The Asian Development Bank Administrative Tribunal (ADBAT) is celebrating its thirtieth anniversary. It is one of dozens of international administrative tribunals (ATs)Footnote 1 that coexist. An historical review, below, gives an overview of the creation of ATs, starting from 1927.
Since international organizations enjoy immunity from national jurisdiction, they need to provide for an alternative judicial mechanism to settle staff disputes. Occasionally, national courts recognize immunities without reviewing whether an organization has an adequate alternative system in place;Footnote 2 however, they tend only to do so when such an alternative exists. This was underscored by the jurisprudence of the European Court of Human Rights in 1999.Footnote 3 This way, the right of every person to have access to a court is guaranteed, and legal vacuums are avoided.
Many organizations have set up their own ATs, comprised of external independent judges (or have accepted the jurisdiction of another tribunal). In most organizations these tribunals are called ATs. In some, they are called “Appeals Boards”,Footnote 4 such as the European Organisation for the Exploitation of Meteorological Satellites (EUMETSAT) and the European Centre for Medium-Range Weather Forecasts (ECMWF) – for example. Their appeals boards are composed of external legal experts who hold the same status as judges when they sit on ATs. Other organizations have an appeals board composed of three external experts, of which at least one must have a legal background.Footnote 5
However, not all organizations have recourse to a tribunal. Some use arbitration, which is an acceptable approach if sufficient procedural guarantees are given.Footnote 6 Examples include the International Development Law Organization and the Nordic Investment Bank. On the other hand, the Asian Infrastructure Investment Bank (AIIB) has a system of independent reviewers, who formulate recommendations to the president, who then makes a final decision. No further appeal can stand against that decision.
As mentioned, not all organizations have a tribunal exclusively dedicated to staff matters. One major example is the European Union (EU). The Court of Justice of the European Union (CJEU) hears cases between the EU's institutions; between its member states; or between member states and institutions, individuals, or companies against institutions, as well as staff cases. In 1988, a Court of First Instance was created to deal with appeals from companies regarding competition, dumping, subsidies, etc., and also staff cases.Footnote 7 The European Union Civil Service Tribunal was set up in 2004,Footnote 8 but was dissolved on 1 September 2016. Its competence was transferred to the General Court which, in 2009, had replaced the Court of First Instance for the other matters.
The Treaty on the Eurasian Economic Union also created a court. The court may “provide clarifications”, that is advisory opinions, regarding labour relations.Footnote 9
The AT of the International Institute for the Unification of Private Law (UNIDROIT) has jurisdiction over staff cases, but also over disputes arising from contractual relations between the Institute and third parties.
In a worrying trend during the last decade, some organizations have withdrawn their acceptance of the jurisdiction of the Administrative Tribunal of the International Labour Organization (ILOAT). They either set up their own tribunal or accepted the jurisdiction of another.
This proliferation of tribunals obviously entails the risk of diverging judgments and, although limited in practice, some cases have occurred over the years that are generally followed by calls for the merging of the tribunals, or for the creation of a common appellate court. Some studies were made, but no concrete action was ever undertaken. It is thus likely that the current proliferation will persist.
I. An Overview of the Creation of International Administrative Tribunals
Without entering into the interesting debate on the definition of international organizations,Footnote 10 it is generally agreed that the first international organizations were set up in the nineteenth century, starting with the Central Commission for Navigation on the Rhine (1815).Footnote 11 Several other international secretariats were set up in the second half of the nineteenth century,Footnote 12 but the real proliferation of universal and regional international administrations, as we know hundreds of them today, started in the following century. For example, the 1919 Treaty of Versailles set up the League of Nations (LoN) and the International Labour Organization (ILO). The officials of these institutions were genuine international civil servants whose employment were governed by staff regulations.Footnote 13 Before that, international secretariats were composed of nationally seconded staff, and the secretariats were placed under the authority of the host state.
The first Administrative Tribunal (AT) was set up within the LoN in 1927, which ILO staff also had access to.Footnote 14 When the LoN was closed down in 1946, and completely ceased to exist, the tribunal continued to function as the Administrative Tribunal of the International Labour Organization (ILOAT).Footnote 15 That year, the ILO became the first specialized agency of the United Nations (UN).
