate the Applicant’s appointment is ultra vires and must be declared illegal.16 In nine other cases, UNAT found against the organization on purely procedural grounds, determining that the decision of Secretary-General to summarily dismiss the stafff members without recourse to disciplinary proceedings was unlawful.17 In fĳive UNESCO cases, the Administrative Tribunal of the International Labour Organization (ILOAT) explicitly made the linkage to the principle of independence from interference of a Member State and ordered that the decisions be rescinded.18 In very clear reasoning the Tribunal found: That the Director-General of an international organization cannot associate himself with the execution of the policy of the government authorities of any State Member without disregarding the obligations imposed on all international offfĳicials without distinction and, in consequence, without misusing the authority which has been conferred on him solely for the purpose of directing that organization towards the achievement of its own, exclusively international, objectives; … That it will sufffĳice to realise that if any one of the seventy-two States and Governments involved in the defendant Organization brought against an offfĳicial, one of its citizens, an accusation of disloyalty and claimed to subject him to an enquiry in similar or analogous conditions, the attitude adopted by the Director-General would constitute a precedent obliging him to lend his assistance to such enquiry and, moreover, to invoke the same disciplinary or statutory consequences, the same withdrawal of confĳidence, on the basis of any opposal by the person concerned to the action of his national Government; That if this were to be the case there would result for all international offfĳicials, in matters touching on conscience, a state of uncertainty and insecurity prejudicial to the performance of their duties and liable to pro- voke disturbances in the international administration such as cannot be

16 UNAT Judgment 18 (1953). 17 UNAT Judgments 29, 30, 31, 32, 33, 34, 35, 36, 37 (1953). 18 ILOAT Judgments 17, 18, 19, 21, 22 (1955). the role of administrative tribunals 111

imagined to have been in the intention of those who drew up the Constitution of the defendant Organization; … That it does not therefore appear that the complainant placed his own interests above the true interest of the Organization, which interest consists above all in safeguarding erga omnes its independence and impartiality; … That the decision not to renew the appointment is one which should not only be rescinded in the present case, but also constitutes a wrongful exercise of powers and an abuse of rights which consequently involves the obligation to make good the prejudice resulting therefrom…”.19 These judgments were eventually referred to the ICJ by the UN and UNESCO with requests for an advisory opinion. The fĳirst request asked whether the UN General Assembly had the right to refuse to give efffect to an award of compensation made by the UNAT. The ICJ found that it did not; the General Assembly had established UNAT as a judicial body competent to make binding decisions.20 In response to UNESCO’s request, the ICJ considered that the ILOAT was competent to hear the complaints and that the judgments were valid.21 Through these opinions, by removing the ability of political organs to frustrate judicial process, the ICJ placed the administrative tribunals on fĳirmer footing and ensured their ability to protect the principle of independence.22

2. Control through Secondment The Preparatory Commission for the United Nations clearly recognised the conflict between the principle of independence and any continued dependency of stafff members upon their national governments for future employment or career advancement. In its fĳinal report, it concluded that a truly international secretariat could not be composed “even in part” of national representatives responsible to Governments and recommended that any offfĳicial appointed for two years or more must resign from any public or private position held. It considered, however, that it would be

19 ILOAT Judgment 17 (1955). 20 Efffect of Awards of Compensation Made by the UNAT, Advisory Opinion [1954] ICJ Reports 47. 21 Judgments of the ILOAT upon Complaints Made Against UNESCO, Advisory Opinion [1956] ICJ Reports 77. 22 On the contribution of these Advisory Opinions to the development of international administrative law, see T.O. Elias, “The International Court of Justice in Relation to the Administrative Tribunals of the United Nations and the International Labour Organisation”, in de Cooker (ed.), op. cit., supra n. 8 727–760. 112 chapter five important for national offfĳicials to benefĳit from international experience, which would also strengthen contacts between the Secretariat and national administrations.23 This led to the practice of loaning offfĳicials to the Secretariat for short periods on secondment. The jurisprudence of the administrative tribunals has been key in developing the practice into a legally predictable one, limiting the extent to which control can be exercised. To start with, “secondment” was never defĳined in the stafff regulations or rules. In 1964, the following criteria were established by UNAT: (a) Secondment implies that the stafff member is posted away from his establishment of origin but has the right to revert at the end of the secondment and retains his/her right to promotion and to retirement benefĳits; (b) A contractual relationship is established between the three parties involved in a secondment: the releasing and receiving organizations and the stafff member; (c) The terms and conditions of secondment cannot be varied unilaterally or by agreement between the releasing and receiving organizations to the detriment of the stafff member concerned.24 The parameters having been defĳined, the subsequent key cases began to erode control. A 1974 judgment25 recorded the fact that some Governments expected to be routinely consulted about the employment of persons holding their respective nationality. Applications by persons of those nationalities were almost always received through the Member States.26 In some cases Governments demanded that recruitment take place through secondment only, which enabled the Member State to control appointment and the subsequent duration and renewal of the contract.27 Eventual rotation of such stafff resulted in posts reserved for certain nationalities.28 Attempts by stafff to later convert secondment into a regular employment contract were frustrated if the Government’s consent could not be obtained. Initially the jurisprudence was somewhat uneven. In one case,

23 Report of the Preparatory Commission of the United Nations (document PC/20 (1945) ), 84–85, 92–93. 24 UNAT Judgment 92 (1964) paras. IV and VII. 25 UNAT Judgment 192 (1974), para. V. 26 Ibid., paragraph IX. 27 T. Meron, “In Re Rosescu and the Independence of the International Civil Service”, 75 Am. J. Int’l Law (1981) 910 at 912. 28 J.R. Russell Bulkeley, “Depoliticising United Nations Recruitment: Establishing a Genuinely International Civil Service”, 22 N.Y.U. J. Int’l L. & Pol. (1989–1990) 749 at 775; T. Meron, “ ‘Exclusive Preserves’ and the New Soviet Policy Toward the UN Secretariat”, 85 Am. J. Int’l. Law. (1991) 322–329. the role of administrative tribunals 113 for example, a stafff member on secondment resigned from government service and was granted asylum by another State. Based on the criteria listed above, UNAT found that a new contractual relationship had not been established and dismissed the case, quoting a committee report that stated a now untenable view: “International offfĳicials should be true representatives of the cultures and personality of the country of which they were nationals, and that those who elected to break their ties with that country could no longer claim to fulfĳil the conditions governing employment in the United Nations”.29 The following two cases are signifĳicant both in terms of international administrative law and human rights.

2.1. Contract Extensions In 1975 the International Atomic Energy Agency (IAEA) recruited a safeguards inspector following consultations with his government. The IAEA later wrote to the governmental authorities to ask whether they would agree to a fĳive-year extension of his contract and they responded that they could not. The Director-General accordingly gave only an eight-month extension of the contract which the stafff member appealed to the ILOAT. In its judgment ordering compensation (not reinstatement), the Tribunal held that: If a director-general intends to appoint to the stafff someone who is a government offfĳicial in a Member State he will normally consult the Member State, which may wish to keep the offfĳicial in its service. Similarly, if such a government offfĳicial’s appointment is to be extended, it is reasonable that the organization should again consult the Member State, which may have good reason to re-employ him. This does not mean that a director-general must bow unquestioningly to the wishes of the government he consults. He will be right to accede where sound reasons for opposition are expressed or implied. But he may not forgo taking a decision in the organization’s interests for the sole purpose of satisfying a Member State.… It is also true that, if the [government] authorities had explained that they were opposed to the fĳive-year extension because they wanted to have the complainant back again, this might have been a sound reason. But had that been what they wanted they would have needed his consent. … It appears from the foregoing that in taking the impugned decision the Director-General, for no valid reason, let the interests of a Member State prevail over the Agency’s. He thereby committed a misuse of authority which taints his decision.30

29 UNAT Judgment 333 (1984), para. XII. 30 ILOAT Judgment 431 (1980), paras. 6–7. 114 chapter five

2.2. Career Appointments In 1984, three translators were recruited on fĳixed-term contracts specifying they were “on secondment from the Government”. All three received satisfactory performance appraisals and in 1989 the Secretary-General requested the government to extend each of the secondments for two years. Consent was granted only until the end of the year and the Secretary- General was informed that recommendations from the Government for the successors would be separately communicated. The three stafff members requested conversion of their appointments to career appointments since they had completed fĳive years of service and were thus entitled to do so pursuant to UNGA resolution 37/126(1982). Furthermore, they feared for their safety if they returned to their country since they had participated in protests against the manner in which the Government had recently treated student demonstrators. They resigned from their government positions and submitted evidence to the Secretariat that they had been forced to “hand in” their salaries to the Government. The requests were denied and the contracts were renewed only until 1990 for the reason that it would not be in the interests of the Organization to disrupt the rotational system for the stafffĳing of the language services. They were further informed that compulsory deductions from UN salaries was an issue that was currently under comprehensive examination by the Secretary-General. UNAT held that the contracts of the three were not genuine secondments since the conditions of secondment had not been defĳined in writing and brought to the attention of the stafff members concerned. It reasoned that only in the case of genuine secondment is the Secretary- General obliged to request and comply with the view of the Government in respect of contract renewal. Accordingly, the Tribunal found that: [T]he limits of the Secretary-General’s discretionary powers are governed by the following principle established by the Tribunal’s consistent case-law: the Secretary-General may not legally take a decision which is contrary to the Charter, in particular to Articles 100 and 101, or to the provisions of the Stafff Rules and Regulations.… In this connection, the Tribunal agrees with the [Organization] that the Secretary-General has the right to consult the Governments of Member States when he exercises his power of appointment, provided however that such consultation should not contravene [the Charter, Regulations and Rules].31

31 UNAT Judgment 482 (1990) paras. XXIII–XXV, XXIX–XXX, XXXIII, XXXVI. the role of administrative tribunals 115

The Tribunal noted that following discussions between the Organization and the Government, the Secretary-General had denied the Applicant’s career appointments. Although the Government’s opinion that the rotation system categorically ruled out career appointments and the Secretary- General had denied them on that basis, UNAT ordered reinstatement with career appointments: … the Secretary-General’s decision to refuse the Applicant’s request for career appointments exceeds the limits of his discretion. His decision is based on reasons which are contrary to the interests of the United Nations, erroneous or inaccurate as to fact, and specious. It ignores the basic principles of the international civil service, as enunciated in Articles 100 and 101 of the Charter.… The Tribunal notes that the Applicants have displayed outstanding professional ability and competence in the performance of their duties, that they had a reasonable expectancy of permanent employment and a career in the United Nations, that after offfering them a career appointment the Administration proposed a two-year renewal of contract and then withdrew the offfer, and that this vacillation constituted a particularly painful mental ordeal for the Applicants in the then prevailing circumstances, that the Administration has not acted in the Applicants’ case with the prudence, care and attention to be expected of an international organization with regard to personnel questions…32

3. Retirement under Duress A UNESCO stafff member was arrested in 1980 while on duty travel in his home country. Thereafter he twice submitted a letter of resignation to the Director-General who did not accept it because he doubted whether it was genuine. The stafff member was released from prison the following year but was prevented from leaving the country. He applied for early retirement, which was accepted. Three years later he appealed that decision, alleging that his government had pressured him into the actions. The ILOAT found that: …as soon as he was able to show that he had acted under duress UNESCO had the duty, according to the general principles that guarantee the independence of international civil servants, to grant relief. Such independence means that a stafff member may not be put on early retirement where a member State has ordered him to apply for it. That indeed is the very reason why UNESCO refused the resignation he tendered against his will in 1980 and 1981.… Early retirement was to his serious detriment, especially since

32 Ibid., paras. XL–XLIII, XLVI. 116 chapter five

the [Member State’s authorities] forced him to opt for lump-sum withdrawal of his pension entitlements and to make the proceeds over to them…33

4. Government Request for Removal In September 1986, a stafff member was recruited by the ILO and assigned to a duty station in the fĳield. In December 1986 he was informed that his appointment was being ended at the request of the host Government because the necessities of the service “render impracticable the use” of his services in that country. The stafff member appealed and the ILOAT found that he had been denied the right of reply and ordered compensation: When an international offfĳicial on mission shows professional shortcomings or fails in his duty of “reserve” the government may of course ask the organization to withdraw him. But termination is not the inevitable outcome. For one thing, so long as the contract is in force the Director-General does not have discretionary authority; for another, he may discuss the matter with the government and may also – and it is more likely – seek some explanation. … In any case even when the organization acquiesces it need not terminate the appointment on that account. What the Tribunal does require is that before dismissing someone … the organization summon him to headquarters and away from any emotional atmosphere there may be, and give him an opportunity to answer questions and have his say.34

5. Prevention of Freedom of Movement In a 1994 case, an IAEA stafff member failed to return after a trip home. According to the stafff member, he was prevented from leaving because he had failed to obtain from the Government a “special card” proving that he “didn’t take part in the latest counter-revolutionary rebellion”. The Government informed the organization that the stafff member was divorc- ing his wife and could not return to Vienna while the divorce court was investigating whether his behavior had offfended “law and morals”. Subsequently the stafff member’s contract was not renewed. The Tribunal ordered reinstatement, holding that: Circumstances relating to an offfĳicial’s private life - even though they may prompt civil or penal proceedings – are relevant in the area of administration only insofar as they may afffect his performance of offfĳicial duties. But in that event only the organization that employs him would be competent to

33 ILOAT Judgment 1232 (1993). 34 ILOAT Judgment 901 (1988). the role of administrative tribunals 117

determine the issue. The Agency had and still has the duty to safeguard its employee’s right to work in full independence for his employer.35

6. Interference with Promotion In 1998, a stafff member was considered for promotion to a post advertised as subject to government sponsorship. The Government declined sponsorship and consequently the Director-General refused to grant the promotion. The Tribunal held: The complainant was fully qualifĳied for promotion; his abilities were well known to the Agency and appreciated. The paramount consideration mentioned in [the IAEA Statute] was heeded, namely seeking stafff of the highest standards of efffĳiciency, technical competence and integrity. The reason stated by the Agency for refusing him the appointment which he would otherwise have been granted is therefore untenable and acting from that reason amounted to a mistake in law.36

F. Independence through Privileges and Immunities

The functional privileges and immunities granted to international civil servants, drawn from the privileges and immunities customarily granted to diplomats,37 include: inviolability; immunity from legal process with respect to words spoken or written and acts performed in an offfĳicial capacity; and exemption from national taxation. The rationale is simple: the stafff member will not be able to perform offfĳicial functions efffĳiciently if s/he is distracted or delayed by satisfying the demands of national authorities in whatever foreign jurisdiction s/he is present in. The importance of tax exemption has been stressed by the UN General Assembly from the outset.38 In addition to enabling the stafff member to function, exemption from taxation ensures equality of stafff (equal pay for equal work) and equality of States in that the budget of the organization is spent for its intended purpose, not diverted to national treasuries through taxation of the salaries of stafff members. Taxation would constitute a

35 ILOAT Judgment 1312 (1994). 36 ILOAT Judgment 1733 (1998). 37 Report of the Preparatory Commission of the United Nations (document PC/20 (1945) ) 62, 85; E. Denza, Commentary on the Vienna Convention on Diplomatic Relations (1998) 1. 38 UNGA res. 78 (I) on tax equalization (1946). 118 chapter five means for a State to recover some of its contributions to the organization and the General Assembly considered it important to prevent that. Immunity from taxation has been the subject of numerous cases before administrative tribunals with various results. However, two judgments dealt with the subject with a certain degree of fĳinality, allowing secretariats to routinely and methodically reimburse stafff members, consequently ensuring independence.

1. The Absolute Right to Tax Reimbursement I In an appeal concerning the refusal by the Organisation for the Prohibition of Chemical Weapons (OPCW) to reimburse, in accordance with the Stafff Regulations, the stafff member for his payment of national taxes, the ILOAT dealt in a defĳinitive manner with three questions: (a) the method of calculation of taxation upon organizational income; (b) the right of the organization to reimburse national taxes as a general principle of international administrative law as well as the right of the stafff member to be reimbursed; and (c) the duty of the organization to use its influence to protect the stafff member from taxation authorities. Without his organizational earnings, the stafff member would not have been assessed for any taxes as his income from other sources fell below the national taxation threshold. This is the classic “fĳirst income/last income” question: if the organizational earnings are counted fĳirst, income from other sources becomes taxable or taxable at higher rates. If the organizational earnings are counted last, income from other sources benefĳits from falling under the taxation threshold and all or most of the taxes are assessed on organizational earnings and become eligible for reimbursement. The jurisprudence on this point had so far been uneven.39 Furthermore, pursuant to a rather novel provision introduced in 1993 in the Stafff Regulations, the OPCW was limited to reimbursing stafff members only to the extent that the organization would itself be reimbursed by the Member State concerned under a tax reimbursement agreement. The Tribunal ordered that the stafff member be reimbursed, using the “last income” method of calculation: The Regulation clearly mandates an agreement … in order to give efffect to the tax exempt status of the stafff members and not for the purpose of protecting the tax revenues of those States. It would be strange indeed if the absence of such an agreement could be invoked by an international

39 Cf., for example, ILOAT Judgment 1623 (1997). the role of administrative tribunals 119

organization or its Member States to deprive some stafff members and not others of their tax exempt status. If a Member State in breach of its international obligations taxes the exempt income of a stafff member, the reimbursement of that tax cannot be made to depend upon the grace and favour of that State… If the Organization does not (and clearly now it cannot) contest the exempt status of the complainant, it is its duty to protect him against the claims of the authorities of a Member State, to reimburse him the amount of tax he has paid to the State, and to employ its own considerable power, authority and influence to have the [Member State’s] authorities change their position. Exemption from national taxes is an essential condition of employment in the international civil service and is an important guarantee of independence and objectivity. It cannot be made to depend upon the whim of national taxing authorities who will be understandably reluctant to admit any exceptions to their claims.40

2. The Absolute Right to Tax Reimbursement II Despite that judgment, another OPCW stafff member subsequently appealed. In that case a tax reimbursement agreement had been concluded. The stafff member had been informed that his claim for reimbursement would have to comply with the terms of the agreement, namely: (a) a certain category of emoluments were excluded from tax reimbursement; and (b) deductions and exemptions were to be apportioned on a pro-rata basis between organizational income and income from other sources. The ILOAT reasoned that the Organization had not acted in conformity with the fundamental principles of tax exemption and non- discrimination by: (a) concluding an agreement which excluded tax reimbursement on one category of income and stipulated the fĳirst-income method of calculation; and (b) refusing to reimburse the stafff member more than it would itself be reimbursed by the Member State. It noted that these positions were not forced upon the Organization; it had voluntarily embraced them notwithstanding the Tribunal’s clear holding in its earlier judgment (above). The ILOAT also noted that the Organization did not dispute the principle of tax exemption as fundamental to the law of the international civil service and that it had nonetheless argued that it can derogate from its obligations by creating limiting provisions in bilateral agreements and in its Stafff Regulations. The Tribunal ruled that the

40 ILOAT Judgment 2032 (2001), para. 17. 120 chapter five

Organization’s argument was unacceptable and, if adopted, “would lead to anarchy and the destruction of the rule of law”.41 With regard to the role of a tax reimbursement agreement, the Tribunal recalled its earlier ruling42 and stated that: It would be strange indeed if the absence of such an agreement could be invoked by an international organization or its Member States to deprive some stafff members and not others of their tax-exempt status. If a Member State in breach of its international obligations taxes the exempt income of a stafff member, the reimbursement of that tax cannot be made to depend upon the grace and favour of that State … The evident corollary of that statement is that it would similarly be strange if the existence of an agreement could be invoked by an international organization to deprive some stafff members and not others of their tax exempt status. Such an agreement is meant to set the terms of a Member State’s commitment to refund an organization for tax reimbursements. It must, however, conform with international law and cannot be used to undermine the fundamental principles of tax exemption recalled by the Tribunal. Thus, even if the text of the [tax reimbursement agreement] had the reach which the Organization contends for it, which may be doubted, it would simply be unenforceable as being contrary to law … It is likewise with the provisions of the Stafff Regulations which, in the Organization’s submissions, would limit the complainant’s right to tax reimbursement to the amounts actually paid to the Organization by the [Member State] under the [tax reimbursement agreement]. Like the [tax reimbursement agreement] itself, the Stafff Regulations must be in conformity with the requirements of the law and where they are not, they are simply unenforceable.43

G. Removal of an Executive Head

In 2002 the OPCW terminated the appointment of the Director-General. A Member State called into question the Director-General’s management style and submitted a no-confĳidence motion to the OPCW’s executive organ. When that motion failed, it called for a special session of the principal organ.44 The Member State published its concerns about the

41 ILOAT Judgment 2056 (2001), paras. 11–12. 42 Ibid., para. 8. The last income method was upheld in another ILOAT judgment rendered on the same day (Judgment 2255 (2001), paras. 19 and 25). 43 ILOAT Judgment 2056 (2001) paras. 14–16. 44 OPCW document C-SS-1/1 (2002). the role of administrative tribunals 121

Director-General’s “polarizing and confrontational conduct”, mismanagement, and “advocacy of inappropriate roles”.45 In a national paper, it asserted that the “crisis now facing the OPCW is acute” and that “the destructive and destabilizing efffects of its current leadership, and the mission and health of the Organization, are at great risk…”, reporting a private communication from the Director-General in which he proposed “exploring with the government … ways to … make it unnecessary to convene [sic] a Conference of the Parties … In this context … he would be prepared … to designate an offfĳicial, freely chosen by the [Member State] to replace the Deputy Director of OPCW, whose mandate will soon terminate…”.46 In defence, the Director-General addressed a letter to the Foreign Ministers of all Member States informing them that: I was approached for the fĳirst time [by the Member State] directly on 28 February with the message that I should resign, a violation of the provision of the Convention which specifĳies that ‘… the Director-General … shall not seek or receive instructions from any Government .…’ I refused to resign under pressure from this Member State, and I offfered to reconcile apparent … grievances through dialogue and cooperation. The [Member State] rejected this offfer of a dialogue and, instead, launched a public attack against me threatening that, unless I go, it would not pay its fĳinancial contribution to the OPCW … I was not provided with any reasons for the dissatisfaction with my performance except that it did not like my ‘management style’. Apparently I have also been charged with ‘mismanagement’. … I have never taken any instructions from any Member State, and my truly independent and multilateral ‘management style’ is, probably, my most serious malfeasance in the eyes of some. … There is, however, a more far-reaching issue at stake. By ‘dismissing’ me under the circumstances I have described, an international precedent will have been established whereby any duly elected head of any international organization would at any point during his or her tenure remain vulnerable to the whims of one or a few ‘major contributors’. They would be in a position to remove any Director-General, or Secretary- General, from offfĳice at any point in time without any malfeasance, simply because they don’t like his or her ‘management style’… Excellency, this issue strikes right to the heart of the independence of the Secretariat and its chief

45 “Preserving the Chemical Weapons Convention: The Need for a New Organization for the Prohibition of Chemical Weapons (OPCW) Director-General”, http://www.state.gov/t/ ac/rls/fs/9120.htm (last visited Aug. 1, 2011). See further: C. Wickremasinghe, “Casenote: The Bustani Case Before the ILOAT”, 1 Int’l Organizations Law Review (2004) 197–207. 46 OPCW document C-SS-1/NAT.1 (2002) at 1–3. 122 chapter five

executive offfĳicer, in terms of not receiving instructions from any Member State or group of Member States. When I decided to resist the pressures being leveled at me personally, it was in the knowledge that I would pay a severe personal price for what some see as a mere act of defĳiance. I must tell Your Excellency that I do not see this as defĳiance; I see it as an obligation to all Member States to ensure that they have an opportunity to exercise their democratic rights and responsibilities in the Conference. Had I just walked away at the insistence of one or a few Member States, Your Excellency’s Government would have been denied those rights…47 The OPCW Legal Adviser published his opinion that: once the appointment of the Director-General is made, this is for a period of 4 years as foreseen in [the Chemical Weapons Convention]. During this term the above legal provisions related to independence, the exclusive international character and the necessary immunities are in place to allow the Director-General to carry out his responsibility as head and chief administrative offfĳicer of the Technical Secretariat. There are no provisions in the Convention that foresee the termination of appointment of the Director-General … The Director-General, on the other hand has, in accordance with his letter of appointment, the unilateral right to terminate his contract with the Organization.48 During the Special Session convened to consider the matter, the meeting was suspended for one day in order to allow the Member State to present evidence of the Director-General’s mismanagement. When it reconvened, an extract from a redacted internal memorandum and an excerpt from a newspaper article49 were distributed,50 which were met with a ripple of laughter across the room. Nevertheless, by the requisite 2/3 majority of members present and voting (48 votes in favour, 7 against, 43 absten- tions),51 a decision was adopted in the following terms: The Conference, Determined to work for the preservation and efffective functioning of the Organization and the Convention, which are put in jeop- ardy by the lack of confĳidence in the present Director-General of the Technical Secretariat; … Hereby … Decides to terminate the appointment of the present Director- General José Mauricio Bustani efffective immediately, and set in motion the

47 OPCW document C-SS-1/DG.1 (2002), Annex 3, at 8–10. 48 OPCW document C-SS-1/DG.6 (2002). 49 OPCW document C-SS-1/NAT.3 and addendum (2002). 50 “US Draws Jeers at Meeting of OPCW”, Asia Wall Street Journal (23 April 2002). 51 OPCW document C-SS-1/5 (2002), paragraph 43. the role of administrative tribunals 123

process to appoint a permanent replacement who can enjoy the full confĳi- dence of all the States Parties, as soon as practicable.52 The Director-General appealed. The Organization argued, inter alia, that the decision was not an administrative decision, but an unappealable political one. The Tribunal disagreed: a decision terminating the appointment of an international civil servant prior to the expiry of his/her term of offfĳice is an administrative decision, even if it is based on political considerations. The fact that it emanates from the Organization’s highest decision-making body cannot exempt it from the necessary review applying to all individual decisions which are alleged to be in breach of the terms of an appointment or contract, or of statutory provisions.53 On the questions of independence and due process, the Tribunal continued: In accordance with the established case law of all international administrative tribunals, the Tribunal reafffĳirms that the independence of international civil servants is an essential guarantee, not only for the civil servants themselves, but also for the proper functioning of international organizations. In the case of heads of organizations, that independence is protected, inter alia, by the fact that they are appointed for a limited term of offfĳice. To con- cede that the authority in which the power of appointment is vested – in this case the Conference of the States Parties of the Organization – may terminate that appointment in its unfettered discretion, would constitute an unacceptable violation of the principles on which international organizations’ activities are founded (and which are in fact recalled in Article VIII of the Convention, in paragraphs 46 and 47), by rendering offfĳicials vulnerable to pressures and to political change. The possibility that a measure of the kind taken against the complainant may, exceptionally, be justifĳied in cases of grave misconduct cannot be excluded, but such a measure, being punitive in nature, could only be taken in full compliance with the principle of due process, following a procedure enabling the individual concerned to defend his or her case efffectively before an independent and impartial body. In this instance, the complainant had no procedural guarantee, and given the circumstances of his case, he has good grounds for asserting that the premature termination of his appointment violated the terms of his contract of employment and contravened the general principles of the law of the international civil service.54

52 OPCW document C-SS-1/DEC.1 (2002). 53 ILOAT Judgment 2232 (2003), para. 10. 54 Ibid., para. 16. 124 chapter five

H. Tenure (Service Limitation Policy)

The initial concept of a permanent secretariat encompassed career appointments for the following reasons: Unless members of the stafff can be offfered some assurance of being able to make their careers in the Secretariat, many of the best candidates from all countries will inevitably be kept away. Nor can members of the stafff be expected fully to subordinate the special interests of their countries to the international interest if they are merely detached temporarily from national administrations and remain dependent upon them for their future.… For these reasons, it is essential that the bulk of the stafff should consist of persons who will make their career in the Secretariat …55 The growth of the UN and the interests of Member States in increased opportunities for recruitment of their nationals necessarily led to tension surrounding the practice of career appointments. Furthermore, some States considered that the efffectiveness of international civil servants diminished over time as they lost touch with their home countries.56 Eventually the practice of recruitment of stafff on fĳixed-term appointments without expectation of renewal became the norm in the international civil service. In 1972 UNESCO adopted a policy limiting the number of extensions of fĳixed-term appointments, but abandoned it because it resulted in the loss of stafff just when the organization was most benefĳitting from their training and experience.57 Despite that precedent, similar policies have recently been established whereby stafff members are replaced after an established number of years. The IAEA describes the rationale on its website: “For Professional positions, the IAEA follows a policy of rotation out of the organization. This policy allows Member States to benefĳit from the return of their nationals after gaining expertise at the IAEA, and it allows the IAEA to have a continuous influx of fresh knowledge and experience at all levels … As a rule, fĳive years constitute the normal period a stafff member can expect to be employed by the IAEA”.58 In the OPCW, “the total length of service of Secretariat stafff shall be seven years”. In the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty

55 Report of the Preparatory Commission of the United Nations (document PC/20 (1945) 92, paras. 59–60. 56 R. Barnes, “Tenure and Independence in the United Nations International Civil Service”, 14 N.Y.U.J. Int’l L. & Pol. (1981) 767–782. 57 Ibid., at 777. 58 http://iaea.org/About/Jobs/profstafff.html the role of administrative tribunals 125

Organization (CTBTO), contract renewals after seven years of service may only be granted exceptionally in order “to retain essential expertise or memory”. Such exceptions must be kept to a minimum and reported to the Preparatory Commission. The related decisions have been appealed, arguments including the violation of legitimate expectations of contract renewal, retroactivity, breach of acquired rights, lack of due process, disruption of children’s education, emotional distress and bad faith. In all cases, the Tribunal has upheld the legitimacy of the service limitation policies and only found in favour of stafff when the organizations have committed procedural errors.59 The implementation has nevertheless been problematic. The recruitment and repatriation of stafff is administratively expensive and burdensome. The process for deciding contract extensions can be complex and has resulted in appeals which are resource-intensive for the organizations to defend. The turnover has presented operational difffĳiculties when the necessary expertise has not been readily available. Three times the OPCW Executive Council has adopted decisions creating exceptions to the tenure rule. Of interest here, however, is the relative frequency with which afffected stafff members sought assistance from their governments to intervene on their behalf in an attempt to influence the tenure decisions. One commen- tator has indicated that stafff members regularly turn to their governments to request intervention in personnel matters.60 This is a violation of the stafff member’s and the Member State’s respective obligations and seriously erodes the principle of independence. As the service limitation policies are still relatively recent, it remains to be seen whether future jurisprudence may eventually influence their evolution.

I. Obligation of Staff Members to Remain Independent

Although the above cases focus on government interference, the tribunals have also pronounced upon the obligation of stafff to refrain from seeking support from Member States for their personal interests.61 In one 1998 judgment, the ILOAT reasoned: The EPO cannot be faulted for condemning [the stafff member’s complaint to parliament] as going beyond the boundaries of freedom of expression,

59 See, for example, ILOAT judgments 2315 (2004) and 2407 (2005). 60 L. Germond, Les Principes Généraux selon le Tribunal Administratif de l’O.I.T. (Pedone, 2009) at 55. 61 See, for example, ILOAT Judgment 1078 (1991), paras. 20–21. 126 chapter five

for such a right of international civil servants cannot be regarded as being without limit. Indubitably, the complainant failed to comply with his obligations under … the Service Regulations to ‘abstain from any act and, in particular, any public expression of opinion which may reflect on the dignity of his offfĳice.’ He also failed to comply with the obligations under … the Service Regulations to “carry out his duties and conduct himself solely with the interests of the European Patent Organisation … in mind”. … In expressing his opinion regarding developments within the EPO to a member of parliament, the complainant seems to assume that it is the role of national parlia- ments to control the actions of international organizations. This betrays an attitude on the part of the complainant which undermines the independence of the international civil service of which he is part…62

J. Concluding Comment

Key elements in promoting the rule of law, due process and loyalty to the organization’s mission are present when the organization properly adheres to its internal law and procedure and thereby cultivates a perception of fairness and transparency in organizational culture. The cases summarized above touched upon various scenarios where those elements were lacking: recruitment, appointment, promotion or termination of stafff; protection from political persecution or undue influence by Member States; and respect for privileges and immunities of stafff, including tax exemption. The dicta of the administrative tribunals in those cases, so clearly articulated, speak for themselves and are beyond criticism. When faced with similar situations in the present, it usually sufffĳices for the Legal Adviser to simply quote them to end a debate on the possible courses of action. As seen in the two tax cases, organizations may be obliged by their regulations, or pressured, to proceed in a certain way. Only a judgment from the Tribunal authorised the organization to proceed otherwise.63 An organization’s secretariat is not in a position itself to declare a stafff regulation unenforceable as contrary to the constituent instrument or to a general principle of law. The resulting development of international administrative law, and its invocation by other international organizations, is justice. The judgements demonstrate judicial activism at its best and promote the rule of law. Although this role was not obvious when they were created, the administrative tribunals thus serve as an important check and balance in the international system.

62 ILOAT Judgment 2114 (2002), para. 12. 63 The ILOAT very recently ruled against the unequal treatment of stafff and serial non- stafff, dispensing with a device used to stretch zero-growth budgets. See Judgment 3090 (2012). PART II THE DEVELOPMENT OF INTERNATIONAL ADMINISTRATIVE LAW BY ADMINISTRATIVE TRIBUNALS

CHAPTER SIX

PERFECTION, BEST PRACTICE, ADEQUACY? THE STANDARD APPLIED BY INTERNATIONAL TRIBUNALS TO THE BEHAVIOUR OF INTERNATIONAL ORGANIZATIONS

Peter Hulsroj

In the fĳield of international administrative law, a distinguished author has suggested that source theory is of marginal interest.1 The judgment of the World Bank Administrative Tribunal in de Merode is the comforting counter-example. It has this comforting ring of familiarity with Article 38 of the Statute of the International Court of Justice with references to practices with opinio juris and general principles of law.2 While this article will not hold court about general source theory, one specifĳic point warrants reflection. This relates to the notion of administrative tribunals as constitutional courts. It is not readily apparent how administrative tribunals get the authority to set aside validly promulgated norms by the competent lawmaker. If we parallelize with the domestic scene, which is often a good parallel to draw, a constitutional court normally only sets aside norms by reference to the constitution. This is true even in the United Kingdom, where the constitution is unwritten. There is always a reference to a higher norm when lower norms are struck down. For administrative tribunals, there is little concern where they judge the correctness of a norm within a norm-generating cascade. When administrative tribunals are setting aside validly promulgated norms because they are in conflict with higher norms, also validly promulgated, then it is the normal work of a tribunal. Concerns do arise, however, when one seeks to identify where a tribunal gets the authority to set aside a norm which does not conflict with the higher explicit norms of the organization. The IMF is one example where a formal basis has been provided for the tribunal to set aside such norms. However, if there is no formal basis, from where is such authority derived? My fundamental question is

1 C.F. Amerasinghe, The Law of the International Civil Service (2nd edition, Oxford UP, 1994), 106–109. 2 de Merode et al., WBAT Decision No. 1 [1981], paras. 20–28. 130 chapter six then whether international administrative tribunals are creating an international bill of rights applicable to international civil service, in independence from its otherwise constituent system. If this is the case, then this takes us far beyond the question of the possible existence of an international administrative corpus juris, as was also discussed in de Merode. A concrete example of the basis for this concern may be found in the ILOAT judgment of In re Meyler.3 In this case, UNESCO had in place a norm which granted a right to male stafff members, but excluded this right for female stafff members. This was a stafff rule. The Tribunal decided to set aside the gender-based distinction and granted the right to the female stafff member, despite the explicit exclusion under the stafff rule. The stafff rule was clearly a product of an administrative oversight, since there had been an efffort by the organization to make everything gender neutral. Although the stafff rule, which should have been eliminated in toto, was overlooked in that process, the question remains from where the tribunal derived the right to set aside the gender-based exclusion under the rule. It is hard to believe that a domestic court would assume that two wrongs make a right and particularly that they would arrive at that result by virtue of a non-discrimination principle which was not enacted as a formally higher ranking norm. Ultimately, the issue is one about “the reserved zone” for other actors. In good Montesquian separation of powers theory the judiciary must respect the authority of the legislative and executive, and it serves us well in administrative law to remember that there are areas where administrative tribunals neither can nor should go. All tribunals have repeatedly stated that they will not usurp the discretionary power of the executive, but the question remains how this is lived. It is true that administrative tribunals go out of their way to allow the executive discretion in substantive issues, as long as there is no abus de pouvoir or discriminatory motive. In so far as there is no undue influence in the decision-making, the tribunals do not second-guess the discretion of management. When one considers process however, tribunals are far more reluctant to accord management a wide degree of discretion. It appears that administrative tribunals are building a superstructure of due-process compliance, which is vague, rapidly evolving and ensures

3 In re Meyler, ILOAT Judgment No. 978 [1989]. perfection, best practice, adequacy? 131 lots of litigation due to its unpredictability. It has a purpose; namely, fairness. It does, however, leave plenty of room for individual appreciation by tribunals and their members. What is deemed fair one year might not be so the next. What is held fair in one administrative tribunal might not be held fair by another. Administrative tribunals are thus hawks on process and doves on substance. There are good reasons for this. Good process ensures correct stakeholder involvement, including that of stafff members. This is particularly important in multicultural contexts, where process is also a factor aiding homogeneity of treatment. But a process orientation also has a price, since it tends to move the focus from output to procedural correctness. Process is about rights, discretion is about efffect. An example of this tension may be found in the jurisprudence of administrative tribunals on termination of employment and non-renewal of fĳixed term contracts. There have been instances where tribunals have held that, even when a stafff member is placed on extended probation, the organization must extend written warnings on how the performance is still substandard as a precondition for not confĳirming employment at the end of the extended probationary period.4 Other tribunals, on the other hand, have held that contracts could be terminated for unsatisfactory performance, even in the absence of explicit statements from the employer before the decision on termination, so long as there is evidence that performance was indeed unsatisfactory.5 Provision of written warnings in a timely fashion and the use of performance improvement plans are good managerial tools in an ideal world. But tribunal jurisprudence on this matter poses the question whether tribunals are in the business of imposing process perfection as a standard for international organizations, or whether there is still a reserved zone within which management may fall below the standard of perfection and still have its decision stand. Is there room for discretion in process, and not only in substance? This brings us full circle to the question on the sources of international administrative law and how they work. Returning to de Merode, one notes that the Tribunal identifĳied two important sources of law, namely the practice of the organization, followed consistently for a long period of time, with opinio juris, and general principles of law. From a conceptual

4 ILOAT Judgment No. 2529 [2006]. 5 Suntharalingam, WBAT Decision No. 6 [1981]. 132 chapter six perspective both sources are pleasing in the way they hark from the sources of law we know from general public international law.6 Yet, few, if any, judgments do the actual analysis that would normally be required for invoking the sources, and it appears that also pleadings tend to ignore formal source analysis. If it could be shown that an organization had a demonstrable practice of providing written warnings out of a feeling of obligation there should be no hesitation to accept this as a customary norm. Likewise it would be straightforward to fĳind that a general principle had arisen if it could be shown that representative states all had this requirement as part of their domestic laws or, failing that, that a principle is such a fĳixture of our legal baggage that the norm becomes evident. Unfortunately, no such analysis is profffered, and that leaves the interested observer at a loss as to the origin of the tribunal-imposed norm. It could, of course, be argued that a standard like perfection has been introduced as an applicable standard governing all actions of the organizations, and that it is therefore unnecessary to look for individual norms imported by custom or as a general principle. If it could be demonstrated that organizations always strived for perfection and did so with a feeling of legal obligation then again source requirements would be met and a customary rule would have arisen. Stafff of international organizations, including management, are mostly serious about doing their job as well as possible. But that does not mean that they are always striving for perfection. In management it is certainly legitimate to ‘leave good enough alone’. No professional can seriously aspire to perfection in all situations. So what about ‘best practice’? Most stafff of international organizations try very hard always to comply with best practice standards, and they might even do so out of a feeling of obligation. But it is questionable whether this is a feeling of legal obligation. De Merode warned about the counterproductive efffect of turning every concession into a legal precedent since this would discourage concessions.7 In a similar fashion it is dangerous to turn the ambition, always to be in line with best practice, into a legal obligation. When professionals are guided by best practice they assume that they will not be punished for every failing in complying; they assume that there is a certain bufffer between best practice and what

6 On the risk of a non liquet (which would be particularly troublesome in a stafff case), P. Hulsroj, “Three Sources – No River: A Hard Look at the Sources of Public International Law with Particular Emphasis on Custom and ‘General Principles of Law’ ”, 54 Zeitschrift fuer oefffentliches Recht (1999), 219. 7 De Merode, op. cit., supra n. 2, para. 23. perfection, best practice, adequacy? 133 is legally required. In other words, they do not adhere to best practice standards by legal duty, but by moral imposition or professional pride. If best practice would be the legal minimum requirement we would also introduce the interesting phenomenon that professional pride would lead accomplished professionals to try to always create a new bufffer between them and the standard in order not to be caught out. This would gradually lead to ever higher best practice standards, and in the end to perfection as the applicable standard. Yet, perfection is expensive and it is clear that organizations do not have an opinio juris-based expectation of perfection or even of compliance with best practice in all situations. If then we ask about adequacy as a standard we enter the realm of cir- cularity. When asked whether something is legally acceptable or legally adequate the response would be that it depends on whether it is adequate. A standard of adequacy is the same as leaving the answer to subjective appreciation, and if we do that then the law will be neither predictable nor homogeneous. It would make administrative tribunals judges not of law but judges of their sentiment. That standards were also not introduced wholesale as a feature of general principles of law seems clear – for similar reasons. We do not possess a widely shared and appropriated standard which could be applied and none can be derived from domestic law, which tends to be deferential to company specifĳic processes, as long as decisions comply with the more general norms laid down by law. It must therefore be concluded that norms have to be imported one by one, on the basis of whether they reflect practice followed out of legal obligation, and whether they reflect a general principle of law. Still, there might be a question on whether administrative tribunals should adopt a strict stance in interpreting correctly promulgated norms, but that is a somewhat diffferent issue, and one to be addressed now, as part of a behavioural analysis of the influence of administrative tribunals on the life of international organizations. If an administrative tribunal would build the aforementioned superstructure of due-process norms, whereby it would demand perfection or best practice, it would be making a cultural statement of great importance. It would be signaling that the organization must be ready to devote considerable resources and attention in order to ensure compliance. When an administrative tribunal puts higher or less predictable requirements on an international organization than those norms governing domestic institutions, the tribunal is introducing a shift in focus away from output and towards due-process compliance as a prioritized goal. In a sense, the 134 chapter six international organization is put at a competitive disadvantage relative to domestic institutions. This would be extremely troublesome in view of the high calling of most international organizations. If international administrative law is fostering a strongly inward-looking orientation, this would be to the detriment of the vital external actions the organizations are called upon to undertake in the interests of the global community. Some may say that the noble causes served by international organizations necessitate that the administrations observe the highest standards with respect to its stafff, because international organizations should be beacons of humanism in all their dealings. Such arguments, however, ignore the fact that there is ultimately a tradeofff between internal and external humanism. When management’s focus is drawn heavily towards internal administration, the external tasks will be served less well. The noblest of causes served by international institutions cannot necessitate that they be less efffĳicient than domestic institutions. This is not to overlook that international organizations, particularly in the area of stafff relations, presents certain difffĳiculties. The cultural diversity which brings so many benefĳits also entails that we do not always have reference to a single sort of behavioural attitude which can be applied across the board. So there is clearly a reason for stepped up vigilance by administrative tribunals. This might mean that interpretations of correctly promulgated norms must be quite strict relative to administrations, but it does not mandate imposition of perfection or even a minimum standard of best practice. In bureaucratic life the best career route for a manager is often to be as uncontroversial as possible. If doing the right thing entails a signifĳicant risk of being sanctioned in the process, the “smart move” of a manager is often to do nothing. Nowhere is this truer than in international organizations, again, partly because of the cultural diversity. Administrative tribunals should stay on the straight and narrow of traditional norm fĳinding, not only because this is their brief, but also because doing otherwise would foster an attitude of inaction, which serves the noble causes poorly. To conclude, it is notable that there is almost subliminal dialogue between administrative tribunals and the stafff and management of the institutions they serve. Tribunals empathise with the organizations and obviously seek to build their jurisprudence to serve all stakeholders in the best possible fashion. Thus the goals of the organizations inform the balance that has to be struck between the rights of stafff and the managerial freedom of management. perfection, best practice, adequacy? 135

The World Bank Administrative Tribunal, in a series of recent judgments, held that managerial decisions “that are arbitrary, discriminatory, improperly motivated, carried out in violation of a fair and reasonable procedure, or lack a reasonable and observable basis, constitute an abuse of discretion”.8 Nobody can disagree with that, because these are indeed general principles of law.

8 AK to AZ v. IBRD, WBAT Decision Nos. 408 to 422 [2009], common para 41.

CHAPTER SEVEN

THE TREATMENT OF MONETARY PROBLEMS BY INTERNATIONAL ADMINISTRATIVE TRIBUNALS

Rutsel Silvestre J. Martha

A. Introduction

As noted in Russian Indemnities, “[I]t is certain, indeed, that all liability, whatever its origin, is fĳinally valued in money and transformed into obligation to pay; it all ends, or can end, in the last analysis, in a monetary debt”.1 The correctness of this assertion is evident in the practice of the tribunals, where practically every case they deal with in one way or the other involves a fĳinancial claim or relates otherwise to monetary issues (salary, emoluments, moral damages, interest, costs etc.).2 Not surprisingly, therefore, the jurisprudence of the tribunals contains various pronouncements on issues of monetary law as they relate to the employment relations between international organizations and their stafff members. Monetary obligations exist where under the primary obligation the debtor is bound to pay a fĳixed (or calculable), certain, specifĳic, or liquidated

1 Afffaire de l’indemnité russe (Russie, Turquie), 11 November 1912, XI UNRIAA, 421–447, at 440. English translation taken from the unofffĳicial English translation at http://www .pca-cpa.org/upload/fĳiles/Russian%20Award%20edit ed%20_fĳinal_.pdf (last visited on Aug 1, 2011). 2 R. Bagshaw, “Monetary remedies in public law – misdiagnosis and misprescription” 26 Legal Studies (2006): 4–25; J.Y. Gotanda “Yin and Yang: A Comparison of Monetary Remedies in International Investment and Transnational Commercial Disputes” in I. Schwenzer and L. Spagnolo (eds.) Papers from the Annual MAA Peter Schlechtriem CISG Conference: Towards Uniformity, (Eleven. International Publishing, 2010).; J.Y. Gotanda, “Assessing Damages in International Commercial Arbitration: A Comparison with Investment Treaty Disputes”, Investment Treaty Law: Current Issues III 75 (British Institute of International & Comparative Law, 2009); J.Y. Gotanda. “Awarding Interest in International Arbitration,” American Journal of International Law 90 (1996): 40.Available at: http://works .bepress.com/gotanda/14 (last visited on Aug 1, 2011); J. Dach, “Tax Aspects of Inflation: a Study in Monetary Nominalism”, American Journal of Comparative Law, Vol. 9, No. 4 (Autumn, 1960), pp. 657–667; I. Gilad, “On Linkage and Revaluation”, 15 Isr. L. Rev. 79 (1980); 65 Nw. U. L. Rev. 533 (1970–1971). 138 chapter seven sum of money.3 Where a contractual undertaking to perform otherwise than by payment of money, or where a non-contractual duty is unfulfĳilled, a sum of money may become payable and the resulting secondary obligation is therefore a fĳinancial one.4 Thus essentially a monetary obligation can involve either liquidated amounts or unliquidated amounts and have two elements in common that determine their fĳinancial substances. Firstly, the scope of the obligations is expressed in a sum of money (i.e. a monetary unit), and secondly they must be discharged with money. The standard for measuring what is owed by the debtor, thus what is in obligatione, is commonly referred to as the “money/currency of account”,5 whereas the means by which the obligation must be discharged, thus what is in solutione, is known under the denominator “money/currency of payment”.6 In many transactions the two are the same; but not always.7 Where the currency of account and the currency of payment difffer, a third element, namely the exchange rate, further determines the fĳinancial substance of the obligation. Finally, as the value of money relative to the (national and transnational) prices of goods and services evolves over time, a fourth element, namely depreciation and devaluation, impacts on the substance and mechanics of monetary obligations. It is recognized that currency problems are of importance with regard to the remuneration of international civil servants.8 The present contribution examines how the tribunals have dealt with some of the currency problems related to the determination, substance, discharge and the

3 C. Proctor (ed.) Mann on the Legal Aspect of Money, 6th edn. (Oxford University Press, 2005) 3.03; see also J.J. Chung, “Money as Simulacrum: The Legal Nature and Reality of Money”, 5 Hastings Business Law Journal (2009), 109- et seq. 4 Mann on the Legal Aspect of Money, op. cit., supra n. 3, 3.04. 5 Mann on the Legal Aspect of Money, op. cit., supra n. 3, 2.30–2.35, 9.01–9.04; Cf. A.McKnight, The Law of International Finance (Oxford University Press, 2008), 4.5.6.2. 6 Mann on the Legal Aspect of Money, op. cit., supra n. 3, 7.52–7.60; E. Krispis, Money in Private International Law, 120 Recueil des Cours (1967), 191–312, at 212–214; Cf. McKnight, ibid., 4.5.6.2. 7 See H.J. Hahn, “Agreements for the Provision of Credit and Financial Guarantees by States under Public International Law”, in: C.C.A. Voskuil, A. Parać, Z and J.A. Wade (eds), On the law of international trade: credit and guarantee fĳinancing transfer of technology (Martinus Nijhofff 1987). Series: Hague-Zagreb essays, 6, 5–31, at 7–10; of the same author, Völkerrechtliche Darlehens- und Garantieabkommen, in: K.H. Böckstiegel, et al. (eds), Law of Nations, Law of International Organisations, World’s Economic Law – Festschrift für Ignaz Seidl-Hohenveldern (Heymanns, 1988), 173–196, at 177–180; also, Le Clerc, “France – The Caisse Centrale de Cooperation Economique”, in: S.J. Rubin (ed.), Foreign Development Lending – Legal Aspects (Oceana Publications, 1971), 100–109, at 105, and G. Van Hecke, Problèmes Juridiques des Emprunts Internationaux, 2nd ed (Brill, 1964), 165–167. 8 Henry G. Schermers & Niels M. Blokker, International Institutional Law 4th rev. edn. (Martinus Nijhofff, 2003), pp. 357–358. the treatment of monetary problems 139 enforcement of monetary obligations. First, the question whether the obligation to remunerate the work of international civil servants should be qualifĳied as a monetary obligation will be addressed. Subsequently, the issue of the determination of the money of account of the entitlements of stafff members of international organizations will be dealt with, followed by a review of the principles that apply in the determination of the currency of payment. The last part considers the problems related to inflation and the attendant doctrine of nominalism.

B. The Monetary Character of International Civil Servants’ Remunerations

Long before international organizations became a fĳixed feature of international life, truck systems came under increasing criticism, and laws were passed in many jurisdictions that made it illegal for payment for labour to be made other than in lawful money, and to specify how or where employees spent their pay.9 In fact, just around the time that most of the universal international organizations were being set up, the Convention concerning the Protection of Wages10 was agreed upon, promulgating the principle that wages payable in money must be paid only in legal tender11 in order to ensure that workers are paid in a form that is readily exchangeable into goods of their choice and freely convertible into other currencies. Presently, the labour laws in nearly all countries contain provisions relating to the payment of wages in legal tender. In most countries this legal requirement is expressed in peremptory terms. As to whether a legal provision authorizing the payment of workers’ wages in a foreign currency would be compatible with the letter and the spirit of the Convention, the Committee of Experts on the Application of Conventions and Recom- mendations took the position that the term “legal tender” in this specifĳic

9 See J.A. Morgan, “Illegality of contracts for the payment of work otherwise than in current coin.—The truck system”, in: C.G. Greenstreet, A Treatise on the Law of Contracts (Frederick D. Linn & Co., 1881), pp. 434–436. 10 ILO Convention No. 95, Protection of Wages Convention, 1949. 11 Article 3: 1. Wages payable in money shall be paid only in legal tender, and payment in the form of promissory notes, vouchers or coupons, or in any other form alleged to represent legal tender, shall be prohibited.2. The competent authority may permit or prescribe the payment of wages by bank cheque or postal cheque or money order in cases in which payment in this manner is customary or is necessary because of special circumstances, or where a collective agreement or arbitration award so provides, or, where not so provided, with the consent of the worker concerned. 140 chapter seven case should not be understood as necessarily limited to the currency that is legal tender within the national defĳinition of each State, but should be deemed to cover other currencies which are generally accepted as legal tender internationally and which, subject to the applicable exchange regulations, are immediately and freely convertible into the national currency of the country concerned. Indeed, the Committee considers that there is nothing in the Convention that prevents the conclusion that, for the purposes of the payment of wages, convertible currencies are considered as legal tender.12 Not being subject to any national wage protection law or the Conven- tion, is there a principle of law that stipulates that debts out of service to international organizations are monetary obligations? It would appear that there has been no need for any of the international administrative tribunals to address this question as a matter of principle because stafff regulations of international organizations normally contain provisions that clearly state the wages of international civil servants in terms of money. It seems, therefore, incontrovertible that the organizations recognize the legal obligation to pay remuneration in money and the corresponding prohibition of the use of coupons, vouchers or similar surrogates for money as the quintessence of wage protection.13

C. Determination of the Currency of Account

1. Stafff Remuneration Once it is accepted that remuneration obligations owed to international civil servants are monetary debts, the question becomes which currency is in obligatione.14 At the level of international organizations the issue relates primarily to the freedom of choice regarding the currency in which the remuneration and benefĳits are fĳixed. This results from the fact that,

12 See on the concept of currency convertibility, A. Jayagovind, “The International Legal Regime of Currency Convertibility,” 13 Indian Journal of International Law (1973), p. 550. 13 On wage protection, see General Survey of the reports concerning the Protection of Wages Convention (No. 95) and the Protection of Wages Recommendation (No. 85), 1949, Report of the Committee of Experts on the Application of Conventions and Recommendations (articles 19, 22 and 35 of the Constitution),International Labour Conference, 91st session, 2003, Online: http://www.ilo.org/public/english/standards/relm/ ilc/ilc91/rep/iii-1b.htm, (last visited on 11 September 2010). 14 Krispis, op. cit., supra n. 6, pp. 191–312, at 212. the treatment of monetary problems 141 leaving aside the few exceptions existing at the regional level,15 the international legal order lacks its own currency and the attendant lack of the principle of legal tender, which makes it necessary for international organizations to avail themselves of national currencies.16 One of the main features of the legal tender status is mandatory acceptance;17 it is unex- tractably tied to the fĳiat money concept inherent in the universally applied State theory of money.18 Consequently, the absence of a currency with legal tender status under international law at large means the absence of a legally valid currency the debtor in payment of a debt may offfer and that a creditor must accept. As far as concerns the fĳinancial relations between the sovereign subjects of international law it was held in Diverted Cargoes that “there is no rule of international law which fetters or impedes the liberty of two contracting States to provide for satisfaction of an obligation in a currency of a third State even for the purpose of settling a debt which does not involve a legal relation between them”.19 This rule, which is rooted in the freedom of action of States and the principle of sovereign equality, is not easily transferable to the relations between international organizations and their stafff members. What then is the principle or principles that inform the determination of the currency of account of international civil servants remuneration? The answer to this question is likely to be influenced by one’s view on the nature of the employment relationship of the international civil servant; i.e. whether it is considered statutory or contractual.20 Evidently, if the relationship were considered

15 Arrangements that replace independent national currencies (regional currency areas, currency boards, offfĳicial or unofffĳicial use of a foreign currency) have become increasingly popular. See Regional currency areas and the use of foreign currencies. BIS Papers No 17, May 2003, Online: http://www.bis.org/publ/bppdf/bispap17.htm. (last visited 1 August 2011). 16 R. Martha, “International Organisations and the Global Financial Crises: The Status of their Assets in Insolvency and Forced Liquidation Proceedings”, 6 International Organisations Law Review (2009), 117–154, at 121; Mann, “Money in Public International Law”, 96 Recueil des Cours (1959), 7–127, at 37. 17 A. Nussbaum, “Basic Monetary Conceptions in Law”, 35 Michigan Law Review (1936– 1937), pp. 865–907, at 893. 18 i.e. a money whose usefulness results, not from any intrinsic value or guarantee that it can be converted into gold or another currency, but only from a government’s order (fĳiat) that it must be accepted as a means of payment. See G.F. Knapp, “The State Theory of Money”, 35 Economic Journal (No. 138)(1925), pp. 251–255. 19 Diverted Cargoes (Greece v. United Kingdom of Great Britain and Northern Ireland), Award of 10 June 1955, XII UNRIAA, 65–81 at 73. English translation taken from 22 ILR, 828. 20 For a discussion, see P. Weil, “La nature du lien de fonction publique dans les organisations internationales”, 67 Revue générale de droit international public (1963), pp. 273–296, C.F. Amerasinghe, Principles of the Institutional Law of International Organisations, 142 chapter seven to be of a contractual nature, the principle of party autonomy as stated in Diverted Cargoes would prevail. On the other hand, if it were characterised as statutory, then the employing organization would have a freedom of choice to determine the currency of account. As with many things, here also the truth seems to reside somewhere in the middle; it cannot be said that the employment relations of international civil servants is either exclusively contractual or statutory. Rather, it is a mix of contractual and statutory elements, mainly induced by the need to make individual distinctions where called for, while preserving uniformity as a function of the principle of equality of treatment and administrative efffĳiciency.21 Still, this analysis does not by itself provide the answer to the question concerning the determination of the currency of account of the remuneration. It simply shifts the question to a diffferent level where it has to be determined whether the issue of currency of account pertains to the statutory realm of the relationship or to its contractual realm.

1.1. Contractual Elements It does not seem that the tribunals have established a common approach regarding the determination of the currency of account of international civil servant’s salary and benefĳits. The most principled approach in this respect is to be found in the jurisprudence of the European Court of Justice (ECJ), which, basing itself on the nature of the legal link between an international civil servant and the employing organization, has been clear in accepting the principle of freedom of choice of international organization. It has taken the position that as the legal link between an offfĳicial and the administration is based upon the stafff regulations and not upon a contract, an offfĳicial cannot in any case claim a vested contractual right concerning issues of currency unless the facts giving rise to that right arose under a particular set of stafff regulations prior to the amendment decided upon by the Community authority.22 The OAS Administrative Tribunal (OASAT), on the other hand, suggests that a distinction should be made

2nd edn. (Cambridge University Press, 2005), pp. 280–282, same author, The Law of the International Civil Service, 2nd edn. (Oxford University Press, 1994), pp. 82–99, C.W. Jenks, The Proper Law of International Organisations (Oceana Publications, 1962), pp. 63–69, and F. Seyerted, Common Law of International Organisations (Martinus Nijhofff, 2008), pp. 151–159. 21 Cf. UNAT Judgment No. 19 (1953), Kaplan, Amerasinghe, Principles of the Institutional Law of International Organisations, op. cit., supra n. 20, p.282. 22 Judgment of 19 March 1975. Gillet / Commission (28–74, ECR 1975 p. 00463). the treatment of monetary problems 143 between contract employees and stafff. This can be inferred from the OASAT judgment rendered in a case involving a group of persons who were originally employed under local contracts and were subsequently appointed to be permanent stafff members of the OAS, which coincided with the beginning of the system of salary parity with the UN. Their salary was set in dollars and payable in national currency. In applying the system of parity between its stafff members and those of the UN, the OAS had to change the system used to calculate and pay salaries. Initially there was no reduction in salary, but soon replacement contracts were received under which the system of remuneration was changed and the salary was set as well as paid in national currency. Asked whether the unilateral substitution of the local currency for the dollar as the currency of account was permitted, OASAT answered that: Juridically speaking, to what extent was and is this change legitimate? The legitimacy of the change results from its general nature and from the individual acceptance by each of the Complainants. … In this particular case there was no unilateral or bilateral amendment of the contract, but rather a true novation, whereby the obligations arising under the original system were replaced by new and reciprocal obligations difffering from the previous ones. The animus novandi is obvious, for the measure was not an act strictly limited to the Complainants but a measure of a general nature resulting from the claims of the OAS stafff. Furthermore, the Complainants accepted it. It would not be admissible to accept the novation with respect to its functional conditions (i.e., the change from contract employees to permanent stafff members) while at the same time maintaining the previous system of payment. … Consequently, when the Complainants accepted the new system resulting from the parity plan, the previous legal situation no longer held.23 It seems thus that, by virtue of its reliance on the concept of novation, OASAT efffectively considers that the determination of the currency of account is a matter of party autonomy, given that novation is the substitution of a new contract for an old one; the new agreement extinguishes the rights and obligations that were in efffect under the old agreement. This means thus that by accepting the system in force by the organization the stafff member accepts that the former elects the unit of account for the remuneration. Ostensibly, adherence to the contractual principle is also to be found in a 2008 ILOAT judgment in a case of a complaint of an employee

23 Braulio O. Alaniz, Elbio Arias, Gualberto R. Cuenca, Lylian Millán, and María Emilia López Bartibás v. Secretary General of the Organisation of American States, OASAT Judgment No. 13 (1975), consideration 5–6. 144 chapter seven whose salary during his initial employment at the UPU was calculated and paid in US$, but was later paid in Swiss francs after conversion at a rate that the complainant challenged in vain with the Director General. Although the case essentially concerned a dispute about exchange rate, ILOAT’s ruling bears on the matter of the unit of account of salary obligations of international organizations: it is hard to see what might prohibit an international organization and an expert entering into a fĳixed-term contract of employment from agreeing that the expert’s salary should be paid – irrespective of his or her duty station – in the currency of the State where the organization has its headquarters, converted into another currency at a rate predetermined in an objective and reliable manner. This solution can prima facie be justifĳied by the need to safeguard interests which are worthy of protection, for example by preventing sudden fluctuations in the exchange rate giving either party an undue advantage or injuring either of them.24 The suggestion here is that, provided that no fundamental principles of international civil service law are infringed, the party autonomy prevails in matters of the currency of account of salary obligations. Still, it must be assumed that the freedom of choice is not without any limitation. It can be inferred paragraph 9 of the foregoing judgment that the principle of equal treatment could be a ground for an exception, but that it is incumbent upon the complainant to prove that – as a consequence of the choice in the money of account – stafff doing similar work as that assigned to him received or would systematically receive better remuneration than he did and that this diffference in treatment would stem from the change in the remuneration method agreed between the organization and himself. An important fact in this case was that the complainant did not have the status of an offfĳicial of the International Bureau at any time during his employment relationship with the UPU and was stationed in Zimbabwe. Against this background, the holding based on the principle of party autonomy in respect of the currency of account can easily be understood.

1.2. Statutory Elements Whether the principle of party autonomy that ILOAT embraced in the forgoing judgment in respect of a non-stafff contract also applies to stafff remunerationstrictu sensu is doubtful. This doubt is prompted by

24 ILOAT Judgment No. 2713 (2008), paragraph 8. the treatment of monetary problems 145

Argos and a string of subsequent judgments, which hold that an international organization is free to choose a methodology, system or standard of reference for determining salary adjustments for its stafff provided that it meets all other principles of international civil service law.25 For present purposes it is also important to note that ILOAT further requires that the chosen methodology ensure that the results are “stable, foreseeable and clearly understood”.26 The resulting image is that within these parameters, the freedom of choice entails also the freedom to determine unilaterally the currency of account and currency of payment of stafff remuneration. However, as mentioned in ILOAT Judgment 2713, the principle of equality of treatment impinges also on the determination of the currency of account of stafff compensation. Obviously, such equality of treatment can most efffĳiciently be achieved if organizations employ a common denominator for determining stafff compensation. As a result, although the practices of the various international organizations diverge, they seem to be driven by the aims of achieving stability, predictability, transparency and equal treatment. Thus, in the case of professional salaries and pensions within the common system, because of the adherence to the Noblemaire principle and the use of the US federal civil service as the comparator, salaries are expressed in US$ irrespective of whether the dollar is legal tender at the duty station concerned. The remuneration of the General Service stafff follows the Flemming principle, which requires the organizations applying the common system to offfer locally recruited stafff conditions of service comparable to the best prevailing conditions in force among other employers in the locality, and expressed in the local currency. In other words, the UN system uses as a point of departure a distinction between employees who have international mobility and local employees.

25 ILOAT Judgment 1682 (Argos and others), consideration 6; confĳirmed in ILOAT Judgments 1821 (Allaert and Warmels) consideration 6, 1912 (Berthet (No. 2), Lampinen, Leberman and Schechinger0), consideration 13, and 1913 (Dauvergne, Gemünd, Harper, Lampinen (No. 2), Schechinger (No. 2), Stösser and van der Zandt), consideration 11. 26 ILOAT Judgments 1265 (Berlioz and others), consideration 27 and 1419 (in re Meylan and others), consideration 30. Additionally, the ILOAT case law also holds that where the methodology refers to an external standard but grants discretion to the governing body to depart from that standard, the organisation has a duty to state proper reasons for such departure (Judgment 1682, consideration 6). Moreover, while the necessity of saving money may be one valid factor to be considered in adjusting salaries provided the method adopted is objective, stable and foreseeable (Judgment 1329 (Ball and Borghini) consideration 21), the mere desire to save money at the stafff’s expense is not by itself a valid reason for depart- ing from an established standard of reference (Judgments 1682 in 7 and 990 (Cuvillier No. 3), consideration 6). 146 chapter seven

As to the fĳirst category, because of the nature of their activities, their salaries are calculated and paid in a currency of international signifĳicance, i.e. in dollars. For the second category, however, the point of reference is the local labour market, and consequently the salaries are measured and paid in national currency.27 At the same time the general service stafff members that are participants in the UNJSPF partake on the same conditions and subject to the same regulations as the professional stafff. As a consequence, whilst the gross salary is established in local currency, the pensionable remuneration and benefĳits are fĳixed in US$. Other organizations express the salaries and benefĳits of their stafff in the currency of the headquarters’ State28 or in a currency that is widely used as a reserve asset. The freedom of choice in the determination of the currency of account for stafff remuneration accorded to international organizations is not without its problems. The question that arises in that context is whether the tribunals would be willing to undertake corrective measures in that regard. Theoretically, the answer to this question appears to be afffĳirmative. As pointed out in Deville: [M]ost contracts are entered into because both parties think it is to their economic advantage to do so. Where there is great disparity in bargaining power, as is the case here, the law will impose constraints upon the more powerful. In the international civil service that is one of the functions of the stafff rules, and where these are inadequate, the Tribunal will intervene to redress the balance through the application of general principles of international civil service law.29 It has already been mentioned above that one of the conditions found in ILOAT’s jurisprudence is that the methodologies adopted by international organizations for setting and adjusting the remuneration of the stafff, must enable results to be obtained that are stable, foreseeable and clearly understood.30 This test can be deemed to entail the preparedness to review a method or practice that does not meet these criteria. UNAT’s Judgment No. 1279 (2005) – despite the fact that the application was dismissed on

27 Although the organisations using this system neither pay nor quote the salaries of local employees in dollars, there is a salary schedule table that is used exclusively for internal purposes, i.e. for accounting purposes, to convert salaries paid in national currencies to values calculated in dollars. This is done to permit the organisation’s accounts to be kept in dollars. 28 This is particularly the case for the Washington – based institutions and the Europe – based institutions pertaining to the so-called Coordinated Organizations. 29 ILOAT Judgment 2097, Deville and others/Gasser (2002). 30 ILOAT Judgment 1912, Berthet (No. 2), Lampinen, Leberman and Schechinger (2000). the treatment of monetary problems 147 preliminary grounds (time-barred) – reveals inequities that might arise when the principle of freedom of choice is applied without consideration,31 which may call for corrective actions of an international administrative tribunal. The case involved a former international general service (IGS) stafff member of the UN Economic Commission for Africa (ECA) in Ethiopia, who served under successive fĳixed-term contracts until her retirement. Although her salary was stated in her initial letter of appointment in US$, upon her entry into service her salary was calculated on the basis of the local currency. As from 1981 the denomination of her salary was stated as Ethiopian Birr. Nonetheless, until 1993, she was paid 30% of her salary in Ethiopian Birr and the remaining 70% in a diffferent currency. Indeed, it was common practice at ECA for IGS members to have the option of converting up to 80% of their salaries into any single other currency of their choice, frequently US$, at an exchange rate fĳixed by the ECA, which remained stable until October 1992. Thereafter the Ethiopian Birr began to devalue signifĳicantly. In 1990, the post adjustment and non- resident allowance paid to IGS stafff members were cancelled and ceased to be paid out leading to a dramatic decline in the applicant’s earnings. She requested administrative review of (i) the alleged change of her salary scale to that of locally recruited stafff members, (ii) the payment of her salary in Ethiopian Birr rather than in US$, and, (iii) the fact that in 1990 the payment of post adjustment and non-resident allowance was discontinued. She considered that the UN breached its contractual obligations towards her by unilaterally changing her conditions of service from those of an IGS stafff member to those of a local recruit.32 The JAB noted that, before the applicant and another stafff member joined ECA as IGS stafff in 1975 and 1979 respectively, they received offfers of employment that quoted their salaries in US$. Their initial Letters of Appointment also referred to their salaries only in terms of US$. However, the salaries that they subsequently received were denominated and paid in Ethiopian Birrs. The JAB also noted the anomaly in the situation. It observed that while it appeared to be the standard practice to pay the international general service stafff

31 “8. Consistent precedent has it that an organisation is ordinarily free to determine the pay of its stafff, provided that it respects certain requirements arising from general principles of international civil service law (see Judgments 1912, under 13, and 1913, under 11). Furthermore, if the organisation has a rule granting certain rights to stafff members in relation to their level of salary, it may not depart from that rule in individual decisions without amending it in accordance with the prescribed procedure”. ILOAT Judgment 2081, Flösser (No. 6) and Serrano (2002). 32 UNAT Judgment 1279. 148 chapter seven such as the appellants their salaries in Ethiopian Birrs, though they were expressed in US$, the panel was surprised that administration had failed to spell out this unusual feature of the salary payment in either the offfers of employment or the letters of appointment. It was not clear to the Board what explanation, if any, the institution had subsequently given to the interested parties about the discrepancy between its promise to pay in US$ and its actual payment in Ethiopian Birrs. Unfortunately, as the case was time-barred, this important question went unanswered.33 Disturbing as it may appear, the fact that, in the foregoing case, the salary was fĳixed and paid in a diffferent currency the one stated in the letter of appointment can probably be explained by the Fleming-principle, as adopted in the UN stafff regulations as well as those of the organizations that adhere to the common system.34 Still, it remains questionable whether the freedom of choice of an international organization licenses such an organization to completely ignore a contractual promise made to fĳix the remuneration and pay a given stafff member in a particular currency. However, it must be conceded that another outcome would entail that no common denominator applies and that the required equality of treatment cannot be guaranteed. Moreover, since the appointment letters of international civil servants invariably incorporate the stafff regulations of the employing organizations, including the power of the organization to change those regulations, international administrative tribunals do not fĳind it necessary to examine that question. As confĳirmed inLindsey , incorporation of the stafff regulations of an organization in the letter of appointment entails that the currency of account can be altered unilaterally by the organization through a revision of its stafff regulations. In the aforementioned case ITU assimilated the conditions of service, salaries, allowances and pensions of ITU stafff members – which used to be measured and paid in Swiss francs – to those of the United Nations common system. Stafff members received a letter stating that in future their salary would be expressed in US$ and that the Swiss franc equivalent might therefore vary according to the exchange rate. The relevant fĳinancial rules nevertheless remained unchanged, and the ITU continued to use the Swiss franc for purposes of accounting. One of the issues before the tribunal was thus

33 UNAT Judgment 1279 (2005). 34 Report of the Committee of Experts on Salary, Allowance and Leave Systems (Offfĳicial Records of the General Assembly, Fourth Session, Fifth Committee, annex, agenda item 39, document A/C.5/331 and Corr.1), para. 71. the treatment of monetary problems 149 essentially whether the organization could unilaterally substitute the currency of account of stafff remuneration for another. ILOAT – albeit ambivalently – condoned the organization’s unilateral substitution of US$ for Swiss francs as the currency of account: Mr. Lindsey’s contract of appointment, dated 23 December 1949, while specifying that his annual salary would be 17,000 Swiss francs as from 1 January 1950, also stated that his “duties and rights as an offfĳicial of the International Telecommunication Union are laid down in the Stafff Regulations and in the Rules of the Stafff Provident Fund”. It thus appears that from the time of his appointment the complainant’s position under the regulations and rules was liable in principle to be changed by the competent bodies of the ITU; only if the Union had upset the whole structure of the complainant’s contract or derogated from the basic conditions which might have afffected his decision to accept appointment could its action have given rise to the award of compensation. Even if it were granted that the whole structure of the contract had been upset in the present case, he could not properly rely on this argument in support of his claim since he has agreed to the payment of his salary in dollars since 1960 without protest.35 It appears from this holding that ILOAT did not fĳind it sufffĳicient to rely exclusively on the freedom of choice of the organization, for it seems to anchor its decision on a second ground, namely, acquiescence by the applicant. This ambivalence is unfortunate and perhaps unnecessary. As previously noted, given the requirement of equal treatment, it is doubtful whether an international organization would be able to validly enter into individual employment contracts that are not based on a common denominator.

2. Unliquidated Amounts In the case of unliquidated amounts, particularly damages under international law, the matter of determining the money of account, i.e. what is in obligatione, is much more complex than in cases of liquidated amounts.36 The distinction between the concepts of “valuation” and “compensation”37 is essential in this context. The former concept, i.e. “valuation”, describes the process of determining the economic value of an object; it is an objective process carried out by reference to certain accountancy techniques.

35 ILOAT Judgment 209, Lindsey No 2 (1973). 36 Cf. B Nolde, “La monnaie en droit international public”, 27 Receuil des Cours (1929), p. 247–395, at 270–271. 37 See for a discussion of this distinction: E Lauterpacht, Aspects of the Administration of Justice (Grotius Publications, 1991), p. 190–191. 150 chapter seven

The concept of “compensation” on the other hand refers to a number of possible processes that may follow a valuation, which in the case of secondary obligations under international law, entails the determination of the quantum of the obligation due by the party liable for a non-delictual act or responsible for the breach of a primary obligation. Whereas valuation is a relatively objective process, compensation on the other hand, can be influenced by any number of external factors. This explains why there is no absolute requirement that the value and the compensation are the same.38 Consequently, the currency for the valuation of the damage need not be the same as the currency in which the compensation is expressed.39

2.1. Compensation for Injurious Non-Delictual Acts It has been rightly pointed out that the issue of the determination of currency of account applies equally to situations which have nothing to do with international delinquencies.40 As regards other non-delictual sums, ILOAT seems willing to award costs in the currency requested by the applicant.41 In the absence of such request the tribunal for a long time tended to set the costs in Swiss francs, although not consistently.42 However, recently, a practice seems to be emerging whereby costs are awarded in euros. There have also been cases where requests for award of costs in other currencies have been granted,43 and in the absence of a request for a specifĳic currency, sometimes the choice seems to be linked to where the defendant organization is located. In cases of organizations located outside Europe, there seems to be a preference to awards costs in US$.44 Outside the area of costs, there are not many instances where the international administrative tribunals directly addressed the issue of the unit of account to be applied in cases of compensation for injurious non- delictual acts. This may be due to the fact that the rules and regulations

38 E Lauterpacht, Aspects of the Administration of Justice (Cambridge, Grotius Publications, 1991), p. 191. 39 See: Administration of Lighthouses (France v Greece) [1956], XII UNRIAA, p. 155, at 247–248; Cf. C. Gray, Judicial Remedies in International Law (Oxford, Clarendon Press, 1996), p. 41. 40 J.H.W. Verzijl, International Law in Historical Perspective, Volume VI (Leiden, A.W. Sijthofff,1973), p. 769. 41 E.g, ILOAT Judgment 2950 (2010). 42 E.g. ILOAT Judgment 831, Abdlleh and Salah (1987). 43 E.g. ILOAT Judgment 1223, Kirsetter 2 (1993); ILOAT Judgment 1403, Tejera Hernandez (1995). 44 E.g. ILOAT Judgment 1854, Gonzalez Lira (1999); ILOAT Judgment 570, Acosta Andres, Azola Blanco and Veliz Garcia (No. 2) (1983). the treatment of monetary problems 151 contain clear directives. That is for instance the case in the areas of service-incurred injury, reimbursement of costs, as well as tax reimbursement. Sharshara 2 decided by UNAT is therefore perhaps the only case that contains some pronouncements that – albeit with some imagination – could be brought under the above heading. The matter was complicated because, as UNAT previously ruled in Sharshara 1,45 the organization was obliged to pay a specifĳied amount in US$ on account of the termination that followed the disability of the applicant, but was not specifĳic about the amount due for the service-incurred injury. Unlike the termination allowance, the applicable rule referred to the law at the duty station for the determination of the amount due for the service-incurred injury, which yielded an amount in Syrian pounds that had to be deducted from the sum owed as termination benefĳits. The issue was confused because the applicant phrased the claim as follows: “payment of the termination ben- efĳits at the UN Operational rate of exchange available at the date of the accident”. This must have misled UNAT. What the applicant was actually claiming was that two amounts were due, one in US$ and the other in Syrian pounds to be converted into US$ at the exchange rate on the date of the accident. In the fĳirst judgment only one amount was awarded, which was fĳixed and ordered to be paid in US$. In passing, UNAT stated that the applicable exchange rate was the date of the separation, and not, as claimed by the applicant, the date of the injury, but failed to explain that this applied only to the compensation for the service-incurred injury. Similarly, in articulating the amount of the award UNAT did not clarify whether it was the total sum of what was due after the subtraction of what was owed as compensation from the separation benefĳits. Subsequently, given that in case of such subtraction, the unfavourable US$-Syrian pound exchange rate would signifĳicantly reduce amount in US$ awarded in Shashara 1, the applicant rejected the compensation for the service- incurred injury. The organization disagreed and this led to Shashara 2, in which UNAT found that the applicant could not reject the compensation for the service incurred injury in the hope of obtaining a larger termination indemnity, based on a more favourable US$-Syrian pound exchange rate.46 Thus the balance was due in US$, but after subtracting two amounts, each of which was valuated in a diffferent currency.

