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The Big Issues in International Administrative Law

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1. Background

1.1. The vast majority of international governmental organisations are created by multilateral treaties concluded between states (see e.g., the multilateral treaty establishing the IBRD, which is more commonly known as the World Bank).  International organisations are therefore products of public international law and they are undoubtedly bound by the fundamental principles of that body of law, including the customary aspects of international human rights laws (see e.g., International Court of Justice (“ICJ”) decision in the Reparation for Injuries Case [1949] ICJ Reps. 174 at 179 and the ICJ Advisory Opinion on the Interpretation of the Agreement of March 25, 1951 between the WHO and Egypt [1980] I.C.J Reps., p.73).

1.2. The treaties creating international organisations, which are often referred to as the ‘constituent agreements,’ usually confer a number of immunities and privileges upon them in order to ensure the independence of those entities, including a general immunity from legal suit (see e.g., Chapter VIII of the Agreement Establishing the EBRD).  Occasionally, states advance a treaty dealing only with the immunities of an international organisation (see e.g., the General Convention on the Privileges and Immunities of the United Nations and the associated Specialised Agency Convention).

1.3. The immunity of an international organisation from legal suit is held to be a shield that protects it from the national laws and jurisdiction of the courts of its member states, including labour courts and tribunals.  It is the immunity from legal suit that normally precludes employees of international organisations (commonly referred to as international civil servants) from suing their respective employers in national labour or employment courts and tribunals.

1.4. In order to provide international civil servants with a mechanism and forum in which to litigate their employment related disputes, international organisations are compelled to adopt their own internal justice systems, for a failure by an international organisation to do so will now imperil its immunity from legal suit and may permit the aggrieved international civil servant to seek redress in national courts (see e.g., The European Court of Human Rights judgement in Waite and Kennedy [1999] ECHR 13: “a material factor in determining whether granting […] immunity from […] jurisdiction is permissible is whether the applicants had available to them alternative means to protect effectively their rights under the Convention”).  What is more, for the organisation’s internal justice system to be held to be legitimate and valid, it must ensure a ‘fair process’ for the handling and hearing of the employment related complaints made by its employees, and what is fair will be judged by the criteria now set by the customary aspects of international human rights laws, such as article 6 of the 1950 European Convention on Human Rights (see e.g., Siedler v. Western European Union, Brussels Labour Court of Appeal (4th Chamber), 17th September 2003).  A system adopted and maintained by an international organisation that does not comply with accepted international human rights standards risks being struck down by national courts with the effect that the organisation will lose its immunity and be made amenable to the jurisdiction of those courts (see e.g., the comments made on the United Kingdom’s International Organisation Bill of 2004 by the Joint Committee on Human Rights of the United Kingdom’s Parliament: “It is important to emphasise that neither the European Convention on Human Rights, nor the Human Rights Act 1998 are in anyway disapplied in respect of international organisations operating in the UK”).

1.5. The body of law that invariably applies to the adjudication of employment related disputes within the internal justice systems of the international organisations is international administrative law.  International administrative law is in effect the employment law of the international organisations.

2. The Big Issues

2.1. Bretton Woods Law are International Administrative Law lawyers and they represent international civil servants and staff associations in many international organisations located around the word.  In defending the employment rights of our clients and in advising the unions to which they belong, we have encountered and catalogued a number of concerns that appear to us to be prevalent in the internal justice systems of many international organisations.  What follows is a distillation of those concerns into matters that we judge, as International Administrative Law specialists,  to be the ‘big issues’ now affecting international administrative law.