In 1949, the UN set up its own tribunal (UNAdT). In the same year, the Statute of the ILOAT was amended at the request of the World Health Organization, so as to allow other international organizations to recognize its jurisdiction.Footnote 16 Around sixty worldwide and regional organizations have since accepted the jurisdiction of the ILOAT, including most of those based in Asia.Footnote 17
After the Second World War, a number of worldwide organizations were established, which, in addition to a few that were founded before that, joined the UN System as specialized agencies. None of them set up their own tribunal. Out of the fifteenFootnote 18 that exist today, two of them (the International Civil Aviation Organization (ICAO) and Inter-Governmental Maritime Consultative Organization (IMCO) – the latter of which was renamed the International Maritime Organization (IMO) in 1982 – had initially accepted the jurisdiction of the UNAdT. Nine opted for the ILOAT, namely the Food and Agriculture Organization of the United Nations (FAO); the International Fund for Agricultural Development (IFAD); the International Telecommunication Union (ITU); the United Nations Educational, Scientific and Cultural Organization (UNESCO); the United Nations Industrial Development Organization (UNIDO); the Universal Postal Union (UPU); the World Health Organization (WHO), the World Intellectual Property Organization (WIPO); and the World Meteorological Organization (WMO). Two agencies did not accept the jurisprudence of either the UNAdT or the ILOAT, these being the World BankFootnote 19 and the International Monetary Fund (IMF). Instead, they waited more than forty years to set up their own tribunals.
Reference is often made to the “United Nations System”, which consists of the UN itself, with its funds and programmes and its specialized agencies, but also includes a number of other “related” organizations; for example, the International Atomic Energy Agency (IAEA), the International Organization for Migration (IOM), and the World Trade Organization (WTO). All of the latter have accepted the jurisdiction of the ILOAT.
During the same period, a number of regional organizations were created. Some adhered to the ILOAT, but others created their own dispute resolution systems, often only completed later by the creation of a tribunal. For example, the Organization for European Economic Co-operation (OEEC) set up an Appeals Board for staff cases. In 1961, the OEEC was transformed into the Organization for Economic Co-operation and Development (OECD). In 1992, the OECD replaced its Appeals Board with an AT. Another example is how the Council of Europe (CoE) established an arbitration board for its staff cases, consisting of an independent chair plus one representative of staff and one representative of the Secretary General. Another example is the Western European Union (WEU), which also set up its own appeals board. However, during the first decade of the twenty-first century, its tasks were transferred to the EU, and the organization was dissolved in 2011. Since 1992, it had a subsidiary satellite centre which, in 2002, became the EU Satellite Centre. It is an agency of the EU, but still has its own appeals board.
In the 1960s and 1970s, many organizations reviewed their internal dispute resolution systems. This reflection continued until the 1980s in some organizations. In fact, in 1962, a review of the civil service in organizations based in EuropeFootnote 20 concluded that a number of them, such as the CoE and the North Atlantic Treaty Organization (NATO), did not have a genuine judicial system. As a consequence, in 1965, the CoE created an appeals board consisting of legal experts, who were not staff members, appointed by the Council of Ministers.Footnote 21 It was replaced by an AT in 1994.Footnote 22 NATO, founded in 1949, set up its appeals board in 1965, which was replaced by an AT in 2013.
Europe created two space agencies in 1962, the European Launcher Development Organization (ELDO) and the European Space Research Organization (ESRO), each having an appeals board. European space cooperation made a new start in 1975, when the European Space Agency (ESA) was established. The ESA also had an appeals board, which, in 2020, was replaced by an AT.
In 1971, the Organization of American States (OAS) set up its own AT.
In another important development, all international financial institutions decided, albeit not at the same time, to establish each their own tribunal. The organizations, member states, and management alike underlined the important differences between their respective organizations, which in their view justified the creation of separate tribunals.
The World Bank Group and the IMF did not immediately set up a tribunal when they were founded in 1944. In fact, they didn't have an internal dispute resolution mechanism at all. They felt that they took sufficient care in dealing with their (mainly professional) staff and that disputes were unlikely to occur.Footnote 23 It was, therefore, only during the late 1970s that the World Bank set up an appeals committee, composed of peers, but in 1980 it decided to create its own AT.
In 1981, the IMF set up a peer Grievance Committee, with an external chair. In 1994, it created its own AT.Footnote 24
The African Union (AU) was established in 2002, replacing the Organisation of African Unity (OAU). The OAU had established an AT in 1967, which was then taken over by the African Union Administrative Tribunal (AUAT).
