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May 2013 - Issue 1

International Administrative Law Centre of Excellence

International Administrative Law is the Employment   Law of the International Organisations


The Newsletter

The International Administrative Law Centre of Excellence is delighted to issue its first quarterly Newsletter to members and on this occasion to some non-members.  The Centre’s aim is to strive to improve significantly the employment law applicable to the employees of international organisations and its objectives include codifying the principles of international administrative law, raising the awareness of rights, developing a uniform internal justice system, arranging legal expenses insurance for all international civil servants and advancing the cause of one global administrative tribunal.  The Centre was launched  in February 2013 and has grown steadily since, and will shortly be incorporated as a not-for-profit Community Interest Company.  The Company’s articles of association setting out its constitution will be published on the Centre’s website at www.brettonwoodslaw.co/coe.
 
The Centre’s operating structure has been agreed by the Executive Committee comprised of five members and can be viewed here.  Eight committees covering a range of topical international administrative law issues report to the Executive Committee.  The chair and vice-chair positions have now been filled for the Immunities, Codification, Human Rights, Judicial, Model Internal Justice System, Equality of Arms and Global AT Committees, but vacancies still exist for the IAL Bar Association Committee and any member interested in getting involved in the leadership of that committee should contact Lee Marler (leemarler@brettonwoodslaw.com) or Neil Macaulay (neilmacaulay@brettonwoodslaw.com).
 
In future editions of the News Letter, the chairs and vice-chairs of the Centre’s committees will report briefly on their work and achievements in the previous quarter.  The News Letter will also contain interesting articles written by members, up-dates on IAL developments within international organisations, including summaries of published judgements and of course book reviews.  Any member wishing to contribute an article, an IAL up-date or a book review should contact Alex Haines (alexhaines@brettonwoodslaw.com).
 
This exclusive group of professionals welcomes applications from anyone who is involved in International Administrative Law: international civil servants, legal practitioners, staff union/association representatives, mediators, ombudspersons and academics; in fact anyone who wants to become engaged in the evolution of the law.  Any non-member wishing to join and get involved in the development of international administrative law should enroll here.

Legal Insurance for International Civil Servants

BWL are working to make Legal Expenses Insurance available globally to International Civil Servants

It has been apparent for some time to BWL that Legal Expenses Insurance is the only real answer to solve the glaring inequality of arms between staff members of International Organisations and the combined resources of Human Resources and the organisations lawyers. Staff Members require expert legal advice to assist them in identifying the merits of bringing a case against their employer and then ensuring they bring their case to its best effect if they do have a valid case.

Many employees, particularly those employed as support staff and junior to midlevel professional staff, simply cannot afford any, let alone the best legal representation. Even senior professional staff can find the impact of bringing a case financially crippling. It is our belief that many meritorious claims, involving the mistreatment of staff, do not see light of day because the employee simply cannot afford to fund the representation that they need. Not only do staff need the legal advice and representation that insurance can provide but just as importantly the feeling of isolation suffered by staff members can be overcome by instructing a supportive lawyer. Equally damaging for staff is the taking of a case that is destined to fail because they have not received any balanced legal advice at the outset that the claim is not likely to succeed.
 
Legal Expenses Insurance is an affordable and effective response to this growing problem. Bretton Woods Law is currently working with international insurers to make available a simple, affordable and attractive policy of insurance to International Civil Servants worldwide so that should they suffer the misfortune of coming into dispute with their employer they no longer need to worry that they cannot afford to assert their rights.
 
If you believe you would benefit from legal expenses insurance please lobby your Staff Association or Council to contact Bretton Woods Law or alternatively contact us directly

The Reform of the UN System of Administration of Justice - the UNRWA example

The Reform of the United Nations Administration of Justice System (“UNAJS”), which came into effect on 1st July 2009, was long overdue and has brought with it some significant improvements.  Certain aspects however, long petitioned by staff associations, IAL practioners and academics, and recommended by the Redesign Panel on the UNSAJ, have not yet been achieved.
 