45 UNAT Judgment 768, Sharshara 1 (1996). 46 UNAT Judgment 911, Sharsharah 2 (1998). 152 chapter seven

2.2. Delictual Liability 2.2.1. Material Damages In the case of compensation for material damages – particularly in unlawful dismissal cases and wrongful denial of pay – the practice of the tribunals invariably state that this may be properly assessed by determining the amount that the prevailing party would have received in salaries and/or emoluments between the date of the commission of the wrongful act and the date of payment or any other date fĳixed by the tribunal.47 Implicit in this method of valuation is that the currency of account of the primary obligation, i.e. the obligation to pay salary and benefĳits, shall be used to calculate the compensation. This approach is not necessarily followed in all cases. In Abdulhadi UNAT considered that, in order to make good the losses by the applicant that resulted from his wrongful termination, it was appropriate to substitute the US$ for Syrian currency as the currency of account: As to the concept of the value of the salary at the time of separation, the Tribunal considers that, in deciding on the alternative to reinstatement, its intention was to restore the Applicant’s career in fĳinancial terms. It follows that the operative part of the judgement relating to the value of the salary at the time of separation cannot be interpreted in a manner likely to cause fĳinancial loss to the Applicant, since this would be a contradiction in terms. Taking into account the continuous devaluation of the Syrian currency, the Tribunal interprets the concept of the value of the salary at the time of separation as requiring that the compensation should be calculated in a standard currency whose par value varies little: the United States dollar.48 It will be noted that tribunals do not always articulate compensatory monetary obligations accurately, which sometimes leads to misunder- standings regarding the meaning of their judgments. For instance, in 1996 UNAT was faced with a situation in which it had to efffectively revise its previous judgment, although it formally rejected the request for revision. Previously, in Sa’adiyeh 1 UNAT ordered the UNWRA to pay the applicant his net base salary, at the rate on the date of his separation, from the date of his separation until his re-appointment.49 Like in the Sharshara cases discussed above, the applicant, who was locally hired, understood this to

47 Cf. C.F. Amerasinghe, The Law of the International Civil Service, Vol. I (Oxford, Clarendon Press, 1994), p. 471. 48 UNAT Judgment 972, Abdulhadi (2000). 49 UNAT Judgment 648, Sa’adiyeh 1 (1994). the treatment of monetary problems 153 imply that the judgment should be enforced by payment of compensation in US dollars at the rate available at the date of the applicant’s separation, including due interest, and asked the Tribunal to interpret said judgment in that sense. This interpretation was rejected by UNAT, which – without clarifying the phrase “at the rate on the date of his separation” – noted “that the above-mentioned terms of paragraph XXII of Judgment No. 648 should not be interpreted as entitling the Applicant to the payment of compensation in a currency other than that in which his salary was paid, i.e., in this case, the Syrian pound”.50 This of course makes sense, except that the phrase “at the rate on the date of his separation”, which is obviously redundant, confuses the matter by suggesting that somewhere a currency conversion needs to be made. 2.2.2. Moral Damages Whilst the criteria for the valuation of material damages seems to be quite straightforward, it remains unclear how the valuation principles mentioned above are translated in the practice of the international administrative tribunals with regard to non-material damages for delictual liability. Moral injury being an abstraction, there is ample scope for subjectivity,51 leading to a wide variety of practice in respect of the currency of account for expressing the amount of moral damages. Especially, ILOAT seems to apply undisclosed criteria to determine the unit of account for the moral damages that it awards. For example, in Judgment 2943 (2010) it ignored applicant’s request for award of moral damages in euros and awarded a sum in US$ without giving any reason for its decision.52 At the same session ILOAT honoured a request for moral damages that did not specify any amount or the currency in which it had to be fĳixed. ILOAT decided sua sponte to fĳix the amount in euros.53 In some cases an objective criterion can be discerned, such as in Boivin (Nos. 3 and 4),54 where the complainant requested to be compensated in Luxembourg francs for material damages and moral damages. At the time of the judgment the requested currency no longer existed and was replaced by the euro. It awarded amounts for moral damages and direct material damages, an amount equivalent to what he would have earned up until the end of his initial contract had it

50 UNAT Judgment 751, Sa’adiyeh 2 (1996). 51 C.F. Amerasinghe, The Law of International Civil Service, op. cit., supra n 47, p. 451. 52 ILOAT Judgment 2943 (2010). 53 ILOAT Judgment 2946 (2010). 54 ILOAT Judgment 2034 (2001); Also, ILOAT Judgment 1899, Bovin 2 (2000); ILOAT Judgment 2027, Thiele (2001); ILOAT Judgment 2005, Van der Kraan (2001). 154 chapter seven not been cancelled, and an amount in compensation for the injury caused by the loss of a legitimate expectation of continued employment. As it considered the exact amount of such redress impossible to determine, in accordance with its case law the tribunal awarded the complainant by way of damages under all heads of injury, a euro amount set ex aequo et bono.55 Thus there was equivalence here between the currency that was requested and the currency of the award. While true in many cases, as noted before, this is not always the case without there being obvious principles leading to the one or the other outcome. For instance, in one case moral damage was requested and awarded in Swiss francs,56 whereas in another case moral damage was requested in Belgian francs but awarded in US$.57

3. Substitution In so far as the employment relationship is regarded as statutory it is clear that the power to determine the currency of account also entails the power to unilaterally substitute a new unit of account for the initial one, as was the case when the euro was introduced in the EU and the coordinated organizations. In the settings where to some degree the contractual dimension is deemed to play a role, the issue of substitution becomes less easy to explain. The Tong case illustrates this point. Against the backdrop of the exceptional circumstances occurring in Cambodia, the applicant in that case claimed that the exchange rate used by UNDP in computing his termination benefĳits was inappropriate. As a local employee, the applicant was entitled to payment of salary in local currency and had no right to any payment in dollars. However, the Cambodian riel, which was the currency of account, was depreciating rapidly in the last years prior to the closure of the UNDP offfĳice in Phnom Penh, to the point that the exchange rate used by UNDP in April 1975 was 1650 riels for one U.S. dollar. With the installation of the new authorities in Phnom Penh on 17 April 1975, the riel was efffectively demonetized without any other currency to replace it. There UNDP decided to pay him in U.S. dollars and used an exchange rate

55 It appears from ICJ’s opinion in the UNESCO case, that international administrative tribunals, have the discretion to award compensation on an ex aequo et bono basis and that in that regard they have considerable liberty in setting the amount of compensation, Judgments of the Administrative Tribunal of the ILO upon the Complaints made against the UNESCO, Advisory Opinion of October 23rd, 1956, ICJ Reports 1956, p. 77 at 100. 56 ILOAT Judgment 2982 (2011); ILOAT Judgment 2975 (2011). 57 ILOAT Judgment 542 (1982). the treatment of monetary problems 155 of 1650 riels to the dollar, the rate applicable to the fĳinal month of the applicant’s employment in Phnom Pehn. This means that the organization treated the issue as merely a conversion issue, rather than as one of substitution. The applicant argued that in the absence of a realistic rate of exchange for the riel, it would be appropriate to calculate the entitlements in terms of equity, based on the quantum of goods and services a stafff member of his rank and seniority could expect to purchase, by reference to the percentage change in the post adjustment index used by the UNDP for international professional salaries at the same period. Given that the Flemming-principle provides that the conditions of service for locally recruited stafff should reflect the best prevailing conditions found locally for similar work and that consequently, the local salaries are established on the basis of salary surveys which identify the best prevailing conditions, the approach argued by the applicant was indeed not farfetched under the circumstances. Nevertheless, and despite the undeniable arbitrariness in the method used by the UNDP, UNAT found no fault as it considered that, given the applicant’s status as a local employee, it was unable to fĳind a legal basis for overruling the decision of the Secretary-General not to accept the recommendation of the JAB that he should receive his benefĳits in dollars on the basis of a comparison with the salary and allowances of an internationally recruited stafff member at a level equivalent to that of the applicant at the time of his termination.58 Obviously, this reasoning misses the point. The argument of the applicant was not to be treated as internationally recruited stafff members, but that since the organization used local indicators to determine post adjustment index, it could use the same indicators to determine the amount due upon having substituted the dollar for the riels.

D. The Currency of Payment

It is theoretically possible that the currency of account serves only as the standard of value, whereas another currency is determined to be the means of payment. This is true for both liquidated and unliquidated amounts.59 Therefore, it does not come as a surprise that on various occasions tribunals have grappled with this issue.

58 UNAT Judgment 278, Tong (1981). 59 Cf. Brownlie, I, System of the Law of Nations – State Responsibility Part 1 (Oxford University Press, 1983), p. 233–234. 156 chapter seven

1. Liquidated Amounts Until the introduction of the euro, EU stafff regulations provided that offfĳi- cials’ remuneration shall be expressed in Belgian francs but that it shall be paid in the currency of the country in which the offfĳicials perform their duties.60 In such cases, problems with regard to the determination of the currency of payment hardly arise. That is, however, not the case in the universal organizations. Due to their operations in many diffferent currency zones and the complex remuneration practices employed by some of these institutions, they are more likely to be involved with controversies about the currency of payment. For instance, in the common system there used to be a rule that a repatriation grant is payable in the currency of a stafff member’s home country on separation to internationally recruited stafff in respect of periods of service outside the home country. The amount of the grant is calculated by reference to the base/floor salary scale and varies according to family status and length of service outside the home country. This system places the onus of proof on the repatriating stafff member as regards the currency in which it claims the repatriation payment. In Soltes a former stafff member who served in Myanmar sued and invoked said rule in order to have his repatriation grant paid in US$, in British pounds, or in Kuwaiti dinars, rather than in the currency of his home country, the former Czech and Slovak Republic. As the applicant was not able to prove that he had established residence in any of the countries whose currency he asked to be paid in, taking a strict statutory approach to the legal bases for the entitlement, UNAT rejected the request.61 Another example derives from the optional currency facilities frequently offfered by the global organizations to their stafff. Al-Jassani involves the application of a special form of facultas alternativa often found in the stafff rules of international organizations that employ stafff in countries having so-called inconvertible currencies. The applicant in that case, a locally recruited UNDP stafff member based in Baghdad, obtained salary advances in dollars because of his intention to travel outside Iraq during his month-long annual leave. However, he did not stay outside Iraq for the whole period, and the organization demanded a refund of the sum in excess of the period outside Iraq. As the applicant refused to comply with this order, the amount was deducted from the bonuses and salary supplements, which he was due to receive. He contested this deduction

60 Regulation 3085/78 Offfĳicial Journal L 369, p. 6. 61 UNAT Judgment 646, Soltes (1994). the treatment of monetary problems 157 before UNAT. One is indeed justifĳied in wondering what interest would be served in demanding that a salary or portion thereof that has already been paid out in a diffferent currency than the currency of account is returned to the organization. Unfortunately, UNAT’s judgment in that case is unclear as to what actually transpired in fĳinancial terms. Apparently, the regulation in question stipulated that locally recruited stafff on travel outside the duty station were entitled to receive one-time their salary, which is otherwise expressed and payable in local currency, in convertible currency (in casu US$) up to a maximum of two months’ salary. The amount converted may only be paid for the period that the stafff member actually takes annual leave outside Iraq. Although the narration of the facts is silent on this point, it would appear that the amount to be received in convertible currency is the equivalent in foreign currency of the amount calculated in local currency. If this is indeed the case, then what actually happens is that salary that is otherwise fĳixed and paid in local currency could once be calculated in local currency but paid out in foreign currency. This means that under such transaction, there is no residual monetary claim of the employee on the employer or the reverse, which renders it unclear on what ground the UNDP deemed that it was entitled to be refunded, unless the advance is to be regarded as a conditional swap transaction. For, deducting the dollar amount from the payments due to the stafff member, without crediting him with the equivalent amount in local currency would imply a shortfall in the discharge of the salary obligation of the organization. Unfortunately, while ruling in favour of the UNDP, UNAT did not clarify the nature of the transaction. In fact, it employed a reasoning which, from the point of view of the monetary conceptions set forth above, does not really clarify matters: The payment is a one-time measure for one leave period irrespective of duration up to the maximum allowable amount and not for several non- consecutive periods of leave. The provision at issue in this case is … based on elementary logic. As Iraqi currency is not accepted outside Iraq, UNDP facilitates its stafff members’ sojourns abroad by granting them advances in convertible currency (and thus in dollars) for the purposes of their stay abroad and for the duration of such stays. It would be pointless for payments in dollars to be granted to stafff members who remain in Iraq during their leaves or who spend only a portion of such leaves outside the country. If such were the case, a stafff member would need to spend only a single day outside Iraq in order to receive one or two months’ salary in dollars.62

62 UNAT Judgment. 956 (Al-Jassani) (2000). 158 chapter seven

In the absence of a clearer description of the facts of the case, one is left with the impression that UNAT limited its analysis to the narrow question of payment in foreign currency, rather than verifying whether on balance the stafff member received in foreign currency than he would have otherwise received if he were paid in local currency. Only if that question is answered afffĳirmatively would UNDP’s claim to refund would be justifĳied. UNAT is not the only tribunal that struggled with the issue of currency of payment. In Watson ILOAT confĳirmed that when an amount is payable in a diffferent currency than the currency of account, that is not supposed to lead to the payment of an amount that is larger than what is owed. The complainant was a former stafff member of the Eurocontrol, who upon retirement exercised his right to payment of his pension in Belgian francs, the currency of the host country of Eurocontrol headquarters, and not in sterling, the currency of country where he took residence. At fĳirst sight it appears that there should be no problem because the currency of account and the currency of payment was Belgian francs. However, the relevant rules did not involve a straightforward payment of the nominal amount due. Instead the amount was supposed to be adjusted by applying a weighing factor that discounted purchasing power and taxation in the country of residence. This adjustment would produce an amount in the currency of the country of residence and be payable there. In these cases the amount in the currency of the country of residence resulting from the application of the weighing factor is deemed to be what is owed; in other words the currency of account is the currency of the country of residence. Normally no issue would arise because the pension would be paid in the same currency. However, when as in the instance, a retiree chooses the Belgian franc as the currency payment, the said amount would have to be converted. The mistake that had occurred in respect of the claimant was that the administration considered that the choice implied that the currency of account was the Belgian franc, even though he benefĳitted from the weighting factor. The administration used the weighing factor to produce an amount in Belgian francs, by applying the current exchange rate used for weighting purposes instead of the fĳixed exchange rate used to calculate the amounts paid in the currency of residence. This amount was then converted into sterling and subsequently converted back at the current exchange rate into Belgian francs for the purpose of payment. The result was a pension 60% higher than the salary of active offfĳicials in his country of residence. When the retiree was informed that the arrangement followed so far had been mistaken and had to be changed, the treatment of monetary problems 159 he objected. Relying on the object and purpose of the rules63 ILOAT rejected this: The complainant, who resides in England and has elected under the above article to have his pension paid in Belgian francs, claims that he is entitled to have the Belgian francs, in the amount as calculated with the benefĳit of the weighting factor; if they are to be converted into sterling, he claims that they must be converted at the current rate of about 87 francs to the £ instead of at the IMF 1965 rate of 140 francs to the £. By this means his pension would, when converted into sterling, be about 60 per cent larger than it would be if it were a salary paid to an employee of the Organization working in England. This might well be the efffect of Article 45 if it stood by itself. But it is a subordinate clause dealing only with the method of payment. It cannot be so interpreted as to alter profoundly the method of calculation settled by Article 82 and to give to the complainant the benefĳit of both the weighting factor and the present favourable rate of exchange. The complainant is entitled, if he wishes, to be paid in Belgian francs but he is not entitled by exercising that option to receive a more valuable pension than that calculated in accordance with Articles 82 and 63. This calculation produces a sterling fĳig- ure: the payment in Belgian francs must not exceed the value of the sterling expressed in Belgian francs at the rate current at the date of payment.64 This reading implies that the currency of account for pensions payable to a retiree of Eurocontrol was actually the currency of the country of residence, not the Belgian franc, as claimed by the complainant. Thus the conversion used when applying the calculating method to reach the amount in the currency of the country of residence was not the conversion of a Belgian franc amount into the currency of payment, but the very determination of the sum of the obligation itself. In that sense the use of a fĳixed exchange rate rather than the current rate was perfectly acceptable. It should be conceded to the tribunal that the way in which the organization articulated a relatively simple notion was far from ideal.65

63 The tribunal expressly considered that the Articles 62, 63 and 64 of the Eurocontrol’s Service Regulations constitute a group of articles designed to ensure as far as possible that offfĳicers of the Organisation who enjoy the same salary will also enjoy the same purchasing power wherever they may be working, whether at the headquarters where they would be paid in Belgian francs or in some other country where they would be paid in the currency of that country. ILOAT Judgment No. 285, Watson (1976), para 1. 64 ILOAT Judgment 285, Watson (197 6), paras 4–5. 65 “If, as the Tribunal believes, it is intended by this article that a pensioner should be paid in the currency of the country in which he “declares his home to be”, the article should say so expressly. It will then at once be apparent that the options given to the pensioner by Article 45 are misleadingly wide. It may well be considered desirable that he should have an option to change his country of residence and consequently the currency in which his 160 chapter seven

2. Unliquidated Amounts In domestic courts, the party wishing to be awarded damages in a foreign currency must show the court why the default rule of awarding damages in the currency of the forum should be left to one side in making the order in a foreign currency. A persuasive factor for the court may be that as the losses were sufffered in a foreign jurisdiction, the award of damages should reflect that fact and be awarded in the applicable currency. No such default rule exists in the tribunals – with the notable exception of the European Union – for the simple reason that there is no such thing as the currency of the forum. Tribunals are free to valuate material loss and fĳix the attendant compensation in one currency. Thus normally no issue of currency of payment should arise in cases of unliquidated sums before the tribunals. It does arise, however, whenever the loss is assessed and fĳixed in one currency but the payment of the compensation is ordered in another, which is the case when a tribunal deems it more appropriate to burden the wrongdoing party with the exchange risks. This was the case in Mély where the employment of applicant, a French national employed in Phnom Penh under a short-term contract, was wrongfully terminated. Her salary was paid partly locally in Cambodian riels and partly in France in French francs. Since at the time of the judgment she was residing in France, the JAB further recommended that as a special accommodation the sums payable to the applicant should be paid in French francs, the rate of exchange to be used for the conversion of Cambodian riels into francs being the offfĳi- cial UN rate in force in 1961–62. UNAT decided as follows, presumably because she was of French origin and was resident in France at the time of the judgment: The Tribunal orders, as to the Applicant’s ill-founded termination, the payment to the Applicant of the total amount of base salary, dependency allowance and non-resident’s allowance, in accordance with the terms of the letter of appointment dated 27 June 1961, for the period from the date of her appointment to the date of the end of her contract on 3 1 May 1962, less the sums already paid to her up to and at the time of her termination, less also the amount paid to her in accordance with the letter of 2 June 1965, referred to in paragraph TII above, the amount payable being increased proportion- ately in respect of any salary increases afffecting the stafff of the Regional Offfĳice at Phnom Penh during the period of her contract; such amount to be paid in French francs at the rate of exchange in efffect in August 1961.66 pension is paid; if this is what is intended, the article should be limited to that”. ILOAT Judgment 285, Watson (1976), para. 6. 66 UNAT Judgment 100, Mély (1966). the treatment of monetary problems 161

In other words, she was awarded damages in the local currency of the duty station but determined that the currency of payments was the US$.

E. The Exchange Rate

Given that the exchange rate is the price at which one currency can be exchanged for another currency,67 tribunals are confronted with this issue when the extent of a monetary obligation is fĳixed in one currency but has to be discharged in another currency. It is generally agreed that the most troublesome problem in those cases is that of identifying the particular exchange rate to which resort is to be had for the purpose of efffectuating the conversion.68 This is not limited to the question of which exchange rate – which may vary per market – should serve as the reference point, but involves also the issue of the date to be used for the conversion. It will be apparent from the following discussion that there is no generally applicable rule of law which determines the type of exchange rate to be used in all cases. The most that can be said is that here, as is the case with the other dimensions of monetary obligations discussed in the present paper, the nature of the obligation (contract/debt or damages) greatly determines the outcome of the identifĳication process conducted by tribunals.69

1. Liquidated Amounts 1.1. Risk Allocation It would appear that in cases of liquidated amounts, i.e. an amount that may be readily ascertained by a mere computation based on the terms of the obligation or instrument, unless a specifĳic exchange rate has been agreed or is prescribed, tribunals decide that the demanding party – mostly an offfĳicial – by implication agreed or accepted the risk of the burden that fluctuating exchange rates might impose on them. This follows from the fact that the determination of the exchange rate in those cases

67 J. Gold, Exchange Rates in International Law and Organization (ABA, Chicago/ Washington D.C., 1988), p. 1. 68 Cf. Mann on the Legal Aspect of Money, op. cit., supra n. 3, 18.10 at p.475 fff. 69 According to Jenks, questions concerning the exchange rate that might arise between international organizations and the persons otherwise subject to their administrative authority are governed by the administrative law of the organization. Jenks, op. cit., supra n. 20, pp. 174–175. 162 chapter seven involves the interpretation of the legal instrument containing the monetary obligation, be it contractual or statutory. A conclusion in the foregoing sense can be drawn from ILOAT Judgment 2713 (2008) in a case brought by a person who during his employment at the UPU was assigned to Harare, but never had the status of an offfĳicial of the International Bureau. His monthly salary was initially calculated and paid in dollars and later it was paid in Swiss francs after conversion at a rate that the complainant challenged. His request was that the exchange rate applied should be that used by the UN – as with regard to the remuneration of those who have the status of an offfĳicial – and that the amounts which in his view had been unduly withheld from his salary should be reimbursed. ILOAT rejected the plea in the following terms: The complainant did not express any reservation concerning the conversion rate applicable to his remuneration either when he signed his contracts or when he received his payslips. It was not until the Union informed him of its decision not to renew his appointment beyond 31 December 2005 that he contested the lawfulness of this system; today he tries to justify his silence by saying that he was afraid of losing his job. This argument cannot be accepted, for to do so would be tantamount to recognising that the weaker party is entitled, in all circumstances and at any time, to challenge clauses that it could not bring itself to contest on signing a contract. … Given the real consensus ad idem and the principle of trust and confĳidence, the validity of all these clauses cannot be disputed. From this point of view, the complainant’s acceptance of the currency conversion rules which he now challenges cannot be called into question.70 Presumably conscious of the possibility of situations where the imbalance in the bargaining strength of the parties or other circumstances may justify a diffferent outcome, yet dismissing the plea of fear, the tribunal also noted that the complainant did “not show that his consent was invalidated for any reason”. ILOAT was also not convinced that there existed any principles or standards of international civil service law that would have required the application of the conversion rate used by the UN for stafff remuneration to his remuneration.71 As mentioned before, in the common system the scales, expressed as gross and net base salaries, are applied uniformly, worldwide, by all organizations in the common system. However, although salaries are expressed

70 ILOAT Judgment 2713 (2008), consideration 6. 71 ILOAT Judgment 2713 (2008), considerations 6 and 7. the treatment of monetary problems 163 in US$, often stafff must accept part of their salary in local currency. For the cases involving exchange transactions the relevant rules normally stipulate that the UN operational exchange rates is to be used and the date on which the relevant note is required to be ascertained. That is the exchange rate unsuccessfully invoked by the complainant in ILOAT Judgment 2713. In addition to the question whether that exchange rate should not also be applied to the remuneration of non-stafff employee, which sometimes come up, neither ILOAT nor UNAT seem to have to be worried about the question of the appropriateness of that exchange rate. The cases that they had to deal with seem to concentrate on the question of whether the organization or the payee should bear the risk of exchange losses. This question arises in two situations: where there is a disagreement about the date that the transaction had to occur, and when parties hold a diffferent view as to the date to be used as a reference point for the conversion. As regards the fĳirst situation the position adopted is that the obligor cannot be held responsible for exchange losses that are incurred in the process of the conversion of sums due, when the payment is made on the due date or certainly when made in accordance with the request of the claimant. This is confĳirmed inEl-Haj , where the question was whether the transfer made into the provident fund account in the name of the applicant gave him ownership of the funds and constituted a payment for the purposes of the relevant regulation. It stipulated that, when a payment in a currency other than the entitlement had to be made, the conversion would be made at the UN book rate ruling at the date of payment. The applicant requested and received an advance payment of his separation benefĳits, which were converted from Austrian schillings into US$ and paid to his provident fund account. The conversion was done at exchange rate in efffect on 1 June 1996, however, the funds were credited to the applicant’s provident fund account on 1 August 1996. As his provident fund account had not been credited until 1 August 1996, he argued that the rate of exchange should be that of 1 August rather than 1 June 1996. UNAT disagreed. In so doing, it considered in particular that the applicant must have been aware that the funds would be deposited after conversion into US$ into an account belonging to him in the retirees’ credit account. According to UNAT, the correct date of payment for the purposes of the Instruction, particularly because the applicant received ownership of the funds at this time, was 26 June 1996. It deemed that “[S]ince the conversion, according to the Instruction, had to be made ‘at the UN book rate 164 chapter seven ruling at the date of payment’ the conversion was rightly made according to the exchange rate prevailing in June and not in August. The Applicant’s claim is, therefore, without merit”.72 Obviously, in the foregoing case, by requesting an advance payment the applicant accepted the risk of the burden that fluctuating exchange rates might impose on him. Implicit in the ruling is that otherwise the exchange rate of the due date would have applied. In Airola the ECJ confĳirmed that conversion of the Belgian franc amount due to the claimant as a separation allowance should be converted at the exchange rate in force when the allowance is to be paid.73 In so holding the ECJ rejected the argument of the European Commission that, since the amounts due had been frozen at the level of 1961, the conversion of the amount into the statutory currency of payment had to be at the historical exchange rate that applied at the time of the freezing. Acceptance of the view of the Commission would have meant that as of that date the currency of payment (Italian Lira) substituted the currency of account of the obligation (Belgian franc). Such confusion of the unit for determining the quantum of the obligation and the unit in which the benefĳiciary was entitled to receive payment risks causing inequality of treatment because the function of the Belgian franc as a common denominator would no longer be fulfĳilled. On the other hand, as explained in Salamayeh, a stafff regulation may validly allocate the exchange risk on stafff members in respect of monetary obligations of stafff provident funds. In that case the provident fund established by UNRWA for its stafff members used to apply a method whereby it spread exchange risks among all fund participants. The relevant regulation was amended in 1981 introducing a new method, which had the efffect of having each participant bear exchange rate risks – whether favourable or unfavourable – associated with the value of the currency in which his or her provident fund account is kept, against the US$. UNAT found that this method is neither arbitrary nor discriminatory, as it applied equally to all fund participants. For that reason it rejected the argument according to which the stafff rule that provided that credits to his fund account should be recorded in Austrian schillings precludes any change in the level of such credits to adjust for exchange rate losses or gains of the schilling vis à vis the US$. UNAT considered that this rule did not have the efffect of pre- scribing any particular method of calculating exchange rate gains and

72 UNAT Judgment 966, El-Haj (2000). 73 Judgment of 12 November 1981, Airola v Commission (72/80, ECR 1981 p. 2717). the treatment of monetary problems 165 losses.74 The key element in this reasoning seems to be the fact that, by choosing a currency in which his account was to be held, the creditor accepted the risks and benefĳits of exchange rate fluctuations of said currency in relation to the dollar. A diffferent matter is whether, where a conversion has to take place, the organization is free to adopt its method for calculating the exchange rate. According to the Battaglia, an international civil servant has no vested right in a system for calculating the exchange rates. At issue was the provision in the EEC stafff regulations, according to which an offfĳicial may have part of his emoluments transferred either regularly or on an exceptional basis to a country other than his/her duty station. Until the end of March 1979 such transfers were to be made “at the offfĳicial exchange rate ruling on the date of transfer”. “Offfĳicial exchange rate” referred to the last parity approved by the IMF, which had not been altered since 1 November 1969. After the collapse in 1971 of the par value system, which was at the heart of those provisions, the parities came to reflect less and less the purchasing power of the currencies involved and their value on the international money market. Offfĳicials who had transfers made to countries the value of whose currency had increased in relation to the parities notifĳied to the IMF were thus able to realize gains on the exchange rate, as compared with transfers made in normal market conditions. In accordance with the legal position existing prior to April 1979 the weighting to reflect the living standards at the place where the offfĳicial performed his duties had to be applied to the whole of the remuneration, including the part to be transferred to another country pursuant to the rule. This led to an increase in the weighting for offfĳicials assigned to countries where the value of the currency had decreased in relation to the offfĳicial parities, and to a reduction in the weighting for offfĳicials assigned to countries whose currency had gained in value in relation to the IMF parities. In March 1979 the European Council of Ministers moved to adopt realistic exchange rates. The logical corollary of the adoption of realistic exchange rates was the amendment of the weightings, and in particular the abandonment of the much higher weightings previously laid down for countries with a low cost of living, since the adoption of current parities made it unnecessary to use the weighting in order to carry out adjustments which had been essential as long as the IMF parities were maintained. It was decisive for the court that

74 UNAT Judgment 469, Salamayeh (1989). 166 chapter seven by virtue of the amendment the weighting had regained its function, namely to adjust salaries in accordance with the cost of living at the place of employment.75

1.2. Judicial Confusion If an amount is both due and payable in the same currency, in principle, no issue of exchange rate arises, except where a cause of action not related to the monetary obligation, such as a delay, may justify compensation for exchange losses. Unfortunately, on occasion, tribunals are seduced to depart from this premise and engage in reflections that are not really helpful. A case in point is UNAT Judgment No. 1491 (2009), where a former UN employee who, due to the events in Rwanda in 1994, and subsequently in the Central African Republic in 2002, was entitled to certain payments, in particular monthly evacuation allowance, entered various claims that were based on the grounds that the administration did not apply the rule that—according to the applicant—amounts owed should be paid according to the exchange rate applicable on the date of separation and on settlement of all accounts. In its defence the administration correctly pointed out that UN salary and emoluments were due and payable in US$ and that the organization could not be held liable for any exchange loss. The claim itself was presented in US$, and the sum was paid in full in dollars. Instead of disposing the case on this ground, UNAT unduly elaborated on the issue of exchange rate: In that regard, the Tribunal does not agree that there is any rule that states that amounts owed by the Administration must be calculated according to the “exchange rate applicable on the date of separation from service and on settlement of all accounts”, as the Applicant alleges. It notes that, even if there were such a rule, it would not afffect the Applicant’s claims concerning monthly evacuation allowance and reimbursement of his lost personal efffects, since he seems to limit it to payments owed in the event of separation from service. Furthermore, and above all, the Tribunal notes that the Applicant has not provided any evidence of the existence of such a rule, even though he calls it “universal”. In any event, the rule that he is asking the Tribunal to establish ex nihilo would have the Administration guarantee against risks related to currency fluctuations. As the JAB pointed out, while

75 Dino Battaglia v Commission, European Court of Justice (First Chamber) of 4 February 1982, Case 1253/79, ECR 1982 p. 00297. Also Roger Buyl and others v Commission, European Court of Justice, 4 February 1982, Case 817/79, ECR p. 00245; and also Luigi De Pascale v Commission, Case 164/80, European Court of Justice (First Chamber) of 11 March 1982, ECR 1982 p. 00909. the treatment of monetary problems 167

losses due to currency fluctuations may be “an unfortunate by-product of working with the Organization … [the Applicant] could no more seek adjustment in his favour than the Organization could seek to pay him less than the dollar amount claimed, had the dollar strengthened in the time in which payment was delayed”. Whereas the Applicant calls for the application of an “impartial” rule that would avert a number of claims from United Nations stafff members, the Tribunal sees it rather as the formulation of a rule that would have the clear disadvantage of resulting in unforeseeable calculations that would be subject to wide fluctuations. Consequently, as regards to the Applicant’s various claims relating to payment of compensation for losses sufffered as a result of fluctuations in the exchange rate, the Tribunal rejects them all.76 In light of the fact that the amounts owed were fĳixed (currency of account) and payable (currency of payment) in US$, there was no reason for the tribunal to fĳirst defy the principle of jura novit curia,77 by requiring the applicant to prove the existence of a rule of law, and to dwell on policy considerations that are not the concern of judicial bodies. A UNAT case contains an example on how to deal with claims for compensation for foreign exchange losses. In Talan the applicant argued that, in order to determine the injury caused by the nine-month delay in payment of the insurance benefĳits, the decline in the rate of exchange of the US$ against the French franc during that period must be taken into account. She supported her claim for compensation with evidence about the exchange gains she would have been able to make if the payment of the amount in US$ had taken place nine months earlier. The tribunal correctly found i.a. “that the insurance contract stipulated payment in dollars without any reference to a foreign currency or to the price of gold”. It further considered that the loss alleged by the applicant had to do with the decisions she took with a view to preserving the value of these funds, and whatever favourable or unfavourable consequences might ensue, immediately or in the long turn, could not be directly attributed to the conduct of the organization. It concluded that “[F]luctuations in the rate of exchange of the dollar against the French franc cannot be used in assessing the injury caused by

76 UNAT Judgment 1491 (2009). 77 An international tribunal is deemed to take notice of international law. Being its duty to ascertain and apply the relevant law in the given circumstances of the case, the burden of establishing or providing rules of international law cannot impose upon any of the parties, for the law lies within judicial knowledge of the tribunal. Cf. Fisheries Jurisdiction (UK v. Ireland), Merits, ICJ Reports 1974, p.9. Also, M. Kazazi, Burden of Proof and Related Matters – A Study on Evidence before International Tribunals (Kluwer Law International, 1996), pp. 43–50. 168 chapter seven the Respondent’s conduct. The Tribunal must base its determination of that injury on a legal principle of general application, and not on the efffects of currency fluctuations”. This is not to say, however, that the debtor organization should not be held responsible for the wrongful delay in making the payment. In that regard UNAT held that “when payment of a sum of money is unduly delayed, interest is payable and the payment of interest constitutes compensation for the damage resulting from the delay. In the present case, since the delay is attributable to the United Nations, the Organization is responsible for payment of the interest, which should be in United States dollars without regard to the exchange rate against other currencies prevailing on the date on which payment will be made”.78

2. Unliquidated Amounts 2.1. Non-Delictual Liability Where a stafff member is compelled to advance a payment for which it is reimbursed at a later stage, in principle such stafff member is entitled to compensation for exchange losses incurred as a consequence of the payment he was required to make. As is evident in Price 2 this issue is especially topical in relation to tax reimbursement cases. Previously, in Judgment 1053 (Price 1), ILOAT found that the organization had wrongfully rejected the claims of the complainants and ordered IAEA to reimburse the taxes they were required to pay on the lump-sum payments from the UN Joint Stafff Pension Fund (UNJSPF),79 which the Agency paid in the full amount of the award in US$. Subsequently the applicant wrote to the organization pointing out that the amount in US$ that was paid out was not enough to make him whole because in order to pay his US tax at the due date he had to purchase dollars with Austrian schillings to supple- ment dollar funds from other sources and at the then prevailing rate, which had fallen against the schilling causing that the amount obtained in shillings was substantially less that the shilling amount he used to purchase the dollars, in order to pay his US taxes. IAEA pleaded that his application is irreceivable on the grounds that it was res judicata and that it was time-barred. ILOAT upheld the plea of the organization on the fĳirst ground, but not without explaining that otherwise the applicant would have been

78 UNAT Judgment 289, Talan (1982). 79 For a discussion, see: R.S.J. Martha, Tax Treatment of International Civil Servants (Leiden/Boston, Martinus Nijhofff Publishers, 2010), p. 280. the treatment of monetary problems 169 entitled to compensation for the exchange losses sufffered in the particular circumstances of the case: In his original complaint the applicant stated his claim in dollars and he was accordingly awarded and paid the amount in that currency. If there was any risk of loss due to fluctuations in the rate of exchange he ought to have raised the issue in the context of his original complaint. Had he explained the circumstances and claimed reimbursement in two currencies – viz. $24,774 ($43,574 less $18,800) and 251,486.61 schillings – there would have been no reason not to entertain his claim, though he would then have run the risk of a rise in the value of the dollar as against the schilling. Since he chose to state his claim in dollars and succeeded, the matter is res judicata and he may not have it reconsidered. There is no merit in his plea that “lack of experience” explains why he did not think of the efffect of changing rates of exchange: ignorantia juris haud excusat.80 In other words, it is incumbent upon the stafff member seeking relief for exchange losses to clearly articulate the claim in a way that enables the tribunal to deal with it. Given that it is almost unavoidable that international civil servants live and serve under circumstances involving multiple currency zones, the foregoing is of special importance in claims of service related injuries and standard medical benefĳits. Service-incurred injury and standard medical benefĳits give rise to non-delictual liability of the employing organization,81 which sometimes prompt the need to determine the exchange rate to be used for compensating the stafff member, in particular when the stafff members pay for the medical expenses and subsequently seek reimbursement from the employer. UNAT addressed this issue in a case involving an applicant who during her assignment was a member of the Geneva UN Stafff Mutual Insurance Society Against Sickness and Accident (the Society) established by the Secretary General. While in Brazil on home leave she incurred certain medical expenses in respect of herself and her daughter. Under the governing stafff regulation the employing organization undertook “to reimburse, within the limits laid down in the Society’s Internal Rules, the expenses incurred by its members arising from sickness, accident or maternity”. Based on this provision the

80 ILOAT Judgment 1168 (In re Price No. 2), consideration 3. 81 ILOAT Judgment 2533 (2006) concerns a case where the complainant sufffered a workplace injury at the organisation’s premises resulting in permanent and total disability and a rare illness, which has extended up both of the complainant’s legs and requires him to use a wheelchair. The Tribunal promulgated: “It is common for a mature legal system to provide compensation on a ‘no fault’ basis to employees who sufffer workplace injuries; the law of the international civil service can do no less”. ILOAT Judgment 2533 (2006). 170 chapter seven applicant fĳiled claims with the Society for reimbursement of the medical expenses incurred. The total amount of the claim was in Brazilian cruzados. Between the date that the medical expenses were incurred and paid and the date of reimbursement the value of the Brazilian currency fell between 400 and 500% in relation to the Swiss currency. Nevertheless, the Society reimbursed the Applicant, converting Brazilian cruzados into Swiss francs, using the offfĳicial UN rate of exchange prevailing on the date payment, as provided in the Society’s rules. UNAT found the relevant rule to be inappropriate in the context of reimbursement of expenses under a health protection system because by fĳixing the date for conversion at the date of payment by the Society, rather than a proven date of payment of the medical expenses by the stafff member, the Society, in efffect, required “the stafff member to chance the fortuity of upward, downward or no movement in the exchange rate”. UNAT rightly considered that application of the said rule “has prevented the Applicant from recovering expenses incurred for health protection to which she was entitled”, and thus ordered the organization to pay to the applicant the amount, in Swiss Francs at the rate of exchange prevailing at the time she paid her medical expenses in Brazil”.82 The problem of the rate of exchange for the purpose of the determination of amounts to be paid presents itself equally when the international organization is the creditor, prompting the application of the same reasoning as in the foregoing case. Kigaraba83 was a case about an international organization’s claim to recovery of sums it said a stafff member was paid over and above his due under the relevant stafff regulation in respect of education expenses for two of his children who were at school in Tanzania. To meet such expenses the complainant used to apply for an advance and any balance was made over when he sent in his fĳinal yearly expense sheet. The dispute concerned the choice of the rate of exchange to be applied in reckoning the amounts due to the complainant as education expenses for the school years 1986 to 1990. ILOAT agreed that Universal Postal Union (UPU) was justifĳied in recovering from the complainant the excess amounts gained for years from the depreciation of the Tanzanian shilling by wrongly treating the conversion rate as if it were a fĳixed or ceiling rate and using it systematically instead of the UN operational rate in

82 UNAT Judgment 595, Sampaio (1993). 83 In re Kigaraba (No. 3), Judgment 1366 (1994). the treatment of monetary problems 171 force at the dates of his fĳinal expense sheets. As a consequence, although the education grant was supposed to cover only three-quarters of school fees, the complainant was paid his actual expenses up to thirteen times, and on one occasion, seventeen times what he had actually spent. In other words, in as much as a stafff member should not bear the exchange risk when incurring costs that are afterwards reimbursed by the organization, when the organization needs to recover sums advanced to its employees the latter must shoulder the burden of the fluctuations of exchange rates.

2.2. Delictual Liability In the case of delictual liability the issue of allocation of the exchange risk is driven by the objective of the secondary obligation that results from the breach of a primary obligation, namely the obligation to make whole (resitutio in integrum). The way this plays out in relation to the exchange rate is illustrated by the Klee case, decided by UNAT, which involved a dispute concerning the date to be applied in the determination of the exchange rate applicable to the conversion into Austrian shillings of the compensation awarded in a previous judgment on account of wrongful termination. The organization argued that the exchange rate of the date of payment should be applied, whereas the applicant contended that since he was always paid in Austrian schillings and that he was domiciled in Austria and the fact the compensation must be equivalent to the salary which he would actually have been paid in Austrian schillings had he remained in service for the rest of his contract, the exchange rates applicable were those which were in efffect during the period concerned and not the rate prevailing on the date of payment. UNAT held: In the judgement which the Tribunal is now requested to interpret … the double reference to the Applicant’s entitlement and to the fact that he might have been maintained in service clearly shows that the Tribunal intended actually to reconstruct the Applicant’s career fĳinancially for a period of 15 months. The Tribunal observes that the Respondent himself took into consideration the successive amounts in dollars which the Applicant would have earned had he been maintained in service during the 15 months from 1 April 1976 to 30 June 1977. By seeking to convert those amounts at the exchange rate prevailing on the date of payment, however, the Respondent refuses to recognize the full extent of the Applicant’s entitlement-had he been maintained in service, that is, had he been in a position to receive Austrian schillings over a 15-month period at successive prevailing exchange 172 chapter seven

rates. Yet it was precisely the restoration of these rights which the Tribunal intended to grant to the Applicant.84 In reaching this conclusion UNAT expressly distinguished its previous decision in Johnson, and later confĳirmed in Thiam,85 where it ruled that in respect of all amounts fĳixed once and for all, the exchange rate in force on the date of the judgement should be applied. In other words, UNAT maintained in the last mentioned case that the amount owed to the applicant had been fĳixed by the judgment with executory force even if the prejudice occurred on the date of his separation from service, and that consequently the date of the judgment was determinative for the conversion: The Tribunal observes that although the injury occurred on the date of termination, the sum due to the Applicant was determined by the judgement. It was thus on the date of the judgement that the debt owing to the Applicant was determined with binding force. Her rights in Swiss francs must therefore be established on the date of the judgement and according to the exchange rate prevailing on that date..86 The distinction made in the foregoing cases corresponds to the acknowledgment in doctrine that the appropriate rate of conversion for damages or losses expressed in one currency from that currency into another is a matter that hinges on the circumstances. In one set of cases the damages may really be a liquidated amount. In cases of this kind the principles discussed above in the context of liquidated amounts should inform the determination of the exchange rate. Where on the other hand the award purports to make good the losses sufffered by the party seeking relief, either the breach day rule or the due date rules should be applied.87 The application of the latter rule can be found in Djoehana, where the following statement of the principle can be found: The exchange rate: 3. The complainant is entitled under Judgment No. 359 to payment of compensation amounting to one year’s salary. He was paid by the month, not at the end of the year. To place him in the position the Tribunal intended, the sum due should therefore be calculated monthly, i.e. converted from United States dollars into French francs at the dates at which payment would have fallen due. The complainant is therefore right to

84 UNAT Judgment 253, Klee (1980). 85 UNAT Judgment 893,Thiam (1998). 86 UNAT Judgment 234, Johnson (1978), V. 87 See Mann on the Legal Aspects of Money, op. cit., supra n. 3, at 18.33, and 18.35, pp. 486–487. the treatment of monetary problems 173

ask to have the sums converted at the rates prevailing at the dates at which each monthly payment would have fallen due, not at the date when the full payment is made. The Tribunal invites the parties to reach agreement between themselves on the amount which is still due. This is a matter of mere calculation and unlikely to affford scope for discussion.88

F. Nominalism

In its essence, the principle of nominalism establishes that legal obligations expressed in money are to be treated as autonomous measures, which are not liable to adjustment on the basis of factors which are extraneous to the monetary system or to the unit of account.89 The legal discussions surrounding the foundations of monetary obligations have their origins in the distinction between the principles of nominalism and valorism.90 The principle of valorism entails a permanent re-valuation of the obligation to pay that does not rely on the money as such and the natural example of application of this principle is the valuation of the compensation for damage that occurred a long time before the judgment setting the issue is held. On the other hand, according to the principle of nominalism, the defĳinition of a currency is provided by its denomination and not by its value, therefore ensuring its legal constancy. In other words, the general question is whether, and if so, how fluctuations in the internal (or external) value of a monetary obligation can be taken into consideration in a legal system.91 Basically, the internal value of a currency is its purchasing power domestically. On the other hand, the exchange rate between two currencies specifĳies how much one currency is worth in terms of the other. This is the external value of a currency, i.e. the purchasing power internationally.92 From a historical viewpoint, it seems that nominalism has universally predominated as a basic principle regulating the monetary order and economic policy. One of the efffects ofnominalism is the default position, which lets the creditor bear the risks of depreciation. In the fĳinal event, allowing the creditor to shift this risk on to the debtor depends

88 ILOAT Judgment 538, Djoehana, (Application for interpretation). 89 Mann on the Legal Aspect of Money, op. cit., supra n. 3, 9.04.; A. Spandau, “Inflation and the Law,” 92 South African Law Journal (1975), pp. 31–58; also Nussbaum, op. cit. supra n. 15, 875–883. 90 Mann on the Legal Aspect of Money, op. cit., supra n. 3, at 9.05–9.09. 91 UN Liable for exchange losses incurred due to delay in the processing of pension documents. UNAT Judgment 196, Back, (1975). 92 See for a detailed analysis of these concepts, S. Silard, “Money and Foreign Exchange,” International Encyclopedia of Comparative Law, 1976, Inst. 10. 174 chapter seven upon what parties expressly or implicitly agreed. Not surprisingly, the issue of nominalism is also raised in the law of international civil service.

1. Liquidated Amounts The law of international civil service is probably the only fĳield of international law where there are judicial decisions that provide some guidance on the application of the principle of nominalism to liquidated international obligations. Harpignies93 concerned a case in which the applicant, a retired stafff member of the UN, was unsuccessful in an attempt to invoke the UN’s obligation to maintain the efffective purchasing power of his retirement pension by supplementary benefĳits to take into account rises in the cost of living and devaluation of the currency in which his pension is calculated. UNAT based its rejection of the request directly on the principle of nominalism as previously stated by the League of Nations’ tribunal in Desplanques, which concerned a request for the payment of pension in gold francs of the pre-devaluation value. This devaluation, which swept away 30% of the pre-devaluation value, occurred before his resignation took efffect but after the acceptance of the resignation. The Desplanques tribunal emphasized that there was only one Swiss franc, the gold value of which had been modifĳied by the Swiss authorities, but which remained the same currency and that the applicant had to endure the consequences of the change. It acknowledged that the principle of nominalism might involve inequitable consequences that ought to be addressed, but that it would be beyond the judicial function to intervene: That risk of currency depreciation was an unavoidable one, however stable the currency in which the sums due were fĳixed might have seemed to be. The real consequences of currency depreciation varied infĳinitely according to whether the rise in internal prices correspond to the extent of the depreciation of the currency concerned, and according to the extent of the change in value of this currency in relation to other currencies, the position of other currencies and internal market conditions in other countries. No one could escape the consequences of such a world situation. In the absence of any provision for the readjustment of liability in the event of currency depreciation … the liability must remain a liability in the currency in which it was expressed.94

93 UNAT Judgment 182 (1974). 94 Administrative Tribunal of the League of Nations Judgment No. 19, Desplanques 6 May 1938, 10 Annual Digest and Reports of Public International Law, 418. the treatment of monetary problems 175

In other cases, ILOAT stated that general principles did not make it possible to grant an application requesting an increase in salary proportionate to a rise in the cost of living, although it accepted the claim for damages for delay in the payment of the amounts due in view of “the extremely painful changes in economic conditions”.95 In light of the foregoing discussion, it has to be recognized that reliance on the principle of nominalism in the process of determination of the fĳinancial substance of an international obligation does not lead to results that cannot be achieved by the application of the general rules of interpretation. According to those rules, the fact that a single term – in the present context the reference to a specifĳic currency presumes that the identity of a currency’s name raises an irrebuttable presumption of the identity of its intrinsic value over time – is clear does not lead to the conclusion of the task of interpretation without locating the apparently incontrovertible meaning in the context to see whether the result could be diffferent from what the ordinary meaning produces.96 Therefore, the conclusion seems to be warranted that the principle of nominalism applies to liquidated sums owed under international law – including international administrative law – essentially by virtue of the interpretation of the relevant legal instrument, provided that the fĳinancial obligations are discharged in accordance with the terms of the instrument or that a deviation from those terms is attributable to a circumstance that precludes the wrongful- ness on the side of the debtor.

2. Unliquidated Amounts It is common ground that the principle of nominalism has no general application to unliquidated obligations.97 The soundness of this assertion is challenged by the judgment in Niestlé where ILOAT held that an indemnity granted in French francs in 1940 could properly be paid in French francs in 1947 by the International Institute of Intellectual Co-operation to a stafff member of Swiss nationality resident in Switzerland: That besides, the devaluation of currency is a state of things to which all are subject and remains subject, in law, to the principle that in the absence of a revalorisation clause – such a clause soon being considered in many

95 Weiss, Judgment No. 4, 27 February 1947. 96 For an application in the fĳield of human rights,see Luedicke, Belkacem and Koç v Germany, 28 November 1978, Series A N° 29. 97 Mann on the Legal Aspect of Money, op. cit., supra n. 3, 10.01 and 23.17. 176 chapter seven

countries as contrary to public policy and therefore invalid – the currency agreed upon or adopted remains such, “le franc reste le franc”.98 In arriving at its conclusion ILOAT gave particular weight to the fact that the delay incurred in the disposal of the small sum due to the complainant resulted from a reason attributable to the complainant herself. Accordingly, there was no occasion for contemplating the responsibility of the employing international organization for undue delay. According to the facts of the case, in 1940, France, which undertook the administrative management of the Institute, had allocated to all terminated offfĳicials an indemnity of 100 francs for each year of service; there was therefore available to the complainant the sum of 1,600 French francs which were placed to her credit but which could not be transferred to her due to the fact that in the meantime she had left France for Switzerland without giving her new address. The situation was diffferent in another case where the complainant moved to a non-occupied zone of France, where parts of the Institute’s assets had been transferred, and sought to maintain some of the organization’s activities. At the end of the war, the newly appointed Director refused to recognize these activities and pay the salary arrears for the war period. ILOAT disagreed and held in favour of the complainant. As to the question of damages, it said: Whereas the delay in paying the sums due, the extremely painful changes in economic conditions, and the need for Mr. Weiss to provide for his defence, justify, quite apart from any consideration relating to the changes in the purchasing power of the franc, the allocation of compensation under the heading of damages; And whereas the indubitable moral prejudice sufffered by Mr. Weiss by reason of the insecurity in which he has been since the recom- mencement of normal activity by the Institute should also be taken into consideration.99 It is to be noted that ILOAT clearly disassociated its ratio decidendi from any issue of nominalism and grounded its decision on the acts of the organization concerned, which it found to be reproachable. It confĳirms the view that the principle of nominalism has no general application to unliquidated obligations. As has been seen before in the present study, on occasions, tribunals use language suggesting an exchange rate problem, where in fact what is being addressed is the internal value over time of the currency of account.

98 ILOAT Judgment 16, Niestlé, (1955). 99 ILOAT Judgment 4, Weiss, (1947). the treatment of monetary problems 177

This contributes to disagreements about the meaning of rulings at the implementation stage. For example, in Obiny 1 UNAT ordered UNDP to pay “compensation of twelve months’ net base salary at the rate in efffect on the date of his separation from service, less the amount already paid by the Secretary-General”.100 The use of the phrase “at the rate in efffect on the date of his separation from service” is odd in this context because the applicant was a local general service stafff whose remuneration, according to the Flemming-principle, was fĳixed and paid in local currency. In other words, no other currency was involved. Indeed, the recommendation of the JAB did not contain any reference to a rate: “The panel therefore rec- ommends to the Secretary-General that the [Applicant] be paid 9 months net base salary as compensation”. The reference only appeared in the operative part of the tribunal’s judgment. Given the context, normally the phrase should be considered gratuitous. However, since it appears in the operative part of the judgment, it cannot be ignored. This problem persisted in the tribunal’s ruling on the request for revision. In the request, the applicant pointed to the fact that the compensation as ordered by the Tribunal, because it was to be paid “at the rate in efffect on the date of his separation from service”, ultimately led to a negative compensation. In numerical values, the amount to be paid to him in accordance with UNAT’s order was 717,369.96 Kenyan shillings, whereas the amount already paid to him, based on JAB’s recommendation, exceeding the award, yielding a negative compensation. Neither the claim nor the judgment is helpful in clarifying the mystery about which other currency was involved, that required any consideration of a “rate”. Nevertheless, citing Abdulhadi 2, which will be discussed further on in this paper, the Tribunal held: It is clear that the Tribunal’s intention in Judgement 1045 cannot be read to mean negative compensation. The Tribunal had increased the compensation to be awarded to the Applicant from nine to twelve months’ net base salary. However, it was not aware of the depreciation in the local currency or of the increase in salaries, which had taken place between the time of the Applicant’s separation from service and the time of the payment of compensation by the Respondent. … In the Tribunal’s view, the appropriate redress in this case would be to award the Applicant the additional three months’ net base salary, which the Tribunal originally intended to grant him as compensation, payable at the same rate as the compensation already paid to him by the Secretary- General in November 2000.101

100 UNAT Judgment 1045, Obiny 1(2002). 101 UNAT Judgment 1199, Obiny 2(2005). 178 chapter seven

The use of the term “depreciated” and the award of three extra months’ salary suggest that UNAT was referring to the internal value of the currency, i.e the efffects of inflation, which has nothing to do with the exchange rate. But by repeating the term “rate”, there is a suggestion that another, undisclosed currency was involved. The same problem is apparent in Abdulhadi 1,102 where the operative part contained an alternative ruling stating that should the Commissioner-General, in the interest of the administration, decide that the applicant shall be compensated without further action being taken in her case, such compensation shall be paid at two years of her net base salary, “at the rate in efffect at the time of her separation from service”. Things did not turn to better either in Abdulhadi 2 when UNAT was asked to revise the judgment against the backdrop of substantial devaluation of the currency involved. Based on the theory that its intention in the previous judgment was to restore the career of the applicant in fĳinancial terms, it moved to efffectively substitute the dollar for the Syrian currency as the currency of account: As to the concept of the value of the salary at the time of separation, the Tribunal considers that, in deciding on the alternative to reinstatement, its intention was to restore the Applicant’s career in fĳinancial terms. It follows that the operative part of the judgement relating to the value of the salary at the time of separation cannot be interpreted in a manner likely to cause fĳinancial loss to the Applicant, since this would be a contradiction in terms. Taking into account the continuous devaluation of the Syrian currency, the Tribunal interprets the concept of the value of the salary at the time of separation as requiring that the compensation should be calculated in a standard currency whose par value varies little: the United States dollar.103 Leaving aside the fact that in this way the tribunal efffectively renewed the obligation by ignoring the principle of nominalism, while this holding suggests that what was to be paid was an amount in US$, the operative part of the judgment includes a twist that rendered the ruling still unclear. It declared “that the compensation of two years’ net base salary is equivalent to the value of the salary in United States dollars, at the United Nations exchange rate on the date of separation from service, after deduction of the amount already received by the Applicant”.104 One is left in the dark how this was to be realized. Should the administration take the amount in Syrian currency and convert it into US$ at the exchange rate on the date of

102 UNAT Judgment 877, Abduladhi (1999). 103 UNAT Judgment 972, Abdulhadi (2000). 104 UNAT Judgment 972, Abdulhadi (2000). the treatment of monetary problems 179 separation? If this is the interpretation, then the only thing that changed is that the applicant would be paid the equivalent of the Syrian pounds amount in US$; thus the dollar became the currency of payment whereas the pound remained the currency of account. But more importantly, it is unclear from the judgment in what respect the applicant sufffered fĳinan- cial loss. Since the salary obligation was fĳixed and due in pounds, the exchange rate had no role to play between the organization and its stafff member. If what UNAT had in mind was the depreciation of the local currency (as opposed to its devaluation), then it should have phrased its ruling in terms of revalorisation, i.e. applying an indexation to compensate for the inflation. Going by a previous decision in Museibes 2, it would appear that the right way to construe the term “rate” in this context is to relate it at the salary rate as indexed at the point in time indicated by the tribunal. In that sense, the issue dealt with is indeed the internal value of the currency of account over time. The unhelpful way of articulating the monetary obligation by UNAT is a product of a previous attempt to correct a conceptual confusion that afffected its rulings. At issue was the judgment inMuseibes 1,105 where reference is made to UNRWA’s letter “offfer[ing] to pay to the Applicant the equivalent of two years’ salary at the rate in efffect on the date when the Applicant resigned, in full and fĳinal settlement of all claims raised in the appeal”. The operative part of the judgement reads: “(ii) In the alternative, the Applicant be paid the equivalent of six months of his net base salary at the rate in efffect on the date of his resignation, in addition to the two years’ net base salary offfered to him by the Respondent, the amounts to be paid in Syrian pounds, at the exchange rate in efffect on 30 September 1993”. The applicant understood this to mean that his salary should be calculated as of the date of his separation in US$, instead of Syrian pounds, and that he should then be paid the pound equivalent of that number of US$, based on the rate of exchange on the date of payment. Qualifying the misleading articulation in the fĳirst judgment as an error, in Museibes 2 UNAT rejected this interpretation and gave an explanation of what should be understood by the “rate”: How the words “at the rate in efffect” came to be transformed into “at the exchange rate in efffect” cannot be ascertained at this point. Whether it was due to a typographical error, a dictation error, or merely an ordinary human error (even Homer nods), the Tribunal is satisfĳied that this transformation

105 UNAT Judgment 794, Museibes 1 (1996). 180 chapter seven

was the result of a mistake. It is not likely to have been the intention of the Tribunal to measure compensation in US dollars, as the Tribunal would more likely have intended to follow its normal practice for a case such as this and award compensation in Syrian pounds. … It is clear from Judgement No. 794 that the reference to 30 September 1993 was included therein in order to identify the relevant date for the calculation of the Applicant’s salary. The reference to an exchange rate on the date of his separation could have no relevance to the calculation of the Applicant’s compensation if, as he maintains, his compensation were to be calculated based on the exchange rate of the date on which the compensation was actually to be paid.106 With this, UNAT seems to be saying that the applicant was only entitled to the salary as indexed up until the date referred to in the judgment. This implies that the applicant had no claim to any cost of living adjustment that might have occurred after the said date. In that sense, the term “rate” did not refer to the rate of conversion into another currency.

3. Value Maintenance 3.1. Nature and Scope The foregoing clarifĳication in Museibes 2 brings to the fore the issue of value maintenance. As has been alluded to in Niestlé, the governing legal regime applicable to stafff compensation may include an obligation to maintain the value of salary (and pension).107 Indexation is the typical way to offfset the impact of inflation on regular periodical payments such as wages, salaries and pensions.108 In the common system international stafff in the professional and higher categories are entitled to a post adjustment that constitutes such an obligation on the employing organizations. The post adjustment, which is designed specifĳically to deal with the relative diffference in the costs of living between a specifĳic duty station and the base city (New York), is an amount paid in addition to net base salary, to ensure that no matter where the stafff work, their net remuneration has a purchasing power equivalent to that of New York. For that purpose many organizations maintain a system whereby at the beginning of each year, the executive head fĳixes the amount of the cost of living allowance, which

106 UNAT Judgment 895, Museibes 2 (1998), II. 107 Such value-maintenance arrangements shall not be subject to any invalidity clause in the lex monetae. Cf. Jenks, The Proper Law of International Organisations, op. cit. supra n. 20, at p. 175. 108 Spandau, op. cit., supra n. 89, at 33. the treatment of monetary problems 181 will take into account the rise in the cost of living at the duty station during the preceding year. Some systems further provide that the executive head of the organization also, during the year, make provisional adjustments whenever the offfĳicial index has risen by more than a set percentage since the preceding adjustment. In most systems an annual adjustment is due in respect of salaries to offfset a change in purchasing power, as measured by the consumer price index.109 As the purpose is to offfset inflation as experienced by the employees, such adjustment is mandatory rather than discretionary and – most importantly – deflation does not entitle the employing organization to adjust the salaries downward. Thus in a case where organization claimed that it was not required to adjust the salary to compensate for the loss purchasing power due to inflation, ILOAT held in favour of the complainant. To do so it had to overcome the fact that the use of the word “may” in the relevant provision suggested that the adjustment is permissive and rather than mandatory and thus gave the organization an absolute discretion either to adjust or not to adjust as it pleases. ILOAT acknowledged that it is true that the word “may” is as a matter of grammar permissive and not mandatory, but added that it is not always used in a strict grammatical sense. For ILOAT the decisive factors were the history and nature of the regulation. In its opinion the word “may” is not sufffĳicient to change the right to adjustment in accordance with the index, which before 1974 was an integral part of the salary, being the way in which the salary was calculated, into a bonus or gratuity to be given in addition to the salary when the Organization felt that it could affford to do so”.110 The issue of the non-discretionary nature of the cost-of-living adjustment was addressed by OASAT as well. It would appear that according to that tribunal, the unilateral repeal of an arrangement for combating the efffects of inflation without putting in place a functional equivalent is not acceptable. OASAT deemed it beyond dispute that cost-of-living adjustment system has always existed in the OAS and formed an integral part of the employment contract as a substantive right.111 While the cost-of-living adjustment is essentially a value maintenance system that combats the eroding efffects of inflation, i.e. the internal value of the currency of account,112 in the context of international civil service

109 Spandau, Inflation and the Law, op. cit., supra n. 89, at 37. 110 ILOAT Judgment 608, Macchino Farias (1984). 111 OASAT Judgment No. 124, Torres v. Secretary General (1994). 112 Cf. Lévy, “ ‘Sliding Scale’ or ‘Indexation’ Clauses in French Law”, 16 American University Law Review (1966), pp. 35–75, at 38. 182 chapter seven remuneration, it is recognised that the external value of the currency of account may nevertheless play a role in the determination of the level of the adjustment This was explained in a case where WIPO repealed a provision that ensured that offfĳicials, in case of fluctuation in the exchange rate between the US$ and the Swiss franc, would get paid a “diffferential” to compensate for loss in the value of the dollar. It was decisive for ILOAT that the arrangements for compensation under the common system took into account that stafff have to work at many duty stations and that not all of them incur expenses solely in the country of their duty station. It is for this reason that on the whole the arrangements under the common system affford a reasonable degree of compensation for the risks inherent in fluctuations in the dollar exchange rate. Accordingly, it considered that since the cost-of-living adjustment methodology of the common system already discounts the exchange rate factor, the organization could repeal the facility.113 The issue of value maintenance is of special importance in the case of pensions, and most systems do provide mechanisms to adjust pension annuity over time. At the same time, these systems allow retirees to opt for a lump sum in lieu of an annuity. In that context the question has been posed whether the obligation to adjust applies as well to those that have opted for a cash payment. At least in one case it was ruled that employees who opt to accept a cash lump sum are not entitled in the future to cost- of-living increases to augment the cash payment she has received. The conclusion that a lump-sum payment is eligible for no cost-of-living increases, or any other supplemental payments by the Plan, is also supported both by logic and by the prior practice of the OAS and similar pension plans. The Complainant has failed to demonstrate why he should receive the benefĳit of full control over the equivalent of his pension funds, with the right to invest them as he sees fĳit, and yet also receive the same (cost-of-living) benefĳits affforded to former employees who have chosen to leave their pension funds under the direction and control of the Plan. The principal purpose of cost-of-living adjustments is to protect annuitants who would otherwise continue to receive a fĳixed dollar amount against inflation and other possible increases in the cost of living.114

113 ILOAT Judgment 1239, Baeumer, Claus and Hansson (1993). 114 OASAT Judgment 112, Juan F. Bauta v. Retirement and Pension Committee of the Organization of American States (1990), para. 23. the treatment of monetary problems 183

The suggestion here seems to be that if one receives advance payment or commutes sums that would otherwise fall due in the future, the burden of the risk of inflation shifts from the obligor to the payee.

3.2. Negative Adjustment In Rebolledo115 OASAT had to address the question whether – in light of the principle that salary may not be reduced while an employment contract is in force – the Secretary General could validly apply a negative post adjustment to stafff salary, which caused an obvious reduction in basic stafff salary. OASAT deemed that a reduction of basic salary can only be legally defended in two situations. One is when there is an explicit contractual stipulation clearly accepted by the employee, not one incorporated by reference, under which it may be agreed that in certain situations the employee will receive a lower basic salary. The other is when some novation occurs in the principal obligation and consequently a new contract, establishing diffferent salary terms between the parties, enters into force. The use of negative post adjustments was provided for in the organization’s regulations and was, therefore, an integral part of the employment contract. OASAT found that these conditions did not exist in the case at bar:116 The foregoing considerations have demonstrated sufffĳiciently that a reduction in salary took place. The report of the expert designated by the Tribunal did not address precisely the topics for which his testimony had been requested. In particular, he did not examine point (f), which refers explicitly to the need to determine whether negative post adjustments reduce the basic salary of stafff members stationed away from headquarters. But even though the expert’s report does not answer this question specifĳically raised in the questionnaire, the Tribunal must certainly conclude –on the basis of the general sense of that report, the statements of the attorney for the

115 OASAT Judgment 90, Alfredo Rebolledo A. et al. v. Secretary General of the Organisation of American States (1985). 116 In OASAT Judgment 38, Cortina et al. v. Secretary General of the OAS (1978), the Secretary General maintained–and the Tribunal agreed and so found in its judgment – that the negative factors “in practice are not applied, since they would mean a reduction of the basic salary from which they would have to be deducted, and that would not be legally possible”. Also in the Cortina case, the General Secretariat itself maintained that the authority to change basic salaries is not included in the discretionary authority of the Secretary General, and that the only authority he has is for making post adjustments. 184 chapter seven

Secretary General, the testimony of witnesses, and the debate in the oral proceedings– that a reduction in basic salary has indeed taken place, which violates the principle of labour law that salary may not be reduced. It therefore concludes as well that the Secretary General’s application of negative post adjustments must be found legally inadmissible.117

G. Concluding Remarks

The setting in which international administrative tribunals deal with monetary obligations is signifĳicantly diffferent than that of domestic courts. The latter courts, especially labour courts, operate in a system with a currency that has legal tender status, and in most cases statutory law determines the currency in which workers’ remuneration has to be fĳixed and paid. Similarly, where issues of workers’ compensation for non- contractual liability arise, domestic statutory law guides those courts. With the exception of the European Union, this is not the case with international administrative tribunals. The absence of a lex fori that contains the necessary guidance, combined with the fact that international civil servants are exposed to multiple currency zones, helps to explain the many instances in which tribunals have confronted currency issues. Some tribunals (notably those of the World Bank, the International Monetary Fund and the Asian Development Bank) are less exposed because the remuneration and compensation systems of the organizations they serve are based on a single currency, whereas other tribunals that serve multiple organizations, mainly the UNAT and ILOAT, have had to deal with a variety of currency problems. Despite the fact that the tribunals have revealed some difffĳiculties with grasping the fundamental monetary concepts involved, the above survey describes how these issues were handled and attempted to identify the principles that underpin the various rulings, which suggests the following basic consensus in matters of currency problems related to the remuneration and compensation of international civil servants: • The monetary character of salary obligations owed to international civil servants is a given that has never been questioned; • While tribunals recognize that international organizations are free to determine the currency in which to fĳix the stafff remuneration, they are prepared to review such determinations in light of contractual

117 OASAT Judgment 90, Alfredo Rebolledo A. et al. v. Secretary General of the Organisation of American States (1985), consideration 12. the treatment of monetary problems 185

undertakings and the general requirements of predictability and equality of treatment; • As regards the currency used to valuate and award compensation for non-contractual liability, tribunals distinguish between material damages and moral damages. In the case of material damages, the principle of restitio in integrum appears to drive the decisions, whereas, in the case of moral damages, a certain degree of randomness can be detected in the practice of tribunals, which may be explained by the fact that the principle of ex aequo et bono plays in important role in those cases; • Whether it concerns primary salary obligations or compensation for non-contractual liability, tribunals are prepared to recognize the organizations’ right to substitute the currency in which the obligation is expressed and respect their choice, if use of the original currency involved becomes impracticable; • Tribunals recognize that stafff remuneration and compensation can be paid in a currency diffferent from the one in which they are fĳixed, particularly if requested by the creditor. However, they are prepared to respect the limitations imposed by the organizations on options for stafff; • While tribunals are inclined to allocate the risk of the burden of fluctuating exchange risk to the organizations, insofar there is no delay in payment or where the employee (expressly or implicitly) accepted the risk, they will not interfere; • Tribunals adhere to the principle of nominalism and therefore refuse to award compensation for currency depreciation, except in cases of unlawful conduct on the side to the organization and in application of the value maintenance provisions in the remuneration systems of international organizations.

CHAPTER EIGHT

DISCOVERY IN ADMINISTRATIVE TRIBUNAL CASES

Marie Chopra

One of the more troublesome issues that arise in cases before the administrative tribunals of international organizations is that of discovery rights for the appellants or grievants. Discovery means the right of someone engaged in litigation to obtain information from the opposing party prior to a trial or hearing. This paper addresses the problems that occur in the realm of discovery in international organizations and suggests some possible solutions.

A. Discovery in the Judicial Systems of the United States1

In the United States, plaintifffs have very extensive discovery rights in a dispute against an employer, whether in court or through an agency appeal.2 They can seek a wide range of relevant documents and may even request documents which would not be admissible in court, so long as they “are reasonably calculated to lead to the discovery of admissible evidence”.3 It is not at all unusual in employment discrimination cases for plaintifffs to seek, and receive, literally thousands of pages of discoverable documents. The parties may also demand sworn answers to interrogatories, or sets of written questions.4 They may depose witnesses and take their testimony under oath and before a court reporter prior to any hearing.5 They can request the other party to admit to certain facts.6 Finally, parties are

1 This paper compares administrative tribunal discovery rights to those of the United States, because that is the system with which the author is familiar. Obviously, other national judicial systems may be less generous in discovery rights. 2 Certain disputes, such as claims of illegal discrimination, have fĳirst to go through review by an agency of the State or of the United States. Approximately the same discovery rights apply in courts and in agency actions. 3 Federal Rules of Civil Procedure, Rule 26(b)(1). 4 Federal Rules of Civil Procedure, Rule 33. 5 Federal Rules of Civil Procedure, Rule 30. 6 Federal Rules of Civil Procedure, Rule 36. 188 chapter eight usually required to stipulate to facts which are not in dispute. Parties – and their lawyers – are obliged to cooperate in discovery so long as the requests are relevant, do not seek information covered by a privilege (such as the attorney-client privilege), and are not overly burdensome. Discovery requests may also be served on a non-party through the use of a subpoena.7 Discovery requests and their responses are not fĳiled with the court or agency; courts expect the parties to work out their own discovery disputes in most cases. Parties are required to produce even confĳidential documents, although they may protect such documents with some kind of confĳidentiality agreement between the parties. Courts are also willing to protect confĳidential documents by permitting the parties to fĳile briefs which attach or quote from confĳidential sources “under seal”, i.e., in a way that protects them from public disclosure. If a party faces a non- responsive opponent, or seeks protection from some request that the party considers improper, he or she may seek court intervention and ask the judge to compel discovery or issue a protective order as the case may be.8 If the parties or their counsel to do not comply with discovery requirements, they may be sanctioned.9

B. Discovery Rights before Administrative Tribunals

Discovery under the procedures of the administrative tribunals of international organizations usually takes place through a request made to the tribunal itself. In most cases, only the production of documents is covered; the procedural rules do not provide for interrogatories, depositions, or requests for admission.

1. Document Production Applicants to an administrative tribunal may request the tribunal in question to order the organization to produce certain documents; it is up to the tribunal to decide whether to issue such an order or not. See, e.g., Rules of the WBAT, Rule 7.3. (a) (applicant may request Tribunal to order the production of documents); id. Rule 12.1 (“in exceptional cases” President of

7 Federal Rules of Civil Procedure, Rule 45. 8 Federal Rules of Civil Procedure, Rules 26(b)(1) and 37. 9 Federal Rules of Civil Procedure, Rule 37. discovery in administrative tribunal cases 189

WBAT may call upon parties to submit additional documents); Rules of the IMFAT, Rule VII.2(h) (applicant may request production of documents); id. Rule XVII (parties to brief Tribunal on the production of documents; Tribunal may reject request if it is irrelevant, would be unduly burdensome, or “would infringe on the privacy of individuals”); Rules of the ILOAT, Article 9 ¶ 6 (President of ILOAT may order submission of documents upon application of either party); Rules of the UNAT, Chapter III, Article 7(a) (applicants can request documents or hearing of witnesses); id., Article 10.1 (President may, on own initiative or at request of either party, call upon parties to submit additional documents); Rules of the IDBAT, Article 13 (stafff member may ask Tribunal to order production of documents; Tribunal to take into account if documents are “important to the preparation of his case”); id., Article 14 ¶ 3 (request for documents to be made in Application).10 Administrative tribunals therefore decide up front which documents are necessary for the case. Experience indicates that tribunal judges tend to be very conservative in deciding which documents to seek from organizations; orders to produce generally cover only the most directly relevant and obviously essential information. Tribunals also tend to be far more sympathetic to the organizations when considering whether a document request is “unduly burdensome” than would a U.S. court in a similar situation. Moreover, tribunals are very protective of privacy concerns, shielding documents from disclosure to stafff members which might include information about confĳidential performance evaluations – even of the applicant himself – or about other stafff members. In this regard, it is worth noting that the IMFAT procedural rules specifĳically list, as a reason for the Tribunal to refuse to order production, if the document “would impinge on the privacy of individuals”.11 Applicants are therefore often prevented from obtaining information that may be not only relevant but extremely important in making their case. An example of such a situation would be where a stafff member has been selected for redundancy based on his or her performance as compared to the performance of other stafff members

10 “WBAT” is the Administrative Tribunal of the World Bank; “IMFAT” is the Admini- strative Tribunal of the International Monetary Fund; “ILOAT” is the Administrative Tribunal of the International Labor Organization, which also serves a substantial number of other organizations; “UNAT” is the Administrative Tribunal of the United Nations; and “IDBAT” is the Administrative Tribunal of the Inter-American Development Bank. 11 IMFAT Rule XVII. 190 chapter eight in the same position. Without being able to see how his/her peers were evaluated and by whom, it is difffĳicult – if not impossible – to make a persuasive argument that he or she should not have been the one selected.12 One fĳinal point worth mentioning is that a tribunal decision to order the production of certain documents sometimes comes very late in the process – after briefĳing is complete – so that even if the applicant has the opportunity to comment on the documents, he or she is not able to incorporate them into his or her principal legal briefs.