In 2004, the African Court of Justice and Human Rights was set up, merging the African Court on Human and Peoples’ Rights and the Court of Justice of the African Union.Footnote 25 Interestingly, both the AU staff regulations and the 2008 protocol amending the Statute of the African Court of Justice, which has not yet entered into force, gave all AU staff the right to appeal judgments of the AUAT. Babington-Ashaye calls this an anomaly in particular as, unlike the protocol for the UNAT, only staff may appeal.Footnote 26
The AT of the Bank for International Settlements (BIS) was established in 1987. The Asian Development Bank was created in 1966, and, as was the case for the other financial institutions, it started with an internal appeal process for the resolution of disputes. In 1991, however, the Asian Development Bank AT was set up. The African Development Bank created its AT in 1998.
The European SchoolsFootnote 27 have a Complaints Board which, according to the CJEU, has all the characteristics of a court or tribunal.Footnote 28 The Commonwealth Secretariat Arbitral Tribunal was set up in 1995, thirty years after the secretariat was created.Footnote 29
The European Bank for Reconstruction and Development (EBRD) was created in 1991. It initially worked with an appeals committee – a peer review body with an independent external chair. This was reviewed in 2002, and an AT – consisting of a chair and assessors – was set up. Further improvements were made in 2017: the AT became a fully fledged tribunal and peer review with an external chair was reintroduced for the pre-litigation process.Footnote 30
The AT of the Inter-American Development Bank (IDB) was created in 1981. Since 1991, staff of the Inter-American Investment CorporationFootnote 31 have also had access to this tribunal.
The South-American trade bloc Mercosur was created in 1991. It has an administrative labour court.
The Black Sea Trade and Development Bank started operations in 1998. It has its own AT.
In 2005, the Charter of the Francophonie was adopted. It has a two-tier judicial system.
Since the beginning of this century, many organizations have reviewed their internal justice systems. This sometimes resulted in improved judicial systems; for example, in terms of the qualifications of the judges, their selection, and the tribunals’ proceedings. However, most organizations also introduced measures to resolve matters earlier in the dispute resolution process.Footnote 32
In 2009, major changes to the UN's internal justice system became operational following recommendations made by a “Redesign Panel”. It introduced mediation in the informal system. In the formal system it abolished its peer review bodies, the Joint Appeals Boards (JABs), and replaced them with a Management Evaluation Unit and a two-tier judicial system consisting of the United Nations Dispute Tribunal (UNDT) and the United Nations Appeals Tribunal (UNAT). Either party may challenge a UNDT judgment before the UNAT. The UNAT may also hear cases on an appeal from the United Nations Relief and Works Agency (UNRWA) Dispute Tribunal, or of a decision of the Standing Committee acting on behalf of the United Nations Joint Staff Pension Board.
Furthermore, the UNAT is competent to adjudicate cases on an application filed against any agency, organization, or entity, where a special agreement has been concluded between that entity and the Secretary-General, accepting the terms of the jurisdiction of the UNAT. Such special agreements may be concluded only if the agency, organization, or entity utilizes a neutral first instance process that includes a written record and a written decision providing reasons, fact, and law. To date, the following entities have entered into such an agreement: the ICAO, the International Court of Justice (ICJ), the IFAD, the IMO, the International Seabed Authority (ISA), the International Tribunal for the Law of the Sea (ITLS), and the WMO.Footnote 33
The UNAT had for many years accepted reports from JABs, but in October 2019 and March 2020, it issued five judgments remanding appeals to three entities: the IOM, the ISA, and the WMO, requiring them to reconsider and decide on the remanded matters in compliance with the requirement that a neutral first instance process includes a written decision by a neutral body.Footnote 34 Upon this, some organizations are reinforcing the peer review process; for example, by having an external chair. It remains to be seen whether the UNAT considers this to be sufficient. On 20 January 2020, i.e. shortly after judgment 2019-UNAT-952,Footnote 35 the World Meteorological Organization (WMO) extended its association with the internal justice system of the UN by also accepting the jurisdiction of the UNDT. The ICJ had already accepted UNDT's jurisdiction before the above-mentioned UNAT judgments were issued. Staff from both the ICJ and WMO also have access to the Office of Staff Legal Assistance (OSLA).
