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FIRST ITEM ON THE AGENDA

Amendment of article II, paragraph 5,
of the Statute of the Administrative Tribunal
of the International Labour Organization

Possible amendment regarding the nature of
international organizations entitled to recognize
the competence of the Tribunal

1. Because of the ILO's immunity from legal process before national courts, which is considered an essential guarantee of the Organization's international status and independence, the staff of the Office are not able to bring labour disputes before national courts. Instead, provision has been made for adjudication by an independent Administrative Tribunal.¹ Not without some hesitation, the Organization agreed to allow other intergovernmental organizations to join the Tribunal, as it was eventually recognized that it would be in line with the Organization's mission to make an independent and reliable settlement procedure generally available to a special category of workers, namely international civil servants, who did not have legal protection at the national level.² Article II, paragraph 5, of the Tribunal's Statute thus permits "any other intergovernmental international organization" which has been approved by the Governing Body to accept the Tribunal's jurisdiction. Thirty-four intergovernmental organizations have so far done so, the last three as recently as November 1997.³ The full list, in chronological order, is appended. Besides paying the cost of litigation, the organizations concerned bear a share of the Tribunal's overheads, calculated on a pro-rata basis according to the number of their serving staff.

2. Two conditions are thus laid down for an organization to be able to accept the Tribunal's jurisdiction: it must be an organization approved for this purpose by the ILO Governing Body, and it must be "intergovernmental". Although no precise definition is given, an "intergovernmental" organization tends to imply an institution (a) established by treaty as a subject of international law; (b) financed by governments; and (c) possessing a decision-making organ composed of government representatives. In this latter connection, the expression "de caractère interétatique" ("of an inter-State character") in article II, paragraph 5, instead of the usual term "intergouvernemental", may have been used to reflect the tripartite composition of the ILO.

3. In recent years there have been a number of applications from organizations in which the question has arisen of whether they are truly "intergovernmental". One such case is that of the International Service for National Agricultural Research (ISNAR), a body established by a Memorandum of Understanding between an intergovernmental organization (the World Bank) and a subsidiary body of the United Nations (the United Nations Development Programme -- UNDP). ISNAR forms an integral part of the Consultative Group on International Agricultural Research (CGIAR), whose members comprise 34 States, four foundations and 11 international and regional organizations, and which is managed by a Board of Trustees who do not act as official representatives of governments or organizations. It has nevertheless concluded a headquarters agreement with the government of its host country. Despite ISNAR's lack of the classic intergovernmental structure, the Office identified a number of intergovernmental elements, and in particular certain guarantees of reliability and dependability arising from its agreement with the host government that appeared to make it possible for the Governing Body to approve it for the purpose of recognition of the Tribunal's jurisdiction.⁴ Due account was also taken of the host country's categorical affirmation of the intergovernmental nature of the organization in question.

4. Other borderline cases are that of the International Criminal Police Organization (INTERPOL),⁵ in respect of which the Office finally based its recommendation on the legal opinion delivered by the UN Legal Counsel as to the intergovernmental character of the Organization, and that of the Inter-Parliamentary Union (IPU),⁶ which is composed of national groups representing parliaments.

5. In addition, developments in international law have given rise to entities that clearly fall outside the definition, but are in fact in a very similar situation to that of the specialized agencies of the United Nations system. This applies to the International Federation of Red Cross and Red Crescent Societies (IFRC). The International Federation provisionally requested the Governing Body to approve the declaration of acceptance of the Tribunal's jurisdiction. The IFRC does not have any of the characteristics, referred to in paragraph 2 above, of an intergovernmental organization in the classic sense. It was established as an association under the laws of Switzerland and its members are national Red Cross and Red Crescent Societies, and not governments. The Office has therefore confirmed that, as the Tribunal's Statute is drafted at present, the IFRC is not eligible to accept the Tribunal's jurisdiction. The IFRC is, however, comparable to an intergovernmental organization in structure and mandate: its international legal personality has recently been recognized by Switzerland for the purposes of a host country agreement concluded with the IFRC in 1996; only one national Red Cross or Red Crescent Society, approved by the government concerned, can be recognized for each country, and the IFRC coordinates the action of its national societies, which cooperate with various government agencies in the event of national disasters and other emergencies.