2. Deposition of Witnesses Generally, the procedural rules of administrative tribunals do not include the possibility of examining witnesses under oath prior to a hearing. One exception to this may be the Administrative Tribunal of the United Nations which appears to have an arrangement for the taking of oral statements.13 This arrangement is not the direct equivalent of a deposition, however. Under U.S. law, deposition witnesses are questioned by one of the parties or their counsel. Under the UNAT arrangement, the witness in question is examined by a member of the Tribunal or “any other disinterested person”. This is therefore not an adversarial process and would not include tough cross examination. The applicant, who is not in control of the process, is unlikely to obtain the kind of useful admissions that are sought through the deposition process. Applicants can, of course, submit sworn statements from witnesses. This, however, requires a cooperative witness, and even sympathetic witnesses are often reluctant to testify for fear of retaliation from management. It is therefore difffĳicult for stafff members, without the intervention of the tribunal, to obtain necessary witness testimony. Although the WBAT does permit an applicant to ask the Tribunal to order the hearing of a witness,14 the oral testimony of witnesses is usually15 only obtained in the context of a hearing – if one is held. And the need for applicants to have the power to examine witnesses through discovery

12 Although in cases such as these administrative tribunals will often review the relevant documents in camera, the applicant is still left having to argue in the dark without being able to use the documentary evidence to his or her advantage. 13 UNAT Rules, Chapter III, Article 10.3. 14 WBAT, Rule 7.3.(a). 15 “Usually” because WBAT Rule 12.3 allows oral testimony to be obtained, presumably even outside the context of full oral proceedings “in order to complete the documentation of the case prior to its being placed on the list”. discovery in administrative tribunal cases 191 becomes much more important when one considers the fact that many administrative tribunals do not guarantee the right to a hearing. Under the procedural rules of many administrative tribunals, it is the tribunal which decides whether or not to hold a hearing – even when an applicant has specifĳically requested one.16 Without a right to a hearing and without any discovery process for the taking of depositions, applicants are deprived of the ability to collect witness testimony which might contradict, supple- ment, or at least interpret documentary evidence.

3. Interrogatories The procedures of administrative tribunals do not provide for written interrogatories with answers being given under oath. The only way for an applicant to obtain specifĳic factual information is to make assertions in the application and wait to see how the organization replies. In many cases, however, signifĳicant information may never be provided because the organization can simply ignore the issue and the applicant cannot prevail without some specifĳic evidence for a fact believed to be true. This problem could of course be addressed at a hearing – where organizational witnesses could be cross examined – but, as discussed above, in most cases applicants are not guaranteed a hearing before an administrative tribunal. Without a guaranteed hearing, this form of discovery becomes even more signifĳicant and useful. But it is not part of the procedures of administrative tribunals.

4. Requests for Admission or Stipulated Facts Once again, the procedures of administrative tribunals do not provide for written requests for admission with answers being given under oath or for a process of the parties stipulating to certain facts. This form of discovery can be particularly valuable in that it forces the parties to focus in on the facts which are in dispute. This not only helps the applicant/grievant but may also assist the court or tribunal by narrowing the issues to be decided. It also helps a party obtain information that goes beyond documentary evidence.

16 See, e.g., UNAT Rules, Chapter IV, Article 15.1; WBAT Rule 17; IMFAT Rule XIII. But see IDBAT Rules, Article 21 (setting out the procedures for hearings and permitting up to three witnesses for each disputed fact). 192 chapter eight

C. Should Administrative Tribunals Provide Broader Discovery Rights?

1. The Stafff Member’s View As is clear from the discussion above, administrative tribunals usually offfer signifĳicantly less discovery opportunities than are available in the United States for court and agency cases. When assessing whether or not administrative tribunals should enlarge discovery rights, it may be helpful to keep in mind the underlying rationale for the establishment of the tribunals. Administrative tribunals were established by international organizations because such organizations are not covered by national employment laws and are immune from suit in national judicial systems. The World Bank, for example, has recognized that “the fact that the World Bank and the IFC (the Organizations) are not subject to the employment legislation of any of their member countries imposes a special obligation on the Organizations in the relationship between them and their stafff”.17 When considering procedural rules for administrative tribunals, therefore, it seems reasonable to assess the extent to which they provide a fair alternative to the processes that would have been available to stafff members under the laws of the countries where they work had the organizations been subject to local law. Discovery helps to level the playing fĳield between the employee and the employer. In most employment situations, the employer has a great advantage over the employee because almost all the evidence – good or bad – is in the hands of the employer. The employer can also “encourage” other employees to be witnesses; the employee is less likely to be able to persuade other employees to testify against their employer. Discovery rights enable an employee to obtain the documentary evidence he or she needs and to subpoena witnesses if needed. The employer no longer has such an unfair advantage over the employee. Discovery also enables plaintifffs to be very well informed of the evidence that the employer may use against them. Surprises in courtrooms – television dramas not withstanding – are extremely unusual. Generally, both parties have already reviewed all the documents that may be used as exhibits and have already questioned many of the witnesses who may testify against them. This broad knowledge before the actual trial or hearing

17 Principles of Stafff Employment, Preamble. discovery in administrative tribunal cases 193 certainly encourages settlement because both sides are able to assess the strengths and weaknesses in their cases ahead of time. Experience with employment cases in the United States judicial system shows that such cases very rarely come to trial; they are almost always settled during or after the end of the discovery process. The foregoing discussion shows that as far as discovery goes, the griev- ing stafff members of international organizations have only limited opportunities and very few rights. They can ask an administrative tribunal to order the production of some documents, but this will likely produce at most only a few of the requested documents and will often deny them even essential information. They do not have the opportunity to ask for sworn answers to questions or to depose witnesses. And there is no provision for requesting factual admissions or formulating stipulated facts. Even more important than the lack of a specifĳic process for most methods of discovery, applicants to an administrative tribunal have no power to force the other party to produce information. They have no enforcement power at all. They lack any power of subpoena and cannot even oblige an individual to appear as a witness. The organizations have no obligation to cooperate in discovery; they do not have to respond at all unless or until the tribunal orders them to do so. Individual stafff members are therefore entirely dependent on the judges of the administrative tribunals to order requested documents or witnesses – even before those judges have heard the arguments in the case. Discovery is one area, therefore, where the administrative tribunal process does not come even close to equaling the rights that stafff members would have had if they had been able to appeal to the courts of the national system in the country where they live and work. Stafff members certainly do not have the broad discovery rights that they would have in the national judicial system of the United States. This lack of discovery hampers their ability to prove their case and forces them to work partially in the dark while their adversaries in the organization have the benefĳit of much wider, more detailed knowledge.

2. The Organizations’ View From the organizations’ point of view, of course, broad discovery rights would make the appeals process much more burdensome. No organization wants to be obliged to conduct wide searches for relevant documents, which might entail reviewing the records of a number of diffferent depart- ments and producing large amounts of responsive material. Not only do 194 chapter eight discovery responses entail much work in identifying responsive documents, but all information produced would fĳirst have to be reviewed by lawyers to make sure that nothing is being produced that might be considered privileged or that is non-responsive. Moreover, broad discovery conflicts with the organization’s interest in maintaining the confĳidentiality of certain information, particularly as it relates to performance evaluations or information about other stafff members. The organizations frequently solicit confĳidential input from managers in order to evaluate a stafff member and do not wish to reveal that input in the context of an appeal. More importantly, organizations do not wish to reveal any information at all about the evaluations of other stafff members. The legitimate interest of stafff members in broader discovery rights therefore has to be weighed against the legitimate confĳidentiality concerns of the organizations. Finally, organizations would doubtless argue that broader discovery rights, particularly a right to take depositions, would be too burdensome, would increase the cost of appeals for both parties, would make the appeals process more formal, and might obligate stafff members to retain legal counsel. This would contradict the aim of making the appeals process easily accessible to stafff members without the need for lawyer involvement.

D. Possible Solutions to the Discovery Conundrum

1. Documents A more clearly delineated document production process – which would take place independently of any direct administrative tribunal involvement – would be helpful for stafff members. Administrative tribunal procedures could specify that stafff members would have the right to request documents as part of the application process and that the organization would be expected to respond to those requests. Only if the organization claims that the discovery requested is irrelevant, privileged, or unduly burdensome, would the tribunal be brought in to decide. In most cases, the presumption would be that the requesting party is making legitimate requests and the burden would be on the organization to persuade the tribunal otherwise. Such a regime would go a long way to levelling the playing fĳield between the stafff member, who has little or no access to relevant documents, and the organization. Moreover, this process should take place at the discovery in administrative tribunal cases 195 beginning of the appeal, so that the stafff member has the documents in hand before the briefĳing process is over – and would be permitted to amend his or her initial pleadings based on documents obtained during the discovery process.

2. Confĳidentiality This is perhaps the thorniest problem because both stafff members and organizations have legitimate concerns. Tribunals should seek to make relevant confĳidential information available to stafff members if at all possible, however. In many cases, confĳidentiality concerns may be addressed by removing identifying information and having stafff members referred to as “A”, “B”, or “C”, for example. Or particularly sensitive sections of documents might need some redaction, while permitting the stafff member to see much of the information. Once again, the presumption should be that the stafff member be permitted unlimited access to relevant documents, with the administrative tribunal only stepping in to remove some information where such a step is absolutely necessary. There are many creative ways whereby stafff members can get the information they need without violating the privacy rights of others, and tribunals should actively seek such creative solutions.

3. Oral Testimony The arguments against the cost and time involved in taking depositions, as well as the likely need for stafff members to retain legal counsel, make some sense. In order to provide greater assurance that stafff members can obtain the testimony they may need, however, it is strongly recommended that the right to a hearing be established in administrative tribunal procedures. Stafff members should be entitled to call whoever they wish as witnesses and other employees should be obligated to appear if needed at the hearing. Only in cases where there are no disputes of facts and only issues of law are to be decided, should administrative tribunals be empowered to reach their decisions without a hearing.

E. Conclusion

If administrative tribunals were to establish broader documentary discovery rights, and have that discovery take place at the beginning of the appeals process, stafff members would be better able to establish the facts 196 chapter eight of their cases. Moreover, a guaranteed hearing – such as exists in the case of the IDBAT – would provide stafff members with the ability to obtain the testimony of management witnesses and/or to coerce the attendance of those stafff who in many cases may be reluctant to testify because of fear of retaliation from their managers. CHAPTER NINE

THE WORLD BANK ADMINISTRATIVE TRIBUNAL AND THE STANDARD OF PROOF TO BE APPLIED IN INVESTIGATIONS OF STAFF MISCONDUCT

David R. Rivero & Yelina Grados

This article1 describes the impact that the words used in World Bank Administrative Tribunal (WBAT) decisions can have on those who conduct investigations or are involved in deciding cases at the World Bank. It is also a plea for consistency of word usage in WBAT decisions, for clear signals when standards are being articulated or are being changed, and for explicit defĳinitions of those standards. Consistency of word usage is fundamental because disparity in usage creates uncertainty for administrators who must understand what standards the WBAT is trying to convey. Established in 1980, the World Bank Administrative Tribunal is designed to decide on applications submitted by stafff members of the Bank Group alleging non-observance of their contracts of employment or terms of appointment.2 An increasing number of these applications involve misconduct-related cases. In all cases coming before the WBAT, compliance with standards related to fair process will always be the cornerstone of the WBAT’s analysis of contested Bank decisions. At the World Bank, fair process3 itself is a concept constantly applied to a wide range of stafff decisions: regularization of appointments of probationary stafff members, evaluation of stafff members’ performance, salary reviews, reassignment or promotion, redundancy and, last but not least, disciplinary measures for misconduct. Therefore, while there are “certain highly generalized requirements of fair procedure

1 This article is an elaboration of remarks presented at the Symposium on The Development and Efffectiveness of International Administrative Law, held by the World Bank in conjunction with the American Society of International Law in Washington, DC on March 23, 2010. 2 See http://lnweb90.worldbank.org/crn/wbt/wbtwebsite.nsf/(resultsweb)/about? opendocument (last visited Aug. 1, 2011). 3 See Principles of Stafff Employment, adopted by the Executive Directors of the World Bank in 1983, more specifĳically Principle 2.1 (which requires the Bank to follow proper process in its relations with stafff members). 198 chapter nine that should apply in all of these circumstances”, the scope and implications of the principle of “due process” may vary by reason of “the diffferences in the nature and the consequences of these diffferent sorts of personnel decisions”.4 The latter brings to light the importance of a clear understanding of the standards of review applied in disciplinary cases, especially when we know that disciplinary decisions will be reviewed by the Tribunal in the harsh light of the review that comes always after the fact. The statute of the World Bank Administrative Tribunal does not establish the formal sources of the law to be applied in deciding disputes submitted to its jurisdiction. It has been left to the initiative and innovative genius of the Tribunal itself to determine from what formal sources it will derive the rules it intends to apply.5 The call for clear standards is therefore undeniable. At this point, it is worth mentioning that generally speaking, Admini- strative Tribunals not only derive applicable rules from formal sources not mentioned in their statutes, but have approached the question of the hierarchy of formal sources without any pattern.6 Tribunals may also depart from their own earlier decisions in the name of evolutionary or dynamic interpretation.7 This leaves the administration of the institutions each tribunal directly regulates confused in the best of the cases. It is in this context that consistency of word usage, clear signals and explicit defĳini- tions are urgently needed. By way of example of the unpredictability that characterizes the WBAT when it comes to setting standards of review of misconduct cases, we will present an overview of what the Tribunal has said over the past 15 years:

A. The Carew Decision

In 1995, the Tribunal rendered the Carew decision articulating useful standards for the Bank to apply in its decision-making processes. In the Carew

4 R.A. Gorman, “Due Process in Misconduct Cases”, available in: http:// pahostafffassociation.org/fĳiles/docs/Legal/WBAT_Dueprocess.pdf (last visited Aug. 1, 2011). 5 Ibid. 6 C.F Amerasinghe, The Law of International Civil Service, vol 1, (1st edition, Oxford UP, 1988) at 109. 7 See B. Kingsbury and R. Stewart, “Legitimacy and Accountability In Global Regulatory Governance: The Emerging Global Administrative Law and the Design and Operation of Administrative Tribunals of International Organizations”, available in: http://www.iilj.org/ aboutus/documents/LegitimacyAccountabilityandGAL.UNATvolumefĳinalAug82008.pdf (last visited Aug. 1, 2011). the world bank administrative tribunal 199 decision, the Tribunal stated that when reviewing disciplinary cases, it would evaluate: (i) whether the facts established the actions in question, (ii) whether they legally amounted to misconduct, (iii) whether the requirements of due process had been observed, (iv) whether the sanction imposed was provided in the law of the Bank and (v) whether the sanction was proportionate to the offfense.8 The aforementioned decision was consistent with a contemporary decision of the United Nations Administrative Tribunal, the Kiwanuka decision9 and, for many years, the fĳive factors established the bedrock upon which matters in the Bank were examined. The Carew decision articulated the clear understanding that in disciplinary cases, the review was going to be a little bit more rigorous than it was going to be in the usual abuse of discretion type of cases. In this context, the Bank knew what was being looked at by the Tribunal as well as what the Bank was going to be measured against. It was a very good standard.

B. The Arefeen Decision

Some years later and while the principles stated in the Carew decision continued to be regarded as the review standards for misconduct cases, the WBAT rendered the Arefeen decision. In this 2001 decision, the WBAT seemed to create a higher standard for those misconduct cases involving “dismissal”. Indeed, the Tribunal wrote that “the standard of evidence in disciplinary cases leading, as here, to dismissal must be higher than a mere balance of probabilities”. Unlike the Carew decision, the scope of this decision was not quite clear and left the institution with the question of whether the new higher standard applied to all misconduct cases, or only to those cases that involved dismissal as the discipline imposed.

8 Carew, WBAT Decision No. 142 [1995]. 9 See Kiwanuka, UNAT Judgment No. 941 [1999] p. 11 (which established that “In disciplinary cases, the Tribunal generally examines (i) whether the facts on which the disciplinary measures were based have been established, (ii) whether the established facts legally amount to misconduct or serious misconduct, (iii) whether there has been any substantive irregularity (e.g. omission of facts or consideration of irrelevant facts); (iv) whether there has been any procedural irregularity; (v) whether there was an improper motive or abuse of purpose; (vi) whether the sanction is legal; (vii) whether the sanction imposed was disproportionate to the offfence; (viii) and, as in the case of discretionary powers in general, whether there has been arbitrariness”). 200 chapter nine

C. The D Decision

Two years had passed when, in 2003, the Tribunal seemed to be setting a new and enhanced standard of review. In the D Decision, the Tribunal stated, in addition to the standards already established in its previous decisions, that “except in situations in which an accusation is of the most grave and exigent nature, ‘reason to suspect’ will ordinarily require some objective corroboration”10 (emphasis added). The need for objective corroboration appeared for the fĳirst time in the D decision, leaving us with the additional question of whether objective corroboration was going to be the standard for all misconduct cases or only for those that involved dismissal as a remedy. In words of the former judge Gorman “this was an admonition to the Bank’s investigatory authorities that their decisions about misconduct should be reached with greater degree of certitude than would obtain for other managerial decisions”11 however; no specifĳics were given with regard to the scope of objective corroboration.

D. The M Decision

In 2007, 12 years after the Carew decision, the Tribunal continued to “articulate” additional glosses to its standards of review of misconduct cases. This time, in the M decision,12 it stated that where there is no direct evidence; the standard of proof should be “so clear as to generate conviction in the mind of a reasonable person”. Taking into account that this case involved dismissal due to sexual harassment; it was not clear whether the Tribunal had meant to articulate a unique standard for sexual harassment cases only and then only for those where the sanction was termination, or, whether it meant to address all disciplinary cases where circumstantial evidence was relied on as the basis for imposition of discipline. One of the reasons why the sense and scope of most of the WBAT decisions are not as clear or “obvious” as one would think is that “these standards of review are not written in any Bank or Tribunal documents or rules but they are announced by the Tribunal through its inherent authority as an adjudicative body”13 and the Tribunal does this based on a specifĳic set

10 D, WBAT Decision No. 304 [2003] para. 59. 11 Gorman, op. cit., supra n. 4. 12 M, WBAT Decision No. 369 [2007]. 13 Gorman, op. cit., supra n. 4. the world bank administrative tribunal 201 of facts and circumstances before it. In some cases, it will articulate rules in consideration relevantly to those specifĳic facts presented by the case at hand. In other cases, it will articulate rules of general application to a class of cases, for example those involving discipline. “The Tribunal itself has the power to fashion due process rules that are based upon general principles of law” and, as the Tribunal declared in its very fĳirst judgment, de Merode, all of these written and unwritten principles become a part of the stafff member’s contract and terms of employment and so are enforceable by the Tribunal.14 It is therefore, imperative for the Tribunal to issue clear mes- sages on the scope and application of its rulings. Consistency of usage is one important way for the Tribunal to signal its intent. If regardless of the Bank’s effforts to “identify fair procedures for identifying stafff misconduct and for imposing disciplinary measures, there will [always] be alleged misapplications of the Bank’s rules or circumstances will arise that have been unforeseen or left undescribed in those rules”,15 it is necessary that those standards that are to be used to judge the institution be clearly defĳined. Through its decisions on the use of general principles of law, among other sources, and their interpretations of particular principles, the Tribunal is a producer of materials that are directly relevant to the administration of the Bank.16 Unclear rules or standards leave those who have the responsibility to administer the employment relationship with stafff in a confused uncertain state.

14 Gorman, op. cit., supra n. 4. 15 Ibid. 16 See Kingsbury and Stewart, op. cit., supra n. 7.

CHAPTER TEN

IMMUNITY OF INTERNATIONAL ORGANIZATIONS, MARITAL OBLIGATIONS OF THEIR STAFF AND THEIR DUTY TO COMPLY WITH NATIONAL COURT ORDERS: THE DEVELOPMENT OF WORLD BANK PRACTICE AND PROCEDURE

Zakir Hafez

A. Introduction

International organizations and their stafff enjoy certain privileges and immunities.1 The stafff members of the international organizations, however, are obligated not to abuse such privileges to avoid their personal legal obligations. In the context of the World Bank,2 Principle 3.3 of the Principles of Stafff Employment states that: Stafff members shall enjoy, in the interests of their Organizations, privileges, immunities, and facilities to which the Organizations, their offfĳicers and employees are entitled under their respective Articles of Agreement or other applicable treaties or international agreements or other laws. Such privileges, immunities, and facilities shall not excuse stafff members from the performance of their private obligations or from the due observance of the law.3 The internal laws of most international organizations require their stafff to comply with legal obligations imposed by applicable national laws. Stafff members, however, have sometimes failed to comply with national laws

1 See S. Murphy, Principles of International Law (Thomson West, 2006) at 50. 2 The World Bank is also known as the International Bank for Reconstruction and Development (“IBRD”). IBRD Articles of Agreement are available at http://siteresources .worldbank.org/EXTABOUTUS/Resources/ibrd-articlesofagreement.pdf (last visited August 2, 2011). IBRD Articles of Agreement were drawn up at the United Nations Monetary and Financial Conference, at Bretton Woods, New Hampshire, July 1–22, 1944. The governing document became efffective as of December 27, 1945. In addition to IBRD and the International Development Association, three other institutions – the International Finance Corporation (“IFC”), the Multilateral Investment Guarantee Agency (“MIGA”), and the International Centre for Settlement of Investment Disputes (“ICSID”) – together make up the World Bank Group. For details visit www.worldbank.org (last visited August 2, 2011). 3 Principle 3, World Bank Principles of Stafff Employment (1983). Principles of Stafff Employment is an important component of the World Bank’s internal laws that regulate relationship between the Bank and its employees. 204 chapter ten and have abused the privileges derived from their status as stafff of international organizations to avoid their personal legal obligations. In the past, in a number of cases, stafff members of international organizations have refused to comply with spousal and child support orders imposed by national courts pursuant to a divorce decree. Most of the international organizations lacked efffective policies to address the plight of spouses and children of stafff in such cases. Many international organizations, particularly the World Bank, consider a stafff member’s refusal to comply with court-ordered spousal or child support payments as a form of misconduct that could lead to the imposition of disciplinary measures, including termination of employment.4 Indeed, this was the only option the Bank employed to address its stafff members’ refusal to comply with court-ordered support payments. However, this approach was inadequate to address the problems faced by children and divorced spouses of the stafff members. To begin with, the Bank was reluctant to involve itself in the stafff member’s personal afffairs. Moreover, the afffected spouses and family members feared that an investigation could lead to the termination of the stafff member’s employment, which would only complicate their fĳinancial distress. In addition, such termination can afffect family members’ visa status and Bank-sponsored medical coverage because their visas and medical coverage are tied to the stafff member’s employment with the Bank.5 In fact, some spouses did not want to report noncompliance with a court order because any ensuing disciplinary measures could worsen their circumstances. Moreover, the option of undertaking a misconduct investigation was practicable only if the stafff member in question was still an active employee of the Bank.6 Another alternative for the afffected family members of the stafff was to commence garnishment proceedings in national courts against the stafff and the World Bank. However, as explained below, this alternative was also futile because garnishment proceedings could not be brought against the World Bank because of its immunities from national courts.7 In short, if stafff members of the World Bank or other international organizations refused to comply with a national court order relating to spousal or child support, the spouses and the children had no efffective remedy.

4 See E v. IBRD, WBAT Decision No. 325 [2004], para. 21. The judgments of the WBAT are available at www.worldbank.org/tribunal (last visited August 2, 2011). 5 See H (No. 3) v. IBRD, WBAT Decision No. 382 [2008], paras. 7, 23; E v. IBRD, WBAT Decision No. 325 [2004], paras. 21–22. 6 See ibid.; Aleem & Aleem v. IBRD, WBAT Decision No. 424 [2009], para. 58. 7 See Atkinson v. Inter-American Development Bank, 156 F.3d 1335(D.C. Cir. 1998). immunity of international organizations 205

This distressing situation for the afffected family members of the stafff members continued for some time. However, the World Bank started to address this situation in 1995. In that year the Bank amended its Stafff Retirement Plan “SRP”, which regulates stafff pensions, and added a provision that allows the Bank to pay the retiree’s former spouse directly from a retiree’s pension if the retiree is legally obligated to make payments by a fĳinal court order.8 This change, however, addressed the plight of family members of the retirees. No policy changes were made to address the problems of family members of active stafff members. In 1998, the Bank adopted a new policy regarding spousal and child support with respect to active stafff members, largely in response to diplomatic pressure from the United States Department of State. The 1998 Policy allowed the Bank to pay directly from the salary of stafff members to divorced spouses or children if so ordered by a national court. In 2009 the Bank replaced the 1998 Policy with a Stafff Rule that improved and provided a comprehensive procedure to deal with spousal and child support issues. This paper provides an overview of the development of the World Bank policy and procedure regarding child and spousal support payment matters when its stafff members are involved in marital disputes. Part B describes the law relating to the immunity of international organizations like the World Bank. Part C considers how such immunities, if abused by stafff members, create problems for the family members. Part D discusses the 1995 amendment to the Bank’s SRP regarding spousal support. Part E describes the diplomatic effforts of the United States Secretary of State on these matters. Part F discusses the 1998 Bank’s Policy on Spousal and Child Support. Part G explains the 2009 Stafff Rule relating to spousal and child support. Part H provides a brief note on cases under the 1995 amendment and the 1998 Policy as decided by the World Bank Administrative Tribunal. Part I offfers some concluding remarks.

B. The Immunity of the World Bank as an International Organization

International organizations and their offfĳicials are accorded certain privileges and immunities to undertake their work without interference by the

8 Section 5.1(c) of the World Bank Stafff Retirement Plan (as amended and restated on January 1, 2008). 206 chapter ten states in which they operate.9 The conventional law according these privileges and immunities is contained in the constitutions of the organizations, bilateral agreements and multilateral treaties.10 For example, Article VII of the World Bank’s Articles of Agreement provides considerably detailed provisions relating to the scope of the Bank’s privileges and immunities. Section 3 of Article VII states that:

The property and assets of the Bank shall, wheresoever located and by whomsoever held, be immune from all forms of seizure, attachment or execution before the delivery of fĳinal judgment against the Bank.11 In the United States, the immunity of international organizations is also protected by the International Organizations Immunities Act of 1945 (“IOIA”).12 IOIA confers judicial status and immunities upon those international organizations in which the United States participates pursuant to a treaty or congressional act, and which have been designated by the President as being entitled to enjoy the privileges.13 IOIA defĳines the privileges accorded to qualifĳied international organizations as follows:

International organizations, their property and their assets, wherever located, and by whomsoever held, shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments, except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract. Property and assets of international organizations, wherever located and by whomsoever held, shall be immune from search, unless such immunity be expressly waived, and from confĳiscation. The archives of international organizations shall be inviolable.14 The World Bank enjoys the above privileges under the United States law because the United States’ participation in the World Bank has been approved by Congress, and the President Harry Truman by an executive

9 See Murphy, op. cit., supra n. 1; A.J. Miller, “Privileges and Immunities of United Nations Offfĳicials”,4 Int’l Org. L. Rev. 169 (2007). 10 C.F. Amerasinghe, Principles of the Institutional Law of International Organizations (2nd ed. Cambridge University Press, 2005) at 316. 11 The World Bank Articles of Agreement, op. cit., supra n. 2. 12 22 U.S.C. § 288a(b) (2006). For a discussion of the Act, see L. Preuss, “The International Organizations Immunities Act”, 40 Am. J. Int’l L. 332 (1946). 13 22 U.S.C. § 288 (2006). 14 22 U.S.C. § 288a(b)-(c) (2006). immunity of international organizations 207 order properly designated the Bank as a qualifĳied international organization entitled to enjoy the privileges under IOIA.15 In Mendaro v. World Bank,16 the United States courts upheld the immunity of the World Bank from suit in the United States. In this case, Susana Mendaro, a citizen of Argentina, brought suit against the World Bank alleging a pattern of gender discrimination and harassment by her super- visors and fellow workers. She fĳiled the suit in the United States District Court for the District of Columbia for violation of the United States laws that forbids workplace discrimination and harassment based on gender – known as Title VII of the 1964 Civil Rights Act.17 The World Bank responded by moving to dismiss the action on the basis that it is an international organization not subject to its members’ jurisdiction in suit arising out of the Bank’s internal administrative afffairs, such as the alleged violation of its employment contract.18 The District Court upheld the Banks’ immunity and dismissed the suit for lack of jurisdiction.19 Ms. Mendaro then appealed to the United States Court of Appeals for the District of Columbia. In view of the Bank’s Articles of Agreement and IOIA, the Court of Appeals also upheld the Bank’s immunity. The Court explained that: Like the other immunities accorded international organizations, the purpose of immunity from employee actions is rooted in the need to protect international organizations from unilateral control by a member nation over the activities of the international organization within its territory. The sheer difffĳiculty of administering multiple employment practices in each area in which an organization operates suggests that the purposes of an organization could be greatly hampered if it could be subjected to suit by its employees worldwide.20 Mendaro argued that the Bank’s Articles of Agreement in efffect waived the Bank’s right to claim immunities in this type of suit. She invoked as the primary basis of her contention Article VII, Section 3, of the Bank’s Articles of Agreement, which permits actions to be brought against the World Bank “in a court of competent jurisdiction in the territories of a member

15 Mendaro v. World Bank, 717 F.2d 610. 613 (D.C. Cir. 1983) (citing 22 U.S.C. §§ 286, 286h (1976) and Exec. Order No. 9751, 3 C.F.R. 558 (1943–1948 Comp.)). 16 Ibid. 17 Ibid. at 612–613. 18 Ibid. 19 Ibid. 20 Ibid. at 615–616. 208 chapter ten in which the Bank has an offfĳice, has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities”.21 The Court rejected her argument and found no such waiver.22 The Court found that immunity from suit by employees in actions arising out of their employment relationship is one of the most important protections against the peculiarities of national politics.23 The Court added that if an international organization were expected to adhere to all of the employment practices of its member organizations, administrative havoc would ensue, impairing the functioning of the organizations.24

C. Immunity and the Problems Faced by Spouses and Children of Staff Members in the Event of Marital Disputes

Immunity of international organizations created certain problems for the spouses of stafff members when marital disputes occurred. For instance, spouses faced two main problems when they were involved in divorce proceedings. First, spouses faced difffĳiculties in obtaining information on salary and benefĳits of the relevant stafff because the international organizations invoking immunities refused to disclose such information to the spouses of the stafff even if there was a national court order requiring such disclosures. Second, spouses could not enforce court-ordered monetary support after a divorce because, if a stafff member refused to comply, no garnishment proceedings could be brought to attach the salary of a stafff member.25 The case of Atkinson v. Inter-American Development Bank26 illustrates the problems. Ms. Janet Atkinson was the wife of Mr. Robert J. Kestell, a stafff member of the Inter-American Development Bank. In 1993, a Maryland state court granted her a divorce from her husband and awarded her alimony and child support. The stafff member, the former husband,

21 Ibid. at 613. 22 Ibid. at 617–620. 23 Ibid. at 615; see F.W. Henderson, “How Much Immunity for International Organizations?: Mendaro v. World Bank”, 10 N.C.J. Int’l & Com. Reg. 487, 489–490 (1985). 24 Ibid. 25 See Diplomatic Note from U.S. Secretary of State to Chiefs of all International Organizations Designated under IOIA (concerning court-ordered child and spouse support payments) (July 8, 1998) available at http://www.state.gov/documents/ organization/65800.pdf (last visited August 2, 2011). 26 Atkinson v. Inter-American Development Bank, 156 F.3d 1335(D.C. Cir. 1998). immunity of international organizations 209 refused to pay. In 1996, the state court found the former husband in contempt of court for failure to pay alimony and child support and again entered judgment against him. He failed to comply again.27 Ms. Atkinson, in an efffort to enforce the two state court judgments against her former husband by garnishing his wages, sought a declaratory judgment in the United States District Court for the District of Columbia that her husband’s employer, the Inter-American Development Bank, is not immune from garnishment proceedings. The Inter-American Bank objected, arguing that it was immune from such proceedings.28 The District Court concluded that the Inter-American Development Bank was entitled to immunity under IOIA and thus dismissed the declaratory judgment action. Ms. Atkinson then appealed to the United States Court of Appeals for the District of Columbia. Upholding the District Court, the Court of Appeals also concluded that the Inter-American Bank was immune from garnishment proceedings under IOIA.29 Ms. Atkinson considered that the history of her fĳight to enforce the judgments against her former husband resembled “a Greek tragedy”.30 She was disappointed to fĳind out that the United States courts were not the appropriate fora to remedy her “tragedy” because the immunity of international organizations was well-established under United States domestic laws. She found herself without remedy.

D. The 1995 Amendment to the World Bank’s Staff Retirement Plan with Respect to Spousal Support

The situation of spouses like Ms. Atkinson could arise where international organizations do not have an internal policy in place allowing for the deduction from the wages of stafff members or from the pension of retired stafff to comply with court-ordered spousal or child support. The problem of the spouses of retired stafff members was explained as follows in a recent judgment of the World Bank Administrative Tribunal (“the Tribunal”):

27 Ibid. at 1336-1337. 28 Ibid. 29 Ibid. at 1337-1343. 30 Brief of Ms. Janet Atkinson fĳiled with the United States Court of Appeals for the District of Columbia Circuit dated February 11, 1998, available at www.westlaw.com (last visited August 2, 2011). 210 chapter ten

[I]t had been possible for Bank Group stafff members to divorce their spouses in retirement or shortly before retirement and leave them without means of support in their old age. Because of the Bank’s immunities, and the SRP’s prohibition on alienation (including garnishments and assignments) of Plan benefĳits, former spouses had no legal ability to recover portions of a Bank Group retiree’s pension if the retiree left the jurisdiction or otherwise refused to pay the former spouse directly, whether voluntarily or following a valid court order.31 However, in 1995 the World Bank started to change its internal policy to address these problems. As a fĳirst step, in 1995 the Bank amended its SRP to permit it to make payments directly to a former or separated spouse of a retiree from the retiree’s pension if so ordered by a court. Section 5.1(c) of the SRP provides as follows: A participant or a retired participant, pursuant to a legal obligation, as evidenced by a fĳinal order of a court, arising from a marital relationship to support one or more former spouses, or a spouse from whom there is a decree of legal separation, may direct that a specifĳied amount or part of a pension … shall be paid to one or more such former spouses or the spouse. If the participant or retired participant is obligated by a fĳinal order of a court to direct that such a payment be made, the Benefĳits Administrator shall pay the pension or lump sum payment accordingly after receipt of the order; provided, however, that neither the participant, retired participant, nor the Benefĳits Administrator may convey an interest in the Retirement Trust Fund of the Plan or in the pension or other benefĳits of a participant or retired participant to any person.32 The Bank is now required to pay court-ordered support payments directly from a retiree’s pension to a former or separated spouse without the retiree’s consent or cooperation. When the retiree cooperates and consents to such payment to the former spouse, implementation of Section 5.1(c) is straightforward. However, in cases where the retiree does not cooperate, the Bank implements Section 5.1(c) in the following manner. The former spouse (or legally separated spouse) must submit a fĳinal order or a decree from a court of competent jurisdiction directing the Bank retiree to pay support to the former spouse. Only orders of spousal support or alimony are recognized by the Bank. After receiving a valid court order, the Bank will notify the retiree of the order that payments to the former spouse will commence on a specifĳic date, unless the retiree makes an objection within

31 Aleem & Aleem v. IBRD, WBAT Decision No. 424 [2009], para. 58. 32 Section 5.1(c) of the World Bank Stafff Retirement Plan (as amended and restated on January 1, 2008). immunity of international organizations 211 a specifĳied period. If the retiree raises a bona fĳide objection or the court order is ambiguous, payments to the former spouse will be suspended until the matter is resolved by the parties or by the Tribunal.33

E. The 1998 Diplomatic Note of the United States Secretary of State to International Organizations

The 1995 amendment to the World Bank’s SRP only resolved the problems of spouses of retired stafff, and not those of spouses and children of active stafff. The problems faced by the children and spouses of stafff members at international organizations eventually were brought to the attention of the United States Department of State. On July 8, 1998, the United States Secretary of State, Ms. Madeleine Albright, sent a Diplomatic Note to all the Chiefs of International Organizations designated under IOIA. The Diplomatic Note reads as follows: The Secretary of State presents her compliments to Their Excellencies and Messieurs and Mesdames the Chiefs of International Organizations designated under the International Organizations Immunities Act (IOIA) and has the honor to draw to their attention an issue of importance to the United States Government; that is, full compliance by employees of international organizations with court-ordered child and spouse support payment. It is recognized and generally accepted that international organizations need privileges and immunities in order to carry out their functions. The United States Government believes, however, that it is highly inappropriate for international organizations to allow their privileges and immunities to be used by employees of the organizations to avoid meeting their court- ordered obligations to divorced spouses and dependent children. Recent cases drawn to the attention of the Department of State indicate that the practices and policies of some international organizations are not efffective in ensuring prompt compliance with court orders in family separations and divorce proceedings involving employees of the organizations. The Secretary of State requests that steps be taken promptly to ensure that all international organizations designated under the IOIA voluntarily provide court-ordered or subpoenaed information required to determine the salary and benefĳits of an employee involved in divorce and family law proceedings, and that all international organizations voluntarily take steps to enforce court-ordered payments to divorced spouses and dependent

33 See Mills v. IBRD, WBAT Decision No. 383 [2008]; see also Note on the World Bank Stafff Retirement Plan: Payment of Spousal Support from Participant’s Pension (undated) (on fĳile with author). 212 chapter ten

children. Moreover, the Secretary of State requests that the international organizations undertake to ensure that the international organizations’ policies and practices in this regard are transparent and readily available to employees and spouses who may be engaged in family separation and divorce proceedings. The Secretary of State commends those international organizations which have already taken steps to establish such practices and policies, and encourages others to do so as soon as possible. Otherwise, the perception that immunities are being used to avoid just fĳinancial obligations is likely to lead to the imposition of non-voluntary remedies which may result in either diminution of privileges and immunities under the IOIA or protracted litigation, neither of which is in the best interest of the international organizations community. The United States Government is considering various means to address this problem. To enable the Department of State to represent accurately to other entities of the United States Government the international organizations’ policies and practices with respect to court-ordered child and spouse support, as well as the measures taken to inform employees and spouses of these practices and policies, the chiefs of the international organizations are also requested to provide the Department of State with the most current information available about their organization on this subject. Additionally, the organizations are requested to inform the Department of State of the name and title of the person charged with the responsibility for developing and implementing such policies and practices so that the Department of State may consult further as needed.34 In the cover letter transmitting this Note, to the President of the World Bank, the Secretary emphasized that the World Bank should not be seen “as protecting individuals who refuse to provide for their children and former spouses”.35 The Secretary urged the President of the Bank to uses his “good offfĳices to ensure that the World Bank’s practices and policies with respect to court-ordered child and spouse support are properly designed and carried out”.36 The diplomatic effforts by the Secretary of State played a role in bringing changes to the practice of the international organizations, particularly at the World Bank. In a letter to the Secretary of State dated July 20, 1998, the President of the World Bank informed the Secretary that the World Bank

34 Diplomatic Note from United States Secretary of State to Chiefs of all International Organizations Designated under IOIA, op. cit., supra n. 25. 35 Letter from Ms. Madeleine Albright, United States Secretary of State, to Mr. James Wolfensohn, President of the World Bank, dated July 8, 1998 (on fĳile with author). 36 Ibid. immunity of international organizations 213 would immediately “put into place procedures to ensure the enforcement of court-ordered child support or spouse-support payments”.37

F. The World Bank Policy on Spousal and Child Support of 1998

In October 1998 the World Bank announced with immediate efffectThe Bank Group’s Policy on Stafff Compliance With Legal Obligations to Provide Salary and Benefĳits Information and Spousal and Child Support.38 The Policy stressed that the Bank’s “immunities should not be used to shield stafff from their personal legal obligations. This principle becomes paramount with regard to support obligations of stafff to their own family members”. Accordingly, the Policy adopted the following “procedures designed to ensure provision of pertinent information relating to salary and benefĳits to spouses, and greater compliance with spousal and child support obligations”. First, the Policy stated that “where there is a fĳinal court order or request from a judicial or civil authority in the context of divorce or child support requiring the stafff member to provide salary and/or benefĳits information”, the following procedure would apply: In cases where such a fĳinal court order or request is submitted to the Bank Group, the matter will be brought to the attention of the Offfĳice of Professional Ethics, which will remind the stafff member of the obligations imposed upon all stafff to meet their personal legal obligations and counsel the concerned stafff member to provide the requested information directly to the spouse or other family member. If the stafff member does not provide the Bank Group with evidence of having responded to the court order or request within 30 calendar days thereafter, the Bank Group may provide the spouse, former spouse or child (or a legal representative of any of them) all or some of the following information, as requested by the Court: i. the stafff member’s net salary, gross compensation (if applicable) and accrued separation grant (if applicable); ii. the stafff member’s accrued SRP benefĳit as of the date of the request; and iii. the identity of the stafff member’s designated benefĳiciaries, if any, for purposes of SRP death benefĳits and life insurance benefĳits.39

37 Letter from Mr. James Wolfensohn, President of the World Bank, to Ms. Madeleine Albright, United States Secretary of State, dated July 20, 1998 (on fĳile with author). 38 The Bank Group’s Intranet Kiosk Announcement of October 23, 1998 (on fĳile with author). 39 Ibid. 214 chapter ten

Second, the Policy also stated that the following procedure would apply regarding compliance with spousal and child support orders: In cases where a fĳinal court order requiring a stafff member to make payments of spousal or child support (or one evidencing the failure to make such payments) is brought to the attention of the Bank Group, the matter will be brought to the attention of the Offfĳice of Professional Ethics, which will advise the stafff member of the need to comply with personal legal obligations. If, within 30 calendar days thereafter, the stafff member has not furnished the Offfĳice of Professional Ethics with evidence establishing that the required payments were made in whole or in part, and if the documentation evidences the clear legal obligation of the stafff member to make monthly payments of a readily ascertainable amount or percentage of salary, the Bank Group will accordingly commence deductions from a stafff member’s salary of such percentage or amount. The amounts deducted will then be directed to the spouse, former spouse or child, in accordance with the order. This policy will be consistently applied wherever the legal requirements are fulfĳilled, without waiving the organizations’ immunities.40

G. Staff Rule 3.06 Family Obligations – Spouse and (or) Child Support Obligations and Divorce (2009)

In 2009, the Bank adopted Stafff Rule 3.06 replacing the 1998 Policy on Spousal and Child Support. This Stafff Rule now provides detailed procedures “to ensure compliance by stafff members with their personal legal obligations regarding spouse and child support and divorce”.41 Stafff Rule 3.06 contains the following main components. First, Paragraph 2.01 of Stafff Rule 3.06 states in explicit terms that: “Stafff members must comply with their personal legal obligations and observe applicable law, including all obligations involving fĳinancial support to family members through spouse and/or child support”.42 Second, Paragraph 2.02 authorizes the Bank to commence deductions from a stafff member’s salary for spousal and/or child support to satisfy a court order or request. Paragraph 2.02 also sets forth the criteria the Bank would consider in commencing deductions from the salary as follows:

40 Ibid. 41 Stafff Rule 3.06 Family Obligations – Spouse and (or) Child Support Obligations and Divorce (last amended on July 1, 2009). 42 Ibid. immunity of international organizations 215

The Bank Group may commence deductions from a stafff member’s salary for spouse and/or child support if all the following criteria are met: a. the Bank Group receives an original, copy or certifĳied copy of a court order or request from a judicial or administrative authority that: i. evidences a legal obligation of a stafff member to make payment of a readily ascertainable amount or percentage of salary; and ii. orders a stafff member to make payments for spouse and/or child support, or evidences the stafff member’s underlying obligation or failure to make those payments; and b. the stafff member fails to furnish to the Bank Group, through its Offfĳice of Ethics and Business Conduct (EBC), evidence that he/she has complied with his/her personal legal obligations as set forth in that court order or request after being contacted by EBC in accordance with this Rule.43 Third, Paragraphs 2.03 and 2.04 contain the procedures for commencing deductions from a stafff member’s salary. Upon receipt of a court order or request, the Bank may seek additional information from the sender of the court order. When the Bank is satisfĳied that information and documentation relating to the court order or request is complete, it will forward the matter to the Bank’s Offfĳice of Ethics and Business Conduct “EBC”. EBC will then contact and advise the stafff member concerned of the need to comply with personal legal obligations as set forth in the court order or request. If, within fĳive business days of such contact with the stafff member, the stafff member has not furnished EBC with evidence establishing compliance with the court order or request, EBC then may authorize deductions of the amounts for spousal and/or child support from the stafff member’s salary in accordance with the court order or request.44 Compared to the 1998 Policy, Stafff Rule 3.06 deals with the matter of stafff compliance with marital obligations in a comprehensive manner. In addition to providing criteria and procedure for compliance with court orders as outlined above, Stafff Rule 3.06 also contains specifĳic sections relating to “Repeater Submissions of Court Orders or Requests”, “Commencement of Salary Deductions”, “Divorce”, “Pendente Lite Spouse and/or Child Support Orders”, and “Challenged Court Orders and Request”.45

43 Ibid. 44 Ibid. 45 Ibid. 216 chapter ten

Also in 2009, the Bank revised its Stafff Rule 2.01 to prevent a stafff member blocking access by a spouse to their salary and benefĳits (including pension and insurance) information.46 Prior to this revision, stafff members were able to block spouse access to such information for any reason, making it necessary for the spouse to get a court order for the release of information, which would be recognized by the Bank in accordance with the 1998 Policy on Spousal and Child Support. Although, spouses were able to get salary information after 1998, they would still need to follow the procedures for obtaining a court order and then seek the release by the Bank of the salary and benefĳits information. The revision to Stafff Rule 2.01 removes such delay and allows a spouse to contact the Bank directly to request such information.47

H. Cases on the Application of the 1995 Amendment to the Bank’s SRP and the 1998 Bank Policy on Spousal and Child Support

The Tribunal is the ultimate arbiter of employment disputes arising between the World Bank Group and its employees. The active and retired stafff members as well as their spouses48 can ultimately challenge Bank actions before the Tribunal with respect to the Bank’s application of the 1995 amendment and the 1998 Policy to their respective cases. Thus far the Tribunal has decided four cases on the issue. The fĳirst case was decided in 2004 involving the application of the 1998 Policy on Spousal and Child Support.49 The remaining three cases decided in 2008 and 2009 involved application of the 1995 amendment to the SRP. A brief discussion of these cases is provided below.

46 Stafff Rule 2.01 (Confĳidentiality of Personnel Information (last amended on August 24, 2010). 47 See ibid. 48 Under Article II(1) of the Tribunal’s Statute, a member of the stafff of the Bank Group has standing before the Tribunal. Article II(3) of the Statute states that “the expression ‘member of the stafff’ means any current or former member of the stafff of the Bank Group, any person who is entitled to claim upon a right of a member of the stafff as a personal representative or by reason of the stafff member’s death, and any person designated or otherwise entitled to receive a payment under any provision of the Stafff Retirement Plan”. 49 Thus far no case has been brought before the Tribunal involving Stafff Rule 3.06. immunity of international organizations 217

1. Cases under the 1998 Bank Policy on Spousal and Child Support 1.1. E v. IBRD, WBAT Decision No. 325 [2004] The Applicant (Mr. E),50 a stafff member, and his wife, Mrs. E, were married in 1985 and their principal place of residence was in Virginia.51 The Applicant and his wife obtained a mortgage on their Virginia house through the Bank-Fund Stafff Federal Credit Union (“Credit Union”), and the Applicant made regular monthly mortgage payments to the Credit Union, by automatic deductions from his Credit Union checking account.52 In May 1992, the Applicant and Mrs. E (as co-signer) also entered into a loan agreement with the Bank pursuant to the Bank’s program for housing assistance (the “World Bank Housing Loan”).53 The Bank took no formal security interest, including in the Virginia property, for this Housing Loan.54 The Applicant had been repaying the loan over time through deductions from his regular Bank salary.55 The Applicant and his wife divorced in December 2001.56 The Divorce Decree, entered by a Circuit Court in Virginia, ordered the Applicant to provide child and spousal support.57 The Court also awarded the Virginia house to the wife but stated that if the Applicant continued to pay the mortgage then he was entitled to deduct the mortgage payments from his support payments.58 After the divorce, the Applicant and Mrs. E disagreed regarding the exact scope and compliance aspects of the Divorce Decree.59 According to the Applicant, in addition to the monthly mortgage payment to the Credit Union as mortgagee, the monthly World Bank Housing Loan repayment was also a “mortgage payment” that he was entitled by the Divorce Decree to credit against, or deduct from, the monthly support payments.60 Mrs. E believed that the World Bank housing loan payment was not a

50 An applicant can request anonymity before the Tribunal. If such request is granted then the Applicant’s name is not disclosed (Rule 28 of the Tribunal’s Rules). 51 E, WBAT Decision No. 325 [2004], para. 4. 52 Ibid. 53 Ibid. para. 5. 54 Ibid. 55 Ibid. 56 Ibid. para. 6. 57 Ibid. 58 Ibid. 59 Ibid. para. 8. 60 Ibid. para. 12. 218 chapter ten mortgage payment and as such he could not deduct it from his monthly spousal support.61 Mrs. E then approached the Bank and requested that it take action to ensure that her former husband, a Bank stafff member, complied with the Virginia court order.62 The Bank concluded that the Housing Loan could not properly be characterized as part of the “mortgage” referred to in the Divorce Decree.63 Based on the 1998 Child and Spousal Support Policy, the Bank started deducting the monthly court-ordered support payments from the Applicant’s salary and started paying it directly to the Applicant’s former wife.64 The Bank decided to deduct from the support payments only the monthly mortgage payments to the Credit Union and did not deduct the repayments of the unsecured Bank Group Housing Loan.65 The Bank concluded that the Divorce Decree was unambiguous in not allowing a credit for his repayment of the Housing Loan, as it was not a “mortgage”.66 In April 2004 the Applicant fĳiled an application with the Tribunal.67 He asserted that the Bank misconstrued the terms of the Divorce Decree and in particular that it has improperly disallowed his taking into account his payments of the World Bank Housing Loan as a credit against his spousal support obligations.68 The Tribunal found in favor of the Applicant and in so doing made a number of observations. First, the Tribunal concluded that the 1998 Policy on Child and Spousal Support is indeed a valid policy stating that “the 1998 Bank Policy is lawful to the extent that it manifests a concern for the enforcement of spousal and child support orders directed against stafff members, and seeks to establish a procedure for implementing that goal”.69 Second, the Tribunal emphasized that the Bank, and the Tribunal, must abstain from interpreting ambiguous divorce decrees: “the Bank must avoid interpreting or construing the ambiguous or unclear provisions of a decree of a national court. This is to be done by the judicial authorities so

61 Ibid. para. 9. 62 Ibid. paras. 8–9. 63 Ibid. paras. 13–17. 64 Ibid. 65 Ibid. 66 Ibid. 67 Ibid. para. 19. 68 Ibid. 69 Ibid. para. 25. immunity of international organizations 219 charged by national law, and not by an offfĳicial within an international organization such as the World Bank”.70 Third, the Tribunal clarifĳied that the 1998 Bank Policy allows the Bank to deduct salaries from a stafff member to comply with court-ordered support payments only if the court order is clear.71 If the divorce decree or the court order raises reasonable doubt as to its exact meaning, then the Bank should not get involved in interpreting such court order and cannot apply the 1998 Policy in such cases.72 The Tribunal concluded that “the Bank and its internal agencies … should, when called upon to examine the judgments of national courts, refrain from resolving plausible conflicting interpretive claims”.73 Finally, the Tribunal found that the conflicting interpretations of the Divorce Decree, presented to the Bank by the Applicant and by his former spouse concerning the crediting of “mortgage” payments made by the Applicant raised a genuine and reasonable doubt as to the meaning of that word within the context of the Decree.74 The Tribunal stated that given the ambitious language of the divorce decree one might reasonably conclude that “the Virginia court meant to allow for such credits not only for the Applicant’s mortgage payments but also for his payment of related expenses, such as the 1992 Housing Loan”.75 The Tribunal emphasized that when such reasonable doubt exists as to the meaning of divorce decree, the Bank cannot simply get involved in interpreting such ambiguous decree to apply the 1998 policy. The Tribunal stated: That the [Bank] has lost sight of this basic fact – and of the signifĳicant limitations upon its powers – is demonstrated by its seriously mistaken assertion in its pleadings: “[E]ven if the court meant to interpret the IBRD housing loan as a mortgage, the court would quite simply have been wrong. As discussed earlier, IBRD housing loans are not mortgages”. (Emphasis in original.) As should be inferred from what the Tribunal has already stated above, it is not for the Bank to instruct the courts of the state of Virginia as to the correct meaning of terms in the decrees of those courts. The issue here was whether the court intended to allow the Applicant to reduce his support obligation by the periodic payments made by him in connection with his World Bank Housing Loan. That was a judgment for that court to make, whether its terminology was artful or not, and it is altogether beyond the

70 Ibid. para. 26. 71 See ibid. para. 32. 72 Ibid. 73 Ibid. para. 32. 74 Ibid. para. 34. 75 Ibid. para. 36. 220 chapter ten

power of the Bank to declare that the national court would be “quite simply” wrong in the interpretation of its own language. In sum, the Tribunal concludes that [the Bank] erred when [it] concluded that the Decree was “clear” and that the credit against the Applicant’s spousal support payments properly to be given for his “mortgage” payments was “readily ascertainable” – and was limited to the formal mortgage payments directed to the Credit Union. This error rendered these disputed decisions beyond the limited power of [the Bank] in contravention of the 1998 Bank Policy.76 The Tribunal however stated that it “does not follow from the Tribunal’s judgment that the claim of the Applicant’s former spouse of entitlement to a greater support payment is foreclosed. It simply means that the burden lies upon Mrs. E, should she wish to vindicate her position, to turn to the Virginia courts”.77

2. Cases under 1995 Amendment to the SRP 2.1. Mills v. IBRD, WBAT Decision No. 383 [2008] The Applicant joined the Bank in 1986 and retired in 2006.78 The Applicant and his wife, Mrs. Mills, got divorced in August 2004.79 The Applicant agreed that his former wife would have a 41% share of his monthly Bank pension.80 In September 2005, the Maryland Circuit Court for Montgomery County (“the Circuit Court”) entered an order (“Original Order”) reflecting this agreement whereby the Applicant’s former wife would receive 41% of the Applicant’s pension.81 Mrs. Mills then submitted the Original Order to the Bank. The Bank explained to Mrs. Mills that, while the Order required spousal support to be deducted from pension annuities, it did not address the situation that would arise if the Applicant chose to convert up to a third of his pension to a lump sum pension (“commutation”), which the Applicant ultimately did.82 Mrs. Mills then obtained an Amended Order from the Circuit Court in September 2006.83 The Amended Order, like the Original Order, required

76 Ibid. paras. 39–40. 77 Ibid. para. 41. 78 Mills v. IBRD, WBAT Decision No. 383 [2008], para. 3. 79 Ibid. 80 Ibid. para. 5. 81 Ibid. 82 Ibid. para. 7. 83 Ibid. para. 9. immunity of international organizations 221 that 41% of the Applicant’s pension be paid to Mrs. Mills.84 The Amended Order also established that if the Applicant opted for a commuted pension amount then Mrs. Mills would receive 41% of the Applicant’s commuted benefĳit.85 The Applicant informed the Bank in October 2006 that he had decided to fĳile an appeal in the Maryland courts against the Amended Order, and argued that, in any event, the Bank should not enforce the Amended Order as it did not comply with the SRP.86 The Bank wrote to the Applicant in January 2007, seeking to clarify the scope of the appeal and noting that no appeal had been fĳiled against the Original Order.87 The Bank informed the Applicant in February 2007 that its Plan Administrator had decided to pay 41% of the monthly pension to Mrs. Mills as required in the Original Order under Section 5.1(c) of the SRP.88 The Bank also informed that the payment of 41% of the commuted amount would remain suspended under Section 12.2 as this question was the subject of appeal.89 The Pension Benefĳits Administration Committee (“PBAC”) in July 2007 confĳirmed the decision of the Plan Administrator. The Applicant then fĳiled an application with Tribunal challenging the decision of the Bank, i.e. that of the PBAC.90 In dismissing the Applicant’s claims, the Tribunal addressed a number of important points. First, under Section 5.1(c), payment from a retiree’s pension can be made to a former spouse pursuant to a court order only if the order comes in the form of spousal support. The Applicant argued that these Orders, properly construed, were not for spousal support, but rather provided for the division of marital property disguised as spousal support. The Tribunal found the court orders were in fact for spousal support and as such complied with Section 5.1(c) of the SRP.91 The Tribunal found that “it was clearly explained in the Original Order that it did not require the Plan to provide any type or form of benefĳit, option or payment to Mrs. Mills that was not permitted by the Plan. The Order also clearly stated that it should not be deemed to efffect a division of the property rights between the Applicant and Mrs. Mills. The Order thus carefully ensured its

84 Ibid. 85 Ibid. 86 Ibid. para. 10. 87 Ibid. para. 15. 88 Ibid. 89 Ibid. 90 Ibid. 91 Ibid. paras. 39–41. 222 chapter ten compatibility with the Plan, and respected the Bank’s privileges and immunities”.92 Second, under Section 5.1(c), the Bank can only deduct payments from a retiree’s pension if the court orders directing support payments are clear. The Applicant also argued that court orders were not clear and should therefore not be implemented by the Bank. The Tribunal found that “Court Orders are quite clear in ordering the direct payment of spousal support”.93 The Tribunal noted that while the Bank should abstain from interpreting and implementing court orders when they are ambiguous, the “situation is diffferent where the court order is plainly clear and valid”.94 The Tribunal found that the Original Order directing the Applicant to pay 41% of his monthly pension to his former spouse was clear, and as such the Bank was correct in implementing the Order. The Tribunal concluded that “unlike the situation in E, the Bank was well within its powers in not requiring that the Order be referred elsewhere for interpretation”.95 Third, under Section 5.1(c), the Bank can only deduct payments from a retiree’s pension if the court orders directing support payments are fĳinal. The Applicant argued that the court orders at issue were not fĳinal. The Tribunal found that the Original Order directing the Applicant to pay 41% of his monthly pension to his former spouse was fĳinal and as such the Bank was right in commencing the payments.96 The Tribunal noted that the Applicant did fĳile an appeal but that was only with respect to the Amended Order relating to the issue of commutation, not with respect to the Original Order that dealt with the issue of monthly Bank pension. The Tribunal concluded that “those parts of the Original Order that were not disputed, in particular the monthly payments, could be implemented without the need to await for any further judicial action in respect of an Amended Order which would clarify only the issue of commutation”.97 Moreover, the Tribunal found that the Bank’s decision to suspend the 41% payment of the commutation to the former spouse was valid under Section 12.2 of the SRP because of the objections raised by the Applicant to the Amended Order which were also the subject of an appeal.98 Finally, noting that the appeal against the Amended Order was rejected by the

92 Ibid. para. 44. 93 Ibid. para. 39. 94 Ibid. para. 35. 95 Ibid. para. 43. 96 Ibid. paras. 47–53. 97 Ibid. 98 Ibid. immunity of international organizations 223

Maryland courts, the Tribunal concluded that the Amended Order on the issue of commutation was fĳinal and accordingly ordered the Bank to release the suspended portion of the commutation pension to the former spouse.99

2.2 Homayoun v. IBRD, WBAT Decision No. 403 [2009] The stafff member, Mr. X, began his employment with the International Finance Corporation (“IFC”) in December 1985 and became an SRP participant as of that date. His employment with IFC ended in 2007.100 Mr. X was 56 years old at that time and was eligible to withdraw unreduced pension under Section 3.3 of the SRP.101 He, however, did not take any steps to commence his monthly pension.102 Mr. X and his wife, Mrs. Shohreh Homayoun, were married in Iran in 1980.103 The couple got divorced in the District of Columbia and in March 2007 the Superior Court of the District of Columbia made an order “50% (fĳifty percent) of [Mr. X’s] pension from the World Bank, if and when paid to him, whether in the form of a lump sum or in the form of periodic payment or both”.104 In March 2007, Mrs. Homayoun submitted the court order to the Bank to obtain her portion of Mr. X’s pension under Section 5.1(c) of the SRP.105 The Plan Administrator of the Bank refused, stating that Mr. X had not elected to commence his pension. In June 2008, after waiting for more than a year, the Applicant submitted a request for relief to PBAC.106 PBAC refused relief, and explained that under the terms of Section 3.3, Mr. X would need to elect to commence his unreduced early retirement pension, and only then would his pension be “payable” for purposes of Section 5.1(c).107 If he failed to submit an election for an early retirement pension, a normal retirement pension would automatically become efffective when he attained the age of 62 in accordance with Section 3.2(a)(1) of the SRP.108 PBAC further noted that the Court orders did not explicitly

99 Ibid. para.65. 100 Homayoun v. IBRD, WBAT Decision No. 403 [2009], para. 8. 101 Ibid. 102 Ibid. para. 11. 103 Ibid. para. 8. 104 Ibid. para. 9. 105 Ibid. paras. 10–13. 106 Ibid. paras. 10–13. 107 Ibid. 108 Ibid. 224 chapter ten require Mr. X to take the necessary steps to commence his pension at the earliest possible commencement date. PBAC also noted that with each month of Mr. X’s delay both the Applicant and Mr. X incurred fĳinancial loss and the election to commence the unreduced pension cannot be submitted with retroactive efffect.109 PBAC concluded: While it might be possible for one to conclude that [Mr. X’s] actions have violated the spirit of the Court Orders, it would be up to the District of Columbia courts, rather than the Committee, to reach such a conclusion. The Committee therefore regrettably believes that it has no leeway under the current terms of the Plan to commence [the Applicant’s] portion of the pension before [Mr. X] reaches age 62.110 Mrs. Homayoun then fĳiled an application with the Tribunal in February 2009 and requested that the Tribunal instruct PBAC to reverse its decision and to order the Plan to pay the Applicant one-half of Mr. X’s retirement pension without waiting for him to make an election, or to reach the age at which payments would begin automatically.111 The Tribunal dismissed Mrs. Homayoun’s application. It found that the conditions required by the SRP for granting the benefĳits requested by her had not been met and that PBAC correctly interpreted the terms of the SRP. The Tribunal explained that: Section 5.1(c) of the SRP … thus requires that direct payments made by Pension Administration to a spouse must be made from pension entitlements that are payable. Amounts accessible under the SRP’s early retirement provisions become payable only after the four conditions set out in paragraph 3.3(a) of the SRP … are satisfĳied. Mr. X fulfĳilled three of these four conditions: he had attained 50 years of age; he was a participant in service on 14 April 1998; and he had not received a severance payment from IFC. However, in order for such pension to be payable, he must also fulfĳill the fourth requirement, namely to elect to receive the unreduced pension. Paragraphs (b) and (c) of Section 3.3 underscore the importance of this election as a prerequisite to the unreduced early retirement pension becoming efffective. As Mr. X has not made the required election, his pension is not payable. … As noted correctly by PBAC, the texts of the relevant Court orders do not explicitly require Mr. X to “take the necessary steps to commence his pension at the earliest possible commencement date”. On the contrary, as PBAC pointed out, the orders “require the direction of spousal support payments

109 Ibid. 110 Ibid. para. 13. 111 Ibid. para. 14. immunity of international organizations 225

from [the Participant’s] Plan benefĳits whenever his pension commences”. The Court orders simply provide that 50% of Mr. X’s pension will be payable to his former spouse if and when Mr. X’s pension commences. It is possible that the Court did not appreciate that the pension payments would not become payable under the Bank’s rules until there had been an event, namely election, that is in the volition of the retiring stafff member. But the Tribunal does not presume to speculate upon the Court’s unstated premises. … The Tribunal fĳinds that by declining to pay out a portion of Mr. X’s pension to the Applicant, PBAC did not contravene the terms of the SRP.112 The Tribunal certainly understood the awkwardness of the situation. Mr. X in fact was losing money by not electing to receive his unreduced pension, and his former wife was being hurt by his nonelection. Yet the Tribunal felt that it was not its duty to fĳill the lacuna that existed in the SRP. The Tribunal recalled its limitations as stated in E: “it is beyond the powers of the Bank to interpret and implement unclear language in the decrees of national courts”.113 The Tribunal stated that: Perhaps the Bank had not considered the hypothesis of stafff members omit- ting to make an election. It may have appeared wholly implausible to the drafters that a stafff member would leave money on the table. If the Bank wished to avoid this possibility, it could amend its rules to address the situation where a stafff member does not make an election. But given the current wording of the applicable rules, there is no warrant for the Tribunal to impose an election where none has been made.114 The Tribunal also stated that it was not its duty to fĳill any lacunae in the court order; it was up to Mrs. Homayoun to take actions to enforce the court order. The Tribunal added that: “For example, the Applicant might seek from the Court an order requiring Mr. X either to make specifĳied payments to her or to take necessary steps to obtain access to his pension entitlements from the Bank within a specifĳied period of time. It would then be for the Court to determine whether there are legal and factual bases for it to issue any further order”.115

2.3 Aleem & Aleem v. IBRD, WBAT Decision No. 424 [2009] Mr. Aleem joined the Bank in 1985 and retired in 2004. He and his wife moved to Maryland in 1985 and lived there during the duration of

112 Ibid. paras. 24–28. 113 Ibid. para. 27. 114 Ibid. para. 26. 115 Ibid. para. 31. 226 chapter ten

Mr. Aleem’s employment at the Bank. He and his wife are Pakistani citizens and were married in Pakistan in 1980 under the laws of Pakistan. In March 2003, after some 23 years of marriage, Ms. Aleem fĳiled a complaint with the Circuit Court for Montgomery County, Maryland, seeking a limited divorce.116 While the Maryland proceedings were in progress, on June 30, 2003, Mr. Aleem divorced his wife under the laws of Pakistan at the Pakistani Embassy in Washington, DC. There he signed a “Divorce Deed”, which inter alia states that “I … hereby divorce [Ms. Farah Aleem] by pronouncing upon her Divorce/Talaq three times irrevocably and by severing all connections of husband and wife with her forever and for good”. Mr. Aleem also drew a check in favor of Ms. Aleem in the amount of $2,500 as “Maher in full and fĳinal settlement”. He sent the Divorce Deed and the check to Ms. Aleem on July 23, 2003 and in Mr. Aleem’s view his divorce under Pakistan laws became efffective from that date.117 In April 2004, Mr. Aleem fĳiled with the Circuit Court a Motion to Dismiss the Maryland proceedings because “the Pakistani authorities have already decided the issues of divorce and property distribution”. After a hearing, the Circuit Court dismissed Mr. Aleem’s Motion in May 2004 stating that “this Court is not required to grant comity to the Pakistani divorce decree”.118 On June 27, 2006, the Circuit Court after a three-day trial granted an absolute divorce. On June 29, 2006, the Court also issued an order for spousal support (“Circuit Court Order” or “Maryland Order”) directing Mr. Aleem to pay his former wife, until the death of either party, 50% of his monthly benefĳit from the Bank’s Stafff Retirement Plan (“Plan” or “SRP”).119 Mr. Aleem ultimately appealed to the Court of Appeals of Maryland, the highest court of that State, stating that the Circuit Court should have given comity to the Pakistani divorce decree. On May 6, 2008, the Court of Appeals dismissed his appeal and stated that it would not grant comity to the Pakistani divorce because it was repugnant to Maryland public policy.120 The Court found that the Pakistani law requiring title-based division of marital property is in conflict with Maryland law, which provides equitable distribution upon divorce.121 The Court also stated that the courts of

116 Aleem & Aleem v. IBRD, op. cit, supra. n. 6, paras. 3–6. 117 Ibid. paras. 7–8. 118 Ibid. para. 15. 119 Ibid. para. 16. 120 Aleem v. Aleem, 947 A.2d 489 (2008). 121 Ibid. immunity of international organizations 227

Maryland would not recognize the unilateral talaq in this case because it provided insufffĳicient due process to the wife.122 On May 13, 2008, Ms. Aleem notifĳied the Bank’s Pension Administration of the ruling of the Maryland Court of Appeals and requested payment to Ms. Aleem pursuant to the Maryland court orders. Mr. Aleem objected, stating that the Pakistani divorce should apply. Pension Administration then decided to suspend the disputed portion of the pension and referred the case to the Bank’s Pension Benefĳits Administration Committee “PBAC”, an internal body that reviews pension matters. PBAC also decided to continue the suspension of the disputed portion of the pension until the matter was resolved by the Tribunal.123 On March 13, 2009, Ms. Aleem fĳiled her Application with the Tribunal. On June 1, 2009, Mr. Aleem fĳiled a separate Application seeking full disbursement of his pension to himself. The Tribunal found in favor of Ms. Aleem. First, the Tribunal found that the Maryland Court Order with respect to Mr. Aleem’s pension was fĳinal and that there was no legal basis for not recognizing that Order: The Tribunal fĳinds that Mr. Aleem has no legal basis to evade the Maryland Order. He voluntarily submitted to the jurisdiction of the Maryland Circuit Court. While the Maryland proceedings were in progress, he went to the Pakistani Embassy in Washington, DC, and unilaterally divorced his wife by signing his self-prepared document, the “Divorce Deed”. It is questionable whether this was done in good faith. In any event, after this unilateral divorce under the Pakistani laws, he applied to the Maryland Circuit Court for a dismissal of the ongoing proceedings on the ground of his Pakistani divorce. The Maryland Circuit Court refused to grant comity to the Pakistani divorce and ordered Mr. Aleem to pay half of his pension to his former wife. His challenge to the highest court of Maryland failed. Thus, the Maryland Circuit Court Order is now fĳinal and he is bound by that Order. Pension Administration and the Tribunal are not the right fora to challenge the decision of the highest court in a jurisdiction where both parties lived for over 20 years and made their home. It is a recognized principle of private international law that the law of the place with which the spouses have the closest connection applies to matters of divorce. In this case, the spouses established their home in Maryland where they lived for over 20 years and raised their two children. Although they were married in Pakistan, they never lived there during their marriage. The Maryland Circuit Court

122 Ibid. For an analysis of the case see R.K.. Sekhri, Aleem v. Aleem: A Divorce from the Proper Comity Standard – Lowering the Bar that Courts Must Reach to Deny Recognizing Foreign Judgments, 68 Md. L. Rev. 662 (2009). 123 Aleem & Aleem v. IBRD, op. cit, supra. n. 6, paras. 20–22. 228 chapter ten

legitimately assumed jurisdiction to award a divorce to Ms. Aleem and to apply the Maryland law for property disposition and spousal support and its decree qualifĳies as a decree of a court of competent jurisdiction under the Plan.124 Second, recalling Principle 3.3 of the Principles of Stafff Employment the Tribunal emphasized that: “The Bank’s Principles of Stafff Employment and the Stafff Rules make it clear that Mr. Aleem cannot avoid his personal legal obligations by appropriating the Bank’s immunity”.125 The Tribunal added that: “Retired stafff members cannot avoid these obligations either. As early as 1995 the Bank amended its SRP to ensure that Bank Group retirees comply with their family legal obligations in retirement. The Bank’s policy in this respect is now explicitly stated in Section 5.1(c) of the SRP”.126 Third, Mr. Aleem argued that he was not bound by the Maryland Order because under the Bank’s Articles of Agreement he was “entitled to retain his rights as a diplomat subject to the laws of his native country”. Rejecting this argument, the Tribunal stated that Mr. Aleem “is neither a diplomat under international law nor under the Bank’s Articles of Agreement. He is an international civil servant who has lived in the U.S. for two decades as an employee of the Bank. He is not immune from U.S. court orders relating to his marital obligations”.127 Finally, considering the context of the 1995 amendment of the Bank’s SRP and its policy rationale, and further considering the record before it, the Tribunal concluded that the Bank must give efffect to the Maryland Order and accordingly release the disputed portion of Mr. Aleem’s monthly pension, including the amount already suspended, to his former spouse.128 Notably, the Tribunal in this case resolved the issue without resorting to difffĳicult issues of conflict of laws. Instead, the Tribunal stated that: “The dispute must be resolved under the SRP applying the rules and policies contained therein. … [I]t follows that there is no need for the Tribunal to pronounce upon the validity of the Maryland and Pakistani divorce decrees or to assess their relative merits”.129 In the Tribunal’s view, the solution in this dispute was to be found by applying the Bank’s internal rules and policies.

124 Ibid. paras. 62–63. 125 Ibid. para. 67. 126 Ibid. para. 69. 127 Ibid. para. 65. 128 Ibid. para. 70. 129 Ibid. para. 57. immunity of international organizations 229

2.4. The IMF Tribunal on the Issue of Apparent Conflicting Divorce Decrees A similar issue as in Aleem & Aleem was also raised before the Administra- tive Tribunal of the international Monetary Fund (“IMF”) in the case of Mr. “P” (No. 2).130 Like the Bank the IMF amended Section 11.3 of its SRP in 1995 to allow IMF to pay from a retiree’s pension to the spouse or former spouse pursuant to a court order. For implementing the above amendment, the 1999 Rules of the Administration Committee under SRP Section 11.3 elaborated the procedures by which a court order for spousal or child support or division of marital property may be given efffect at the request of a spouse or former spouse of an SRP participant or retired participant.131 The Rules set forth four substantive criteria for according a court order a presumption of validity.132 So in Mr. “P” (No. 2), the IMF Tribunal was asked to address a dispute involving a retiree of the IMF and his former spouse.133 The former spouse asked the IMF to give efffect to a Maryland Judgment of Absolute Divorce awarding her a continuing share of the retiree’s ongoing pension. The retiree disputed the validity of the Maryland Judgment on the ground that he had obtained a divorce from his wife in Egypt after the initiation of divorce proceedings in Maryland but before the Maryland Court had rendered its Judgment. The retiree

130 Mr. “P” (No. 2), IMF Administrative Tribunal, Judgment No. 2001–2 (November 20, 2001) available at http://www.imf.org/external/imfat/index.htm. (last visited August 2, 2011). 131 See C.Goldman, “Developments in the Jurisprudence of the International Monetary Fund Administrative Tribunal: 2000–2002”, in International Monetary Fund Administrative Tribunal Reports (2000–2002) 5–6 (International Monetary Fund, 2008). 132 Rule 2 of the 1999 Rules of the Administration Committee under SRP Section 11.3 states that: Unless a participant or retired participant, spouse or former spouse objects, the Administration Committee may presume that a court order or decree concerning the payment of amounts from the Stafff Retirement Plan (A) is valid by reason that: (1) a reasonable method of notifĳication has been employed and a reasonable opportunity to be heard has been affforded to the persons afffected; and (2) the judgment has been rendered by a court of competent jurisdiction ren- dition [sic] and in accordance with such requirements of the state of as are necessary for the valid exercise of power by the court; (B) is the product of fair proceedings; (C) is fĳinal and binding on the parties; and (D) does not conflict and is not inconsistent with any other valid court order or decree. 133 Mr. “P” (No. 2), op. cit., supra n. 130. 230 chapter ten argued that the Egyptian divorce must be given efffect under which his former wife was not entitled to any portion of his pension.134 The IMF Tribunal decided that IMF must pay the disputed portion of the pension payments to the former spouse consistent with the Maryland Judgment, for number of reasons. First, the Maryland Judgment is more consistent with the IMF internal policy, because the underlying purpose of the IMF policy is “to encourage enforcement of orders for family support and division of marital property, and hence the policy favors legal systems in which such measures are recognized”.135 Second, the IMF’s “internal law favors legal decisions that are the result of adversary proceedings, in which reasonable notice and the opportunity to be heard are the essential elements”. The IMF Tribunal noted that the Maryland Judgment provided such essential elements in its proceedings.136 Third, the IMF Tribunal also took account of the fact that the retiree “[h]aving told the Maryland Court that he would not leave its jurisdiction, he summarily left for Egypt and declared a divorce from” his spouse and that “the Egyptian divorce contains no provisions governing the disposition of marital assets. Only the Maryland Court Judgment treats the division of marital property and it does so in clear and specifĳic terms”.137 As such the IMF Tribunal noted that “it saw no conflict between the existence of the Egyptian divorce and the disposition of the case before it in accordance with Maryland law”.138 Moreover, the IMF Tribunal observed that it was of “cardinal importance” that the Maryland Judgment conformed to the criteria of enforceability set out in the internal law of the IMF.139 The cases of Aleem & Aleem before the World Bank Tribunal, Mr. “P” (No. 2) before the IMF Tribunal, and cases before other administrative tribunals140 show that the administrative tribunals of international

134 Ibid. 135 Ibid. para. 151. 136 Ibid. para. 152. 137 Ibid. paras. 153–154. 138 Ibid. 139 Ibid. para. 155; see also Goldman, op. cit., supra n. 131. 140 See El-Zaim, Judgment No. 2010-UNAT-007(2010) of the United Nations Appeals Tribunal (determining that a stafff member’s divorce is not valid for pension purposes) available at http://www.un.org/en/oaj/appeals/ (last visited August 2, 2011); Judgment No. 2549 (2006) of the Administrative Tribunal of the International Labour Organisation (recognizing same-sex partner as spouse for benefĳits purposes) available at http://www.ilo .org/public/english/tribunal/ (last visited August 2, 2011); Chan, Decision No. 20 (1996) of the Administrative Tribunal of the Asian Development Bank (dealing with validity of marriage and divorce for benefĳits purposes) available at http://beta.adb.org/about/administrative -tribunal (last visited August 2, 2011). immunity of international organizations 231 organizations sometimes have to deal with issues that are not typical of their subject-matter jurisdiction, i.e, to determine whether a stafff member’s contractual rights have been violated. These cases show that administrative tribunals also have to deal with issues of determining legal relationships as well as complex questions of choice of law. It may be asked whether they are the most appropriate fora for addressing the numerous matters of policy arising in this area. It is submitted that the desirable solution is that international organizations should keep their own internal rules as self-contained as possible to address these matters.141 As demonstrated in the Mr. “P” (No. 2) judgment, the IMF Tribunal was well-placed to address the issue before them because the relevant internal rules of the IMF were detailed and therefore provided guidance to the Tribunal.