The UNRWA implemented similar changes. In 2009, its JAB was abolished. Whereas the UNRWA's staff used to have access to the UNAdT, the same access was granted to the UNAT against payment on a fee per case basis.Footnote 36 In 2010, the UNRWA decided to set up its own dispute tribunal, similar to that of the UNDT.Footnote 37 The first reason to do so was to have a dedicated tribunal for UNRWA staff with its own consistent jurisprudence. The second reason was costs. Participating in the UNDT, the costs, on a pro rata workforce basis, as was proposed by the UN, was, and remains, prohibitive.Footnote 38 The UNRWA also has its own Legal Office for Staff Assistance.
It is important to note that all the specialized agencies decided not to follow the UN's example. Almost all of them, however, reviewed their respective internal justice systems and, in particular, improved their informal and peer review systems.
The European Stability Mechanism (ESM) was the next to set up its own AT (ESMAT). It did so in 2014.Footnote 39 Article 17 of the ESMAT's statute provides that if, following a request by the ESM, the CJEU will grant the ESM access to the jurisdiction of the court for staff matters, the ESMAT shall be wound up.
The beginning of this century also saw the creation of a number of international “public-private” organizations, particularly those in the field of global health. The main one is the Global Fund to Fight AIDS, Tuberculosis, and Malaria, which accepted the jurisdiction of ILOAT. Another one is GAVI, the Vaccine Alliance, which created its own AT in 2019.Footnote 40
In 2019, the Caribbean Community, also known as CARICOM, also set up its own AT.
The 2019 Convention establishing the Square Kilometer Array Observatory (SKAO) entered into force on 15 January 2021. It proposes to establish an AT in 2022.
There is, therefore, no reason to think that the proliferation of international ATs will not continue. In fact, several organizations regularly review their dispute resolution systems, and those who do not have their own tribunal often consider the advantages and inconveniences of creating one.Footnote 41
II. Withdrawal of Recognition of Jurisdiction: Forum Shopping?
Until June 2014, the AT of the CoE (CoEAT) only heard cases from staff of the CoE itself, and from the CoE Development Bank. In 2014, its statute was amended in order to allow other organizations to accept the tribunal's jurisdiction. Three organizations have so far done so.Footnote 42 There was already a long-standing request from the Central Commission for the Navigation of the Rhine (CCNR), and, in December 2014, an agreement was signed under which the CCNR accepted the CoEAT's jurisdiction. In 2017, the CoE signed a similar agreement with the Hague Conference on Private International Law.
More interesting is that on 8 December 2017, an agreement was signed with the Intergovernmental Organisation for International Carriage by Rail (OTIF). The OTIF was, however, previously one of the organizations that had recognized the jurisdiction of the ILOAT. That recognition came to an end on 13 March 2018. Until that date, the ILOAT had rendered eight judgments regarding OTIF.
The OTIF was thus, for several months, subject to the jurisdiction of two tribunals. The OTIF had accepted that the ILOAT would remain competent in a case that was pending.Footnote 43 When the complainant returned with a request for interpretation, the ILOAT held, in Judgment No. 4409, that it remained competent to hear any applications for interpretation of that judgment.
A number of other organizations have also withdrawn their acceptance of the ILOAT's jurisdiction. Some organizations ceased to exist, but others appear to have withdrawn for different reasons. The WMO withdrew “with immediate effect” from the ILOAT by letter, dated 21 July 2017. It took effect, however, on 31 October 2017, when the ILO Governing Body (GB) confirmed the withdrawal. There is not much information in the public domain concerning the reasons behind the withdrawal, but it was most likely prompted by some judgments from the ILOAT.Footnote 44
The Technical Centre for Agricultural and Rural Cooperation ACP-EU (CTA) was established in 1983, and, since 2000, was operating within the framework of the Cotonou Agreement between the African, Caribbean, Pacific and EU states (ACP-EU). It accepted the jurisdiction of the ILOAT. In total, the ILOAT rendered ten judgments regarding the CTA. On 23 March 2018, the CTA informed the ILO's Director General that it had withdrawn the recognition of the ILOAT's jurisdiction with immediate effect. On the following day, it established its own tribunal. One would expect the CTA tribunal's statute to provide for transitional measures, or stipulate a date on which this tribunal would become operational.Footnote 45 It did not. On 30 October 2018, the ILO Governing Body took note of the CTA's intention and confirmed that the CTA would no longer be subject to the competence of the ILOAT, with effect from 30 October 2018, except as regards the complaint that was pending before it.
