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Download: Brill.Com/Brill-Typeface The Role of International Administrative Law at International Organizations <UN> aiib Yearbook of International Law General Editor Gerard J. Sanders volume 3 The titles published in this series are listed at brill.com/aiib <UN> The Role of International Administrative Law at International Organizations Edited by Peter Quayle leiden | boston <UN> This is an open access title distributed under the terms of the CC-BY-NC 4.0 License, which permits any non-commercial use, distribution, and reproduction in any medium, provided the original author(s) and source are credited. This publication is a product of collaboration between staff of the Asian Infrastructure Investment Bank (AIIB) and external contributors. Information contained in this publication does not necessarily reflect the views of AIIB, its governance organs or its member governments. AIIB does not guarantee the accuracy of the information included in this publication. Nothing herein shall constitute or be construed as a limitation upon, or waiver of, the privileges and immunities of AIIB. Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. ISSN 2590-2822 ISBN 978-90-04-42030-4 (hardback) ISBN 978-90-04-44103-3 (e-book) Copyright 2021 by Peter Quayle. Published by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. Koninklijke Brill NV reserves the right to protect this publication against unauthorized use. This book is printed on acid-free paper and produced in a sustainable manner. <UN> Contents 1 The Modern Multilateral Bureaucracy: What is the Role of International Administrative Law at International Organizations? 1 Peter Quayle Part 1 The Legal Premise of International Administrative Law 2 The Tension between the Jurisdictional Immunity of International Organizations and the Right of Access to Court 25 Edward Chukwuemeke Okeke 3 Breaking the Silence: Why International Organizations Should Acknowledge Customary International Law Obligations to Provide Effective Remedies 54 Kristina Daugirdas and Sachi Schuricht 4 What is ‘International Administrative Law’? The Adequacy of this Term in Various Judgments of International Administrative Tribunals 88 Shinichi Ago 5 The Terms and Conditions of Employment of International Civil Servants: Implied Terms Recognized by the Asian Development Bank Administrative Tribunal 103 Damien J. Eastman Part 2 Resolving Employment-Related Disputes at International Organizations 6 To Join or Not to Join: A Comparative Analysis of Joining or Creating an International Administrative Tribunal 119 Katherine Meighan and Gabriel Rodríguez-Rico 7 Arbitrating Employment Disputes Involving International Organizations 141 Rishi Gulati and Thomas John <UN> vi Contents 8 The Global Fund to Fight AIDS, Tuberculosis and Malaria: The Journey of a Public-Private Partnership 158 Fady Zeidan and Jean Abboud 9 Evolution of the Grievance System of the European Bank for Reconstruction and Development: Lessons Learnt and Way Forward 172 Nobert Seiler Part 3 The Role and Reform of International Administrative Tribunals 10 The Commonwealth Secretariat Arbitral Tribunal: The Evolution and Explanation of Changes to the Tribunal’s Statute 191 Alice Lacourt 11 The Effectiveness of the North Atlantic Treaty Organization in an Era of Adaptation: The Role of the North Atlantic Treaty Organization Administrative Tribunal 213 Steven Hill and Nick Minogue 12 Building an Administrative Tribunal of an International Financial Institution from Scratch: Lessons from the European Stability Mechanism 225 David Eatough Part 4 International Administrative Law and the Effectiveness and Integrity of International Organizations 13 The Manager’s Duty to Resolve or Report Misconduct: The Example of the International Monetary Fund’s Retaliation Policy 241 Brian Patterson, Pheabe Morris and Brenda Costecalde Orpineda 14 Procedural Requirements in Staff Misconduct Cases: The Evolving Approach of the African Development Bank Administrative Tribunal 262 Eric P. LeBlanc <UN> Contents vii 15 Macro-Trends in the Performance Management of International Civil Servants and Their Legal Implications 275 Laurent Germond and Estelle Martin Appendices 16 2019 AIIB Law Lecture: The Rise of Sustainable Development in International Investment Law 297 Nico Schrijver 17 2019 AIIB Legal Conference Report 315 Yongqing Liu and Graciela Base <UN> <UN> Chapter 1 The Modern Multilateral Bureaucracy: What is the Role of International Administrative Law at International Organizations? Peter Quayle* Abstract What is the role of ‘international administrative law’—the law of