Welcome to all of you. Joining today's talk and in-person and online.
I'm very grateful. First need to survivorship introducing Neal points out reintroducing me to the discussion and of course to Natasha.
I read that nothing would be possible here and before I say anything else,
I am going to underline the fact that my remarks are made in a purely personal capacity.
As I say, it's a pleasure to return to the group, to the discussion.
Greater confidence, national law, excellence and my lasting career led to an article for the line Journal of International Law
on the authority to the interpretation of the treaty basis of international organisations.
And I have to share today that that subject and today's topic are fundamentally interrelated.
But that's what I wanted to do, is to redeem this law.
That said, all international administrative law from from obscurity.
Although paradoxically, I will continue to do this.
I'll do anything on this occasion.
And secondly, I want to modestly offer a version of the law, which I would contend, I just submit to you with more work.
And by this I mean identifying a usable and no clickable law and legal structure to implement related disputes of international organisations.
I would say welcome your sceptical consideration of all of this and the contribution of any sort of analogies or analysis, analysis and analogies.
Next steps to honest and genuine international law with which you may be intimately familiar with.
I am not so following this introduction. I'm going to divide my people into three parts.
I'm going to begin with a short case study by way of kind of round the discussion of how the applicable law is typically stated in the sort of facts,
the sort of employment related parts it interacts with.
And second, sketch out the three central controversies to the law, including my annual observations.
And lastly, thirdly, I'll suggest a workable version of the employment law of international organisations, and I'll do the remarks.
The Employment Law of international organisations, so called international administrative law,
or is it sometimes named the law of the International Civil Service is almost 200 years old.
And I say this because the treaty signed, signed in 1919,
bringing the First World War to conclusion, incorporating the covenant of the League of Nations.
For the first time,
you have an international organisation that was deliberately intended to be staffed not by second is not by envoys from the states,
but instead by an independent national civil service loyal only to the league.
And the best employment related dispute that arose in this setting remain is, I think, constructive.
It involved as the claimant, an official with cold fronts from the north and he had been appointed to the Secretariat on a binding contract.
As I have to say, I think his timing was rather marvellous.
The director of the Tracy writing section. This is his job.
But in February 1921, he mutually agreed with the Secretary General, Eric Drummond,
that upon the reorganisation of the section, he would cease to act as its director and he would go on a leave of absence.
And the understanding was that he would then be reabsorbed into the Secretariat as soon as a suitable pace and such suitable pace did arise.
I have to say, based upon my own experience as a practising international organisations,
where this kind of happening is a fairly timeless sort of case could occur.
Yesterday, for instance, Larry. Menon's dispute was referred to the council at the League of Nations.
There was no other apparatus in place, and the Council formed a commission to advise them on how to resolve the dispute.
The Commission was comprised of three international jurists, an Italian adoption, Swedish national, and they reported in 1925.
The Commission found that Minot's employment was not contractual or in other words, simply a private bargain between employer and employee.
But instead it said the public administration by the League of Nations accomplishes an act of authority for an object of public utility,
and by such act it confers on private persons public duties.
Thus, in tandem with the status of officials, inasmuch as it is this delegation of public duties that characterises the appointment to offices.
The Commission regarded this transposition from private and public officeholder as inherent
to membership of the Secretariat and essentially to being an international civil servant.
Since the league was an intergovernmental entity activated by public interest and
in turn the Commission found that relations connected with public employment
are always governed by the exigencies of the public interest to which the private and personal interests of the officials must necessarily give way.
However, the commission also cautioned that this unfettered sense of authority was, in fact not founded.
It said This does not mean that a public administration can exercise its powers in an arbitrary manner.
The public administration must always, in all its acts, have regard to the public interest and respect the principles of justice.
If it if it exceeds its powers for private ends or any is not authorised by law, or if it commits an injustice, it is guilty of unlawful acts.
Consequently, the Commission found that the only legal question to issue was whether the claimant, Mr. Maynard,
had been relieved of his duties dictated solely by regard for the interests of the administration.
If there is no reason to think otherwise, then the discretion of the Secretary General was unquestionable.