This culminated in Judgment No. 4141. The CTA submitted, principally in this case, that the ILOAT was not competent to hear the complaint, given that it had withdrawn its recognition of the Tribunal's jurisdiction on 23 March 2018. The ILOAT rejected this challenge to its jurisdiction, but dismissed the appeal for failure to exhaust internal means of redress.
It is rather obvious that the actions of the CTA's management were a reaction to the ILOAT's jurisprudence regarding it.Footnote 46 The CTA ceased its operations in 2020, after the expiry of the Cotonou Agreement and the subsequent end of the CTA's financing, which was foreseeable when the CTA tribunal was created. The tribunal discontinued with it. It heard only one case.
In May 2019, the IFAD decided to withdraw from the jurisdiction of the ILOAT and to submit to the jurisdiction of the UNAT.Footnote 47 The IFAD's decision was based on three main considerations. The first one was that it was concerned about how the ILOAT handled cases, particularly regarding “lack of jurisprudential consistency and foreseeability, as well as appropriate weight of proportionality of decisions”.Footnote 48 Second, it felt that the ILOAT's “beyond a reasonable doubt” standard of proof did not adequately protect against misconduct and was “erroneous and misplaced” for international organizations’ investigations. It did not allow organizations to react properly in disciplinary cases, ensuring the full implementation of zero tolerance policies toward sexual harassment, exploitation and abuse, anticorruption, and other crucial disciplinary issues. Lastly, it held that the time span for staff and the IFAD to await tribunal decisions from the ILOAT was two to three times longer than that of the UNAT.Footnote 49 Following a recent reform, the IFAD's JAB now has an external chair. The IFAD's withdrawal took effect on 31 March 2020. It had, however, already accepted the UNAT's jurisdiction on 10 December 2019.
The UPU withdrew from the ILOAT with effect from 21 May 2021. The following events clearly prompted the decision of the UPU's management.
In December 2014, five posts from within the UPU were abolished due to budgetary constraints. Three of the staff concerned appealed.Footnote 50 The ILOAT concluded that the Director General had not adequately justified his decision, and that the UPU had not presented sufficient evidence to argue that the abolition of posts was “for urgent financial reasons”. Moreover, in Judgment No. 3928, the ILOAT took issue with the fact that the appellant was selected on the basis of a biased assessment of performance and conduct, weighing the fact that he had twice appealed to the ILOAT. The ILOAT annulled the impugned decision, ordered reinstatement, and granted moral damages and costs.
The UPU applied for an interpretation and review of this judgment, while the appellant immediately applied for its execution. The ILOAT dealt with both applications in Judgment No. 4077, and found that the UPU's submissions were either seeking to call into question the ILOAT's interpretation of the facts of the case and its application of the law, or having no bearing on the outcome of the case. The ILOAT also took issue with the implied threat to take the matter to the UPU's member states.Footnote 51 The tribunal disagreed that the application had suspensive effect, and ordered reinstatement within one month. It also granted additional moral damages in view of the UPU administration's misleading presentation of the case to its Council of Administration, alleging misconduct on the part of the complainant as well as noting his earlier complaints to the tribunal as reasons for not wanting to reinstate him.
The examples given above, where organizations discontinued the recognition of the jurisdiction of the ILOAT and joined other tribunals, or set up their own, show a worrying trend of “forum shopping”. Managers who are dissatisfied with judgments against them venture elsewhere, often without properly consulting their staff. Employers should not seek to influence the judicial control of their decisions. This also puts the new jurisdiction in a delicate position, to say the least, since it may be perceived as more favourable to the administration. This trend poses a threat to the rule of law and the independence of the international judiciary.Footnote 52
III. Convergence or Divergence?
Questions are often raised whether the proliferation of international ATs is an obstacle to the effectiveness of international administrative law, and international civil service law in particular as a body of law, and whether there is a coherence or divergence in the jurisprudence of the tribunals.Footnote 53
These questions are more pertinent when different tribunals deal with issues common to a number of organizations. It must be underlined that differences do exist amongst organizations in terms of rules, policies, and cultures. Second, rules and policies do change, and organizations do not always react in the same way, or with the same speed, to new developments.
