International Administrative Tribunals Research Articles

Sun from Behind the Clouds: the Appeals Board of the European Centre for Medium-Range Weather Forecasts

Abstract One of the lesser-known regional international organizations in Europe is the European Centre for Medium-Range Weather Forecasts (ECMWF). It has a mandate to undertake tasks such as the production of weather forecasts, conduct scientific research to improve meteorological projections, maintain extensive datasets, and to better coordinate European meteorological infrastructure. The Centre has three sites across three European states where it has over 400 staff, and given it is immune from suit, its staff members only have an internal justice mechanism to resort to in the event of employment/pensions disputes. Little is known about the ECMWF Appeals Board given its untransparent nature. As uncovered in this article, it has undergone partial reform, and simultaneously, there has been an uptick in the number of cases. This article analyses these developments and highlights that more must be done to align the ECMWF Appeals Boards with the features of other international administrative tribunals.

Proliferation of Standards of Proof in International Administrative Tribunals

Abstract All international organizations have or ought to have a code of conduct. When international civil servants breach their basic obligations and engage in misconduct, they may face disciplinary proceedings and be subject to a wide range of sanctions, including dismissal and other forms of separation from service. However, different international organizations apply dissimilar standards of proof for establishing the alleged facts that constitute misconduct. For instance, in some institutions, the applicable standard of proof is “beyond a reasonable doubt”, while in others, it is a balance of probabilities. The lack of consistency is attributable to the jurisprudence of various international administrative tribunals. This article compares how six international administrative tribunals interpret and apply the evidential threshold to disciplinary cases. It identifies practical difficulties caused by a lack of a uniform approach and recommends remedial measures for international organizations and international administrative tribunals.

Proliferation of International Administrative Tribunals

AbstractThe first international administrative tribunal was set up in 1927. Since the Second World War many worldwide and regional international organizations were set up. They either created their own tribunal or accepted the jurisdiction of another tribunal for the adjudication of employment disputes. Dozens of such tribunals are functioning at present. Recently a number of organizations have withdrawn from the Administrative Tribunal of the International Labour Organization (ILOAT), and either set up their own tribunal or accepted the jurisdiction of another tribunal, which amounts to forum shopping. However, the proliferation of tribunals entails the risk of diverging judgments. Some cases have indeed occurred over the years, which have often been followed by calls for the merging of tribunals, or for the creation of a common appellate court. Some studies were made, but no concrete action was ever undertaken. Generally, there has been some convergence; however, it is likely that the current proliferation will remain.

A Few Thoughts about the Concepts of International Administrative Tribunals and International Administrative Law

AbstractThis note tries to determine the most appropriate way to position international administrative tribunals (established by a number of inter-governmental organizations) in the public international legal order, and identify the substance of the so-called international administrative law applied therein. There is an emerging group of laws arising from numerous international administrative tribunal decisions that form a substantive body of legal rules applicable therein: a law of international civil service. Judges in those tribunals, who look for an appropriate source whenever they face a non-liquet situation, use the concept of international administrative law to overcome such difficulties. Judges should not hide themselves behind an ambiguous notion of international administrative law or general principles, but apply the law of international civil service with confidence.

Transnational Justice: Unveiling the Dynamics of International Administrative Tribunals and Administrative Law

This research article explores the realm of international administrative law, focusing on the pivotal role of international administrative tribunals in adjudicating disputes and ensuring accountability across transnational contexts. Beginning with a post-World War II historical overview, it underscores the tribunals' significance in safeguarding individuals' rights within international organisations. Through an examination of the evolution of international administrative law, including the proliferation of specialised tribunals and refinement of norms, it navigates the tension between autonomy and accountability. Drawing on legal scholarship and practical considerations, it addresses challenges such as defining administrative authority and diverse adjudication approaches. The exploration of the Law of International Civil Service is central to the discussion, providing a framework for understanding applicable legal norms. This research contributes to a clearer understanding and effective implementation of international administrative law in contemporary global governance, offering insights crucial for legal scholars, practitioners, and policymakers.

In Search of Coherence: Burden and Standard of Proof in International Administrative Law

Abstract The authors explore the rules governing the burden and standard of proof in international administrative law, both from a general perspective and in specific contexts such as termination for misconduct, harassment, retaliation, performance and promotions, and service-incurred illnesses. They compare the rules applied by various international administrative tribunals with those applied by courts in domestic jurisdictions. They conclude that some international organizations should review their rules in the interest of coherence, and revert back to a contextualized application of the usual civil standard of proof instead of applying different standards depending on the circumstances.