I. Concluding Remarks

International organizations and their offfĳicials certainly enjoy privileges and immunities. But these immunities are not unlimited. They only enjoy functional immunities so that they can undertake their work without undue interference by the states in which they operate. Principle 3 of the Bank’s Principles of Stafff Employment makes it clear that whatever privileges and immunities the World Bank enjoys, such immunities “shall not excuse stafff members from the performance of their private obligations or from the due observance of the law”. It is unfortunate that in some cases the stafff members of the international organizations have abused the privileges of the organizations to avoid their personal legal obligations by, for example, refusing to pay court-ordered child support or spousal support. However, international organizations, like the World Bank, have moved in the right direction. Since 1995 the World Bank has allowed the spouses of retired stafff members to receive spousal supports directly from the Bank pursuant to a court- order. But the change in 1995 did not address the issue of child or spousal support for active stafff members. The World Bank thus introduced a new policy on child and spousal support in 1998 following the intervention by the U.S. Secretary of State, and has strengthened this policy by introducing

141 See F. Morgenstern, “The Law Applicable to International Offfĳicials”, 18Int’l & Comp. L.Q. 739, 746 (1969). 232 chapter ten comprehensive rules in this respect by adoption of a detailed stafff rule in 2009. The cases decided by the World Bank Tribunal show that the Tribunal takes these matters seriously and when the conditions laid down in the SRP and the 1998 Policy are complied with, it has generally found in favor of the spouses of the stafff members. The cases also raised challenging issues before the Tribunal. Matters of marital disputes are delicate and often involve drawing a fĳine line between the roles of national courts, the Bank and the Tribunal. The World Bank Administrative Tribunal and other administrative tribunals can be in a better position to handle these delicate matters if the respective organizations make their own internal rules more comprehensive and self-contained to the extent possible. CHAPTER ELEVEN

THE SCOPE OF WORLD BANK ADMINISTRATIVE TRIBUNAL REMEDIES: BEYOND INDIVIDUAL RELIEF

Francis Robert Augustine Sheed

This contribution will address the scope of remedies available to the World Bank Administrative Tribunal (hereinafter “Tribunal”), and in particular the question of what remedies the Tribunal is able to grant beyond the standard individual relief that is ordered in most cases in which an applicant is successful. I will suggest that the Tribunal has in certain respects been excessively restrained both in defĳining and in applying the full scope of its authority in the matter of remedies, and that a more robust approach to the issue of available remedies in certain cases may be called for in ful- fĳilling the Tribunal’s role. The Tribunal’s mandate, which it has read narrowly, is to address cases in which an individual stafff member alleges that his or her employment contract has been violated. The Stafff Association (hereinafter “SA”) has a strong interest in ensuring that the rights of individual employees are observed and protected, but it also has a broader mandate to protect the rights and interests of stafff generally. In some cases that have gone before the Tribunal, the SA has seen broader interests at stake than just those of the individuals who had brought their claims before the Tribunal. In some cases, the SA may contend that a fĳinding of a contract violation with respect to one employee should be applied to other employees whose contracts have been violated in the same manner. In other cases, the SA may hold that a particular policy, or the implementation of that policy, is inher- ently flawed or arbitrary and that the Tribunal should rule on the policy’s validity “on its face” rather than requiring individual employees each to challenge the policy’s validity as it has been applied to them, and only after it has been applied to them. The SA recognizes that the Tribunal’s jurisdiction is limited, and that there will be cases in which the SA will wish for relief that simply exceeds what the Tribunal is empowered to offfer. However, we would suggest that the Tribunal’s powers can be, and should be, extended in some cases somewhat further than they have been thus far. 234 chapter eleven

A. Limits of the WBAT’s Jurisdiction

Let us begin by looking at the areas where the Tribunal has most clearly defĳined the limits of its jurisdiction. First, the Tribunal has made it quite clear that it cannot exercise jurisdiction over cases in which a purely advisory opinion is being sought, or, formulated diffferently, cases in which an individual – or group – brings a claim on behalf of others while not having sufffered harm themselves. In a pair of early cases, claims were brought by the SA itself 1 and by Godwin Agodo,2 a member of the SA, challenging a large-scale reorganization that would afffect hundreds of employees. Both the SA and the individual member claimed that they represented the interests of the many employees who would be afffected by the reorganization and by a stafff rule that was being implemented in connection with the reorganization. The Tribunal found that neither the SA nor the individual had “standing” to bring the claim because neither was alleging harm to themselves.3 As the Tribunal pointed out, the SA had already fought and lost the battle to be allowed to request advisory opinions from the Tribunal – the SA had proposed precisely such language be included in the Tribunal’s statute when it was fĳirst drafted, but this provision was rejected in favor of the current language, which allows the Tribunal only to accept cases in which the applicant alleges that he or she has sufffered harm as a result of a violation of his or her contract.4 Second, the Tribunal has made it clear that it is not in the policy- making business, and will not decide cases in which a policy is being challenged simply as being unwise or unfair, even if the challenge is brought by an individual who may be harmed by the policy. Thus, in the Oinas5 case, the Tribunal declined to consider a challenge to the Bank’s mandatory retirement policy on the grounds that it discriminated based on age, even though it was undisputed that this policy harmed the applicant. Likewise, in the Briscoe6 case, and related cases, the Tribunal concluded that it could not rule on challenges to the Bank’s general policy on expatriate benefĳits.

1 World Bank Stafff Association, WBAT Decision No. 40 [1987]. 2 Agodo, WBAT Decision No. 41 [1987]. 3 World Bank Stafff Association, op. cit., supra n. 1, paras. 81–85; Agodo, op. cit., supra n. 2, paras. 20–21. 4 World Bank Stafff Association, op. cit., supra n. 1, para. 83; Agodo, op. cit., supra n. 2, para. 28. 5 Oinas, WBAT Decision No. 391 [2009], paras. 27–28. 6 Briscoe, WBAT Decision No. 118 [1992], paras. 30–31; Canada, WBAT Decision No. 119 [1992], para. 30; Eyassu, WBAT Decision No. 120 [1992], para. 30; Farvacque, WBAT Decision the scope of world bank administrative tribunal remedies 235

The Tribunal has, therefore, clearly defĳined as offf-limits two categories of cases: those in which the challenge being made touches squarely and solely on a matter within management’s discretionary policy-making authority; and those in which the applicant claims no individual harm to him or herself, but seeks to vindicate the rights of others. This leaves quite a number of cases potentially in play – i.e., those in which an individual may bring a valid claim that he or she has been harmed, but in which the underlying issue has a broader efffect. And I would argue that the Tribunal can – and perhaps should – consider extending the scope of relief it offfers in some of these cases.

B. Possibilities for Extending the WBAT’s Remedial Authority

The notion of extending the efffect of a Tribunal decision beyond the individual claimant can have two separate components which may arise and overlap to difffering degrees depending on the given case. The fĳirst of these is the idea that a ruling in favor of one stafff member should be applied to all similarly situated stafff members, whether or not they have fĳiled a claim with the Tribunal. The second, which can in some cases look like a simple extension of the fĳirst, is the idea that, where the Tribunal fĳinds that a policy has violated one stafff member’s contract, it can declare the policy impermissible and thereby declare it null and void in whole or in part. A case that illustrates well this range of diffferent possible remedies is the 1988 Pinto case.7 In Pinto, the Tribunal found that the applicant’s contract had been violated by the application of a policy which had the efffect of freezing her salary, on the grounds that such a salary freeze violated the Bank’s established policy of providing periodic salary adjustments. In theory, the Tribunal could have extended this decision to all similarly situated employees given that the applicant clearly was not the only employee adversely afffected by the policy. And in theory, the Tribunal also could have issued a declaratory judgment stating that the policy was invalid on its face. Instead, the Tribunal issued a decision that seems almost labored in its determination to limit itself to the case at hand when the decision clearly had larger ramifĳications, stating: “the Tribunal unanimously

No. 121 [1992], para. 30; Hafeez, WBAT Decision No. 122 [1992], para. 30; Ketema, WBAT Decision No. 123 [1992], para. 31; Roche, WBAT Decision No. 124 [1992], para. 29; Roncal, WBAT Decision No. 125 [1992], para. 29; Tuluy, WBAT Decision No. 126 [1992], para. 30. 7 Pinto, WBAT Decision No. 56 [1988]. 236 chapter eleven decides that the decision of the Vice President, PA, of September 18, 1986 is rescinded so far as it does not provide for the payment to the Applicant, as from September 30, 1987 of the periodic salary review increases approved by the Respondent for stafff members in grade 16”.8 In the Pinto case, one could say that all’s well that ends well because, though the Tribunal limited the scope of its decision to the applicant, the ultimate efffect was not unlike that of a declaratory judgment in that the Bank subsequently changed its policy to reflect the Tribunal’s judgment, albeit the Bank ultimately took it upon itself to do so. One could even argue that this outcome vindicates the Tribunal’s decision to limit the scope of its award because it rightly trusted that the Bank would make whatever policy changes were necessary to avoid further liability. But, and with all due respect to the Bank’s management, is this degree of trust on the part of the Tribunal always necessary or appropriate? One need only look at the 2001 Prescott9 case for an answer. In that case, the Tribunal again limited its ruling to the individual claimant before it, deciding that he had been wrongfully denied pension credits for the years when his requests to have his temporary employment status regularized were wrongfully rejected.10 Although many other stafff were in the same situation, Bank management not only did not apply the Tribunal’s ruling to those employees, but actively fought each such claim – successfully – on the grounds that they were time-barred.11 Only after much efffort by, among others, the SA was an agreement eventually reached granting these employees some of what the Tribunal had awarded in Prescott. These concerns have arisen again more recently in a set of related cases that were decided by the Tribunal recently arising out of a series of events in Albania. In 2009, the Tribunal decided in two of these cases that the Bank had violated the contracts and due process rights of two stafff members in essentially identical ways based on nearly identical facts when it decided to transfer them to less desirable positions and issued “Supplementary Performance Evaluations” retroactive more than

8 Ibid. (emphasis added). 9 Prescott, WBAT Decision No. 253 [2001]. 10 Ibid. paras. 27–28. 11 Alcantara, WBAT Order No. 2002-1 [2002]; Dossa, WBAT Order No. 2002–4 [2002]; Gary, WBAT Order No. 2002–5 [2002]; Goldman, WBAT Order No. 2002–6 [2002]; Harun, WBAT Order No. 2002–8 [2002]; Mack, WBAT Order No. 2002–9 [2002]; Pena, WBAT Order No. 2002–13 [2002]; Reddy, WBAT Order No. 2002–14 [2002]; Richardson, WBAT Order No. 2002–15 [2002]; Tadesse, WBAT Order No. 2002–16 [2002]; Waiser, WBAT Order No. 2002–17; Gress, WBAT Decision No. 269 [2002]; Huber, WBAT Decision No. 270 [2002]. the scope of world bank administrative tribunal remedies 237 two years.12 Specifĳically, the Tribunal found that “the Applicant ha[d] succeeded in demonstrating that the Bank committed a series of errors, and thereby violated her rights, in virtually every step it took to assess and evaluate her performance leading to the challenged decisions”.13 Although aware that there were six other employees who had sufffered some or all of the same treatment under, again, essentially identical facts,14 the Tribunal did not extend its ruling to any of these stafff members. And neither did management. Indeed, notwithstanding the decisions in BF and AY, the Bank vigorously contested the claim fĳiled by the only one of these six to have pursued a claim before the Tribunal, ultimately losing on the same grounds as the earlier cases. See BM, WBAT Decision No. 450 [2011].

C. Authority for Broadening WBAT Remedies

Before looking at another, more recent case that puts this question in an interesting perspective, we need to look at what authority the Tribunal has for issuing the broader remedies suggested above. The fĳirst is actually quite straightforward: the Tribunal’s rules were amended to include Rule 26,15 which specifĳically allows for the Tribunal to declare that any decision reached in favor of the applicant will be applied to other employees who are similarly situated. Even before the addition of Rule 26 – indeed, dating back to Decision No. 1, the deMerode16 case – the Tribunal had agreed to apply successful outcomes to all similarly situated employees if stipulated by the employer. Unfortunately, Rule 26 and the earlier employer stipulations appear not to have been tested in practice inasmuch as I have found no case in which a successful claim has been applied by the Tribunal to similarly situated stafff. But at least we know that it is possible. The Tribunal’s authority to issue declaratory judgments is not as clear but I would contend that the Tribunal has such authority. While the Tribunal made clear in the Agodo case that it had no authority to issue

12 BF, WBAT Decision No. 430 [2009]; AY, WBAT Decision No. 431 [2009]. 13 BF, ibid., para. 107; AY, ibid, para. 94. 14 See AY, ibid., para. 46 (“[i]n the end, six individuals, including the Applicant, were reassigned to technical or non-managerial positions. In addition, Supplementary Performance Evaluations were undertaken for eight stafff members, including the Applicant, in order to amend their performance records for the periods concerned”. 15 Rules of the World Bank Administrative Tribunal (WBAT), Rule 26. 16 DeMerode, WBAT Decision No. 1 [1981] para.11. 238 chapter eleven advisory opinions, it left open the possibility that, in a case where an individual did raise an allegation of individual harm, the Tribunal could issue a declaratory judgment incidental to any ruling on the individual claim.17 In doing so, the Tribunal cited support found in an ILO Administrative Tribunal case, In re Sikka, which cited the general principle of law allowing for declaratory judgments thus: “Obviously the article applies only to cases in which an actual decision is challenged. The Tribunal is not on that account precluded from ruling on the validity of any general and abstract rule; but it will do so only by way of exception, viz., when hearing a complaint which challenges an actual decision”.18 (Emphasis added.) Indeed, Article XII of the World Bank Tribunal’s statute itself provides that “[i]f the Tribunal fĳinds that the application is well-founded, it shall order the rescission of the decision contested or the specifĳic performance of the obligation invoked”19 and does not limit such rescission or specifĳic performance to its efffect on the individual applicant if the management action at issue is one that has a broader efffect. Accordingly, I would argue that, in the case of Pinto,20 the Tribunal could have left the words “to the Applicant” out of its order and simply stated that “the decision of the Vice President, PA, of September 18, 1986 is rescinded” – full stop. This brings us to a most interesting case, the recent Lansky case.21 In that case, which has a long history most of which is not pertinent here, the applicant had sufffered a severe case of work-related post-traumatic stress disorder and had claims that were being processed by the disability and workers compensation program administrator. The applicant had considerable trouble with the processing of her medical claims with this administrator. She entered into an MOU with the Bank that resolved most of her complaints about the handling of her medical claims, but she also fĳiled a case with the Tribunal alleging that “the Workers’ Compensation and Disability Administrators abused their authority by continuing to request additional medical information and reassess her claim, even after her illness had been determined to be compensable”.22 She further complained that they “repeatedly demanded additional information, denied several of the claims, constantly and arbitrarily changed reimbursement procedures,

17 Agodo, op. cit., supra n. 2, paras. 31–33. 18 In re Sikka No. 3, ILOAT Judgment No. 622 [1984], para. 4. 19 Statute of the WBAT, Article XII. 20 Pinto, op. cit., supra n. 7. 21 Lansky (No. 1 and No. 2), Decision No. 425 [2009]. 22 Ibid., para. 21. the scope of world bank administrative tribunal remedies 239 unreasonably delayed payments and disregarded [Independent Medical Examiners]’ medical advice and recommendations”.23 She argued “that the Bank changed its procedures ‘whimsically’ and retroactively, thereby increasing the Applicant’s anxiety regarding reimbursements”.24 The Tribunal denied her individual claims on the grounds that they had been waived by her signing of the MOU but agreed that “the retroactive application of rules of procedure, the implementation of which had been forgone by a previous administrator, and the retroactive enforcement of modifĳied rules,would commonly result in arbitrariness, and denial of due process on the part of the administrator. In such situations, the Bank could efffectively be penalizing applicants for the failures and perhaps negligence of the Bank’s administrators”.25 So what remedy was ordered? Actually no remedy was “ordered”. Rather the Tribunal “recommended that the Bank, with the cooperation of the Stafff Association, proceed to formulate and develop appropriately detailed rules of procedure that claimants and administrators should follow in the processing of claims for payment or reimbursement under the WC and Disability Programs of the Bank”.26 On one level, this “recommendation” is a milestone in that it is the fĳirst case in which the Tribunal has directly suggested a change in a Bank policy. At the same time, it is difffĳicult to square the Tribunal’s fĳinding that the current system will “commonly result in arbitrariness and denial of due process” with the resulting mere “recommendation” that the Bank work toward fĳixing the system. The Tribunal understandably does not want to tread on management’s discretion, and so the decision in Lansky, like the decision in Pinto and others, errs on the side of deciding only the case before the Tribunal and trusting that management will exercise its good faith and fĳix the underlying problem. Without questioning the good faith of management in following up on the Tribunal’s suggestions, I would suggest that it is critical to any legal system that it not rely excessively on the good faith of one of the parties. To be sure, as discussed earlier, the Pinto case did result in the kind of policy change that was necessary, and we trust that the work the SA is currently doing with HR will ultimately result in a better Workers’ Compensation and Disability program, as recommended in Lansky.

23 Ibid. 24 Ibid. 25 Ibid., para. 45 (emphasis added). 26 Ibid., Decision, para. ii (emphasis added). 240 chapter eleven

At the same time, we are mindful of the examples set by Prescott and BM. And in the meantime, the Tribunal is allowing a Workers’ Compensation and Disability program to continue that it acknowledges is arbitrary and denies due process – and there is nothing in the Lansky order, or elsewhere, that prevents the Bank from continuing the practices found to be problematic in that case now or ever, nor is there any recourse for a stafff member to challenge such practices other than to bring a claim to the Tribunal as Lansky did herself. Why could the Tribunal not instead issue an order declaring that the WC and Disability programs are in violation of the stafff principles, enumerate how they violate those principles, and order that they be amended within a certain period of time, with the requirement that the Tribunal approve the amended rules? Why could the Tribunal not order that, until the rules are amended, complaints of arbitrariness or due process violations in the handling of WC and Disability claims will be reviewed on an expedited basis by the Tribunal or by a special master appointed by the Tribunal? There are innumerable permutations to this issue, far more than can be discussed here. What I would like to suggest in general, though, is that, given that the Tribunal is the only recourse for stafff to challenge not only individual employment actions but also policies that are arbitrary or violative of stafff principles, and given the amount of time and expense necessary for any individual stafff member to bring a case to the Tribunal, it is appropriate for the Tribunal to use its full arsenal of possible remedies to ensure that justice is done and that improper policies or practices, once identifĳied, are ended not only for those who have come before the Tribunal but for all Bank stafff. PART III THE INSTITUTIONAL FRAMEWORK

CHAPTER TWELVE

THE NEW UNITED NATIONS SYSTEM OF ADMINISTRATION OF JUSTICE

Maritza Struyvenberg

On 31 December 2009, the United Nations Administrative Tribunal quietly closed its doors. It was abolished, together with the two peer review bodies in the Organization, the Joint Appeals Board (JAB) and the Joint Disciplinary Committee (JDC), by decision of the General Assembly.1 In 20052, sensing deep dissatisfaction with the old system for handling internal disputes and disciplinary matters, the General Assembly requested the Secretary-General to form a panel of independent experts to review the system of administration of justice and make recommendations on its improvement. The Panel thus established – the so-called “Redesign Panel” – determined that the old internal justice system in the United Nations was “neither professional nor independent”, that it was “slow, under-resourced, inefffĳicient and inefffective”, that it “failed to meet basic standards of due process” and, most important, did no longer have the confĳidence of the stafff of the Organization. The solution, in the Panel’s view, would be a new, professional and adequately resourced system of internal justice, with fully independent judges. Decentralization would ensure that stafff serving at other duty stations and fĳield operations away from Headquarters would also have access to the internal justice system. Following the recommendations of the Redesign Panel, the United Nations General Assembly decided, by its resolutions 62/228 of 22 December 2007 and 63/253 of 24 December 2008, to establish a two-tier formal system of administration of justice, comprising a court of fĳirst instance, the United Nations Dispute Tribunal (UNDT) and an appellate instance, the United Nations Appeals Tribunal (UNAT). To ensure the independence of the formal system of administration of justice, the General Assembly created the Offfĳice of Administration of Justice (OAJ), which oversees the system and is responsible for its overall coordination.

1 See General Assembly resolution 63/253 of 24 December 2008. 2 See General Assembly resolution 59/283 of 13 April 2005. 244 chapter twelve

The OAJ comprises, in addition to the Tribunals and their Registries, the Offfĳice of the Executive Director who is responsible for the management and administration of the Offfĳice, and the Offfĳice of Stafff Legal Assistance (OSLA, the successor of the former Panel of Counsel), which assists stafff members in pursuing claims and appeals. The OAJ also provides technical and administrative assistance to the Internal Justice Council, established by the General Assembly as the body responsible for monitoring the system of administration of justice and also for recommending candidates for appointment as judges by the General Assembly. In addition, a strong emphasis was placed on informal dispute resolution with the creation of a single, integrated and decentralized Offfĳice of the Ombudsman for the United Nations Secretariat, Funds and Pro- grammes, further strengthened with a Mediation Division located at Headquarters in New York, to provide formal, in-house mediation services. It is envisaged that, ultimately, reinforced informal dispute resolution mechanisms will help the Organization avoid unnecessary litigation. Finally, a Management Evaluation Unit (MEU) was established in the Department of Management. This new review function is a mandatory step prior to fĳiling a formal complaint to the Dispute Tribunal and provides the Administration with an opportunity to re-examine administrative decisions and, where necessary, to take corrective action, with the aim of reducing the number of cases that proceed to litigation before the Tribunals. The system has also introduced the concept of cost-sharing by all stakeholders. Expenses of the new system are shared by the United Nations Secretariat, the Funds and Programmes, which contribute based on head- count as well by a number of bodies and entities – some outside the United Nations system – that have accepted the competence of UNAT by special agreement with the Secretary-General of the United Nations, and have agreed to pay a flat fee on a case-by-case basis, in accordance with article 2.10 of the UNAT Statute.3 These entities are expected to utilize their own neutral fĳirst instance process, including a written record and a written decision providing reasons, fact and law.4

3 See General Assembly Resolution 63/253, op. cit., supra n. 1. 4 Agreements have been concluded with the following entities: the International Civil Aviation Organization (ICAO), the International Maritime Organization (IMO), the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), the International Seabed Authority (ISA), the International Tribunal for the Law of the Sea (ITLOS) and the United Nations Joint Stafff Pension Fund (UNJSPF). the new united nations system 245

The new system of administration of justice has been operational for a little over 18 months. Thus far, it has been well received by both stafff and management and is generally seen as a defĳinite improvement over the old system. For instance, a large number of cases is satisfactorily resolved at the management evaluation stage, thereby reducing the need for costly, formal proceedings; the system now has the benefĳit of full- time judges at the fĳirst instance level resulting in a steady output of judgements and a disposal of cases in a much shorter time period (months versus years); applicants routinely appear before the Dispute Tribunal during oral hearings; and, both parties may appeal to the Appeals Tribu- nal from judgements of the UNDT. Moreover, the new structure of the Ombudsman Offfĳice facilitates informal dispute resolution. A more detailed description of the various components of the administration of justice system, with some general statistical information, is provided below.

A. The integrated Offfĳice of the Ombudsman has regional branches in Vienna, Geneva, Bangkok, Santiago, Nairobi, Kinshasa and Khartoum. The employment issues that are brought to the attention of the Offfĳice include: compensation and benefĳits, performance, interpersonal diffferences, job and career, promotion, harassment, discrimination, disciplinary matters, working conditions, pension, taxes and ethics. Demand for the Ombudsman’s services has risen steadily over the years, both from the UN Secretariat stafff and from the fĳield. The two main reasons advanced for this increase are a rise in stafff population and, secondly, more awareness about the services provided by the Ombudsman. Numbers are expected to continue to rise as the Offfĳice completes its integration and decentralization process. The Ombudsman’s Offfĳice now also has a Mediation Division with professional mediators to assist parties in settling disputes. Mediation may be initiated before a complaint is submitted to the formal system, or may be resorted to at the suggestion of the Dispute Tribunal Judges. In any event, both parties have to agree to mediation, which is a voluntary process. The Mediation Division has developed its own guidelines and standard operating procedures following extensive consultations with key stakeholders in the administration of justice system. A roster of mediators is being established to provide dispute resolution services as needed. To date, only a few cases have been referred to mediation, but these numbers are expected to increase. 246 chapter twelve

B. The formal mechanism has three steps: the management evaluation; the UNDT; and, UNAT: 1. The MEU, a separate Unit in the Department of Management, carries out the initial review of a contested decision, the so-called “management evaluation”, to assess whether such decision was made in accordance with the rules of the Organization. The manager who took the impugned decision is asked to comment, within a specifĳic time frame, and may be held accountable if he or she does not respond in a timely fashion. When it appears that an improper decision has been made, management is responsible for taking appropriate action to correct the situation. Decisions to impose disciplinary or non-disciplinary measures taken upon the completion of a disciplinary process, or decisions taken pursuant to advice obtained from technical bodies, such as a Classifĳication Appeals Committee, do not have to be submitted for management evaluation, but may be directly challenged before the UNDT. Management evaluation appears to be a major improvement over its predecessor, the so-called administrative review, which was conducted by the same Offfĳice that was responsible for defending the Secretary-General before the JAB and the JDC. Due to lack of resources on the one hand, and in the absence of sanctions that could be applied to force compliance on the part managers, such complete reviews were few and far between. Under the new system, managers have an obligation, within very specifĳic time limits, to “defend” their decisions. Following receipt of the requested information, the Under-Secretary-General for Management may uphold or reverse the contested decision, or even pay compensation. To give an idea of the number of cases handled by the MEU, from its inception on 1 July 2009 to 30 June 2010, the MEU received a cumulative total of 428 cases, a 95 per cent increase over the number of cases received for administrative review under the former system during the corresponding period between 1 July 2008 and 31 March 2009. Furthermore, in each quarter since its inception, there has been a signifĳicant increase in the number of requests for management evaluation submitted by stafff members to the MEU. Cases submitted to the MEU may be upheld, partially upheld, reversed or rendered moot. Some of the reversed and partially reversed requests may result in an award of compensation to the stafff member. The underlying notion is that, if the contested decision is reversed, that is, if there is a fĳinding in favour of the stafff member, such stafff member will then refrain from pursuing his or her case in the formal system. the new united nations system 247

At the time a request for management evaluation is made, a stafff member may also request suspension of action of the contested decision in cases of separation form service. A request for suspension of action may also be made to the Dispute Tribunal. The MEU is also tasked with identifying trends or systemic problem areas. 2. UNDT: if a stafff member is not satisfĳied with the management evaluation, he or she may fĳile an application with the UNDT as a court of fĳirst instance. The UNDT operates on a full-time basis, currently comprises eight professional judges (three full-time, two half-time and three ad litem appointed for one year to assist in clearing the backlog inherited from the old system) and has Registries in New York, Geneva and Nairobi. UNDT examines the facts of the case, and conducts, where necessary, oral proceedings, normally held in public. Most cases are heard by a single judge but, in complex cases, a three-judge panel may be convened. UNDT judgments are binding on the parties, but may be appealed by either party to the Appeals Tribunal. Each of the three duty stations has a Registrar and one full-time and one ad litem Judge. The two half-time judges rotate between the duty stations as determined by the caseload. During the fĳirst six months of operation in 2009, the UNDT inherited some 300 cases from the former JABs and JDCs and the former Administrative Tribunal. As at 31 December 2010, the UNDT had disposed of almost two-thirds of these cases and of slightly less than half of the 270 or so new cases received during the fĳirst 18 months. Unlike the old system, the Tribunal relies heavily on oral hearings, in addition to the written submissions, to discover the position of each party and the possibility of settlement. This new element of the proceedings is welcomed by the stafff who are eager to get their “day in court”, but has created problems for the respective respondents who have had to make substantial adjustments to meet this increase in their workload. To give an example, in New York alone, over the past 18 months, over 200 hearings were held, ranging from motions for extension of time to fĳile an action, to hearings on the merits. There are also been some criticism of the new system, for instance, that some judges have exceeded their competence in granting suspension of action beyond the maximum period provided for in the Statute and Rules; that they have accepted the mere assertion of “stress” as sufffĳicient to meet the condition of “irreparable harm” when considering granting interim relief; that they have, on several occasions, relied on national jurisprudence rather than on that of the former Administrative Tribunal 248 chapter twelve or other major international administrative tribunals; and, that they have found fault with provisions of the UN administrative system, without having attained a full understanding of the intricate and – undoubtedly confusing – way in which the UN operates. On the positive side, some 313 judgements have been rendered, a number of which correcting practices of the Organization that are inconsistent with the Stafff Regulations and Rules. Unlike the former JAB and JDC, which met on an ad hoc basis, the UNDT Judges work without interrup- tion, apart from winter and summer recess, ensuring more consistent output. The hearings, although they may be time consuming, ensure that each applicant has the opportunity to present his or her case directly to the judge. 3. UNAT: both the stafff member and the Secretary-General have the right to appeal judgments rendered by the UNDT to the UNAT. The UNAT is composed of seven judges who consider cases in panels of at least three judges, and its Registry is based in New York. It may hold as many sessions a year, in New York, Geneva or Nairobi, as required by its caseload. Its judgments are also binding and there is no further appeal possible. The Appeals Tribunal is currently having its fourth session, in New York. In 2010, it held three sessions, two in New York and one in Geneva. During the fĳirst 18 months of operation, UNAT received a total of 186 new appeals, rendered 103 judgments, disposing of 95 cases, and issued 30 orders. In total, UNAT rejected 61 appeals fĳiled by stafff members and 11 fĳiled by the Secretary-General. It made some pronouncements on a number of issues, including, that, when reviewing a sanction imposed by the Administration, it needs to examine whether the facts on which the sanction is based are established; whether the established facts legally amount to misconduct; and whether the disciplinary measure applied is disproportionate to the offfence”; elaborating that an “administrative decision” for the purpose of former stafff rule 111.2(a) needs to be communicated to a stafff member in writing to ensure that time-limits are correctly calculated (Schook, No. 2010-UNAT-013,); rejecting an interlocutory appeal against a UNDT order for production of documents, considering that the “UNDT has discretionary authority in case management and the production of evidence in the interest of justice, and that an order for production of documents cannot be subject of an interlocutory appeal” (Calvani, No. 2010-UNAT-032); fĳinding that both the UNDT and the Appeals Tribunal have the power to award interest in the normal course of ordering compensation (Warren, No. 2010-UNAT-059); and, that “while the use of statements gathered in the course of an investigation from witnesses who the new united nations system 249 remain anonymous throughout the proceedings, including before the Tribunal, cannot be excluded as a matter of principle from disciplinary matters, a disciplinary measure may not be founded solely on anonymous statements” (Liyanarachchige, No. 2010-UNAT-087).5

C. The new system has also expanded stafff access to legal advice and representation by creating, in the OAJ, OSLA. This successor of the former Panel of Counsel is in many ways an improvement, not in the least as it is stafffed with full-time Legal Offfĳicers at Headquarters, as well as in Geneva, Nairobi, Addis Ababa and Beirut. Legal Offfĳicers advise stafff on the legal merits of a case and what options they might have. If a stafff member chooses to proceed with a case in the formal system, OSLA may assist throughout the process. In addition to Legal Offfĳicers, OSLA relies on volunteers. However, it is already clear that the workload is enormous, with over 1000 cases handled world-wide during the period 1 July 2009 to 31 December 2010. Add to this the constant daily stream of questions and inquiries, it may be easily seen that for the Offfĳice to be fully efffective, there is a need to augment the regular stafff with the services of pro-bono counsel and volunteers, including current and former UN stafff, preferably with some legal training, who have experience with UN administrative and management issues, as well as a good knowledge of the regulations and rules. Incentives are being offfered to encourage stafff participation in OSLA. Despite all these effforts, there is still not enough available assistance to satisfy the demand for services. While the Offfĳice strives to assist every stafff member who had a valid complaint, with OSLA stafff dealing with anywhere from 30 to over 100 cases per person, even such stafff may be turned away and advised to seek outside counsel. Moreover, the four Legal Offfĳicers who are outposted in Geneva, Beirut, Nairobi and Addis Ababa, operate by themselves and do not even have secretarial support. Considering the large number of stafff that expressed a need for their services, they are under a lot of pressure.

D. The OAJ has been created to ensure the independence of the new system. The Offfĳice is headed by an Executive Director appointed by the Secretary-General, who is responsible for coordinating the functioning of the new system. The OSLA and the UNDT and UNAT Registries are part of the Offfĳice of Administration of Justice. While its headquarters are in

5 For the OAJ website, go to: http://www.un.org/en/oaj/ (last visited Aug 8, 2011). 250 chapter twelve

New York, the Offfĳice has a presence – through the UNDT Registries and the branch offfĳices of OSLA – in Geneva, Nairobi, Addis Ababa, and Beirut.

E. The Internal Justice Council, which receives, as mentioned above, technical and administrative support from the OAJ, is a body whose main task is to provide its views and recommendations to the General Assembly on candidates for judges to be appointed by the General Assembly to the Tribunals. As further mandated by the General Assembly, the Council prepared a report on the implementation of the new system for the Assembly’s consideration at its 65th session6 and also prepared a draft code of conduct for the judges for consideration by the General Assembly.7 It is composed of a stafff and a management representative and two distinguished external jurists, one nominated by the stafff and one by management. It is chaired by another distinguished external jurist appointed by the Secretary-General after consultation with the other four members.

Conclusion

The system has now been operational for approximately 18 months. It is too soon to know whether all ills of the old system have been cured, but there are many positive indications that the system is on its way to becoming more efffective and efffĳicient. With the enhanced focus on the informal system, and the improved decision review, a number of cases have already been resolved before going to the Tribunal. Mediation is still a new territory, but may gain popularity as more cases are referred for mediation by the Dispute Tribunal, at the same time sus- pending the proceedings and this may lead to many more cases resolved at the informal stage. Both Tribunals now have professional Judges drawing on vast and diverse national and international expertise, which adds new dimensions to the judgements rendered. Moreover with the two-tier system, any inconsistencies between the diffferent UNDT Judgments should disappear as now both parties can appeal to the Appeals Tribunal. It is too soon to recommend the new system of administration of justice as a defĳinite improvement over the systems featuring peer review bodies and administrative tribunals. Maybe this will be the case in fĳive or ten years.

6 Document A/65/304. 7 Document A/65/86. CHAPTER THIRTEEN

THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL: A THREE-TIER STRUCTURE

Waltraud Hakenberg

A. Introduction

Why should there be an appeal against a judgment of a court? Can judges not be trusted? Is it necessary to scrutinize a court, the supposedly most independent of all offfĳicial authorities? Would someone, after an appendicitis operation, ask another surgeon to do the operation again because he was not sure the fĳirst one had been done correctly? And, assuming one court cannot be trusted, how can the higher and ultimately the highest court be trusted more? In theory appeals serve two functions, the fĳirst being the control function. Its purpose is not to undermine the authority of allegedly bad or partisan judges. Its raison d’être is the fact that a court’s decision may afffect individuals’ rights much more than a badly operated appendicitis. The right to have a judgment controlled by a superior instance is thus an important fundamental right, like the right of defense, the right to an efffective remedy, the right to a fair trial, and, generally speaking, the right of due process. These principles are established by the Universal Declaration of Human Rights1 and in a very similar way by the European Charter of Fundamental Rights.2 The second function of an appeal is to ensure the uniform application of the law. This is evidently important whenever many courts of fĳirst instance have the same appellate body. It would be rather questionable

1 Cf. article 8 of the Universal Declaration of Human Rights: “Everyone has the right to an efffective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”. 2 Cf. article 47 of the European Charter of Fundamental Rights, fully applicable in the European Union since December 1st 2009 with the entry into force of the Treaty of Lisbon: “(1) Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an efffective remedy before a tribunal in compliance with the conditions laid down in this Article. (2) Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. […]”. 252 chapter thirteen should these courts decide similar cases diffferently. The appellate body has to ensure that in all cases well-established legal principles are respected and applied uniformly throughout its jurisdiction. The subject of this paper is to explain the avenues of appeals and their review existing in the judicial system of the European Union for civil service matters concerning the stafff of the various institutions, and to evaluate their benefĳits and disadvantages.

B. Specific Aspects of the European Union Judicial System

According to article 19 of the Treaty on the European Union the institution Court of Justice of the European Union3 “shall ensure that in the interpretation and application of the Treaties the law is observed”. The Court of Justice of the European Union comprises three diffferent judicial levels: the Court of Justice (“ECJ”), the General Court (“GC”, created in 1989 as the then called “Court of First Instance”) and, in theory, various specialized courts of fĳirst instance. Each court has its own judicial competences. The ECJ, which may be regarded as the European Supreme Court, decides as a court of fĳirst and last resort all legal questions between the institutions themselves, and between the institutions and the Member States. Most of its docket, however, consists of cases referred to it for interpretation and judicial review by courts of the Member States of the European Union, the so-called preliminary rulings. As a court of fĳirst instance the GC deals with important economic cases involving competi- tion and state aid, but also with all cases brought against any European institution by individuals. Its decisions can be appealed to the ECJ. The additional creation of specialized courts has been made possible by the Treaty of Nice in 2001.4 These courts constitute the lowest level of the EU’s judicial system. Their decisions can be submitted for appeal to the GC, and in exceptional circumstances its appellate decision may be reviewed by the ECJ.

3 The Court of Justice is one of the seven main institutions of the European Union; the other main institutions are the European Parliament, the European Council, the Council of Ministers, the Commission, the Court of Auditors and the European Central Bank, see article 13 of the Treaty on the European Union. Besides them exist a variety of smaller institutions, agencies for specifĳic purposes, etc. 4 According to article 257, para. 1, of the Treaty on the Functioning of the European Union, these specialized courts are supposed to “hear and determine at fĳirst instance certain classes of action or proceeding brought in specifĳic areas”. the european union civil service tribunal 253

So far, the only existing specialized court is the European Union Civil Service Tribunal (EUCST),5 established in 2005.6 Before its creation, judicial review of administrative decisions concerning the civil service of the European institutions already had a long tradition. Originally handled by the ECJ itself, it was part of the GC’s jurisdiction between 1989 and 2005.7 Now, with the existence of the fĳirst specialized court, stafff cases receive very prominent treatment: they are so far the only legal domain of European Union law subject to a three-tier-structure.8 The EUCST9, composed of 7 judges from diffferent Member States, usually sits in chambers of three judges. In exceptional cases a plenary session or a single judge may decide.10 The Tribunal handles some 140 cases every year (the average at the ECJ and the GC, each consisting of 27 judges, is around 600 cases each11). A certain amount of cases before the EUCST ends by an amicable settlement.12

5 More specialized courts may be created in the future. At present political discussions center around a possible European Trademark Tribunal, but no decision has yet been taken. 6 Council Decision of 2 November 2004 establishing the European Union Civil Service Tribunal (2004/752/EC, Euratom), OJ 2004 L 333/7. The EUCST celebrated its 5th anniversary in October 2010, the various speeches and conferences are available at www.curia .europa.eu (last visited Aug 2, 2011). 7 The fĳirst stafff case concerning an offfĳicial of a European institution was decided in 1962. 8 This is somewhat surprising, as these cases are not considered to be among the most important ones under European Union law. 9 For general information on the EUCST in English language cf. A. Capik, “European Union Civil Service Tribunal – a coherent part of the Communities courts system”, in: European Law Reporter, n° 3, 2005, pp. 107–109; J.A. Fuentetaja Pastor, “The European Union Civil Service Tribunal”, in: A. De Walsche and L. Levi (eds.), Mélanges en hommage à Georges Vandersanden: promenades au sein du droit européen, (Bruylant, 2008), pp. 873–901; H. Kraemer, “The European Union Civil Service Tribunal: a new community court examined after four years of operation”, in: Common Market Law Review, n° 46, 2009, pp. 1873–1913; P. Mahoney, “The European Union Civil Service Tribunal: a specialised Tribunal or a special Tribunal?”, in: De Walsche and Levi, ibid., pp. 955–970. 10 For all details of organization and procedure see www.curia.europa.eu under “Civil Service Tribunal”. The decisions of the EUCST are also published on that website, normally only in the language of the procedure and in French, which is the internal working language. About a dozen important decisions per year are translated into the remaining offfĳicial languages of the European Union. 11 The judges of the ECJ and the GC are assisted by three law clerks each, whereas the judges of the EUCST only have one. With an average of 18 months proceedings before the EUCST last more or less the same time as the proceedings before the ECJ (16 months) and are shorter than those before the GC which average around 28 months. 12 Amicable settlements are not subject to appeals; therefore, this article will not discuss them. 254 chapter thirteen

C. Distinctive Features of the Appellate Procedure in European Union Civil Service Cases

The decisions of the EUCST, or more precisely all its judgments and orders disposing of a case in part or in whole, as well as important procedural orders, are subject to appeal to the GC. The appellate procedure is set out in articles 9 to 13 of annex I of the decision creating the EUCST.13

13 Article 9: An appeal may be brought before the Court of First Instance, within two months of notifĳication of the decision appealed against, against fĳinal decisions of the Civil Service Tribunal and decisions of that Tribunal disposing of the substantive issues in part only or disposing of a procedural issue concerning a plea of lack of jurisdiction or inadmissibility. Such an appeal may be brought by any party that has been unsuccessful, in whole or in part, in its submissions. However, interveners other than the Member States and the institutions of the Communities may bring such an appeal only where the decision of the Civil Service Tribunal directly afffects them. Article 10: 1. Any person whose application to intervene has been dismissed by the Civil Service Tribunal may appeal to the Court of First Instance within two weeks of notifĳication of the decision dismissing the application. 2. The parties to the proceedings may appeal to the Court of First Instance against any decision of the Civil Service Tribunal made pursuant to Article 242 or Article 243 or the fourth paragraph of Article 256 of the EC Treaty or Article 157 or Article 158 or the third paragraph of Article 164 of the EAEC Treaty within two months of its notifĳication. 3. The President of the Court of First Instance may, by way of summary procedure, which may, insofar as necessary, difffer from some of the rules contained in this Annex and which shall be laid down in the rules of procedure of the Court of First Instance, adjudicate upon appeals brought in accordance with paragraphs 1 and 2. Article 11: 1. An appeal to the Court of First Instance shall be limited to points of law. It shall lie on the grounds of lack of jurisdiction of the Civil Service Tribunal, a breach of procedure before it which adversely afffects the interests of the appellant as well as the infringement of Community law by the Tribunal. 2. No appeal shall lie regarding only the amount of the costs or the party ordered to pay them. Article 12: 1. Without prejudice to Articles 242 and 243 of the EC Treaty or Articles 157 and 158 of the EAEC Treaty, an appeal before the Court of First Instance shall not have suspensory efffect. 2. Where an appeal is brought against a decision of the Civil Service Tribunal, the procedure before the Court of First Instance shall consist of a written part and an oral part. In accordance with conditions laid down in the rules of procedure, the the european union civil service tribunal 255

The procedure has been drafted by the European legislator in exactly the same way as the procedure for fĳiling appeals against fĳirst instance decisions of the GC to the ECJ in 1989. The main procedural points14 are as follows: the appeal can be lodged within two months of notifĳication of the fĳirst instance decision, by any party which has been unsuccessful – also an intervening party – on points of law only.15 Concerning the facts deference is given to the fact-fĳinding Tribunal. Points of law that can be raised are (i) the lack of jurisdiction of the EUCST, (ii) the breach of procedural rules, or (iii) the infringement of European Union law. The latter usually means the general European Union Stafff Regulations.16 It is not always entirely clear where the border runs between facts and points of law. In some cases, for example, a “distortion of evidence” by the EUCST was considered a violation of procedural rules by the GC.17 The lodging of an appeal has no suspensory efffect, and appeals cannot be fĳiled against decisions on costs only. The appellate procedure before the GC18 consists of a written and, exceptionally, an oral part. Clearly inadmissible or clearly unfounded appeals may at any time be dismissed in an abbreviated procedure by reasoned order. A special chamber has been set up within the GC for adjudicating these appeals. To underline its importance the President of the GC and Chamber Presidents compose this chamber. When the appeal is successful, the GC either vacates the decision of the EUCST and renders

Court of First Instance, having heard the parties, may dispense with the oral procedure. Article 13: 1. If the appeal is well founded, the Court of First Instance shall quash the decision of the Civil Service Tribunal and itself give judgment in the matter. It shall refer the case back to the Civil Service Tribunal for judgment where the state of the proceedings does not permit a decision by the Court. 2. Where a case is referred back to the Civil Service Tribunal, the Tribunal shall be bound by the decision of the Court of First Instance on points of law. 14 The procedural situation is exactly the same as when the GC was in charge of fĳirst instance stafff cases of European offfĳicials (1989–2005), except that then the Court of Justice itself decided appeals. 15 Cf. article 257 of the Treaty on the Functioning of the European Union, article 9 of the Statute of the Court of Justice of the European Union, and article 112 of the Rules of Procedure of the EUCST. 16 Stafff Regulations of Offfĳicials of the European Union and the Conditions of Employment of the other Servants of the European Union. 17 See infra 4. 18 Cf. articles 137 et seq. of the Rules of Procedure of the GC, www.curia.europa.eu, under “General Court”. 256 chapter thirteen judgment itself, or, where the proceedings do not yet permit a fĳinal ruling, refers the matter back to the EUCST, which is then bound by the GC’s interpretation of the law. As of the end of 2010 appeals have been fĳiled against roughly 30%19 of the appealable decisions of the EUCST20. It is not surprising that in most cases21 the applicants were the party fĳiling the appeal, because they lose more often than the defendant institutions.22 Some 30% of all appeals decided were fully or partly successful; in about a third of the successful appeals, the case was referred back to the EUCST. 70% of the decisions of the EUCST appealed have been upheld; about a third of these appeals was rejected as clearly inadmissible or clearly unfounded by way of the abbreviated procedure mentioned above.23 Appeals proceedings before the GC last an average of 16 months, which is more or less the same amount of time as for the fĳirst instance proceedings before the EUCST. Some examples of appeals will be given infra under 4.

D. Distinctive Features of the Review Procedure in European Union Civil Service Cases

Appellate decisions of the GC, which for the moment can only occur in European Union Civil Service cases as the EUCST is the only specialized court, may be subject to review by the ECJ, “where there is a serious risk of the unity or consistency of Union law being afffected”.24 Thus reviews can

19 In 2006, the percentage of appeals was 25.64%, in 2007 23.36%, in 2008 37.37%, in 2009 31.58%, and in 2010 24,24%. For details cf. Annual Report of the Institution, at www .curia.europa.eu. 20 The number of appealable decisions is not entirely identical to that of closed cases. Amicable settlements and withdrawals, even though they end a case, cannot be appealed while important procedural orders, which are not terminating a case, can. 21 72% in 2009, 77% in 2010. 22 But it should also be mentioned that an institution that loses a case almost always introduces an appeal. 23 This kind of unsuccessful appeals is typical for newly created judicial bodies. Its number will likely be reduced with time. 24 Article 256, para. 2, second subpara. of the Treaty on the Functioning of the European Union reads: “Decisions given by the General Court under this paragraph may exceptionally be subject to review by the Court of Justice, under the conditions and within the limits laid down by the Statute, where there is a serious risk of the unity or consistency of Union law being afffected”.Cf . also articles 123 a et seq. of the Rules of Procedure of the Court of Justice (www.curia.europa.eu). the european union civil service tribunal 257 only be based on very important grounds of law. The procedure starts with a non-binding proposal by the ECJ’s First Advocate General.25 It is important to note that it is not the parties themselves who can start the review process. The proposal has to be made within one month of the announcement of the appellate decision by the GC. The ECJ then decides whether or not to follow the proposal and admit the case for review. This decision, if positive, also determines the scope of the review. The review procedure does not have suspensory efffect. The procedure before the ECJ consists of written observations of the parties, in exceptional cases a hearing, and a written opinion presented by an Advocate General.26 A special chamber, composed of the President of the court and the Presidents of the four “normal” chambers, has been created within the ECJ for deciding whether to admit a judicial review or not; if admitted, the case itself can be handled by other judges. In its review decision the ECJ may refer the matter back to the GC, which shall be bound by its interpretation of the law, or, if the facts so permit, give fĳinal judgment itself. The European lawmaker has limited the review procedure to few and rare cases; the idea was primarily to avoid divergent interpretations of the same rule of law. The review is by no means the second stage of the appeal, because it cannot be initiated by the parties themselves. It must also be confĳined to what is strictly necessary to preserve the unity of interpretation of law within the EU legal system. Until today half a dozen of review proposals have been made, but only a single one was accepted and completed by the ECJ.27 The case concerned the following issue: The initial claim concerned a civil servant’s alleged invalidity, which had not been accepted by the authorities as having been caused by a work- related illness. The EUCST dismissed the case on procedural grounds (expiration of the limitation period for the preliminary procedure). The applicant appealed to the GC, which overturned the decision. Instead of

25 According to article 252, para. 2, of the Treaty on the Functioning of the European Union, the Advocate General’s duty is, acting with complete impartiality and independence, to make, in open court, reasoned submissions on the cases and therefore to assist the court. There are 8 Advocates General, 5 from each large Member State, 3 on a rotating basis from the other Member States, for a 6-year mandate each. Every year, also on a rotating basis, one Advocate General fulfĳils the function of “First Advocate General”. 26 This does not necessarily have to be the “First” Advocate General, but one of the eight. 27 ECJ, judgment of 17 December 2009, C-197/09 RX-II, M v EMEA. 258 chapter thirteen handing the case back, the GC decided itself, accepting applicant’s claim, and awarding a certain amount of damages. In theory the GC may do so on appeal, but only if the facts are clear and all important legal arguments have been discussed between the parties during the fĳirst instance. This had not been the case. Since the EUCST had dismissed the case on purely procedural grounds, it had not had the possibility to discuss substantive issues. The GC may have committed a legal error by deciding the case and not referring it back to the EUCST. But can this error be considered afffecting the “unity or consistency of Union law” and thus justify a judicial review? The ECJ, following the opinion of the Advocate General, gave an afffĳir- mative answer to that question. It annulled the decision of the GC, referred the case back to it, and made it clear that the GC itself was bound to return the matter to the EUCST.28 The ECJ held that defendant’s right had been breached by taking away the fact-fĳinding fĳirst instance, which is the EUCST’s competence and not the GC’s on appeal. This was held to violate “due process”. Before the ECJ’s decision in M v EMEA legal commentators had argued that purely procedural mistakes could never afffect the unity or consistency of Union law. Such mistakes usually occur in a single case and do not have any impact beyond that case; therefore only points of substantive law should trigger the review procedure. The ECJ, however, evaluated the GC’s understanding of its role as an appeals court and found it clearly wrong. Consequently, the ECJ overturned the decision, even though it only raised procedural issues. In another interesting recent decision the ECJ actually refused a review proposed by the First Advocate General29: The judgment of the GC had allegedly departed from the GC’s own case law on non-contractual liability of the European Union in stafff cases. The decision of the ECJ refusing the review held that it was not the purpose of the ECJ’s review procedure to rule on the merits of the GC’s own case law when acting in its appellate capacity. The treaties provide that it is solely for the EUCST and the GC to develop the case law relating to the civil service. The ECJ decided not to intervene here, clearly showing respect and trust in the capabilities of the two lower courts.

28 The case has fĳinally been closed before the EUCST by an amicable settlement after a “5th instance”, cf. EUCST, order of 4 March 2011, F-23/07 RENV-RX, M v EMEA (thus making sure that no further instance will be introduced!). 29 ECJ, decision of 8 February 2011, C-17/11 RX, Petrilli v Commission. the european union civil service tribunal 259

E. Benefits and Disadvantages of the European Union Appeals and Review System

What are the benefĳits and disadvantages of the EU appeals and review system, as far as can be said 5 years after the establishment of the EUCST? To answer this question properly it is necessary to address again the above-mentioned two purposes of appeals, namely the control function and the uniform application of the law. Two- or three-tier legal structures are normally regarded as helpful in unifying and developing the law, maintaining its consistency, and establishing jurisprudence and precedents. The European Union’s review procedure, which requires “a serious risk of the unity or consistency of Union Law being afffected”, is the best example for this approach. A need for such control is always present where many small judicial bodies decide similar cases as courts of fĳirst instance. In the EUCST’s specifĳic case this raison d’être may be doubtful, as it is the only tribunal deciding European stafff cases in fĳirst instance.30 At fĳirst sight no inconsistencies can occur. However, stafff law is not the only source of possible inconsistencies. The uniformity of EU law may equally be challenged by the EUCST’s application of e.g. general principles of law laid down in the European Charter of Fundamental Rights, the Treaties on European Union and on the Functioning of the European Union, or principles of European social or labor law. Those principles are also part of the case law of ECJ and GC, sometimes even of supreme courts of the Member States, and a necessity to ensure their uniform application clearly exists. We can observe that none of the appeals judgments so far has found a lack of uniformity in the EUCST’s application of the law. Furthermore, this aspect played no role in the single review procedure so far accepted by the ECJ. And in the already mentioned review proposal, which the First Advocate General had suggested for an inconsistency in the GC’s case law, the ECJ declined to correct such alleged discrepancy. It is therefore fair to say that the appeals and review function of assuring uniformity of the law’s application has not yet fĳigured prominently in the European Union’s stafff cases.

30 Even if the EUCST decides in chambers of three judges, there is enough internal coordination amongst the 7 judges to avoid inconsistencies. 260 chapter thirteen

A very diffferent picture emerges when we look at the control function, the importance of which is clearly visible.31 In the fĳive fĳirst years of the existence of the EUCST, the GC has set aside some 10% of the EUCST’s decisions appealed. This is much more than the 3% of appeals successful in the ECJ when stafff cases started with the GC. As a member of the EUCST, I am not in the position to comment on the necessity of setting aside this many decisions in order to uphold the case law’s high quality. But re- examining the salient legal points on which a decision is based is undoubtedly benefĳicial for the quality of any legal activity. As to the outcome it is as yet difffĳicult to distinguish a clear pattern of concern in the GC’s decisions. So far no specifĳic points of procedural or substantive law have emerged; instead the GC has approached appeals more on a case by case basis, sometimes handling them in a slightly more formalistic manner than the EUCST had done.32 We can also see a strong reliance on fundamental procedural rights, like the right to equal treatment,33 the right to be heard,34 and the protection of both parties’ right to a contradictory procedure. In some cases the EUCST has been accused by the GC of not having substantiated its judgment sufffĳiciently,35 of having incompletely stated the evidence,36 and even of having distorted the

31 The EUCST’s situation is somewhat special, since its appellate court, the GC, was for 15 years itself the court of fĳirst instance for stafff cases. Thus, it may be harder for it to adapt to the new role of only controlling points of law. Occasionally the GC’s appeals rulings still give the impression of the judges tempted to decide a case under appeal as they would as a trial court. 32 In some cases errors in applying procedural rules have been pointed out, e.g. in the very fĳirst appeal brought to the GC. In its judgmentof 23 May 2007, T-2223/06 P, Eistrup v European Parliament, the GC decided that a lawyer’s rubber stamped signature could not be replaced after expiration of the deadline for lodging the complaint; the EUCST had considered such later submission of the real signature possible. In another case the Commission had refused to produce allegedly confĳidential documents after the EUCST had asked for these documents. Based on this refusal to comply with its orders the EUCST ruled against the Commission. The GC (judgment of 12 May 2010, T-560/08 P, Meierhofer v Commission) reversed and held that the EUCST should (i) either not levy such sanction against a party or (ii) do so only after exploring possibilities under its own rules of procedure to protect the confĳidentiality of documents. 33 Cf. GC, judgment of 20 February 2009, T-359/07 P, Bertolete e.a. v Commission, regarding equal treatment of civil servants with children and without. 34 See GC, judgment of 12 May 2010, T-491/08 P, Bui Van v Commission, concerning the protection of legitimate expectations after the withdrawal of an administrative measure. 35 Cf. GC, judgment of 19 November 2009, T-49/08 P, Michail v Commission. 36 Cf. GC, judgment of 30 September 2009, T-193/08 P, Skareby v Commission. the european union civil service tribunal 261 evidence.37 In some cases the GC was of the opinion that the EUCST had decided ultra petita.38 Turning to factual issues, it is clear that an appeal has the disadvantage of doubling the length of the proceedings39 and costs for the parties and the taxpayers: representation by a lawyer is mandatory in all instances.40 This is one of the arguments put forward by the judges of the EUCST when discussing amicable settlements with the parties. As concerns the general “psychological efffect” of the existence of a control procedure, it is theoretically possible that fĳirst-instance judges, being cautioned by the likelihood of an appeal, may feel a certain reservation when adjudicating a case and developing new jurisprudence. They may also consider their standing with the parties. Judgments may be longer, more complex, and harder to understand if drafted in order to avoid a reversal for failure to address all relevant issues. But the opposite is also possible: fĳirst-instance judges may be tempted to become “activists” in creating new jurisprudence, knowing that a “security net” will catch possible errors and correct them where necessary. Insiders of the EUCST have so far not observed any such psychological underpinnings; but maybe these are more clearly discernable to outsiders! In fact new jurisprudence has been developed by the EUCST in various areas and most often was confĳirmed by the GC, which adds considerable weight to the new

37 Cf. GC, judgment of 9 December 2009, T-377/08 P, Birkhofff v Commission. The case concerned the reimbursement of costs for a new wheelchair. The Commission had, in its prior decision, only offfered a repair of the wheelchair. This decision was based on a technician’s written statement that such repair was feasible and would make the purchase of a new wheelchair unnecessary. The EUCST ruled against the Commission mentioning inter alia that the Commission had failed to consider the necessity of purchasing a new wheelchair. The GC considered this a distortion of evidence by the EUCST. 38 Cf. GC, judgment of 5 October 2009, T-40/07 P and T-62/07 P, de Brito Sequeira Carvalho v Commission. The EUCST had interpreted as an “excusable error” the fact that a stafff member had not attacked one (out of several) prior administrative decisions, and had annulled that decision. Annulment is normally only possible when the prior administrative procedure has been completed. The GC considered that the EUCST had committed a violation of the law. 39 See the above mentioned fĳigures: the average time of procedure for appeals is 17 months which corresponds more or less to the duration of proceedings before the EUCST, which is 18 months. 40 Law fĳirms who specialize in European Union stafff cases may charge around € 10,000 for a case per instance. On the other hand, there are no court fees for any of the three courts of the institution “Court of Justice of the European Union”; its budget is being paid by the EU and its taxpayers. 262 chapter thirteen approach.41 It is true, though, that the average length of judgments of the EUCST has steadily increased, which may be motivated by the desire to prevent critique from the GC for not dealing with all legal issues raised by the parties. It is an interesting idea that appeals proceedings may be less necessary when explicit rules of law exist than when the case is decided by general principles. They of course leave more room for judicial interpretation. The European Union’s Stafff Regulations are indeed quite explicit and judicial review has been in place now for nearly 60 years. From this point of view an appeal and even a review procedure may seem a luxury. But it must equally be stressed that the Stafff Regulations are quite a dynamic fĳield of law. In addition to the big institutions to which the general Stafff Regula- tions apply, there exists a growing number of smaller institutions and agencies which often have their own specifĳic stafff rules. A recent example is the new European External Afffairs Service (EEAS), for which specifĳic rules have been adopted. The EUCST already had its fĳirst case involving this new diplomatic service.42 The way judges are selected can also impact the appeals process. Appellate judges may be appointed in a manner diffferent from that in which judges of a court of fĳirst instance are appointed, thereby bringing additional and diffferent judicial profĳiles into the decision-making process. This can generally be regarded as an advantage of appeals. The EUCST’s judges are selected on the basis of merit by a specifĳic selection board set up exclusively for the Tribunal. They must have particularly good knowledge and, if possible, some professional experience of civil service law or labor law, and only general knowledge of European Union law as such.43 On the other hand judges of the GC and the ECJ are proposed by the Member States of the European Union. They have often served as supreme court justices or ministers in their home country and are expected to have a very good understanding of European Union law and its common legal

41 Cf. GC, judgment of 8 September 2009, T-404/06 P, ETF v Landgren, where the GC fully upheld the innovative position of the EUCST that a reason must be given for every termination of a contract of indefĳinite duration. This decision was based on requirements of the Stafff Regulations and the inseparable link between the obligation to state reasons and the exercise of judicial review. 42 Cf. EUCST, order of 19 September 2011, Case F-15/11, Peter Mariën v EEAS, concerning an Afghanistan based European Union diplomat who complained about insufffĳicient security measures in the stafff housing. 43 The Tribunal’s judges do not need to have served as a judge in national or international tribunals before, which is equally true for the judges of the GC and the ECJ. the european union civil service tribunal 263 principles. These diffferences in the selection process may be reflected in the appeals procedure: the viewpoints of the EUCST tend to be more practical and closer to the facts, whereas the viewpoints of the appellate judges emphasize legal theory and general principles of law more. First instance judges with the facts at hand and the parties before them may be swayed more easily by a case’s human factors than appellate judges. Being limited to points of law the latter probably concentrate more on formal and technical aspects. It is hard to say whether this is a benefĳit or a disadvantage of the system.

F. Conclusion

After fĳive years of existence of the EUCST it is still too early to render fĳinal judgment on the European Union’s appeals and review system in civil service cases. The existence of a control level is certainly per se positive for any newly created tribunal. But too much control and excessive appeals may in the long run undermine the Tribunal’s authority and that of the entire jurisdiction. While the number of appeals from EUCST decisions seems rather high, the opposite is true for reviews. Some think that the review procedure, because of the small number of cases, has clearly failed. That, however, could be exactly the other way around: maybe the small number of reviews proves that the two lower courts operate very well? Maybe the ECJ sees very little reason to interfere with what it considers excellent work.

CHAPTER FOURTEEN

THE STEP BELOW: CAN ARBITRATION STRENGTHEN ADMINISTRATIVE TRIBUNALS?

Arnold Zack

We are all partners in seeking to provide fairness in the unique universe of dispute resolution within international organizations. Obviously we all tend to look at the institution from our own experiences therein, as would the proverbial blind mice describing an elephant by the part of it they are able to feel. We must look more broadly. Since the establishment of the League of Nations Administrative Tribunal the goal of its progeny has been to provide a dispute resolution system with, I suggest, the following objectives: 1. Proclaim to the public and international community the commitment of the organization to provide workplace standards and rules which are reasonable, equitable and fairly implemented. 2. Assure stafff members that it is sufffĳiciently committed to the implementation of those standards and rules to be receptive to challenges as to its violation thereof. 3. Assure treaty signatory nations whose citizens have surrendered their right to invoke their homeland employment laws by working for the organization, that they will be protected by an alternative set of workplace protections that are reasonable and equitable. 4. Establish a dispute resolution system that will provide a fair and equitable procedure for stafff members to voice their complaints, with steps for the members and organization to resolve such complaints on their own while providing an appeal to a neutral Administrative Tribunal with fĳinal authority to determine whether or not the organization’s action was taken within its managerial authority. Judging from the extent and frequency of organizations reviewing and reforming their internal appeal procedures, it is clear that the happy formula for speedy and equitable informal complaint resolution by the parties themselves, with Tribunals retaining fĳinal authority for unresolved disputes, has not yet been achieved. 266 chapter fourteen

What then are we seeking? I suggest it is an in-house procedure where the stafff members and management together are encouraged to resolve any disputes between them. In courts of law techniques of negotiation, mediation, and neutral case evaluation and even settlement on court- house steps have been all efffective in resolving the overwhelming majority of law suits, leaving only a small percentage of cases actually going to trial. In US and Canadian collective bargaining arbitration with which I am most familiar, the parties negotiated grievance procedure with three or so internal steps involving ever higher authorities on the union and management side dispose of the great majority of cases with only the few that escape mutual settlement being appealed to the arbitration step. Of course the use of mediation and ombuds-procedures only provide the parties with additional tools to enhance the prospects of the parties resolving the disputes on terms they themselves deem acceptable. Make no mistake, we all agree that voluntary resolution of dispute though negotiation or perhaps with the help of a mediator is preferable to surrendering control of the issues to some outsider to rule on what is best for the parties. Effforts to encourage efffective administrative review followed by discussions between stafff members and management offfer the best hope for keeping such disputes in-house, for assuring that settlements are totally acceptable to both, and for avoiding the risk, always present, that the Tribunal may make an unacceptable decision with potentially adverse impact on the disputants as well as the image and authority of the organization. Those serving on Appeals Committees have played an essential role in protecting the integrity of the institutions’ dispute settlement procedures. But as appointees of the directors of the organization they can not provide the requisite insulation of the Tribunals from challenges to their independence. The best shot at settlement is offfered by seeking early and mutually acceptable resolution through in-house procedures of peer review and conciliation. However that goal too often ignores the reality that the stafff Applicants, if not fully satisfĳied with such offfers of settlement, retain the right of appeal to the Tribunal. Thus when such unresolved disputes are submitted to the Tribunal, it may become necessary for the Tribunal to start from scratch, and while the right to de novo proceedings needs to be protected, it is costly, inefffĳicient and time consuming to require the Tribunal to hear a case as though nothing had been accomplished in narrowing the issues or seeking to resolve the dispute at the lower steps. Tribunals, even with the most qualifĳied judges can never gain the step below 267 full understanding of the dynamics of the parties’ relationships, or indeed of the circumstances surrounding the Application. As a consequence a Tribunal decision which is “offf the reservation” may not efffectively end the dispute or may end it in a way that may be totally unacceptable to one or both of the disputants or may just make “bad law” raising legitimate concerns for an appellate step beyond the Tribunal to set things straight. Thus we are faced with two seemingly mutually exclusive alternatives: either invocation of Equity to resolve an immediate dispute without providing future guidance as to whether the disputed action was or was not legal, or a fully judicial resolution which precludes settlement on some compromised grounds unreachable when applying the law but which might better meet the parties needs. Is there a middle ground where the procedure below can encourage resolution while providing the Tribunal with information and guidance to limit the likelihood of Tribunals making “bad law”? Is there a procedure that can provide fĳinality on disputes of fact, while at the same time providing the disputants an objective assessment of the legality of their positions? Is it possible to create a forum where the Applicants may be provided an adversarial opportunity to simply have their “day in court” to state and explain their position and the legal safe guard of “confronting their accusers”? Is it feasible to modify the preliminary step to relieve the Administrative Tribunal of the costly and time consuming burden of resolving questions of fact and thus permit the Tribunal to focus on issues of law while protecting its fĳinality and independence? With the ever rising threat of state based challenges to the independence of organization-created, funded and appointed Administrative Tribunals, there seems to be increased sensitivity to the need to develop a rational decision making process that is viewed as a reasonable and acceptable alternative to national law to protect the rights of stafff members. I think it is feasible to refashion the current post Administrative Review structure to make the step below the Tribunal both a fact-fĳinding and legal opinion-rendering facility, rolling in the Tribunal as a form of appellate body retaining its fĳinal decision making role. The IMF has provided an arbitration step for decades, which is closest to what I propose, so I would readily use that term to describe my proposed fact-fĳinding with recommendations. The European Bank for Reconstruction and Development has recently established a similar position. 268 chapter fourteen

A. How It would Operate?

As I envision it, the organization would, with the cooperation of the stafff association, create a roster of ad hoc, neutral, outsiders, experienced in dispute resolution, retired judges or attorneys competent in offfĳicial languages. For smaller organizations the ILO could readily assist in assem- bling such a roster. Those on the roster would be provided training in the process of arbitration and the prevailing Law of Administrative Tribunals. Included would be training in the conduct of hearings, the skills of fact- fĳinding and decision writing. The ILO or the Executive Secretary or Registrar of the organization Tribunal could offfer the disputants their mutual choice of arbitrator for their pending case, who at an agreed upon schedule who would conduct a hearing at an agreed to location to hear evidence and argument on the matters in dispute. The arbitrator would have access to a panel of local mediators to whom willing parties might be referred for resolution before the proceedings are closed. Following the hearing the arbitrator would issue a written statement including fĳindings of fact and reasoned recommendations for resolution of the dispute consistent with the organization’s governing laws. The arbitrator would be bound by a code of professional responsibility and precluded from subsequent employment by the organization. The arbitrator’s opinion and recommendations would then be provided to the head of the organization and if accepted by both parties would end the dispute on the recommended terms. If the response of the organization is unacceptable to the applicant, appeal to the Tribunal would proceed with the Tribunal retaining to right to initiate a de novo proceeding to rehear the facts, or if accepting the profffered facts, determine whether it accepts the legal reasoning recommended by the arbitrator. Arbitrators decisions could be considered as precedential or not, as the organization decides. The Tribunal would of course, be considered the fĳinal decision maker on facts as well as reasoning. Having this quasi-appellate role would hopefully obviate the need for any post-Tribunal appellate proceedings or structure. To the extent that organizations utilize the Tribunal facilities of another organization such as the UNAT or the ILOAT, changes in the step preceding appeal to those Tribunals need not interfere with their current structure while providing them the option of de novo or appellate consideration of the matters appealed to them. Under these revised procedures reviewing the advisory determination of the arbitrator, the Tribunal could, in efffect, consider itself as the appellate forum for unresolved disputes. the step below 269

B. Benefits

Among the benefĳits of such change might be the following:

1. The roster of arbitrators with regional reputations for honesty and credibility, and thus greater stafff acceptability, would be tailored to the size and geographic jurisdiction of the organization. 2. Such local hearings on demand would be less costly and faster without the time delay of waiting for the full Tribunal to convene and the expense of convening at organization headquarters. 3. The Tribunal Registrar or Executive Secretary would maintain the roster of arbitrators resolving any issues requiring disclosure to assure the arbitrators impartiality and acceptability to both parties. 4. The organization’s Tribunal Executive Secretary would assure designation of an arbitrator acceptable to both parties by culling from the roster a panel of arbitrators for the disputants to alternately strike names until they select their preferred arbitrator and absent agreement have the authority to appoint an arbitrator. 5. Arbitration would provide stafff a greater sense of access and participation than mere observer status when having one’s case handled by other stafff in a peer review restricting opportunity for Applicant participation. 6. Much more rapid neutral evaluation through arbitration would reduce the stafff uncertainty and tension that is likely to persist through out the usually lengthy pending process en route to the Tribunal. 7. Early fĳindings of fact will tend to reduce the areas of conflict, would provide the Applicant with the “day in court” and may thus satisfy many reducing the number of appeals to the Tribunals. 8. Reducing the requirement of Tribunals conducting adversarial hearings from universal or routine to an occasional de novo option would cut the cost and duration of sessions, and perhaps even reduce the number of required judges. 9. Disposition in arbitration would reduce the work and time pressures on the full Tribunals permitting more time for consideration of unresolved or disputed legal issues from below. Even if not resolved in arbitration the proceedings below would provide a factual record, and perhaps persuasive reasoning to reduce the burden of the Administrative Tribunal. 10. An arbitration decision with recommended legal reasoning and proposed resolution may overcome concern over fĳinality of Tribunal 270 chapter fourteen

decisions, making the Tribunal in essence, if it wishes, an appellate forum reviewing, accepting or rejecting the reasoning of the arbitrator. In our new world of the internet, and ever more rapid communication, and ever greater expression of individual rights and protest against the status quo, it would be refreshing to bring expedition and cost savings to the dispute resolution procedures of international organizations. The foregoing proposal would not guarantee the independence of Adminis- trative Tribunals from national or individual assault, but would demonstrate an efffort to make the procedures more user friendly while enhancing the probity of Tribunal decisions by creating a stalking horse before the Tribunal stage, thus enforcing its fĳinality and credibility. In the developing world, where judicial machinery is too often suspect and too often subject to challenge, it would provide experience with the concept of arbitration as a private alternative to a whole range of local and regional disputes. Most importantly it will enhance transparency and a sense of stafff participation while providing more rapid and much less expensive disposition of workplace disputes. PART IV ISSUES OF EFFECTIVENESS AND LEGITIMACY

CHAPTER FIFTEEN

DESIRABLE STANDARDS FOR THE DESIGN OF ADMINISTRATIVE TRIBUNALS FROM THE PERSPECTIVE OF DOMESTIC COURTS

Gregor Novak & August Reinisch

A. Immunities and the Right to a Fair Trial

The nearly absolute understanding of the scope of immunities granted to international organizations1 has been challenged by constitutionalist approaches since at least the 1990s.2 It was generally argued that international organizations should no longer be considered exempt from efffective mechanisms to ensure their accountability and legitimacy with

1 See generally F. Kirgis Jr., International Organizations in Their Legal Setting, 2nd edn. (West Publishing Co., 1993); A. Reinisch, International Organizations before National Courts (Cambridge University Press, 2000); H.G. Schermers and N. Blokker, International Institutional Law, 4th edn. (Martinus Nijhofff, 2003); C.F. Amerasinghe,Principles of the Institutional Law of International Organizations, 2nd edn. (Cambridge University Press, 2005); P. Sands and P. Klein, Bowett’s Law of International Institutions, 6th edn. (Sweet and Maxwell, 2009); J. Klabbers, An Introduction to International Institutional Law, 2nd edn. (Cambridge University Press, 2009). 2 G.R. Watson, “Constitutionalism, Judicial Review, and the World Court”, Harvard International Law Journal (1993) 1; M. Cottier, “Die Anwendbarkeit von völkerrechtlichen Normen im innerstaatlichen Bereich als Ausprägung der Konstitutionalisierung des Völkerrechts”, 9 Schweizerische Zeitschrift für Internationales und Europäisches Recht (1999) 432; C. Walter, “Constitutionalising (Inter)national Governance. Possibilities for and Limits to the Development of an International Constitutional Law”, 44 German Yearbook of International Law (2001) 192; J. Weiler and M. Wind (eds.), European Constitutionalism beyond the State (2003); A. Slaughter, A New World Order (2004); M. Kumm, “The Legitimacy of International Law: A Constitutionalist Framework Analysis”, 15 European Journal of International Law (2004) 915; A. von Bogdandy, “Constitutionalism in International Law: A Proposal from Germany”, Harvard International Law Journal (2005) 223; J. Klabbers, “Straddling Law and Politics: Judicial Review in International Law”, in R. St. J. MacDonald and D.M. Johnston (eds.), Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (Martinus Nijhofff, 2005) 809; B. Kingsbury and R. Stewart, “Legitimacy and Accountability in Global Regulatory Governance: The Emerging Global Administrative Law and the Design and Operation of Administrative Tribunals of International Organizations”, in S. Flogaitis (ed.) International Administrative Tribunals in a Changing World (Esperia Publications, 2008) 193; A. Reinisch, “Comments on a Decade of Italian Case law on the Jurisdictional Immunity of International Organizations”, 19 Italian Yearbook of International Law (2009) 101; A. Reinisch, “Privileges and Immunities”, in: J. Klabbers (ed.), Research Handbook on the Law of International Organizations (2011) 132. 274 chapter fifteen respect to individuals, groups or society at large. With respect to accountability, it was reasoned that the immunity from suit accorded to international organizations could only be justifĳied if adequate and efffective alternative accountability mechanisms were available to afffected persons. Initially, these included most obviously stafff members because they were the fĳirst group of individuals directly afffected by acts of international organizations. The idea of linking immunities to the availability of adequate and efffective alternative means of dispute settlement emerged fĳirst in the jurisprudence of the German Federal Constitutional Court3 and was later succinctly expressed by the European Court of Human Rights (ECtHR) in Waite and Kennedy in 1999.4 Subsequently, this reasoning found its way into a number of other domestic court decisions. This led to a development towards abandoning the traditional view of the immunity of international organizations, according to which courts merely decided on the basis of the applicable immunity provisions without considering the human rights impact thereof. Thus, the human rights-based notion of access to justice or related rules of customary international law as well as principles derived from domestic constitutional law relating to the right to a judicial determination of one’s rights came to play an increasingly important role for international organizations and administrative tribunals themselves as well as for domestic courts when deciding on whether to grant immunity from suit to international organizations especially in employment disputes.5 However, given the variety of international organizations and the diversity of domestic legal systems the approaches taken by domestic courts to address the dichotomy between immunities and due process concerns have been diffferent.