In their judicial role and in their search for the sources of law to be applied, ATs consider employment conditions to be primarily governed by contract. Usually, the appointment letter makes reference to the organization's rules and policies, making them an inherent part of the contract. These contracts certainly contain very important elements, such as the duration of the contract, the posting concerned, and emoluments, but they are generally rather short. The most important sources for conditions are the staff regulations, instructions, circulars, notes, etc. Another source of the rights and duties of the staff consists of certain general principles of law and of international civil service law in particular.
Organizations have much in common in terms of institutional law. The internal laws are very similar in most situations in most organizations. This communality is only increasing and often reference is made to a corpus juris.Footnote 54 The proliferation of ATs is generally not seen as posing a risk of divergence in international administrative law.Footnote 55 There is, indeed, a general convergence of jurisprudence. The tribunals also freely refer to the judgments of one another.Footnote 56 However, their judgments may not be identical in all their details, and sometimes they do differ. This situation is not dissimilar to that of national (labour) courts. The impact of differing jurisprudence is more striking, of course, when they concern matters such as remuneration and pensions, which are common to a number of organizations, but they are adjudicated by different tribunals, as the following examples will show.
Since 1958, the “coordinated system” in Europe – a cooperative mechanism involving sixFootnote 57 organizations headquartered in Europe – has aimed to harmonize the rules and practices on salaries, allowances, and pensions. Following a consultation process with representatives of management and staff, a body of government representatives issued a report to their respective council for adoption, which was normally accepted and followed. Sometimes, staff contested the decisions implementing the Councils' decisions, alleging their illegality, and this has occasionally led to diverging judgments. Take for example, the 1980s cases concerning a crisis levy and abatement on salaries,Footnote 58 and the taking into account of a special deduction for Dutch civil servants.Footnote 59 In the 1990s, some staff challenged the inclusion of national unemployment premiums in adjusting their salaries.Footnote 60
In this century, issues have arisen; for example, on how to compensate for the reduction in working hours in France, which was compensated by adjusting the salary scales to compensate for the loss, or by granting extra leave.Footnote 61
Very recently, however, amendments were made to the pension scheme, to which staff and retirees of all coordinated organizations appealed. This time, there was convergence and the respective tribunals dismissed the appeals.Footnote 62
Since 1997, the coordinated salary adjustment method has contained an “affordability” clause, i.e. the methodology being applied, but councils have the power to determine whether they can afford the outcome in budgetary terms. This has resulted in salary freezes, wholly or partly, permanently or temporarily, but never in a uniform manner amongst the organizations. More recently, an “exception” clause was also introduced in some organizations.
The result of the events described above is that salary scales (and pensions) currently in force differ across the coordinated system's organizations (i.e. CoE, ECMWF, ESA, EUMETSAT, OECD, and NATO), with some staff and pensioners living in the same country, or even the same city. Some consider this to be unequal treatment, while others accept this as their new reality. In any event, not many staff transfer from one coordinated system organization to another. The argument of mobility between organizations as a justification for identical salary scales was never a strong one.
This situation has resulted in a number of calls for harmonization and uniform legal treatment for the staff of coordinated system organizations. Already, le Comité consultative de la fonction publique européenne du Conseil de l'Europe Footnote 63 had, in 1962, presented a single set of rules for the European civil service, together with a proposal to set up a single administrative tribunal for all organizations. They became dead letters. In the 1990s, further pleas were made for harmonization,Footnote 64 or the creation of a common appeals body for coordinated matters.Footnote 65 The latter has not been retained. It should not be forgotten that the implementation of coordinated system matters rests with the respective organizations, where internal implementing rules and policies may differ.
A major divergence in jurisprudence recently occurred in the UN Common System. On 3 July 2019, the ILOAT issued a number of en banc judgmentsFootnote 66 regarding appeals from Geneva-based staff, challenging the decisions of the heads of their organizations to apply to their salaries a new post adjustment multiplier (PAM), decided by the United Nations International Civil Service Commission (ICSC), that reduced their salaries. The ILOAT annulled the decisions, holding that the ICSC did not have the power to establish post adjustments, it only had the power to make recommendations. It rejected the argument that there existed an accepted established practice.Footnote 67 The ICSC immediately discussed the matter and requested the General Assembly (GA)Footnote 68 to reconfirm the ICSC's authority to establish PAMs. It drew the attention of the GA to the challenge of having two concurrent independent administrative tribunals among the organizations of the UN common system. The GA adopted Resolution 74/255 A-B on 27 December 2019; that is, when the matter was still sub judice before the UNDT. It reaffirmed the ICSC's authority to continue to establish PAMs. It requested the Secretary-General (S-G), in his capacity as Chair of the UN System's Chief Executives Board for Coordination (CEB), to conduct a review of the jurisdictional setup of the common system.
