No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 16 May 2022
The 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 Recently a number of organizations have withdrawn from the Administrative Tribunal of the International Labour Organization (ILOAT), and either set up their own tribunal or accepted the jurisdiction of another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.
1 The notion “international administrative tribunal” is indeed misleading, since these tribunals, with a few exceptions, which will be dealt with infra, generally only deal with international civil service cases and not with challenges to other administrative decisions. See, in this volume, Shin-ichi AGO, “A Few Thoughts about the Concepts of International Administrative Tribunals and International Administrative Law”.
2 OKEKE, Edward Chukwuemeke, “The Tension between the Jurisdictional Immunity of International Organizations and the Right of Access to Court” in QUAYLE, Peter, ed., The Role of International Administrative Law at International Organizations, AIIB Yearbook of International Law, Vol. 3 (Leiden: Nijhoff, 2020), 25 at 28–40Google Scholar.
3 Case of Waite and Kennedy v. Germany, [1999] ECHR Application No. 26083/94; Case of Beer and Regan v. Germany, [1999] ECHR Application No. 28934/95, as well as [2003] ECHR Application No. 70009/01. Cf. COOKER, Chris DE and SÜSS, Gisela, “Immunity of International Organisations from National Jurisdiction in Staff Matters” in DE COOKER, Chris, ed., International Administration: Law and Management Practices (Leiden: Nijhoff, 2009), Chapter III.4, 541Google Scholar and references there.
4 Not to be confused with peer review committees, which have similar names in other organizations.
5 Examples are the European Union Satellite Centre and OCCAR.
6 See, for example, Klausecker v. European Patent Organisation, [2007] ILOAT Judgment No. 2657, Consideration 6, and the related Klausecker v. Germany, [2015] ECHR Application No. 415/07 at para. 76. For a summary of these cases cf. COOKER, Chris DE, “Access to International Administrative Tribunals for Employees, Consultants and Short-Term Staff of International Organizations” in DILEITA, Abdoulkader, ed., International Administrative Justice and International Organizations: Overview and Prospects (Abidjan: AfDB, 2019) at 54–8Google Scholar. See also GULATI, Rishi and JOHN, Thomas, “Arbitrating Employment Disputes Involving International Organizations” in QUAYLE, Peter, ed., The Role of International Administrative Law at International Organizations, AIIB Yearbook of International Law, Vol. 3 (Leiden: Nijhoff, 2020), 141Google Scholar.
7 See O'KEEFFE, David, “The Court of First Instance of the European Communities” in DE COOKER, Chris, ed., International Administration: Law and Management Practices (Leiden: Nijhoff, 2009), Chapter V.5Google Scholar.
8 See MAHONEY, Paul, “The European Union Civil Service Tribunal” in DE COOKER, Chris, ed., International Administration: Law and Management Practices (Leiden: Nijhoff, 2009), Chapter V.13Google Scholar.
9 The Treaty on the Eurasian Economic Union, 29 May 2014, (entered into force 1 January 2015), Chapter IV. Jurisdiction of the Court, Article 46.
10 Generally, reference is made to public international organizations set up by states by treaty. New types of organizations have, however, appeared that are being recognized (as is their de facto function) as international organizations. The “classic” definition thus needs to be reviewed. See, DROESSE, Gerd, “Governance Changes in International Organizations: New Trends and Developments” in DE COOKER, Chris, ed., Governance: International Organizations Adapting to Changing Environments (Brussels: Larcier, 2022)Google Scholar.
11 See for more details: TARASSENKO, Serguei and ZACKLIN, Ralph, “Independence of International Civil Servants” in DE COOKER, Chris, ed., International Administration: Law and Management Practices (Leiden: Nijhoff, 2009), Chapter III.1 at 483–5Google Scholar.
12 For Example: ITU in 1865, UPU in 1874, and IUPIP (later WIPO) in 1883, etc.
13 The International Institute of Agriculture, set up in 1905, already had independent international staff, but their appointments required approval by their respective national authorities.