a. Equality of Arms: A ‘David v. Goliath’ situation prevails in most, if not all international organisations.  An employee who wishes to raise a complaint that his or her contract of employment has been contravened by the organisation that he or she works for (e.g., a secretary who claims to have been bullied or harassed by her boss), will normally have to face a human resources department that is advised by specialist lawyers from within the organisation’s legal department.  In some organisations, such as the multilateral development banks (e.g., the World Bank, EBRD etc.), whole teams of lawyers exist (known as institutional & administrative (“I&A”) law teams) whose primary function is to defend the organisation against employment related claims brought by staff members.  What is more, the organisation has if necessary the funds at hand to engage external lawyers to advise it and protect its interests.  In stark contrast, the employee does not have such legal resources at his or her disposal and may well not have the funds to engage a lawyer at all or only for a limited period of time.  The majority of internal justice systems operated by international organisations do not provide for any form of ‘legal aid’ nor do they operate a defence service under which lawyers are employed by the organisation to represent employees before the grievance committees and administrative tribunals that they operate (however, c.f., the United Nations Office of Staff Legal Assistance).  Moreover, the statutes and procedures that create the committees, boards and tribunals that form the internal justice systems of many international organisations either do not permit those bodies to award costs against the organisation and in favour of the employee or, if they do, those costs can only be awarded at the very end of a case, which may take years to finalise.  Indeed, it would appear to be a tactic of some lawyers within certain organisations that we have encountered to delay intentionally in order to put the injured international civil servant to unnecessary expense and thereby starve him or her out of the litigation process.  One case in which Bretton Woods Law lawyers are involved is now in its third year due to ‘stalling tactics’ on the part of the organisation.  Other cases are delayed by an organisation taking novel and ultimately unsuccessful jurisdictional arguments (on this point see O Elias’ The Development and Effectiveness of International Administrative Law (2012) at page 339).  In one international organisation in which we operate it can take up to fifteen years before a judgement is actually rendered by its administrative tribunal, which is astonishing as much as it is troubling.  Put bluntly, many international civil servants simply cannot afford to engage lawyers to assist them at all or for the time required in order to navigate the labyrinth of laws implemented by international organisations.  This disparity of wealth and the manner in which it is exploited by some international organisations causes an ‘inequality of arms’ between the litigants that can taint the legitimacy of the internal process and render it unfair.  The solution to this all too prevalent problem is of course obvious: the organisation that cloaks itself in an immunity from legal suit and thereby compels its employees to use its internal justice system should provide for a legal aid scheme of some description or, alternatively, arrange for legal insurance to be available to all of its employees, in the same way that it provides for medical insurance.

b. Clarity of the Law: Employed lawyers within many international organisations, often at the level of Legal Adviser or General Counsel, refuse to accept for good reason that the organisation that employs them and their teams is bound by and therefore must implement the fundamental principles of public international law, including international human rights laws.  They refuse to accept the obvious, for they appreciate that the ‘checks and balances’ created by human rights laws operate to the advantage of the staff and against the organisations that they represent.  This attitude is unacceptable and surprising given that international organisations are derived from treaties and are therefore the products of international law (see supra, ICJ Advisory Opinion [1980] ICJ Reps., p.73 at 89-90).  It is even more surprising given the judicial and academic position on the point (see e.g., Sands & Klien Bowett’s Law of International Institutions (6th Ed) at p.463 paragraph 14-037).  However, such an attitude does cause significant problems, for those lawyers at times draft and advance for implementation internal laws that offend general principles of international law.  For example, internal justice mechanisms are created by I&A lawyers and implemented by their respective international organisations that simply do not comply with the ‘fair trial provisions’ enshrined in such pivotal human rights texts as the Universal Declaration of Human Rights (article 10), European Convention on Human Rights (article 6), International Covenant on Civil and Political Rights (article 14), American Convention on Human Rights (article 8) and the African Charter on Human and Peoples Rights (the Banjul Charter) (article 7).  Furthermore, the internal laws that are drafted are often intentionally complex, convoluted and confusing, such that an employee who is not legally trained would struggle to understand and work effectively within them.  This once again touches on the ‘equality of arms’ issue identified above, for the employee will need funds to instruct a lawyer to assist him or her or otherwise be disadvantaged in comparison to the organisation that has allegedly caused him or her harm.  Once again the solution is simple: lawyers employed by international organisations must accept that the organisation is “bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties” (see supra ICJ Advisory Opinion [1980]) and draft precise and straightforward laws that are readily understandable to the international civil servants who are subject to them, including those establishing internal justice systems, which reflect customary international human rights rules.  Human rights ‘black-holes’ in the cities in which international organisations are located should not be tolerated by their members, shareholders or host states.  What is more, and aside from the complexities of internal justice systems within international organisations, we are encountering of late a worrying trend that executive heads of international organisations and others are refusing to follow the rulings, orders, recommendations and suggestions of their respective internal courts, tribunals and committees, if to do so would be inconvenient, unpalatable or embarrassing for the organisation.  Such contempt should not and cannot be tolerated and should of course be readily exposed, but, as will be seen blow, this is easier said than done.