Acquired Rights in International Administrative Law

The acquired rights doctrine limits the ability of an international organisation (io) to unilaterally amend a staff member’s conditions of employment to his or her detriment. The leading international administrative tribunals, especially the Administrative Tribunal of the International Labour Organisation or the ILOAT refined and developed the doctrine’s meaning and scope over decades. There has been a general consensus that the acquired rights doctrine protects a staff member’s essential terms of employment both retrospectively and prospectively. However, in its recent jurisprudence, the United Nations Appeals Tribunal or the UNAT has rendered the acquired rights doctrine with little work to do by reducing it to the principle of non- retroactivity. As a result, the consensus as to the doctrine’s core meaning is now undermined. International civil servants having access to the ILOAT are much better protected from unilateral adverse amendments to their conditions of employment when compared to those international public officials whose organisations have subscribed to the jurisdiction of the UNAT. This is an unwelcome development for the content of substantive protections is now more dependent on the tribunal approach, as opposed to a coherent development of the law.

Acquired Rights in International Administrative Law

Until recently, there has been a basic consensus on the understanding of the acquired rights doctrine which is said to constitute a supreme general principle of international civil service law, also known as international administrative law. In this paper, I show that this consensus painstakingly developed over decades by international administrative tribunals has now been broken. I chart the history of the doctrine showing how it was initially received to perform a protective function given the considerably weaker position of the employee vis-a-vis the employer organization. Primarily through the jurisprudence of the Administrative Tribunal of the International Labor Organization (‘ILOAT’), the doctrine’s conventional understanding in international administrative law was then developed and refined over several decades. However, in its recent jurisprudence, the United Nations Appeals Tribunal has rendered the acquired rights doctrine with little work to do by collapsing it to the principle of non-retroactivity. The consensus as to the doctrine’s meaning is now undermined. This is an unwelcome development.

The Denial of Oral Hearings by International Administrative Tribunals as a Factor for Lifting Organizational Immunity before European Courts

Although formally provided for in particular statutes, certain international administrative tribunals continue to hold oral hearings—if at all—only on the rarest of occasions. With specific attention to the International Labour Organization Administrative Tribunal, the present paper aims 1) at recapitulating essential holdings of the European Court of Human Rights with regard to the right to access to a court in the context of employment-related claims against international organizations; and 2) at examining the relevance of oral hearings in the determination of proportionality of organizational immunity. The analysis shows that, in principle, the denial of oral hearings by international administrative tribunals results in the duty of states to afford individuals access to a court. In the realm of international law, a conflict with the obligation to grant immunity ensues. As yet, domestic courts have remained reluctant to overrule immunity on human rights grounds.

An International Administrative Procedural Law of Fair Trial: Reality or Rhetoric?

Highlighting that the right to a fair trial in international law now forms an aspect of international administrative procedural law, I argue when international administrative tribunals administer justice to international civil servants, fair trial guarantees must be accorded. Particularly, in this paper I assess the two leading international administrative tribunals, the United Nations Dispute Tribunal and the Administrative Tribunal of the International Labour Organisation, in terms of their compliance with fair trial standards. Focusing on the jurisprudence of the International Court of Justice, I first show how what I call an international procedural law of fair trial has been developed and requires that basic due process guarantees must be accorded wen delivering international administrative justice. I then develop fair trial standards with greater nuance, especially focusing on the quality of independence and impartiality. Then, the paper engages in a detailed analysis of the leading international administrative tribunals in terms of compliance with fair trial standards, concluding that significant deficits exist. If a fair trial for international civil servants is to be guaranteed, significant structural reforms are necessary.

Procedural Fairness as a Precondition for Immunity of International Organizations

This article analyses the notion and role of fairness in the procedural rules and practice of international administrative tribunals. After reviewing decisions of international administrative tribunals dealing with the notion of fairness, it shows that tribunals rely on the concept of fairness to limit discretion of decision-makers, to fill gaps in law and to override written law to ensure fairness. The article makes suggestions as to how to reconcile the different visions and roles of fairness in international administrative law. It argues that with the further development of international administrative law, tribunals should as much as possible rely on rules and principles formulated by external bodies rather than on their personal understanding of fairness.

The Governance of International Courts and Tribunals: Organizing and Guaranteeing Independence and Accountability - A Appeal for Research

International courts and tribunals have by now become well-established institutions. Many books and articles have been published on the law and practice of, for example, the International Criminal Court, various international criminal tribunals - notably those for the former Yugoslavia and for Rwanda - the International Tribunal for the Law of the Sea (ITLOS), the Appellate Body of the World Trade Organization, international administrative tribunals (dealing with complaints of staff of international organizations), regional courts in Europe, Africa and America (such as the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR)). At the same time, significantly less research has been done into the law and practice of those international organs (‘governance institutions’) that carry out the necessary governance functions over all these international courts and tribunals. Examples of such organs are the Assembly of States Parties (the governance institution for the ICC), the Meeting of States Parties to the UN Convention on the Law of the Sea (‘SPLOS’, for ITLOS), the Dispute Settlement Body of the WTO (for the WTO Appellate Body), the Committee of Ministers and the Parliamentary Assembly of the Council of Europe (for the ECtHR). These governance institutions elect the judges of international courts and tribunals, adopt their budgets, supervise the implementation of judgments and take other decisions that are of fundamental importance for the way in which international courts and tribunals can carry out their judicial tasks independently. This paper is an appeal for more research into the law and practice of what I will call international judicial governance institutions (injugovins).