14 Before that, LoN staff could appeal to the Executive Council, and ILO staff to the ILO Governing Body. See Dražen PETROVIĆ, “Longest-Existing International Administrative Tribunal: History, Main Characteristics and Current Challenges” in Dražen PETROVIĆ, ed., 90 Years of Contribution of the Administrative Tribunal of the International Labour Organization to the Creation of International Civil Service Law (Geneva: ILO Publication, 2017), 19. The International Institute of Agriculture set up its tribunal in 1931. Cf. AMERASINGHE, C.F., Jurisdiction of International Tribunals (New York: Kluwer Law International, 2003) at 176Google Scholar.
15 Initially with the same judges.
16 The first organization to join was the International Federation of Red Cross and Red Crescent Societies.
17 A list can be found at: International Labour Organisation, “Organizations Recognizing the Jurisdiction”, online: ILO <https://www.ilo.org/tribunal/membership/lang--en/index.htm>.
18 When counting the World Bank Group as one, including IDA and IFC.
19 Today generally known as the World Bank Group.
20 Comité consultative de la fonction publique européenne du Conseil de l'Europe: rapports sur les problèmes juridictionnels de la fonction publique européen, sur le statut type de la Fonction publique européenne [Le Conseil de l'Europe].
21 See WIEBRINGHAUS, Hans, “Une nouvelle juridiction administrative en Europe: la Commission de Recours du Conseil de l'Europe” (1965) 11 Annuaire Français de Droit International 379CrossRefGoogle Scholar.
22 Its Chair and Deputy Chair are appointed by the European Court of Human Rights.
23 See, AMERASINGHE, C.F., “The World Bank Administrative Tribunal: Its Establishment and its Work” in DE COOKER, Chris, ed., International Administration: Law and Management Practices (Leiden: Nijhoff, 2009), Chapter V.3 at 687Google Scholar.
24 See, Joan S. POWERS, “Reinventing the Wheel – The Establishment of the IMF Administrative Tribunal” in Chris DE COOKER, ed., International Administration: Law and Management Practices (Leiden: Nijhoff, 2009), Chapter V.10.
25 See Gino J. NALDI and Konstantinos D. MAGLIVERAS, “The African Court of Justice and Human Rights: A Judicial Curate's Egg” (2012) 9(2) International Organizations Law Review 383.
26 Adejoké BABINGTON-ASHAYE, “Some Observations on the Jurisdiction of the African Court of Justice and Human Rights over International Administrative Law” in Charles C. JALLOH, Kamari M. CLARKE, and Vincent O. NMEHIELLE, eds., The African Court of Justice and Human and Peoples’ Rights in Context: Development and Challenges (Cambridge: Cambridge University Press, 2019), 1035.
27 Cf. Convention Defining the Statute of the European Schools, 21 June 1994, OJ L 212 (entered into force 1 October 2002), signed by member states and the European Communities.
28 Paul Miles and Others v. European Schools, [2011] ECJ Case C-196/09.
29 See Alice LACOURT, “The Commonwealth Secretariat Arbitral Tribunal: The Evolution and Explanation of Changes to the Tribunal's Statute” in Peter QUAYLE, ed., The Role of International Administrative Law at International Organizations, AIIB Yearbook of International Law, Vol. 3 (Leiden: Nijhoff, 2020), 191.
30 See Norbert SEILER, “Evolution of the Grievance System of the European Bank for Reconstruction and Development: Lessons Learnt and Way Forward” in Peter QUAYLE, ed., The Role of International Administrative Law at International Organizations, AIIB Yearbook of International Law, Vol. 3 (Leiden: Nijhoff, 2020), 172.