c. Confidentiality of Proceedings: The internal justice systems of many international organisations, which are established to provide employees with a mechanism for resolving or litigating their employment related complaints, commonly stipulate that proceedings are strictly confidential.  The international civil servant bringing the claim is often prevented by the grievance or appeals procedures from speaking openly about it to others; form distributing his or her pleadings or from having the benefit of a hearing that is open to others.  Additionally, not all suggestions, recommendations or decisions made by judicial figures within the internal justice systems of international organisations are published, which means that knowledge of the jurisprudence emanating from some grievance committees, appeal boards or tribunals is restricted to the organisation and of course its lawyers.  Those judgements that are published are so heavily redacted by some international organisations that they become virtually incomprehensible.  Aside from undermining the administration of justice, the consequence of this lack of transparency or veil of secrecy imposed by the organisations is that other employees are unaware of complaints advanced by their colleagues, which naturally acts to stifle complaints and fosters a general culture of not pursuing the organisations for behaviour that amounts to unacceptable practices.  This has the ancillary and unwelcome effect of protecting those who would do harm to international civil servants in the work place, as well as encouraging retaliation against whistleblowers; a practice that unfortunately remains prevalent in some international organisations despite efforts to legislate internally against it.

d. Capping of Awards: The final court of appeal within the majority of international organisations is traditionally the administrative tribunal, which is a bench consisting normally of five external judges drawn from the fields of employment or international law.  Quite often the statues of those administrative tribunals will limit the award of compensation to a successful litigant to three years’ salary.  Furthermore, if an international civil servant successfully appeals against the decision to terminate his or her contract of employment, the statutes of the tribunals and, indeed, the lower courts and committees, permit the organisation to refuse to reappoint the employee on the condition that he or she is compensated financially, which is subject to limits.  The internal justice systems operated by the international organisations are meant to be an effective substitute for external courts, which international civil servants are precluded from utilising due to the organisations’ immunity, but the capping of awards serves to undermine the effectiveness and fairness of the process.  Imagine a situation in which a female international civil servant is sexually harassed and bullied by a dominant male supervisor over a protracted period of time.  As a result, she suffers long-term physiological damage as a consequence of the organisation’s failure to provide her with a safe place to work, such that she is unable to work again; yet her damages are limited to three times her salary.  This is indefensible in our view and reflects the fact that the internal laws of the organisation, including its internal justice system, are drafted and enacted by the organisation itself; they are self-serving and designed invariably to protect the organisation to the detriment of its employees.

