Introduction

The Administrative Tribunal of the International Labour Organization (hereinafter the ‘Tribunal’) is the oldest international administrative tribunal and one of the most long-standing international institutions in general. It was established in 1927 and hears staff employment disputes between officials and their employing international organization. To date, it has rendered more than 5,000 judgments, making it by far the most productive administrative tribunal at the international level.

Yet, despite its venerable age, the Tribunal is not well known among practitioners of administrative law. This contribution therefore takes a closer look at the Tribunal and its case law in the area of administrative law. After a brief description of the role and function of international administrative tribunals in general, this contribution will turn to the Tribunal. It will briefly discuss its history and jurisdiction, before delving into its case law relating to administrative law.

International administrative tribunals

International organizations generally enjoy immunity from jurisdiction. This immunity is usually laid down in a so-called ‘headquarters agreement’ between the international organization in question and the host state. Hence, when a dispute arises between an international civil servant and the employing international organization, national courts are precluded from hearing the dispute. To fill this gap in legal protection, various international administrative tribunals have been set up. Currently there are around 30 international administrative tribunals worldwide. In addition to the Tribunal, other international administrative tribunals include, for example, the United Nations Dispute Tribunal (UNDT) and the United Nations Appeals Tribunal (UNAT), the World Bank Administrative Tribunal and the Administrative Tribunal of the International Monetary Fund (IMFAT). A general overview of the powers of redress of these tribunals was discussed in a previous contribution.

The law applied by international administrative tribunals stands at the crossroads of international law, labor law and administrative law. On the one hand, they apply sources of law that are internal to the international organization in question, such as the contract of employment, the staff rules and staff regulations, and so-called administrative circulars. On the other hand, they may apply general sources of international law, such as treaties, customary international law, general principles of law and applicable case law and doctrine (see Article 38 (1) of the Statute of the International Court of Justice).

Of particular importance, however, is the case law of the international administrative tribunals themselves. As they regularly apply and interpret the internal legal sources of the international organization concerned, their case law is indeed often one of the most relevant and authoritative legal sources for settling disputes between international civil servants and international organizations. As will be explained below, this case law often involves general principles of administrative law.

History and jurisdiction ratione personae of the Tribunal

The Tribunal was established in 1927 as the Administrative Tribunal of the League of Nations. This tribunal served both the League of Nations and the International Labour Organization (ILO) and was competent to hear staff employment disputes involving one of the international organizations concerned. It operated between 1929 and 1946 and rendered 37 judgments.

Despite the many shortcomings of the League of Nations, its administrative tribunal had functioned properly and was praised for its efficiency. In 1946, upon the dissolution of the League of Nations, it was therefore transferred to the ILO and was renamed Administrative Tribunal of the International Labour Organization.

Initially, the Tribunal’s jurisdiction ratione personae was limited to complaints from ILO officials. However, already in 1949 the Tribunal was made competent to hear complaints from officials of other intergovernmental organizations that had recognized the jurisdiction of the Tribunal for this purpose (Article II, fifth paragraph of the Statute of the Tribunal). In 1998, its jurisdiction was further extended to non-intergovernmental organizations that fulfilled certain criteria set out in the Annex of the Statute to the Tribunal (e.g. the International Federation of Red Cross).

At present, 59 international organizations recognize the jurisdiction of the Tribunal, including, for example, the World Health Organization (WHO), the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the World Trade Organization (WTO). The Tribunal thus has jurisdiction over some 74,000 employees, making it by far the largest international administrative tribunal in terms of jurisdiction ratione personae. It has rendered more than 5,000 judgments since its creation in 1927 and is the most frequently cited tribunal by other international administrative tribunals.

Jurisdiction ratione materiae of the Tribunal

The jurisdiction ratione materiae of the Tribunal essentially concerns individual administrative decisions of international organizations, insofar as they relate to one or more staff members (Article II of the Statute). This includes, for example, decisions relating to the contract of employment (e.g. non-renewal, termination, benefits and entitlements, pension matters…), disciplinary decisions (e.g. dismissal, downgrading, reprimand…) and decisions relating to selection and promotion. The complaint must be filed within ninety days after the complainant was notified of the decision impugned (Article VII (2) of the Statute). All internal remedies need to be exhausted in order for a complaint to be receivable (Article VII (1) of the Statute).

The Tribunal may set aside an impugned decision on several grounds, such as violation of the applicable staff regulations, failure to comply with other procedural requirements, or, as will be illustrated below, violation of general principles of administrative law.

If the complaint is well founded, the Tribunal shall order the rescinding of the decision impugned, or the performance of the obligation relied upon. If such rescinding of a decision or execution of an obligation is not possible or advisable, the Tribunal may also award the complainant compensation for the injury caused to her or him (Article VIII of the Statute).

Judgments of the Tribunal are final and without appeal (Article VI (1) of the Statute). This means they have the authority of res judicata. They are therefore immediately executable, and the Tribunal also expects them to be implemented within one month of the notification of the judgment (Judgment 1338).

Administrative law and the Tribunal

As already indicated, the Tribunal may set aside individual administrative decisions of international organizations on the grounds of a violation of general principles of administrative law. The Tribunal has recognized several principles in this regard.