In its Resolution 61/261 of 4th April 2007, the General Assembly criticised the UNAJS by stating that is was “slow, cumbersome, ineffective and lacking in professionalism, and that the current system of administrative review is flawed”. It decided “to establish a new, independent, transparent, professionalized, adequately resourced and decentralized system of administration of justice 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 staff members and the accountability of managers and staff members alike”.
 
The overhaul of the administration of justice system was especially important for the United Nations Relief and Works Agency for Palestinian Refugees (“UNRWA”).  Over the years, many cases were brought within its justice system by its employees, including a significant number of cases brought before the former UN Administrative Tribunal in New York (“old UNAT”).  The large volume of cases within UNRWA’s internal justice system is hardly surprising considering that UNRWA employs over 29,000 local staff, and nearly 120 international staff members.
 

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The Application of Human Rights to International Organisations:

Do Employees of International Organisations Enjoy the Right to a Fair Hearing of their Employment Disputes?

International organisations are products of international law, as they are invariably created by means of multilateral treaties.  It is therefore not surprising that the International Court of Justice (“ICJ” or “World Court”) has made it quite clear on several occasions that international organisations “are bound by any obligations incumbent upon them under general rules of international law” (Advisory Opinion on the Interpretation of the Agreement of March 25th, 1951 between WHO and Egypt [1980] I.C.J. Reps at 89-90.  See also the Reparation for Injuries Case [1949] I.C.J. Reps 174 at 179: an international organisation is “a subject of international law and capable of possessing international rights and duties”).
 
It is now generally accepted that international organisations, as international persons, are bound by the customary rules of international law, including the customary aspects of international human rights law.  By way of example, Sands and Klein, editing Bowett’s Law of International Institutions, take the view at page 456 that:
 
“notwithstanding the fact that an international organisation is not a party to, say, a human rights treaty …if the rule contained in an agreement is reflected in customary international law then it can, as such, bind an international organisation.  It has been suggested, for example, that the World Bank is not subject to general international norms for the protection of fundamental human rights.  In our view that conclusion is without merit, on legal or policy grounds.”
 
The right to a fair and, indeed, a public hearing by an independent and impartial tribunal in the determination of rights and obligations is now undoubtedly a general rule of international law; it is a ‘fundamental human right’ that finds its origins in article 10 of the Universal Declaration of Human Rights (“the Declaration”).  Building upon the Declaration, which was proclaimed by the General Assembly of the United Nations on 10th December 1948, the states of Europe sought in 1950 to enforce certain Declaration rights by agreeing the European Convention on Human Rights (“ECHR”).  Article 6(1) of the ECHR provides that in the determination of 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.”

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The ILOAT reasserts its res judicata authority by reminding International Organisations of the force of its judgments

ILOAT delivers stinging judgment against IFAD's dereliction of duty, malevolent actions and disregard for complainant's right. 

On 6th February 2013, the ILOAT ("Tribunal") delivered its last in a series of three Judgments (2867, 3003 and 3152) concerning  a  complaint directed against a decision of the President of the International Fund for Agricultural Development (“IFAD”).  IFAD's President had dismissed the complainant's internal appeal against the decision not to renew her contract because her post was being abolished.  Having lost in the first Judgment because the abolition of the post in question was tainted with illegality, IFAD took the unusual step of submitting an application to the International Court of Justice (“ICJ”) for an advisory opinion as to the validity of a decision of the ILOAT.  IFAD submitted to the Tribunal an application for the suspension of the execution of Judgment 2867 by which it sought to be exempted from paying the sums awarded against it pending delivery of the said opinion.  In Judgment 3003, delivered on 6th July 2011, the Tribunal held that an application by an international organisation for a stay of execution of one of its judgements could not be allowed and dismissed the application submitted to it and ordered IFAD to pay the costs.  Notwithstanding that ruling, IFAF did not pay the complainant the sums awarded in Judgement 2867 and refrained from paying the additional award made in Judgment 3003.
 