e. Conflicts of Interest:  The internal justice systems of so many international organisations abound with conflicts.  Courts of first instances, such as grievance committees, conciliation committees and boards of appeal, are often precluded from making actual decisions or rendering judgements either on issues of jurisdiction or on the merits of the case before them.  It is common to find that those bodies, often chaired by an external lawyer or judge, are only allowed to make ‘recommendations’ to the executive heads of the organisations.  Situations regularly arise where the executive head of the organisation (e.g., its Secretary-General or President) takes a decision that adversely affects a staff member and that staff member then grieves the decision to the respective court of first instance, such as a board of appeal.  As structured, the executive head of the organisation will be the eventual decision maker on whether the board of appeal has jurisdiction to hear the complaint against him and, if it does, whether his decision was lawful or not.  One does not need to be a lawyer to appreciate that this is nonsense and that it defies the basic principles of natural justice (e.g., nemo judex in causa sua (no one should be a judge in his own case)); yet this situation is prevalent within international organisations.  What is more, lawyers for the organisation regularly advise both human resources (i.e., the opponent of the international civil servant in internal litigation) and the executive head of the organisation (i.e., the decision maker at first instance).  The same defence lawyers often pop-up in the offices of human resources, before the chair of the fact finding body and later in the office of the executive head of the organisation, which to us and we would suggest the objective observer seems farcical to say the least.

f. Benchmarking: International organisations seem to have a near zealous approach to comparing and, more importantly, justifying their internal laws against the practices and procedures implemented by other international organisations; a practice which is of course self-fulfilling and detrimental to the improvement of internal justice systems.  Lawyers for one international organisation and their internal clients will justify the apparent lawfulness of its procedures by reference to another organisation, which permits all too obvious mistakes to permeate around the international community.  A contravention of human rights laws in one institution will be picked up to justify its breach in another (i.e., ‘if Organisation (A) can get away with it, then we should give it a go to’).  A good example of this is the denial of locus standi to staff unions before administrative tribunals.  Such tribunals often deny staff unions the right to be heard in order to defend the collective interest of their membership on the basis that other tribunals in other organisations do not permit it, despite the principle of freedom of association and the existence of inter alia article 8 of the International Covenant on Economic, Social and Cultural Rights.

3. Conclusion

3.1. Many more ‘big-issues’ exist (e.g., (1) the tendency of international organisations of late to substitute ‘first tier fact finding’ in some internal justice systems for ‘compulsory mediation’; or (2) the organisation simply ignoring its internal law to best suit its own purposes; or (3) the organisation flatly refusing to suspend the effects of a patently unlawful decision; or (4) the lawyers for the international organisation going behind the backs of external lawyers to their respective lay clients; or (5) the unjust treatment of long-term contractors (e.g., contractors engaged for over a decade on six month back-to-back contracts), who are in effect ‘disguised employees’ but who do not get any of the benefits of being an international civil servant, including the ability to pursue an action against the organisation within its internal justice mechanism), but, for the sake of brevity, we judge it wise to stop here.  It is hoped that this short note will serve as a conduit for debate in forums and groups that want – as we do – to see the improvement of international administrative law.

3.2. At Bretton Woods Law, International Administrative Law experts,  we have our own ideas on how the law can and should be improved and we intend to advance this soon through the establishment of the Bretton Woods Law International Administrative Law  Centre of Excellence.

 

UN_fails_to_protest

UN fails to protect whistleblowers: the importance for International Civil Servants of protection by independent legal counsel.

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UN, NEW YORK

The United Nations Dispute Tribunal has found the international organisation’s mechanisms for dealing with whistleblowers to be so “fundamentally flawed” that they fail to protect the basic rights of its employees.  In its ruling in the case of Wasserstrom (judgment to be published), the Tribunal held that the UN Ethics Office failed to protect the applicant against reprisals from his bosses.  James Wasserstrom, an American diplomat, was sacked and then detained by UN Police, who proceeded to ransack his flat, search his car and post his picture on a wanted poster after he expressed suspicions in 2007 about corruption in senior ranks of the UN Mission in Kosovo.

The clear lack of protection for UN staff members encapsulated in this case is confirmed by the statistics.  The Guardian (27th June 2012) cites statistical analysis by the Washington based Government Accountability Project (GAP), which found that out of 297 cases in which whilstleblowers complained of retaliation, the Ethics Office fully sided with the complainant once in six years.  Statements made by GAP confirm the importance for international civil servants of seeking independent legal advice and protection when they find themselves in the position of whilstleblower.  Bea Edwards, GAP Executive Director remarked:

“Like any internal office in an international institution, it is always subjected to huge pressures from above.”  She continued, “It is very difficult for an official employed by the institution to be impartial”.