This was not the first time that stakeholders discussed harmonization (or even amalgamation) of the ILOAT with the UNAdT (or nowadays UNDT/UNAT). A major undertaking started in 1978, when the GA requested the S-G and his colleagues in the common system to study the feasibility of establishing a single administrative tribunal for the entire common system.Footnote 69 The GA, in the end, decided to leave the matter unchanged.
In 1994, the S-G presented a report on the reform of the internal justice system of the UN itself.Footnote 70 In June 2005, a redesign panel of external experts was set up, which issued its report in July 2006,Footnote 71 which then culminated in the 2009 reform outlined supra. In 2015, an interim assessment was made of the UN's new justice system by another panel of external experts.Footnote 72
Returning to the 2018 Geneva salary scales, in the summer of 2020, the UNDT issued a number of judgments.Footnote 73 It had before it the ILOAT judgments as well as the UN GA Resolution 74/255 A-B. The UNDT held that the ICSC's powers always involved determination of post adjustments without the GA's approval. The post-1989 practice did not “contravene a written rule that is already in force”. It added that this was recently confirmed by GA Resolution 74/255 A-B. The UNDT concluded that the appeals were unfounded. The applicants appealed to the UNAT, which, on 19 March 2021, issued a number of judgments, of which Judgment No. 2021-UNAT-1107, rendered by the full bench, is the most pertinent. The UNAT affirmed the UNDT's judgments. It held that the UNDT did not err in its assessment that the ICSC decision was lawful. It added that the ICSC acted on its own behalf, or on delegation by the GA. As there was a direct order from the GA to the S-G to apply the ICSC decision, the UN Tribunals did not have the authority to review the lawfulness of such a general determination.Footnote 74 Any ultra vires action of the ICSC over its past practices on PAM was, according to the UNAT, corrected in law by the subsequent GA's endorsement as the final decider on the matter.
The UNAT underlined the restricted scope of competence of the UN tribunals to review legislative texts originating from the GA. Decisions of the GA are binding on the S-G, and it is not the role of the tribunals to examine the reasonableness of the ICSC decisions. It recalled a number of GA resolutions stipulating that decisions taken by the UN tribunals must conform to the provisions of GA resolutions on human resources management issues. The UNAT added that UN staff were not without the ability to influence post adjustments: they could provide input into the ICSC's deliberations and seek to persuade the GA.
It noted that the ILOAT's judgments resulted in two levels of pay in Geneva. However, the ILOAT had reached its conclusions on different grounds. It noted that the structures under which each of the UN and the ILO judicial bodies operate differ considerably. The ILOAT's judges are not elected by the GA; however, the UNAT is bound by UNGA resolutions, whereas the ILOAT is not constrained by these significant jurisdictional characteristics.
As mentioned above, the UN Secretariat started its review on the jurisdictional set up of the UN common system before the UNDT judgments were published, and continued it while appeals were pending before the UNAT. In other words, the real raison d’être for the review were the ILOAT judgments.
The GA called on the S-G to conduct the review “as chair of the CEB”. This raises points of principle. First of all, two specialized agencies (the World Bank Group and the IMF) are not part of the common system of salaries – they have their own systems and their own tribunals. Secondly, there is the point of authority. In fact, the UN S-G has no authority over the executive heads of the other organizations and the UNGA has no authority over their governing bodies. It was immediately suggested that the review should be done in the CEB context, and not as an internal UN review.Footnote 75
A first report was submitted to the GA on 15 January 2021; that is, before the UNAT issued its judgments.Footnote 76 It appears that the reflections concentrated on the adjudication of cases regarding resolution of ICSC matters. Suggestions were made for increased exchanges between the ILOAT and UN tribunals; for example, through a joint chamber that can issue interpretative rulings or preliminary rulings in ICSC matters.Footnote 77 The UNGA expects concrete proposals for its 2022 meetings.
Many publications pay disproportionate attention to the divergences in the jurisprudence of ATs and this contribution is probably no exception. Indeed, there are some fundamental differences in approaches among major organizations. The UNGA, for example, is of the view that its decisions related to human resources management and administrative and budgetary matters are subject to review by itself only, and cannot be made subject to judicial review. The UNAT has accepted this and sees its competence in these matters limited to reviewing the correctness of the implementation by the S-G. It appears, however, that the governing bodies of the other organizations that have accepted the UNAT's jurisdiction do not have such a restrictive approach.