The Commission consequently upheld the termination of the appointment,
but in fact it found that he was a summons unpaid before the end of his appointment,
lasting than that because he had been induced to step down by what proved to be an empty promise of future re-engagement.
So in the aftermath of this ad hoc committee,
the League of Nations went on to establish a so-called International Administrative Tribunal to this in 1927.
This tribunal continues to exist today as the Administrative Tribunal of the International Labour Organisation.
The little beaches of this case hundred years old.
The assertion of this self-evident but unattributed applicable law somehow derived from the statements of the treaty based employing entity.
This will remain relevant to attendant and unresolved controversies today.
These controversies I want to turn to now. I think it's fair to say that when I'm usually talking about so-called international administrative law,
I'm fairly breezy about its nomenclature, it's cohesiveness and its mere existence.
However, all three of these speeches are respectable, in my opinion, rather consequential controversies.
And so I'm going to try to say them to you and offer my observations to begin with.
Nomenclature. You will have noticed, I think I would say far, but rather cautiously, rather furiously,
perhaps cryptically to an international administrative law practised by so-called the term international administrative law is in wide usage.
It is ubiquitous, but it is constantly criticised.
One of its critics, Shinichi, ago, a Japanese jurist and not an importantly a member of the Asian Development Bank Administrative Tribunal.
He argues that the literal legal definition of international administrative law in no way
would lead you to suppose that is connoted the employment law of international organisations.
He notes that the leading author in the field cannot and there is Stingo refers to the sources of
international administrative law or the law governing employment relations in international organisations.
AJ concludes that the notion of international administrative law is clearly set to the concept of international institutional rule,
or the state owned Global Administrative Law concept worked on by Benedikt Kingsbury and his colleagues at NYU.
They said both nations are based on the assumption that there is an international public interest or global governance,
which is administered by a set of international rules.
Well, I think that the administrative and international administrative law has stuck for three reasons.
Firstly, as you heard from our case study in the first so-called international administrative law case,
the concept of an international organisation exercising has a public administration and hence the
notion that international civil servants are administrators as being present from this law section.
Second, it's also the case, I think that within international organisations a shorthand exists dividing the functioning of the institution
between operational on the one hand and in some cases administration or administrative activities.
On the other hand, the operations means the fulfilment of the mandate of the organisation and its related.
Nor say the mandate is international finance development for multilateral development banks.
This will be if its operations and administration means everything else, including staffing the institution.
And notably you'll appreciate that operations differ between international organisations.
But administration is a commonality.
And lastly, in approaching nomenclature, generally international organisations demonstrate a tendency to downplay or de-escalated terminology,
intending to evade legal rigidity and perhaps or say elevated governance authorisations.
What I mean by that I mean that the memorandum of understanding is ubiquitous.
Almost everything that can be achieved through the memorandum of understanding, nothing more is needed.
Thus, the Forum for Resolving Employment Related Disputes takes the name innocuously.
Administrative Tribunal or International Administrative Tribunal.
So it seems as a consequence that an International Administrative Tribunal applies international administrative law.
But this observation this may just call them.
Catanese The naming Chris, the cook at president and member of several international administrative tribunals,
writes The Nation and International Administrative Law As our Nation International Administrative Tribunal is indeed misleading these days,
since these tribunals, with a few exceptions,
generally only do international civil service cases and not with challenges to other administrative decisions.
And indeed, our second controversy three relates to these so-called international administrative tribunals,
namely the cohesiveness or absence of business that the law.
You may have heard me already. You had me referred to the International Civil Service, even though as you introduce international administrative,
you'll find the term international civil servant unobjectionable.
And yet what we mean when we say this is we mean employees of innumerable international
organisations saying we don't mean what we mean when we say national civil service.
In other words, all officials can easily and ultimately answerable to a single head of state, a single head of state and head of government, perhaps.
And because of this or compounding this, depending upon your point of view, there is a multitude of international administrative tribunals.
In light of the jurisdiction immunity of International Organisations Administrative Tribunal as are
established as subsidiary organs by the plenary governments organs of international organisation.
What I mean, I mean it is the United Nations General Assembly that establishes the Administrative Tribunal.
