International civil service law has begun to receive widespread attention in the past few years. Dhinakaran International Law Consultancy has been contributing towards this consistently and as best as possible. This newsletter contains some of the updates in this field. 

Matters Relating to the Administrative Tribunal of the ILO

In August 2015 the International Labour Office, based on a request from the ILO governing body, invited the administrations and staff associations of the ILOAT member organizations to address a questionnaire on the management of the Tribunal's caseload. Following this, the Office of the Legal Affairs prepared a document for the governing body's consideration, which can be found here: http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_413819.pdf

This paper has put forward several recommendations concerning the functioning and case management of the ILOAT, some of which are listed here:

1. Repeal of Article XII of the ILOAT statute (and Article XII of the Annex to the Statute), which provides that the governing body of a member organization may challenge a decision of the Tribunal before the International Court of Justice on grounds that it confirmed its jurisdiction by error or that its decision is vitiated by a fundamental procedural flaw. This procedure is available to the Governing Body but not to the aggrieved complainant. The Report noted the prevailing view that this reflects a juridical anachronism which fails to meet the principle of equality of arms and which therefore calls for long overdue action. It cited the ICJ's Advisory Opinion in 2012 which affirmed this view (Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a complaint filed against the International Fund for Agricultural Development, Advisory Opinion of 1 February 2012, ICJ Rep. 2012, para. 44, p. 29). 

2. The Report recommended the establishment of the criteria and process for the selection of judges and their appointment to the ILOAT. This recommendation was pursuant to concerns raised on the perceived lack of transparency concerning the selection of the judges.

3. The Report recommends a comprehensive review of the Tribunal's rules and procedures to better reflect modern realities, including the introduction of an e-filing system, the organization of oral hearings, the publication of an annual activity report by the Tribunal’s Registry, the formalization in the Tribunal’s Statute and Rules of new principles elaborated in its case law, and the review of time limits, as well as the responsibilities and structure of the Tribunal’s Registry.

4. With respect to reducing the backlog of pending cases and handling the increasing workload, the Report suggests conducting review of the Tribunal's rules and procedures and rules on the following matters (involving consultation with all stakeholders):

(i) Criteria for the joinder of cases so as to increase the capacity of the Tribunal to address a greater number of interrelated cases in a single judgement;

(ii) new procedures allowing for the expeditious treatment of cases requiring a limited review by the Tribunal;

(iii) a more proactive role for the Tribunal in the direction and investigation of each case from the submission of a complaint, including the early identification of opportunities for informal settlement; (

iv) consideration of procedures specific to the growing number of disputes involving collective rights or of disputes challenging decisions of a general or regulatory nature.

5. The Report also recommends conducting a feasibility study of the legal, practical and cost implications of the establishment of a more permanent structure for the Tribunal.

6. Finally, in response to the dissatisfaction expressed by administrations as well as staff representatives concerning the volume of cases against the EPO and the manner in which they are being disposed, the Report recommends that an urgent, practicable and time-bound solution needs to be found regarding the facilitation of the speedy adjudication of all EPO complaints in a manner that permits the Tribunal to fulfil its mandate and effectively serve all other organizations, which have recognized its jurisdiction. 

This matter is on the agenda of the 325th session of the ILO Governing Body, which concluds on November 15, 2015. Any resolution passed in the session and follow up thereof will be reported in the forthcoming newsletter. 

Judgments of the ILOAT's 120th session

A report on the judgments of the ILOAT's 120th session can be found here - http://www.suepo.org/public/news, with a specific focus on EPO related cases and cases involving receivability issues. The views reflected in this report are those of SUEPO (Staff Union of the European Patent Office) and do not reflect the views of Dhinakaran International Law Consultancy. It is referred here for information purposes only. 

Internal Justice Systems of International Organizations - A Legitimacy Index 

The Center of Excellence for International Administrative Law (lauched by Brettonwoods Law) has published the Legitimacy Index 2015, which can be found here: http://www.brettonwoodslaw.com/brettonwood_site/wp-content/uploads/2015/10/legitimacy_index_2015.pdf 

The CoE-IJS Legitimacy Index, of which Ms. Dhinakaran is a co-author, is an innovative quantitative assessment tool designed to offer a comprehensive picture of the internal justice systems of international organisations around the world. It scores and ranks international organisations based on how compliant their internal justice systems are with the criteria set by customary international human rights law. The Index provides new data on four crucial factors in the administration of justice: structure of the system; applicable law and clarity thereof; forum of first instance and forum of second instance.

The Index looks at an internal justice system’s adherence de jure to the criteria found in customary international human rights law. It examines the law applicable to the employment related disputes of an international organisation and the law relating to the internal justice system of such organisation, both substantial and procedural, so as to determine whether it fulfils those criteria. Findings are based on data derived from a detailed questionnaire which is answered based on the abovementioned laws of an international organisation. The IJS Legitimacy Index introduces scores and rankings for 28 international organisations. 

RoundTable on the Right of Appeal in International Administrative Courts

The Committee of Representatives of the Co-ordinated Organizations, in association with La Sapienza University, organized a RoundTable in Rome on the Right of Appeal in International Administrative Courts, the details of which can be found here: http://www.brettonwoodslaw.com/brettonwood_site/wp-content/uploads/2015/10/legitimacy_index_2015.pdf

This RoundTable brought together staff and administration representatives from various international and regional organizations. The subject matter raised various questions on the fragmentation of international civil service law, manner of review conducted/to be conducted by international administrative tribunals - including the lack of a constitutional review, the inadequacies of peer review and the consequences thereof with respect to the review of appeals by international administrative tribunals. An overview of the UN internal justice reforms was also presented. The RoundTable's proceedings are expected to be published shortly.