31 Known as IDB Invest since 2017.
32 See KENNEDY, John P. “Jack”, “Improving the Steps Below: Administrative Review in International Organizations” in The Administrative Tribunal of ADB: 20 Years of Operation (Manila: Asian Development Bank, 2012), 37Google Scholar and COOKER, Chris DE, “Improving the Steps Below: Peer Review in the Internal Justice System of International Organizations” in The Administrative Tribunal of ADB: 20 Years of Operation (Manila: Asian Development Bank, 2012), 52Google Scholar.
33 IFAD and WMO previously adhered to ILOAT. The Universal Postal Union (UPU) withdrew from ILOAT with effect from 21 May 2021. It is expected that it will follow the examples of IFAD and WMO and accept the jurisdiction of UNAT. For details see infra.
34 Sheffer v. Secretary-General of the International Maritime Organization, [2019] UNAT Judgment No. 2019-UNAT-949; Rolli v. Secretary-General of the World Meteorological Organization, [2019] UNAT Judgment No. 2019-UNAT-952; Spinardi v. Secretary-General of the International Maritime Organization, [2019] UNAT Judgment No. 2019-UNAT-957; Dispert and Hoe v. Secretary-General of the International Maritime Organization, [2019] UNAT Judgment No. 2019-UNAT-958; and Webster v. Secretary-General of the International Seabed Authority, [2020] UNAT Judgment No. 2020-UNAT-983. See also Patsy Bello v. Secretary-General of the International Maritime Organization, [2020] UNAT Judgment No. 2020-UNAT-1074 and Margaret Mary Fogarty, Robert Sheffer, Monia Spinardi, Astrid Dispert and Minglee Hoe v. Secretary-General of the International Maritime Organization, [2021] UNAT Judgment No. 2021-UNAT-1148.
35 Ibid.
36 The UN increased the fee sharply at the end of 2020.
37 It became operational on 1 June 2011, so it initially also had to deal with cases that were already pending since 2009.
38 UNRWA has around 30,000 staff. The number of staffs of the UN Secretariat plus related entities is somewhat under 80,000.
39 See David EATOUGH, “Building an Administrative Tribunal of an International Financial Institution from Scratch: Lessons from the European Stability Mechanism” in Peter QUAYLE, ed., The Role of International Administrative Law at International Organizations, AIIB Yearbook of International Law, Vol. 3 (Leiden: Nijhoff, 2020), 225.
40 Another example of a public-private organization is the Global Community Engagement and Resilience Fund (GCERF), which accepted ILOAT's jurisdiction in 2015.
41 It is interesting to note that one Agency of NATO is in the process of setting up a tribunal to hear cases of some members of its workforce who are not staff members. Not much information is in the public domain yet. In 2016, the NATO AT held in B et al v. SHAPE, [2015] NATOAT Case No. 2015/1056-1064 that it lacked jurisdiction regarding multiple claims seeking recognition that the appellants were NATO staff members.
42 Provisions specific to each organization apply to the pre-litigation phase. The Chair of the CoEAT is, however, responsible for appointing a Conciliator and a Deputy Conciliator for each organization.
43 See D. (No. 3) v. OTIF, [2020] ILOAT Judgment No. 4215.
44 See, for example, M. d. R. C. e S. d. V. v. WMO [2008] ILOAT Judgment No. 2742 (jo. 2861, 3046, and 3027) and M.-K. A. v. WMO, [2014] ILOAT Judgment No. 3348 (jo. 3723).
45 It, in fact, did not have judges on the date it allegedly started operating.
46 See E.E.É. A. v. CTA, [2012] ILOAT Judgment No. 3067, P. K. v. CTA, [2012] ILOAT Judgment No. 3068, O. K. N. v. CTA, [2015] ILOAT Judgment No. 3436, I. T. v. CTA, [2015] ILOAT Judgment No. 3437, A. (No. 2) v. CTA, [2015] ILOAT Judgment No. 3481, K. (No. 2) v. CTA, [2015] ILOAT Judgment No. 3482, N. v. CTA, [2017] ILOAT Judgment No. 3718, and T. v. CTA, [2017] ILOAT Judgment No. 3719.
