The Legal Corner

“That Losing Feeling”

A recent analysis of ILO Administrative Tribunal Judgments between January 1995 and July 2001 paints a bleak and disconcerting picture for international civil servants facing ever-increasing attacks upon their rights and job security. Long viewed as a forum of fairness and impartiality for those whom, by virtue of their choice of employers, are curiously deprived of the fundamental right to protect themselves in a national court of law (thanks to the anachronistic concept of “functional immunity”), the results of this recent survey suggest that the Tribunal is less an unbiased forum and more a rubber stamp for the administrations of international organisations that subscribe to the jurisdiction of the ILOAT.

The study (The Centre would have done the same analysis for recent decisions of the UN Administrative Tribunal as well; unfortunately, the decisions of the UNAT have not been generally made available to the public for the past six years (purportedly due to lack of funding). Only the staff/appellant in each case, the UN Administration, and those with access to a UN Library are given access to such decisions — if such a state of affairs does not amount to a total and complete deprivation of the most basic tenets of due process, then due process is a dead letter within the so-called administrative justice systems of international organisations. Additionally, a similar survey was conducted several years ago comparing the results of staff before both the New York and Geneva UN Joint Appeal Boards (and published in UN Special) which revealed an equally heavy bias towards the Administrations, particularly in Geneva), undertaken by the Centre for UN Management Accountability (the full results of the study will soon be available on www.cunma.com) in response to anecdotal suggestions that the Tribunal was becoming increasingly and markedly hostile to claims brought before it by international civil servants, unfortunately appears to confirm such suggestions.

Using an exceedingly liberal standard to classify a “win” for a staff/appellant before the ILOAT (including        cases where all the claims of the appellants were rejected by the Tribunal but where the Tribunal nonetheless awarded either costs or damages for matters arising out of the conduct of the appeal itself [usually inexplicable delay on the part of the defendant organisation]), the study found that over the past six years, staff/appellants “won” their cases on average no more than twenty-nine (29%) percent of the time (see Table 1). Even more troubling is the identification of a trend identified by regression analysis, which indicates that the staff/appellant “success” rate declined eight (8%) percent over the six-year period of the survey (see Table 2). If such decline rate were to continue unabated, the staff “win” rate will reach zero by the year 2026.

Adding insult to injury, the study also looked at the number of oral hearings which were conducted by the Tribunal during the same six year (6) period. Out of the 701 Judgments issued, oral hearings were held in none of the reported cases. While oral hearings were admittedly not requested by the staff/appellants in some 503 cases, the survey indicates that oral hearings were refused in every single case, nearly 200, where they had in fact been requested. In the cases where the credibility of witnesses is at issue (the typical he said, she said case), the failure of the Tribunal to observe for itself the demeanour and comportment of the witnesses making conflicting claims calls into question the very validity of every judgment entered by the Tribunal in such a case.

As the right to be heard before a neutral, unbiased authority is one of the fundamental tenets of due process in most developed legal systems, the foregoing findings of the survey are particularly troubling to international civil servants and their legal representatives alike. For those staff members who find themselves in untenable circumstances at work (forced to endure mobbing, sexual harassment, unequal treatment, false appraisals, unfounded contract, non-renewal and the like) and who believed that the ILOAT, one of the oldest administrative tribunals, and in fact the successor to the League of Nations AT, would deliver them from their odyssey through bureaucratic impunity, such findings are devastating.

The bright side of the survey, however, is that it gives potent ammunition to those few brave international civil servants who forsake the internal, lopsided proceedings and attempt to bring their grievances in national courts. As the European Court of Human Rights indicated in a 1999 decision involving a complaint brought against the German Government, arising out of a case within the European Space Agency (an organisation which subscribes to the ILOAT), it would not hesitate to render judgment in a case against an international organisation if the functional immunity of such organization denied a litigant his or her rights to due process under Article 6 of the European Convention on Human Rights (which provides in relevant part: “In the determination of his [or her] civil obligations…, everyone is entitled to a … hearing… by [a]… tribunal…” It would seem that the findings of the subject survey unequivocally call into question the level of due process afforded appellants before the ILOAT. Only time will tell what effect if any such findings will have on the attempts of international civil servants to vindicate their rights in national courts.

The author is outside legal counsel to the WHO Staff Association