On the Notion of Precarious Employment in International Organizations

International civil servants form part of the essential fabric of international organizations, but some of the hiring modalities of these institutions appear at first glance to pursue an endemic employment malpractice. However, the practice referred to in national labour markets as ‘precarious employment’ appears to be necessary for international organizations to carry out their constitutional mission, and which is essential if they are to adapt and evolve. Both constitutionalist and functionalist standpoints recognise that precarious employment is an existing phenomenon within international institutions. Nevertheless, such hiring practices also arguably have the effect of partially severing the loyalty of an international organization’s staff, which is seen as a fundamental component supporting the effective functioning of an international institution. A functionalist approach therefore largely explains this hiring reality among international organizations; but international administrative tribunals and the limits established by them also play a part, indicating that more constitutionalist elements of control are also present. This paper presents the axiomatic elements of the hiring practices of international organizations, and seeks to unearth an apparent meeting point between the understandings of constitutionalists and functionalists that indicate that international law is evolving.

The World Bank Administrative Tribunal’s External Sources of Law: The Next Chapter (2006–2010) (Part II)

Abstract The World Bank Administrative Tribunal has begun its second quarter-century with a jurisprudential flowering of extraordinary proportions. Mr. Hansen’s study, which builds on his earlier 25-year retrospective, comprehensively surveys the Tribunal’s numerous doctrinal developments during this time. In this article, which is part two of two, Mr. Hansen revisits two of the four subjects explored in his retrospective: (i) the role of general legal principles as a source of Tribunal law, particularly with respect to the Tribunal’s recent and extensive due process jurisprudence; and (ii) the role of external case law as a source of Tribunal law, including decisions from international courts, international administrative tribunals, international arbitral tribunals and national courts. Extensively footnoted, Mr. Hansen’s study is intended for both academics and practitioners specializing in international administrative law and comparative international jurisprudence.

Law of the International Civil service: A Venture into Legal Theory

AbstractThe employment relations of international organizations are governed by their constituent instruments, internal laws and practice, with no overarching legal regime governing international civil service as such. However, academics and international administrative tribunals refer to 'international civil service law', while the tribunals also apply the general principles of such law. There is uncertainty as to what the legal basis behind this is and whether this refers to a common legal regime applicable to international organizations. This contribution analyses the existence or the possibility of such a common legal regime. It introduces the notion of 'international civil service' as a legal institution and international civil service law as its legal regime. The author analyses the theoretical foundation and potential normative bases of this common legal regime, setting out an agenda for further research.

Cissé v. International Bank for Reconstruction and Development

117 International organizations — International administrative tribunals — World Bank Administrative Tribunal — Investigation — Misconduct — Due process — Anonymous accusations — Public activities and interests — Conflict of interest — National legislation as source of law — Bank practice as source of law — Waiver of right to invoke Tribunal’s jurisdiction

E v. International Bank for Reconstruction and Development

224 International organizations — International administrative tribunals — World Bank Administrative Tribunal — Family support owed by Bank staff members — Staff members’ private legal obligations — Withholding of compensation and benefits in misconduct cases — Bank practice as source of law — Investigation — Conduct of investigation by Ethics Office — Misconduct — Disciplinary procedures — Confiscation of staff property — Bank’s relationship to national authorities — Relationship of Tribunal to national courts — Implementation of national court judgment — Due process — Transparency — Bank immunity — Pension — Settlement of case

Conthe v. International Bank for Reconstruction and Development

149 International organizations — International administrative tribunals — World Bank Administrative Tribunal — Probationary appointment — Non-confirmation of appointment — Performance evaluation — Evaluation of senior management — Reassignment — Retaliation

D v. International Finance Corporation

196 International organizations — International administrative tribunals — World Bank Administrative Tribunal — Investigation — Misconduct — Abuse of position for financial gain — Acceptance of remuneration from outside parties in connection with Bank appointment — Failure to observe generally applicable norms of prudent professional conduct — Performance of service for outside entity — Retention and sharing of pornography — Application of amended staff rules — Proportionality of sanction — Due process — Administrative leave during investigation — Removal from office premises

Sengamalay v. International Bank for Reconstruction and Development

131 International organizations — International administrative tribunals — World Bank Administrative Tribunal — Reassignment — Redundancy — Withdrawal of redundancy — Retaliation — Anonymous accusations — Evaluation of management skills