6. The question thus arises of whether the "intergovernmental" criterion in article II, paragraph 5, is appropriate, especially having regard to the new forms of international organization that are to be found today. In this context, there seems no reason why a universal organization like the IFRC should be excluded a priori, when a transient institution established under a bilateral treaty could well be covered by the intergovernmental criterion. On the other hand, intergovernmental organizations possess certain characteristics which would seem to be essential if they are to be suitable beneficiaries of the services of an international tribunal. These would appear to include an international composition and mandate, immunity from legal process in national courts, and a certain institutional guarantee as to the observance of the Tribunal's judgments, including to the extent possible in the event of the dissolution of the organization. The conclusion of an appropriate agreement with the host State, as well as the latter's endorsement of an application to join the Tribunal, might be considered sufficient evidence of such a guarantee. A related important consideration would be to ensure that the status and credibility of the ILO Administrative Tribunal are not prejudiced by associating its work with entities of ephemeral existence or insignificant international presence.

7. One possible solution for providing an international settlement procedure for organizations that are immune from national jurisdictions but are not "intergovernmental" would be to empower the Tribunal to act as an arbitrator in such cases. In fact, at the time of the League of Nations, the Administrative Tribunal did serve as a "panel of arbitrators" for staff disputes of certain organizations. This solution, however, would still require an appropriate legal framework and special provisions would be needed to cover such matters as the criteria for allowing access to such arbitration, the procedure to be followed, the binding nature of the arbitral award and contributions to the Tribunal's expenses, unless of course the existing provisions were made applicable also for the arbitration function. But if that were to be the case, there would seem to be no good reason why such organizations should not simply be permitted to join the Tribunal on an equal footing with the other organizations.

8. An amendment is accordingly proposed below to article II, paragraph 5, which would seek to make the criteria governing access to the Tribunal's jurisdiction more flexible and responsive to contemporary needs while retaining those elements of the "intergovernmental" concept that are still relevant. In this way, applicant organizations that are at present ineligible to accept the Tribunal's jurisdiction or which could be considered as eligible only by straining the concept of "intergovernmental" would be permitted to accept the jurisdiction subject to the approval of the Governing Body.⁷ The amendment has been drafted in such a way as not to affect the right of organizations to apply for Governing Body approval if they come within the present criterion.⁸

9. In accordance with its article XI, the Statute of the Tribunal may be amended by the International Labour Conference. The Committee may therefore wish to recommend to the Governing Body that it propose to the 86th Session (June 1998) of the International Labour Conference an amendment to article II, paragraph 5, and to the Annex of the Statute of the ILO Administrative Tribunal as follows:⁹

5. The Tribunal shall also be competent to hear complaints alleging non-observance, in substance or in form, of the terms of appointment of officials and of provisions of the Staff Regulations of any other [intergovernmental] international organization meeting the standards set out in the Annex hereto [approved by the Governing Body] which has addressed to the Director-General a declaration recognizing in accordance with its Constitution or internal administrative rules, the jurisdiction of the Tribunal for this purpose, as well as its Rules of Procedure, and which is approved by the Governing Body.

ANNEX TO THE STATUTE OF THE ADMINISTRATIVE TRIBUNAL
OF THE INTERNATIONAL LABOUR ORGANIZATION

To be entitled to recognize the jurisdiction of the Tribunal in accordance with paragraph 5 of article II of the Statute, an international organization must either be intergovernmental in character, or

1. be clearly international in character, having regard to its membership, structure and scope of activity;
2. enjoy immunity from legal process, as evidenced by a headquarters agreement concluded with the host country; and
3. be endowed with functions of a permanent nature at the international level and offer, in the opinion of the Governing Body, sufficient guarantees as to its institutional capacity to carry out such functions as well as guarantees of compliance with the Tribunal's judgments.

The Statute of the Administrative Tribunal of the International Labour Organization applies in its entirety to such [those] international [intergovernmental] organizations [which, in accordance with their Constitution or internal administrative rules, recognize the jurisdiction of the Tribunal and formally declare that they adopt its Rules of Procedure in accordance with paragraph 5 of article II of the Statute,] subject to the following provisions which, in cases affecting any one of these organizations, are applicable as follows:

[...]

Geneva, 9 February 1998.

Point for decision: Paragraph 9.

¹  Originally established in 1927 as the Administrative Tribunal of the League of Nations, it was taken over by the ILO as its own Administrative Tribunal after the Second World War.

²  At its 32nd Session (1949), the Conference adopted amendments to the Statute of the Tribunal providing access for other international intergovernmental organizations; see Record of Proceedings, 1949, pp. 409-410.

³  The last three organizations to recognize the ILOAT's jurisdiction were the International Organization for Migration, the International Centre for Genetic Engineering and Biotechnology, and the Organization for the Prohibition of Chemical Weapons; see GB.270/PFA/16.

⁴  GB.267/PFA/15/1.

⁵  GB.240/PFA/7/6.

⁶  GB.195/PFA/21/4.