3 See infra note 61. 4 Waite and Kennedy, Application No. 26083/94, European Court of Human Rights, 18 February 1999, [1999] ECHR 13; A. Reinisch, “Case of Waite and Kennedy v. Germany, Application No. 26083/94; Case of Beer and Regan v. Germany, Application No. 28934/95, European Court of Human Rights, 18 February 1999”, 93 American Journal of International Law (1999), 933; P. Pustorino, “Immunità giurisdizionale delle organizzazioni internazion- ali e tutela dei diritti fondamentali : le sentenze della Corte europea nei casi Waite et Kennedy e Beer et Regan”, 83 Rivista di diritto internazionale (2000) 132; Waite and Kennedy, Application No. 26083/94, European Court of Human Rights, 18 February 1999, [1999] ECHR 13; Reinisch, op. cit., supra note 1; A. Reinisch and U.A. Weber, “The Jurisdictional Immunity of International Organizations, the Individual’s Right of Access to the Courts and Administrative Tribunals as Alternative Means of Dispute Settlement”, 1 International Organizations Law Review (2004) 59. 5 See A. Reinisch, “The Immunity of International Organizations and the Jurisdiction of their Administrative Tribunals”, 7 Chinese Journal of International Law (2008) 285. desirable standards for administrative tribunals 275

The challenge to the immunities of international organizations on human rights grounds was generally seen to follow from the fact that states increasingly began to employ international organizations to govern society, rather than merely to coordinate state behaviour. This seemed exemplifĳied by the co-existence of relatively strong means of legal protection within highly integrated organizations such as the EC/EU as compared to other more inter-governmental organizations.6 Thus, in the context of his study on “Targeted Sanctions and Due Process”,7 Fassbender pointed out that the EU was endowed with far-reaching powers which led to a system of judicial protection against EU acts by and large equivalent to the protection offfered in the EU’s member states at a domestic level and in which established standards of due process are generally complied with. Fassbender concluded that the general rules of customary international law on judicial protection and due process could not be deduced from the law and practice of the European Union alone as the direct efffect of Union law still constituted “a unique feature unparalleled in the law of other international organizations”.8 However, in the context of disputes between international organizations and their stafff, the degree of powers or the pervasiveness of an international organization’s activities do not seem to be particularly decisive. This can be concluded from the fact that the employment of stafff by international organizations is a universal phe- nomenon9 since nearly all kinds of international organizations employ stafff. It is further highlighted by the early emergence of stafff dispute resolution mechanisms within international organizations.10 Stafff disputes are always related to activities directly afffecting individuals and thus may engender human rights issues.

6 The link between stronger legal protection for individuals and the degree of powers granted to an organization could also be seen to follow from other reasons, such as the need to secure legitimacy or to assuage the fears of individual member states engaging in an organization enabling majority decision-making. 7 B. Fassbender, “Targeted Sanctions and Due Process. The responsibility of the UN Security Council to ensure that fair and clear procedures are made available to individuals and entities targeted with sanctions under Chapter VII of the UN Charter”, Study commissioned by the United Nations Offfĳice of Legal Afffairs – Offfĳice of the Legal Counsel, 20 March 2006 (fĳinal), available at: http://www.un.org/law/counsel/Fassbender_study.pdf (retrieved in April 2011). 8 Ibid, at para. 4.6. 9 Amerasinghe noted in observing the increase in the employees of the World Bank that the “international civil servant has become an increasingly ubiquitous and active fĳig- ure on the international stage”. See C.F. Amerasinghe, The Law of the International Civil Service, Volume I, 2nd edn. (Oxford University Press, 1994) 4. 10 The League of Nations created an administrative tribunal to settle disputes between itself and its civil servants already in 1927. 276 chapter fifteen

A central argument against domestic courts lifting the immunity of international organizations e.g. based on human rights concerns was expressed early on in Broadbent v. OAS where the D.C. Court of Appeals stated that [a]n attempt by the courts of one nation to adjudicate the personnel claims of international civil servants would entangle those courts in the internal administration of those organizations. Denial of immunity opens the door to divided decisions of the courts of diffferent member states passing judgment on the rules, regulations, and decisions of the international bodies. Undercutting uniformity in the application of stafff rules or regulations would undermine the ability or the organization to function efffectively.11 This rationale was also echoed in comparable decisions dealing with the issue of immunities of international organizations and their relationship to the existence of legal remedies for individuals or legal entities. For instance, in Waite and Kennedy, the ECtHR pointed out that the attribution of privileges and immunities to international organizations is an essential means of ensuring the proper functioning of such organizations free from unilateral interference by individual governments.12 However, when examining the admittedly scarce jurisprudence of domestic courts it cannot be overlooked that cases of a denial of immunity did not in fact lead to the “uniformity in the application of stafff rules or regulations” having been undercut or to “unilateral interference” in the strict sense of the term. This can be concluded from two observations. Firstly, most courts have pointed to some basic considerations of human rights relating to due process rights as generally relevant, even when they have upheld immunity. That is, these courts refrained from engaging in what could be deemed to go beyond the judicial function but nevertheless pointed to considerations of justice, in some cases resorting to the decision on costs so as not to skew their result further in disfavour of the plaintifff.13 In contrast, where “zealous” courts have in fact denied immunity, it will be argued that they have applied a basic core of arguably universal procedural human rights guarantees. Therefore, in those cases, the interference could not be said to have been “unilateral” in the sense of being entirely “without the agreement of the others”. Moreover, in those cases

11 Broadbent v. OAS, D.C. Court of Appeals, 628 F.2d 27, 35 (D.C.Cir. 1980). 12 Supra note 4, at 63. 13 See infra text at note 86. desirable standards for administrative tribunals 277 where immunity was denied, such as most prominently in Siedler v. WEU,14 the respective decision was upheld on last appeal only to the extent that domestic labor law provisions were not held to be applicable in accordance with the general principle of law providing for the primacy of directly applicable provisions of international law over provisions of domestic law.15 As will be revealed by a more in-depth discussion of the relevant case law below, in the light of this jurisprudence it can be said that the risk of denying immunities as expressed in Broadbent and implied in Waite and Kennedy and similar decisions has so far not materialized where courts have actually denied immunity to international organizations. Other courts, which have been more restrained, have nevertheless pointed to the evident dichotomy between human rights and immunities but refrained from denying immunity basically on what can be interpreted as separation of powers grounds. The following overview attempts to look for answers in the jurisprudence of domestic courts to the question of which specifĳic minimum criteria for the design of administrative tribunals are seen as desirable or necessary and whether these criteria may be deemed universal, i.e. whether courts apply a common standard. Firstly, an overview of the human rights standards informing the decisions of domestic courts in the context of labour relations of international organizations and their stafff is useful in order to examine whether a universal minimum standard has generally been observed and what it consists of. Secondly, it is useful to analyse what standards domestic courts have actually applied to administrative tribunals. Finally, after a conclusion from the perspective of domestic courts, it is imperative to see the “big picture” allowing for putting the role of domestic courts in perspective alongside various other factors influencing the design of administrative tribunals. On that basis, one may venture certain recommendations for the design of administrative tribunals that not only conform to the standards of domestic courts and general human rights standards, but also indirectly contribute to the legitimacy of international organizations, which is assumed to be desirable given the range of tasks and functions that such organizations increasingly must fulfĳil.

14 Siedler v. Western European Union, Brussels Labour Court of Appeal (4th chamber), 17 September 2003, Journal des Tribunaux 2004, 617, ILDC 53 (BE 2003). Subsequent references to paras. in judgments or decisions included in the Oxford Reports on International Law in Domestic Courts (ILDC) relate to the numbering provided in that database (available at http://ildc.oxfordlawreports.com). 15 See infra text at note 36. 278 chapter fifteen

B. The Right to a Fair Trial

The protection of procedural due process16 has been called the “foundation stone for ‘substantive protection’ against state power”17. Moreover, in the context of administrative procedures, it has been contended that “fair treatment in the sense of treatment according to [authoritative standards] constitutes an important and irreducible aspect of justice”.18 In the above-mentioned study on targeted sanctions and due process, Fassbender, drawing on treaty and constitutional law provisions of various treaties and national constitutions as well as their interpretation by courts, observes diffferences relating,inter alia, to the extent of the right of access to the courts, the types of disputes subject to fair trial rights, the application of fair trial rights to administrative procedures, the independence and impartiality of a tribunal and legitimate restrictions of fair trial rights in what is called the public interest.19 Nevertheless, Fassbender concludes that [n]otwithstanding the […] diffferences in the defĳinition of due process rights, it can be concluded that today international law provides for a universal minimum standard of due process which includes, fĳirstly, the right of every person to be heard before an individual governmental or administrative measure which would afffect him or her adversely is taken, andsecondly the right of a person claiming a violation of his or her rights and freedoms by a State organ to an efffective remedy before an impartial tribunal or authority. These rights are widely guaranteed in universal and regional human rights treaties. They can be considered as part of the corpus of customary international law, and are also protected by general principles of law in the meaning of Article 38, paragraph 1, lit. c, of the ICJ Statute.20

16 Where immunities of international organizations would lead to a total exclusion from procedural guarantees in stafff disputes and particularly where discrimination or harassment issues would be pertinent, they could also be seen as offfending the dignity of the afffected stafff members. In this context, even highly deferential courts, such as e.g. the tribunal in Mukoro v. EBRD point out that when interpreting the relevant rules granting immunity the severity of the disability sufffered by a potentially aggrieved individual must also borne in mind (see infra text at note 100). However, this specifĳic avenue of legal argument is not further pursued here. See in this context e.g. C. McCrudden, “Human Dignity and Judicial Interpretation of Human Rights”, 19 European Journal of International Law (2008) 655. 17 R. Clayton and H. Tomlinson, The Law of Human Rights (Oxford University Press, 2000) at 550. 18 D.J. Galligan, Due Process and Fair Procedures: A Study of Administrative Procedures (Clarendon Press, 1996). 19 Fassbender, supra note 7, at 1.9. 20 Ibid, at 1.17. desirable standards for administrative tribunals 279

In addition to the decisions of domestic courts when they decide to acknowledge or deny immunity from suit, various other actors may also be relevant in shaping the law. These include primarily the states parties to the constituent instruments of international organizations, international organizations themselves through their secondary instruments or the respective administrative tribunals through their case law. Specifĳically, the rules governing employment relationships to international organizations may include stafff employment contracts, stafff rules and regulations, internal orders, circulars, handbooks and practices of the IO, the constituent instruments of the relevant IO or of a specifĳic tribunal. These rules may also extend to general principles of law or principles of administrative law as developed in the case law of administrative tribunals or the ICJ that are recognized either by the IO or competent administrative tribunals21 or are considered as binding ipso facto on states and international organization under customary international law or general principles of law. Thus, many factors shape the system applicable to the stafff of international organizations in signifĳicant ways and play an important role in developing the applicable standards. However, domestic courts are unique in that their decisions question the applicable system itself and are enforceable on the domestic level subject to the respective domestic court’s willingness to assume enforcement jurisdiction. This chapter attempts to examine whether the challenge posed by domestic courts is in fact as destabilizing as may seem at fĳirst sight and whether certain standards can be discerned from the jurisprudence of domestic courts. As will be demonstrated, the latter may provide guidance for the design of administrative tribunals. It can be summarized that the risk of exceedingly divergent or “zealous” domestic decisions has not materialized as yet. At the same time, domestic courts do point to a certain minimum standard that can inform the design of administrative tribunals. However, particularly in light of evolving conceptions of human rights and due process, merely aspiring to this minimum standard is most likely not the solution for administrative tribunals. Instead, arguments of legitimacy of international organizations militate in favour of a particularly high standard of due process when it comes to employment disputes involving international organizations.

21 For the case of the WBAT see P. Hansen, “The World Bank Administrative Tribunal’s External Sources of Law: A Retrospective of the Tribunal’s First Quarter-Century (1981– 2005)”, 6 The Law and Practice of International Courts and Tribunals (2007) 1. 280 chapter fifteen

C. The Perspective of Domestic Courts

The growing importance of the availability of access to some form of dispute settlement as a human rights imperative imposed by Article 6 of the European Convention on Human Rights (ECHR)22 was reflected in a number of diffferent domestic court decisions in Europe dealing with disputes between international organizations and usually former or prospective stafff members. In Siedler v. Western European Union (WEU),23 the leading case in this regard, a Belgian appellate court found that the internal procedure for the settlement of employment disputes within the WEU24 did not offfer the guarantees necessary to secure a fair trial. After pointing out that in Waite and Kennedy, the ECtHR had not examined whether the available means offfered by the European Space Agency (ESA) satisfĳied all the guarantees involved in the notion of a fair trial as derived from Article 6(1) ECHR,25 the appellate court elaborated on the concept of fair trial. It found that the guarantees under Article 6(1) ECHR included inter alia the right of access to an independent and impartial tribunal established by law and the right for a claim to be heard equitably. The latter was seen to imply particularly the equality of arms, the contradictory principle, the giving of reasons for a judgment, the right to appear in person and the right to a public procedure within a reasonable time-limit.26 The appellate court went on to elaborate on the notion of a tribunal within the framework of the ECHR. Particularly, the court referred to the autonomous meaning of the term in the ECHR context. As important elements, the court stressed the independence of the tribunal in relation to the executive, the parties as well as to the legislature and interest or pressure groups as well as a guarantee of a judicial procedure. Moreover, a tribunal needed to be competent to issue

22 COE ‘Convention for the Protection of Human Rights and Fundamental Freedoms’ (signed 4 November 1950, entered into force 3 September 1953) 213 UNTS 221. 23 Supra note 14. 24 The WEU was “efffectively closed” in 2010, see Western European Union, “Statement of the Presidency of the Permanent Council of the WEU on behalf of the High Contracting Parties to the Modifĳied Brussels Treaty – Belgium, France, Germany, Greece, Italy, Luxembourg, The Netherlands, Portugal, Spain and the United Kingdom”, Brussels, 31 March 2010, available under: http://www.assembly-weu.org/ (retrieved in April 2011). (“The WEU has therefore accomplished its historical role. In this light we the States Parties to the Modifĳied Brussels Treaty have collectively decided to terminate the Treaty, thereby efffectively closing the organization, and in line with its article XII will notify the Treaty’s depositary in accordance with national procedures”). 25 Supra note 14, at para. 54. 26 Ibid, at para. 55. desirable standards for administrative tribunals 281 enforceable decisions on substantive issues following an organized procedure and must have been established by law at least with regard to its basic principles which could enable the executive to establish more detailed rules.27 With regard to publicity, the appellate court mentioned acceptable exceptions to a public hearing, but found that no exceptions for the publicity of decisions was tolerable since decisions had to remain verifĳiable as to their conformity with the exigencies of law and justice.28 Examining the WEU’s Appeals Commission, the Belgian appellate court preliminarily concluded that this internal body was properly vested with a jurisdictional role competent to settle a dispute in an adversarial manner, to announce the annulment of a challenged decision brought before it should the event arise, to order the organization to repair the damage caused by a challenged decision and to reimburse costs.29 However, the appellate court found fault in the fact that no provisions regarding the implementation of the Appeals Commission’s decisions existed. Moreover, the appellate court stated that the public character of the debates was not guaranteed as the hearings of the Appeals Commission were secret, that the publication of the decisions was not guaranteed and that the appointment of the Com- mission’s members for a period of two years was entrusted to an intergovernmental council. In the appellate court’s view, the latter was seen to carry the risk of linking the members of the Commission too closely to the organization since it violated permanence as a necessary precondition of the notion of independence. Moreover, no provision existed to permit challenges concerning the impartiality of individual members.30 As the procedure provided by the WEU personnel statute thus did not offfer all the guarantees inherent in the notion of fair trial, with some of the most important conditions being flawed, the court fĳinally concluded that the limitation on access to the normal courts by virtue of the jurisdictional immunity of the WEU was incompatible with Article 6(1) ECHR.

27 Ibid, at para. 56. 28 Ibid, at para. 58. 29 Ibid, at para. 59 (“The WEU appeals commission was properly vested with a jurisdictional role competent to settle a dispute, to announce the annulment of a challenged decision brought before it should the event arise, and to order the organization to repair the damage caused by a challenged decision and to reimburse the costs (art 59). The adversarial character of procedure is guaranteed. However, there is no provision as regards the implementation of its decisions”). 30 Ibid, at para. 60 (“On the other hand, the public character of the debates is not guaranteed—the hearings of the appeals are secret indeed (art. 57)—nor is the publication of the decisions guaranteed (art. 5). The designation of members is assigned to an intergovernmental Council, which appoints members of the Commission for a period of two years”). 282 chapter fifteen

On 21 December 2009, the Court of Cassation delivered its decision in Siedler as well as in two other cases relating to the immunity of an international organization pursuant to a stafff dispute.31 In WEU v. Siedler32 the Court of Cassation dealt with three points raised by the WEU. The Court, in reference to Waite and Kennedy, fĳirstly reiterated the guarantees of fair trial provided by Article 6(1) ECHR. While acknowledging that the right of access to a tribunal was not absolute, the Court nevertheless found that access of an individual to a tribunal could not be restricted in a way or to a degree that would compromise the substance of his or her right.33 Moreover, exceptions to Article 6(1) ECHR could only be reconciled with Article 6(1) ECHR if they had a legitimate aim and if they were proportionate with regard to the means and aims. After establishing that the grant of immunities pursued a legitimate aim, since it was an indispensible means for the good functioning of international organizations whose activities should not be interfered with by a state, the Court passed to the issue of proportionality, which it found could only be evaluated on a case by case basis. The Court contended that in order to examine whether Article 6(1) ECHR had been breached, it was necessary to examine whether the afffected individual had other reasonable means to efffectively protect the rights guaranteed to him or her under the ECHR. Generally, the Court also held that when determining whether an international organization may invoke immunity in light of Article 6(1) ECHR, the judge could not limit himself or herself to merely acknowledging that the instruments establishing the Appeals Commission qualifĳied it as independent but instead needed to examine whether the appeals procedure was efffectively independent.34 Consequently, the Court of Cassation approved the legal qualifĳication made by the appellate court, particularly quoting the appellate court’s fĳinding that the mode of appointment of the members of the Appeals Commission and the short duration of their mandate entailed the risk that its members would be too closely tied to the organization and emphasising that the inability to remove the Commission’s members was a necessary corollary to the notion of independence.35 However, the appeal

31 General Secretariat of the ACP Group v Lutchmaya, Final appeal judgment, Cass Nr C 03 0328 F; ILDC 1573 (BE 2009), 21 December 2009; General Secretariat of the ACP Group v BD, Final appeal judgment, Cass nr C 07 0407 F; ILDC 1576 (BE 2009), 21 December 2009. 32 Union de L’Europe Occidentale contre S. M., Cour de cassation de Belgique, 21 December 2009, Arrêt, N° S.04.0129.F. 33 Ibid. at p. 20. 34 Ibid. at p. 21. 35 Ibid. at p. 21 and p. 22. desirable standards for administrative tribunals 283 raised by the WEU was granted insofar as it concerned the application of domestic provisions of labor law. The Court of Cassation held that these were not applicable in the concrete case in light of the general principle of law providing for the primacy of directly applicable provisions of international law over provisions of domestic law.36 Similarly, in Lutchmaya v. General Secretariat of the ACP Group37 a Belgian appellate court had decided to deny immunity based on the reasoning that an international organization could only invoke its immunity in domestic proceedings provided that the plaintifff had access to other reasonable means to protect his or her rights guaranteed by Article 6(1) ECHR. In contrast to Siedler v. WEU the lack of any complaints mechanism whatsoever made the court’s task easier. Moreover, the Court found that the reasoning of the ECtHR in Waite and Kennedy was also applicable to the immunity from execution, since execution was seen to form an integral part of a fair trial. An appeal by the ACP Group Secretariat led to a decision of the Court of Cassation rendered on the same date as the WEU v. Siedler cassation decision.38 Therein, the Court of Cassation upheld the appellate court’s judgment, which had given precedence to Article 6(1) ECHR over the relevant seat agreement. The Court again essentially referred to the jurisprudence of the ECHR and stressed that it was necessary to examine whether the person against whom immunity from execution was invoked had other reasonable means to efffectively protect the rights guaranteed to him or her by the Convention.39 It has been argued that the two fĳirst instance and appellate decisions in SA Energies Nouvelles et Environnement (ENE) v. Agence Spatiale Européenne (ESA)40 should be construed as a “correction to the possibly excessively liberal decision”41 in Siedler v. WEU on the ground that the ESA’s “ombudsman”42 procedure had been held by the Belgian Courts to constitute a

36 Ibid. at p. 23. 37 Lutchmaya v. General Secretariat of the ACP Group, Appeal decision, Journal des Tribunaux 2003, 684; ILDC 1363 (BE 2003), 4 March 2003. 38 Supra note 31. 39 Ibid. at p. 19. 40 SA Energies Nouvelles et Environnement v. Agence Spatiale Européenne, First instance decision, Journal des tribunaux 2006, No 6216, 171; ILDC 1229 (BE 2005), 1 December 2005; SA Energies Nouvelles et Environnement v Agence Spatiale Européenne, Appeal judgment No. 2011/2013, 2006/AR/1480, ILDC 1729 (BE 2011), 23 March 2011. 41 Ibid. ILDC headnote, analysis by C. Ryngaert, at 7. 42 ESA’s Industrial Ombudsman is involved in the contractual relations between the prime contractor and the subcontractors, since the Ombudsman’s tasks include the facilitation of the resolution of disputes between prime contractors and subcontractors by submitting recommendations. See Terms of Reference of the ESA’s Industrial Ombudsman (ESA Unclassifĳied) 13 January 2009. 284 chapter fifteen reasonable alternative means of legal protection. However, besides the fact that Siedler v. WEU and the similar L. v. ACP Group Secretariat have been upheld by the Belgian Court of Cassation in a decision subsequent to the fĳirst instance decision in ENE v. ESA, already a closer look at the content and context of ENE v. ESA leads to the conclusion that assuming a “backlash”43 is exaggerated. Thus, before holding that the ESA’s ombudsman procedure and a direct claim by the subcontractor ENE against the two contractors “CESI” and “RWE” may be an alternative reasonable means of legal protection, the fĳirst instance court had pointed out that ENE was only a sub-contractor of CESI or RWE and ESA did not have the power to impose on its prime contractors the choice of the latter’s subcontractors.44 Whereas it may be true that the court implied that the ombudsman procedure would constitute a “reasonable alternative means”,45 it remains a material fact of the case that ENE had other means of legal protection at its disposal against the entities that were in fact in the primary position to exercise power over ENE, namely CESI and RWE.46 Moreover, that the ESA ombudsman procedure was acceptable in the present case does not lead to the con clusion that any “ombudsman” procedure in any context would constitute a “reasonable alternative means” in the light of Article 6(1) ECHR, even if this could be argued. Therefore, even if the Court of Cassa- tion should confĳirm the fĳirst and second instance decisions in ENE v. ESA, this would not lead to the conclusion that a fundamental change in the approach of Belgian courts to the issues decided in e.g. Siedler v. WEU has occured. In Illemassene v. OECD, the French Court of Cassation47 upheld the decision of a Paris appellate court which had examined the design of the OECD’s administrative tribunal and found that it did not violate the French conception of the international ordre public and that therefore, the OECD was entitled to benefĳit from immunity from jurisdiction. Specifĳically, the Court of Cassation referred to the fĳindings of an appellate court relating particularly to Articles 16 and 22 of the Personnel Statute of the OECD. The latter had established an administrative tribunal whose three

43 See C. Ryngaert, “The Immunity of International Organizations Before Domestic Courts: Recent Trends”, 7 International Organizations Law Review (2010) 121–148, 138. 44 Supra note 40, at para. 40. 45 Ibid. at para. 45. 46 ENE’s claim was based on the allegation that the main contractors CESI and RWE had wrongly failed to select it to carry out a contract for the benefĳit of ESA. 47 Illemassene v. OECD, Cour de cassation, Chambre Sociale, N° de pourvoi: 09-41030, 30 November 2010. desirable standards for administrative tribunals 285 judges were to be appointed by the Council, an organ composed of OECD member state representatives for a term of three years. The judges were to be selected from persons other than the organization’s stafff among persons highly qualifĳied in labor law or in the area of labor relations or public offfĳicials and were to exercise their functions with impartiality and complete independence. The appellate court had established that the hearings of the tribunal were public unless otherwise decided ex offfĳicio or at the request of the parties, that the dates of sessions were published on a list available to agents, delegations, and to the OECD’s personnel association and that the tribunal’s decisions were to be rendered in writing. Moreover, the Court pointed out that the OECD had not adhered to the ECHR but had, nevertheless, for the purposes of the regulation of labour disputes provided a means of juridical nature including guarantees of impartiality and equity from which it concluded that the procedure instituted by the organization was not contrary to the French concept of the international ordre public.48 As to the substantive requirements it employed, they were similar to those used by the Belgian appellate court. While the reference of the Court to the French ordre public does not appear to add to coherence to the decision of other domestic courts, the standards it applies can be deemed to be universal. In African Development Bank v. X49 the French Court of Cassation held that the African Development Bank could not invoke immunity from jurisdiction in a lawsuit brought by a former employee, since at the time of his dismissal no body competent to consider disputes of this kind had been set up within the organization. This made it impossible for a stafff member to approach a court eligible to decide on his or her claim and to exercise a right based on the international ordre public.50 This constituted, in the Court’s view, a denial of justice, which established jurisdiction of French courts where a link to France existed. This link

48 Ibid. 49 African Development Bank v. Mr X, Appeal judgment, Appeal No 04-41012; ILDC 778 (FR 2005), 25 January 2005. 50 Ibid. at para. 3 (“However, the African Development Bank cannot invoke immunity from jurisdiction in a lawsuit from an employee who it dismissed, as at the time of the events it had not set up within the organisation a court competent to consider disputes of this kind, making it impossible for a party to approach a court eligible to fĳind on his claim and to exercise a right that falls within international public policy, constituting a denial of justice, which establishes jurisdiction for the French courts if a link with France exists”). Moreover, the Court confĳirmed that a link to France could be based on the nationality of the person concerned, which meant that the appellate court did not act ultra vires in holding that the French court was competent to consider the dispute. 286 chapter fifteen was established on the basis of the plaintifff’s nationality in the present case. Fundamental principles of the domestic constitutional order appeared also in Pistelli v. European University Institute (EUI),51 a case in which an Italian appellate court accepted immunity of the respective international organization as long as it ensured jurisdictional protection of like situations before an impartial and independent judge, even if based on procedures and criteria diffferent from those found in the domestic legal order.52 The court held that in such cases no violation of the “cardinal principles” of the Italian Constitution had occurred and that there was no reason not to apply the respective convention granting immunity. The appellate court found that the EUI had provided for a body for settling disputes which was a truly judicial body rather than merely an internal decision- making body. For the appellate court, this could be deduced from the fact that the selection of the members of the Committee from a list compiled by an international judicial organ satisfĳied the requirements of independence and impartiality. This Committee was considered as equivalent to the ECJ. Additionally, the Court of Appeals pointed out that since the EUI had been created by member countries of the EU in order to promote the importance of European cultural heritage, its constitutional traditions as well as its institutions it could not be based on a convention that was contrary to cardinal values of European “institutionality and its ius cogens”.53

51 Pistelli v. European University Institute, Appeal judgment, No 20995; ILDC 297 (IT 2005), Guida al diritto 40 (3/2006) (in Italian), 28 October 2005. 52 Ibid. ILDC translation, at 14.1 (“However, the situation is diffferent for a convention which only excludes such disputes from Italian courts, while nevertheless ensuring the jurisdictional protection of the same situations before an impartial and independent judge, even if chosen with procedures and criteria other than those in national legislation. In this case there is no violation of the “cardinal principles” of our Constitution and no reason not to apply the convention, in the form of the ratifying law”). 53 Ibid. ILDC translation, at 14.2 (“The provision in the convention (art 6(5)(c) ) under which the statute must defĳine the mechanism for the resolution of disputes between the Institute and the benefĳiciaries of the statute, has been enacted as, once internal claims have been exhausted the interested party can take disputes to a Commission, whose members are chosen by the High Council from a list compiled by an international judicial organ. The provision of the Convention appears sufffĳicient to draw the conclusion that the instrument for settling disputes was envisaged as excluding national jurisdiction, and not as a mere internal remedy. In any event, defĳinitive confĳirmation is provided by Annex 2 of the same Convention, where it states that the provisions of Article 6(5)(c) do not prevent the High Council from designating the Court of Justice of the European Communities, after consultation with the President of that Court, as the body appointed to settle disputes between the desirable standards for administrative tribunals 287

Echoing its previous jurisprudence in Colagrossi v. FAO,54 Carretti v. F.A.O.55 and Pistelli v. EUI,56 the Italian Court of Cassation held in Drago v. International Plant Genetic Resources Institute (IPGRI)57 that the immunity granted to an international entity did not raise doubts of constitutional legitimacy when the convention that exempted certain situations from Italian jurisdiction nevertheless ensured judicial protection of like situations before an impartial and independent judge, albeit chosen according to diffferent procedures and criteria from those found in the domestic legal order.58 The Court went on to note that at the relevant time no possibility

Institute and its stafff. The possibility of substituting the competence of the Committee with the Court of Justice of the European Communities defĳinitely reveals the intention for the procedure not to be merely an interim remedy, following which is the possibility of access to jurisdictional protection, but rather the exclusive jurisdictional means of settling disputes with stafff”) and at 14.3 (“These matters therefore make it possible to refute the statement in decision 149/1999, which formed the basis for that decision, that a merely internal decision-making body had been provided as an alternative or optional remedy to State justice. As has been noted, the body for settling disputes is a truly jurisdictional body. The selection of the members of the Committee from a list compiled by an international judicial organ of international legal organisations satisfĳies the requirements of independence and impartiality for the body charged with resolving disputes between stafff and the Institute, a body, as has been said, which is considered equivalent to the Court of Justice of the European Communities. Besides, the Institute was created by member countries of the European Union in order to promote the importance of European cultural heritage and its constitutional traditions, as well as its institutions; it could not therefore be founded on the basis of a convention that contrasted with a cardinal value of European institutionality and its ius cogens, a value enshrined by Article 6/2 of the Treaty on the European Union (as amended by the Treaty of Amsterdam: Offfĳicial Gazette 6.7.1998, no. 155, ordinary supple- ment)—read in connection with Article 6 of the ECHR and Article 46(d) of the EU Treaty (see also Article 14, agreement on civil and political rights)—and by Article II-47/2 of the Charter of Fundamental Rights of the European Union”). 54 FAO v. Colagrossi, Court of Cassation s.u., 18 May 1992, no. 5942, RDIPP 1993, 400. 55 Carretti v. FAO, Court of Cassation s.u., 23 January 2004, no. 1237, AC, 2004, 1328. 56 Pistelli v. IUE, Court of Cassation s.u., 28 October 2005, no. 20995. 57 Drago v. International Plant Genetic Resources Institute (IPGRI), Final appeal judgment, n 3718 (Court of Cassation, All Civil Sections); ILDC 827 (IT 2007); Giustizia Civile Massimario, 2007, 2, 19 February 2007. 58 Ibid. ILDC translation, at para. 6.5 (“In accordance with such criteria, in its case law, the Court of Cassation, All Civil Sections, has taken the view that the immunity granted to an international entity does not raise doubts as to constitutional legitimacy when the convention that transfers those situations away from Italian jurisdiction nevertheless ensures jurisdictional protection of the same situations before an impartial, independent judge, albeit chosen according to procedures and criteria other than those in national legislation: see Cassation, All Civil Sections, no 5942, 18 May 1992, and no 1237, 23 January 2004, in relation to the referral to the Administrative Tribunal of the International Labour Organisation (ILO) of proceedings brought by FAO employees against their employer for the protection of their rights; see also Cassation, All Civil Sections, no 20995/2005 cit., in relation to the enactment of the statute of the European University Institute through the provision of an instrument for resolving disputes before an appropriate committee (which does not 288 chapter fifteen of appeal to the ILOAT had been possible due to the restricted jurisdiction ratione temporis of the latter. At the same time, the organization’s internal rules provided that disciplinary measures were to be re-examined by a body known as the Appeals Committee, which was also to consider appeals of a non-disciplinary nature. However, this merely constituted an internal remedy which did not provide judicial protection under the required standard. Specifĳically, the internal rules expressly excluded the possibility of that body examining appeals relating to the expiry of an employee’s contract of employment. Consequently, an employee possibly did not have access to judicial protection before an independent organ. This preclusion of any form of judicial protection of the organization’s employees led the court to conclude that the IPGRI could not rely on its immunity and that the respective dispute fell within the jurisdiction of Italian courts.59 In a 2006 stafff dispute case,60 the German Federal Constitutional Court drew on its reasoning in Hetzel v. EUROCONTROL61 where it had afffĳirmed that German courts lacked jurisdiction over employment disputes between EUROCONTROL and its offfĳicials and held that the organization’s immunity before German courts did not violate minimum requirements of the rule of law as protected by the German Basic Law because the exclusively competent ILOAT provided an adequate alternative remedy.

merely constitute an internal remedy, in part because the competence of such a committee may be substituted by that of the European Court of Justice)”). 59 Ibid. ILDC translation, at 6.6 (“Indeed, it is self-evident that it was not until January 2001 that the IPGRI joined the ILO and the jurisdiction of the Administrative Labour Tribunal, to which therefore the dispute could not be referred, given that this organisation’s rules provide for the inadmissibility of appeals centred on rights whose facts predate membership of the body. The body’s internal rules (known as the Personnel Policy Manual) state that disciplinary measures are to be re-examined by a body known as the Appeals Committee, which may also consider appeals of a non-disciplinary nature. This merely constitutes an internal remedy, which does not provide jurisdictional protection in the aforesaid sense. It should nevertheless be noted that this Manual (para. 144.02) expressly excludes the possibility of that body examining appeals relating to the expiry of an employee’s contract of employment (“action based on expiration of an appointment by its own terms is not disciplinary in character, nor may such action form the basis of grievance”)”). 60 German Federal Constitutional Court, 2 BvR 1458/03, 3 July 2006, Absatz-Nr. (1–25), available at: http://www.bverfg.de/entscheidungen/rk20060703_2bvr145803.html (retrieved 10 January 2011). 61 Hetzel v. EUROCONTROL, Federal Constitutional Court, Second Chamber, 10 November 1981, 2 BvR 1058/79, BVerfG 59, 63; NJW (1982), 512, DVBl (1982), 189, DÖV (1982), 404. See also on the background of Hetzel v. EUROCONTROL and the related case of Strech v. EUROCONTROL, A. Bleckmann, Internationale Beamtenstreitigkeiten vor nationalen Gerichten (Duncker & Humblot, 1981); I. Seidl-Hohenveldern, Die Immunität internation- aler Organisationen in Dienstrechtsstreitfällen (Duncker & Humblot 1981). desirable standards for administrative tribunals 289

Analysing the ILOAT procedure in the context of a complaint arising from a dispute between the European Patent Offfĳice (EPO) and certain members of its stafff concerning the right to unrestricted access to an internal e-mail system by members of the Stafff Union of the EPO, the court reiterated the general criteria required for a constitutional complaint based on an allegation of a structural legal protection defĳicit in the case of international organizations. The court pointed out that it had already established that the EPO’s system of legal protection essentially corresponded to the standard of the Basic Law. The court pointed out that pursuant to Article 13(1) of the European Patent Convention (EPC)62 employees and former employees of the EPO had the right to apply to the ILOAT after the exhaustion of the internal complaint procedure. The court found that the proceeding before the ILOAT was independent of the EPO’s internal complaints procedure. Moreover, the ILOAT decided on the cases it was seized with based on legally determined competences and in the framework of a legally ordered procedure exclusively in accordance with legal norms and principles. Its judges were obliged to independence and impartiality pursuant to Article III of the ILOAT Statute.63 Accordingly, the court determined that the status and the procedural principles of the ILOAT sat- isfĳied both the international minimum standard of elementary procedural justice as well as the minimum requirements for the rule of law of the Basic Law. Therefore, the court concluded that plaintifffs had not substantiated their claim that a structural lack of legal protection existed.64 In the context of another stafff dispute concerning the EPO, the German Federal Constitutional Court reiterated65 that the system of legal protection offfered by the EPO essentially corresponded to the standard required under German constitutional law.66 Particularly, the court pointed out that the members of the EPO Boards of Appeal were materially and personally independent. At least one member must have been qualifĳied to be a judge. The procedure was seen as committed to the principles of the rule of law.

62 Convention on the Grant of European Patents (signed 5 October 1973, entered into force 7 October 1977) 1065 UNTS 199. 63 Statute of the Administrative Tribunal of the International Labour Organization (adopted 9 October 1946). 64 Supra note 60, at para. 23. 65 German Federal Constitutional Court, 4 April 2001, Entscheidung im Verfahren über die Verfassungsbeschwerde des Herrn S. gegen die Entscheidung der Beschwerdekammer in Disziplinarangelegenheiten des Europäischen Patentamts vom 17. November 1999, 2 BvR 2368/99, Absatz-Nr. (1 – 23), available at: http://www.bverfg.de/entscheidungen/rk200104 04_2bvr236899.html (retrieved 10 January 2011). 66 Ibid. at para. 20. 290 chapter fifteen

The court further positively remarked that the appeals procedure was judicial and completely separate from the fĳirst instance and was independent. Particularly, the Enlarged Board of Appeal,67 which is competent to decide on points of law of fundamental importance, had developed certain principles inter alia enshrined in the Convention on the Grant of European Patents’ (EPC)68 common provisions governing procedure.69 The court further pointed out that the Boards of Appeal have themselves applied these principles consistently and that the Enlarged Board of Appeal and the Boards of Appeal have together ensured that proceedings before the EPO were in accordance with the rule of law.70 The court also noted that the Enlarged Board of Appeal had also ensured the independence of the fĳirst instance decision-makers and formed the principles of an oral hearing, the right to be heard as well the principle of decision- making on the basis of recognized evidentiary principles. The court further pointed out that with regard to the EPO’s European Qualifying Examination comprehensive jurisprudence from the Disciplinary Board of Appeal of the EPO, which had been established by the Administrative Council on the basis of Article 134(8)(b) of the EPC, existed71 in which procedural requirements from the perspective of equal treatment pursuant to Article 14 of the ECHR had also been considered. In the case at hand, the plaintifff was unable to show that the legal protection offfered against decisions concerning the EPO’s European Qualifying Examination “generally and evidently” breached the standard required by the Basic Law. Therefore, the court decided to dismiss the complaint. Furthermore, the court held that it was questionable whether domestic jurisprudence relating to qualifying examinations of all kinds, which plaintifff had invoked in its favour, could be generalized. Moreover, the criteria applied in that context, particularly relating to the requirement for giving reasons to examination decisions, were not considered to have expressed structural elements of fundamental rights protection intended by the Basic Law also to be applicable to supranational organization such as the EPO at the time of the decision.72

67 Article 112 (1) of the EPC (see infra note 68). 68 Convention on the Grant of European Patents (signed 5 October 1973, entered into force 7 October 1977) 1065 UNTS 199. 69 Articles 113 seq. of the EPC. 70 Supra note 65, at 21. 71 See Regulation on the Establishment of an Institute of Professional Representatives before the European Patent Offfĳice (OJ EPO 1997, 350) and the changes of 07.06.2002 (OJ EPO 2002, 429 fff) and of 17.06.2004 (OJ EPO 2004, 361). 72 Supra note 65, at para. 22. desirable standards for administrative tribunals 291

In the context of a another constitutional complaint based on a dispute between the EPO and a member of its stafff,73 the German Federal Constitutional Court found that the complainant did not show that the legal protection offfered against decisions relating to the EPO’s European Qualifying Examination “generally and evidently” breached the standard required by the Basic Law. The court added that the alleged mistakes of the disciplinary chamber in the application of the rules on examination and authorization, if they had any merit, were not weighty enough to confĳirm doubts that the level of the fundamental rights protection guaranteed by the Basic Law had been structurally undermined.74 More recently, in a constitutional complaint concerning legal protection against acts of the European Patent Offfĳice,75 the German Federal Constitutional Court reiterated its previous jurisprudence holding that constitutional complaints against supranational acts are a priori inadmissible if the complainant did not show that the organization generally and evidently did not guarantee those procedural safeguards relating to fundamental rights that were required by the Basic Law.76 The court pointed out that a constitutional complaint could not be considered as substantiated without a deeper examination of the internal possibilities of appeal, the applicable procedural rules and the jurisprudence of the appeals tribunals. Finally, the court stated that a closer examination was unwarranted in the case before it since it has already determined that the EPO’s legal protection system essentially accorded with the requirements of the Basic Law. In this context the court again particularly pointed to the existence of an appeals procedure with independent members of the appeals chamber and the existence of procedural standards developed in the jurisprudence

73 German Federal Constitutional Court, 28 November 2005, Entscheidung im Verfahren über die Verfassungsbeschwerde des Herrn D. gegen die Entscheidung der Beschwerdekammer in Disziplinarangelegenheiten des Europäischen Patentamts vom 17. Januar 2003, 2 BvR 1751/03, Absatz-Nr. (1 – 14), available at: http://www.bverfg.de/entscheidungen/ rk20051128_2bvr175103.html (retrieved 10 January 2011). 74 Ibid. at para. 11. 75 German Federal Constitutional Court, 27 April 2010, Entscheidung in dem Verfahren über die Verfassungsbeschwerde der Firma P. gegen die Entscheidung der Beschwerdekammer des Europäischen Patentamtes vom 6. Juli 2007, 2 BvR 1848/07, 2 BvR 1848/07 vom 27.4.2010, Absatz-Nr. (1 – 23), available at: http://www.bverfg.de/entscheidungen/rk20100427_2bvr1 84807.html (retrieved 10 January 2011). On previous challenges against acts of the EPO see also A. Reinisch, “Decisions of the European Patent Organization Before National Courts”, in: A. Reinisch (ed.), Challenging Acts of International Organizations Before National Courts (Oxford University Press, 2010), 137–156. 76 Ibid. at para. 19. 292 chapter fifteen of the appeals chamber.77 Thus the German Federal Constitutional Court, while vigilant, is generally deferential and requires plaintifffs to substanti- ate allegations of a clear breach of essential human rights standards. Also US state and federal courts have generally considered stafff disputes concerning international organizations to fall outside the scope of their jurisdiction. A prime example thereof is Mendaro v. The World Bank,78 the leading US case on employment disputes concerning the International Bank for Reconstruction and Development (IBRD). The applicable provision in the IBRD’s constituent document is unclear with respect to whether the Bank should enjoy immunity in respect of employment issues.79 The D.C. Court of Appeals, however, interpreted the provision to permit only suits in respect of external afffairs of the Bank, thus holding the Bank immune from suits in employment disputes. According to the court in Mendaro, the IBRD’s members only intended to waive the organization’s immunity from suit with respect to its debtors, creditors, bondholders, and those other potential plaintifffs to whom the Bank would have subject itself to suit in order to achieve its chartered objectives. Since a waiver of immunity from employees’ suits arising out of internal administrative grievances is not necessary for the Bank to perform its functions, this immunity is preserved by the members’ failure expressly to waive it.80 With regard to employment disputes, the Court expressly held that “the purpose of immunity from employee actions is rooted in the need to protect international organizations from unilateral control by a member nation over the activities of the international organization within its territory”.81 In another US case concerning a dispute between the World Food Program (WFP) and one of its employees this approach was maintained.

77 Ibid. at para. 21. See also German Federal Constitutional Court, 2 BvR 2253/06, 27 January 2010. 78 Mendaro v. The World Bank, 717 F.2d 610 (D.C.Cir. 1983). 79 Art. VII Section 3 of Articles of Agreement of the International Bank for Reconstruction and Development, Washington, D.C., 27 December 1945, 2 UNTS 134 (“Actions may be brought against the Bank only in a court of competent jurisdiction in the territories of a member in which the Bank has an offfĳice, has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities. No actions shall, however, be brought by members or persons acting for or deriving claims from members. […]”). 80 Supra note 78, at 615. 81 Ibid. desirable standards for administrative tribunals 293

Thus, in Bisson v. United Nations and ors82 the claimant had argued that, like the UN, the WFP had waived its immunity by failing to provide an appropriate mode of settlement for her dispute. Specifĳically, she claimed that the Stafff Compensation Plan (SCP) provided no mechanism for compensating general damages and, thus, the remedies available under the SCP were inadequate. The fĳirst instance judge had noted that the remedies available under the SCP were similar to most state worker’s compensation schemes, which also excluded recovery for pain and sufffering. He concluded that Bisson’s dissatisfaction with the compensation policy did not make the policy inadequate and did not constitute waiver of immunity, quoting Mendaro v. World Bank.83 Bisson claimed that the UN’s and WFP’s failure to provide for appropriate modes of settlement denied her rights under the International Covenant on Civil and Political Rights (ICCPR).84 However, the court held that this objection lacked merit since Bisson’s right to “self-determination” was not implicated in this case as she was not seeking redress from political or civil oppression, but rather recovery of damages for allegedly tortuous conduct. Moreover, even if the rights addressed by the ICCPR were involved, the ICCPR did not create any judicially enforceable individual rights before US courts and was thus unenforceable.85

82 Bisson v United Nations and ors, Decision on a report and recommendation of a US Magistrate Judge, Case no 06-6352 (SDNY 2008); ILDC 889 (US 2008), 11 February 2008. Bisson had been reimbursed by the WFP’s Stafff Compensation Plan (SCP) for medical, hospital, and other expenses directly associated with her injuries and had also been offfered compensation in the amount of $104,000 for permanent partial incapacity which he incurred in the course of her employment for the World Food Programme (WFP). She claimed general damages stemming from the defendants’ gross negligence and intention- ally tortuous conduct. 83 “[E]mployee dissatisfaction with the efffĳicacy of the administrative remedy is insufffĳi- cient to dissolve the immunity of international organizations”. Mendaro v. World Bank, supra note 77. 84 International Covenant on Civil and Political Rights (adopted 19 December 1966, entered into force 23 March 1976) 999 UNTS 171. 85 Supra note 82, at 25 (“When the Senate ratifĳied the ICCPR in 1992, it declared that “Articles 1 through 27 of the Covenant are not self-executing”. 138 Cong. Rec. S4781-01, S4784 (Apr. 2, 1992). Moreover, “the ICCPR came with attached Reservations, Understandings, and Declarations declaring that the ICCPR is not self-executing. This declaration means that the provisions of the ICCPR do not create a private right of action or separate form of relief enforceable in United States courts”. Guaylupo-Moya v. Gonzales, 423 F.3d 121, 137 (2d Cir. 2005); see also Igartua De La Rosa v. United States, 32 F.3d 8, 10 n.1 (1st Cir. 1994) (per curiam), cert. denied, 514 U.S. 1049 (1995) (noting that the ICCPR does not give rise to “privately enforceable rights under United States law”). Therefore, even if Bisson has rights under the ICCPR that are implicated here, this Court cannot enforce them”). 294 chapter fifteen

Also Canadian courts were faced with requests to deny immunity of international organizations in employment related disputes. In Trempe86 a former employee of the International Civil Aviation Organization (ICAO) raised claims for a considerable amount inter alia against the ICAO Council as well as the ICAO stafff association. Trempe had been employed as a “distribution clerk”. His original employment contract of 27 June 1990 was to end on 12 October 1990 and provided, inter alia, that the provisions of the ICAO Service Code applicable to permanent stafff was not applicable to his contract due to its short duration. Subsequently, the contract was prolonged during 1991 and 1992. On 25 January 1991, the ICAO informed its personnel that the ICAO Secretariat had decided that all contracts of non-permanent stafff were to be amended to the efffect that the ICAO Service Code was applicable to them. On 6 November 1992, the ICAO Secretary General informed Trempe that his contract would terminate and was not to be renewed as of 30 December 1992. On 13 November 1992, the Chief of the Personnel Branch told Trempe that the number of general service stafff had to be reduced. Later on, Trempe discovered that a temporary Distribution Clerk had replaced him and that a vacancy notice had been issued for his the post. On 20 January 1993, Trempe thus appealed to the ICAO Secretary General with the request that the decision regarding his contract be reviewed. The Secretary General denied his request based on the delayed submission of his appeal.87 Trempe pointed to the action of the Chief of the Personnel Branch and alleged a denial of his legitimate right to defend himself.88 Subsequently, Trempe requested to be granted

86 Trempe v L’Association du personnel de l’OACI et al. And Trempe v. Conseil de L’OACI et al., Cour Supérieure, District de Montréal, Nos. 500-05-061028-005 and 500-05-063492- 019, 20 November 2003. 87 Ibid. quoted at 17 (“At the time, [Chief of the Personnel Branch] spoke with you on 13 November 1992, it was intended to keep the post vacant. However, later on it was decided to fĳill the post again and a temporary Distribution Clerk was recruited because the supervi- sors did not express an interest to rehire you. Although the terms of your temporary appointment dated 30 December 1991 (see paragraph 9 of the letter of temporary appointment of 3 July 1990) exclude the Stafff Regulations and Rules concerning the appeals procedure, I would have been prepared to consider a request from you to allow you to do so if such a request had been submitted to me within the prescribed time limit […], i.e. within one month of the time you received notifĳication of the decision in writing on 6 November 1992. Since you did not meet this deadline, I am not prepared to consider your request”). 88 Ibid. quoted at 18 (“I would like to draw your attention on the point that the misrep- resentation of the facts by C/PER concerning the non-requirement of my post for 1993, as reported in my letter of 20 January 1993, explains why I did not appeal to you in due time. […] But it has to be mentioned that the opportunity to justify myself about the unfair supervisor’s report has never been given to me. It implies, for the one hand, that my legitimate employee’s right to defend myself against the arbitrary has been denied and on the other hand, my application for a future post vacancy may not be favorably considered”). desirable standards for administrative tribunals 295 the right to appeal to the UNAT. His request was dismissed by the ICAO Secretary General. On 27 April, the Appeals Commission recommended to the Secretary General to accept the complaint by Trempe despite the delay. However, the Secretary General did not accept this recommendation. On 19 August 1994, Trempe directly submitted his appeal request to the UNAT. The UNAT decided on 21 November 1995 that the Secretary General’s refusal to grant the possibility of appeal to Trempe fell within the former’s discretion.89 When seized by the matter, the domestic Superior Court of Montréal fĳirst established that all the defendants enjoyed immunity, referring in this context inter alia to Miller v. Canada,90 Procureur general du Canada v. Lavigne et al.,91 Broadbent v. Organization of American States,92 Mendaro v. World Bank93 and distinguishing the case at hand from state immunity with a reference to Rhita El Ansari v. Morocco et al.94 Additionally, the Court addressed the complaint raised by Trempe relating to a violation of his fundamental rights. The Court stated that it appeared that Trempe’s attempt to appeal internally had been rejected due to the lateness of his request and that his case was not heard on its merits by any appellate body. Trempe submitted that his fundamental rights had been breached since he had not been heard by an independent and impartial tribunal. This, he alleged, had caused his “right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”95 under domestic law to be violated, since this right also encompassed the provisions of the ICAO seat agreement relating to security. After not having been heard in accordance with the fundamental principles of justice, Trempe alleged, his psychological security had been negatively afffected. The Court found that

89 UNAT Judgment No. 726, Case No. 809: Trempe v. Secretary General of the International Civil Aviation Organization, 21 November 1995, UN Doc. T/DEC/728. (“[i]f the Chief of the Personnel Branch – and this has not been confĳirmed – gave inaccurate information to the Applicant, that was wrong. Nevertheless, in the circumstances, the Secretary General was within his rights in concluding that there was no justifĳication for waiving the time-limit”). 90 Her Majesty The Queen in Right of Canada v. Miller, Appeal to Supreme Court, (2001) 1 SCR 407, ILDC 179 (CA 2001) 2001 SCC 12 (CanLII), 1 March 2001. 91 Procureur general du Canada v. Lavigne et al., Québec Court of Appeal, Receuil de Jurisprudence du Québec 405 [1997]. Also quoted in UN, United Nations Juridical Yearbook 2003, UN Doc. ST/LEG/SER.C/41, p. 600. 92 Broadbent v. OAS, D.C. Court of Appeals, 628 F.2d 27, 35 (D.C.Cir. 1980). 93 Mendaro v. World Bank, supra note 78. 94 Rhita El Ansari v. Morocco et al., 1980 U.S. App., LEXIS 21563. 95 Section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. 296 chapter fifteen

Trempe’s claim was not justifĳied since the question had already been decided by the Canadian Supreme Court. In that case it was held that it is clear that the right to personal security does not protect the individual against the ordinary tension and anguish that a person of reasonable sentiment would feel following a governmental act. If the law would be interpreted in such a broad fashion, innumerable governmental initiatives could be contested on the basis of a violation of personal safety […].96 After concluding that this dictum of the Supreme Court was applicable to the case at hand, the Court concluded that Trempe’s constitutional argument lacked basis, also in view of the alleged breach of “fundamental freedoms” without, however, going into a detailed examination thereof. However, when addressing the issue of costs, the court used its discretion and decided in favour of Trempe. After fĳinding that both the amounts claimed by Trempe and the statutory fees would be equally “ridiculous”, the Court reasoned why Trempe should not be obligated to pay costs. Firstly, the Court considered the fact that Trempe was not represented by counsel, and secondly, it found that the context of the case was, at the least, peculiar.97 The Court concluded that Trempe would have normally had the right to be heard on the merits of his complaint, but that his complaint was rejected merely on a question of a delay which seemed at the least subject to debate since it had in fact been caused by the organization. The Court rhetorically asked how Trempe could possibly have made a claim for revision on time and answered rather vaguely that the only thing that could be said was that everything appeared worthy of discussion and was ambiguous.98 Finally, the court stated that it was not competent to decide on the decisions made by the ICAO Secretary General and the UNAT, but that the facts of the case could be considered by the Court when deciding on costs. Moreover, the Court held that while the appeal might have been bold, it was not frivolous, since Trempe’s seemed to have been the victim of an injustice and a citizen should always have the right to address the tribunals of his country. Likewise, the Court mentioned that the General Procurator had intervened in the matter in favour of the ICAO, using Canadian public funds against a citizen without means.99 This amounted, in the Court’s eyes, to an unequal relation of power which fĳinally led the Court to reject the appeal without costs. While this decision

96 Originally in the French language, supra note 86, at para. 93. 97 Supra note 86, at para. 99. 98 Ibid. at para. 105. 99 Ibid. at paras. 106 to 110. desirable standards for administrative tribunals 297 did not question immunity of the ICAO, the stance of the court when deciding on costs is noteworthy; it concluded that Trempe was possibly the victim of an injustice and found that the intervention by domestic authorities in favour of ICAO’s immunity resulted in an unequal relation of power. In the United Kingdom, domestic employment tribunals were confronted with stafff disputes involving international organizations.Mukoro v. EBRD100 was based on a complaint against the EBRD alleging unlawful racial discrimination after Mr. Mukoro had made a number of unsuccessful approaches to the Personnel Department of the Bank seeking employment. In the appellate judgment, the London Employment Appeal Tribunal upheld the EBRD’s immunity, but maintained in its general comments that: As immunity from suit and legal process conferred on foreign States, diplomats, international organizations and their offfĳicers may produce severe dis- abilities for individuals in respect of fundamental rights, it can only be justifĳied by an overriding public policy or interest.101 Thus, in such cases immunity could be justifĳied on the ground that it is necessary for the fulfĳilment of the purposes of the Bank, for the preservation of its independence and neutrality from control by or interference from the host state and for the efffective and uninterrupted exercise of its multi-national functions through its representatives.102 In addition to these criteria, the Tribunal also pointed out that when interpreting the relevant rules granting immunity the severity of the disability sufffered by a potentially aggrieved individual must also borne in mind. In Jananyagam v. Commonwealth Secretariat, an international organization,103 a London Employment Appeal Tribunal was faced with an allegation of sex discrimination which had occurred in the course of an arbitration proceeding between a company through which Jananyagam had contracted with the Commonwealth Secretariat and the company. The Tribunal found that since the alleged discrimination took place at a time when Jananyagam was represented by counsel and before a

100 Mukoro v. EBRD, Employment Appeal Tribunal, Appeal No. EAT/813/92, 19 May 1994. 101 Ibid. at p. 7. 102 Ibid. 103 Miss Jan Jananyagam v. Commonwealth Secretariat, Employment Appeal Tribunal, Appeal No. UKEAT/0443/06/DM, 12 March 2007. 298 chapter fifteen quasi-judicial body the arbitration was deemed to have given her the opportunity of bringing her sex related allegation, and its detriment to her, immediately to the attention of the arbitral panel. She thus had the reasonable opportunity of raising her complaint and having it determined in accordance with Article 6 ECHR. Moreover, the case provided the opportunity for the Tribunal to look at whether rights of the Commonwealth Secretariat could be impaired by a denial of immunity. The Tribunal noted that “supporting [Jananyagam’s] right now to complain to an employment tribunal about that act of discrimination may involve interfering with the Article 6 rights” of the Commonwealth Secretariat, as another party to the arbitration.104 Again, as in Mukoro v. EBRD, the Tribunal pointed out that in assessing the disproportionate efffect of a restriction on allowing proceedings in an individual case, regard must be had to the “extent of the disadvantage sufffered in practical terms by the party restricted”. The Tribunal found that “permitting the Commonwealth Secretariat to claim immunity if it should choose to do so is wholly proportionate to the disadvantage which the exercise of those rights had upon the Claimant in the present case”. On a policy note, the judge concluded that “[i]f the real villain of the piece is the 1966 Act itself […] the remedy has to be a direct challenge to the Act itself”, and such a challenge was “inappropriate in the present proceedings”.105 In Bertolucci v. EBRD106 a London Employment Appeal Tribunal was to decide on an allegation of sex discrimination by a former employee of the EBRD based inter alia on EC law. While upholding the EBRD’s immunity from suit as in Mukoro v. EBRD, the tribunal stressed that many signatories to the establishment agreement setting up the EBRD had not been members of the EC and that the Bank probably carried on operations and established a presence in non EC countries. Therefore, the Court concluded that it seemed wholly anomalous that simply because the Bank has chosen to set up its headquarters in the United Kingdom the national courts should be under an obligation to ensure that members of the stafff have a right to an efffective remedy to enforce and protect their rights under European Community law [...]. 107

104 Ibid. at p. 17. 105 Ibid. at p. 18. The 1966 Commonwealth Secretariat Act is the statutory basis for the privileges and immunities at issue. 106 Bertolucci v. EBRD et al., Employment Appeal Tribunal, Appeal No. EAT/276/97, 22 July 1997. 107 Ibid. at p. 14. desirable standards for administrative tribunals 299

Finally, in light of the allegations by Ms. Bertolucci, the Tribunal noted that “immunity from suit involves serious responsibility”.108

D. Lessons Learned from Domestic Case Law for the Design of Administrative Tribunals

The jurisprudence examined above does not lead to the conclusion that, in the few cases where courts have been willing to deny immunities to international organizations, either the ensuing proceedings amounted to “unilateral interference”109 or the “uniformity in the application of stafff rules or regulations”110 was undercut. Consequently, the main risk associated with denying immunity has so far not materialized where courts have actually denied immunity to international organizations or showed willingness to deny immunity under certain circumstances. It remains true that fĳirstly, a risk of divergent decisions remains; secondly, unilateral interference cannot be excluded in the future; and thirdly, formal common minimum standards would provide more predictability for administrative tribunals, international organizations and their stafff. However, it can be concluded that the destabilizing efffect of domestic decisions has so far not been signifĳicant in view of the main argument against the “zealous” approach of domestic courts. In this context, it may appear that the invocation of domestic standards, exemplifĳied in the invocation of the French ordre public, the cardinal principles of the Italian Constitution or the essence of rights guaranteed under the German Basic Law, means that standards applied by domestic courts are not “universal” but rather “unilateral”. However, that a standard is domestic does not imply that it is not also universal. In the decisions analyzed above, courts have applied standards which can be encompassed by a universal understanding of “due process”. The invocation of domestic principles, in the present context, arguably merely serves to “domesticate” universal ones, i.e. to make them more easily applicable in the domestic legal order. Nevertheless, the above case law also shows that regional diffferences are important. Thus, both Italian and UK courts have referred to the scope of members of the respective international organizations in order to

108 Ibid. at p. 16. 109 See supra text at note 12. 110 See supra text at note 11. 300 chapter fifteen justify or to avoid the application of regional human rights standards, respectively. This may mean that regional diffferences could continue to be relevant just as they are among states. However, this fact alone is not able to detract from the observation that the applied standards may be deemed universal. Without doubt the most far-reaching case in the present context remains Siedler v. WEU. It essentially entailed an analysis of whether Siedler had at her disposal reasonable alternative means in order to efffectively guarantee her rights.111 Several factors were highlighted by the Court of Cassation in the fĳinal decision: the efffective, not merely abstract, independence of the internal dispute settlement body, the mode of appointment of its members and the duration of their mandates. Additional criteria, stressed by the appellate court, were the publicity of decisions, the power of the body to implement decisions and the possibility to challenge the impartiality of its members. Finally, the Court of Cassation concluded that even if immunity was to be denied, domestic provisions of labor law could not generally apply to the relationship between an international organization and its stafff. Similar criteria are echoed in the French Court of Cassation’s decision in Illemassene v. OECD even if there the Court found no violation of the relevant principles. While one may question the specifĳic outcome of a balancing of immunity and human rights in specifĳic cases decided by Belgian, Italian and French courts, it cannot be denied that the standards they apply, focusing mainly on the existence of an efffective remedy before an independent and impartial authority, are based on rights widely guaranteed in universal and regional human rights treaties. Even if the Court in Siedler invoked the “regional” ECHR, the standards it employed are universal and can hardly be construed as a unilateral approach, also in light of the fact that the Belgian Court of Cassation rightly concluded that domestic labour law remained inapplicable. While the limited number of cases makes any generalization difffĳicult, it is possible to distill a set of desirable standards that can guide states and

111 Based on Waite and Kennedy, the Belgian Court of Cassation noted that exceptions to the right to a fair trial were conceivable. However, they were not to lead to a restriction of that right in a way or to an extent that would compromise the substance of the right. Moreover, such exceptions were only justifĳied if they pursued a legitimate aim and a reasonable relationship of proportionality between the means employed and the intended purpose existed. This question of proportionality needed to examined on a case-by-case basis and it was necessary to determine whether the afffected person had reasonable alternative means at its disposal in order to efffectively guarantee his or her rights. desirable standards for administrative tribunals 301 international organizations with respect to the design of their administrative tribunals: Firstly, it can be stressed that the criteria of “independence” and “impartiality” are central when it comes to assess the conformity of any administrative tribunal to the exigencies of the right to a fair trial. Independence must be efffective and depends on a number of factors, particularly the mode of appointment or the duration of the mandate of a tribunal’s members. It is not possible to conclude that from the view of domestic courts the duration of the mandate of an administrative tribunal’s members of two years, as in the case in Siedler, a priori violates the notion of fair trial, even if this should be presumed also in light of the ECtHR jurisprudence. Rather, in practice, courts balance various factors in order to determine whether the examined mechanism is efffectively “independent” and generally guarantees a fair trial. “Impartiality” requires the possibility to challenge the individual members of an administrative tribunal. Secondly, on a more concrete level it can be concluded from the admittedly scarce case law that some form of complaints mechanism for employees which guarantees a judicial, organized procedure must exist. Its basic principles must be established by law. Access to such a mechanism, e.g. an administrative tribunal or appeals board, may not be restricted in a way that would compromise the substance of the afffected individual’s right. The tribunal or board must be composed of persons other than stafff members, due regard being paid to their competence, independence and impartiality. The dates of hearings must be made public or made available to agents, delegations as well as to any personnel association of the respective international organization. Generally, procedural rules may difffer from domestic ones as long as they enable the efffective access to an independent and impartial decision-maker. The respective tribunal must have the competence to award efffective remedies, e.g. to announce the annulment of a challenged decision, to order the organization to make good any damage caused and/or to reimburse any costs. Oral hearings should be granted whenever questions of fact are in dispute, especially in harassment cases or the like where the credibility of witnesses may be of cardinal importance. While a hearing does not necessarily need to be public, decisions must be published. Where several instances exists the appeals procedure must be completely separate from the fĳirst instance and fulfĳil the same fair trial guarantees as the fĳirst instance tribunal. Any limitations to such rights or guarantees must be necessary and proportionate. 302 chapter fifteen

Thirdly, it can be said that for a number of reasons even “activist” courts generally accept that international organizations’ immunity should be generally upheld, for the well-known reasons mentioned above. This implies that the qualities of the available alternative mechanisms do not need to be as extensive as those sometimes found in domestic legal systems. However, the above-mentioned criteria can be said to constitute the most important notions and guarantees of a fair trial and must be maintained in any case, even disregarding any evolution in the understanding of the right to a fair trial. These criteria may be designated “cardinal principles” or “minimum requirements” of a respective constitution while in fact they are also widely, even universally, acknowledged principles that may not be undercut.

E. Conclusion

The minimum standards applied by domestic courts to disputes between international organizations and their stafff should not obscure the fact that the design of administrative tribunals is shaped by a variety of factors. At the same time, a divergent development of domestic jurisprudence is conceivable.112 Domestic courts are playing a legitimate role in observing certain minimum standards where they are not applying unilateral but rather universal standards and where they remain vigilant but not over- zealous. Whether the common standards required by domestic courts will become more stringent or not, at least another additional argument, based on legitimacy, militates in favour of a particularly high standard of due process in the case of administrative tribunals. While the design of administrative tribunals mainly relates to the accountability of international organizations towards their stafff, certain spill-over efffects from the administration of justice in the stafff area to other cases where the activities of international organizations impact on individuals is likely. In those contexts, relatively high standards of human rights protection will help organizations achieve legitimacy in areas where “non-electoral legitimation is fundamental”.113

112 Reinisch, op. cit., supra note 5. 113 See Kingsbury and Stewart, op. cit., supra note 2, at p. 19. CHAPTER SIXTEEN

THE EVOLUTION OF THE INDEPENDENCE OF INTERNAL JUDICIAL AND QUASI-JUDICIAL ORGANS OF INTERNATIONAL ORGANIZATIONS: THE CASE OF THE WORLD BANK

Andrés Rigo Sureda*

The proliferation and mutiplicity of international adjudicatory fora has been the focus of attention of international lawyers in recent years, but, perhaps understandably, less attention has been paid to the multiple judicial and para-judicial organs created within international institutions. Since 1927, the year in which the International Labour Organization Administrative Tribunal (ILOAT) was established, many other organizations have follow suit or have adhered to the ILO or the UN Administrative Tribunals in order to handle labour disputes with their stafff. More recent are the organs that multilateral development banks have created to control their own management to the extent that the conduct of the afffairs of the institution afffects third parties, or to sanction fraudulent practices of third parties in order to protect the use of their funds. The object of this article is to describe and compare the evolution of the independence of each of the organs created by the World Bank for the purposes described above – the Administrative Tribunal for labour disputes, the Sanctions Committee for corrupt and fraudulent practices, and the Inspection Panel for the control of management, and place the Administrative Tribunal in a wider institutional context. Each of these organs will be dealt with separately and conclusions drawn on the evolution of their independence.

A. The Administrative Tribunal1

The World Bank (in 1980) and the International Monetary Fund (IMF) (in 1993) were the last Specialized Agencies of the United Nations to create

1 There is abundant literature on international administrative tribunals. See in particular, C.F. Amerasinghe, The Law of the International Civil Service (2nd edition, Oxford UP, 1994) and N. Ziadé (ed.), Problems of International Administrative Law (Martinus Nijhofff, 2008). 304 chapter sixteen their own administrative tribunals. The Regional Development Banks established their own tribunals after the establishment of the World Bank Administrative Tribunal (WBAT). As explained to the Executive Directors of the World Bank, the governing body responsible for the conduct of the Bank’s operations, the exponential growth of the Bank in the previous decade and the limitations of the existing Appeals Committee – a committee entirely composed of stafff members which could only make recommendations to management – made it necessary to establish a judicial body. The proposal to establish the WBAT noted the right to be heard by an independent tribunal and the right to due process, as recognized in the Declaration of Human Rights, and related such rights to the jurisdictional immunity of the institution. The World Bank’s immunity is not absolute; in certain cases, a suit may be fĳiled against it in countries where the Bank has representation, has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities.2 While the position of the Bank has been that these exceptions exclude lawsuits by its stafff and this position has been endorsed by the judiciary in several member countries, there are no defĳinite interpretations by the judiciary of all member countries. The international character of the institution and the possibility of conflicting interpretations in diffferent jurisdictions were additional reasons for the World Bank to establish its own administrative tribunal. The independence of the WBAT hinges on its ability to determine its own competence, the organ which created it, the calibre of its members and the way the members are selected. The Statute of the Tribunal was adopted by resolution of the Board of Governors, the highest organ of the Bank and in which all powers of the institution are vested,3 and may only be amended by that body. The members of the Tribunal must be persons of high moral character who meet the requirements to be appointed to high judicial offfĳice or be jurisconsults of recognized competence in relevant fĳields of law. The members are appointed by the Executive Directors

2 The full text of the relevant provision of the Articles of Agreement reads as follows: “Position of the Bank with regard to judicial process. Actions may be brought against the Bank only in a court of competent jurisdiction in the territories of a member in which the Bank has an offfĳice, has appointed an agent for the purposes of accepting service or notice of process, or has issued or guaranteed securities. No actions shall, however, be brought by members or persons acting for or deriving claims from members. The property and assets of the Bank shall, wheresoever located and by whomsoever held, be immune from all forms of seizure, attachment or execution before the delivery of fĳinal judgment against the Bank”. (Article VII, Section 3). 3 Article V, Section 2(a) of the Articles of Agreement. the case of the world bank 305 and are selected from a list of candidates nominated by the President of the Bank after appropriate consultation. The Statute does not fĳix the number of candidates that the President must include in the list or with whom he must consult. The original Statute provided for appointment for a term of three years without limiting the number of terms for which a member could be re-appointed. What should be understood by “appropriate consultation” and the re- appointment of existing judges was addressed in a set of reforms undertaken in 2001, in the course of which the management of the World Bank consulted with the Stafff Association (SA), the members of the WBAT, and the members of the International Monetary Fund Administrative Tribunal (IMFAT) and the ILOAT. A purpose of the resulting amendment was to strengthen the independence of the Tribunal. To this end the following changes are signifĳicant. First, as regards the list of candidates for nomination by the President of the Bank, an advisory committee was introduced composed of four members with relevant experience appointed by the President of the Bank. The four members are the General Counsel of the Bank as chair, a representative of the stafff selected by the SA, and two other persons – one a stafff member and the other an external expert chosen by the President of the Bank. The Executive Directors, the President of the Administrative Tribunal and the SA among others may suggest candidates to the advisory committee. The list presented to the Executive Directors includes a summary of the work of the advisory committee. At the time, the establishment of the advisory committee constituted an innovation in the practice of international administrative tribunals. Second, the term of the Tribunal members was extended to fĳive years with the possibility of re-appointment for one further fĳive-year term. There are two ways to limit the perception that a member of a tribunal may decide to curry favor with management; either appointments are restricted to one term without possibility of reappointment or appointments are made for life. The fĳirst alternative has the inconvenience of the short duration of the appointment taking into account the complexity of the institution. The second precludes the potential contribution of new members who may bring diffferent experiences and perspectives. The amendment opted for an intermediate solution by extending the term from three to fĳive years and limiting re-appointment. Third, the original Statute did not mention dissenting opinions. Up to when the amendment was considered all decisions had been unanimous. The SA interpreted this unanimity as evidence of dissent quashing and advocated the possibility that dissenting opinions be specifĳically 306 chapter sixteen authorized in the Statute. The proposal to include them recognized that it was an unnecessary addition but it was considered important to help to maintain the reputation for independent judgment for which the Tribunal was known.4 Fourth, current stafff and former stafff of the World Bank are ineligible to become members of the Tribunal and former judges may not be employed by the Bank in any capacity. The next review took place in 2009 as part of a general review of the framework of the settlement of disputes between management and stafff. The outcome of the review was a number of reforms to strengthen further the independence of the Tribunal. First, emphasis is placed on the importance of the existence of efffective dispute settlement mechanisms that are impartial and independent in order to maintain the immunity of the Bank. Second, a statement was added to the Statute to the efffect that the independence of the Tribunal shall be guaranteed and respected by the World Bank Group at all times.5 Third, the Statute now recognizes the administrative and budgetary independence of the Tribunal. This means that (i) the President of the Tribunal prepares the budget and gives it to the President of the Bank who in turn submits it to the Executive Directors as part of the proposed administrative budget of the Bank, and that (ii) the budget of the Tribunal is not fungible with the budget of other administrative units.6 Fourth, immunity of the judges in the discharge of their functions is important for their independence, and the Statute now states explicitly

4 Judge Gorman, a former president of the WBAT, describes thus the context of this change: “…dating back to the earliest days of the Tribunal, all of us [members of the Tribunal] have given great weight to the belief that our judgments have greater force and clarity, and that the Tribunal will have greater credibility, if we speak with one voice rather than several. The World Bank Stafff Association began, a few years ago, to express its concerns about the absence of dissents, suggesting that it derived from the suppression of disagreement, and presumably of voices, on the Tribunal that were more sympathetic to the stafff. Although not at all an accurate perception, the Stafff Association succeeded in so convincing Bank management, and the Board of Governors recently revised our Statute so as expressly to allow for the fĳiling of dissenting opinions – an authorization that, as I say, was altogether unnecessary because already implied”. “The Development of International Employment Law: My Experience on International Administrative Tribunals at the World Bank and the Asian Development Bank”, in Ziadé, op. cit., supra n. 1, p. 224. 5 Article I.2: “The Tribunal is a judicial body that functions independently of the management of the Bank Group. The independence of the Tribunal shall be guaranteed and respected by the Bank Group at all times”. 6 Article IV.3. the case of the world bank 307 that members of the Tribunal enjoy the same immunities as stafff of the Bank in the discharge of their functions.7 Fifth, the influence of management in the selection of candidates was further adjusted in line with the practice of other institutions by requiring that the President of the Bank consults with the SA before he exercises his prerogative to appoint two of the advisory committee members.8 Sixth, the power to remove a member of an administrative tribunal from offfĳice is an essential consideration regarding the independence of that tribunal. Until the amendment of 2009, the Statute and the Rules of Procedure did not provide for the removal of a judge. In the fĳirst proposal to cover this gap, the Executive Directors would have removed a judge if all the other judges considered that that judge was not suited for service. The Executive Directors considered that it would strengthen the Tribunal’s independence if they were not involved and the matter were exclusively handled by the Tribunal. The Rule eventually agreed upon is that a judge’s appointment is terminated if fĳive members of the Tribu- nal agree, after the judge in question has been given an opportunity to comment on the reasons why he or she is not considered suitable for offfĳice. The concern for strengthening the independence of the Tribunal extended to the terms of employment of the Secretary of the Tribunal. The Secretary is now appointed by the President of the Bank with the consent of the President of the Tribunal after consulting the SA. The performance of the Secretary is evaluated exclusively by the President of the Tribunal and his appointment, as in the case of the judges, is limited to fĳive years and may be renewed only once for another fĳive years. The unifying objective of the reforms described has been to strengthen the independence of the Administrative Tribunal within the structure of the organization and to protect its independence from national jurisdictions.9 The 2001 and 2009 reforms have incorporated best practices in

7 Article IV.6. 8 For instance, the Internal Justice Council of the UN established in 2008 by the General Assembly to propose to the General Assembly candidates for the Administrative Tribunal is composed of fĳive members. UN stafff and the management elect two members each, two internal and two external who must be renowned jurists, and a president elected by the other members by consensus. In the case of the Inter-American Development Bank (IDB), four judges of the Administrative Tribunal are selected by the Executive Directors from a list of candidates proposed by management and three from a list proposed by the stafff association. 9 On immunity of jurisdiction and international administrative tribunals, see A. Reinisch, “The Immunity of International Organizations and the Jurisdiction of their Administrative Tribunals”, Chinese JIL (2008), pp. 285–306. 308 chapter sixteen the fĳield gathered through extensive consultations with other tribunals, stafff and the Executive Directors. In some instances the reforms have gone beyond these practices as, for instance, in respect of the removal of a judge. In a large and diverse institution there is merit in being explicit on matters that may have been self-understood at the time the Tribunal was created such as the statement added to the Statute on the respect for the Tribunal’s independence by the World Bank. The Statute is not a document only for the Tribunal but also for all stakeholders and the more explicit the message the less is left to interpretation of silence by those unfamiliar with judicial practices. It would be unfair to the institution to relate the thrust for independence of the WBAT exclusively to the preservation of the Bank’s immunities from national jurisdiction. From the time the establishment of the Tribunal was proposed it was felt that wherever administrative power is exercised there should be the possibility of a fair hearing and due process.