47 Cf. IFAD's Withdrawal from the Jurisdiction of the Administrative Tribunal of the International Labour Organization (ILOAT) and its Submission to the Jurisdiction of the United Nations Appeals Tribunal (UNAT) based on the Assessment and Recommendations Outlined in EB 2019/126/R.35, IFAD EB 2019/126/C.R.P.1/Rev.2 (6 May 2019). See, for more details, also IFAD's Appeals Process: Assessment and Recommendations, IFAD EB 2019/126/R.35 (6 May 2019). It is recalled that this is not the first time that IFAD had “issues” with ILOAT. It, for example, failed to execute Judgment No. 2867. Instead, it decided to request an Advisory Opinion of the ICJ. At the same time, it filed an application with ILOAT for the suspension of the execution of the Judgment. ILOAT dismissed this application in Judgment No. 3003. The ICJ rendered its Advisory Opinion on 1 February 2012, which was negative for the IFAD. See for more details Dražen PETROVIĆ, “Wrong Address? Advisory Opinion of the ICJ on the Judgment No. 2867 of the ILOAT upon a Complaint Filed against the International Fund for Agricultural Development” in Rüdiger WOLFRUM, Maja SERŠIĆ, and Trpimir M. ŠOŠIĆ, eds., Contemporary Developments in International Law: Essays in Honour of Budislav Vukas (Leiden: Nijhoff, 2016), 729.
48 No specific reference to ILOAT's jurisprudence was made in this respect.
49 IFAD admitted that the ILOAT was improving its record on this point. See also below the discussion on diverging judgments on the Geneva post adjustment, where the ILOAT issued its judgments a year before the UNDT did. Some more background reflections can be found in an article written by IFAD's Legal Office, which only discusses the question of whether an organization should join a multi-jurisdictional tribunal, or set up its own. It does not entertain the question of leaving one tribunal for another. See MEIGHAN, Katherine and RODRÍGUEZ-RICO, Gabriel, “To Join or Not to Join: A Comparative Analysis of Joining or Creating an International Administrative Tribunal” in QUAYLE, Peter, ed., The Role of International Administrative Law at International Organizations, AIIB Yearbook of International Law, Vol. 3 (Leiden: Nijhoff, 2020), 119Google Scholar.
50 Cf. G. (No. 3) v. UPU, [2017] ILOAT Judgment No. 3928, M. B. v. UPU, [2018] ILOAT Judgment No. 3929, and N. v. UPU, [2018] ILOAT Judgment No. 3930. In the latter two, ILOAT granted material damages.
51 See Consideration 17.
52 See also ILOAT's note to ILO GB: Matters Relating to the Administrative Tribunal of the ILO: Proposed Amendments to the Statute of the Tribunal, ILO GB.335/PFA/12/1 (7 March 2019).
53 See POWERS, Joan S., “The Evolving Jurisprudence of the International Administrative Tribunals: Convergence or Divergence?” in QUAYLE, Peter and GAO, Xuan, eds., Good Governance and Modern International Financial Institutions, AIIB Yearbook of International Law, Vol. I (Leiden: Nijhoff, 2018), 68Google Scholar. See also Olufemi ELIAS, ed., The Development and Effectiveness of International Administrative Law: On the Occasion of the Thirtieth Anniversary of the World Bank Administrative Tribunal, Queen Mary Studies in International Law, Vol. 8 (Leiden: Nijhoff, 2012).
54 Cf. de Merode et al. v. The World Bank, [1981] WBAT Decision No. 1, and discussion below.
55 GUILLAUME, Gilbert, “Declaration D'ouverture” in ZIADÉ, Nassib G., ed., Problems of International Administrative Law: On the Occasion of the Twentieth Anniversary of the World Bank Administrative Tribunal (Leiden: Nijhoff, 2008), 7 at 10Google Scholar.