employment relations—at international organizations? This chapter begins by contrasting the in- ternational legal status of States on the one hand, and international organizations on the other, before noting that the bureaucracies of the latter are heir to the traditions and identity of the former. It is then argued that transposing modern bureaucracy— ideally, meritocratic and impersonal national civil services—to multilateral adminis- tration, replaces the ‘patrimonial’ pressures on modern States with the related risks of ‘State sociability’ and co-option of international organizations. We then review the several legal bases of international administrative tribunals to discern whether inter- national administrative law takes into account this strain. This chapter draws the con- clusion that international administrative law is inherent to the assumption by multi- lateral administration of the ideals of modern bureaucracy— impartial, efficient and energetic—and so synonymous with the independent existence of international organizations. 1 Introduction The functionalist paradigm that underpins the law of international organizations1—namely, that intergovernmental institutions are attributed * Peter Quayle, Chief Counsel, Corporate at Asian Infrastructure Investment Bank (AIIB) and Visiting Professor of International Organizations Law at Peking University Law School, pe- [email protected]. The contents of this chapter reflect the personal opinion of the indi- vidual author and are not the views of AIIB. The author is grateful to Yifeng Chen and Christian Parreno for their comments on an earlier draft. 1 See, for example, ilc, ‘Draft Articles on Responsibility of International Organizations’ 2011, art 2(a), “‘international organization’ means an organization established by a treaty or other instrument governed by international law and possessing its own international legal © Asian Infrastructure Investment Bank (AIIB), ���1 | doi:10.1163/9789004441033_00� This is an open access chapter distributed under the terms of the cc-by-nc 4.0 License. 2 Quayle functions by their member States together with all necessary powers to fulfil such functions—lends itself to a dynamism (or malleability, if you prefer) con- cerning the competences and controls of these powerful and pervasive inter- national actors.2 Tellingly, the limits of the powers of an international organi- zation were most emphatically encountered by the International Court of Justice (icj) when ruling what an intergovernmental institution was not: it was not a State, “still less […] a ‘super-State’, whatever that expression may mean”.3 Whilst in Reparation for Injuries (1949), the icj determined that an interna- tional organization is possessed of an international legal personality, governed by international law, “That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State”.4 The limitation this imposes is underlined by the icj in a later advisory opinion, Legality of Nuclear Weapons (1996): The Court need hardly point out that international organizations are subjects of international law which do not, unlike States, possess a gen- eral competence. International organizations are governed by the ‘princi- ple of speciality’, that is to say, they are invested by the States which cre- ate them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them.5 Yet, although international law distinguishes between the competences of States and the international organizations they create, they share an institu- tional identity. The official bureaucracies of States—their national civil service—are the antecedents of the multilateral secretariats of intergovern- mental institutions—the international civil service. Therefore, following this introduction, in attempting to answer the question, ‘What is the role of inter- national administrative law at international organizations?’, this chapter will begin by considering the ideals of modern bureaucracy—of a national civil service (Section 2); before contemplating how transposition of these ideals to personality”; this chapter uses the terms ‘international organization’ and ‘intergovernmental institution’ interchangeably. 2 See, generally, Klabbers 2015, 9 (“Few people would dispute the relevance of international organizations as part of our [normative universe], and yet our understanding of these crea- tures is very limited”). 3 icj, Reparations for Injuries, 9. 4 Ibid. 5 icj, Legality of Nuclear Weapons, para 25. <UN> The Modern Multilateral Bureaucracy 3 multilateral administration is accompanied by the sustained strain of State in- terference
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