B. The Sanctions Board10

The Sanctions Committee, the predecessor of the Sanctions Board,11 was established by the World Bank in 1998 as part of the anti-corruption strategy approved by the Executive Directors in 1996. The function of the Committee was at fĳirst to penalise corrupt and fraudulent practices of companies or individuals12 in the context of the procurement of contracts fĳinanced by the Bank or in their execution. Since then, the function of the Committee has been enlarged in order to cover corrupt and fraudulent practices in the use of the funds of the Bank in contexts other than procurement. The list of those practices and the range of sanctions have also been enlarged and refĳined.13

10 See a commentary on the Sanctions Committee, as was then called, from the point of view of its independence in A. Rigo Sureda, “Process Integrity and Institutional Independence in International Organizations: The Inspection Panel and the Sanctions Committee of the World Bank” in L. Boisson de Chazournes et al. (Eds.), International Organizations and International Dispute Settlement: Trends and Prospects (Transnational Pub., 2002) pp. 187–191. See also a more recent work from the perspective of global administrative law by P. Dubois and A. Nowlan, “Global Administrative Law and the Legitimacy of Sanctions Regimes in International Law”, 36 The Yale Journal of International Law (2010) pp. 15–25. 11 The name of the Sanctions Committee was changed to Sanctions Board in 2006 to avoid the impression of lack of permanence that the term “Committee” might give. 12 Further references to companies should be understood to include individuals. 13 The text of the current defĳinitions is available at http://siteresources.worldbank.org/ INTPROCUREMENT/Resources/Procurement_GLs_Fin al_Jan_2011.pdf. (last visited Aug. 1, 2011). the case of the world bank 309

The interest of the World Bank in stamping out corrupt and fraudulent practices in the use of its resources stems from its mandate under the Articles of Agreement to ensure that the funds it lends are used for the purpose for which they are granted and with due attention to considerations of economy and efffĳiciency.14 In order to comply with this mandate, the Bank has developed guidelines for the procurement of goods and ser- vices15, and for consulting services16 which are part of the loan agreements. Their provisions on corrupt and fraudulent practices are incorporated in the bidding documents used by borrowers. In 2006 the Executive Directors approved anti-corruption guidelines to be applied in cases that funds lent by the Bank are used in situations where the procurement guidelines or the consultant guidelines would not be applicable.17 The anti-corruption strategy adopted by the Executive Directors in 1996 provided for two alternatives for membership of the Sanctions Committee: a committee with three external members or a committee of high level stafff in both instances appointed by the President of the Bank. The President opted for the internal alternative with fĳive members chaired by the Managing Director of Operations, the General Counsel and three other senior members of management. The Chief Counsel in charge of procurement was secretary of the Committee. The Sanctions Committee considered the evidence gathered as the result of the investigation of allegations of corruption or fraud received by the Bank. The party accused of either was notifĳied and had the opportunity to respond and request a hearing assisted by counsel. In turn, those responsible for the investigation had the opportunity to reply. The Committee could only recommend a sanction to the President of the Bank. The range of sanctions was limited to debarment from participation in Bank-fĳinanced procurement forever or for a specifĳied period of time. The President could accept, modify or reject the recommendation. The President had to wait for at least fĳifteen days before taking a decision. If he accepted the recommended sanction in its original or in modifĳied form, the sanction became efffective immediately and was published on the Bank’s internet site.

14 Article III, Section s(b) of the Articles of Agreement. 15 http://siteresources.worldbank.org/INTPROCUREMENT/Resources/ProcGuid -10-06-RevMay10-sp1.pdf. (last visited Aug. 1, 2011). 16 “Guidelines: Selection and Employment of Consultants” http://web.worldbank.org/ WBSITE/EXTERNAL/PROJECTS/PROCUREMENT (last visited Aug. 1, 2011). 17 http://siteresources.worldbank.org/PROJECTS/Resources/409401173795340221/ EnglishFinalAnti_CorruptionGuidelines5_05_08nd.pdf. (last visited Aug. 1, 2011). 310 chapter sixteen

The experience of the Committee has been the subject of several reviews; the fĳirst took place in 2000 by a team headed by Dick Thornburg.18 Their report (“First Report”) recommended that the Committee be maintained with the same members but sought to avoid the involvement of the President so that the cooling-offf period could not be used as an opportunity to apply pressure on the President. Instead, the sanctions should be decided and not recommended by the Committee and a board should be created with functions similar to an appeals tribunal. Furthermore, it was recommended that the investigative function be centralized in a separate department responding only to the President.19 While a department was established to centralize investigations, further reforms had to wait until a second review of the experience of the Bank with debarment. The review was carried out by the same team as in 2002.20 In the meantime, the volume of the cases considered by the Sanctions Committee had increased considerably and the work of the Committee required more time than the members could dedicate given their institutional responsibilities. Furthermore, the Committee members were responsible for areas of the institution which may have been involved in the review of the procurement now alleged to have been tinged with corruption or fraud, in particular the secretary of the Committee who was Chief Counsel, Procurement and Consultant Services in the Legal Department. For these reasons, the second review recommended (“Second Report”) structural changes to alleviate the work of the Committee and to make it more independent from the management of the Bank. To fulfĳill these objectives, the Second Report recommended a two-level structure which by and large is the structure currently in place: a fĳirst instance in which an offfĳicer of the Bank (the Evaluation and Suspension Offfĳicer – ESO) decides whether the evidence gathered by the investigation on allegations of fraud or corruption is sufffĳicient to debar the accused party. If the ESO is satisfĳied that the evidence sustains the allegation, then the ESO informs the accused party, including information on the proposed sanction. The accused party has 30 days to respond. If the party does not

18 Dick Thornburgh is a former Under-Secretary General of the United Nations and a former Attorney General of the United States. 19 D. Thornburg, R. Gainer and C. Walker, “Report Concerning Mechanisms to Address Problems of Fraud and Corruption” dated January 21, 2000. 20 D. Thornburg, R. Gainer and C. Walker, “Report Concerning the Debarment Processes of the World Bank”, dated August 14, 2002. Available at http://siteresources.worldbank.org/ Procurement Resorces/thornburgreport.pdf (last visited Aug. 1, 2011). the case of the world bank 311 respond within the deadline or, if it does, after consideration of its reply by the ESO, the ESO decides whether to apply the sanction. The sanctioned party may then fĳile an appeal against the decision to a reformed Sanctions Board of seven members, four external to the Bank and three stafff. The external members are appointed by the Executive Directors and proposed by the President who consults with them before- hand. The appointment of the Sanctions Board members is for a term of three years and they may be re-appointed only once. They may not have been Bank stafff or be employed by the Bank after their terms expire. Since 2009, the Sanctions Board is chaired by one of the external members.21 The Bank had debarred companies before the reforms of 1998. It followed an informal process and could have continued to do so in the implementation of its anti-corruption strategy, but there were institutional and operational reasons that counseled a more formal process. First, the Bank, as the leading international development bank, recognizes that it is desirable to demonstrate through its own practices the standards of good governance of which the anti-corruption strategy is an example. Second, the long-term impact of Bank fĳinancing on the economy of a country may be substantial. Hence, the debarment of a company may have important consequences for it. On the other hand, the projects fĳinanced by the Bank tend to be large or specialized with few companies qualifĳied to carry them out. It is therefore in the Bank’s interest not to see the number of qualifĳied companies reduced by erroneous decisions. For these reasons, the Second Report recommended that the processes of debarment exceed the minimum standards that an ordinary organization may follow in the administration of procurement. While the essential purpose is the protection of its own funds, the debarment process must meet standards of due process and fairness and must be perceived as such by the public.22 These considerations are more relevant today since in April 2009 the World Bank, the Inter-American, Asian, African Development Banks and the European Bank for Reconstruction and Development agreed

21 The Second Report had already recommended that the Board be chaired by one of the external members. The recommendation was repeated in the “Independent Panel Review of the World Bank Group Department of Institutional Integrity” chaired by Paul Volcker, former president of the Federal Reserve. The recommendation was accepted by the Executive Directors in 2009. The Statute of the Sanctions Board in its updated version together with the code of conduct of its members is available at http://siteresources .worldbank.org/EXTOFFEVASUS/Resources/SanctionsBoardStatute_9_15_2010.pdf (last visited Aug. 1, 2011). 22 Second Report, pp. 6–7. 312 chapter sixteen to reciprocate sanctions imposed by any of them. According to this agreement23 if one of them debars a party for more than one year, the others will impose the same sanction in respect of the use of their resources. This agreement was made possible by the framework agreement24 signed by the same development banks and the IMF in 2006 with the purpose of harmonising the defĳinitions of the practices subject to sanctions, the range of sanctions and the conduct of the investigations. Special emphasis is placed on the independence of the investigation function from those responsible for the operations of the institutions and on its freedom from interference or retaliation. The parties to the framework agreement further agreed to guarantee the accused parties due process, to use the same standard of proof – “more probable than not”- to evaluate the evidence, and to apply similar proportionality in deciding the sanctions. The concern for the independence of the investigation function led to the establishment of an Independent Advisory Board in 2008.25 It consists of four external members appointed by the President and its function is to advise the President and the audit committee of the Executive Directors on matters of anti-corruption policy, including means to strengthen the independence of the investigation function. This description of developments in the sanctions process at the World Bank for over a decade has focused on the independence of the organ which imposes sanctions and of the unit which gathers the evidence. It is not intended here to describe all the details that have been introduced. The tenor of the changes through subsequent reviews has been to strengthen the independence of these bodies as experience has been gained and the spheres of application as well as the sanctioned practices have been expanded. In an article written in 2002 on issues of independence of internal organs of international organizations I concluded in respect of the recently established system of sanctions of the Bank that “it would not be surprising if the Bank were to establish an independent review mechanism for the decision taken by the President upon recommendation of the SC [Sanctions Committee] or were to appoint SC

23 Available at http://siteresources.worldbank.org/NEWS/Resources/AgreementFor MutualEnforcem entofDebarmentDecisions.pdf. (last visited Aug. 1, 2011). 24 “Uniform Framework for Preventing and Combating Fraud and Corruption” signed in September 2006 and available at http://siteresources.worldbank.org/INTDOII/Resources/ FinalIFITaskForceFramew ork&Gdlines.pdf. (last visited Aug. 1, 2011). 25 As recommended by the Independent Panel Review of the World Bank Group Department of Institutional Integrity. The Panel was chaired by Paul Volcker and its report is available at http://siteresources.worldbank.org/NEWS/Resources/Volcker_Report _Sept._12,_f or_website_FINAL.pdf (last visited Aug. 1, 2011). the case of the world bank 313 members that are not Bank stafff members”.26 The current sanctions system reflects precisely this double instance with the ESO, and a Sanctions Board of mixed composition – internal and external – with a majority of external members from among whom a president is chosen.

C. The Inspection Panel

The World Bank appraises projects before it fĳinances them and supervises their execution. The fĳinancing is granted to a member government or with its guarantee. The preparation and execution of the project is the responsibility of the borrower. Bank operations are subject to detailed policies and procedures.27 The Inspection Panel was created in response to the severe criticism of the Bank’s management for its handling of social and environment problems of the so-called Narmada Project in India.28 Criticism reached such a level that the Bank President appointed, for the fĳirst time in the history of the institution, an independent commission of inquiry to investigate the allegations and report back to him. The commission report was very critical of Bank management29 who reacted defensively to its recommendations and was reluctant to suspend the loans notwithstanding the gravity of the situation. This attitude worsened the criticism levelled at management and created the conditions for NGOs to propose the establishment of independent bodies which, in the most extreme proposals, would have investigated or adjudicated allegations against the Bank and been entirely external to the Bank.30 In the version adopted by the Executive Directors of the Bank, the Inspection Panel is an organ of the Executive Directors31 with the mandate to:

26 “Process Integrity”, op. cit. supra n. 10, at p. 192. 27 See http://web.worldbank.org/WBSITE/EXTERNAL/PROJECTS/0,,contentMDK:2180 7601~menuPK:5068208~pagePK:41367~piPK:51533~theSitePK:40941,00.html (last visited Aug. 1, 2011). 28 In reality two projects: Narmada River Development (Gujarat) Sardar Sarovar Dam and Power Project y el Narmada River Development (Gujarat) Water Delivery and Drainage Project. 29 See B. Morse et al., Sardar Sarovar. the Report of the Independent Review (1992). 30 See Process Integrity, op. cit. supra n. 10, at p. 171 and I.F.I. Shihata, The World Bank Inspection Panel: in Practice (World Bank Publication, 2000) (“Shihata”), pp. 20–21. 31 Resolution no. 93-10 of the Bank and Resolution of No. 93-6 of the International Developemnt Association. Both resolutions are identical and are referred hereinafter as “the Resolution”. 314 chapter sixteen

receive requests for inspection presented to it by an afffected party in the territory of the borrower which is not a single individual (i.e., a community of persons such as an organization, association, society or other grouping of individuals), or by the local representative of such party or by another representative in the exceptional cases where the party submitting the request contends that appropriate representation is not locally available and the Executive Directors so agree at the time they consider the request for inspection.… The afffected party must demonstrate that its rights or interests have been or are likely to be directly afffected by an action or omission of the Bank as a result of a failure of the Bank to follow its operational policies and procedures with respect to the design, appraisal and/or implementation of a project fĳinanced by the Bank (including situations where the Bank is alleged to have failed in its follow-up on the borrower’s obligations under loan agreements with respect to such policies and procedures)32 provided in all cases that such failure has had, or threatens to have, a material adverse efffect.33 The Inspection Panel is an organ charged with investigating facts alleged in the request and presenting its fĳindings to the Executive Directors. Even if it is not a judicial organ properly speaking, it has certain characteristics which warrant consideration here. First, the report of the Inspection Panel is a report on its fĳindings. Its fĳindings address whether Bank management breached the policies and procedures of the Bank and whether such breach has afffected or may negatively and substantially afffect the requesters of the inspection. Second, if the fĳinancing is already in place, the Panel must determine whether management has required borrowers to comply with their obligations under the loan agreement. A failure to comply with such a requirement may lead to the suspension of disbursements or cancellation of the loan, as provided for in the contract. In turn, this requires a determination as to whether the borrower has complied with the loan agreement – otherwise there would be no basis for the suspension or cancellation. Third, the processes leading to the authorization of the investigation and the follow up to the investigation have the characteristics of an adversarial process: when management receives notifĳication that the Inspection Panel has received a request for inspection, and before the Panel makes its recommendation to the Executive Directors, management needs to

32 This parenthesis can be tracked to the reluctance of management to suspend the Narmada Project loans. 33 Para. 12 of the Resolution. The Resolution provides “an Executive Director may in special cases of serious alleged violations of such policies and procedures ask the Panel for an investigation” and also that the Executive Directors, acting as a Board, “may at any time instruct the Panel to conduct an investigation”. the case of the world bank 315 furnish the Panel with proof of its compliance with the Bank’s policies and procedures or of its intention to comply with them. As part of the inspection process, the Panel hears from the requesters, representatives of the government of the country where the project in question is located, and Bank stafff; it then informs the Executive Directors and management of its fĳindings. Within six weeks, management prepares its recommendations in response to the Panel’s fĳindings for consideration by the Executive Directors. The circumstances of the Inspection Panel’s creation and its functions as an organ of control over management explain the need for the Panel to be independent from management. Its independence was always considered crucial from the start, in order to build its credibility vis-à-vis the external critics of the institution.34 While the Panel reports to the Executive Directors, the Panel members are selected taking into account their personal integrity and independence from management.35 The members cannot be current stafff, cannot be employed by the Bank after their term expires and cannot have been in the Bank’s service in the previous two years.36 For their selection, the President requests the Executive Directors to propose candidates and prepares a short-list out of those proposed. The Executive Directors select the inspectors from the short-list.37 They are appointed for a non-renewable term of fĳive years and may only be removed from offfĳice by the Executive Directors for justifĳied reasons. Inspectors are required to step down and may not consider any request related to any matter on which they have worked. In practice, the Panel has taken the opportunity to show its independence in a number of instances. Since the very beginning, the Panel has tried to widen its competence in terms of those who may submit a request for an investigation. The Resolution limits the right to afffected parties who are not individuals. The Rules of Procedure adopted by the Panel permit a

34 The concern for the independence of the Panel was originally reflected in its name: the Independent Inspection Panel. The term “independent” was deleted during the discussions of the draft resolution at the suggestion of an Executive Director who feared that this term may give the impression that the Panel was external to the Bank. See Shihata, op. cit., supra n. 30, p. 98 note 162. The fear was justifĳied by the various proposals where an independent organ outside the institution was contemplated. The term “independent” remains in the text of the Resolution. 35 Resolution, para. 4. 36 The restriction includes Executive Directors, Alternates, advisers, consultants. Stafff of the Bank afffĳiliates includes stafff of those on which the Panel has no competence such as IFC, ICSID and MIGA. 37 The Resolution simply provides that the President proposes candidates after consultation and the Executive Directors appoint them. 316 chapter sixteen group of two or more persons to present a request. This interpretation of the text of the Resolution was confĳirmed in the fĳirst review of the experience of the Panel. The Board’s “Clarifĳications Resulting from the First Review of the Panel’s Experience” state that the phrase “an afffected party” includes two or more persons who share interests and concerns. The text of the Resolution refers to the design, appraisal and the execution of projects. The question arose whether the term “project” would encompass balance of payment support operations, which at the time were known as adjustment or sector adjustment operations. The Board “Clarifĳications” confĳirmed that its competence extended to projects in the wide sense in which the Bank had understood this term in its operations. In practice the Panel extended its competence to adjustment operations. Also since the start, the Panel has attempted to modify its functions of investigating facts related to possible or real harm caused by the lack of compliance, by focusing on the harm itself rather allocating responsibility for the harm. In fact, in the course of the two reviews of the Panel’s experience, the Panel proposed to the Executive Directors that it investigate only the harm resulting, or that could result, from a project. The proposal was not accepted. The Panel was motivated to fĳind a practical solution to address harm caused by a project (the cause of which is of little signifĳicance for the afffected parties). It soon became evident that, given the limited role of the Bank in the preparation and execution of a project, the harm caused by the disregard of the Bank’s policies and procedures would not be cured simply by their faithful application and certainly not without the collaboration of the government of the country in which the project was to be implemented. The investigation of facts by an independent organ is only a fĳirst step which may lead to the future or current borrower being sanctioned. Thus, if the project is at the preparation stage, the Bank’s only option as a fĳinancial institution is to refuse to fĳinance the project. On the other hand, if the project is already being executed, the consequences of the fĳindings by the Panel may eventually trigger the suspension of disbursements. These efffects mean that indirectly the Panel determines whether the borrower, and not only management, has complied with the policies and procedures of the Bank. The Panel is not competent to make such a determination but it is a result that is difffĳicult to avoid when the Panel looks at the facts and seeks to attribute responsibility to Bank management for the breach of Bank policies. It is not surprising that on several occasions borrowers have cancelled their loans. the case of the world bank 317

An organ of the Executive Directors, even if independent from management, is possibly not the most appropriate forum for resolving issues between the institution and its shareholders. While independence from management is essential for its control, it is not the most efffective way to solve issues between shareholders of the Bank and its management. The relationship between the borrowing country and management is a continuous long-term relationship, and in this context problems tend to be resolved informally and without publicity or allocation of blame. Regional development banks seem to have been aware of these implications of mechanisms of inspection when they have replicated and refĳined the Bank’s Inspection Panel through various generations of organs which now include mediation elements and focus on solving the harm done. The Resolution establishing the Inspection Panel has not been modifĳied notwithstanding the experiences of the Panel and the evolution of similar organs in other institutions. Perhaps the political cost of modifying the Resolution is too high. On the other hand, the Bank afffĳiliates which deal with the private sector – International Finance Corporation (IFC) and Multi- lateral Investment Guarantee Agency (MIGA) – have set up a mechanism focused on conciliation and the solution of problems pragmatically.38

D. Conclusions

The description of the elements of the independence of these three organs and how they have evolved show certain patterns notwithstanding their diffferent functions, the varied circumstances that prompted their establishment and the parties involved. The adjudicatory common denominator drives a convergence on (a) the way members of the various organs are selected in order to balance the influence of management in the person of the President of the Bank who is also chairman of the Board of Executive Directors and the Executive Directors themselves, or to balance the views of management and stafff in the selection of candidates as members of

38 The President of the World Bank in his capacity of President of IFC and MIGA established the function of Compliance Advisor Ombudsman (CAO) by administrative decision in 1999. This function is limited to the private sector institutions of the World Bank Group which have been excluded from the purview of the Inspection Panel and it is also the precedent of problem-solving functions in the RDBs. In the role of ombudsman the CAO aims at resolving issues by providing a context and a process for parties to fĳind mutually satisfactory solutions. The complaints do not need to be based on disregard of any particular policy, the complainant may be an individual afffected or likely to be afffected by the social or environmental impacts of an IFC or MIGA fĳinanced or guaranteed project, respectively. 318 chapter sixteen

WBAT; (b) the personal qualities of candidates, (c) the term limits and their duration, (d) the process followed by each organ to ensure a fair hearing, and (e) the concern to maintain, clarify or strengthen the independence of each organ. The extent to which the independence of the various organs difffers may be explained by their functions.39 Compared with the Sanctions Board, the Administrative Tribunal enjoys greater independence from management and so does the Inspection Panel. Nonetheless, the independence of the Sanctions Board for the operational and institutional reasons already mentioned exceeds the independence of similar organs in State administrations or other international organizations in charge of debarring parties who incur in fraudulent or corrupt practices.40 The Inspection Panel is unique among the three organs in that its fĳind- ings have implications, even if indirectly, for the borrower or guarantor government. The Inspection Panel had from the start the independence required for the Executive Directors to control the application of policies and procedures by management. But concerns that any action by management to create advisory or facilitation functions may be interpreted as undermining the role of the Panel and its independence have possibly inhibited development of facilitator mechanisms at the management level to address the project harm itself - a sort of “fĳirst instance”, which exists for labor disputes and in the sanctioning regime without afffecting the independence or the standing of the Administrative Tribunal or the Sanctions Board.

39 For an interesting discussion of the relationships between the objective of international jurisdictions and their independence and independence of tribunals and the nature of the disputes on which they have jurisdiction, see E. Jouannet, “Remarques Conclusives” in H. Ruiz Fabri and J-M Sorel (eds.), Indépendance et imparialité des juges internationaux (A. Pedone, 2010), p. 290. 40 See Second Report, p. 2 and fff. CHAPTER SEVENTEEN

THE EFFECTIVENESS OF INTERNATIONAL ADMINISTRATIVE LAW AS A BODY OF LAW

Chris de Cooker

Never underestimate the efffectiveness of a straight cash bribe… Claud Cockburn

I have been invited to entertain the topic “The efffectiveness of international administrative law as a body of law”. This title makes a number of thought-provoking assumptions: that there is such a thing as international administrative law, that there is a common corpus juris for all, or almost all, organizations and that there is a mechanism to assess its efffectiveness. Let me assure you: I will not analyze each and every word in the title as given to me, but a few remarks may be opportune and I will try and concentrate on the trends that can be witnessed over the last decades, with a particular emphasis on the last three decades, although not everything has started with the creation of the World Bank Administrative Tribunal. The fĳirst, uncertain, international administration steps were made some two centuries ago with the creation of the General Administration for access to navigation on the Rhine. Several other examples can be given of international secretariats that were set up in the second half of the 19th century,1 but the real proliferation of universal and regional international administrations, as we know hundreds of them today, started in the previous century. A genuine debate on the international civil service, and in particular on its independence, took place when the League of Nations was set up.2

1 E.g. International Telegraph Union in 1865, Universal Postal Union in 1974, International Union for the Protection of Intellectual Property in 1883, etc. 2 For details see S. Tarassenko and R. Zacklin, “Independence of International Civil Servants (Privileges and Immunities)”, in C. de Cooker (ed.), International Administration,(Martinus Nijhofff, 2009), III.1. 320 chapter seventeen

Following this and especially during the last decades substantial progress has been made in structuring our sub-society of international administration. Since the 1960s numerous books have been published on the law of international institutions and that of the international civil service. They all recognize the diffferences that do exist between the organizations in terms of objectives, purpose, size, and rules, but also emphasize the fact that the organizations have much in common in terms of institutional law. Internal laws are very similar in most situations in most organizations, and so are the problems that they are facing. This communality is only increasing as will be shown later, to the extent that today easy reference is made by many to international administrative law, and to international administrative law as a corpus juris. Let us fĳirst look at the more general characteristics of international administrative law. International organizations are set up by states through treaties, that is to say that the organizations and their internal law fĳind their basis in public international law. The treaties setting up the organizations, in fact, give powers to the organizations to set up their internal law, part of it decided by the member states represented on the board, part of it enacted by the heads of the organizations through the powers given to them by the member states. The current set-up provides that this internal law of the organization is essentially independent from national laws and jurisdictions. This is safeguarded, or supposed to be safeguarded – I can come back on this later – by a system of immunities, which is essential to guarantee the organization’s complete independence and the equal treatment of its stafff wherever they come from and wherever they work. What then is international administrative law? It is, fĳirst of all, more than often diffferent from the classic labor law that is known in national systems and I trust that Professor Roy Lewis will go into more detail on this. Most organizations have often voluminous (e-)handbooks, containing rules, instructions and procedures covering not only employment conditions or behavioral guidelines proper, but also sets of detailed rules in matters like procurement, lending, fĳinances, etc. Parts of these manuals are essential elements of the professional obligations of the stafff and therefore constitute part and parcel of their employment conditions. Other parts in these manuals are, of course, mere policy statements.3 Secondly, the employment conditions in the international civil service also cover matters that in national systems generally do not form part of

3 Cf. de Merode, WBAT Decision No.1 [1981], para. 22. the effectiveness of international administrative law 321 the employment relationship, such as pensions, medical cover, family allowances, etc. With its de Merode decision the World Bank Administrative Tribunal left a fĳirst and impressive footprint on the international administration scene. In a careful and detailed search for the sources of the law to be applied in the fĳirst case before it, it raised a number of important questions that are relevant for our discussion. The Tribunal underlined that the employment conditions are fĳirst of all governed by the contract, i.e. the offfer of employment and its acceptance. Generally, this letter makes explicit reference to the organization’s rules and policies, making them an inherent part of the contract. Or, as the WBAT put it with specifĳic reference to the World Bank: The contract may be the sine qua non of the relationships, but it remains no more than one of a number of elements which collectively establish the ensemble of conditions of employment operative between the Bank and its stafff members. In the case of other organizations one looks for these other elements principally in the constituent instrument of the organization and in its Stafff Rules and Regulations. As the Bank has at present no Stafff Rules or Regulations one must look to the Articles of Agreement of the Bank and to the By-Laws and, depending on their content, to certain manuals, circulars, notes and statements issued by the management of the Bank as well as to certain other sources which will be examined presently.4 The Tribunal then analyzed the Articles of Agreement and the By-Laws. It also referred to the various manuals that contain employment conditions as well as the practice of the organization5. As a further element the Tribunal identifĳied the general principles of law: Another source of the rights and duties of the stafff of the Bank consists of certain general principles of law, the applicability of which has in fact been acknowledged by the Bank in its written and oral pleadings.6 Gorman calls them the general principles of law that go beyond the self- promulgated rules.7 The Tribunal then entertained the question of comparison with other organizations and the existence of a corpus juris. It agreed that similar features do exist. It observed that some judgments go as far as to speak of

4 Ibid., para. 18. 5 Ibid., paras. 22 and 23. 6 Ibid., para. 25. 7 In N. Ziadé (ed.), Problems of International Administrative Law (Martinus Nijhofff, 2008), p. 213. 322 chapter seventeen general principles of international civil service law, but did not fĳind it necessary to express a view whether these amount to a true corpus juris. The parties have discussed the question whether the conditions of employment incorporate in addition the rights and duties defĳined in relation to other international organizations by administrative tribunals comparable to this one. Or, to put it another way, do there exist rules common to all international organizations, and which must, therefore, ipso facto apply in the legal relations between the Bank and its employees, in such a way as to determine the rights and duties of the two parties in the present case? Is there a common corpus juris shared by all international offfĳicials? The Tribunal, which is an international tribunal, considers that its task is to decide internal disputes between the Bank and its stafff within the organized legal system of the World Bank and that it must apply the internal law of the Bank as the law governing the conditions of employment. The Tribunal does not overlook the fact that each international organization has its own constituent instrument; its own membership; its own institutional structure; its own functions; its own measure of legal personality; its own personnel policy; and that the diffference between one organization and another are so obvious that the notion of a common law of international organization must be subject to numerous and sometimes signifĳicant quali- fĳications. But the fact that these diffferences exist does not exclude the possibility that similar conditions may afffect the solution of comparable problems. While the various international administrative tribunals do not consider themselves bound by each other’s decisions and have worked out a sometimes divergent jurisprudence adapted to each organization, it is equally true that on certain points the solutions reached are not signifĳicantly diffferent. It even happens that the judgments of one tribunal may refer to the jurisprudence of another. Some of these judgments even go so far as to speak of general principles of international civil service law or of a body of rules applicable to the international civil service. Whether these similar features amount to a true corpus juris is not a matter on which it is necessary for the Tribunal to express a view. The Tribunal is free to take note of solutions worked out in sufffĳiciently comparable conditions by other administrative tribunals, particularly those of the United Nations family. In this way the Tribunal may take account both of the diversity of international organizations and the special character of the Bank without neglecting the tendency towards a certain rapprochement.8 Today there is hardly any judgment of international tribunals that does not make reference to jurisprudence of other tribunals. It has become current practice. In a very recent example, in December 2009, the WBAT referred directly to an IMF judgment:

8 Ibid. paras. 26–28. the effectiveness of international administrative law 323

… It should be noted that the Tribunal is not the fĳirst forum to address this type of dispute. The International Monetary Fund Administrative Tribunal addressed a similar matter in Mr. “P” (No. 2), Applicant v. International Monetary Fund, Respondent, IMF Administrative Tribunal, Judgment No. 2001-2 (November 20, 2001).9 These two cases were both dealing with parallel divorce proceedings, so the reference is easy to understand. In other cases tribunals refer to one or more judgments of other tribunals without specifying whether they are referring to a single corpus juris or to general principles of law applied by other tribunals. The IMFAT for example stated: It may be observed that protecting against conflicts of interest is an objective that serves the interests not only of management but also of the stafff in maintaining the independence of its representatives. This understanding is reflected in the jurisprudence of international administrative tribunals. The IMFAT then referred to jurisprudence of the OASAT and of the ILOAT.10 The ILOAT was already before the de Merode case somewhat more direct in its application of general principles of law: Such discrimination offfends against the general principles of law, and particularly of the international civil service, and the Tribunal cannot allow application of a text which so discriminates.11 All these elements are thus part of the employment conditions of international stafff, not so much, as the WBAT also emphasized, by the acceptance of the contract, but because this is the “consequence of their objective existence as part of the legal system to which the stafff member becomes subject by entering into a contract with the organization”.12 The communality does not mean that all organizations and their stafff are bound by a single set of rules. The body of law is rather a frame, where the internal rules of each organization remain independent and form the basis for the employment conditions. It allows fĳinding common, or similar, solutions for common problems. Like all of us, tribunals have greatly benefĳited from the new technologi- cal means that are now at our disposal. Research can easily be made in jurisprudence databases by the judges, the registrars, and the parties. More resources have been made available. And, last but not least, judges

9 Aleem and Aleem, WBAT Decision No. 424 [2009], para. 61. 10 IMFAT Judgment No. 2008-1, D’Aoust (No.3) v. IMF, para. 61. 11 In re Callewaert-Haezebrouck (No. 2), ILOAT Judgment No. 344, consideration 6. 12 Ibid. paragraph 29. 324 chapter seventeen meet at international conferences, such as this one, and freely exchange ideas. All this enhances efffĳiciency and efffectiveness. Also important to note is the sharp increase of exchange of information between those who are living with the law on a daily basis: the managers and the stafff. Or as Schermers and Blokker put it: “… contacts between organizations tend to have a strong harmonizing efffect between organizations. Stafff regulations of other organizations are always consulted when new regulations are made…”13 I do not know how many groups of lawyers and managers from diffferent organizations meet on a regular basis in order to share information and experiences. There are now, for example, the groups of legal advisers from the UN Family, of the Financial Institutions, of the Coordinated Orga- nizations, and of “my” International Institute for Administrative Sciences (IIAS) group, probably the largest with some 35 diffferent organizations being represented. Information and experience is exchanged, databases were set up and the groups have become real networks. These gatherings therefore have contributed greatly to a converging of the body of law, and they will continue to do so. The matter becomes more complicated, of course, when organizations are changing the law in order to enact new policies and to bring about change and, consequently, a change in habits, very often in reaction to new developments both inside and outside the organizations. Let us not forget what Adlai Stevenson once observed: laws are never as efffective as habits. A major prerequisite for success when introducing new standards is strong moral leadership. Senior management must show the highest level of integrity. It is logical that organizations do not always react in the same way or with the same speed to new developments, and local circumstances do play a role as well. Good examples can be found in the fĳields of ethics and conduct.14 This is about changing norms or introducing new norms, and the adaptation of control mechanisms. I observe with some satisfaction that organizations do consult with one another, often on an informal basis, and exchange information also here in their search for best practices. The ultimate guarantor of international administrative law is, of course, judicial review. The existence of a mechanism for the settlement of

13 H.G. Schermers and N.M. Blokker, International Institutional Law, 5th revised edition (Martinus Nijhofff, 2004), para. 507. 14 See C. de Cooker, ed., Accountability, Investigation and Due Process in International Organizations (Martinus Nijhofff, 2005). the effectiveness of international administrative law 325 disputes is an important element for keeping the internal legal system efffective and independent from national systems. It is striking then when it comes to organizing this judicial review that member states and management of organizations alike hasten to underline the important diffferences between their respective organizations which should justify the creation of a great number of separate administrative tribunals. This number is not decreasing, despite some effforts that were undertaken. This proliferation can, at fĳirst glance, not contribute to the efffectiveness of the system as a whole. Judge Guillaume observed ten years ago that this situation has not posed a serious risk of divergence in international administrative law. He submits that it remains extremely consistent because the judges on the tribunals – and some sit on several tribunals – let themselves inspire by one another’s’ judgments.15 During the same colloquium Judge Massot, who in fact does sit on several tribunals, explained not to be a partisan of this proliferation16 and I was myself trying to show that I could live with it, at least for my own organization.17 Another point of concern, for me, is the proliferation within most of the organizations of both formal and informal pre-litigation procedures and facilities. I am in favor of quick and efffĳicient mechanisms that facilitate a settlement between the parties. Going to court should be avoided to the maximum extent possible. A problem or a case should not take too long. But perhaps even more important is the need for clear rules and guidelines; prevention is better than cure. I think we can conclude looking back at the last thirty years that an enormous progress has been made in increasing convergence in the system of international administrative law, or as the WBAT put it in the de Merode case a “rapprochement”, and, consequently, the latter’s efffectiveness. Managers, stafff and judges refer more than ever to this system as a body of law. The efffĳiciency of international machinery is closely related to the efffectiveness of the international administration servicing it.18 The ultimate purpose of international administrative law is thus to contribute to the smooth running of the organizations, to contribute to the success of their operations and to assist them in reaching the goals for which they have been set up. The fĳirst goal of this internal legal system is that it contributes

15 In Ziadé, op. cit., supra n. 5, p. 7. 16 Ibid. p. 147. 17 Ibid. p. 161. 18 Cf. Tarassenko and Zacklin, op. cit., supra n. 2, p. 483. 326 chapter seventeen to the good functioning of the administration. In order to achieve this it should be close to “its” citizens. This is valid for the law-maker, for those applying it and for the dispute resolution mechanism. The rules and policies must be clear and unambiguous. Codes of conduct are useful instruments to this efffect. Management must be clear in their guidance and must be fair. Management must be accessible and, when necessary, be available to arbitrate. Issues should be discussed before they become problems and defĳinitely before they become disputes. When it comes to disputes, proper dispute resolution mechanisms, informal and formal, must be in place and accessible. The dispute resolution mechanism should be expeditious, be of the highest standards, and keep in mind the special place international organizations have under international law. Its decisions must be implemented and they generally are, perhaps with one notable exception: the decision ordering reinstatement. I refer again to Professor Lewis’ contribution for details. For the system of international administrative law to work properly and universally (efffĳiciently and efffectively) we need independence from the internal systems, from national rules and national judges alike. To this end we have a scheme of immunities. These can only be efffective if the international system contains adequate rules and adequate possibilities for judicial review. The system of immunities, as we know it, is not designed to cover situations that would be illegal or below standard; and it may not create a vacuum or a deni de justice. Immunity does not mean protection of isolation and it does not give a vaccination against the outside world. Its only function is to guarantee independence when it is necessary for the functioning of the organization. We must remain aware, and accept, that the international administrative world is part of an overall environment. Organizations often function at the borderline with national laws. Good examples are local rules on occupational safety, health and hygiene. All organizations have contractors and vendors on site whose contracts are regulated by national law. In addition, the outside world has an influence on the organizations. Press, politicians and the general public follow often closely what the organizations are doing and how they are doing it. Organizations function in a local environment with traditions and cultures, not only in administrative terms. Standards, moral standards, human rights standards do have their influence. Organizations often proclaim to be living by the highest standards and should therefore not be afraid to be tested against them. They should not hide behind immunities. They have often unnecessarily the effectiveness of international administrative law 327 done so entailing frustration, and sometimes irritation, on the part of national administrations and judiciary. The moment may be right to make a careful assessment of the situation we fĳind ourselves in today and to determine what is essential and what is less so. The issue is not about being privileged; it is about what is necessary to guarantee independence. “My” Working Group will work on this issue in a few months. Secondly, a distinction must be made between aspiring to higher standards, on the one hand, and compliance with current human rights standards, on the other. The internal justice systems as we know them today in our organizations – and important adjustments have been made to them in the last decade – are generally compliant with human rights standards and jurisprudence, whatever some national judges may say. On the other hand, immunities are important, in particular when unreasonable attacks are made, or when national law is unreasonably imposed on the organizations. In what is becoming a serious threat to the proper functioning of the international administrations, national judges are increasingly refusing to recognize immunities and even start applying national law, and this, obviously, with varying degrees of contradictions between them. Many examples can be given about national courts testing the internal justice systems of the organizations against human rights standards. Other courts, in equally worrying approaches, give their own interpretations on what is essential for the organizations’ independent functioning, and what is not. These are main threats to the efffectiveness of international administrative law. You will recall the Waite & Kennedy19 and Beer & Regan20 cases, concerning four contractors working on ESA premises. When their employers terminated their contracts they sued ESA in German courts claiming that they were ESA stafff members. ESA invoked its immunities which were upheld by the German courts up to the highest instance. The claimants then went to the European Commission and Court of Human Rights submitting that the application of immunities violated their basic human right of access to a tribunal. The Court held that this right was not absolute and that exceptions or limitations did exist. Immunities of international organizations are such an exception. The Court did not consider this

19 Waite and Kennedy v. Germany (Application No. 26083/94), European Court of Human Rights, Judgment of the Grand Chamber of Feb. 18, 1999. 20 Beer and Regan v. Germany (Application No. 28934/95), European Court of Human Rights, Judgment of the Grand Chamber of Feb. 18, 1999. 328 chapter seventeen disproportionate in particular when alternative means exist. In this respect the Court not only referred to the possibility for the claimants to attack their initial employers before the German courts, but also to seize ESA’s internal tribunal, called the Appeals Board, which is independent from the Agency. The Court concluded that the claimants could and should have addressed themselves to this tribunal on the question whether they were stafff members or not. Two of them (Beer and Regan) went to the ESA Appeals Board, which ruled that they were not stafff members. They returned to the European Court. The First Section of the Court ruled that claimants had availed themselves of the possibility to go to the national court, against their “real” employers and had reached a settlement there. Before I move to Belgium, and make this an all Europe show, just a few examples that this is or is becoming a worldwide problem. Let me just refer you to the saga of the immunities of the UN Special Rapporteur for the independence of judges and lawyers before the Malaysian courts, which ultimately led to an Advisory Opinion of the International Court of Justice in 1999.21 In another example, the Supreme Court of the Philippines has ruled, in 2000, that a court cannot blindly adhere and take on its face a communication that a petitioner is covered by immunity from jurisdiction.22 There are numerous examples in South America where national courts refuse to recognize the immunities of international organizations in labor issues and I trust that colleague Santiago Oñate will give us details in his contribution. Coming back to Europe, in France the OECD had interesting encounters with the French tribunals when a stafff member sued the individual members of an OECD investigation board, which was looking into allegations about his misconduct, for defamation. The case in the end ended where it should have started: before the OECD Tribunal itself. The OECD is currently again before the French courts in a case where a stafff member, whose short terms contract was not extended, is claiming an indefĳinite

21 Diffference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, I.C.J. Reports 1999, p. 62. For an analysis, see P. Bekker, “The Independence of UN Special Rapporteurs: Dispute resolution under the Convention on Privileges and Immunities”, in de Cooker (ed.), International Administration, op. cit., supra n. 2, III.2. 22 Liang vs. People, 323 SCRA 652 (2000). Cf G. Droesse, “Accountability, Investigation and Due Process: The Example of the Asian Development Bank”, in de Cooker, (ed.), International Administration, op. cit., supra n. 2, II.14, p. 408. the effectiveness of international administrative law 329 contract in accordance with French law submitting amongst other things that the OECD’s tribunal is not compliant with Article 6 of the ECHR. Belgium: In 2000 Mrs. Siedler challenged the termination of employment before the internal tribunal of the Western European Union, the Appeals Board. She won: the Board ordered payment of the statutory 6 months’ salary as compensation for the notice period. Not satisfĳied with this decision she started proceedings before the Belgian Labour Tribunal. This Tribunal ruled that on the basis of Belgian law the notice period was 12 months and ordered the WEU to pay additional compensation. Still not satisfĳied Mrs. Siedler appealed against this judgment before the Labour Court of Brussels. Here the WEU invoked its immunity from jurisdiction. The Labour Court ruled on 17 September 200323 that the organization had not established an adequate alternative independent system of dispute resolution. It held that the public character of the proceedings and of the decisions was not guaranteed since the hearings of the Board were held in private and the decisions not published. Moreover, it noted that the members of the tribunal were appointed by the Intergovernmental Committee for a two year term. In the opinion of the Court, the short term of the WEU Appeals Board members’ mandate and their mode of appointment did not provide sufffĳicient guarantees for their independence. The Court also observed that the WEU stafff rules and regulations did not offfer the possibility to request a change of composition of the Appeals Board in a particular case on account of presumed partiality. As a consequence, it refused to recognise the immunity of the WEU. The Court went even further and ruled that immunity from jurisdiction does anyway not imply immunity from local laws. It held that, as a general rule, international organizations are subject to the law applicable in the territory where they deploy their activities. It then applied Belgian law arriving at the conclusion that the status of Mrs. Siedler was comparable to that of personnel of Belgian public institutions, such as stafff of catholic schools. It confĳirmed the decision of the lower Labour Tribunal.24

23 Siedler v. Western European Union, Brussels Labour Court of Appeal (4th chamber), Sept. 17, 2003, Journal des Tribunaux 2004, 617, ILDC 53 (BE 2003). 24 For more details see C. de Cooker and G. Süss, “Immunity of International Organisations from National Jurisdiction in Stafff Matters”, in de Cooker(ed.),International Administration, op. cit., supra n. 2, III.4. 330 chapter seventeen

This was in 2003 and we referred to this situation fĳive years ago. The WEU appealed to the Cour de Cassation in 2004. It took the Court more than 5 years to render its judgment on 21 December 2009.25 Before analyzing this judgment I think it is important to look at some other relevant jurisprudence in the last few years. First of all, the Brussels Labour Court itself. On 1 February 2005 the same Court, albeit with a dif- ferent composition, annulled the decision of 28 May 2002 of the Brussels Labour Tribunal in a case concerning NATO.26 It is to be noted that in this case the Belgian State had intervened both before the tribunal and the court. The Labour Court ruled amongst others: Because of the very nature of NATO it can be accepted that the private nature of the sittings serves the proper functioning of the Organization. In view of the entire method of working of the Appeals Board established, the Court accepts that the essence of the right to fair process is not impaired. It appears that the Appeals Board can decide both as to facts and as to law, and thus enjoys full legal powers. The inter partes nature of the procedure, the obligation to state grounds for decisions, the nature of the decisions which can be taken and the guarantees of the independence of the members seem to provide sufffĳicient surety. The Court fĳinds that the conditions are satisfĳied for the ascribed immunity from jurisdiction to be fully valid, so that the Labour Tribunal could not take cognizance of the original claim.27 Compared with the Siedler case, this judgment by the same Labour Court constitutes a totally diffferent approach. The European Court on Human Rights had already in 2000 ruled that the Appeals Board of NATO meets the requirements of Article 6 on essential points. The Court pointed out that the members of the Board are neither members of NATO nor of the parliamentary delegations, that they are independent in the exercise of their functions, and that they are appointed for a period of three years amongst persons of recognized competence. In addition, the Court continued, the procedure before the Appeals Board is contradictoire and its decisions are motivated. The Court added that it is true that the Appeals Board meets in camera. Excluding the public and the press may, however, be justifĳied under Article 6 of the Convention in the

25 Union de L’Europe Occidentale contre S. M., Cour de cassation de Belgique, 21 December 2009, Arrêt, N° S.04.0129.F. 26 Crown Counsel v. Chapman, NATO et al., Labour Court of Brussels, Judgment of 1 February 2005. 27 Unofffĳicial translation. the effectiveness of international administrative law 331 interest of public order and national security in a democratic society, NATO being an organization with activities in the military domain. Also German and Dutch supreme courts were called to rule on the human rights compliance of the procedures of the ILOAT both in cases concerning the European Patent Offfĳice. The German Constitutional Court ruled in 2006 that ILOAT decides on the basis of its legally defĳined jurisdiction and by way of a proper legal procedure and that the judges are independent. The Court concluded that the status and the principles of procedure of the ILOAT satisfy both the international minimum standard of fundamental procedural fairness and the minimum rule of law under the German Basic Law.28 In October 2009 the Dutch Supreme Court entertained in particular the point of oral hearings: …[the] argument that the Tribunal procedure did not meet the requirements of Article 6 ECHR because, in practice, the Tribunal systematically denied the parties their right to an oral hearing. On this point, the Regional Court found that the right under Article 6 ECHR to a (public) hearing was not absolute and that exceptions might be made, for example where the written pleadings enabled the court to rule on the case before it, the preceding internal proceedings being relevant in deciding whether this was so. Whilst Mr X had argued that the Tribunal followed a practice of refusing requests for a public hearing, he had failed to argue that the refused requests were well reasoned and submitted in cases in which a hearing would have been expedient; nor was this apparent from any other source. For those reasons, the Regional Court held that it could not fĳind that the Tribunal procedure failed to offfer protection comparable to that under Article 6 ECHR. Moreover, it could not be taken as read at a prior stage that Mr X would not be heard by the Tribunal, even if he were to submit a reasoned request for a hearing (see paragraph 3.12). In this part of the ground of appeal, Mr X argues that it is unclear how the Regional Court reached this conclusion in the light of his argument that the Tribunal had decided to hold only one oral hearing in the more than 2 200 cases it had dealt with since 1992. This complaint must be rejected because the Regional Court clearly found that this argument could only lead to the conclusion that Tribunal did not comply with the requirements of due process if it were established that it followed a practice of refusing well- reasoned requests for a hearing in cases in which such a hearing would have been expedient, but that this had been neither argued nor established.

28 B. et al. v. EPO, Federal Constitutional Court, Second Chamber, 3 July 2006, 2BvR 1458/03. Cf. A. Reinisch, “The Immunity of International Organizations and the Jurisdiction of their Administrative Tribunals”, in Chinese Journal of International Law (2008), Vol. 7, No. 2, p.301. 332 chapter seventeen

The reasons for the Regional Court’s rejection of Mr X’s argument are not unclear.29 Back to Belgium. As I mentioned, the Cour de Cassation delivered its decision in the Siedler case, in December 2009. First of all, the Cour upheld the Labour Court’s refusal to recognize the WEU’s immunities on grounds that the WEU Appeals Board is not independent for the same reasons given by the Labour Court: (1) the public character of the proceedings and of the decisions is not guaranteed, (2) the appointment by the governments for a two year term do not provide sufffĳicient guarantees for the independence of the judges, and (3) no possibility to request a change of composition of the Appeals Board in a particular case on account of presumed partiality. As to the merits the Cour analyzed the contract of Mrs. Siedler and observed that the contract was governed by the law of the organization. Recalling the principle of priority of treaty obligations over national law, it quashed the judgment of the Labour Court that national law should apply and referred the matter back to the Labour Court. It is more than disappointing that the highest Belgian court does not recognize the immunities of an international organization basing itself on the European Convention on Human Rights, and at the same time ignoring the jurisprudence of the European Court on “its” Convention. Generally, the highest national courts do have a more coherent approach to immunities, but there are exceptions that give cause for concern. The uncertainty, the contradictions and time lost before national courts constitute a real threat to the efffectiveness of international administrative law.

29 Unofffĳicial translation. CHAPTER EIGHTEEN

THE EFFECTIVENESS OF INTERNATIONAL ADMINISTRATIVE LAW COMPARED TO SOME NATIONAL LEGAL SYSTEMS

Roy Lewis

This title sounds more like a PhD thesis than a contribution to a symposium. I shall therefore have to limit myself to a few selective remarks.

A. General Comments on the Effectiveness of International Administrative Law

The efffectiveness of international administrative law goes to the justifĳica- tion for the legal immunity of international organizations. Given this immunity, the lack of an efffective internal justice system would mean that the power of management over employees would be open to abuse. Efffective internal justice is thus a mechanism to ensure that the management of international organizations does not become arbitrary, inefffĳicient or corrupt. From the perspective of stafff members, being deprived of the opportunity of taking their grievances to national courts would be oppres- sive, unless the internal justice regime provides them with efffective redress. Further, the international immunity itself may be legally vulnerable in the absence of an adequate system of internal justice. This is because the courts in Europe, both international and national, are inclined to the view that an efffective system of internal justice is a pre-condition for upholding an organization’s immunity. The relevant jurisprudence began in 1999 with a landmark decision of the European Court of Human Rights interpreting Article 6 of the European Convention on Human Rights and Fundamental Freedoms. Article 6 provides that “in the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. The Court decided that Article 6 rights were not infringed by the European Space Agency’s immunity from being sued by stafff members in the German courts because the Agency had on the face of it an internal justice system offfering a reasonable alternative to a 334 chapter eighteen national court and thus providing efffective protection by the yardstick of Article 6.1 How does one measure the efffectiveness of an internal justice system? There are at least three ways: (1) The fĳirst approach is to focus on the historical development of a single international organization. Over a period of time has the organization evolved a system of internal justice that is efffective? (2) The second approach is to focus on the position of an organization in comparison with other international organizations. Is the organization’s internal justice system relatively efffective when compared to that of other international organizations? (3) The third approach is to compare the organization’s system of internal justice with that of one or more national legal systems. On this approach, the rules and remedies of the internal justice system do not have to be the same as those of a given national legal system but overall they ought broadly to be no less favourable from an employee’s perspective. These approaches are not mutually exclusive. They can all be brought to bear when contemplating the reform of an internal justice system. In practice, however, the principal method that has been used for the purpose of assessing whether there is a need for such reform, and if there is, the direction of reform, is the comparison with other international organizations. My assigned title assumes a comparison with one or more national legal systems. This type of comparison is fraught with many difffĳiculties and is far too ambitious for the confĳines of this paper. Using the British system of labour law as the principal comparative focus, I will nevertheless make a few comments under the three headings of substantive legal principles, jurisdictional issues, and remedies.

B. Substantive Legal Principles

One could look at the substantive principles of international administrative law and then compare them with those of national legal systems.

1 Waite and Kennedy v Germany [2000] 30 EHRR 261. See C. de Cooker and G. Suss “Immunity in International Organizations from National Jurisdiction in Stafff Matters” in C. de Cooker (ed) International Administration: Law and Management Practices in International Organizations (Brill, 2009). international administrative law 335

The initial task would be to articulate the relevant international administrative law principles. To a large extent this has been accomplished by Professor Amerasinghe’s detailed and learned treatise.2 A comprehensive comparative approach would involve an examination of these principles set against the equivalent rules under national labour law so that questions of comparative efffectiveness might ultimately be asked. The magnitude of this task would be huge and I shall not attempt it. In any event, it might be said that this type of comparison is not what international administrative law is about. One of the essential characteristics of such law is precisely that it is not based on any one national legal system. In addition, there is a fundamental problem of trying to compare like with unlike. For all the diffferences among international organizations, their internal justice systems have sufffĳicient in common to make the comparison between them meaningful. In contrast, any attempted comparison with a national system of labour law encounters the problem that its rules and procedures can only be really understood in the context of a country’s culture, history, and politics, including the role of its trade unions. Having said that, everybody in the fĳield of international administrative law comes ultimately from a country with a national legal system and occasionally and inevitably the comparison with one’s parent system crosses one’s mind. This may be particularly true for those of us whose specialist discipline is labour law rather than public international law. Judge Gorman is a labour lawyer by specialism and also a leading fĳigure in international administrative law. He has made insightful comments about the substantive principles of international administrative law compared with the labour law of the USA.3 As a preliminary to making these comments, he identifĳied three broad principles encapsulating a great deal of the substantive content of international administrative law: (1) While international administrative tribunals are not permitted to substitute their own judgment for that of management, substantive international

2 C.F. Amerasinghe The Law of the International Civil Service as applied to International Administrative Tribunals, 2nd edn (Oxford University Press, 1994) Volumes 1 and 2. See too his Principles of the Institutional Law of International Organisations, 2nd edn (Cambridge University Press, 2005) chapter 9. 3 R.A. Gorman “The Development of International Employment Law: My Experience of International Administrative Tribunals at the World Bank and the Asian Development Bank” in N. Ziadé (ed) Problems of International Administrative Law (Martinus Nijhofff, 2008). A previous version was published in 25 Comparative Labor Law & Policy Journal 423 (2004) and in 16 European Review of Public Law 631 (2004). 336 chapter eighteen

administrative law sets a limit on the exercise of managerial discretion in that it must not be abused or mask an improper motive. It does this in respect of wide range of matters, including promotion, demotion, redundancy, transfers, salary adjustments, allowances, expatriate benefĳits, pensions, and alleged discrimination. (2) In disciplinary matters, international administrative tribunals may exceptionally get somewhat closer to imposing their own views. This is because the extent of judicial review permits the tribunals to exercise their own judgment over whether the facts amount to misconduct; whether the sanction is permissible under the organization’s internal law; whether the sanction is proportionate to the disciplinary offfence; and whether due process has been observed.4 (3) Certain conditions of employment applicable in an international organization may be characterised as “essential” so that arguably they may not be withdrawn or changed to the disadvantage of stafff without their consent.5 Against the background of these general principles Judge Gorman pointed out that:6 In the United States, an employer’s decisions are almost totally beyond the reach of judicial or arbitral bodies, absent its violation of a statute or a government regulation or a precise public policy. Abuses of discretion in employment relations must simply be tolerated. Even unionized employers operating under collective bargaining agreements typically have only spe- cifĳically designated limitations upon managerial freedom and nothing like the more general form of review that is given to decisions made by international organizations in their employment relations. The closer analogy in the US is to judicial review of the decisions of administrative agencies exercising their discretionary powers given to them by federal or state agencies. He went on to add that the de Merode concept of an essential condition of employment that could not be varied without consent would be “absolutely startling to US employer representatives, especially those who do not deal with unions and collective bargaining agreements”. This is a stark picture. The employee in the USA will have the protection of specifĳic legislation, for example, on health and safety or the provisions prohibiting discrimination on race, colour, ethnicity, religion, age and disability. Further, if the employer has a collective bargaining agreement with

4 For a recent exposition of these principles in a disciplinary context by the WBAT, see M v IBRD, WBAT Decision No 369 [2007], paragraphs 52–55 citing the earlier authorities. I am grateful to Olufemi Elias for supplying me with a number of WBAT cases and materials. 5 de Merode et al v IBRD, WBAT Decision No 1 [1981]. 6 Gorman in Ziadé (ed), op. cit, supra n. 3, pp 218–219 (footnotes omitted). international administrative law 337 a trade union, the exercise of managerial power may be subject to some agreed limits, which in disputed cases may be adjudicated upon by an arbitrator. But that is basically it. In Britain we also have a body of protective health and safety legislation and anti-discrimination legislation applicable to employment and prohibiting less favourable treatment on a variety of grounds including sex, race, disability and age. However, the position under British law is to be contrasted generally with that under US law as there is a signifĳicantly greater degree of legal regulation of employment in Britain. Every individual employee by defĳinition has an enforceable contract of employment with his or her employer. The contract is consensual and the basic principle is that the employer has no implied right unilaterally to vary the contractual terms. However, variation of terms may still be achieved in a variety of ways.7 For example, the employer may try to reserve for itself an express power to vary a particular term of the contract unilaterally; or to give itself a broad express discretion to require flexibility on the employee’s part in respect of job content or geographical mobility; or even to indicate expressly that the terms of the individual contract of employment are subject to variation agreed with a trade union, notwithstanding the underlying reality that the individual employee may on occasion be unhappy about the terms accepted by a trade union. Another tactic is for the employer to dismiss the employee and then to offfer employment on new terms and conditions. At common law this was relatively straightforward, provided the employer gave any requisite notice to terminate since damages would normally be limited to the period of notice. However, in modern times a dismissal in such circumstances is likely to lead to litigation about whether there has been an infringement of the statutory right not to be unfairly dismissed. Since the early 1970s legislation in Britain has enshrined a right of employees not to be dismissed unfairly.8 This right is enforceable against employers in the employment tribunals, the UK’s version of labour courts. The unfair dismissal legislation enshrines a major limitation on the employer’s power at common law to terminate the contract of employment without explanation and, at the same time, imposes standards of procedural fairness (due process) on the disciplining of employees. It has

7 For an exposition of this point, see S. Deakin and G.S. Morris, Labour Law, 5th edn (Hart, 2009) pp 247–254. 8 Currently embodied in Part X of the Employment Rights Act 1996. See generally, Deakin and Morris, ibid., chapter 5. 338 chapter eighteen also had a major impact on the development of the substantive content of the contract of employment in a generally progressive direction. One of the reasons for this is that dismissal for the purposes of the legislation includes “constructive” dismissal, that is, the employee terminates the contract in circumstances in which he/she is entitled to terminate it without notice by reason of the employer’s conduct. This involves a contractual test of whether the employer has committed a fundamental breach of contract. Typically in such cases the employee will seek to argue that the employer is in breach of the standard implied contractual duty to maintain trust and confĳidence, a duty that has to a large extent been elaborated in the context of claims for unfair constructive dismissal. There are many examples of employers being found to be in breach of this duty by engaging in behaviour that amounts to bullying or harassment, for example, subjecting the employee to abusive and insulting language, making unsub- stantiated allegations against an employee, and singling out an employee for an inferior pay rise on a purely arbitrary basis. Having said all of that, the combined efffect of the statutory right not to be unfairly dismissed, with its strong emphasis on procedural fairness, and the development of a standard implied duty in the contract of employment to maintain trust and confĳidence still fall short of a general duty on employers to act with fairness towards their employees. Against this background, I have always been struck by the breadth of section 3(a) of the Stafff Regulations of the European Bank for Reconstruction and Development (“EBRD”). It imposes a duty on the employer in the following terms: “the Bank shall at all times act with fairness and impartiality in its relations with stafff members”. A similar provision is to found in the World Bank’s Principles of Stafff Employment, under which Principle 2.1 provides “the Organization shall at all times act with fairness and impartiality and shall follow proper process in their relations with stafff members”. Such formulations are tantamount to a substantive duty of fairness owing to stafff members. This prompts the thought that, even in the absence of decisions emanating from the major international administrative tribunals, the basic documentation enshrining the internal law of an international organization may provide a more efffective employee right than that found in the national system of labour law of the country where the organization is headquartered. On the basis of these Anglo-US examples, it is certainly arguable that substantive international administrative law may provide a more adequate form of employee protection than the substantive rules of some national labour law systems. international administrative law 339

C. Jurisdictional Issues

Moving from substantive to jurisdictional aspects, an international administrative tribunal may not determine the substantive merits of a case unless it has jurisdiction to do so. Jurisdictional provisions commonly require that (a) appeals may be made only by specifĳied persons, typically stafff members, former stafff members, or the representatives of deceased stafff members; (b) internal procedures have been exhausted; (c) an application/appeal is made within a prescribed time limit; and (d) the subject matter of the employee’s grievance falls within the tribunal’s expressly defĳined terms of reference. One could compare the jurisdictional rules of international administrative tribunals with the equivalent under national legal systems, and ultimately pose and even try to answer a question about relative efffectiveness. Again this would be a huge task, which I do not intend to undertake, although a few thoughts come to mind. The fĳirst and principal thought is that if one looks at efffectiveness from the employee’s perspective, a jurisdictional regime of an international organization is only efffective to the extent that it allows reasonable access to the internal justice system in order that the substantive merits of a grievance can be heard and determined. Conversely, if the jurisdictional regime imposes overly restrictive rules that operate to prevent cases from being heard on their merits, then the degree of access is inefffective. One aspect of this is that stafff members, who are deprived of resort to national courts, have a legitimate expectation to have their grievances heard, otherwise the internal justice system will not only be inefffective but will lack legitimacy in their eyes. To put it another way, an employee should normally have the opportunity to have his or her day in court. The merits of the grievance may on closer scrutiny be weak and ultimately will not be upheld, but the employee’s case should at least be examined on its merits, save to the extent that clear jurisdictional bars apply, such as being out of time without good reason. A typical requirement under international administrative law is that the stafff member has to challenge an identifĳiable administrative decision. A jurisdictional dispute may arise where the respondent argues that the alleged decision that the employee challenges is not an administrative decision. In this connection there is a body of jurisprudence indicating that tribunals engage only with the “fĳinal” administrative decision afffecting the stafff member and that the last of a series of apparent decisions 340 chapter eighteen may not necessarily be the fĳinal decision, from which time begins to run.9 This may be the case, for example, where an administrative decision has been made in efffect to reject an employee’s grievance and then some time later the employee seeks to circumvent the time limit for challenging that decision by trying to revive precisely the same grievance by obtaining a further decision in relation to it. However, the situation may not be as clear cut and there may also be difffĳiculties about ascertaining which was the appropriate internal procedure and whether and when it was exhausted. In such circumstances a respondent may still be inclined to argue that jurisdiction is lacking. If this argument succeeds the case will be rejected and, by the same token, it will be unnecessary for the respondent to expend the signifĳicant amounts of time and money that defending the substantive merits might involve. On the other hand, in considering a jurisdictional challenge the decision- making body has to strike a balance between such legitimate considerations on the part of the respondent and the need to ensure that the employee has a reasonable opportunity for a hearing on the merits. Turning to British labour law for the comparison with a national system, the employment tribunals operate under jurisdictional rules that are analogous to those found in international administrative law. Thus, a person wishing to make a claim has to satisfy eligibility criteria. As regards the right not to be unfairly dismissed, the claimant must (a) be an employee, as determined by common law principles, and (b) normally have had continuous employment with the employer of not less than one year at the date of dismissal, unless the dismissal is for a reason that is automatically unfair. As regards anti-discrimination legislation as it applies to employment, there is no length of service requirement and the claimant may be an employee or fall into the broader category of those employed under contracts for services where they give rise to an obligation personally to execute work or labour. As would be expected, there are time limits for lodging claims. As regards unfair dismissal, this is three months from the termination, subject to a power of the tribunal to extend this period where the employee can show that it was not reasonably practicable to present the complaint in time. Under anti-discrimination legislation, there is also a three month limitation, but tribunals may consider out of time claims if in all the circumstances they conclude that it is just and equitable to do so, which confers a broader discretion than reasonable practicability.

9 See Amerasinghe, op. cit., supra n. 2, Vol 1, pp 213–215, 224–228. international administrative law 341

The British system is susceptible to criticism that in a broad sense raises a question mark about efffectiveness. For example, confĳining the right to claim unfair dismissal to employees as such who have at least one year’s service arguably excludes too many potential claimants, especially at a time of rising unemployment and job insecurity. The same criticism could be made even more strongly if the right to claim unfair dismissal was con- fĳined to those with two years’ service, a proposal on which the British Government is currently consulting. It is also arguable that reasonable practicability is too narrow a criterion for the exercise of discretion to extend time. It may be said that the British employment tribunal system is partially efffective in respect of jurisdictional issues. While many potential claimants do have a reasonable opportunity to have their cases heard on the merits, too many are nevertheless excluded. The British case illustrates another facet of jurisdiction, namely, the danger of unduly restricting access to the system through excessive tech- nicality. Until recently this was manifest in the measures adopted to encourage the exhaustion of internal workplace procedures before making an application to the employment tribunals. Of course it is desirable that internal procedures should be exhausted before making an application, and there is an obvious parallel with the usual requirement under international administrative law. However, the question is: by what provisions should the desirable object be encouraged? The “statutory dispute resolution procedures” covering grievances and discipline, which were in force from 2004 to 2009, were embodied in complex legislation.10 The procedures gave rise to much litigation and a large number of appeals. The issues litigated included the following. What was a grievance and in what circumstances did a statutory grievance procedure apply, or alternatively, when did one of the separate statutory disciplinary and dismissal procedures apply? When were the statutory dispute resolution procedures, whether grievance or disciplinary, completed and when breached? In what circumstances did the operation of the statutory dispute resolution procedures have the efffect of extending time limits? The Government began to realise that it had made a mistake in introducing such procedures. It instituted a review that concluded that the procedures carried “an unnecessarily high administrative burden for both employers and employees and have unintended negative consequences

10 Employment Act 2002, ss 29–33, Schs 2–4 and the Employment Act 2002 (Dispute Resolution) Regulations 2004. 342 chapter eighteen which outweigh their benefĳits”.11 One of the more robust judicial comments by Patrick Elias, the then President of the Employment Appeal Tribunal, made the point as follows:12 The Employment Appeal Tribunal has been inundated with appeals relating to the operation of the statutory grievance procedures. Rarely can legislation have been so counter-productive. Provisions designed to reduce tribunal disputes have spawned satellite litigation in which arcane and complex points of law have been argued, frequently so remote from reality that they would surprise even the most desiccated Chancery lawyer conjured up by the imagination of a Charles Dickens. At the time of the implementation of the statutory dispute resolution procedures in 2004 I was a part-time judge in the employment tribunals and the general view then was that these provisions were wholly miscon- ceived. Eventually, they were repealed by section 1 of the Employment Act 2008 with efffect from 6 April 2009. The repeal came as a great relief to employers, employees, unions, the parties’ lawyers and the judiciary. The replacement regime has as its centrepieces a Code of Practice Disciplinary and Grievance Procedures and a discretion conferred upon the employment tribunals to reduce or increase compensation awards by up to 25% depending on whether the employee or employer has unreasonably failed to comply with the Code. Compared with the previous regime, both the Code and the discretionary variation to compensation awards are relatively straightforward. The conclusion from this comparison is that jurisdictional provisions, whether under national labour law or international administrative law, should not be overly restrictive or indeed fussily prescriptive and, so far as is possible, should have the virtue of simplicity.

D. Remedies

I shall fĳinally look at some aspects of the remedies available from the administrative tribunals of the EBRD, the IMF and the World Bank – the EBRDAT, the IMFAT and the WBAT respectively – and then venture some comparisons with the position under British labour law.

11 M. Gibbons, Better Dispute Resolution: a Review of Employment Dispute Resolution in Great Britain (2007), p 8 which can be found at http://www.berr.gov.uk/fĳiles/fĳile38516.pdf. 12 Sufffolk Mental Health Partnership NHS Trust v Hurst [2009] ICR 281, at 286. international administrative law 343

Assuming that the EBRDAT concludes that an appeal is well-founded, it may grant in whole or in part the remedies sought by the appellant to rectify the impugned administrative decision and the adverse afffects of that decision on the appellant. Specifĳically, remedial measures:13 may include payment of a sum of money, not to exceed three times the appellant’s current (or, if the employment has been terminated, then fĳinal) annual salary that the Tribunal fĳinds is due to the appellant and/or actions such as a pay increase, promotion, or reinstatement of employment. When awarding a remedial measure other than the payment of money, such as reinstatement, the EBRDAT also fĳixes an amount (not exceeding three times annual salary) to be paid by the respondent as compensation should the respondent not implement the measure. The compensation is paid if the Bank President decides that it is not in the Bank’s interests to implement the remedial measures awarded by the Tribunal.14 The EBRDAT is thus empowered to rectify the impugned administrative decision through a wide variety of measures that may be awarded in combination. However, if the Bank considers that it is not in its interest to implement remedial measures other than the payment of money, then compensation with a maximum of three times annual salary becomes the efffective award. It follows that ultimately the respondent makes the efffective decision on whether an order of reinstatement will be implemented. In this respect the EBRD provision is very similar to that contained in Article XIV(2) of the IMFAT Statute, although the IMFAT may exceptionally order the payment of compensation higher than three times annual salary. The provision governing IMFAT is in turn based on the predecessor of Article XII of the Statute of the WBAT, that is, Article XII before it was amended in 2001. A somewhat diffferent approach to this issue is now to be found in the Statute governing the WBAT, as amended in 2001. Article XII(1) provides as follows: If the Tribunal fĳinds that the application is well-founded, it shall order the rescission of the decision contested or the specifĳic performance of the obligation invoked unless the Tribunal fĳinds15 that the respondent institution has reasonably determined that such rescission or specifĳic performance would not be practicable or in the institution’s interest. In that event, the Tribunal shall, instead, order such institution to pay restitution in the amount that is

13 EBRD Appeals Procedures, section 8.04. 14 EBRD Appeals Procedures, section 8.05. 15 Emphasis supplied. 344 chapter eighteen

reasonably necessary to compensate the applicant for the actual damages sufffered. In addition, under Article XII(3), the WBAT is empowered in all applicable cases to fĳix compensation to be paid by the respondent. The absence of a maximum ceiling on compensation that may be ordered by the WBAT is noteworthy. However, the key point for present purposes is that the Tribunal is empowered to make a determination on whether the respondent has reasonably determined that the rescission of a decision on termination, that is, a decision to reinstate, is not practicable or in the institution’s interest. The matter is not simply left to the respondent to decide for itself. In practice, the question of ordering reinstatement has to be approached cautiously and pragmatically, especially in respect of professional employees. Practicality is thus a major part of the criteria for making an order and specifying any conditions attaching to an order. The reasons for this have been explained by the WBAT as follows:16 It is useful at the outset to consider some obvious realities in the context of the reinstatement of a stafff member after a signifĳicant period of severance. The concerned stafff member cannot expect that his or her previous position has remained vacant. That is why the expression used is “comparable position”.17 The higher the degree of specialisation or qualifĳication, the more challenging the task of efffecting the reinstatement. Without a cooperative attitude on the part of the concerned stafff member, the difffĳiculties will be exacerbated. The person to be reinstated has no greater rights than any other stafff member. Certainly no other stafff member should be transferred, demoted or dismissed only to accommodate that person. Nor should the Bank create a position at the level to which such a person aspires only for that person; that would be an unjustifĳiable waste of the Bank’s resources, indeed nothing more than a concealed and inefffĳicient equivalent of monetary compensation. Nevertheless, the 2001 amendment means that the WBAT may in the fĳinal analysis take its own view on whether the respondent has reasonably determined that the non-fĳinancial remedy would not be practicable or in the institution’s interest. This is the type of issue that might in fact have

16 Yoon (No 4) v IBRD, WBAT Decision No 317 [2004] paragraph 8. 17 In Yoon (No 2) v IBRD, WBAT Decision No 248 [2001] the WBAT upheld the applicant’s case against her post being made redundant and, in accordance with the pre-amended Article XII, ordered the Bank to reinstate her to a “comparable position”, unless the Bank President determined, in the interests of the institution, to pay compensation in lieu of reinstatement, in which case a compensatory sum was to be paid. international administrative law 345 to be addressed sometime after the making of an order when the stafff member has returned to the Tribunal complaining that the Bank failed to identify a suitable comparable post. The pre-condition of exhausting all other remedies, in accordance with Article II(2) of the WBAT Statute, means that the stafff member would have to take such a complaint to the Bank’s Appeals Committee prior to appealing to the Tribunal.18 In practice, it may be very unlikely that the WBAT would at the end of the day overrule the Bank’s view of practicability or interest, but the possibility is nevertheless there. There is also an important implication for the form of a remedial award. Following the 2001 amendment, an order for reinstatement no longer has to be accompanied by a default compensation award in the event that the respondent does not consider it appropriate to implement the order. It is possible that the absence of a default compensation award may encourage the respondent to make more assiduous effforts to fĳind a comparable position for an employee whose termination of employment has been rescinded by the Tribunal. The World Bank approach thus difffers from that of the IMF and the EBRD. The WBAT has the power to make an efffective order of reinstatement. This arguably underlines the independent decision-making ability of the ultimate appeal body. In contrast, the IMFAT and the EBRDAT may make the orders, but whether they are implemented is left to the respondent, albeit with compensation as the alternative. In considering remedies under British labour the primary focus will be on the employment tribunals. Although the ordinary courts continue to exercise jurisdiction on employment matters, especially in respect of contractual and tortious liability, the tribunals are the forum where most employment litigation occurs – typically around 200,000 cases for the most recent statistical years, although many of these have been multiple equal pay claims and a substantial number of cases would have been settled or withdrawn before a tribunal hearing. The tribunals are tri-partite: they are presided over by a legally qualifĳied employment judge who normally sits with two fully voting members drawn from panels of employers and employees. Appeals on points of law may be made to the Employment Appeal Tribunal, which is also tri-partite in composition. The tribunals deal with a wide variety of claims that for the most part allege breach of statutory obligations. For present purposes

18 Yoon (No 3) v IBRD, WBAT Decision No 267 [2002]. 346 chapter eighteen particular mention will be made of the remedies that may be awarded by the tribunals for unfair dismissal and unlawful discrimination.19 Under the unfair dismissal legislation if, on a fĳinding of unfair dismissal, the employee indicates a wish to be re-employed, the employment tribunal may make an order of either reinstatement or re-engagement, but if no such order is made, the tribunal makes an award of compensation. An order for reinstatement puts the employee back into the previous job and is combined with back pay covering the interim period. Re-engagement involves putting the employee back into a comparable or other suitable position. Either way the tribunal is required to consider whether an order is practicable. However, although the legislation refers to an “order” of reinstatement and re-engagement, the tribunals do not have the power to make efffective orders. If the employer refuses to comply, the only sanction available to the tribunal is enhanced compensation. The employer may seek to resist enhanced compensation by again arguing that the implementation of a re-employment order would be impracticable. In practice, although the structure of the legislation gives an apparent priority to re- employment orders over compensation, such orders are relatively rare. They have amounted on average to around only 5% of successful unfair dismissal claims and 1% of all claims proceeding to a hearing. In addition, an unknown number of unfair dismissal cases that are voluntarily settled involve re-employment. Compensation awards for unfair dismissal are made under two broad heads. First, there is a modest basic award for loss of accrued continuity of employment, which corresponds with the calculation of statutory redundancy pay for a person of the employee’s age, length of service, and pay. Second, there is a compensatory award, which is intended to compensate for the loss sustained as a result of the unfair dismissal. From February 2011 the maximum compensatory award permitted under the unfair dismissal legislation was £66,400. However, there is no upper limit on the compensatory award in respect of discriminatory dismissals by reason of sex, race, disability, religion or belief, sexual orientation or age. Nor is there an upper limit in respect of dismissals on health and safety grounds or for making a “protected disclosure” under legislation protecting whistleblowers. Both basic and compensatory awards may be reduced to take account of the extent to which the employee has contributed to the dismissal, most notably, through misconduct. It will be clear that the statutory maximum has

19 See Deakin and Morris, op. cit., supra n. 7, pp 468–481 (unfair dismissal) and 600–605 (discrimination), on which the ensuing analysis draws extensively. international administrative law 347 been set at quite a low level in relation to high paid employees. However, in reality the majority of awards do not get anywhere near the ceiling. The efffectiveness of the remedies for unfair dismissal is thus questionable. The position has not seemingly changed since the publication of a major socio-legal research project in 1986. This concluded that:20 Taken together, the limited use of the re-employment remedy and the way in which compensation is assessed serve typically to set a low price on the unfair deprivation of a job and can have little deterrent value for most employers. It should of course be understood that unfair dismissal claims may be combined with other heads of claim in the tribunals and that the overall impact of the tribunal system has encouraged employers to be careful about their treatment of employees, at least procedurally. Having said that, the conclusion about the inefffectiveness of the remedies for unfair dismissal still holds true. British labour law, in large measure implementing European Com- munity law, prohibits discrimination on grounds of sex, marital and civil partnership status, gender reassignment, sexual orientation, race, religion and belief, age and disability. All aspects of employment are covered from recruitment to termination. There are three main potential remedies: a declaration of rights, compensation and a recommendation. A recommendation may require an employer to take action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse efffect of an act of discrimination. If a recommendation is not carried out compensation or enhanced compensation, as the case may be, is awardable. In practice, the employment tribunals have been very cautious about making recommendations. Compensation has been the usual remedy. It is payable according to the principles that would apply to a civil claim in tort and, in obvious contrast to unfair dismissal, there is no statutory ceiling. There was a ceiling originally, but it was found to be incompatible with European Community law. In addition, damages are awardable for injury to feelings. The principles underpinning compensation for unlawful discrimination are clearly less restrictive than those applicable to unfair dismissal. In terms of efffectiveness of remedies under international administrative law one can see why it might be easier and perhaps more useful to

20 L. Dickens et al, Dismissed: A Study of Unfair Dismissal and the Industrial Tribunal System (Blackwell, 1986). 348 chapter eighteen compare one international organization with another. A comparison with a national labour law system – in this instance the British system – is not straightforward and any conclusion would have to be tentative and quali- fĳied. Subject to that, it may be said that a stafff member employed at any of the three international fĳinancial institutions mentioned above – the World Bank, the IMF and the EBRD – would stand a chance of securing an efffective remedy that would be at least as good, if not better, than the chance of an employee with a comparable claim under British law. Specifĳically, the level of compensation would be higher and the chances of reinstatement would be at least as good. CHAPTER NINETEEN

THE REVIEW OF DECISIONS OF INTERNATIONAL ADMINISTRATIVE TRIBUNALS BY THE INTERNATIONAL COURT OF JUSTICE

Joanna Gomula

A. Introduction

The International Court of Justice (ICJ) has been – by its standards at the least – very busy in the past two decades and, in this respect, has fulfĳilled the expectations of States with respect to the principal dispute settlement organ of the United Nations (UN). In August 2011 there were as many as 18 pending cases on its docket (including 3 cases currently heard or under deliberation).1 Although there are some drawbacks of the ICJ’s increased activity (for example, hearings must be scheduled up to a year in advance), it is overall a positive development. Taking into account that the number of international conflicts has not increased in comparison to the Court’s “quieter” years, it reflects, among others, not so much the need of States to resolve international disputes through the formal procedures of this UN organ, but their belief that resort to the ICJ is of purpose and should lead to the settlement of the dispute in question. While the number of contentious cases has increased dramatically, the same cannot be said about the Court’s advisory jurisprudence, which in the past two decades has been relatively modest. Since its establishment the ICJ has issued 25 advisory opinions, of which only 5 were issued since 1991 (including one in which the Court found it had no jurisdiction to review the original request for an advisory opinion).2 Among these, a number of advisory opinions were issued by the Court in the exercise of its power to review decisions of administrative tribunals, a power not antici- pated at the time of creation of the ICJ. Of the 20 advisory opinions issued since the ICJ’s establishment until 1991, fĳive (that is, 25% of all advisory opinions) concerned two administrative tribunals: the United Nations

1 http://www.icj-cij.org/docket/index.php?p1=3&p2=1 (accessed 18 August 2011). 2 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J. Reports 1996, p. 66. 350 chapter nineteen

Administrative Tribunal (UNAT) and the Administrative Tribunal of the International Labour Organization (ILOAT).3 The fĳirst of these, issued in 1954 (Efffect of Awards of Compensation),4 was based on a request according to the standard advisory procedure of Article 65(1) of the ICJ Statute. The remaining four5 opinions constituted reviews by the ICJ of judgments of the ILOAT and the UNAT, pursuant to procedures extraneous to the ICJ Statute which vested the Court with the relevant powers of review. The ICJ’s activities as a “court of appeal”6 became dormant after 1987 for over two decades.7 With respect to the UNAT, the ICJ’s involvement was discontinued in 1995; in 2007 the UN system of administrative review was reformed even further (see below). With respect to the ILOAT, the possibility of requesting advisory opinions remained but was not put to a use until, surprisingly, in 2010 a request was fĳiled by the International Fund for Agricultural Development. As of 18 August 2011, the advisory proceedings in the latter case were still pending.8

3 This tribunal succeeded the Administrative Tribunal of the League of Nations. Its jurisdiction has been recognized by approx. 60 international organizations, see http:// www.ilo.org/public/english/tribunal/membership/index.htm (accessed 18 August 2011). 4 Efffect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1954, 47 (Efffect of Awards of Compensation). 5 Judgments of the Administrative Tribunal of the ILO Upon Complaints Made Against the UNESCO, Advisory Opinion, I.C.J. Reports 1956, 77 (Judgments of the ILO Administrative Tribunal); Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973, 166 (Application for Review of Judgment No. 158); Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1982, 325 (Application for Review of Judgment No. 273); Application for Review of Judgment No. 333 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1987, 18 (Application for Review of Judgment No. 333). 6 The ICJ so characterized itself in 1956, see Judgments of the ILO Administrative Tribunal, ibid., 84. 7 For a comprehensive and detailed analysis of the ICJ’s activities in this capacity see K.H. Kaikobad, The International Court of Justice and Judicial Review, 2000. See also W. Choi, Judicial Review of International Administrative Tribunal Judgments in: Contemporary Issues in International Law: Essays in Honor of Louis B. Sohn (ed. T. Burgenthal, 1984), R. Ostrihansky, Advisory Opinions of the International Court of Justice as Reviews of International Administrative Tribunals, Polish Yearbook of International Law Vol. 17 (1988); J. Gomula, The International Court of Justice and Administrative Tribunals of International Organizations, Michigan Journal of International Law Vol. 13 (1991); C.F. Amerasinghe, Cases of the International Court of Justice Relating to Employment in International Organizations in: Fifty Years of the International Court of Justice. Essays in Honour of Sir Robert Jennings (ed. V. Lowe, M. Fitzmaurice, 1996). 8 Judgment No.2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development (Request for Advisory Opinion), 26 April 2010, at http://www.icj-cij.org/ docket/fĳiles/146/15929.pdf (accessed 18 August 2011). The request consists of four detailed questions relating to the competence and jurisdiction of the Tribunal. review of decisions of international administrative tribunals 351

In 1991 I published an article on the role of the ICJ with respect to administrative tribunals of international organizations.9 The purpose of the present paper is not to repeat the analysis and conclusions reached there. Instead, I would like to highlight certain issues that may merit re- emphasis, as well as to comment, at least briefly, on the post-1991 developments with respect to this area of the Court’s activity. The main part of this paper will consist of three sections. Section B will recall the ICJ’s role in laying the foundations for administrative tribunals – as independent judicial bodies charged with the resolution of employment disputes within international organizations. Today it is not always realized that the ICJ contributed greatly to the development of independent judicial procedures of review of such disputes, in a climate not always favourable towards these then novel developments. Section C will focus on the ICJ’s role as a “court of appeal” and the practical and theoretical problems associated therewith. Section D will briefly outline the Court’s jurisprudence with respect to international administrative law in the relevant advisory opinions.

