ILOAT Reform

Opinion prepared by Geoffrey Robertson Q.C.,
Doughty Street Chambers, London
for the Information Meeting on the
ILO Administrative Tribunal Reform and related matters

OPINION

1. I am asked to advise the staff union of the International Labour Organisation (ILO) as to whether the operation of the ILO Administrative Tribunal (ILOAT) conforms to the requirements of international human rights law. This Tribunal was established in 1946 to hear complaints by officials about employment terms and conditions, and to settle disputes about workers' compensation. Its jurisdiction has been recognised by forty other international organisations, ranging from the EPO, CERN, and the International Federation of the Red Cross and Red Crescent Societies to UN organs such as FAO, UNIDO and WHO. Thus it serves as the final arbiter of employment issues for some 35,000 international civil servants, deprived by their occupation of recourse to domestic employment law either of their country of nationality or (because of their employer's immunity) of the country in which they reside and work.

2. In principle, a tribunal of this potency and importance must operate, and be seen to operate, to the highest standards of transparency and fair play. In particular, it must exhibit basic judicial guarantees of independence and impartiality and afford to complainants fair and public hearings consistent with the concepts of natural justice (or "due process") under domestic legal systems. These principles are fundamental and universal, mandated by international human rights law enshrined in the Universal Declaration of Human Rights (Articles 10 and 23), the International Covenant on Civil and Political Rights (Article 14(1)), and regional treaties such as the European Convention on Human Rights (Article 6).

3. There are a number of reasons why ILOAT procedures and practices should fully conform to these human rights standards. They include:

(a) The ILO is immune from suit in the country where it is headquartered (see agreement between Switzerland and the ILO, 11 March 1946) and so are most if not all of ILOAT's client organisations. It follows that international civil servants, deprived of a right of access to domestic employment law guaranteed to other workers, must in lieu be afforded comparable rights by ILOAT if unjust discrimination is to be avoided.

(b) The international organisations which patronise ILOAT are all committed, in one way or another, to uphold international law, which includes the international law of human rights. It would be indefensible hypocrisy to deny their own employees the protections required by that law.

(c) The mission of the ILO is to ensure respect for the basic rights of workers, including the right to a fair system of adjudicating disputes with employees. It behoves the organisation to ensure that its system of adjudicating disputes with its own workers is beyond reproach.

4. The ILOAT statute and rules have undergone few changes since 1946. It is only to be expected that any thorough contemporary analysis will suggest a number of improvements. The staff union has identified some thirty-nine desirable reforms, and in nine instances the ILO has already conceded the need for change. Some of these reforms will serve to make the Tribunal more efficient, while others address organisational issues on which opinions may genuinely differ. My concern is to identify those respects in which the Tribunal's structure and practice appears clearly to breach human rights norms.

5. There are two fundamental ways in which ILOAT fails to conform to the requirements for a judicial body, and in certain other respects it denies to complainants rights that are becoming recognised as essential to due process. This finding - that it lacks the necessary qualities of independence and transparency - does not mean that its decisions have necessarily been biased in favour of employers. What can be said is that the deficiencies in compliance with human rights standards have produced a perception of injustice, and have denied to unsuccessful complainants a proper opportunity to press their case to a more satisfactory conclusion. These consequences are serious enough to require urgent rectification.

6. The Tribunal statute has this basic defect: Article III(2) provides that the seven judges "shall be appointed for a period of three years by the Conference of the ILO" - and there is no prohibition on re-appointment for further three-year terms. For example, the current President was appointed in 1992, and obtained further three-year appointments in 1995, 1998 and 2001. In other words, the Tribunal members are "contract judges", whose well-remunerated employment is contingent upon the regular approval of the very body which is a defending party to their proceedings. This position is plainly incompatible with the rule that requires the judiciary to be independent, and which is breached by any arrangement which offers an inducement to the judges to decide cases in ways which will not upset the re-appointing body. There are many decisions of national and international courts to the effect that, in principle, judges on two or three year renewable contracts lack the essential requirement of independence, because they do not have security of tenure.

7. This anomaly has not gone unremarked, even by Dr Amerasinghe in his authoritative and generally uncritical textbook, "Principles of the Institutional Law of International Organisations" (Cambridge University Press, 1996). At p 455 he reiterates this comment about re-appointment provisions:

8. I do not consider that the suggested limitation (securing independence for the second term but not the first) is acceptable in an organisation that is concerned to set proper standards. To secure independence and impartiality, judges should be appointed for one term only, perhaps of five or seven years. Moreover, since the statute is surprisingly silent about their qualifications and contains no provision permitting their dismissal for incapacity, these lacunae should be filled, by provisions which inter alia require them to be lawyers of distinction in the employment field (with some experience in human rights), appointed before the age of sixty-five, and subject to regular health checks. Best practice would indicate that they should be appointed, not by the international labour conference itself but by an independent appointments commission. Until these changes are affected, ILOAT will not fully satisfy the requirement of an independent and impartial tribunal.