The UN is the Board of Governors of the World Bank to establish the World Bank Administrative Tribunal and so forth,
and these tribunals adjudicate employment related disputes.
And beyond that, there is no appeal or recourse.
And as I said, the League of Nations Administrative Tribunal became the ILO's Administrative Tribunal, the ILO 80 in 1946.
The ILO 80 is somewhat unusual.
About 60 international organisations recognise the jurisdiction, the appellate jurisdiction of the ILO team.
In 1949, the United Nations Administrative Tribunal was established.
It is maze of you familiar with the jurisprudence of the International Court of Justice.
The style of the ICJ is advisory opinion towards compensation made by the UN agency and it was established in 1954.
This then was replaced by a two tier undisputed tribunal and the UN Appeals Tribunal in 2009.
In addition to the UN funds and programme, about a dozen other UN specialised agencies recognise the UN jurisdiction.
But then there are no other than a major international administrative tribunal,
as there are no other essentially co-ordinator and National Administrative Tribunal.
Instead, there are countless tribunals possessing jurisdiction limited to the international organisation that establishes them.
So all I advise international financial institutions have their own tribunal, the World Bank and the IMF,
the Asian Development Bank, the African Development Bank, IDA, the European Stability Mechanism,
the Inter-American Development Bank, Bank of International Settlements,
etc. etc. etc. They all have their own administrative tribunal, same as the Commonwealth Secretariat in London.
I happen to be the Executive Secretary of the Commonwealth Secretariat Arbitral Tribunal.
The latest I'm told the latest a t to be established with all of the Caribbean community within CARICOM in 2019 and the cook at the jurist I
mentioned earlier he's written there is that or no reason to think that a proliferation of international administrative tribunals will not continue.
In fact, several organisations regularly review that dispute resolution systems and is they do not
have their own tribunal often consider the advantages and inconveniences of creating more.
But then you might think, well, this abundance of venues must, must lead to some certainty of the applicable law.
The ILO 80 has today issued 4579 judgements.
The World Bank Administrative Tribunal, founded in 1988, has issued 685 websites of the UN system is too cumbersome to quickly add up to the total.
But I think it's reasonable to suppose that we now past the point where there are 10,000 or so judgements by these tribunals.
But the statutes, the governing instruments of administrative tribunals and the sanctions that they place,
which can be considered places to an inexplicable nor sanction.
Will they in the trouble that is,
you say the identity statute says the tribunal should be competent to hear complaints alleging non observance in substance or in form of the terms
of appointment of officials of the International Labour Office and of some provisions of the staff regulations as are applicable to the case.
Similarly, the WBA, the World Bank Administrative Tribunal in statute,
says the tribunal should hear and pass judgement on any application by which a member of the staff of the bank
group alleges non observance of the contract of Employment or terms of appointment of such staff member.
The words contract of employment and terms of appointment include all pertinent regulations and rules enforced at the time of the national observance,
including the provisions of the staff retirement plan.
No mention of matters of international administrative rule.
Occasionally, a tribunal statute does revert to international administrative law as a source of law as applicable law.
But it doesn't define the term this act, the statute of the Commonwealth Secretariat Tribunal states.
In dealing with a case relating to a contract of service.
The Tribunal shall be bound by the principles of international administrative law,
which shall apply to the exclusion of the national laws of individual member countries.
As an observation, I can tell you that this is done when new tribunals are created to try and tether them.
To the existing extant universe of administrative tribunals and so-called international
administrative laws without being bound or compelled by a stricter sense of precedent.
Say lastly, and most importantly, that control is.
The mere existence of the law. Even the very existence of international law is doubted after every 100 years.
This criticism has two layers. The first line is that these international organisations are self-contained legal regimes.
You cannot draw on a case, your administrative tribunal side, the organisation.
Thus reference to a law that supports to do this and suggesting amalgamation is is misconceived.
The very first case decided by the World Bank's administrative tribunal in 1986 struggled to resolve this.
And it is said that it is somewhat of an it's an important judgement known as Demarais.