It is a view which is confirmed by the experience of the team at Bretton Woods Law: the rights of, and the protections afforded to, individuals working within international organisations are all too often subjugated by realpolitik.

Indeed, the attitude of those within the UN towards whilstleblowers was succinctly summed-up by Wasserstrom who remarked:

“I was told at some point in the whole process that the UN didn’t want a ‘culture of snitches’.  What has grown up instead is a culture completely insulated from reality.  It’s a culture of impunity.”

As well as raising concerns about staff exposure to fundamental failings in the UN system, the case is also of assistance to those seeking redress as it adds validity to the approach of directing such grievances to the Secretary General, as the office-holder with ultimate responsibility for the Ethics Office.

If you have concerns about whilstleblowing, contact Bretton Woods Law for impartial confidential advice.

debarment and sanctions

All change at EBRD

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After a long campaign, the new President of the European Bank for Reconstruction and Development has been revealed to be Sir Suma Chakrabarti.  This result signals possible interesting changes at the Bank, as this will be the first time since the Bank was set up 21 years ago that the President is not French or German.  Sir Suma has obviously had a highly illustrious career to date, currently as the most senior civil servant in the British Ministry of Justice and previously as the head of the UK’s Department of International Development.

We look forward to seeing what impact this new President will have on the employees of EBRD, once he takes up his new position on 3rd July.

time

SP – Time waits for no one – especially not International Civil Servants

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More often than not, when International Civil Servants come knocking on our door, seeking employment advice, we are alarmed by their lack of knowledge regarding their employment status and rights. The fact that they are often unaware that they are subject to International Administrative Law, the law that operates between International Civil Servants and their employer, and not domestic employment laws, is just one such example.

Why there is such a dearth of understanding is debatable, but we felt it might be useful to compile a brief list of basic ‘do’s and do not’s’, for when/if International Civil Servants find themselves in difficulties with their employer. This is by no means an exhaustive list, and we would encourage anyone facing HR issues to contact legal specialists, such as members of Bretton Woods Law as quickly as possible – because as the title suggests in these situations time is of the essence

The Do’s

  1. Do make yourself aware and be confident of your rights and, indeed, your obligations under the internal law of the organisation that you work for (e.g., read the Staff Regulations, Staff Handbook, and the rules and procedures associated with your organisation’s internal justice mechanism).
  2. Do act quickly if you have a complaint, for you may only have a short period of time in which to file.
  3. Do ensure that your dealings with HR are in writing, if possible.  It is important to create an audit trail.
  4. Do take notes at any meeting that you have with HR representatives.  At the conclusion of the meeting, write your notes up and sign and date them.  It is important that your written note is as contemporaneous as possible with the meeting.  If feasible, do get others who attended the meeting to agree your written notes by signing them.
  5. Do take advantage of the services of the Ombudsperson, if available.  They can give you informal advice and might be able to intercede on your behalf
  6. Do speak and discuss matters with your Staff Council/Association/Union representatives.  Listen to what they have to say, as they generally have a wealth of experience.
  7. Do speak out and loudly if you are subject to any form of retaliation for asserting your rights against your employer.
  8. Do instruct a lawyer who understands international administrative law at the earliest opportunity.