But in this matter the UN stands alone. It is true that most statutes provide that a tribunal does not have more powers than granted under its statute, but all other organizations and ATs accept the general principle that staff may challenge any administrative decision affecting them, including implementing decisions of general rules and that, when doing so, they may challenge the legality of the underlying general rule.Footnote 78 It goes without saying that the judicial review of general rules is limited.
Some of these differences in approach can be found in the statutes of the tribunals themselves. They regulate, for example, ceilings to the compensation that may be granted by the tribunals for material and/or non-material damages. These are respected by the tribunals, but sometimes not without hesitation.
Indeed, other differences stem from the differences in approach by the respective tribunals. As already mentioned above, a number of organizations have difficulty with the concept of “beyond reasonable doubt” as the standard of proof that the ILOAT applies in disciplinary cases.Footnote 79 This was one of the stated reasons why the IFAD left the ILOAT. The concept has a very strict application to criminal cases in common law systems, and many consider that this does not have a place in international civil service law. The ILOAT has regularly been seeking to clarify its position on this point,Footnote 80 but many consider this not convincing. All other tribunals apply less stringent concepts, such as a “preponderance of evidence” or “clear and convincing”. In this matter, the ILOAT stands alone,Footnote 81 but it must be emphasized that this impacts on policies and procedures in some sixty different organizations.
Recently, the UNAT applied a very restrictive approach to the concept of “acquired rights”; it ruled so en banc in Judgment No. 2018-UNAT-840.Footnote 82 The case concerned changes in remuneration packages, under which there would no longer be different net base salaries for staff members who have dependents and those who do not – the amendments included transitional measures. The UNAT held regarding the notion of acquired rights:
91. … The protection of acquired rights therefore goes no further than guaranteeing that no amendment to the Staff Regulations may affect the benefits that have accrued to, or have been earned by, a staff member for services rendered before the entry into force of the amendment. Amendments may not retrospectively reduce benefits already earned. In the final analysis, the doctrinal protection of acquired rights is essentially an aspect of the principle of non-retroactivity. The aim is to protect individuals from harm to their vested entitlements caused by retrospective statutory instruments.
The UNAT stands alone in this interpretation of acquired rights. It limits it to non-retroactivity of amendments, which was the approach of some ATs decades ago. The jurisprudence of other tribunals has evolved and converged; however, they nowadays apply the test as to whether an amendment upsets the (economic) balance of a contract.
It is thus clear that some major differences still exist in the approach between the UNDT/UNAT and ILOAT. But even if there are differences between the ILOAT and UNAT, this does not mean that there is no convergence amongst the tribunals in general. It was already observed that, in a number of (important) issues, either the ILOAT or the UNAT can stand alone.
Convergence is the natural trend. The Asian Development Bank AT observed in its first judgment (Lindsey):Footnote 83
4. … In addition to the constituent instruments of the Bank and of the Tribunal, as well as general principles of law, these rules are to be derived from … the staff practices of international organizations generally, including the decisions of international administrative tribunals dealing with comparable situations. There is, in this sphere, a large measure of “common” law of international organizations to which … the Tribunal will give due weight.
Indeed, most tribunals now freely refer to judgments of one another, and numerous examples can be given. The ILOAT and the UNAT, however, rarely do so.Footnote 84 Also, the parties refer to the jurisprudence of other tribunals. This contributes to convergence. Differences, or sometimes nuances, do exist and will continue to do so but, as Powers also observes,Footnote 85 there is more convergence than divergence in the jurisprudence of the tribunals, which is regularly confirmed in conferences, where judges also participate and exchange views.Footnote 86 It is, therefore, to be expected that many international administrative tribunals will continue to coexist.
Acknowledgements
The author would like to thank Dražen Petrović who gave valuable comments on a first draft.
Funding statement
None.
Competing interests
None.
Chris DE COOKER is a retired staff member of the European Space Agency. He is currently President of the NATO Administrative Tribunal, and judge of the Administrative Tribunals of ADB, EBRD, GAVI, and the OECD. The views expressed here are the personal views of the author. They do not necessarily reflect the views of the institutions he is, or was, associated with.