While the various international administrative tribunals do not consider themselves bound by each
other's decisions and have worked out a sometimes divergent jurisprudence adapted to each organisation,
it is equally true that on certain points the solutions reached are not significantly different.
It even happens that the judgements of one tribunal may refer to the jurisprudence of another.
Some of these judgements even go so far as to speak of general principles of international civil service law,
or of a body of rules applicable to the International Civil Service.
The next sentence is somewhat surprising. Whether these similar features amount to a true audience jurist.
It's not a matter on which it is necessary for the tribunal to express a view.
Instead, it says the tribunal is ready to take note of situations and especially comfortable conditions by other administrative tribunal,
particularly those of the United Nations family. In this way,
the tribunal may have to take account of its diversity of international organisations and the
special character of the canon without neglecting the tendency towards a certain rapprochement.
It is a very, very grand formulation.
It could be glossed, I think, by.
Shinichi Naga is observation is written.
It is an undisputed reality that judges referred to other international administrative tribunals decisions and more generally
to international administrative law whenever they have difficulty identifying concrete rules to support their arguments.
The secondly, the alleged non-existence of so-called international administrative law is the criticism that even.
Simple concrete rules do not amount to, well, what the WBA might call a true corpus juris.
Embarrassing to the leading scholar of the field.
Possesses a somewhat noteworthy view, particularly in light of how exhausted is treated these days, he said.
It is unnecessary and not possible to evolve a theory relating to the formal sources referred to by tribunals.
Suffice it to say that there are numerous formal from which tribunals have in practice derived the rules which they apply.
Such reference has best made not rested on any preconceived theory and formal sources of international administrative law.
Rather, practical necessity and judicial wisdom have determined what formal sources should be in banks in deciding cases.
Nevertheless, he goes on to identify a brutal knowledge of sources, including staff, regulations,
dog rules, statutes and tribunals, decisions of tribunals, contracts, employment and similar instruments.
Constituent instruments, general principles of law. Practice.
International Law. Municipal law. Equity and judicial precedents.
So an undeniable degree of judicial wisdom would be required to sift through all of this.
And this clearly is a headache for the judges.
This is to say nothing of the complexity that it might lead to in ordinary stone evidence of international organisations with embarrassing.
You start to get this sort of sense that you could just sort of throw everything at it,
maybe including a gesture to the Vienna Convention on the Law of Treaties, Article 31.
General rule of interpretation, and I'll say the ICJ statute, Article 38 and the applicable law.
But let's just pause and say, well. Let's take up general principles of law.
As an indispensable part of the applicable law of, say, international administrative law.
How exactly then they ought to be identified?
And how then are they to penetrate the carapaz of the jurisdiction immunity of international organisations.
Let's go back to concrete examples of NANOG and the principle expressed by the Commission.
Public administration must always, in all its acts, have regard to the public interest and respect the principles of justice.
Is this a general principle of law recognised by civilised nations?
The ICJ statute, Article 38, subsection C?
Or is it a general rule of international law within the terms of the ICJ advisory
opinion or interpretation of the agreement between W.H.O. and Egypt when they read
international organisations all subject to international law and as such are bound
by any obligations incumbent upon them under general rules of international law,
under that constitution or under international agreements to which all parties.
When she did it. When we were talking before,
what I discovered when teaching at Peking University is that idea restraint of public administration
may not be sufficiently universal to compromise some inalienable international legal principle.
Even the International Court of Justice itself issuing a remarkable five advisory opinions,
functioning as a court of appeal from the integrity and unity.
An unhappy row I think now discontinued, plus the effect of the women's advisory opinion.
Six cases and it hasn't been detained by this issue in the past of these advisory
opinions in 98% of called upon to interpret the elevated jurisdictional clause that
I read at which moments ago it sustained its finding stating in doing say the
court has relied on the wording of the text in question as well as on this spirit,
namely the purpose in which they were adopted. That purpose was to ensure to the organisation, the services of the personnel,
possessing the necessary qualifications of competence and integrity, and effectively protected by appropriate guarantees.
In the matter of that matter of those elements of the terms of employment and of the provisions of the staff regulations.
It is in that way that the court arrived at what it considers to be the correct interpretation of the Statute of the Administrative Tribunal.