The Do Not’s

  1. Do not place too much trust  in HR, for they are a tool of management.
  2. Do not meet with HR representatives on your own, unless this is unavoidable.  It is always good to have a witness of your own (e.g., a Staff Council/Association/Union representative).  If you do meet with them on your own, then make a full note of the meeting and sign and date those notes (follow the procedure in the ‘do list’ at 4 above).
  3. Do not in general sign anything on the spot.  Only sign documents after you have had the benefit of independent advice, such as that of a lawyer or Staff Council representative.  Never sign a separation agreement until it has been thoroughly reviewed by a lawyer instructed by you. Do not think that you are anything other than the victim of your employers conduct.
  4. Do not be afraid to assert your rights, for your organisation will have some form of enforceable anti-retaliation procedures.
  5. Do not let your performance at work be unduly affected by your complaint, as you do not want your employer to be able to claim that you are a sub-standard performer.

If you could benefit from clear and practical advice, specifically designed for International Civil Servants, please click here to contact members of Bretton Woods Law.

1_walk_business

SP – Jobs of International Civil Servants at Risk in UNESCO

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On 9th March 2012, the 58 member Executive Board of UNESCO adopted at the behest of the organisation’s Director General (Irina Bokova) a new ‘Road Map.’  The Road Map, which is in effect a euphemism for change, was necessitated by a cut of approximately US$188 million to the organisation’s operating budget as a consequence of the United States’ refusal to pay its levy.  Although the Road Map is designed to allow UNESCO to continue its programmes over the period 2012-2013, despite its severe funding crisis, it is nevertheless based on a series of austerity measures that, according to the Executive Board, will require Ms Bokova to:

  • abolish or redefine posts where appropriate with a view to shifting resources to priority areas;
  • develop a more flexible policy of contracts;
  • review current Staff Rules and Regulations.

Accepting the challenge handed to her by the Executive Board, Ms Bokova said:

“The Roadmap now provides the Organisation with a clear sense of direction, and it sets firm targets to meet as we move forward … I am determined to meet the targets we have set in all areas – including cost efficiency, restructuring and human resources management.  My commitment to reforming the Organisation is steadfast.  The reform we have started is irreversible”

Not surprisingly, a significant number UNESCO’s employees were angered by the Executive Boards resolution and the Director-General’s apparent desire to implement it, for it is inevitable that the implementation of the roadmap will lead to significant job losses and an overall diminution of the terms and conditions of service presently enjoyed by the organisation’s staff.  In effect, the resolution of the Executive Board risks taking UNESCO out of the United Nations common system.  According to the two unions that represent the interests of the organisation’s international civil servants (ISAU and STU), 600 of them “massed” in protest outside the room in which the Executive Board was sitting.  Sidiki Coulibaly, President of the ISAU, and Ronan Grippay, President of the STU, were eventually invited to address members of the Executive Board, but, by this late stage of the proceedings, their advocacy on behalf of the staff fell onto deaf ears.  ISAU and STU have now set up a ‘Crisis Committee’ with a view to overturning the resolution.

UNESCO and the international civil servants that it employees appear to be on a collision course that may well test and have ramifications for international administrative law.  UNESCO is a member of the International Labour Organisation Administrative Tribunal and it will eventually fall to that body to adjudicate any unresolved complaints that might flow from UNESCO’s adverse treatment of its staff.  If a settlement to the dispute cannot be found, then a myriad of issues may be litigated within and possibly outside of UNESCO’s internal justice mechanism, such as accrued rights, fundamental and essential terms of contract, equality of treatment, dignity of the international civil service etc.

UNESCO (the United Nations Educational, Scientific and Cultural Organisation) is an international organisation and a specialised agency of the United Nations.  Its employees are international civil servants.  UNESCO was established on 16th November 1945 and has its headquarters in Paris, France.  UNESCO’s mandate is to contribute to peace and security by promoting international collaboration through education, science and culture in order to further universal respect for justice, the rule of law, and human rights and fundamental freedoms.  The Organisation is the successor to the League of Nations’ International Commission on Intellectual Cooperation.  Its web-site is www.unesco.org.

If you are an International Civil Servant facing employment and HR issues, Bretton Woods Law has considerable experience in dealing with matters relating to International Administrative Law. To contact your nearest office, please click here.