B. Creating Foundations for Administrative Tribunals – the ICJ’S 1954 and 1956 Advisory Opinions

It is difffĳicult to overstate the importance of the ICJ’s fĳirst advisory opinions dealing with two administrative tribunals. At the time of their issuance, neither the legal nature of such bodies nor the binding efffect of their decisions was unambiguous. The facts leading to the 1954 advisory opinion reflected the above controversy. The UNAT had issued awards in the cases of twenty-one stafff members of the United Nations who had been dismissed by the Secretary General. The compensation awarded to the applicants caused the Organization’s expenses to exceed the originally planned sum by USD 180,000. According to the UNAT’s Statute, its judgments were fĳinal and without appeal. The question thus arose, and was so posed to the ICJ, whether the General Assembly (as the principal organ of the UN) had the right on any grounds to refuse to give efffect to an award of compensation made by the UNAT in favour of a UN stafff member whose contract had been terminated.10

9 Gomula, ibid. 10 See Efffect of Awards of Compensation, ibid., 48. 352 chapter nineteen

The problem was reinforced by the lack of explicit authorization in the UN Charter for any of its organs to establish a body competent to decide disputes between stafff members and the Organization. Article 7(2) of the UN Charter provides for the establishment of such subsidiary organs “as may be found necessary”. Article 22 vests the General Assembly with the power to establish “such subsidiary organs as it deems necessary for the performance of its functions”. Thus, the only defĳinite criterion found in these provisions is that a subsidiary organ must be “necessary”; other characteristics and requirements are not specifĳied. Of signifĳicance are also provisions of the UN Charter that refer to stafff members, which may be found in Chapter XV: Articles 97, 100 and 101. Of these, Article 101(1) provides that the General Assembly shall establish regulations under which stafff members shall be appointed by the Secretary General, so confĳirming the principal role of the General Assembly in regulating stafff rights and duties. However, the General Assembly itself is not vested with judicial functions, nor any other express powers to resolve stafff disputes. The ICJ’s task was not an easy one. The Court’s struggle is reflected in a variety of approaches that can be detected in its 1954 advisory opinion. On the one hand, with respect to some issues, the Court applied a dynamic interpretation of the UN Charter and invoked a broadly understood doctrine of implied powers of international organizations. On the other hand, with respect to other issues, it chose a narrow textual interpretation and – in some instances – exercised judicial restraint in its interpretative functions. The initial analysis of the ICJ focused on the text of UNAT’s Statute. The Court found such terms as “tribunal”, “judgment” and “pass judgments”, to be evidence of the intention of the General Assembly to create an organ of judicial nature. The Court concluded that the UNAT was “an independent and truly judicial body pronouncing fĳinal judgments without appeal within the limited fĳield of its functions”.11 In its advisory opinion issued in 1949 the ICJ had developed and applied the doctrine of implied powers of international organizations, whereby certain powers, not expressly found in an organization’s statute, could be conferred upon it by “necessary implication”.12 The Court relied on this

11 Ibid., 53. 12 The ICJ had then stated: “Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties”, Reparation for Injuries Sufffered in the Service of the United Nations, I.C.J. Reports 1949, 182; quoted by the Court in Efffect of Awards of Compensation, ibid., 56. review of decisions of international administrative tribunals 353 doctrine once again, to justify the creation by the General Assembly of an administrative tribunal with judicial powers. The Court reached this conclusion upon analysis of the provisions of the UN Charter governing the relations between stafff members and the Organization. It emphasized that because these provisions and the UN stafff regulations formed a “complex code of law”, it was inevitable that there would be disputes as to the rights and duties of the stafff members. The Court believed that the General Assembly’s power to establish an administrative tribunal was therefore “essential to ensure the efffĳicient working of the Secretariat, and to give efffect to the paramount consideration of securing the highest standard of efffĳiciency, competence and integrity” and that capacity to do so arose “by necessary intendment out of the Charter”.13 The Court derived the power to establish the UNAT from the responsibility of the General Assembly for regulation of stafff relations, bestowed upon it by Article 101(1) of the UN Charter. It explicitly rejected the possibility of delegation of powers: “By establishing the Administrative Tribunal, the General Assembly was not delegating the performance of its own functions: it was exercising a power which it had under the Charter to regulate stafff relations”.14 Interestingly, in its 1954 advisory opinion the ICJ avoided explicitly classifying the UNAT as a subsidiary organ under Article 7(2) and Article 22 of the UN Charter. In particular, it did not engage in an analysis as to whether the establishment of the Tribunal was “necessary” (or “necessary for the performance of the General Assembly’s functions”). Opponents to this view had emphasized that the establishment of the UNAT was not “absolutely essential”.15 For example, in Judge Hackworth’s view, the doctrine of implied powers of international organizations could not justify a distortion of express powers to allow the creation of a tribunal capable of imposing its decisions on the organization’s main organ.16 Judge Alvarez argued that an “all-powerful legislative organ” like the General Assembly could be bound only by the UN Charter and by its own resolutions.17

13 Efffect of Awards of Compensation, ibid., 57. 14 Ibid., 61. 15 Ibid., 58. 16 Dissenting Opinion of Judge Hackworth, I.C.J. Reports 1954, 80–81. Judge Hackworth believed that if the General Assembly were to be bound by UNAT’s decisions, “[t]his would present an anomalous and unique situation in international organization – a situation that can fĳind no sanction, express or implied, in the Charter”, ibid., 79. 17 Dissenting Opinion of Judge Alvarez, I.C.J. Reports 1954, 71–72. The view that the responsibility and competence of principal organs must prevail over those of subsidiary 354 chapter nineteen

It was the extent of the binding force of UNAT’s decisions that particularly troubled the dissenting judges. Apart from the arguments concerning the superior position of the General Assembly in the Organization’s structure, the view was advanced that a dispute before an administrative tribunal was a dispute between component parts of an organ (a stafff member and the Secretary General). As such, the Tribunal’s decision could not be binding on the Organization as a whole.18 As noted above, the ICJ resisted classifying the UNAT as a subsidiary body of the UN. However, it emphasized the wide discretionary powers of the General Assembly to determine the nature and scope of the measures resulting from the creation of the Tribunal. Its main argument revolved around the nature of disputes put before the UNAT. The Court explained that the parties to such dispute were, on the one hand, the stafff member concerned and, on the other hand, the Organization as a whole. Therefore, the UN – as a party to the dispute – was legally bound to carry out UNAT’s judgments and pay the awarded compensation. The Court also emphasized that under the “well-established and generally recognized principle of law a judgment rendered by such a judicial body is res judicata and has binding force between the parties to the dispute”.19 The Court even relied on the aims of the UN Charter: to promote freedom and justice for individuals, pointing out that if the Organization did not affford any judicial or arbitral remedy to its own stafff for the settlement of disputes, it would be acting inconsistently with such aims.20 In its 1973 advisory opinion (the fĳirst advisory opinion issued in the review of a judgment of the UNAT) the Court elaborated more on Article 22 of the Charter. It stated: “[T]o place a restrictive interpretation on the power of the General Assembly to establish subsidiary organs would run contrary to the clear intention of the Charter. Article 22, indeed, specifĳi- cally leaves it to the General Assembly to appreciate the need for any particular organ, and the sole restriction placed by that Article on the General Assembly’s power to establish subsidiary organs is that they should be ‘necessary for the performance of its functions’ ”.21 Although the Court made those remarks in the context of a special committee established to organs was advocated by many States, see, e.g., the Written Statement of the United States of America, I.C.J. Pleadings 1954, 131–35. 18 Dissenting Opinion of Judge Hackworth, I.C.J. Reports 1954, 82 and Dissenting Opinion of Judge Carneiro, I.C.J. Reports 1954, 94. 19 Efffect of Awards of Compensation, ibid., 53. 20 Ibid., 57. 21 See Application for Review of Judgment No. 158, ibid., 172–73. review of decisions of international administrative tribunals 355 screen requests for review (see below), it invoked its reasoning in the 1954 opinion. It concluded: “From the above reasoning it necessarily follows that the General Assembly’s power to regulate stafff relations also comprises the power to create an organ designed to provide machinery for initiating the review by the Court of judgments of such a tribunal”.22 Another controversial issue raised in the 1954 advisory opinion was whether there existed any grounds under which the UN could refuse to implement a judgment of the UNAT. Finding in the negative, the Court emphasized that the UNAT Statute did not provide for the review of the Tribunal’s judgments and that this had been a “deliberate decision” of the General Assembly.23 It pointed out that the General Assembly was not capable of acting as a judicial organ and reviewing the evidence, facts and law in a case, especially where the Organization itself was a party to the dispute. In its opinion, a body other than the UNAT could review the latter’s judgments only if “the statute of that tribunal or some other legal instrument governing it should contain an express provision to that efffect”.24 The ICJ also dismissed the argument that because the General Assembly, pursuant to Article 17(1) of the UN Charter, had the power to consider and approve the UN budget, it could not have divested itself of these powers by accepting the Tribunal’s judgments without restrictions.25 The Court interpreted Article 17(1) narrowly, excluding an “absolute” power to approve or disapprove expenditures. It insisted that in the case of expenditures arising out of obligations already incurred by the Organization, the General Assembly had no alternative but to honour them.26 The result of the ICJ’s analysis was therefore that the General Assembly, a principal organ of the UN, had the power to create a subsidiary organ of such competence that the decisions of the latter could be binding for the former and, as a result, the powers of the subsidiary organ could in certain instances prevail over those of the principal one. The 1956 advisory opinion supplemented the Efffect of Awards of Compensation opinion in several aspects. Most importantly, however, the

22 Ibid., 173. 23 “Like the Assembly of the League of Nations [the General Assembly] refrained from laying down any exception to the rule conferring on the Tribunal the power to pronounce fĳinal judgments without appeal”, Efffect of Awards of Compensation, ibid., 53. 24 Ibid., 56. The ICJ did not exclude a revision of the Tribunal’s judgment by the UNAT itself, “in special circumstances when new facts of decisive importance have been discovered”, ibid., 58. 25 Dissenting Opinion of Judge Hackworth, I.C.J. Reports 1954, 85. 26 Efffect of Awards of Compensation, ibid., 59. 356 chapter nineteen

Court confĳirmed that, in this case, the ILOAT was an international tribunal and that it was a tribunal of limited jurisdiction.27 The two advisory opinions set the legal foundations for administrative tribunals as special international judicial organs, of sui generis character, established in order to decide disputes between an international organization and its stafff members. They made clear that an administrative tribunal, despite having the status of a subsidiary organ, may be competent to issue awards binding on the organization as a whole, including its principal organ. Nearly two decades later, in its 1973 advisory opinion, the ICJ could confĳirm: “The adoption by the General Assembly of the Statute of the Administrative Tribunal and the jurisprudence developed by this judicial organ constitute a system of judicial safeguards which protects offfĳicials of the United Nations against wrongful action of the administration, including such exercise of discretionary powers as may have been determined by improper motives, in violation of the rights or legitimate expectations of a stafff member”.28 Doctrine was quick to follow and develop the Court’s reasoning. It was argued that the necessity for the existence of an administrative tribunal could be implied from the need for the organization to function efffĳiciently and objectively,29 and even that international organizations had an “inherent right” to establish administrative tribunals, such right being limited only by explicit statutory provisions to the contrary.30 Today, the legality and necessity of administrative tribunals is so obvious that other arguments, rather remote from the ICJ’s analysis in 1954, are being invoked to justify their existence. For example, Reinisch draws

27 Judgments of the Administrative Tribunal of the ILO, ibid., 97. However, the Court thought this was of little import for the interpretation of the provisions on the jurisdiction of the Tribunal: “The arguments, deduced from the sovereignty of States, which might have been invoked in favour of a restrictive interpretation of provisions governing the jurisdiction of a tribunal between States are not relevant to a situation in which a tribunal is called upon to adjudicate upon a complaint of an offfĳicial against an international organization”, ibid. 28 Application for Review of Judgment No. 158, ibid., 205. 29 As Koh points out, to function properly an organization requires wide discretionary powers; this in turn necessitates a control mechanism. The author asserts: “The rationale for administrative tribunals in general is to be found, fĳinally, in the operational needs of a large-scale administrative organization”, B.C. Koh, The United States Administrative Tribunal (1966), 24. See also Gomula, ibid., 90–93. 30 See, e.g., F. Seyersted, Settlement of Internal Disputes of Intergovernmental Organizations by Internal and External Courts, Zeitschrift fur Auslandisches Öfffentliches Recht und Völkerrecht Vol. 24 (1964), 53. review of decisions of international administrative tribunals 357 attention to the immunity31 enjoyed by international organizations in disputes brought by private parties in domestic courts, which, in his opinion, requires alternative judicial or quasi-judicial means of dispute resolution.32 Also human rights considerations, such as the right of stafff members to a fair hearing and their due process rights, have been invoked.33 Moreover, not only the rationale for their existence, but also the substance of administrative tribunals’ jurisprudence, is being linked to other areas of public international law than the law of international institutions. For example, Judge Buergenthal believes that administrative tribunals can be regarded as “specialized human rights tribunals” because they deal with due process of law and discrimination issues.34 This is an enormous step in doctrinal and theoretical justifĳication of administrative tribunals since 1954. Today nobody could contest the need for their existence, nor their independence as judicial bodies. Moreover, there has been a notable shift from the perspective of an international organization to the standards of procedural fairness, to be enjoyed by the employees in stafff disputes.

C. The ICJ’S Power to Review the Judgments of Administrative Tribunals

As mentioned above, to date the ICJ has acted as a “court of appeal” (or perhaps more appropriately, “court of review”) with respect to two administrative tribunals: the ILOAT and the UNAT. With respect to the former, the Court’s power derives from Article XII of the ILOAT Statute, pursuant to which the ILO Governing Body or the Administrative Board of the Pension Fund may request an advisory opinion from the ICJ on the

31 Though it did not develop the immunity argument, the ICJ did invoke it briefly, when justifying the power to establish an administrative tribunal: “Article 105 secures for the United Nations jurisdictional immunities in national courts”, Efffect of Awards of Compensation, ibid., 57. 32 A. Reinisch, The Immunity of International Organizations and the Jurisdiction of Their Administrative Tribunals, Chinese Journal of International Law Vol. 7 (2008), 286. 33 See, ibid., 294. 34 He explains: “Let me emphasize, in this connection, that it is a mistake to assume that these tribunals deal only with narrow questions relating to the interpretation of employment contracts and pension rights. They do that too, but, in addition, they deal more and more with human rights issues, particularly due process of law questions and various forms of discrimination, whether it be racial, religious, or sexual, as well as with sexual harassment claims”. T. Buergenthal, Proliferation of International Courts and Tribunals: Is It Good or Bad?, Leiden Journal of International Law Vol. 14 (2001), 269. 358 chapter nineteen validity of the ILOAT’s decision. There are only two grounds for such request: where either of the above bodies challenges a decision confĳirm- ing the jurisdiction of the Tribunal or considers that the Tribunal’s decision is vitiated by a fundamental procedural fault. Thus, the Court is not authorized to review the substantial merits of the Tribunal’s judgments. Article XII(2) of the ILOAT Statute provides that the ICJ’s opinion shall be binding. As a result of the advisory opinion in Efffect of Awards of Compensation, important changes were made to the regime applicable to the UNAT. An amendment of Article 11 of the UNAT Statute in 1955 led to the establishment of a special organ, the Committee on Applications for Review of Judgments of the Administrative Tribunal. Its main and only task was to screen applications from Member States, the Secretary General and stafff members for review of the Tribunal’s rulings. If the Committee considered there was substantial basis for review, it could request an advisory opinion from the ICJ. Pursuant to Article 11(3) of the UNAT Statute the opinion rendered had a de facto binding efffect on the UN and the UNAT.35 The grounds for review were broader than in the case of the ILOAT; in particular, a challenge of a judgment could concern an alleged error on a question of law relating to the provisions of the UN Charter.36 The review regime of the ILOAT was put to a test shortly after the 1954 advisory opinion, in a request fĳiled in 1955 concerning four judgments.37 It was made in an atmosphere of controversy surrounding the new regime of the UNAT; in particular, the involvement of the ICJ in the procedure was questioned. There were strong objections to the broadening of the Court’s jurisdiction beyond the scope permitted in the ICJ Statute, the nature of the questions put forward to the Court in those cases, the fact that the parties in the underlying disputes were not allowed to appear in contentious proceedings,38 and the binding character of the advisory opinions issued as a result of the review.

35 See Gomula, ibid., 99–101 and P. Sands, P. Klein, Bowett’s Law of International Institutions (6th ed., 2009), 427 fff. 36 There were four grounds of review: exceeding jurisdiction or competence by the UNAT, failure to exercise jurisdiction, error on a question of law relating to the provisions of the UN Charter, and fundamental error in procedure leading to a failure of justice. 37 This case was highly politically charged and involved certain employees who had refused to appear before the International Organizations Employee Loyalty Board, see Judgments of the Administrative Tribunal of the ILO, ibid., 7 fff. 38 It should be noted that the idea of involving the ICJ in the review mechanism was not entirely unprecedented. At the San Francisco conference Venezuela had proposed that the review of decisions of international administrative tribunals 359

There is of course no explicit basis in the ICJ Statute or the UN Charter for the ICJ to act as a “court of appeal”.39 Pursuant to Article 65(1) of the ICJ Statute, the Court may give an advisory opinion on any legal question, provided that the request for an advisory opinion is made by a body authorized by or in accordance with the UN Charter. Article 96 of the UN Charter specifĳies the scope of organs authorized to request advisory opinions. The General Assembly and the Security Council are explicitly mentioned in Article 96(1), while Article 96(2) envisages that the power to request advisory opinions may also be vested with “other organs of the United Nations and specialised agencies, which may at any time be so authorized by the General Assembly”. The authorized organs may request advisory opinions “on legal questions arising within the scope of their activities”.40 The advisory opinion in Judgments of the ILO Administrative Tribunal gave the ICJ an opportunity to discuss the objections to its jurisdiction. It described the question put to it as a “legal question”, arising within the scope of activities of UNESCO, as a result of the four judgments covered by the request. According to the Court, “[i]n submitting the Request for an Opinion the Executive Board was seeking a clarifĳication of the legal aspect of a matter with which it was dealing”.41 The ICJ acknowledged that the binding efffect of its advisory opinion would “[g]o beyond the scope attributed by the Charter and by the Statute of the Court to an Advisory Opinion”. However, in its opinion, this did not bar the Court from considering the request because the provision in question was “nothing but a rule of conduct for the Executive Board”, and in no

ICJ should be vested with the powers of a court of appeal from judgments of administrative tribunals; however, the proposal concerned the contentious jurisdiction of the Court. See Ostrihansky, ibid., 102, 104–5. With respect to advisory proceedings, there was interesting precedent from the practice of the PCIJ involving individuals: in the Danzig Legislative Decrees case written statements from individuals representing minority political parties were allowed, see L. Gross, Participation of Individuals in Advisory Proceedings before the International Court of Justice: Questions of Equality Between the Parties, American Journal of International Law Vol. 16 (1958), 16; see also I. Brownlie, The Individual Before Tribunals Exercising International Jurisdiction, International and Comparative Law Quarterly Vol. 11 (1962). 39 However, there is much merit in the remark that because of their factual and legal background advisory opinions are usually a form of appeal or “quasi-appeal”, see K. Keith, The Extent of the Advisory Jurisdiction of the International Court of Justice, 1971, 229. 40 This was a major issue in the advisory opinion on the Legality of the Use by a State of Nuclear Weapons, see note 2 above. On this issue see, e.g., D. Akande, The Competence of International Organizations and the Advisory Jurisdiction of the International Court, European Journal of International Law Vol. 8, (1998), 437. 41 Judgments of the ILO Administrative Tribunal, ibid., 84. 360 chapter nineteen way afffected the functioning of the Court, the reasoning of the Court or the content of the advisory opinion.42 The Court was more troubled by the fact that the procedure envisaged under Article XII of the ILOAT Statute was designed to avoid the restriction in Article 34(1) of the ICJ Statute, which permitted only States to appear as parties before the ICJ. Having emphasized that “[t]he Court is a judicial body and, in the exercise of its advisory functions, it is bound to remain faithful to the requirements of its judicial character”,43 it set a question for itself – whether this was possible also in the current case? The Court acknowledged that the advisory procedure in this case appeared to serve “the object of an appeal against the four Judgments” and admitted that “[t]he special feature of this procedure is that advisory proceedings take the place of contentious proceedings which would not be possible under the Statute of the Court”. The Court therefore examined whether the ICJ Statute and its judicial character prevented the Court from partici- pating in the procedure. It noted that there was a “certain absence of equality” between UNESCO and the stafff members in the origin and progress of the proceedings, but this was not “an inequality before the Court” because it was antecedent to the examination of the request by the ICJ. Therefore, it did not afffect the manner of the Court’s examination.44 The Court acknowledged that under Article 66 of the ICJ Statute only international organizations and States, but not individuals, were able to make written and oral statements before it. This meant that observations of stafff members had to be forwarded to the Court through the intermediary of the international organization involved and that oral proceedings had to be omitted.45 However, although – as the Court emphasized – “[t]he principle of equality of the parties follows from the requirements of good administration of justice”, in its opinion these requirements had not been impaired because adequate information had been made available to the Court. Therefore, there was no “compelling reason” for the Court to reject the request and “to adopt in this matter a negative attitude which world

42 Ibid. 43 Ibid. 44 Ibid., 85. 45 On several occasions the Court expressed its regret at the lack of oral proceedings. In a later advisory opinion the Court described this as “depriving itself of a very useful procedure, [which] appears to be a sacrifĳice which is justifĳied by concern thereby to ensure actual equality”, Application for Review of Judgment No. 273, ibid., 339. review of decisions of international administrative tribunals 361 imperil the working of the régime established by the Statute of the Administrative Tribunal for the judicial protection of offfĳicials”.46 In other words, the objective of the judicial protection of an international organization’s offfĳicials prevailed over certain procedural inadequacies that were unavoidable in a review mechanism involving the ICJ. In its 1973 advisory opinion the ICJ elaborated further on the question whether advisory jurisdiction could be used for the review of contentious judicial proceedings to which individuals were parties. The Court explained: “The existence, in the background, of a dispute the parties to which could be afffected as a consequence of the Court’s opinion, does not change the advisory nature of the Court’s task, which is to answer the questions put to it with regard to a judgment”.47 What mattered most for the Court was that the request had come from a body duly authorized by the UN Charter: “The mere fact that it is not the rights of States which are in issue in the proceedings cannot sufffĳice to deprive the Court of a competence expressly conferred on it by its Statute”.48 As in the Efffect of Awards of Compensation opinion, in 1973 the ICJ afffĳirmed that the General Assembly’s powers to regulate stafff relations also comprised the implied “power to create an organ designed to provide machinery for initiating the review of judgments of such a tribunal”.49 Certain objections concerned the nature of the Committee established to screen applications for review; in particular, it was doubted whether the Committee could be regarded as an “organ” within the meaning of Article 96(2) of the UN Charter, “in the proper, institutional sense of the word”.50 The main argument was that it did not have any activities of its own, with respect to which there could arise legal questions to be presented to the ICJ. Also, its composition was problematic: membership was open to

46 Judgments of the ILO Administrative Tribunal, ibid., 86. The same issue arose in the 1973 advisory opinion, with respect to the UNAT, but here the Court had an easier argument. Article 11 of the UNAT Statute required the Secretary-General to transmit to the Court the views of the stafff member concerned: “Thus, under Article 11, the equality of a stafff member in the written procedure before the Court is not dependent on the will or favour of the Organization, but is made a matter of right guaranteed by the Statute of the Administrative Tribunal”, Application for Review of Judgment No. 158, ibid., 180. 47 Ibid., 171. See also Application for Review of Judgment No. 333, ibid., 30–31. 48 Application for Review of Judgment No. 158, ibid., 172. 49 Ibid., 173. 50 Dissenting Opinion of Judge Gros, I.C.J. Reports 1973, 259. Judge Gros pointed out that the Committee lacked permanence and continuity in its composition. See also S. Rosenne, The Law and Practice of the International Court, 1965, 690. 362 chapter nineteen

Member States, whose representatives had served on the General Committee of the most recent regular session of the General Assembly. To the ICJ the latter was “no more than a convenient method” of establishing membership, not afffecting the Committee’s independence as an organ. The Court was satisfĳied that the Committee had functions distinct from those of the General Assembly and was vested with the power to establish its own rules of procedure.51 Although the Committee’s scope of activities was narrow, in the Court’s opinion it had to be viewed in the larger context of the General Assembly’s function in the regulation of stafff relations. Thus, as the Court pointed out, the Committee’s power to request advisory opinions did not derive from delegation from the General Assembly, and there was no limitation in Article 96 of the UN Charter of the General Assembly’s power to authorize another organ to request such opinions. The General Assembly had simply created “a subsidiary organ having a particular task and invested it with the power to request advisory opinions in the performance of that task”.52 The Court also emphasized that the primary function of the Committee was not to request advisory opinions, but to examine objections to judgments in order to decide whether there was a substantial basis for an application for review. Therefore, the legal questions submitted to the ICJ arose out of the performance of this organ’s primary function. The Court thought that it was irrelevant that the Secretary-General and the UNAT, but not the Committee itself, were responsible for the subsequent implementation of the advisory opinions so requested.53 Because of the above controversies, in the case concerning Application for Review of Judgment No. 158 there was, as on the occasion of the 1956 advisory opinion, some pressure on the Court to exercise discretion and decline to answer the request. In particular, it was argued that the

51 Application for Review of Judgment No. 158, ibid., 173. The composition of the Committee seemed a secondary matter to the Court. In a later advisory opinion it found that even circumstances where one of the member States had delegated another member State to substitute it at the Committee, though irregular, did not afffect the validity of the request for an advisory opinion. Application for Review of Judgment No. 273, ibid., 342–43. 52 Application for Review of Judgment No. 273, ibid., 174. 53 The Court found nothing in Article 65 of the ICJ Statute that would require the requested advisory opinions to “be designed to assist the requesting body in its own future operations” or that would place on the requesting body the responsibility to give the efffect to such opinions. In a later advisory opinion the Court considered the relationship between the review procedure and the powers of the Secretary-General, fĳinding no conflict between the two, Application for Review of Judgment No. 273, ibid., 336–38. review of decisions of international administrative tribunals 363

Committee was a political organ,54 whose exercise of its non-judicial functions compromised the requirements of judicial process. The ICJ addressed these concerns, explaining that the Committee’s “functions merely furnish a potential link between two procedures which are clearly judicial in nature”.55 It pointed out some problematic features of the proceedings (such as the lack of the requirement on the Committee to specify the grounds for its decision to reject an application), but remained convinced that the process was overall of a judicial character. Therefore, the Court could see no valid reason to decline to answer the request. On another occasion, the Court made clear, however, that it enjoyed full discretion to accept or reject a request for an advisory opinion. In 1982, the United States (from which the Committee’s request for an advisory opinion originated), insisted that the Court’s acceptance of the request was necessary for the validity of the Tribunal’s judgment and warned the Court of the consequences of a possible refusal. The Court dismissed the warn- ing with some irritation: “The Court […] considers that even if its giving of an advisory opinion were legally indispensable for a judgment of the Administrative Tribunal to become fĳinal […] – this consideration should not prevent it from maintaining unimpaired the discretionary character of its exercise of advisory jurisdiction”.56 The above concern of the United States had resulted from pressure on the Court to decline the request because in this case a member State, that is, an entity not party to the original proceedings, had originated the review mechanism. The Court did not consider this as afffecting its competence to give an advisory opinion. Nor did it, ultimately, fĳind any reason to decline the request, its argument being that one could not regard the member State’s involvement as an intervention, as such, of a third person at the review level of a dispute.57 However, because of the origin of the application, the Court devoted much attention to the aspect of the review procedure which had troubled it in previous advisory opinions: the principle of equality of the parties to the dispute. This aspect had – in the Court’s words – been “particularly

54 The Court itself characterized the Committee as a “political organ with quasi-judicial functions”, ibid., 335. 55 Application for Review of Judgment No. 158, ibid., 176. 56 Application for Review of Judgment No. 273, ibid., 337. 57 “[The Court] does not consider, in the present case […], that the request before it emanates from a member State. Thus it does not consider that this request constitutes an intervention, at review level, of a member State and hence of a third person in relation to the original proceedings”, ibid., 336. 364 chapter nineteen highlighted”58 in the current case. The Court characterized as “fundamental inequality” the fact that the Committee was an organ of a party to the dispute and, to make it worse – the unsuccessful party, and that it was in this party’s power to decide the fate of the application for review. The Court pointed to the potential inequality existing at “both the theoretical and the practical level” and confĳirmed “at once” that at least the former type of inequality certainly existed.59 To ascertain whether “practical inequality” had or not occurred and whether the Committee had duly respected the elementary principle governing the judicial process, the Court found it necessary to examine the proceedings of the Committee regarding the application in question. It identifĳied a number of irregularities in the Committee’s proceedings. The Court appeared especially dis- turbed by the fact that, unlike the representative of the United States, the stafff member involved had not been able to participate in the discussion on the application. This was sufffĳicient to conclude that there existed “compelling reasons” for the Court to exercise judicial restraint. Despite these dire circumstances, other considerations prevailed in the Court’s ultimate decision to accept the request: “The stability and efffĳi- ciency of the international organizations, of which the United Nations is the supreme example, are however of such paramount importance to world order, that the Court should not fail to assist a subsidiary body of the United Nations General Assembly in putting its operation upon a fĳirm and secure foundation”. Another important consideration in support of proceeding with the review was that the Court’s judicial role was not “endangered or discredited” in this case.60 There is a visible contrast in the Court’s approach to the issue of the establishment of administrative tribunals and that of accepting its role of “court of appeal”. In the former case, the Court was more than comfortable to apply a broad, dynamic interpretation of the powers of international organizations. In the latter case, the Court seemed constantly troubled by the theoretical problems resulting from its involvement in the review mechanism. This found its expression in the Court’s caution towards the

58 Ibid., 339. 59 Ibid., 340. 60 Moreover, a refusal to give an advisory opinion “would leave in suspense a very serious allegation against the Administrative Tribunal”, ibid., 347. However, overall, the Court seemed extremely displeased with the irregularities and made it a point in its fĳinal analysis to emphasize that its decision to comply with the request did not “in any way imply condo- nation” of these irregularities and of the failure of the Committee to “do all in its power to secure equality between the applicant State and the stafff member”, ibid., 366. review of decisions of international administrative tribunals 365 requests. For example, in its 1956 advisory opinion the Court refused to answer two questions, which would have involved an assessment whether the Director-General had exercised his powers not to renew a contract “in the interest of the Organization”. The Court underlined that it would have been required to assess the reasons given by the Tribunal on the merits and noted: “A challenge of a decision confĳirming jurisdiction cannot properly be transformed into a procedure against the manner in which jurisdiction has been exercised or against the substance of the decision”.61 Interestingly, the Court did not exclude UNESCO’s general power to ask for an advisory opinion in the above matter under Article 65 of the ICJ Statute, but was unable to address the questions in this instance because of the express link of the request to Article XII of the ILOAT Statute. Similarly, in 1973, the Court underlined that its task was not to retry the case and that therefore it was not entitled to substitute its own opinion for that of the Tribunal on the merits of the case. To the contrary, the Court’s role was “to determine if the circumstances of the case, whether they relate to merits or procedure, show that any objection made to the Judgment on one of the grounds mentioned in Article 11 is well founded”.62 Thus, the powers of the ICJ as “court of appeal” had to be viewed narrowly. The review system of the UNAT was subject to much criticism, also among the Judges of the ICJ, who with the years were becoming increasingly frustrated with the existence of two separate administrative tribunals within the UN system63 and the defĳiciencies of the UNAT mechanism64

61 Judgments of the ILO Administrative Tribunal, ibid., 98–99. 62 The Court explained further: “In doing so, the Court is not limited to the contents of the challenged award itself, but takes under its consideration all relevant aspects of the proceedings before the Tribunal as well as all relevant matters submitted to the Court itself by the stafff member and by the Secretary-General with regard to the objections raised against that judgment”, Application for Review of Judgment No.158, ibid., 188. However, the Court admitted that although challenges regarding procedure could not properly be transformed into proceedings against the substance of the decision, the Court could in such cases review the actual substance of the decision. 63 “There can be little doubt that, in the interest of the administration concerned, the stafff members and the organizations themselves, the procedures in question should be uniform”, Declaration of Judge Lachs, I.C.J. Reports 1973, 214. See also Declaration of Judge Lachs, I.C.J. Reports 1987, 74. 64 For example, in 1987 Judge Elias noted with some impatience: “It seems that the Court has now reached a stage at which it should bring to the attention of the General Assembly and of the United Nations Organization as a whole the need to reconsider the scheme of referring to this Court cases from the Administrative Tribunal for review in accordance with the present procedure established in 1955”, Separate Opinion of Judge Elias, I.C.J. Reports 1987, 76. 366 chapter nineteen and the ILOAT regime.65 There were attempts to harmonize the jurisdictions of the ILOAT and the UNAT,66 with a view to establishing a single administrative tribunal for the UN system; however, these were not successful. The two mechanisms have remained separate to this date. While the review mechanism of the ILOAT has not been modifĳied, that of the UNAT became subject to fundamental changes. The possibility of appeal to the ICJ was abandoned in 1995.67 In 2005 a panel of experts was established to consider reforming the UN administrative system. As a result of its report68 the regime was totally revised in 2007.69 The UNAT ceased to exist on 31 December 2009 and was replaced by two bodies: the UN Dispute Tribunal and the UN Appeals Tribunal. Thus, today the Court is only competent to review judgments of the ILOAT, pursuant to Article XII of the ILOAT Statute. This is still an impressive scope of judgments potentially subject to review, given that there are approximately 60 international organizations, which have accepted the Tribunal’s jurisdiction. As mentioned above, in April 2010 the ICJ received a request for an advisory opinion regarding a judgment of the ILOAT. The entrustment to the ICJ of the power to review judgments of administrative tribunals has had important systemic implications with respect to the Court’s advisory jurisprudence in general. Among others, it has enhanced the way for so-called “conclusive advisory opinions”, where the Court’s opinions, advisory by name and nature, have been given a de facto

65 The ICJ is critical of the lack of proper standards of fairness in the ILOAT proceedings, see http://www.pressreleasenetwork.com/newsroom/news_view.phtml?news_id=101 (accessed 18 August 2011). 66 Such attempts were made already in the 1970s, see Thierry, ibid., 330–31. In 2002 the possibility of establishing a higher instance with respect to the two tribunals was also considered, see F. Bouayad-Agha, H.L. Hernández (Joint Inspection Unit), Reform of the Administration of Justice in the United Nations System: Options for Higher Recourse Instances, JIU/REP/2002/5 (2002). 67 The procedure was inefffĳicient and costly; only three out of 96 requests fĳiled to the Administrative Committee for Review were subject to review by the ICJ. For the background of events that led to the abolition of the review procedure see Kaikobad, ibid., 278 and H. Thierry, Some Changes in International Administrative Justice, ASIL Proceedings Vol. 90 (1996). 68 Report of the Redesign Panel on the United Nations System of Administration of Justice, 28 July 2006, A/61/205. For an assessment of the panel’s conclusions see M. Vicien- Milburn, Promoting the Rule of Law within the United Nations, International Lawyer, Vol. 43 (2009), 51–58. 69 Administration of Justice at the United Nations, 22 December 2007, A/RES/62/228. The new system was described in detail by A. Reinisch, Ch. Knahr, From the United Nations Tribunal to the United Nations Appeals Tribunal – Reform of the Administration of Justice System within the United Nations, Max Planck Yearbook of United Nations Law Vol. 12 (2008), 447–483. review of decisions of international administrative tribunals 367 binding efffect, in particular, with respect to disputes between international organizations and states.70

D. The ICJ’S Contribution to the Development of International Administrative Law

The Court’s contribution to the development of the substance of international administrative law has not been signifĳicant. The reason is not the quality of its advisory opinions per se but the simple fact that for want of cases it has not had an opportunity to make a greater impact in this area. Its powers of review of both tribunals’ judgments have been limited (especially in the case of the ILOAT) and it has only issued four advisory opinions in this capacity (not including the Efffect of Awards of Compensation opinion). The Court’s greatest contribution in this respect is perhaps its recognition of certain specifĳicities of the regulations governing the relationship between international organizations and their stafff, and the con- fĳirmation of the specifĳic nature of international administrative law.71 The 1956 advisory opinion concerned the competence of the ILOAT to hear complaints against UNESCO brought by four offfĳicials, whose fĳixed- term contracts had not been renewed contrary to their expectations. The complainants regarded renewal as an acquired right, invoking an administrative memorandum issued by UNESCO’s Director-General, which in their view was complementary to their contract and the Stafff Regulations. The fĳirst question posed to the ICJ was straightforward: whether the ILOAT had been competent to review the complaints in question. At the outset, the Court made clear that it was not confĳined to the grounds of the decision expressly invoked by the ILOAT, but it could rely on the grounds that the Court itself considered decisive.72 The Court then found it “necessary to ascertain whether the terms and provisions invoked [by the stafff

70 For example, Section 30 of the Convention on the Privileges and Immunities of the United Nations gives such binding force to advisory opinions issued in the case of a “diffference arising in the interpretation and application” of the Convention, between the UN and a member State. In 1989 the ICJ issued an advisory opinion on this basis, Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, ICJ Reports 1989, 177. On the issue of “conclusive” advisory opinions see e.g. R. Ago, “Binding” Advisory Opinions of the ICJ, American Journal of International Law, Vol. 85 (1991). When serving on the Court, Judge Ago critically assessed the UNAT review mechanism; see Separate Opinion of Judge Ago, I.C.J. Reports 1987, 107–9. 71 For an overview of the ICJ’s conclusions in the cases see Amerasinghe, ibid., 203 fff. 72 Judgments of the ILO Administrative Tribunal, 87. 368 chapter nineteen members] appear to have a substantial and not merely an artifĳicial connection with the refusal to renew the contracts”.73 The Court did not limit its analysis to the literal meaning of the contracts. It underlined the necessity to consider such contracts “not only by reference to their letter but also in relation to the actual conditions in which they were entered into and the place which they occupy in the Organization”.74 It contrasted contracts concluded with their stafff members by international organizations – the UN and its specialized agencies – with ordinary fĳixed-term contracts between private employers and private employees, drawing attention to the development of “a body of practice to the efffect that holders of fĳixed- term contracts […] had often been treated as entitled to be considered for continued employment”. It was this practice that, in the Court’s opinion, constituted “a relevant factor in the interpretation of the contracts in question”.75 The Court’s further analysis focused on the notion of “renewal” of a fĳixed-term contract, as opposed to a new appointment, with respect to which the jurisdiction of the ILOAT would not have existed. It concluded that there was indeed a legal relationship between a fĳixed-term contract and its renewal; “a relationship which constitutes the legal basis of the complaints of the offfĳicials”.76 It acknowledged the possibility that the administrative memorandum had created a right to the renewal of the contracts because, in its opinion, it could be qualifĳied as a modifĳication of the Stafff Rules with the efffect that it constituted an offfer of renewal.77 Therefore, the Court’s answer to the fĳirst question was positive: the ILOAT did have competence to review the complaints. The non-extension of an existing contract was the main issue in the next advisory opinion in the series, issued in 1973 and concerning the UNAT. The Court was asked to assess whether the UNAT had failed to exercise jurisdiction and committed a fundamental error of procedure. This was alleged by the applicant with respect to a number of issues with fĳinan- cial implications: compensation for injury to the applicant’s professional reputation and employment opportunities, compensation for costs, and the recalculation of his remuneration at one of his posts. This advisory opinion is noteworthy in that the Court placed a great emphasis on the

73 Ibid., 89. 74 Ibid., 91. 75 Ibid. 76 Ibid., 95. 77 Ibid., 96. review of decisions of international administrative tribunals 369 examination of the reasoning of the Tribunal, with a view to determining whether it had “addressed in mind the applicant’s claims”.78 The Court even listed “the right to a reasoned decision” among recognized rights contributing to the right to a fair hearing, the absence of any of which would constitute failure of justice.79 The Court considered that the statement of reasons was necessary for the validity of a judgment and failure to state reasons could constitute a fundamental error of procedure within the meaning of Article 11 of the UNAT, even if not expressly mentioned as grounds for review. However, this requirement was not subject to an overly high standard: “This statement [of reasons] must indicate in a general way the reasoning upon which the judgment is based; but it need not enter meticulously into every claim and contention on either side”.80 The Court explained that failure to exercise jurisdiction covered situations “where the Tribunal had either consciously or inadvertently omitted to exercise jurisdictional powers vested in it and relevant for its decision of the case or of a particular material issue in the case”. As such, this determination required “regard to the substance of the matter and not merely the form”.81 The applicant alleged, among others, that the Tribunal had failed to exercise jurisdiction because it had not explicitly addressed some of his pleas. The Court, pointing out the particular structure of the Tribunal’s judgment, explained: “The test of whether there has been a failure to exercise jurisdiction with respect to a certain submission cannot be the purely formal one of verifying if a particular plea is mentioned eo nomine in the substantive part of a judgment: the test must be the real one of whether the Tribunal addressed its mind to the matters on which a plea was based, and drew its own conclusions therefrom as to the obligations violated by

78 Amerasinghe notes that “the ICJ made it clear in the Judgment No. 158 case that it is the essence of judicial decisions that judgments must be reasoned, so that even in the absence of an express requirement, this condition would have to be satisfĳied”, Amerasinghe, ibid., 205. 79 Application for Review of Judgment No. 158, ibid., 209. Other “well-established rights” included: the right to an independent and impartial tribunal established by law, the right to have the case heard and determined within a reasonable time, the right to a reasonable opportunity to present the case to the tribunal and to comment upon the opponent’s case, and the right to equality in the proceedings. 80 Ibid., 210. The Court concluded: “The question whether a judgment is so defĳicient in reasoning as to amount to a denial of the right to a fair hearing and a failure of justice, is therefore one which necessarily has to be appreciated in the light both of the particular case and of the judgment as a whole”, ibid., 211. 81 Application for Review of Judgment No. 158, ibid., 189–90. 370 chapter nineteen the respondent and as to the compensation to be awarded therefore”.82 In this case, the test had been satisfĳied and the award of damages was also intended to comprise compensation for injury to professional reputation and career prospects. The Court rejected the argument that there may have been a failure to exercise jurisdiction because of the “extreme paucity” of the award, afffĳirming that once a tribunal had pronounced on the amount of compensation to be paid for a wrongful act, it had exercised jurisdiction on the matter.83 The applicant was no more successful in his allegation that the UNAT had failed to exercise jurisdiction because it had not awarded him certain costs. The Court noted that the award of costs was within the Tribunal’s discretion in each case; what mattered was that it had addressed the question (albeit in a “laconic” manner).84 The Court also addressed some of the applicant’s contentions, which had not been fully reflected in the request for the advisory opinion but were made in the applicant’s later statement submitted to the Court. According to the applicant, the Tribunal should have exercised its discretionary powers and conducted an inquiry into the motives of his dismissal. The Court rejected these arguments, explaining: “No tribunal can be fairly accused of failure to have exercised the jurisdiction vested in it on the ground that it failed to make an inquiry or a fĳinding of fact which was not required in order to adjudicate on the case presented to it, and which none of the parties asked it to make”.85 The Court also stressed “the fundamental right of a stafff member to present his case, either orally or in writing, and to have it considered by the Tribunal before it determines his right”. In its view, a fundamental error of procedure was an error “of such a kind as to violate the offfĳicial’s right to a fair hearing […] and in that sense to deprive him of justice”.86

82 Ibid., 193. In 1987 the Court explained further: “If however it can be established with sufffĳicient certainty that ‘the Tribunal addressed its mind’ to the matters on which these contentions were based, ‘and drew its own conclusions therefrom’, then, whatever view be taken of the conclusion reached by the Tribunal on the evidence available, there was no failure to exercise jurisdiction in that respect”, Application for Review of Judgment No. 333, ibid., 30. 83 Application for Review of Judgment No. 158, ibid., 197. 84 The Court relied, among others, on a UN Statement of Policy concerning costs, to justify its conclusion that the lack of reasons did not constitute failure to exercise jurisdiction, ibid., 199–201, 212. 85 The Court also recalled that it was the duty of an international tribunal not only to reply to the questions stated in parties’ fĳinal submissions, but also to abstain from points not indicated in those submissions, ibid., 207–8. 86 Ibid., 209. review of decisions of international administrative tribunals 371

The 1982 advisory opinion was issued by the ICJ as a result of an application by the United States. The question here was whether a stafff member had acquired the right to a repatriation grant, without the need to produce evidence of relocation. It had resulted from various changes in the UN administrative regulations concerning the requirements to repatriation entitlements. The question addressed to the ICJ was formulated in an unusual way: whether the UNAT’s judgment was “warranted” in determining that the relevant General Assembly resolution could not be given immediate efffect in requiring evidence of relocation. This led the Court to “reformulate” the question,87 before afffĳirming that the UNAT had not erred on a question of law relating to the provisions of the UN Charter, nor exceeded its jurisdiction. As Amerasinghe points out the value of this advisory opinion was that it confĳirmed the application of the doctrine of acquired rights.88 In 1987 the Court issued its last advisory opinion within the UNAT review mechanism. The judgment in question concerned a Soviet national employed with the UN on the basis of secondment, who had asked for asylum in the United States and was subsequently refused continuation of his employment with the UN. This time the Court had to address the extent of the Secretary-General’s discretionary powers to appoint UN stafff under Article 101 of the UN Charter, as well as the meaning of the term “paramount consideration” (in the employment of such stafff), as used in Article 101(3).89 The Court acknowledged that “the task of balancing the various considerations, in cases where they incline in diffferent directions, is for the Secretary-General, subject to any general directions which might be given to him by the General Assembly”. Therefore, “[t]he decision was that of the Secretary-General; and it was not for the Tribunal, nor indeed

87 This was possible because the “defect” was subsequently cured by discussion in the Committee, which revealed the two grounds for objections to the UNAT’s judgment. See Application for Review of Judgment No. 273, ibid., 348–50. 88 Amerasinghe, ibid., 207. The Court said, among others: “The concept of an acquired right is, of course, neither defĳined nor even mentioned in the Charter. Article 101 of the Charter does provide that ‘The stafff shall be appointed by the Secretary-General under regulations established by the General Assembly’. But it was precisely in the Stafff Regulations thus established by the General Assembly itself that the Tribunal found, and so must apply, the general provision about acquired rights and the non-retroactivity of supplementing or amending regulations in regard to acquired rights”, Application for Review of Judgment No. 273, ibid., 363. 89 The Court defĳined this as “simply a consideration to which greater weight is normally to be given than to any other” of the UN Charter, Application for Review of Judgment No. 333, ibid., 63. 372 chapter nineteen for the Court, to substitute its own appreciation of the problem for that of the Secretary-General”.90 In all of these cases, the ICJ confĳirmed the judgments of the relevant administrative tribunal.

E. Closing Remarks

It has been pointed out that the existence of administrative tribunals ensures “the uniform interpretation and application of internal employment law of international organizations”.91 Clearly then, there is a need for such uniformity. The ICJ could have served as an instrument of such uni- formization, were it not for the relative remoteness of disputes in international administrative law from inter-state disputes in public international law, which the Court has been, in principle, created to resolve. Perhaps this was one of the reasons for the reluctance to use the ICJ in these cases more frequently. One feels, to some degree, disappointment that the Court could not have contributed more to the development of this area of law. However, although the ICJ’s role, as an institution, in afffecting the decisions of administrative tribunals has not been signifĳicant, individual judges of the ICJ have on occasion been members of some of these tribunals. Judge Buergenthal has pointed out that leading international law practitioners and judges have served on these tribunals, which in his opinion, “contributes to the cross-fertilization of international jurisprudence and thus to the enrichment of international law in general”.92 There is no univocal assessment of the ICJ’s role as a “court of appeal”. On the one hand, there are several disadvantages or dilemmas connected with this procedure, just to mention the hybrid nature93 that the Court’s advisory opinions assume as a result, the resolution of disputes involving individuals and international organizations that would not, as such, have standing in contentious proceedings before the ICJ, or the substantive law governing international employment disputes that the Court is not necessarily predisposed to resolve. On the other hand, and these considerations seem to prevail, through its advisory opinions the ICJ has greatly enhanced

90 Ibid. 91 Reinisch, ibid., 285. 92 Buergenthal, ibid., 269. 93 The term “hybrid procedure” has been used by ICJ Judges on several occasions. See e.g. Separate Opinion of Judge Winiarski, I.C.J. Reports 1956, 108; Dissenting Opinion of Judge de Castro, I.C.J. Reports 1973, 275; Dissenting Opinion of Judge Lachs, I.C.J. Reports 1982, 432. review of decisions of international administrative tribunals 373 and developed the law of international institutions. In particular, it has afffĳirmed the powers of international organizations to establish mechanisms to resolve disputes involving their stafff members through judicial tribunals with the power to render awards binding on those international organizations. It seems that without the Court’s advisory opinions, especially those issued in 1954 and 1956, international administrative tribunals may not have been accepted so easily as independent judicial institutions, the existence of which today is not only a privilege, but a right for stafff members of international organizations.

CHAPTER TWENTY

THE RELATION BETWEEN DUE PROCESS IN INTERNATIONAL AND NATIONAL HUMAN RIGHTS INSTRUMENTS AND INTERNATIONAL ADJUDICATION MECHANISMS

Santiago Oñate Laborde

A. Introduction

The topic of this contribution – the relation between due process and international administrative adjudication mechanisms – is in a sense a novel issue, but also a theme that is rooted in history. International adjudication and, more precisely, international administrative justice appeared as an offfshoot of due process of law. To determine if it has evolved under the aegis of due process is the purpose of these comments. The mere idea of adjudication of international administrative disputes is, in itself, a result of the development of due process of law.1 Due process of law, in its adjudicatory dimension,2 is –in its broad sense- the legal device through which the exercise of power is controlled. The existence of rules and procedures for the settlement of disputes between an international organization and its employees by a third party is, in itself, a manifestation of due process of law. Well-known is the fact that almost since the emergence of the intergovernmental organizations into the legal arena some one hundred years ago, it was considered as a prerequisite for their independence vis-à-vis the States that constituted them and vis-à-vis the State on whose territory they had established their headquarters, to provide them with a certain

1 The existence of a dispute settlement procedure that provides a remedy and allows for the recognition of “the right of every individual to claim the protection of the laws, whenever he receives an injury” (Marbury v. Madison, 5 U.S. at 137), can be considered as an expression of the due process of law as developed since the Fourteenth century (1354 Liberty of Subject Act, 28 Edward 3 and 1368 Observance of Due Process of Law Act, 42 Edward 3). 2 See, L. Tribe, American Constitutional Law,(New York, 1978) § 8-2, and his provocative work The Invisible Constitution, (Oxford, 2008). 376 chapter twenty degree of autonomy in their stafffĳing and in the settlement of disputes between the organization and its offfĳicials.3 The existence of this autonomous system of international administrative justice has been accompanied by the development of a regime of immunities for international organizations before national courts. This model has been largely developed along the lines of State immunity.4 Immunity from local jurisdiction gave international organizations a solid basis for their functional independence. At the same time, it left the rights of international offfĳicers outside the legal protection of national courts. This was done in order to secure – among other things – a uniform system for the legal treatment of individuals of diverse nationalities and subject in their home countries to diffferent legal rules. In its early days, national courts were ready to abstain from exercising jurisdictional powers over disputes related to labour rights and grievances of international public servants.5 In parallel to the recognition of its immunity by national courts, international organizations developed their own dispute settlement procedures for dealing with employment relations. These systems were largely drawn from the French contentieux administratif. From it and along with its goal of limiting the exercise of power by the administration, they also developed a procedure inspired in its principles: contradictoire, inquisitorie, ecrite6, somehow afffected – at a later stage – by the influence of the common law in the rules governing evidence and in the form and justifĳication of the decisions.

3 See, among others, F. Seyersted, Common Law of International Organizations, (Brill, 2008), pp. 277–278; A. Gordillo, El Derecho Administrativo de la Emergencia, Buenos Aires, 2003, vol. II, pp. 285–298; C.F. Amerasinghe, “International Administrative Tribunals in the U.N. System”, in R.J. Dupuy, Manuel sur les Organisations Internationales, ADIH, 2nd. ed., (Martinus Nijhofff, 1998), pp. 206–358; H.G. Schermers & N.M. Blokker,N.M.International Institutional Law, 3rd. ed. (Martinus Nijhofff,1995), pp. 434–439. 4 See, among others, J. Dufffar, Contribution à l’étude des Privileges et Immunités des Organisations Internationales, (Paris, 1982). 5 In general see, A. Cassese, International Law, (Oxford University Press, 2001), pp. 70–75. Since the early days, immunity was rooted in the concept of international organizations as entities of international law with a distinct legal personality. Relevant is the fact that such characterization was largely inspired in a decision from a national court in a labour grievance: Istituto internazionale di Agricoltura v. Profĳili, Corte di Cassazione, in Rivista di Diritto Internazionale, 23 (1931) pp. 386–389. 6 R. Chapus, Droit du Contentieux Administratif, (Montchrestien, 2006) and A. Pellet, Les Voies de Recours Ouvertes aux Fonctionnaires Internationaux, (Pedone, 1982). due process in human rights and adjudication mechanisms 377

B. The Due Process Challenge

Dispute settlement procedures and tribunals instituted for the adjudication of controversies and grievances between international public servants and their employers predated the emergence of the wide spread development of procedural human rights7 as well as the refĳinement of the contentieux adminsitratif.8 Furthermore, international tribunals developed largely isolated from the evolution of industrial labour dispute settlement processes to be witnessed in the majority of European countries after the end of the Second World War.9 The result of this way of developing, as expressed in relation to the Administrative Tribunal of the International Labour Organization (ILOAT) is that international administrative tribunals are “neither a criminal nor a civil court of law; nor… a court of human rights”.10 They are appellate bodies open to offfĳicials of international organizations only after all internal remedies have been exhausted and a fĳinal decision by the head of the organization has been taken. Judgments of these tribunals are fĳinal. Nonetheless, international administrative tribunals do not operate in a vacuum nor are they exempt from scrutiny, as has become increasingly apparent. The increased emphasis on the requirements of the due process of law and the expansion of the rule of law in many areas of the world during the second half of the last century were also accompanied by an increasing demand for accountability of international organizations.

7 In this respect it is useful to consider the universal and regional human rights conventions as well as its domestication in a large number of countries. See, T. Buergenthal, “The Normative and Institutional Evolution of International Human Rights”, Human Rights Quarterly, 19 (1997) pp. 703–723. 8 It will be enough to recall that even if the droit de defense had become a principle of the French contentieux administratif since 1945 (arête Aramu), a long road was still ahead for administrative justice to develop as a safe guard of individual and collective rights in front of governmental actions. 9 X. Blanc-Jouvan, G. Giugni, T. Ramm, and F. Schmidt, Labour Courts and Grievance Settlement in Western Europe, (University of California Press, 1972) and G. Giugni, Diritto Sindacale, (Bari, 2006). 10 A good example is found in C. Comtet-Simpson. “The ILO Administrative Tribunal”, (Geneva, 2009) in http://www.ilo.org/public/english/tribunal/ (last visited Aug 2, 2011). 378 chapter twenty

A new scenario was set where the work of international adjudication bodies and the immunities of international organizations were to be challenged precisely in the name of due process of law.11 International organizations engaged in the process of aiding the expansion of the rule of law and in the development of human rights could not justify their non-adherence to such high standards in the settlement of grievances between their administrators and its offfĳicials.12 As is well-known to legal scholars and practitioners, due process of law is one of those key notions that have not been (and probably can not be) strictly defĳined. The idea of due process connotes no precise and unequiv- ocal meaning and is susceptible of alluding to diffferent objectives. It is to be noted that its legal formulation -in constitutional texts and in international human rights instruments – is not (nor could it be) uniform. Nonetheless it essentially provides for “a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law” (Article 6, European Convention on Human Rights). Due process is to some extent a paradigm for the exercise of judicial controls over administrative actions. The notes of legality, reasonableness and fairness are those that generally come to mind when due process is invoked. Its content, objectives and scope tend to evolve and move in order to better reflect the balances of power within society (as well as the particular idiosyncrasies of those who enforce it). In an insightful remark made in 2007 the then Executive Secretary of the World Bank Administrative Tribunal (WBAT), Nassib Ziadé, expressed: “times are changing quickly. Practices that were considered unobjectionable twenty years ago would be highly problematic today and could give national courts grounds to pierce a tribunal’s veil of independence”.13

11 B. Kingsbury and R. Stewart, “Legitimacy and Accountability in Global Regula- tory Governance: The Emerging Global Administrative Tribunals of International Organizations” at http://www.iilj.org/aboutus/documents/GAL.UNATAug82008 (last visited Aug 2, 2011). 12 As is well known, the International Court of Justice asserted that international organizations have a general obligation to affford judicial or arbitral remedies to its own stafff for the settlement of any dispute, and that its absence would “hardly be consistent with the expressed aim of the Charter to promote freedom and justice” Efffects of Awards of Compensation Made by the United Nations Administrative Tribunal, 1954, ICJ Rep. 47. 13 Ziadé, N. “The independence of International Administrative Tribunals”, 2007, in http://pahostafffassociation.org/fĳiles/docs/Legal/WBAT (last visited Aug 2, 2011). due process in human rights and adjudication mechanisms 379

The shortcomings of international administrative adjudication have been pointed out in academic analysis,14 in pungent advocacy presentations,15 in United Nations General Assembly resolutions16 and in court decisions.17 Furthermore, offfĳicers of international organizations have also expressed their dissatisfaction with the adjudication system. The discontent with the administrative adjudication system as applied by international organizations and tribunals have been summarized in the words of the United Nations General Assembly resolution on the administration of justice: slow, cumbersome, inefffective, lacking in professionalism and with a system of administrative review that is flawed. The establishment of a new system for the United Nations was announced, by the same General Assembly, as one to be based on several criteria: independence, transparency, professionalism, sufffĳiciently resourced, decentralized and “consistent with the relevant rules of international law and the principles of the rule of law and due process to ensure respect for the rights and obligations of stafff members and the accountability of managers and stafff members alike” (A/RES/61/261). It can be argued that the implied inadequacy of international administrative justice with due process is precisely what has to be addressed with more urgency. Due process has become a benchmark for all types of administrative and judicial decisions at the State level and from there to the international arena,18 Moreover, it is widely considered that the proper function of any administrative justice procedure is precisely to ascertain that decisions that afffect individual’s rights and entitlements are taken

14 A. Reinisch. “The Immunity of International Organizations and the Jurisdiction of their Administrative Tribunals”, in 7 Chinese Journal of International Law 2, 2008, pp. 285–306 and A. Reinisch and U. Weber, “The jurisdictional Immunity of International Organizations, the Individual’s Right of Access to the Courts and Administrative Tribunals as Alternative Means of Dispute Settlement”, International Organizations Law Review 1, 2004, pp. 59–110. 15 For instance, Geofffrey Robertson, Q.C. presentation in Geneva in 2004 and later on his report to the United Nations Stafff Union in 2006, http://www.geofffreyrobertson.com/pdf/ AR-M700U_20060719_143309.pdf (last visited Aug 2, 2011), and E.P. Flaherty, and S. Hunt, “Rule without Law: Injustice at the United Nations?”, http://www.iowatch.org/ FlahertyHuntGPQ.pdf (last visited Aug 2, 2011). 16 UN.A/Res/61/261, dated 30 April 2007. 17 See among others, the French decision of the Chambre Sociale de la Cour de Cassation in Banque africaine de développement v. M.A. Degboe (2005) nr.04-41.012, in http://www .courdecassation.fr 18 In this respect it is worth noting that even decisions adopted by the United Nations Security Council under Chapter VII of the Charter have to comply with due process requirements. See, B. Fassbender, Targeted Sanctions and Due Process, Berlin 2006 (Study commissioned by the UN Offfĳice of Legal Afffaires). 380 chapter twenty in accordance with procedural fairness.19 Therefore, the mechanisms instituted by international organizations in order to settle disputes between them and their offfĳicers have to comply with such high standards.20 Compliance with due process is not only a desideratum to be achieved for the purpose of securing justice; it is also a sine qua non for ensuring the proper functioning of international organizations with independence from individual States parties. Host countries of international organizations are obliged by national laws and international conventions to secure the empire of due process and to affford their citizens and to those individuals living in the territory under their jurisdiction full protection of their rights. Whenever a denial of justice or a miscarriage of it is committed, national courts or international tribunals might be put in motion in order to secure redress. Immunities derived from host country arrangements or from privileges and immunities agreements will be scrutinized or, in extremis, ignored in the name of due process.

C. Some Signs of the Current Tension between Immunities and International Administrative Adjudication

Many international courts have regarded absolute immunity of international organizations as a concrete requirement derived from Article 103 of the United Nations Charter and from the Convention on Privileges and Immunities of the United Nations adopted before the end of the fĳirst half of the past century. In many cases, the “immunity from suit” has been regarded as a principle of customary international law and some national courts were to enforce it even in the absence of a siege agreement.21 However, in recent times some national courts have declared themselves competent to hear and decide labour disputes of offfĳicers serving international organizations. The departure form the common trend has been the result of diffferent factors. For European courts, as will be discussed below, the conformity of administrative procedures with human rights standards has been a key factor when absolute immunity is questioned. The consistency and

19 See M. Gentot, “Le contrÔle du pouvoir discretionnaire par les tribunaux administratifs internationaux”, in N. Ziadé (ed.) Problems of International Administrative Law, (Martinus Nijhofff, 2008), pp. 23–30. 20 As to the global application of due process see the interesting remarks contained in S. Cassese, “The Globalization of Law”, in 37 New York University Journal of International Law and Politics, (2005), pp. 973–993. 21 This is the often quoted decision of the Supreme Court of The Netherlands in A.S. v Iran-United States Claims Tribunal of 20 December 1985. due process in human rights and adjudication mechanisms 381 prestige of the European Court of Human Rights has largely supported this trend. But the tensions are not only confĳined to the old continent, they are also apparent in other areas of the world. In recent years labour courts in Central and South America have been receiving a considerable number of claims against international organizations. In general, courts have recognized the immunity from jurisdiction but arguments related to “equality of arms” among the parties, efffectiveness of legal representation, access to justice and the nature of the procedures are slowly building the ground for further challenges. In some cases national courts have completely ignored international organizations’ immunity from legal process, even if they have maintained the immunity from enforcement of judgments. Venezuela is a case in point. The Venezuelan Tribunal Supremo de Justicia has established that Venezuelan labour courts are competent to decide employment cases brought by Venezuelan national against international organizations.22 In these decisions the courts have not questioned or even considered whether the internal processes affforded to stafff members were in accordance with the due process clause of the Venezuelan Constitution. They limited themselves to declaring that labour rights of Venezuelan nationals, working in their country, shall be adjudicated – as a matter of law – by Venezuelan labour courts under the basis of the doctrine of “public order”. Since the immunity of international organizations against execution has been maintained, former offfĳicers of international organizations who have been successful in their cases before the labour courts remain in a state of “justice denied”. To a large extent the reasons behind this ruling are to be found in the all-encompassing nature of Venezuela’s labour legislation23 and in prior decisions that have considered that immunities do not apply to the adjudication of labour grievances of nationals working for foreign embassies or international organizations. At the bottom of these judicial decisions lies the conception of labour law as an instrument that has to be adapted for the protection of the “weak”. Relevant are also the decisions adopted by Brazilian tribunals. The Supreme Court of Labour of Brazil has recently determined that international organizations – as well as foreign States – do not enjoy absolute

22 Sentencia No. 01967, Sala Político Administrativa del Tribunal Supremo de Justicia, 18.09.2001 and –among many- Francisco Franco Dorta v FAO, Juzgado Séptimo de Primera Instancia de Juicio de Trabajo, Caracas, 27.06.2007. Reportedly, there are currently more than 100 law suits concerning the alleged violations of social rights of Venezuelan nationals who were stafff members of international organizations. 23 Article 10, Ley Orgánica del Trabajo (Republica Argentina). 382 chapter twenty immunity from jurisdiction in labour related issues. The rationale of this ruling has been found in the well known distinction between acts iure imperii and acts iure gestioniis only recognizing immunity for the former.24 The court has also stressed that functional immunities provided to international organizations have to be contained in express agreements and that such agreements could not contain immunities on labour related issues, due to the “social nature” of labour rights. Considerations not entirely diffferent from those used by European courts have also emerged in Argentina. Immunities of international organizations have been sustained only once the organization has demonstrated that appropriate internal proceedings for the settlement of the dispute are in force and are accessible to the complainant.25 It is relevant to note that the Argentinean court considered that the distinction between acts iure imperii and acts iure gestioniis was not operative in the decision of the Argentinean Supreme court; instead, it considered that the relevant question was whether or not the immunity amounted to a denial of justice and, as such, an act contrary to the due process of law clause contained in the Constitution.26 Thus, national human rights instruments, the fundamental norms of which are also frequently to be found in international human rights instruments, are increasingly forming the basis for a challenge to immunities traditionally affforded to international organizations and its justice mechanisms because such remedies have been perceived to lack the minimum protections and safeguards that are regarded as fundamental. In this sense, the evolution of human rights – and particularly due process – has become a factor in the evolution of immunities. Judicial immunities of international organizations have been consistently challenged before European courts, both national and regional. Just in the last few years, courts in France, Belgium, the Netherlands and England have decided cases where the immunities provided to international organizations have been challenged on the grounds of due process.27

24 Estevao de Castro Melo v. UN-UNDP (RR-295/2004-019-10-00) dated 01.04.2009 and Cilene Maria Holanda Salaoio v. UNESCO (RR-574/2004-013-10-001) dated 26,09.2007. 25 Duahlde, Mario Alfredo v. Organización Panamericana de la Salud, Sentencia de la Corte Suprema, D.73, XXXIV, 31.08.1999. 26 Article 18, Constitución Nacional de la Republica Argentina. 27 See, inter alia, French Cour de Cassation, Chambre Sociale, arret 265 FS-P+B+R, in the case of Beaugrenier v. UNESCO, 11 February 2009; in 2009 the Belgium Cour de Cassation had to determine whether the appeals board of an international organization did meet the requirements of due process as set forth in Article 6 of the European Convention on due process in human rights and adjudication mechanisms 383

It is fair to say that these cases have been decided –borrowing the title of Reinisch and Weber’s comprehensive article28 – “in the shadow of Waite and Kennedy”. In this landmark decision rendered more than ten years ago, the European Court of Human Rights pointed out that a “material factor” in determining whether immunity from jurisdiction was permissible under the due process rule contained in Article 6 of the European Convention on Human Rights was whether reasonable and efffective means were available for the protection of the rights of offfĳicers working for international organizations.29 As Ziadé has explained30 in the light of these decisions the independence of administrative tribunals became a crucial issue in the determination of whether or not there was a risk of a denial of justice. At least in two national jurisdictions, Belgium and France, lower labour courts have been prompt to waive immunity on the ground of lack of internal administrative mechanisms for addressing employment grievances even if the courts of appeal – cours de cassation – have overturned such decisions or have interpreted them in a somewhat incoherent fashion.31 The question of independence of administrative dispute settlement procedures available to stafff members of international organizations has not been the only one raised by national and international courts when deciding on challenges to immunities. The nature and character of the administrative procedures are now scrutinized. In the decision rendered by the Dutch Supreme Court in the case of X v. EPO the consideration of oral hearings was raised.32 Well-known is the fact that international

Human Rights revising the decision of the lower labour court (Siedler); in The Netherlands, the Supreme Court, First Chamber, in the case of X v. EPO, 08/00118, 23 October, 2009 dismissed the appeal against the decision of lower court that had held the immunity of EPO in a labour dispute; in England the Queen’s Bench Division was asked to ascertain whether the immunity of UNESCO and its dispute settlement procedures (arbitration on a commercial matter) were in compliance with the requirements of due process, Entico Corporation Ltd. v. Unesco, (2008) EWHC 531. 28 A. Reinisch and U.A. Weber, “In the shadow of Waite and Kennedy”, International Organizations Law Review 1: 59–110, 2004. 29 Waite and Kennedy v. Germany (application no. 26083/94) and Beer and Regan v, Germany (application no. 28934/95), 18 February 1999. 30 Ziadé, op. cit., supra, note 13. 31 A recent example is the Belgian case Siedler v. Union de l’Europe occidental, decided by the labour court of Brussels in September 2003 and by the Cour de Cassation in December 2009 upholding the refusal to recognize immunity due to the lack of and independent adjudication mechanism, but determining that in the determination of the substantive employment rights the rules of the organization-and not national rules- were to be applied. 32 Supra, n. 27. 384 chapter twenty tribunals seldom use oral hearings33 even when parties ask for them. For the Dutch Supreme Court, a proper interpretation of Article 6 of the European Convention on Human Rights might lead national courts to consider that if a tribunal systematically refuses “well-reasoned request[s]” for public hearings a breach of due process will be taking place and its redress will become a problematic issue. The absence of public hearings, as an infringement of Article 6 of the Convention, was also raised before the European Court of Human Rights in the recently decided case of Gasparini v. Italy and Belgium.34 The Court determined that in the case at hand oral hearings were not a constitutive condition of fairness in terms of Article 6 of the European Convention on Human Rights particularly when the absence of such hearings was justi- fĳied by the need to keep proceedings “dispassionate in the specifĳic context of an organization such as NATO”.