And yet I think that the ICJ is modestly, I think it's on to something because I do,
I think that well because without actually saying there it is requiring attributes of
international civil service encoded into the treaty bases of international organisations.
Say. Thirdly. To come to a workable version.
One knowable version of a full employment law of international organisations.
We in fact come full circle back to 19.
Talk to the discussion group of many years ago about treaty bases of international organisations.
We know. That international organisations possess the competencies expressly stated in that constituent instrument.
Or which necessarily implied sorry, necessarily intended by implication to be possessed by them to achieve their purposes.
We know, too, that they are possessed of a limited competence as subjects of international law, unlike the general competence wielded by states.
We know, too, that this treaty basis is authoritatively interpreted in accordance with the set of principles always exhibiting good faith.
Knowing this, then I think it is eye catching that the treaty basis of international organisations has much to say about the law of employment.
And there's organisations.
The treaty basis of international organisations obligates all characteristics of the employees of international organisation and these clauses.
These obligations are replicated. Almost verbatim throughout the multitude of constituent instruments of all international organisations in the world.
But we're going to use the U.N. charter for convenience, save for obligatory attributes.
Quest, competence. Second, geographic diversity, burden, integrity, all hierarchical discipline.
So the first is competence. The U.N. Charter, Article 101,
Subparagraph three first sentence says The paramount consideration and the employment of the staff and in the determination of conditions of service.
Shelby the necessity of securing highest standards of efficiency, competence and integrity.
They will consider integrity on the subsequent head and will notice that these highest standards of efficiency and competence are to be secured.
So now that you're well. Iterated in the internal law of the organisation.
You have. This obligation rendered as.
Recruitments must be transparent.
It must be merit based. International officials must be appropriately incentivised in poor performance was not appropriately addressed.
Then competence would not have been secured. There are.
This set of ramifications or obligation in this treaty revision.
Mandatory upon the organisation is to be implemented in good faith.
Second, geographic diversity competencies must be reconciled.
Geographic diversity. Second sentence, said Article 101.
Subparagraph three of the UN Charter says due regard shall be paid to the
importance of recruiting the staff on as wide a geographical basis as possible.
The geographic diversity of the star is a subordinate preoccupation to the highest standards
of efficiency and technical competence and due regard establishes a degree of subjectivity.
It's rare that this is applied or can be applied in a case by case, person by person basis.
But it is the basis for seeking to attract and retaining multinational staff.
You were gonna say? What does that mean? It means that you're running the United Nations in your working there.
Must be as attractive to. Chinese international official, Russian international officials, British and national officials,
international officials from all around the world as it is attractive to US national international relations.
And it's also the legal basis, I contend,
for being able to essentially legitimately discriminate between staff because of this distinction based upon geographic diversification,
to say what's the basis for paying the relocation costs of a staff member in Paris to New York,
but not the relocation costs of somebody that moves from Boston to New York, perhaps.
And it means that there must be or it is obligatory in order to image advanced this mandatory attribute of the International
Civil Service that something is done to make sure that the workplace is adequate to be attractive to multinationals,
don't pay their relocation expenses,
pay housing sales, and to pay to educate children in their own languages in private schools,
perhaps paying some sort of compensation because the stance that the organisation's official is now unemployed and perhaps,
depending upon the context, unemployable at that duty station.
Thirdly, integrity. Well, integrity.
So nowadays the modern ring of integrity is anti-corruption and integrity in the context of the international civil society, certainly meaning that.
But it also means what's referred to as the undivided duty of loyalty.
Inaugurated in the League of Nations, in fact.
And this is comprised of two interlocking provisions that the government is limited to the definition of the International Civil Service,
the oriented Article 100 of the U.N. Charter.
First paragraph is in the performance of that duty, as the Secretary General of staff shall not seek or receive instruction from any government board,
from any other authority, external to the organisation.
They shall refrain from any action which might reflect on the position of international officials responsible or relate to the organisation.
This interlocks with the second paragraph, which is each member of the United Nations undertakes undertakes to respect the exclusive
international character and responsibilities of the Secretary General and the staff,
and not to seek to influence them in the discharge of their responsibilities.