56 Powers observes that it is quite uncommon for the ILOAT or the UNAdT/UNAT to cite other tribunals, but that others do. See Powers, supra note 53 at 71.
57 Initially CoE, ESA, NATO, OECD, and WEU. WEU ceased to exist in 2011. ECMRWF joined in 1988 and EUMETSAT in 2012. EPO applied for membership in 1977, but withdrew this in 1987. Each Coordinated Organisation has its own AT, c.q. Appeals Board. EPO accepted the jurisdiction of the ILOAT.
58 Cf. Stevens and Others v. Secretary General, [1985] CoE Appeals Board Case No. 101-113/1984 and Paul Levy v. Secretary General, [1986] CoE Appeals Board Case No. 118-129/1985, L., L., F., B. et al. v. ESA, [1986] ESA Appeals Board Cases Nos. 24–27, NATO Appeals Board Decisions Nos. 174–80, 182, 184–6, 188–95, and OECD Appeals Board Decisions Nos. 105 and 106. See also In re Andres (No. 2), Benze (No. 2), Chaki, Iverus (No. 3), and McGinley, [1986] ILOAT Judgments No. 726 regarding EPO and In re Andres (No. 8), [1986] ILOAT Judgments No. 785, where EPO staff unsuccessfully invoked the decision of the CoE Appeals Board. Ibid., for NATO staff, NATO Appeals Board in Cases Nos. 218–27, 26 March 1987.
59 Cf. Egbert Ausems and others v. Secretary General, [1987] CoE Appeals Board Case Nos. 133-145/1986, Inhouding, [1990] ESA Appeal Board Case No. 42, and In re Geisler (No. 2) and Wenzel (No. 3), [1988] ILOAT Judgment No. 936.
60 Cf. OECD AT Cases Nos. 4–7 and NATO Appeals Board Case No. 293.
61 See, for more details, Giovanni M. PALMIERI, “La protection juridictionnelle des droits du Comité du personnel dans l'ordre juridique interne du Conseil de l'Europe” (2020) Liber Amicorum per Massimo Panebianco, online: COE <https://www.coe.int/en/web/tribunal/commentaries-articles>.
62 See the judgments of the CoE AT in Cases Nos. 640/2020 – 644/2020, 646/2020 – 648/2020, 649/2020, 652/2020 – 660/2020, and 664/2020; of the NATO AT in Cases Nos. 2020/1303 and 2020/1215; of the OECD AT in Cases Nos. 94–6; and of the ESA AT in Cases Nos. 122–8.
63 Le Conseil de l'Europe, supra note 20.
64 FÜRST, Walter and WEBER, Helge, “Uniformity in Service Law and Judicial Remedies for Staff Members of the European Coordinated Organisations” in DE COOKER, Chris, ed., International Administration: Law and Management Practices (Leiden: Nijhoff, 2009), Chapter V.1Google Scholar.
65 See numerous contributions in Giovanni M. PALMIERI, ed., Les évolutions de la Protection Juridictionnelle des Fonctionnaires Internationaux et Européens (Bruxelles: Bruylant, 2012). See also Palmieri, supra note 61.
66 ILOAT Judgments Nos. 4134–8.
67 This is not the first time that the ILOAT annulled ICSC decisions. Cf. In re Berlioz, Hansson, Heitz, Pary (No. 2) and Slater, [1993] ILOAT Judgment No. 1265 and In re Cussac, Moyse and Schmitt, [1993] ILOAT Judgment No. 1266. At that occasion the UN General Assembly expressed its regret that the ICSC had not been heard by the ILOAT. Measures to accommodate this were subsequently taken.
68 Report of the International Civil Service Commission for the Year 2019, UN Doc. A/74/30 (2019). Details of the discussion can be found on pages 12–20.
