The best of the bunch flunks

ILOAT Found Unlawful, Archaic by Distinguished Jurists

Over the past year, UN Special has run a series of articles exploring the efficacy and fairness of the ILO Administrative Tribunal (ILOAT), a quasi-judicial organ originally set up in 1946 to adjudicate the employment disputes of ILO officials. Long considered the best in class of the various administrative tribunals serving international organizations such as the UN, NATO, the World Bank, IMF, etc., the inadequacies and deficiencies of a once admired and respected court were recently laid bare for all the world to see by the Tribunal’s own “clients”, at an unprecedented public presentation ironically held in the same conference chamber where the ILOAT normally announces its judgments in public.

Although individual complainants and their counsel have long suspected that the Tribunal was not properly functioning, it was not until a preliminary survey of the Tribunal’s decisions over the past 10 years was undertaken (and reported in the UN Special last year) that such suspicions began to prove true. The ILOAT survey revealed that staff members succeeded on average in their cases before the ILOAT at most 27% of the time, while comparable success rates in national court systems such as the US or UK, or at the European Court of Human Rights, regularly exceeded 60%. It also became apparent from the survey that the once sacred right of a litigant to a public hearing before the Tribunal had been completely vitiated since 1990.

Sadly, the survey exposed the Tribunal as a rubber-stamp protector of unaccountable administrators acting with impunity behind the functional immunity granted to international organizations. What makes this discovery so troubling is that staff members of the international organizations which subscribe to the jurisdiction of the ILOAT have no choice but to litigate all their employment disputes (wrongful termination, mobbing, sexual harassment, discrimination, service-related permanent injuries and illnesses and the like) before the Tribunal due to the fact that upon joining an international organization, functionaries give up their right to seek redress in national courts due to the privileges and immunities afforded to most international organizations by their host country government. Such a turn of events is particularly sad as the predecessor of the ILOAT, the League of Nations Administrative Tribunal (LNAT), was expressly created to protect the security and independence of international civil servants, the proper functioning of which was seen as a boon to the efficiency and operation of the League of Nations. Unfortunately today, the successors of the civil servants for whom the LNAT was fashioned find themselves under siege with no meaningful or realistic remedy for their often serious (if not criminal) complaints against their employers.

At an unprecedented symposium held on 13 November 2002 at the ILO and hosted by the ILO Staff Union, FICSA, the European Patent Office Staff Association, and a majority of the other staff associations from the 40 international organizations (covering some 35,000 staff members) which now subscribe to the jurisdiction of the ILOAT, a trio of eminent legal experts took the ILOAT task for its gross failure to guarantee litigants before it basic human rights and to ensure the application of best practice due process standards. Geoffrey Robertson, QC, a renowned British Barrister and human rights campaigner, Louise Doswald-Beck, Secretary-General of the International Commission of Jurists, and Dr. Ian Seiderman of the Centre for an Independent Judiciary, all pointedly criticized the ILOAT and its current practices.

Topping the list of defects were the manner in which the ILOAT members (so- called contract judges) are appointed and renewed (their short appointment terms and multiple renewals, the current Tribunal President having been renewed three times after his initial 3 year appointment, give rise to at least the perception that their judgments might be influenced by the need to keep the defendant Administrations happy in order to win another term), the failure of the ILOAT to hold a single public hearing in any of the cases its has treated over the past 12 years despite the express requests of litigants (a violation not only of various international treaties and conventions, but also of the ILOAT’s own governing Statute), and the glaring lack of an appellate body to consider legal errors allegedly committed by the Tribunal.

Barrister Robertson also criticized the Tribunal’s failure to abide by its own prior legal precedents, as well as its refusal to systematically force defendant organizations to turn over pertinent evidence or documents usually in its sole possession, many of which could be determinative in a case, and the existence of which (the archetypical “smoking gun”) are often known only to the defendant organizations. He also pointed to the stunningly low success rate of litigants before the ILOAT as conclusive evidence of the Tribunal’s misfeasance.

Although the affected staff unions and associations have for a number of years been trying to get the ILOAT to reform its Statute and practices (through a complicated and convoluted process of negotiation, consultation, and advice), the arrogance of the Tribunal and the obdurate stance of the ILO Administration towards real and meaningful reform have left the Tribunal’s claimants little choice but to seek redress of this deprivation of basic human rights through the court of public opinion and in other judicial fora that respect the rule of law, and that care not only that justice is done, but that justice is seen to be done. The staff unions and associations are currently in discussions with Mr. Robertson (soon to sit on the bench of the Sierra Leone War Crimes Tribunal) and other illustrious attorneys about bringing cases before the US National Courts and the European Court of Human Rights challenging the abuse of functional immunity by international organizations which is so regularly corroborated by the ILOAT.

For those readers who are contemplating an appeal against an international organization, take heart, for a real and neutral avenue of redress may soon be available. For those that have taken an appeal to the ILOAT and lost, there may also be hope—a class action for such litigants seeking redress for such losses is also being contemplated in the near future.

In the interim, the following practical advice is offered to both past, current and future appellants to the ILOAT:

ﾀ Request that any judge who is a “contract judge”, ie: has been re-appointed after one three-year contract, should disqualify him/herself for reasons of conflict of interest, on the grounds that any judge accepting re-appointment by the Administration does not conform to the necessary level of independence required by a judicial body and is in breach of the UN Principles of the Independence of the Judiciary;

ﾀ Request an open, public hearing of your appeal in every instance, and the chance to question pertinent witnesses before the ILOAT;

ﾀ Request complete discovery of all documents pursuant to ordinary standards of evidence in common law and civil law systems; and

ﾀ Request an appeal or review of an adverse judgment, drawing attention to the fact that Article VI of the ILO Statute states “judgments shall be final and without appeal”, and pointing out that the necessity for adequate appellate review has been emphasised by the European Court of Human Rights in its case law on Article 6.

As Mr. Robertson wryly observed in his learned treatise “Crimes Against Humanity”, human rights violators are not always jack-booted thugs; paper-pushing bureaucrats can wreck just as much havoc on their fellow man. The UN Administrative Tribunal, routinely criticized as not being up to the standards, such as they are, of the ILOAT, should well take heed of the foregoing lest it find itself in the same dock as the ILOAT.

This article has been submitted by Mr Edward Patrick (Flaherty of Schwab, Flaherty & Associés) counsel to the WHO Staff Association.

¹ The full unabridged opinions of these three jurists may be found at the following website, in English, French, or Spanish: http://www.ilo.org/public/english/staffun/#