In Judgment 3152, the Tribunal recalled that according to the provisions of Article VI of its Statute, its judgments are “final and without appeal”, and they are therefore “immediately operative”, as its earliest case law established (see, in particular, Judgment 82).  The Tribunal subsequently noted that the principle that its judgments are immediately operative is also a corollary of their res judicata authority.  For this reason, international organisations which have recognised the Tribunal’s jurisdiction are bound to take whatever action a judgment may require.  Lastly, there was no provision in the Statute or the Rules of the Tribunal stipulating that, notwithstanding these principles, the submission of an application for an advisory opinion to the International Court of Justice under  Article XII has the effect of staying the execution of the impugned judgment pending the rendering of that opinion.

The Tribunal, which has the power to take such measures as may be necessary to ensure that its judgments are executed, found that it may, if it considers it appropriate, order the payment of a penalty for default (see Judgments 1620 or 2806).  In the present case, the patent lack of goodwill demonstrated by the organisation to date with regard to honouring its obligation to pay the awards made against it justified the imposition of a penalty, as requested by the complainant, of 25,000 euros for each month's delay in the settlement of the awards made in this judgment.

Of particular interest is the language used by the Tribunal in justifying the amount of compensation it awarded, which itself resulted from "the frustration, sense of injustice and anxiety which the complainant was bound to feel when confronted with an organisation which, disregarding the authority of the Tribunal’s judgments as well as her own rights, took it upon itself to refuse payment of the sizeable monetary awards made in her favour".  The Tribunal criticised IFAD's unlawful conduct and stated that it "behaved towards the complainant with bad faith ill-befitting an international organisation" and "constantly raised futile or unwarranted objections, procrastinated and even acted with deliberate malevolence".  The Tribunal went on to highlight "IFAD's dereliction of its duty of care and disregard for the complainant's rights, and in this they coincide completely with the Tribunal's assessment of IFAD's general behaviour in this case". 

The Tribunal ruled that IFAD pay the complainant (i) interest at an annual rate of 8 per cent on the moral damages and costs awarded in Judgment 2867, that is to say on a total amount of 15,000 euros; (ii) interest at an annual rate of 8 per cent on the costs awarded in Judgment 3003, that is to say on a sum of 4,000 euros; (iii) moral damages in the amount of 50,000 euros; and (iv) if IFAD did not settle the full amount of the awards within 30 days of the delivery of the judgment, it shall pay the complainant a penalty of 25,000 euros for each month's delay.

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Save the date

The first International Administrative Law Centre of Excellence Annual Conference will take place in London on Thursday 17th and Friday 18th October 2013.  The conference will bring together international civil servants, union representatives, lawyers, academics and others interested in IAL, from around the world with a view to shaping and improving this area of the law.  More details will follow soon; in the meantime, please put the dates in your diary now.
Register your interest
Register here

The Big Issues in International Administrative Law

In defending the employment rights of their clients and in advising the unions to which they belong, Bretton Woods Law have encountered and catalogued a number of concerns that appear to be prevalent in the internal justice systems of many international organisations.  What follows is a distillation of those concerns into matters that Bretton Woods Law, as International Administrative Law specialists, judge to be the ‘big issues’ now affecting international administrative law.
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Inter-American Development Bank abolishes its Conciliation Committee

Last month, the Inter-American Development Bank (‘IADB’) brought into force a revised version of its Staff Rule PE-323, governing conflict resolution between staff members and the Bank.  The amended provisions have the effect of abolishing the Conciliation Committee, the Bank’s fact-finding tribunal of first instance, in favour of a system of compulsory mediation, after which staff members may proceed directly to the Administrative Tribunal of the IADB.
 
The reform is controversial for many reasons, not least because it replaces an inquisitorial fact-finding tribunal with a mediator charged with seeking consensus.  Moreover, in the new system the tribunal of first instance becomes the Administrative Tribunal, from which there is no avenue of appeal, contrary to the norms of international administrative law and, indeed, public international law generally.
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