69 Report of the International Civil Service Commission, GA Res. 33/119 (1978). See, for progress, Report on Harmonisation of the Statutes, Rules and Practices of the Administrative Tribunals of the ILO and the UN, UN Doc. A/43/704 (1988).
70 Reform of the Internal System of Justice in the United Nations Secretariat, Report of the Secretary-General, UN Doc. A/C.5/49/13 (1994). See also Joint Inspection Unite reports JIU/REP/2000/1, JIU/REP/2002/5, and JIU/REP/2004/3.
71 Report of the Redesign Panel on the United Nations System of Administration of Justice, UN Doc. A/61/205 (2006).
72 Cf. System of Administration of Justice at the United Nations, UN Doc. A/71/62, Rev. 1 (2016).
73 Abd Al-Shakour et al., [2020] UNDT/2020/106, Cardenas Fischer et al., [2020] UNDT/2020/107, Abd Al-Shakour et al., [2020] UNDT/2020/133, and Aksioutine et al. [2020] UNDT/2020/154. They were issued in Nairobi, the Geneva judge having recused herself.
74 Cf. Abd Al-Shakour et al. Aksioutine et al. v. Secretary-General of the United Nations, [2021] Judgment No. 2021-UNAT-1107 at paras. 48 and 49.
75 Cf. Review of the Jurisdictional Setup of the United Nations Common System (as per UN General Assembly Resolution 74/255B, paragraph 8) – Information Report, FAO CCLM 111/5 (2020) at 4.
76 Initial Review of the Jurisdictional Set-Up of the United Nations Common System, Report of the Secretary-General, UN Doc. A/75/690 (2021). It contains an overview of ILOAT and UN tribunals’ jurisprudence regarding ICSC matters indeed showing some cases of divergence, which were resolved. It also gives results of a survey amongst CEB member organizations. Some organizations declined. Not only specialized agencies, but also a number of entities forming part of the UN Secretariat, such as Funds and Programmes are members of the CEB. This may distort the overall picture of the different views expressed. See Resolution Adopted by the General Assembly on 31 December 2020, UN GA Res. 75/245 (2021) at 3, Section B (Evolution of the margin and margin management around the desirable midpoint). See also Report of the Independent Oversight Advisory Committee, ILO Doc. GB.341/PFA/INF/8 (2021).
77 Cf. Matters Relating to the Administrative Tribunal of the ILO: Progress Report on the Review of the Jurisdictional Set-Up of the United Nations Common System, ILO Doc. GB.344/PFA/INF/9 (2022).
78 In the IMF and EBRD staff may even challenge a change to a general rule without having to wait for an implementing decision directly and adversely affecting them.
79 See also Powers, supra note 53 at 73–4.
80 See, for example, G. v. EPO, [2020] Judgment No. 4364, delivered on 7 December 2020.
81 A recent example may show that the use of a particular standard of proof is not trivial. A (divorced) couple claimed family allowances in the two organizations where they were employed, he in ESA and she in EPO. Both were dismissed in 2017 for fraud. The ESA Appeals Board, on 24 October 2017, upheld the dismissal decision. ILOAT, in L.-B. v. EPO, [2022] Judgment No. 4491, delivered on 27 January 2022, applying strictly the “beyond reasonable doubt” concept (including regarding guilt and intent), annulled the dismissal decision, and ordered reinstatement. The judgment mentions that the father of the children was also dismissed (in ESA) but does not mention at all the ESA Appeals Board judgment.
82 Confirmed in Caroline Wendy Nicholas v. Secretary-General of the United Nations, [2020] Judgment No. 2020-UNAT-1045.
83 Lindsey v. ADB, [1992] ADBAT Decision No. 1 at para. 4. See also World Bank AT in its first judgment: de Merode, supra note 54 at para. 28.
84 Cf. Powers, supra note 53 at 71.
85 Ibid., at 78.
86 To add, a number of judges sit on more than one AT.