Again, this ban is implemented as a treaty provision is implemented to maintain the law of the organisation by things like codes of conduct,
misconduct, investigation and disciplinary procedures and indeed by international administrative
tribunals as the guarantors backstop to this and these other attributes.
And then fourthly, hierarchical authority in international organisations.
It's a bit like the army, international civil servants subordinated to a hierarchical authority.
In other words,
there is always a principal executive officer and to use that parlance at the UN specialised agencies that should say in the case of the UN,
it's the Secretary General of the cases, the World Bank, the President,
and say Article 97 of the UN Charter says the Secretariat shall comprise the Secretary General and such staff as the organisation require.
The Secretary General shall be appointed by the General Assembly upon the recommendations of the Security Council.
He shall be less likely shall be the Chief Administrative Officer.
Ization follows. Moscow 101.
Sub paragraph one of the charter also says the staff shall be appointed by
the Secretary General under regulations established by the General Assembly.
Two observations that his function as chief of staff.
Possessed of the Secretary-General by the treaty, not as a delegate or a delegated function from the Government,
but the governance organ has this role in issuing a framework stop regulations to the internal law of Employment at the organisation,
and the STOP Regulations would be assumed to be the superior source of law to the legal instruments issued by the Secretary General.
So my contention is that these same or treaty based attributes of all international civil servants governing competence, geographic diversity,
integrity and crucially safeguarding independence and hierarchical authority,
they together form placing the foundations of the applicable law of employment at international resolutions.
So. Lastly, to conclude.
My proposal. Modern submission.
So that the employment law of international organisations.
Yeah. Let's just use plain English.
It's able to use the employment law of international organisations derived from these treaty based
characteristics attributed to the entirety of the International Civil Service implemented by or instrumentalize,
in other words, representing a practice within the sense of the Convention on the Law of Treaty
as Article 31 to be as applied to international organisations implemented
or instrumentalized both by the Executive Authority that principal executive offices and governance organs through their adoption of regulations and.
Critically the statutes of the so-called International Administrative Tribunal, whose adjudicatory activity is subsumed.
Into the legal authority and practice all the organ that establishes them.
This then means you possess an underlying treated basis which cannot be transgressed by any administrative action of an international organisation.
Common to all international organisations and hence we can and we can in fact talk and use it on the employment of international organisations, say.
By way of example. To return for the last time to miss them and not a thing.
Crazy writing section directions there the principal was rendered public administration
was always going in the public interest and respect the principles of justice.
My contention would be that this is more pressure to be rendered without the need to call in exterior principles as something
like an international organisation in all its acts is confined to its treaty basis with regard to its objects and purposes,
and is to secure the competence, geographic diversity, integrity and discipline of all its staff in good faith.
The effect may be the same.
My contention is that the nobility, in other words, the workability of this provision of employment law would be far greater.
Lastly, I didn't begin as is customary with a joke,
but I shall end with one one you doubtless because this way the English judge hearing representations from
cancelled interrupts that it doesn't need to be total public international borders because he knows what it is.
English law is law or it's that. And public international law is fiction.
This always makes me smile. And it kept on coming back.
And I was trying to arrange one of these puzzle pieces from today's paper.
And I guess I'm wondering this. Carry on.
What would you say about, say, international administrative rules?
Is it a fiction of a fiction? Then I thought, perhaps it's the folklore.
And so I look to central folklore, traditional beliefs, customs, songs, tales, etc., preserved in oral tradition among the group of people.
And it's such a sense that there's this addition preserved by by lawyers like me.
And all of this may seem trivial and inconsequential and less and less that this is when I return to being very earnest,
unless it's critical to the accountability,
the integrity and the effectiveness of giant and gigantically influential multilateral institutions appointing, incentivising,
promoting, dismissing and safeguarding the independence of staff who instrumentalize the mandate,
the international organisations and the UN Creative Commons codes and created
to take that and claim to heaven and not not created or not created mankind,
but to save humanity from [INAUDIBLE]. So I think that therefore, after these 100 years, it's now time for a.
More now. No employment law and international sanctions.
Thank you.