⁷  It may be noted that the possibility of widening the eligibility criterion has also been considered in the context of the Administrative Tribunal of the United Nations (UNAT). In relation to past discussions on the Harmonization and Progressive Development of the Statutes and Regulations of the ILO and the UN Administrative Tribunals, an amendment to article 14 of UNAT's Statute was proposed aiming at extending the Tribunal's jurisdiction beyond the UN specialized agencies to "any organisation that has accepted the Statute of the International Civil Service Commission or to any other international organisation specified by the General Assembly upon the terms established by a special agreement to be made with each such organisation by the Secretary-General"; see GB.231/PFA/17/5. See also GB.234/PFA/11/17, paras. 24-25.

⁸  The Office has communicated the proposed amendment to all the organizations listed in the appendix below inviting their comments. Among the replies received so far, Interpol expressed the view that particular emphasis should have been laid on the fact that "the working conditions of the officials of these entities should be governed by a set of rules inspired by the general principles of international civil service law, and not by a domestic labour law".

⁹  Text in square brackets is to be deleted; underlined text is to be added.

Appendix

List of international organizations (in chronological order)
that have accepted the ILOAT's jurisdiction, date of acceptance
(as at 31 December 1997)

1. World Health Organization (WHO) 1949 (GB.109/205, page 18)
2. International Telecommunication Union (ITU) 1953 (GB.122/F.A./D.22)
3. United Nations Educational, Scientific and Cultural Organization (UNESCO) 1953 (GB.122/205, §55)
4. World Meteorological Organization (WMO) 1953 (GB.123/205, §101)
5. Food and Agriculture Organization of the United Nations (FAO) 1954 (GB.124/205, §90)
6. European Organization for Nuclear Research (CERN) 1955 (GB.129/205, §78)
7. General Agreement on Tariffs and Trade (GATT) 1958 (GB.138/14/28)
8. International Atomic Energy Agency (IAEA) 1959 (GB.141/F.A./D.18/30)
9. World Intellectual Property Organization (WIPO) 1963 (GB.157/13/36, §§153-156) and 1971 (GB.183/FA/14/2)
10. European Organization for the Safety of Air Navigation (Eurocontrol) 1964 (GB.159/F.A./D.18/5)
11. Universal Postal Union (UPU) 1965 (GB.163/F.A./D.17/2)
12. Pan-American Health Organization (PAHO) 1971 (GB.184/FA/14/6)
13. European Southern Observatory (ESO) 1972 (GB.186/7/21, §§45-49)
14. Intergovernmental Council of Copper Exporting Countries (CIPEC) 1972 (GB.188/13/33, §§41-45)
15. European Free Trade Association (EFTA) 1975 (GB.195/PFA/21/20)
16. Inter-Parliamentary Union (IPU) 1975 (GB.195/PFA/21/4)
17. European Molecular Biology Laboratory (EMBL) 1977 (GB.203/PFA/10/9)
18. World Tourism Organization (WTO) 1977 (GB.204/PFA/16/26)
19. European Patent Organization (EPO) 1978 (GB.205/PFA/15/9)
20. African Training and Research Centre in Administration for Development (CAFRAD) 1979 (GB.211/PFA/11/23)
21. Intergovernmental Organization for International Carriage by Rail (OTIF) 1980 (GB.212/PFA/13/11)
22. International Centre for the Registration of Serials (CIEPS) 1983 (GB.224/PFA/18/20)
23. International Office of Epizootics (OIE) 1984 (GB.226/PFA/10/5)
24. United Nations Industrial Development Organization (UNIDO) 1986 (GB.232/PFA/11/12)
25. International Criminal Police Organization (Interpol) 1988 (GB.240/PFA/7/6)
26. International Fund for Agricultural Development (IFAD) 1988 (GB.241/PFA/10/12)
27. International Union for the Protection of New Varieties of Plants (UPOV) 1991 (GB.249/PFA/13/4)
28. Customs Cooperation Council (CCC) 1993 (GB.258/PFA/12/17)
29. Court of Justice of the European Free Trade Association (EFTA Court) 1994 (GB.259/PFA/13/18)
30. Surveillance Authority of the European Free Trade Association (ESA) 1994 (GB.259/PFA/13/20)
31. International Service for National Agricultural Research (ISNAR) 1996 (GB.267/PFA/15/1)
32. International Organization for Migration (IOM) 1997 (GB.270/PFA/16)
33. International Centre for Genetic Engineering and Biotechnology (ICGEB) 1997 (GB.270/PFA/16)
34. Organization for the Prohibition of Chemical Weapons (OPCW) 1997 (GB.270/PFA/16)