9. The other fundamental defect - its failure to provide a fair and public hearing - arises from ILOAT's regular practice, rather than from its statute. Article V provides:

10. This statute plainly and properly presumes that there will be oral proceedings, and requires the Tribunal to decide whether circumstances (for example, considerations of protecting personal privacy or national security) may require any part of them to be held behind closed doors. Moreover, the ILOAT Rules (which must be read as subject to the presumption created by Article V of the Statute) provide by Article 12 that parties applying for hearings should indicate the issues and the witnesses; that they may make oral submissions and call evidence; that the Tribunal shall determine the conduct of hearing; and that witnesses and experts shall take a form of solemn declaration before giving evidence. In other words, the Statute and Rules contemplate in the clearest terms that there shall be full and fair adversary hearings, if these are requested by either party. There is no express power for the Tribunal to refuse a hearing (other, of course, than under Article 7 of the Rules, which provides for summary dismissal of frivolous or irreceivable complaints). If the Tribunal were to take the step of refusing an application for a hearing, under what might possibly be attributed to an inherent power, it would have to provide very good reasons.

11. I was astonished to be informed that ILOAT routinely and invariably denies all applications for oral hearings, since such a practice would contravene its Statute and Rules. But I have examined its recent decisions, and have found no case in which a hearing application has been granted. Instead, in the Preamble to every judgment in cases where such application has been made, there is the routine recital:

By this formula, it appears on the face of these judgments, the Tribunal invariably decides that it shall not afford oral hearings. I am told that between 1995 and 2001, oral hearings were requested in over two hundred cases, and refused in every instance. This practice in effect renders otiose Article V of the Statute and Article 12 of its Rules. It is not, in my view, a practice that is permitted by the Statute: it is ultra vires and unlawful.

12. That said, it has undoubtedly had serious consequences for complainants who have been deprived of their presumptive rights of oral challenge to the written case prevented by the employer. The adversary system presupposes that oral testimony and argument can transform, or critically affect, the judicial approach to both facts and law. It is likely that some of the decisions rendered against employees would instead have been decided in their favour had they enjoyed the right (that the Statute and Rules are designed to afford them) of calling witnesses and experts, and availing themselves of the additional hearing rights referred to in Article 11 of the Rules. The unlawful practice adopted by ILOAT has deprived them both of an oral hearing - obviously vital in itself - and of having that hearing in public, which has additional advantages for justice in that it conduces to honesty on both sides and enables public scrutiny of the fairness of the Tribunal's process.

13. This is why, of course, all human rights treaties require a "fair and public hearing" for disputes concerning civil obligations: a fortiori they are breached by a Tribunal which offers no hearings at all. There may be cases where the facts are not in dispute and the legal issues can be satisfactorily adumbrated on paper, and there may be cases where the use of personally sensitive data calls for in camera measures. But to deprive all complainants of a hearing to which they are presumptively entitled cannot be justified. The very fact that ILOAT has adopted a "blanket refusal" policy in respect of hearing applications, thereby contravening the spirit of its statute and rules, demonstrates the need for a new written rule which makes pellucidly clear that any party is entitled to an oral hearing on request, which may only be refused in limited and defined circumstances and with a reasoned decision that such circumstances exist.

14. The existence of this (at least arguably) unlawful practice draws attention to another defect in the ILOAT structure: there is no provision for appeal (see Article VI: "judgments shall be final and without appeal"). The necessity for adequate appellate review has been emphasised by the European Court of Human Rights in its case law on Article 6. There are a number of ways in which the requirement could be satisfied without undue expense: for example, first instance hearings could be conducted before one or three judges, whose decision could be appealed on "judicial review" principles, without any re-hearing of evidence, to a chamber of five or seven judges. There must, at any event, be some avenue of appeal to an independent body - preferably not the ICJ (which would involve long delay, expense to the complainant, and a decision by judges not versed in employment law).

15. I have identified in the preceding paragraphs several breaches of fundamental human rights principles in the way ILOAT is constituted and operated. There are other aspects of its structure and operation which do not conform to the best due process practice, such as:

• Lack of "equality of arms" between employer and complainant, in particular because there is inadequate power to obtain disclosure of the employer's documents;

• The Tribunal's over-strict interpretation of Article II(6) to deny staff associations the right to complain on behalf of members, or to permit "class" complaints, or even to allow staff associations to file "amicus curiae" briefs;

• The Tribunal's failure to draw up rules of evidence (consistently with its unlawful refusal to countenance oral hearings).

• Lack of effective enforcement power and of sanctions against employer organisations which refuse or fail to comply to the letter, with its decisions. Some power to enforce its judgements is essential for any tribunal, and the ILO and other client organisations should be prepared to accept an addition to the statute providing it with power to fine (or order compensation against) a party for non-compliance with or contempt of its orders.

16. There are, as I indicated at the outset, many other deficiencies both practical (e.g. unsatisfactory time limitations) and jurisprudential (lack of stare decisis, i.e. a rule of precedent that requires like cases to be treated alike), that could be addressed in any overhaul of what is in many respects an antiquated arbitral model. However, in this short and necessarily broad-brush opinion I have sought to identify the respects in which it can be said that the Tribunal is in breach of human rights rules which have a jus cogens quality, and should therefore be a defining characteristic of every international judicial body.

GEOFFREY ROBERTSON Q.C.

Doughty Street Chambers

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