Already in a judgment of 7 March 1934, the Tribunal referred to an “administrative law relationship governed by the principles of public law” to argue that the complainant could not rely on the promises made by the then Secretary-General of the League of Nations, Sir Eric Drummond, because he had no capacity to decide whether an official was entitled to a Pensions Fund benefit :

“In the instant case, it is a matter of an administrative law relationship governed by the principles of public law. One of these principles, which the complainant seems to have forgotten, is that of respect for areas of jurisdiction. As stated above, the Secretary-General did not have the capacity to promise action by the Fund’s Administrative Board.” (Judgment 13)

In the years and decades that followed, the Tribunal has recognized several principles of administrative law. For example, the Tribunal has referred to “general precepts of administrative law” to argue that an organization may not unilaterally take action that affects a staff member’s status before letting him have his say (i.e. right to be heard) (judgments 1484; 1395; 1212; 1082; 907). Furthermore, the obligation of the decision-maker to be able to state on request the reasons for his decision has been coined “a cardinal principle of administrative law” by the Tribunal (Judgment 1054). More generally, the duty to explain a decision has been considered by the Tribunal to be “a general principle of administrative law” (Judgments 2752; 1369). The Tribunal also referred to a “principle of administrative law” to argue that a person must be affected by an administrative decision in order to be entitled to the reasons for that decision (Judgment 3081).

In other case law, the Tribunal does not refer explicitly to administrative law but only to “general principles” or “general principles of law”, of which many are nonetheless typical administrative law principles. Thus, for example, the Tribunal recognizes the principles of equal treatment (Judgments 5078; 4277), proportionality (Judgment 5008; 4770), duty of care (Judgment 3911), and tu patere legem quam ipse fecisti (an organization is prohibited from breaching the rules which it has itself established) (Judgments 4840) as general principles of law which it can apply and the violation of which will lead to the quashing of the impugned decision.

An interesting example in this regard is the case law of the Tribunal with regard to the possibility of an international organization to reverse or revoke an individual decision that has conferred rights upon the individual staff member. Thus, with reference to “general principles of law”, the Tribunal consistently rules as follows:

“In accordance with these principles, an individual decision conferring an advantage on an official becomes binding on the organisation which has taken it and thus creates rights for the person concerned as soon as it has been notified to her or him in the manner prescribed by the applicable rules. Where there is no express provision to this effect, as a general rule, such a decision may therefore only be overturned, whether by revocation or reversal, if two conditions are satisfied: the decision must be unlawful and it must not yet have become final. The position is different only where the initial decision stemmed from a purely factual error and where its revocation, or reversal, does not result in a breach of the requirements of the principle of good faith.” (Judgment 4698; Judgment 3693; Judgment 3483)

It is noteworthy that the Tribunal does not elaborate further on the origin of these general principles of (administrative) law. The Statute of the Tribunal does not refer to these principles (unlike, for example,  the Statute of IMFAT, which states that the Tribunal shall apply “generally recognized principles of international administrative law”). Perhaps the Tribunal, like the Court of Justice of the European Union, implicitly proceeds from the premise that it can apply general principles of (administrative) law that are common to the Member States of the respective international organization (see e.g. Joined Cases C-7/56 and C-3/57 to C-7/57, Algera and Others). On the other hand, it may also be that the Tribunal considers these principles to be a special application of the principle of the rule of law, to which every international organization is bound, and which offers protection against arbitrary acts by the administration. The Tribunal has indeed already made this link with regard to the principle of proportionality in the context of disciplinary decisions:

“The Tribunal’s well-settled case law has it that the choice of the appropriate disciplinary measure falls within the discretion of an organization, provided that the discretion be exercised in observance of the rule of law, particularly the principle of proportionality (see, for example, Judgments 4770, consideration 20, 4660, consideration 16, 4504, consideration 11, 4247, consideration 7, 3640, consideration 29, and 1984, consideration 7).” (Judgement 5008)

Whatever the case may be, this case law sounds very familiar to practitioners of administrative law. The reasoning and writing style of the Tribunal are indeed typical for an administrative court. This may not be surprising, given that many of the judges of the Tribunal are or were previously judges in the highest administrative courts of their respective countries (e.g. Belgium, France, Italy) (see also Article III (1) of the Statute: “Judges must have been appointed to, or possess the qualifications required for appointment to, the highest judicial office of their countries”).

In sum, while the Tribunal has stated that it is not purely an administrative court and that it may therefore also apply other branches of law (Judgment 1369), the fact remains that it has developed a strong and consistent body of case law in the field of administrative law over the years, allowing one to speak of a truly international administrative law in this regard. This vast body of case law has undoubtedly contributed to the Tribunal’s reputation as a staunch defender of the rule of law within the framework of international organizations.

Conclusion

The Administrative Tribunal of the International Labour Organization is the oldest international administrative tribunal still in operation today. Over the last (almost) 100 years, it has provided the necessary guidance and stability in the settlement of disputes between civil servants and their employing international organizations. In doing so, it has developed a vast and consistent body of case law in the area of administrative law, making the Tribunal a true guardian of international administrative law.

In times when public international law is increasingly under pressure, it is encouraging that international courts such as the Tribunal continue to actively contribute to the respect for the rule of law through continuous and steady case law. It gives one hope that the international legal system is still effective and respected, despite the many challenges it faces today.

Posted by Junior Geysens

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Junior Geysens is a lawyer at the Brussels Bar (junior.geysens@portico.be).