D. Final Considerations

After this incomplete review of certain trends that are emerging in the current relations between national and international courts and the administrative settlement of grievances between international organizations and their offfĳicers, I do not attempt to undermine the well-grounded view that international administrative justice is fundamentally rooted in the principles of due process. It has been my purpose to point out certain tensions that might make it desirable to embrace those reforms that the system requires in order to advance in the pursuit of justice and fairness. The justice system in force for the settlement of disputes and grievances of offfĳicers of international organizations is generally considered to be, by and large, compliant with human rights standards. The tensions between immunities and rights are to some extent the result of diffferent perceptions and rules applied by administrative judicial bodies and those of States and regional courts. Tensions and adjustments of immunities affforded to international organizations are in a sense in correlation with

33 A case in point is the practice of the ILOAT. Even if its rules of procedure contemplate oral hearings as a measure of investigation and that in 2008 the Statute of the Tribunal was amended in order to clarify that the tribunal “at its discretion, may decide or decline to hold oral proceedings, including upon request of a party”, no oral hearings have taken place since 1989 (Judgment 986), while in its early years they were not entirely uncommon (See, among others, Judgments 26, 28, 29, 121, 122, 133, 137). 34 Gasparini v. Italy and Belgium, (No 10750/03) Decision 12.5.2009. due process in human rights and adjudication mechanisms 385 the evolution of absolute sovereign immunity (par in parem non habet imperium), abandoned many decades ago and alien to the current legal globalization. Concern for fairness and due process has not been entirely absent in some decisions of international administrative tribunals. It will sufffĳice to review the way in which the “general principles of law” and “due process” has been applied in dozens of cases decided, for instance, by the ILOAT or their signifĳicant developments in decisions of the WBAT. As is well-known to us, one of the beauties of the law is that there is always room for improvement. Issues such as oral hearings, appeals and enhancement of the locus standi will remain on the agenda for the immediate future. When considering the road ahead there is, in some quarters, the temp- tation to dismantle the regime of immunities, to allow a broader intervention of domestic courts in the settlement of employment cases and also to expand the jurisdiction of human rights courts into the arena of administrative tribunals. In these tendencies there is – as in so many things in life – a promising dream that risks ending in a nightmare if left unbridled. Immunities are not impunities and they are a guarantee of independence without which international organizations cannot properly accomplish the goals that have presided their creation. To leave the decision of employment cases in the realm of domestic courts will certainly contribute to the emergence of a normative system that will cancel the certainty and uniformity that is essential in the development of a strong and independent corps of international public servants. The risk is real. It is up to international organizations and their administrative tribunals to keep on adjusting and developing better and stronger mechanisms that will keep them moving in a direction that expands their legitimacy. This is the challenge. As a fĳinal reflection on how this task can be accomplished, I fĳind it appropriate to quote the wise words of one the great judges of the last century, Lord Denning. In a case dealing precisely with immunities, but equally pertinent to due process, the then Master of the Rolls said: “It is, I think, for the courts…to defĳine the rule as best they can, seeking guidance from the decisions of the courts of other countries, from the jurists that have studied the problem, from the treaties and conventions and above all, defĳining the rule in terms which are consonant with justice rather than adverse to it”.35

35 Trendtex Corpn. v Central Bank of Nigeria 2 W.L.R. (1977) 365.

CHAPTER TWENTY-ONE

CONFLICTS OF INTEREST IN INTERNATIONAL ADMINISTRATIVE LAW

Nassib G. Ziadé

I have the sad privilege of being the last speaker of the day, at a time when everything has been said, watches and BlackBerries are being checked to ensure that trains or planes are not being missed, or at best that the cock- tail reception is not being delayed. It is, however, my great pleasure to be among so many friends today, and to take part in this very fruitful and vibrant discussion. The topic which was assigned to me is that of conflicts of interest in international administrative law. This topic can admittedly be quite broad and has certainly evolved in recent years. There are fĳirst the obvious cases of conflicts of interest which are easily discernable to an average observer. To give but one example, a judge who gives legal advice or provides to one of the parties an expert opinion on a dispute and then sits on the tribunal and fully participates in its deliberations and decision-making process with respect to the same dispute would put himself in an untenable conflict of interest. I am unaware of any instance of a judge engaging in such conduct in the context of international administrative law. Therefore, obvious cases of conflicts of interest will not be discussed. Instead, what I propose to explore are situations that have the potential of raising more nuanced conflicts of interest. Most of these situations would likely have gone unno- ticed twenty years ago. But as the rules of transparency are becoming more stringent, and as many national courts today require proof of the availability of efffective, independent and impartial alternative dispute- resolution mechanisms within the institutions as a condition for upholding their immunities, it would be prudent to take these situations into account. I will discuss in turn the appointment of tribunal judges, the compatibility of their jobs with other work that they may wish to perform, the status of the members of the tribunal secretariats, most notably the registrar, and ideal conditions under which the tribunal and its secretariat could function without undue interference from the institution. 388 chapter twenty-one

The fĳirst issue that I would like to discuss relates to the appointment of the members of international administrative tribunals. It can fĳirst be noted that such appointments are, with a few exceptions, made by the governing body of the organization. More interesting for our purposes, however, is the manner in which candidates are identifĳied for nomination. For some tribunals, proposals are made by Member States, without input from the organization or stafff representatives. For other tribunals, the process is carried out within the organization, and involves, by statute or practice, consultation with stafff representatives. In any of these methods, there is a risk that the appointment process will become politicized and will raise issues of impropriety. To avoid such a risk, there was a serious discussion at the time of the establishment of the United Nations Administrative Tribunal (UNAT) as to whether the International Court of Justice (ICJ) should appoint the Tribunal’s members. This approach was ultimately rejected in favor of an appointment by the U.N. General Assembly. At present, it is only the Council of Europe Administrative Tribunal (CEAT) that has members, in this case the Chair and Deputy Chair, selected by an outside body, the European Court of Human Rights. Another approach to selecting tribunal members is to balance internal competing interests with outside experts to be involved in the process. In recent years at the World Bank, advisory committees have been appointed to identify suitable candidates for Tribunal membership. These committees have been composed of management and Stafff Association representatives, and each has included an outside expert. Today, the outside expert is to be appointed by the Bank President after consultation with representative members of the stafff selected by the Stafff Association. Similarly, in 2008, the United Nations General Assembly mandated the creation of a fĳive-member Internal Justice Council which, among its many tasks, rec- ommends candidates to the General Assembly for the newly created United Nations Dispute Tribunal and United Nations Appeals Tribunal. The Council consists of a stafff representative, a management representative, and two distinguished external jurists, one nominated by the stafff and one by the management. The Council is chaired by another distinguished jurist chosen by the consensus of the other four members. I would submit that this sort of involvement by outside experts and jurists can only strengthen the integrity of the selection process, and that this practice should be adopted by organizations whenever possible. With respect to the length of appointments, a question has arisen whether the renewal of appointments should be allowed, and if so, under conflicts of interest in administrative law 389 what conditions. It may be said in support of the non-renewability of terms that it enhances the appearance of independence of tribunal members. On the other hand, a tribunal whose members are allowed to serve for long periods of time is likely to assemble a solid body of doctrines and to set down fĳirm roots that ensure jurisprudential continuity. There is today a growing opinion among experts that judges should be appointed for a long (say ten- or twelve-year) but non-renewable term. As early as 1954, the Institut de droit international in its Resolution of Aix-en-Provence proposed that the judges at the International Court of Justice serve for non-renewable terms of fĳifteen years. As you know, this recommendation was not followed, and ICJ judges continue to be appointed for renewable terms of nine years. More recently, however, the Statutes of the United Nations Dispute Tribunal and United Nations Appeals Tribunal provide that their judges will be appointed for one non- renewable term of seven years. As things stand today, the vast majority of the statutes of the international administrative tribunals allow for the renewal of the terms of the judges, though some of them provide for term limits. Although the renewal of a term is not automatic and might not happen, for instance, for purposes of ensuring geographical representation and gender balance, it is important to prevent non-renewal from being used as a sanction against a judge for improper reasons. In this respect, the involvement of outside experts in the selection process is crucial for guaranteeing its legitimacy. Another issue which may be raised in the context of tribunal appointments is the issue of tribunal judges coming from the stafff or later becoming stafff members. It is commonly established in tribunal statutes that current stafff members cannot serve as tribunal members. Some tribunal statutes, such as those of the Administrative Tribunals of the African Development Bank, the Asian Development Bank, the Inter-American Development Bank, the IMF and the World Bank, prohibit even former stafff members from serving as tribunal members. Conversely, several tribunal statutes place conditions on the eligibility of tribunal members to become stafff members following the expiry of their appointment. The Statutes of the Asian Development Bank Admin- istrative Tribunal and of the African Development Bank Administrative Tribunal provide that tribunal members will be ineligible to become stafff members of the organizations for a period of fĳive years after the expiry of their appointment, and the Statute of the Inter-American Development Bank Administrative Tribunal introduces a similar restriction for a shorter period of two years. As to the recently established United Nations Dispute 390 chapter twenty-one

Tribunal and United Nations Appeals Tribunal, their Statutes prohibit the judges from obtaining any appointment within the United Nations, except for judicial posts, for a period of fĳive years following the end of their terms of offfĳice. The World Bank Administrative Tribunal Statute has since July 2001 prohibited Tribunal members from ever obtaining employment with the organization, and the International Monetary Fund Administrative Tribunal Statute has in an amendment of 2009 followed suit. These policies clearly represent a healthy approach because they help to shield the tribunals from real or apparent conflicts of interest. It may be noted in the same vein that several tribunal statutes provide that their members “shall be completely independent” in the discharge of their duties, “shall not receive any instructions”, or “be subject to any constraint”. Having touched on the appointment of tribunal members, the next issue that I would like to discuss is the compatibility of the position of a judge in an international administrative tribunal with the other functions that the judge may wish to perform. This question is particularly relevant as the vast majority of judges sitting on international administrative tribunals do so on a part-time basis. The fĳirst question in this respect is whether a person may serve simultaneously as a judge on several international administrative tribunals. This scenario is not only permissible; it is indeed desirable. The fĳirst judgment of the World Bank Administrative Tribunal, in the de Merode case, emphasized that the “judgments of one tribunal may refer to the jurisprudence of another”, and noted that there is a tendency towards a certain rapprochement among international administrative tribunals. It is believed that the appointment of the same individuals to diffferent tribunals will further contribute to this rapprochement among the various tribunals, and will ensure a minimum level of consistency in the solutions reached among them. The second question is whether a judge on an international administrative tribunal may simultaneously serve as a counsel in a case pending before a diffferent international administrative tribunal, or advise another international institution on matters of employment relations. There will always be purists who insist on drawing a bright line between advocacy and judicial decision-making. However, short of an express prohibition in the governing statutes, it is believed that the combination of both roles is permissible as long as the advocacy does not concern a controversial question which is frequently raised before the tribunal on which the person sits as a judge. In any event, judges can always recuse themselves from a conflicts of interest in administrative law 391 case if they have advocated a position as counsel on a legal question raised in the case in a manner which may reasonably appear to afffect their independence or impartiality in the case to be judged. The obligations of a judge do not end at the expiration of the judge’s term of offfĳice. As Protocol (No. 3) on the Statute of the Court of Justice of the European Union provides, judges have the “duty to behave with integrity and discretion as regards the acceptance, after they have ceased to hold offfĳice, of certain appointments or benefĳits”. Two questions come to mind in this respect. The fĳirst is whether a judge in an international administrative tribunal may act after the expiry of his or her term as a counsel before a diffferent administrative tribunal. The answer to this question is unequivocally positive. A more complicated question is whether a former judge on an international administrative tribunal can later act as counsel before the same tribunal, though diffferently constituted. The tribunal statutes are all silent on this question. If the issue arises, guidance can be provided by Practice Direction VIII of the International Court of Justice, which requests that parties to cases before the Court refrain from designating as counsel or advocate a person who in the three years preceding the date of the designation was a Member of the Court, a judge ad hoc or a high offfĳicial in the Registry. In other words, a former judge is asked to allow three years to lapse before acting as counsel under the jurisdiction where he or she used to serve. Along with the appointment of judges and the compatibility of their roles with other functions that they may wish to perform, comes the issue of the removal of international administrative tribunal judges. The fact that a judge cannot be removed without a decision being taken by other judges on the tribunal constitutes a fundamental safeguard of the judge’s independence. The Statute of the IMF Administrative Tribunal allows the Managing Director of the Fund, and the Statutes of the African Devel- opment Bank Administrative Tribunal and of the Asian Development Bank Administrative Tribunal allow the Boards of Directors of those two institutions, to terminate the appointment of a judge only if he or she is “unsuited for further service” in the unanimous opinion of the other judges. The Statute of the International Court of Justice goes even further and leaves the decision to remove a judge exclusively in the hands of the other judges. An ICJ judge can be terminated only through a unanimous decision by all other judges, and such decision will be notifĳied to the Secretary-General of the United Nations without any involvement on 392 chapter twenty-one his part. The ICJ mechanism for terminating a judge’s service provides the maximum assurance that the independent functioning of the tribunal will not be interfered with in a manner which could raise the specter of conflicts of interest. It is praiseworthy that the World Bank decided in a recent Resolution of the Executive Directors to follow the ICJ model, with only a slight variation. The appointment of a World Bank Administrative Tribunal judge can be terminated if at least fĳive of the six other members of the Tribunal agree that he or she has become unsuited for offfĳice. A very strong majority (fĳive judges out of six) is more appropriate than the requirement of unanimity because it will ensure that one judge, for personal reasons, will be unable to block an otherwise unanimous decision. The most important element here is that the decision remains fully in the hands of a very strong majority of the tribunal. It would be insufffĳicient to develop safeguards for the appointment of tribunal members and the functioning of the tribunals without some form of protection being provided with respect to the appointment of the head of the secretariat, which is the administrative arm of the tribunal. The dif- fĳiculty stems from the fact that the registrar or executive secretary is very often a stafff member of the organization, and is at the same time responsible only to the tribunal and under the exclusive authority of the tribunal president. This hybrid function is often a delicate one, although the registrar’s ultimate loyalty must lie with the tribunal. Most tribunal statutes allow the head of the organization to designate the tribunal’s registrar. In practice, however, the tribunal (or at least its president) is consulted before a designation takes place, if the tribunal is not invited to identify candidates itself. If the appointment of the tribunal’s registrar by the head of the organization, after consultation of the tribunal, falls within acceptable norms, the situation is diffferent with respect to the renewal of the registrar’s term. In other words, the situation of the registrar at the time of his or her initial appointment cannot be equated with his or her situation after the completion of a term in offfĳice. I would submit that the decision on the registrar’s term renewal should be left entirely to the tribunal after consultation with the institution’s senior management. Indeed, according to several tribunal statutes, the tribunal’s registrar “shall be responsible only to the Tribunal” and “shall act only under the direction of and within the procedures approved by the Tribunal”. It is well-established that an entity having exclusive authority over an individual must also have exclusive authority over any personnel action relating to this individual, including re-appointment or renewal of his or her contract. Having handled, during conflicts of interest in administrative law 393 his or her fĳirst term in offfĳice, cases in which the institution was invariably a party before the tribunal, the registrar should not be put in a position where re-appointment is decided by that party. Such a scenario would be problematical as it could create a climate where tribunal judges might be apprehensive about the registrar’s vulnerability to being influenced by his or her prospects for re-appointment by the institution. I believe that the best way to strengthen the independence of the registrar, and to allow the registrar to perform his or her job free from undue interference, is to have this offfĳicial elected solely by the tribunal. This method was introduced fĳirst by the International Court of Justice, and has more recently been adopted by the International Criminal Court, although those courts admittedly perform diffferent functions from those of international administrative tribunals. More relevantly, it is a pleasure to report that the Statute of the Bank for International Settlements Administrative Tribunal has established exactly this type of process. In many organizations, the tribunal’s workload is sufffĳicient to justify having a registrar work on a full-time basis. A difffĳiculty arises, however, when the volume of work does not reach this level. One possibility then is to have the registrar work simply on a part-time basis. A less satisfactory possibility, which is still the practice in some organizations, is to have the registrar work part-time for the tribunal and part-time in a position elsewhere in the organization. The latter system was in place until four or fĳive years ago at the Council of Europe Administrative Tribunal (CEAT). On two occasions, the Registrar asked to be excused from working on a case because of an apparent conflict. On two further occasions, one of the parties unsuccessfully requested that the Registrar be replaced for a particular case. This scenario is unlikely to happen again in the future, however, because the CEAT Registrar now works full-time for the Tribunal, and because the CEAT in 2002 forbade his recusal in a case on the basis that the Registrar plays only a supporting role and that the judges alone decide cases. Once a tribunal is constituted, it is of course critical that its full operational independence and budgetary autonomy be assured and observed at all times. This means that tribunal judges shall have security of tenure, of remuneration and of other essential conditions of service during their statutory term of offfĳice. It also means that the tribunal and its secretariat shall exercise their functions free from interference, influence, induce- ments or pressures, whether direct or indirect. This freedom shall apply to the tribunal’s judicial process in pending cases, to the operation of the tribunal and its secretariat, and to the administration of the tribunal 394 chapter twenty-one budget. Beyond banning obvious means of asserting pressure on individual judges or the tribunal as a whole, this principle should be extended to include assurances that a tribunal’s internal division of work will remain confĳidential, that the tribunal will have sole responsibility for the management of its judicial activities, and that the tribunal shall maintain sole control of its secretariat, its stafff and its budget, even if this last area is subject to standard auditing. * * * I would like to conclude on a more personal note on the occasion of this, the thirtieth anniversary of the World Bank Administrative Tribunal. I was involved in the work of the Tribunal for a decade during the adoles- cence of the Tribunal’s life. At a time when the Tribunal is celebrating today its mature age, and reflecting on the most crucial issues confronting international administrative tribunals, I am grateful to the Tribunal President and esteemed members of the Tribunal Secretariat for willingly inviting a has been to this celebration. When, ten years ago, the Tribunal marked its twentieth anniversary in Paris with glamour and champagne, its then-President, the ever-present Bob Gorman, expressed the view that that Conference should be the beginning of a series of continuing conver- sations among international administrative tribunals. I trust that you will agree with me that despite its changes of guard over the years, the World Bank Administrative Tribunal has managed to keep all of its promises and has lived up to all expectations. PART V CONCLUDING REMARKS

CHAPTER TWENTY-TWO

THE ROLE OF INTERNATIONAL ADMINISTRATIVE LAW

Melissa Su Thomas & Olufemi Elias

The law of the international civil service has come a very long way from the circumstances that led the General Assembly of the United Nations to request an advisory opinion from the International Court of Justice regarding the legal efffect of decisions of the United Nations Administrative Tribunal more than half a century ago.1 The question that this book has sought to address is the extent to which the development of this law has resulted in a body of rules and practice that provides efffective access to justice for members of stafff of international organizations who do not have recourse against their employer before domestic courts because of the immunities of international organizations from national jurisdictions.2 Much of the recent discussion of international administrative law takes place in the context of the broader question of the accountability of international organizations, i.e. if international organizations are immune from the jurisdiction of the courts of the places in which they conduct their operations, are their activities subject to an efffective and meaningful legal regime?3 This is understandable; the matter has arisen before national

1 See P. Dallari, “Administrative Tribunals of International Organizations and World Constitutionalism”, Chapter Three supra, text accompanying nn. 1–2, who identifĳies a number of diffferent phases in the development of the role of administrative tribunals. 2 K. Wellens and M. Shaw, International Law Association Committee on the Account- ability of International Organisations, Final Conference Report, Berlin (2004) , pp. 38, 48. 3 Id. See also, e.g., N. Ziadé, “The Independence of International Administrative Tribunals”, unpublished paper presented at the World Bank Administrative Tribunal Conference 27 March 2007; A. Reinisch, “The Immunities of International Organizations and the Jurisdiction of their Administrative Tribunals”, 7(2) Chinese Journal of International Law (2008), pp. 285–306; O. Elias and M. Thomas, “Administrative Tribunals of International Organizations”, in The Rules, Practice and Jurisprudence of International Courts and Tribunals, C. Giorgetti (ed., 2012), p. 159, at pp. 184–188; and B. Kingsbury and R. Stewart, “Administrative Tribunals of International Organizations from the Perspective of the Emerging Global Administrative Law”, Chapter Four supra, text accompanying n. 32. 398 chapter twenty-two courts in various parts of the world, and is topical.4 But this recent focus may have obscured somewhat the reasons why international administrative law and tribunals exist in the fĳirst place, and therefore a lack of attention has been paid to other important roles played by international administrative law beyond simply serving as a justifĳication for the immunities of international organizations from national jurisdiction. Those immunities are not the reason for international administrative law; international administrative law still has a fundamental role to play even if international organizations were not immune. It is useful to recall this role.

A. The Basis for International Administrative Law

The contractual basis of the employment relationship is typically the source of the jurisdiction of administrative tribunals.5 The employment

4 See, e.g., N. Angelet and A. Weerts, “Challenges to immunities on the basis of the right to a fair trial”, in K. Papanikolaou (ed.), International administrative tribunals in a changing world (United Nations Administrative Tribunal Conference, New York, November 2007) (2008), pp. 33–49; G. Thallinger, “Piercing Jurisdictional Immunity: The Possible Role of Domestic Courts in Enhancing World Bank Accountability”, 1 Vienna Online Journal of International Constitutional Law (2008), at p. 4; S. Herz, “International Organizations in U.S. Courts: Reconsidering the Anachronism of Absolute Immunity”, 31 Sufffolk Transnational Law Review (2007–8), p. 471, and “Rethinking International Financial Institutions and International Law, in International Financial Institutions and International Law (D. Bradlow & D. Hunter (2010), p. 137; Reinisch, id., G. Novak & A. Reinisch, “Desirable Standards for the Design of Administrative Tribunals from the Perspective of Domestic Courts”, Chapter Fifteen supra; S. Oñate Laborde “The Relation between Due Process in International and National Human Rights Instruments and International Adjudication Mechanisms”, Chapter Twenty supra and C. de Cooker “The Efffectiveness of International Administrative Law as a Body of Law”, Chapter Seventeen supra; W. Berenson, “Squaring the Concept of Immunity with the Fundamental Right to a Fair Trial: The Case of the OAS” 3 World Bank Legal Review (2011) 133, at pp. 142–145. For a convincing analysis of the proper role and continuing importance of immunities of international organizations in contexts including but not confĳined to the employment relationship, see R. Martha, “International Financial Institutions and Claims of Private Parties: Immunity Obliges”, id., p. 93. 5 See, e.g., Article II(1) of the Statute of the World Bank Administrative Tribunal: “The Tribunal shall hear and pass judgment upon any application by which a member of the stafff of the Bank Group alleges non-observance of the contract of employment or terms of appointment of such stafff member”. This provision is typical, even if, as has been pointed out and as is self-evident from the term “international administrative law”, an essential component of the employment relationship concerns the legal control of discretionary power. See S. Flogaitis, “Aspects of the Judicial Review of Administrative Action by the World Bank Administrative Tribunal with Relevant Comparisons”, in N. Ziadé, Problems of International Administrative Law (2008), p. 105, at pp. 121–124; and references in Martha, Chapter Three supra, pp. 141–142, at n. 20. For an earlier analysis, see H. Kelsen, The Law of the United Nations: A Critical Analysis of its Fundamental Problems (1950), p. 318. the role of international administrative law 399 relationship between international organizations and their employees must certainly be governed by a system of law; the parties to the relationship require a legal regime for the determination of their rights and duties and the allocation of responsibility and liability.6 What needed to be decided was what legal system should govern this employment relationship. One possibility was public international law; but whatever the arguments might be made in favour of its suitability, public international law simply has not developed principles and rules that can apply to the employment relationship.7 Another possibility was national law. In the Serbian Loans case, the Permanent Court of International Justice stated that “[a]ny contract which is not a contract between States in their capacity as subjects of international law is based on the municipal law of some country”.8 Indeed, there was a time when the employment relationship between international organizations and their employees was governed by the national law of the host state.9 However, the correctness of the PCIJ’s statement must be confĳined to the circumstances in which it was made. Various kinds of agreements between States and other legal subjects – such as international organizations – are neither contracts between States in their capacity as subjects of international law nor governed by the national law of some country, and it has been recognized that certain contracts between States and individuals may be governed by a system of law other than national law.10 While the law of the host state may sometimes be the law

6 C.F. Amerasinghe, The Law of the International Civil Service as Applied by International Administrative Tribunals, Vol. I (1994), p. 4 (“Appointments are made, whether by contract or otherwise, salaries are assigned or changed, benefĳits are awarded, decisions are taken regarding promotions and pensions, and the like, so that generally there is need for the total employment relationship to be subjected to some system of legal regulation and control”). 7 Id., at p. 9. 8 Case Concerning the Payment of Various Serbian Loans Issued in France, Judgment No. 14, PCIJ Reports, Series A (1929), No. 20, p. 4, at p. 41. See also Case Concerning the Payment in Gold of Brazilian Federal Loans Contracted in France, Judgment No. 15, PCIJ Reports, Series A (1929), No. 21. 9 See, M. Akehurst, The Law Governing Employment in International Organizations (1967), p. 3 (“when international secretariats were small and had only routine functions to perform, it was customary to entrust them to the management of a member state … in principle the offfĳicials’ legal position was that of civil servants of the host state”). See Kelsen, op. cit. supra n. 5, at pp. 313–318, for the view that national law should govern the employment relationship. 10 See R. Higgins, Problems & Process – International Law and How We Use It (1994), p. 54 “It is now commonplace for a foreign private corporation and a state who have entered into contractual relations to agree to international arbitration in the event of a dispute. … The applicable law clause may designate a national legal system, but more usually it will refer 400 chapter twenty-two with which the employment relationship is most closely connected, national law – including national conflict of laws rules – is clearly inappropriate for several reasons, most of which relate to the international character of modern international organizations and their secretariats. First, international organizations hire stafff from all over the world to perform work in many diffferent countries, such that there is often little connection between the law of the host state and the employment relationship between the organizations and the stafff.11 While the argument may be made that employment disputes are common to all employers, whatever their nature, and may thus properly be addressed by national courts applying national law, the particular character of international organizations warrants a sui generis dispute resolution system for employment matters. Given the international character of the workforce and the activities of international organizations, it is “desirable that all stafff should normally be subject to identical rules, irrespective of where they are recruited, from where they come, or where they work. The application of the municipal law of a particular State, such as the host State, or even the conflict of laws of a particular State, to their relations with the organization for which they work would result in an arbitrary and artifĳicial choice”.12 Furthermore, “litigation of stafff disputes before national courts, perhaps even courts in diffferent States, is thought to put the uniform employment law at risk and may lead to a fragmented and diffferent level of protection. As a matter of substance and of procedure, diffferent national courts may provide international organizations’ stafff members with diffferent remedies, claims and types of compensation: they demand diffferent forms of evidence and offfer diffferent procedural rights”.13 to ‘general principles of law’ or ‘the law of country X and the relevant principles of general international law’, or some such similar formula. At one bound, therefore, the private party has escaped the need to have his claim brought by his national government, and can invoke international law. Thus, if State X and Mr. Y have a contract, State X’s ability to vary the terms of that contract will be interpreted by reference to the relevant principles of international law; and compensation due to Mr. Y will likewise be appraised by reference to international law. Thus, even if the purists wish to say that State X owes Mr. Y no international obligations about his property (owing them only to Mr. Y’s national state), the reality is that Mr. Y can invoke such legal norms and it is as if international law obligations were owed by the state to the individual. Arbitral clauses which refer to international law as the applicable law efffectively remove the alleged inability of individuals to be the bearer of rights under international law. This is done by mutual consent, of course – but the point is that there is no inherent reason why the individual should not be able directly to invoke international law and to be the benefĳiciary of international law”. 11 See Amerasinghe, op. cit. supra n. 6, pp. 4–6. 12 Id., at pp. 6–7. 13 Reinisch, op. cit. supra n. 3, p. 286. It has been noted that the risk of “fragmentation” has not matreialized: supra, p. 299 (at least in relation to the design of tribunals). Indeed, the role of international administrative law 401

Furthermore, it is well-established that offfĳicials of international organizations assume the obligation of loyalty to the organization as an essential condition of their status as international civil servants, as a result of which the influence of national law must be excluded from the offfĳicials’ conditions of employment. It has been noted that “in reality it is very unlikely that any State, including the host State, will be able to interfere with the independence of the secretariat of an international organization by manipulating its own law”.14 However, there are some examples where the internal law of the organization has affforded stafff some protection against adverse employment actions that had occurred as a result of the failure of the offfĳicials involved to comply with national law.15 Thus the demands of national law can, on occasion, be incompatible with the status of international civil servants. Finally, a national court has stated, albeit in a diffferent context, that “it is axiomatic that municipal courts have not and cannot have the competence to adjudicate upon or to enforce the rights arising out of transactions entered into by independent sovereign states between themselves on the plane of international law”.16 It is also inappropriate for international organizations, typically created by a treaty concluded between States, to be subjected to the laws of one or more of those States in which the organization happens to conduct its activities. For these reasons, international administrative tribunals have not regarded the national law of the host state or of any other state as being the system of law that governs the employment relationship between international organizations and their stafff. Inde Merode, the WBAT stated: “The Tribunal, which is an international tribunal, considers that its task decisions of national courts applying national law standards that are at variance with the internal law of a defendant organization are not common. But it is submitted that the reason for the paucity of such national court decisions needs to be examined; in practice, it is more than likely that various ad hoc and unpublished solutions may have been adopted to mitigate the problem in particular cases. The paucity of inconvenient national court decisions should not detract from the principle in issue here, which is that the uniformity under discussion is necessarily of the fĳirst importance in the conduct of the activities of international organizations. 14 Amerasinghe, op. cit. supra n. 6, p. 7. 15 See, e.g., the related cases of In re Duberg, ILOAT Judgment No. 17 [1955], In re Lefff, ILOAT Judgment No. 18 [1955], In re Wilcox, ILOAT Judgment No. 19 [1955], In re Bernstein, ILOAT Judgment No. 21 [1955], In re Froma, ILOAT Judgment No. 22 [1955], In re Pankey, ILOAT Judgment No 23 [1955], and In re Van Gelder, ILOAT Judgment No. 24 [1955]; Howrani et al, UNAT Judgment No. 4 [1951]; and Keeney, UNAT Judgment No. 6 [1951]. See also M. Bedjaoui, Fonction publique international et influences nationales (1958), pp. 576–618. 16 Maclaine Watson & Co. Ltd. v International Tin Council, 3 All England Law Reports [1989], p. 523. See, further, Martha, op.cit. supra n. 4, at pp. 106–117. 402 chapter twenty-two is to decide internal disputes between the Bank and its stafff within the organized legal system of the World Bank and that it must apply the internal law of the Bank as the law governing the conditions of employment”.17 The basis of this determination of the law governing the employment relationship is not the fact that the international organizations are immune from the jurisdiction of national courts. The role of international administrative law, or the law of the civil service, is and has always been to regulate the employment relationship for all the reasons described above. The question of identifying the law governing the relationship is separate from the question of identifying the courts that should apply that governing law. The question of immunity relates to the latter, not to the former; it relates only to the inability of national courts to hear cases involving employment relationships between international organizations and their stafff, and not to the law that the appropriate court should apply should it have jurisdiction over a case. It is not inconceivable that national courts would hear such cases – and many have asserted their right to do so18 – while applying the internal law of the organization rather than national law.19 Conversely, it is not inconceivable that international administrative

17 de Merode et al, WBAT Decision No. 1 [1981], at para. 27. See also di Palma Castiglione, League of Nations Tribunal Judgment No. 1 [1929], at p. 3; Aglion, UNAT Judgment No. 56 [1954]; In re Waghorn, ILOAT Judgment No. 28 (1958), at p. 6; In re Zihler, ILOAT Judgment No. 435 (1980), at para. 3; In re Volz, ILOAT Judgment, No. 493 (1982), para. 5; In re Decarniere N° 2 and Verlinden N°s 1 and 2, ILOAT Judgment No. 1369 (1994), para. 15 (“The Tribunal must enforce the law within the full ambit of the competence its Statute vests in it. For that purpose it will apply any material rule of law, be it international or administrative or labour law or any other body of law. The only sort it will not apply is national law, save where there is express renvoi thereto in stafff regulations or contract of employment see ILOAT Judgment No. 1311 (in re Guerra Ardiles) under 15”); In re Baur and others, ILOAT Judgment No. 2147 (2002), at para. 8; ILOAT Judgment No. 1020 (1990); ILOAT Judgment No. 1080 (1991), at para. 13; ILOAT Judgment No. 1451 (1995). See also Article VI.2 of the Statute of the Administrative Tribunal of the Inter-American Development Bank which provides: “In car- rying out its functions the Tribunal shall not be subject to the laws or jurisprudence of any of the Bank’s or the Corporation’s member countries or any of their political or administrative subdivisions”. 18 Novak & Reinisch, Chapter Fifteen supra; Oñate Laborde, Chapter Twenty supra and de Cooker, Chapter Seventeen supra. 19 See, e.g., A.Z.N. Anas, “World Bank loses decade-long legal battle”, in The Financial Express, 7 June 2010 (Dhaka, Bangladesh) (last viewed on 1 September 2011), concerning a 2011 decision by a district sessions court on Dhaka in a case fĳiled by Ms. Ismet Zerin Khan. She was an employee of the Bank who was dissatisfĳied with the outcome of a decision of the WBAT in 2001 to award her damages and costs for improper dismissal. The Senior Assistant Judge who decided the case is reported as having stated that “the World Bank as an employer does not enjoy unfettered power regarding any suspension or dismissal of its employee and must follow rules contained in the Stafff Manual of the Bank” (our emphasis). See also < http://bangladesh-web.com/view.php?hidRecord=321074> (last the role of international administrative law 403 tribunals could decide to apply national law to the employment relationship between international organizations and their stafff.20 Accordingly, international administrative law has been developed and has evolved to address the particular characteristics of the employment relationship to which it applies quite separately from the jurisdictional immunities of international organizations before national courts. The essential role played by international administrative law has been enhanced by its development by specialized administrative tribunals, which, in applying the internal law of the organizations subject to their jurisdiction, contribute to the development of a common corpus juris;21 whether the substance and efffect of that body of law would or could have viewed on 1 September 2011). For appropriate criticism of this case, see Martha, supra n. 4, at p. 112–114. 20 As Amerasinghe (op. cit. supra n. 6, pp. 8–9) puts it, “it may not be accurate to stress the immunity from the jurisdiction of municipal courts as a reason for having an independent legal system governing employment relationships in international organizations, because immunity from jurisdiction relates only to the absence of a judicial system for deciding disputes arising from such relationships and does not necessarily mean that the relationships are outside the pale of law … Indeed, even with a special system of courts to decide disputes relating to the employment relationship in international organizations, it is possible to apply a municipal system of law to the relationship. Hence it is not merely the existence or absence of judicial machinery for the settlement of disputes that makes it a necessity that there be an applicable independent system of law. On the other hand, the features of the international civil service mentioned above do provide an added reason for having an independent system of law to govern the employment relationship in international organizations”. 21 See, de Merode et al. v. International Bank for Reconstruction and Development, WBAT Decision No. 1 [1981], para. 28 “The Tribunal does not overlook the fact that each international organization has its own constituent instrument; its own membership; its own institutional structure; its own functions; its own measure of legal personality; its own personnel policy; and that the diffference between one organization and another are so obvious that the notion of a common law of international organization must be subject to numerous and sometimes signifĳicant qualifĳications. But the fact that these diffferences exist does not exclude the possibility that similar conditions may afffect the solution of comparable problems. While the various international administrative tribunals do not consider themselves bound by each other’s decisions and have worked out a sometimes divergent jurisprudence adapted to each organization, it is equally true that on certain points the solutions reached are not signifĳicantly diffferent. It even happens that the judgments of one tribunal may refer to the jurisprudence of another. Some of these judgments even go so far as to speak of general principles of international civil service law or of a body of rules applicable to the international civil service. Whether these similar features amount to a true corpus juris is not a matter on which it is necessary for the Tribunal to express a view. The Tribunal is free to take note of solutions worked out in sufffĳiciently comparable conditions by other administrative tribunals, particularly those of the United Nations family. In this way the Tri- bunal may take account both of the diversity of international organizations and the special character of the Bank without neglecting the tendency towards a certain rapprochement.” For discussion see R. Gorman “The de Merode Decision, and its Influence upon Inter- national Administrative Law”, Chapter One supra; and B. Kingsbury and R. Stewart, 404 chapter twenty-two been better had it been developed by national courts rather than administrative tribunals of international organizations is, at best, a matter of speculation.22 If the justifĳiable distraction caused by the recent focus on the immunities of international organizations is put to one side, what, then, is the role of international administrative law as a fĳield of law? This question is the subject of a number of the contributions in Part I of this book. One of these contributions assesses the role of international administrative law in safeguarding the independence of the international civil service.23 International administrative law and the role of international administrative tribunals have also been situated in the context of the debates regarding the constitutionalization of the international legal order24 and have been analyzed in the context of the administration of global governance within the framework of the emerging global administrative law.25 These contributions underscore the important role played by international administrative law and international administrative tribunals. International administrative law has come a long way since the establishment of the Administrative Tribunal of the League of Nations in 1927, and has become “an important part of the law of international organizations and the international legal system.” The principles developed by international administrative tribunals have made it possible to refer to a

Chapter Four supra; and on the constitutionalisation of international law and the role of international tribunals see Dallari, Chapter Three supra. 22 The following statement from the decision of the U.S. Court of Appeals for the District of Columbia in Broadbent et al. v. Organization for American States, 628 F.2d 27 (D.C. Cir.1980), sums up the position: “The United States has accepted without qualifĳication the principles that international organizations must be free to perform their functions and that no member state may take action to hinder the organization. The unique nature of the international civil service is relevant. International offfĳicials should be as free as possible, within the mandate granted by the member states, to perform their duties free from the peculiarities of national politics. The OAS charter, for example, imposes constraints on the organization’s employment practices. Such constraints may not coincide with the employment policies pursued by its various member states. It would seem singularly inappropriate for the international organization to bind itself to the employment law of any particular member. … An attempt by the courts of one nation to adjudicate the personnel claims of international civil servants would entangle those courts in the internal administration of those organizations. Denial of immunity opens the door to divided decisions of the courts of diffferent member states passing judgment on the rules, regulations, and decisions of the international bodies. Undercutting uniformity in the application of stafff rules or regulations would undermine the ability of the organization to function efffectively”. See, in contrast the Khan case, discussed supra n. 19 and further Martha, supra n. 4, at pp. 112–114. 23 See L. Tabassi, Chapter Five supra. “The Role of Administrative Tribunals in Safeguarding the Independence of the International Civil Service”. 24 See Dallari, Chapter Three supra. 25 See Kingsbury & Stewart, Chapter Four supra. the role of international administrative law 405 system of international administrative law, even though each international organization is unique and has its own rules and regulations. It is without exaggeration that international administrative law has thus accurately been described as “the backbone of international organization and its successful functioning”.26 The current focus on immunities and concerns regarding legitimacy, efffectiveness and design must then be seen as a natural part of the continuing process of evolution and assessment.

B. Legitimacy, Effectiveness and the Question of Immunity from Local Jurisdiction

This process of evolution and assessment is at a high point today. As noted above and throughout this book, several aspects of the law governing the employment relationship have been the subject of scrutiny, mainly before and by national courts, whose perspective may not always be the same as that of international administrative tribunals since they operate as part of a distinct system of law. The design of the judicial and administrative bodies responsible for ensuring the application of the internal law of the organization; their independence from the organizations that created them, fund their activities, appoint and determine the conditions of service of the members of these bodies; the existence of appeal mechanisms; the requirement of oral proceedings have all been examined, not just by national courts27 but also by initiatives within the organizations themselves. Some national courts28 have sought to balance the human right to a fair trial against the jurisdictional immunity claimed by organizations, with the assumption in some cases appearing to be that the procedures or the substance of the internal law of the organization are inadequate. In a small minority of cases, the procedures provided by the organization for the adjudication of employment disputes have indeed been found to be defĳicient.29 However, tribunals have not found as a general matter that the mechanisms available for the resolution of stafff disputes in international

26 See C.F. Amerasinghe Chapter Two supra. 27 Novak & Reinisch, Chapter Fifteen supra; Kingsbury & Stewart, Chapter Four supra. 28 See, in this context, e.g., the U.S. Supreme Court’s rejection in 2010 of the certiorari petition in Brzak v. UN, 131 S. Ct. 151 (2010). 29 See, e.g., the Siedler litigation, discussed supra at pp. 280fff and Chapter Seventeen. 406 chapter twenty-two organizations have been defĳicient.30 In several instances, the inclination of national courts to take jurisdiction over cases involving international organizations has been based on the compelling requirements of their own constitutional law, not necessarily because of any shortcomings in the internal law and processes of the organization.31 National judgments like that of the Dhaka court in the Khan case are thankfully rare and, in the fĳinal analysis, appear to be no more than the court’s expression of its preference as to the outcome of the case, without demonstrating a legal basis for that preference in the law applicable to the employment relationship.32 Like calls for an end to the “anachronism” of jurisdictional immunities, such judgments are based on a failure to recognize the basis of those immunities in the particular characteristics of international organizations and the circumstances in which they operate.33 It should be remembered that the existence of a State’s jurisdiction is determined by international law; and, under international law, a denial of immunity by a national court can be deemed wrongful, as the International Court of Justice has decided.34 Contrary to the assumption underlying such views, the reality is that “there is no inherent conflict between immunity from national legal

30 See, Reinisch, supra n. 3; and Novak & Reinisch, Chapter Fifteen supra. 31 See, e.g., Berenson, supra n. 4 at p.143–144. 32 See discussion at n. 19 above. The Dhaka court awarded more compensation than the WBAT did, presumably on the basis that, in the court’s view, the WBAT, in awarding damages and costs to Ms. Khan, rather than reinstating her with back pay, erred in its understanding or appreciation of the “rules, regulations and procedures of the Bank” on which it based its judgment. 33 In addition to the points made in the fĳirst section of this chapter and by Martha, supra n. 4, at pp. 106–117, mention should also be made of the argument often put forward that international organizations should not be entitled to immunity from suit while States are not so entitled (see, e.g. OSS Nokalva, Inc. v. European Space Agency, 617 F. 3d 756 (3d Cir. 2010) ). As has been pointed out, this argument is flawed because international organizations and States cannot be compared because of their very diffferent legal situations, as a result of which the bases for according immunity to States is diffferent from the basis for according immunity to international organizations. International organizations, unlike States, do not have territory or nationals, and must therefore operate in the territory of some State and engage foreign nationals. As stated by the International Law Commission’s Special Rapporteur on Relations between States and International Organizations: “Being unable to enjoy the protection conferred by territorial sovereignty, as States can, international organizations have as their sole protection the immunities granted to them. The ample immunity affforded them is fully justifĳied, in contrast to the increasingly restricted immunity of States, for the good reason that States are political entities pursuing their own interests while international organizations are service agencies operating on behalf of all their member States”. See Yearbook of the International Law Commission (Vol. II(1), 1989), pp. 157–158. See further Martha, id., pp. 97–104. 34 Diffference relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, I.C.J. Reports (1999), p. 62. the role of international administrative law 407 process and the right to a fair trial, and the concept of immunity is in no way anathema to the concept of fair play and substantial justice”.35 What the current emphasis on immunities has demonstrated is the need for the governing bodies in international organizations to ensure that their internal law, and their justice systems, are adequate, and there is sufffĳicient guidance in jurisprudence and doctrine for this purpose.36 In the fĳinal analysis, it behoves international organizations to demonstrate, and to be seen to demonstrate, that they take the rule of law (and all of its implications) seriously.

C. The Employment Relationship and the Rule of Law in International Organizations

As mentioned earlier in this chapter, one of the functions of international administrative law is to allocate rights and responsibilities and to protect the stafff from the uncontrolled exercise of authority by the organization. As this law serves as a constraint on the exercise of power by the organization, international organizations must recognize and accept the primacy of the law and the role of tribunals as the ultimate arbiters of such law. While tribunals may be creations of the organizations, by accepting the jurisdiction of a tribunal an international organization accepts to be bound in law by that tribunal’s decisions.

35 Martha, supra n. 4, p. 119. There are evident problems in deciding how efffective, fair or just a system is; but see R. Lewis’ tentative conclusion that a stafff member of the World Bank, the IMF and the EBRD stands a chance of obtaining an efffective remedy that is at least as good, if not better than, the chance of an employee with a comparable claim under British law, “The Efffectiveness of International Administrative Law Compared to Some National Legal Systems” Chapter Eighteen supra. 36 Such guidance has been available for a considerable amount of time. For example, in 1973, while discussing the meaning of a “fundament error of procedure”under Article 11 of the Statute of the UN Administrative Tribunal, the International Court of Justice stated: “… certain elements of the right to a fair hearing are well recognized and provide criteria helpful in identifying fundamental errors in procedure which have occasioned a failure of justice: for instance, the right to an independent and impartial tribunal established by law; the right to have the case heard and determined within a reasonable time; the right to a reasonable opportunity to present the case to the tribunal and to comment upon the opponent’s case; the right to equality in the proceedings vis-à-vis the opponent; and the right to a reasoned decision.” (Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973, p. 209, para. 92.). It is not clear that the current debates, and the focus on concerns expressed in judgments of national courts, have resulted in a better enumeration of the most basic requirements for the design of administrative tribunals. See further Novak & Reinisch, Chapter Fifteen supra. 408 chapter twenty-two

There have been concerns, however, that international administrative tribunals have exceeded their competence and through their jurisprudence encroached upon the sovereignty of the organs of international organizations to promulgate legislation. At the time of writing, the United Nations Secretary-General has sought the involvement of the General Assembly in respect of matters disposed of, or still under consideration, by the United Nations Dispute and Appeals Tribunals.37 The Secretary- General drew the attention of the General Assembly to cases where the United Nations Dispute and Appeals Tribunals assumed jurisdiction over decisions which the Secretary General believed were taken by “independent entities”, such as the United Nations Offfĳice of Internal Oversight Services and the Offfĳice of Stafff Legal Assistance. The Secretary-General further sought the involvement of the General Assembly in a case under consideration by the United Nations Dispute Tribunal where stafff members sought to hold the Secretary-General responsible for the decision of the International Civil Service Commission. The Secretary-General recommended that the General Assembly amend the Statute of the United Nations Dispute Tribunal to defĳine an “administrative decision” as referring to a decision “unilaterally taken by or on behalf of the Secretary- General that is alleged to be in non-compliance with the terms of appointment of the contract of employment”.38 If the General Assembly accedes to the Secretary-General’s recommendation, it could signifĳicantly undo the development of the Tribunal’s emerging jurisprudence on the extent of its jurisdiction.39 Concerns have also been expressed regarding the range of actions that administrative tribunals can review. While some tribunals have not been specifĳically ascribed the mandate to review regulatory decisions, some tribunals have reviewed the validity of legislative acts adopted by international organizations in the context of an individual grievance.40 In so

37 “Report of the Secretary General on the Administration of Justice in the United Nations”, 8 August 2011 (A/66/275), para. 249 38 Id., paras. 280 and 293 39 It is notable that the Judges of the Dispute Tribunal provided their observations on the Secretary-General’s report and noted, that in so far as the examples related to “live cases in which the Secretary-General appears before the Tribunal as a party. The discussion in the report of these cases, which are clearly sub judice, pending their consideration by the Tribunal, seriously undermines the independence of the formal system of administration of justice and is tantamount to contempt of court”. Letter dated 7 October 2011 from the Secretary-General addressed to the President of the General Assembly, 10 October 2011, (A/66/507). 40 See, generally, Amerasinghe, supra n. 6, pp. 11–16. the role of international administrative law 409 doing, tribunals have sometimes sought to review such legislative acts against some higher principle or a general principle of law.41 Some commentators have questioned, however, the basis of the authority of tribunals to select and imply such higher principles of law into the contract of employment.42 One may ask whether there is warrant for serious concern on the part of international organizations regarding the prospect that their legislative authority may be subject to review by international administrative tribunals. The Administrative Tribunal of the International Monetary Fund is unusual in being empowered expressly to pass judgment on applications brought by stafff members adversely afffected by an “administrative act”, where an “administrative act” is defĳined to include “regulatory decision[s] taken in the administration of the stafff of the Fund”.43 In so doing, regarding the law applicable to the employment relationship, the organization subjects its legislative authority to the scrutiny of the Tribunal.44 As noted above, tribunals do pronounce on the validity of legislative acts more or less directly.

41 The United Nations Administrative Tribunal recognized that the sovereign authority of the General Assembly was beyond its jurisdiction, in so far as such authority was exercised in compliance with the United Nations Charter. See Oumi, Gordan and Gruber, UNAT Judgment No. 395 [1987]. In S, WBAT Decision No. 373 [2007], para. 46, the WBAT expressly reserved the possibility that international administrative tribunals might have to review a Stafff Rule for compliance with a higher principle of law “discretion enters the picture only as a possible exception to mandatory termination. If the Stafff Rule did not contain this exception the mandatory measure would be a blunt instrument indeed, but fortunately, precisely because of the exception, the Tribunal is not required to consider whether the mandatory nature of the disciplinary measure established under the law which it has been created to apply runs counter to some higher principle which no international tribunal could ignore”. See also Harrison, Decision No. 53 [1987], paras. 28–30 (“Because, therefore, of the generality of the rule unilaterally issued by the Bank regarding the relinquishment of access to all internal remedies, including the Appeals Committee and the Tribunal, the absence of individual negotiations, and the very special circumstances confronting stafff members at this time of major dislocation and mass separations, the Tribunal concludes that paragraph 12.01 of Stafff Rule 5.09 is invalid. Therefore, the release signed by the Applicant upon her separation from the Bank is inoperative”). 42 See, e.g., P. Hulsroj, “Perfection, Best Practice, Adequacy? The Standard Applied by International Tribunals to the Behaviour of International Organizations”, Chapter Six supra. 43 Article II(2)(b) of the Statute of the Administrative Tribunal of the International Monetary Fund. 44 See, generally on the standing of a stafff member to challenge a regulatory decision Baker et al. v. I.M.F., Judgment No. 2005-3; Faulkner-MacDonagh v. I.M.F., Judgment 2010-2 and Billmeier v. I.M.F., Judgment 2010-3, where the Tribunal reviewed the downsizing programme implemented by management; and Daseking-Frank et al. v. I.M.F., Decision No. 2007-1, where the Tribunal reviewed the revisions adopted by the Executive Board to the methodology for the computation of stafff salaries. 410 chapter twenty-two

More signifĳicantly, as demonstrated by the current debates regarding the efffectiveness of international administrative law and the immunities of organizations from national jurisdiction, most observers would contend that the real challenge facing international administrative law today is not the risk of hampering governance or overburdening the organizations, but the sufffĳiciency of the legal standards applicable within international organizations. There is certainly no shortage of complaints – certainly of widely varying merit – regarding inadequacies in the legal protection available to stafff of international organizations. The inescapable conclusion must be that the current debates are no more than a part of the “inevitable interlude for reassessment and taking stock”.45 Discussions such as those in the General Assembly of the United Nations referred to above are then to be welcomed as part of the continuing dialogue needed to ensure that the internal law (substantive and procedural) of the organization ful- fĳils its role. International organizations cannot and do not claim to be above the law; lack of compliance with judgments of administrative tribunals and similar bodies has not been a concern.46 It is our contention that, to address the wider concerns about the legitimacy and the immunities of international organizations, much will be gained from focusing on the continued development and efffectiveness of the law of the international civil service as a system of law and the way it guides the acts of international organizations in relation to their stafff; the solution is not to seek to replace that system of law with national law or some other alternative.

45 Amerasinghe, Chapter 3 supra, text accompanying nn. 59–60. 46 Amerasinghe, Chapter 3 supra, text following n. 61. INDEX abuse of discretion/abus de pouvoir/abuse Afffaire de l’indemnité russe (Russie, of rights 21, 25, 27, 28, 46–48, 96n51, 111, Turquie) 137 135, 199, 336 Diverted Cargoes (Greece v. United arbitrariness 28, 46, 48, 76, 135, 155, 164, Kingdom of Great Britain and 199n9, 233, 239, 240, 333, 338, 400 Northern Ireland) 141–142 access to justice 13, 24, 61–62, 67, 80, 92, cases cited (Argentine courts) 96, 194, 243, 249, 274, 278, 280–283, 288, Duahlde, Mario Alfredo v. Organización 301, 326, 327, 339, 341, 378n14, 381, 382, Panamericana de la Salud 382n25 397, 409n41 cases cited (Bangladeshi courts) accountability of international Khan 402, 404, 406 organizations 9, 18, 69, 72, 76–79, 81–83, cases cited (Belgian courts) 85, 87–88, 91n33, 93, 98–104, 198n7, Crown Counsel v. Chapman 330n26 273–274, 302, 377, 378n11, 379, 397, 398n4 Lutchmaya v. General Secretariat of the acquired/accrued rights 20, 21, 25, 27, 28, ACP Group 282n31, 283 49, 125, 367, 371 SA Energies Nouvelles et tax reimbursement 15–17, 19, 20, 22, Environnement v. Agence Spatiale 25–27, 29, 70n3, 118–120, 151, 168 Européenne 283 administrative tribunals, see international Siedler v. Western European Union administrative tribunals. (WEU) 62, 277, 280, 282–284, 300, alimony and child support 28, 204, 205, 301, 329, 330, 332, 383n27, 383n31, 208–210, 213–218, 220–222, 224, 226, 228, 406n29 229, 231 Union de L’Europe Occidentale contre deductions from salary 209, 214–217 S. M. 282n32, 330n25 Diplomatic Note from US cases cited (Brazilian courts) Department of State (1998) 208n25, Cilene Maria Holanda Salaoio v. 211–213 UNESCO 382n24, divorce decree, comity 226–227 Estevao de Castro Melo v. UN-UNDP, divorce decree, interpretation 217–219 382n24 efffect of foreign divorce cases cited (Canadian courts) decree 226–229 Her Majesty The Queen in Right of garnishment of wages 204, 208–210 Canada v. Miller 295 World Bank Group Policy 213–228 Procureur general du Canada v. Lavigne World Bank Stafff Rule 3.06 Family et al. 295 obligations (2009) 214, 215, 216n49 Trempe v L’Association du personnel de appointment of judges, see international l’OACI et al. and Trempe v. Conseil de administrative tribunals. L’OACI et al 294–297 Asian Development Bank Administrative cases cited (Dutch courts) Tribunal (ADBAT) 26–27, 38, 51, 184, A.S. v Iran-United States Claims 389, 391 Tribunal 380n21 X v. EPO 383 cases cited (ADBAT) cases cited (ECHR) Bares 71 Beer and Regan v. Germany 274n4, 327, Chan 230n140 328, 383n29 Mesch and Siy (Nos.1, 2, 3 and 4) 25–28 Behrami v. France 100n71 cases cited (arbitration) Gasparini v. Italy and Belgium 384 Administration of Lighthouses (France Saramati v. France, Germany and v Greece) 150 Norway 101n71 412 index

Waite and Kennedy 61, 68n11, 274, 276, Administrative Tribunal, (Advisory 277, 280, 282, 283, 300n111, 327, 334n1, Opinion) 350n5, 360n45, 362n51, 383 362n52, 362n53, 363n56, 371n87, cases cited (ECJ) 371n88 Airola v Commission 164 Application for Review of Judgment Bertolete e.a. v Commission 260n33 No. 333 of the United Nations Birkhofff v Commission 261n37 Administrative Tribunal (Advisory Bui Van v Commission 260n34 Opinion) 42n26, 350n5, 361n47, de Brito Sequeira Carvalho v 370n82, 371n89 Commission 261n38 Diffference Relating to Immunity from Dino Battaglia v Commission 166n75 Legal Process of a Special Rapporteur Eistrup v European Parliament 260n32 of the Commission on Human Rights, ETF v Landgren 262n41 Advisory Opinion 328n21, 406n34 Luigi De Pascale v Commission 166n75 Efffect of Awards of Compensation Made M v EMEA 257n27, 258 by the United Nations Administrative Meierhofer v Commission 260n32 Tribunal (Advisory Opinion) 33, 60, Michail v Commission 260n35 111n20, 350, 351n10, 352n12, 353n13, Roger Buyl and others v 354n19, 355, 357n31, 358, 361, 367, Commission 166n75 378n12 Skareby v Commission 260n36 Fisheries Jurisdiction (UK v. cases cited (English courts) Ireland) 167n77 Bertolucci v. EBRD et al. 298, 299 Judgments of the Administrative Entico Corporation Ltd. v. Tribunal of the ILO Upon Complaints UNESCO 383n27 Made Against the UNESCO (Advisory Maclaine Watson & Co. Ltd. v Opinion) 111n21, 154n55, 350n5, 359, International Tin Council 401n16 360, 365, 367 Miss Jan Jananyagam v. Commonwealth Reparations for Injuries Sufffered in the Secretariat 297 Service of the United Nations 108n9, Mukoro v. EBRD 297, 298 cases cited (ILOAT) Sufffolk Mental Health Partnership NHS Abdlleh and Salah 150n42 Trust v Hurst 342n12 Acosta Andres, Azola Blanco and Veliz Trendtex Corpn. v Central Bank of Garcia (No. 2) 150n44 Nigeria 385n35 AHRC-J 71n5 cases cited (EUCST) Allaert and Warmels 145n25 M v EMEA 258n28 Argos and others 145 Peter Mariën v EEAS 262n42 Baeumer, Claus and Hansson 182n113 cases cited (French courts) Berlioz and others 145n26 African Development Bank v. X 285 Berthet (No. 2), Lampinen, Leberman Banque Africaine de Dévelopment vs. and Schechinger 145n25, 146n30 M.A. Degboe 62, 379n17 Bovin 2 153n54 Beaugrenier v. UNESCO 382n27 Connolly-Battisti, 47n38, 47n39 Illemassene v. OECD 284, 300 Dauvergne, Gemünd, Harper, Lampinen Kigaraba 170 (No. 2), Schechinger (No. 2), Stösser cases cited (German courts) and van der Zandt 145n25 B. et al. v. EPO 331n28 De los Cobos and Wenger 50n51 Hetzel v. EUROCONTROL 288 Deville and others/Gasser 146n29 cases cited (ICJ) Djoehana 172, 173n88 Application for Review of Judgment Flösser (No. 6) and Serrano 147n31 No. 158 of the United Nations Gonzalez Lira 150n44 Administrative Tribunal (Advisory Grasshofff 71n7 Opinion) 350n5, 356n28, 361n46, Howrani et al 401n15 361n48, 369n78, 369n79, 369n81, In re Baur and others 402n17 370n83, 407n36 In re Bernstein 401n15 Application for Review of Judgment In re Callewaert-Haezebrouck No. 273 of the United Nations (No. 2) 323n11 index 413

In re Decarniere No 2 and Verlinden Nos Torres v. Secretary General 181n111 1 and 2 402n17 cases cited (Philippines courts) In re Duberg 401n15 Liang vs. People 328n22 In re Froma 401n15 cases cited (UNAppT) In re Lefff 401n15 Bertucci 97n52, 99 In re Meylan and others 145n26 Calvani 248 In re Pankey 401n15 Liyanarachchige 249 In re Sikka No. 3 238 Schook 248 In re Van Gelder 401n15 Warren, 98n64, 248 In re Volz 402n17 cases cited (UNAT) In re Waghorn 402n17 Abdulhadi 152, 177, 178 In re Wilcox 401n15 Adrian 71n5 In re Zihler 402n17 Aglion 402n27 Judgment 2232 71n4, 99n66, 105n1, Al-Jassani 156, 157n62 123n53 Augustine 46n34 Judgment 2549 71n5, 230n140 Djimbaye 46n35 Judgment 2713 144n74, 145, 162, 163 Durand 71n7 Judgment 2912 109n11 El-Haj 163, 164n72 Kirsetter 150n43 El-Zaim 230n140 Lindsey No 2 149 Harpignies 174 Macchino Farias 181n110 Jhuthi 46n34 Niestlé 175, 176n98, 180 Johnson 172 OPCW 71n4, 99n66 Judgment 1279 146, 147n32, 148n33 Price 1 168 Judgment 19 109n15 Price 2 168 Kaplan 142n21 Tejera Hernandez 150n43 Keeney 401n15 Thiele 153n54 Kiwanuka 46n34, 47n39, 48, 199 Van der Kraan 153n54 Klee 171, 172n84 Watson 158, 159n63, 159n64, 160n65 Mbarushimana 86n20 Weiss 175n95, 176 Mély 160 cases cited (IMFAT) Mullan 42, 50n47, 71n5 D’Aoust (No.3) 323n10 Museibes 1 179 Daseking-Frank et al. 24, 409n44, Museibes 2 179, 180 Mr. “P” (No. 2) 229–231, 323 Mwangi 71n7 R 71 Niestlé 180 cases cited (Italian courts) Obiny 1 177 Carretti v. FAO 287 Obiny 2 177n101 Drago v. International Plant Genetic Oumi, Gordan and Gruber 409n41 Resources Institute 287 Sa’adiyeh 1 152 FAO v. Colagrossi 287 Sa’adiyeh 2 153n50 Instituto internazionale di Agricoltura v. Salamayeh 164, 165n74 Profĳili 376n5 Sampaio 170n82 Pistelli v. European University Shahrour 47, Institute 286, 287 Sharshara 1 151, 152 cases cited (LoNT) Sharshara 2 151, 152 di Palma Castiglione 402n17 Sokolofff 71n4 cases cited (OASAT) Soltes 156 Alfredo Rebolledo A. et al. 183, 184n117 Talan 167, 168n78 Braulio O. Alaniz, Elbio Arias, Gualberto Thiam 172 R. Cuenca, Lylian Millán, and María Tong 154, 155n58 Emilia López Bartibás 143n23 Trempe v. Secretary General of the Brunetti et al. 25 International Civil Aviation Juan F. Bauta v. Retirement and Organization 294–297 Pension Committee of the Organization of Yakimetz 42n26 American States 182n114 cases cited (UNDT) 414 index

Abboud 94n45 201, 320n3, 321, 323, 325, 336, 390, 401, Andrysek 71n5 402n17, 403n21 Ardisson 71n5 Dossa 236n11 Bertucci 52, 97, 98n57, 99 Durrant-Bell 46 Ippolito 71n5 E 204 Kasmani 94n46 Eyassu 234n6 Mebtouche 71n5 Farvacque 234n6 Mmata 98n62 Gary 236n11 Morsy 94n45 Goldman 236n11 Nogueira 98n61 Gress 236n11 Shkurtaj 71n4, 98n61 Gyamfĳi 6 Wasserstrom 98n58, 98n59 Hafeez 235n6 cases cited (US courts) Harrison 409n41 Atkinson v. Inter-American Harun 236n11 Development Bank 204n7, 208, 209 Homayoun 223–225 Bisson v United Nations and ors 293 Huber 236n11 Broadbent et al. v. Organization for Ketema 235n6, American States 276, 277, 295, King 47n37 404n22 Lansky (No. 1 and No. 2) 238–240 Brzak v. United Nations 91n32, 405n28 M 200 Guaylupo-Moya v. Gonzales 293n85 Mack 236n11 Igartua De La Rosa v. United Mendaro 71n5, 207, 292, 293, 295 States 293n85 Mills 211n33, 220, 221 Marbury v. Madison 375n1, Motabar 6 Mendaro v. World Bank 71n5, 207, 208, Mustafa 47n39, 49n43 292, 293, 295, Oinas 234 OSS Nokalva, Inc. v. European Space Pena 236n11 Agency 406n33 Pinto 22, 235–239 Rhita El Ansari v. Morocco et al 295 Planthara 47n37, 49n43 cases cited (Venezuelan courts) Reddy 236n11 Francisco Franco Dorta v FAO 381n22 Richardson 236n11 cases cited (WBAT) Roche 235n6 A. Berg (No. 2) 23n11 Roncal 235n6 Abdi et al 23n11 S 409n41 Addy 23n12 Singh 47 Agodo 234, 237, 238n17 Suntharalingam 131n5 AK to AZ 135n8 Tadesse 236n11 AK to BA 96n51 Tuluy 236n6 Alcantara 236n11, von Staufffenberg 22, 24 Aleem & Aleem 204n6, 210n31, 225–230, Waiser 236n11 323n9 World Bank Stafff Association 234n1 Apkarian 46n32 Yoon (No 2) 344n17 Arefeen 199 Yoon (No 3) 345n18 AY 237 Yoon (No 4) 344n16 BF 237 cases cited (WTO AB) BI 95 United States - Defĳinitive BM 237 Safeguard Measures on Brebion 23n12 Imports of Certain Steel Briscoe 234 Products 74n10 Canada 234n6 United States - Import Prohibition of Carew 47n37, 49n43, 198–200 Certain Shrimp and Shrimp Chakra 46 Products 74n10 D 6 Commonwealth Secretariat 38, 297, 298 de Merode xi, 15, 17–25, 27–30, 35, 36, compensation/damages, see 40, 50, 57n61, 70n3, 96, 129, 130–132, remedies. index 415 compensation of international civil government interference with servants, see remuneration of promotion 109, 117 international civil servants. government request for removal of stafff conflicts of interest 11, 43, 323, 387–394 member 116 Convention on the Privileges and freedom of movement of stafff member, Immunities of United Nations prevention of 116 Specialized Agencies 1947 102, 367n70, rationale of 107–108 380 secondment from national Council of Europe Administrative Tribunal governments 111–113 (CEAT) 40n21, 388, 393 term limits 124–125 Inter-American Development Bank discovery/disclosure Administrative Tribunal (IDBAT) 10, 11, adverse inferences 52–53, 260n32 38, 51, 68n11, 196, 389, 402n17 confĳidential information 188, 189, internal justice system 8, 9, 45, 61, 89n28, 194–195 91, 93, 95, 96, 243, 327, 333, 334, 335, 339 deposition of witnesses 188, 190–195 international administrative law document production 52, 53, 97, absorption of norms 75–76 187–190, 192–195, 248, 260n32 arbitrariness 46, 48, 155, 199n9, 239, 240 interrogatories 187, 188, 191 common law of international non compliance with order for organizations 19, 36, 322, 403n21 disclosure of documents 52, 53 97 common principles 37 requests for admission 188, 191 comparison with national labor tribunal rules compared 188–189 law 333–348 due process 10, 15, 22, 24, 29, 34, 49, 50, 61, contra proferentum 26 63, 67, 68n11, 71, 78, 81, 89, 92, 93, 96n51, contractual terms 19, 20 98, 103, 106, 123, 125, 126, 130, 133, 198, 199, corpus juris 36, 71, 94, 130, 319–323, 403 201, 227, 236, 239, 240, 243, 251, 258, discretionary powers 21, 24, 46, 48, 97, 274–276, 278, 279, 299, 302, 304, 308, 311, 114, 130, 199, 336, 354, 356, 370, 371 312, 331, 336, 337, 357, 375–385 See also international administrative law, review of discretion European Convention on Human Rights due process, see due process. Article 6, right to a fair hearing 35, 61, duty of care toward stafff 71 280, 282–284, 287n53, 298, 329–331, duty to act with fairness and 333, 334, 378, 382n27, 383, 384, impartiality 338 European Space Agency (ESA) 61, 280, enforcement 55, 58, 86n20, 107, 193, 213, 283, 284, 327, 328, 333, 406 218, 230, 239 European Union Civil Service Tribunal gender-based distinction 71n5, 130, 207, (EUCST) 253–263 389 appeals 254–256 general principles of law 19, 37, 40, 45, appellate procedure 254 48, 49, 57, 66, 70, 99n66, 109, 115, 123, appointment of judges 262 129, 131, 133, 135, 146, 147n31, 175, 201, legal costs 261n40 259, 262, 263, 278, 279, 321–323, 385, European University Institute (EUI) 286, 400n10, 403n21 287 identical rules for all organization evidence before international stafff 400 administrative tribunals, see also inequality of treatment 45, 164 discovery/disclosure. jurisdiction ix, xii, 57, 60, 61, 65, 67, 72, anonymous statements, use of 249 79, 86, 88, 97, 100, 198, 231, 233, 234, 235, 253–255, 263, 281, 286, 288, 331, global administrative law/global regulatory 339–342, 350n3, 356, 358, 359, 365, governance xxv, 69–104, 404 366, 368–371, 398, 403, 407, 408, 409n41 immunities, see privileges and immunities. jus cogens 50, 57, 64, 65 independence of international civil legitimate expectations 80, 85, 125, 154, servants 39, 40, 44, 99, 105–126, –77–94 260n34, 339, 356 416 index

morale of stafff, importance to 4, 15, 55 judicial control of administrative power, non-discrimination, principle of 23, 45, fundamental principle 35, 378 50, 71, 119, 130, 207, 297, 298, 323, 336, judicial powers of administrative 347, 357 tribunals 6 non-retroactivity 21–23, 50, 125, 237, necessity of 63, 356, 403n20 239, 371n88 oral hearings 51, 52, 58, 245, 247, 301, obligation of loyalty to the 331, 383, 384, 385 organization 126, 401 payment of judges 44 performance evaluation/review 5, 10, power to establish administrative 23, 95, 96, 114, 121, 131, 189, 194, 236, tribunals 33, 34, 353, 354, 357n31 237n14 pro-organization bias 42 precedent 10, 24, 36, 40, 49, 94, 95, 110, relationship between jurisdiction and 121, 124, 132, 147n31, 268 organizational immunity, see private life of stafff members 116 privileges and immunities. probation 6, 131, 197 removal of judges 307, 308, 391 procedural irregularities 49, 364 renewal of judges’ appointments 42, procedural participation 77–78 389 proportionality of means to renewal of registrars’ appointments 39, purposes 22, 48, 49, 80, 90n29, 282, 392 300n111, 312 restrictions on judges serving as stafff service limitation policies 124, 125 members 38, 306 reasoned decision, principle of 69, 77, International Atomic Energy Agency 79–81, 83, 84, 369, 407n36 (IAEA) 113, 116, 117, 124, 168, remedies, see remedies. international civil service law, see removal of executive head 106, 109, 120 international administrative law. retirement under duress 115 International Court of Justice (ICJ) 4, 17, review of discretion 21, 22, 24, 71, 115, 33, 38, 108, 278, 279, 349–363, 365–367, 123, 130, 135, 199, 239, 248, 336, 356, 371, 372, 388, 389, 391, 392 398n5, review of UNAT and ILOAT sources of law 95, 131, 132, 279 judgments 111, 349–351 substantive irregularity 45, 46, 48, International Covenant on Civil and 199n9 Political Rights (ICCPR) 293 transparency 7, 46, 69, 77–85, 89, 92, 93, International Labour Organization 98, 99, 103, 126, 145, 270, 379, 387 Administrative Tribunal (ILOAT) 37, 38, unilateral amendment of terms by 47, 50, 51, 102, 105, 110, 111, 115–119, organizations 19, 20, 45, 49 144–146, 149, 150, 153, 163, 175, 184, 189, written statement of reasons 79 268, 288, 289, 305, 323, 331, 350, 356–358, written warnings 131, 132 360, 365–368, 377, 384n33 international administrative tribunals, see legal foundations 356 also individual tribunal entries. review of judgments by ICJ 111, 349–351 appointment of judges 38, 39, 41, 42, 44, International Monetary Fund 91–93, 244, 301, 305, 307, 329, 332, Administrative Tribunal (IMFAT) 24, 184, 387–393, –30, 68, 76–77, 211, 290–291, 189, 305, 342, 343, 345 309–310 International Standards Organization arbitration, use of 265–270 (ISO) 74 budgetary autonomy 39, 393 Internet Corporation for Assigned comparison with investor-state Names and Numbers (ICANN) 74, 82n17 arbitration tribunals 90, 95 design of 273–302 League of Nations Administrative Tribunal discovery/disclosure, see discovery/ (LoNAT) ix, 4, 15, 34, 60, 67, 88, 106, 174, disclosure. 265, 275n10, 350n3, 202 independence of secretariats 38, 39, 40, 42, 44, 58, 91, 387, 392–394 misconduct cases 6, 10, 12, 23, 24, 48, judges serving as counsel 391, 392 49, 123, 197–201, 204, 248, 328, 346, – 4, 8, index 417

10, 20, 40, 41, 77, 101, 158–163, 199, 269, 293, 329, 342–348, 350, 351, 354, 355, 278 358, 361, 367, 368, 370, 378n12, 400, standards of review 197–201 406n32 North Atlantic Treaty Organisation applicable exchange rate 151 Appeals Board (NATOAB) 90n32 currency of 145, 166 ex aequo et bono 154, 185 Organisation for Economic Cooperation material damages 152, 153, 185 and Development (OECD) 73, 77, 78, moral damages 137, 153, 185 284, 285, 300, 328, 329, compliance by organizations 55, 58 Organization of American States enforcement 58 Administrative Tribunal (OASAT) 25, 51, inherent power 54, 97 142, 143, 181, 183 interest 98, 137, 153, 168, 248 pay increase 343 pensions ix, 5, 10, 28, 29, 116, 145, 146, 148, promotion 71n5, 112, 117, 343 158, 159, 173n91, 174, 180, 182, 205, 209, 210, reinstatement 54, 113, 115, 116, 152, 178, 211n33, 216, 220, 221–225, 227–230, 236, 326, 343–348 245, 321, 336, 357, 399n6 specifĳic performance 238, 343 maintenance of value 182 remuneration of international civil currency 158 servants 138–146, 148, 149, 156, 162, 163, IMF Stafff Retirement Plan 229 165, 177, 180, 182, 184, 185, 368 World Bank Stafff Retirement Plan adjustment of salary 16, 17, 19–23, 70n3, (SRP) 205, 209–211, 213, 216, 220, 145, 147, 155, 158, 165, 173, 183, 184, 235, 221–226, 228, 232 336 privileges and immunities 5, 9, 10, 12, 33, advances 156, 157 62, 91n32, 102n73, 107, 108, 117, 122, 126, automatic cost-of-living increases 21 203–208, 210–214, 222, 231, 273–278, 282, compensation policies, World Bank, 17, 298, 299, 307, 320, 326–328, 332, 357n31, 19 367n70, 376, 378, 380–385, 387, 397, 398, cost-of-living adjustment 147, 155, 403–407, 410 180–182 denial of 276, 298, 404n22, 406 currency conversion rules 162 garnishment of wages 204, 208–210 delay 168 see also alimony and child support. determination of currency 150 human rights challenges 275, 327 equal compensation for equal work 27 immunity of stafff 107, 108 exchange rate, International Organizations Immunities UN operational 151, 163, 170, Act 1945 206, 207, 208n25, 209, 211, predetermined 144 212 risk 160, 161, 163–166, 169, 171, 173, 174, judges of the WBAT 306 182, 185 personal legal obligations 203 health benefĳits 170 see also alimony and child support. Flemming principle 145, 148, UN Charter, Article 105 33, 108, 357n31, 155, 177 World Bank Articles of Agreement, negative post adjustment 183, 184 Article VII 206, 207, 304 Noblemaire principle 145 nominalism 137n2, 139, 173–176, 185 remedies 6, 17, 40, 53, 54, 86, 91n32, 101n72, obligation to maintain value 180 137n2233, 235–240, 276, 293, 301, 334, obligation to pay money 140 342–377, 378n12, 382, 400, 409 parallelism IMF/World Bank 22 annulment/rescission of the pensions, see pensions. administrative decision 53, 54, 238, policy of before-tax equivalence 27 261n38, 281, 301, 343, 344 principle of equality of treatment 142, compensation 24, 33, 44, 54, 60, 71n5, 145 96n51, 98, 101n72, 111, 113, 116, 145, principle of international 149–154, 160, 166–169, 171–173, 176–178, competitiveness for stafff salaries 24 180, 182, 184, 185, 238–240, 246, 248, unilateral change of currency 148 418 index

Report of the Redesign Panel on the World Bank Administrative Tribunal United Nations system of (WBAT) 4, 23, 24, 34, 35, 37–40, 42, administration of justice 89n26, 92n34, 45–53, 58, 90n30, 95, 96, 184, 188–190, 366n68 191n16, 197–200, 234–238, 279n21, retaliation 5, 13, 96n51, 98, 190, 196, 312 304–306, 318, 321–323, 325, 336, 342–345, 378, 385, 401–403, 406n32, 409n41 sources of international administrative administrative and budgetary law, see also international independence 39, 393 administrative law. 95, 131, 132, 279 advisory committee 305, 307, 388 appointment of judges 15, 38, 39, 305, tax reimbursement 15–17, 19, 20, 22, 25–27, 388, 389 29, 118–120, 151, 168 budget, 10, 33 declaratory judgments 237, 238 UN Economic Commission for Africa Executive Secretary 4, 30, 39, 89, 378 (ECA) 147 remedies 17, 233–240, 342, 345 UN Internal Justice Council 41, 42, 92, 93, see also remedies. 244, 250, 307n8, 388 removal of judges 307, 308 UN Management Evaluation Unit see also international administrative (MEU) 244, 246, tribunals, removal of judges. UN Offfĳice of Administration of Justice standing 216n48, 234 (OAJ) 243, 244, 249, 250, Statute 4, 11, 12, 38–40, 42n23, 53n56, United Nations Appeals Tribunal 198, 216n48, 234, 238, 304–308, 307, (UNAppT) 40, 41, 43n27, 45, 51, 308, 343, 345, 390 67, 86n20, 88, 92, 93, 97n52, 98, World Bank Group Stafff Association 11, 17, 243, 245, 247, 248, 250, 366, 19, 39, 233, 239, 305, 306n4, 388 388–390, 408 World Bank Inspection Panel 77, 80, 81, United Nations Dispute Tribunal 303, 313–315, 317, 318, 398n5, (UNDT) 40, 41, 43n27, 51, 67, 71n5, World Bank Sanctions Board 308, 311, 313, 86n20, 92–94, 97, 98, 243–245, 247, 250, 318 366, 388–390, 408 World Food Program (WFP) 292, 293n82 World Intellectual Property Organization Western European Union (WEU) 90, 277, (WIPO) 73, 182 280–284, 300, 329, 330, 332 World Trade Organization (WTO) 73, 74, World Anti-Doping Agency 74 77–81, 84