GB.273/PFA/13/2 - Governing Body

ILO is a specialized agency of the United Nations

GB.273/PFA/13/2 and Corr. 273rd Session Geneva, November 1998

Programme, Financial and Administrative Committee	PFA

THIRTEENTH ITEM ON THE AGENDA

Matters relating to the Administrative Tribunal of the ILO

Recognition of the Tribunal's jurisdiction
by the International Federation of Red Cross
and Red Crescent Societies

1. Until last June, only intergovernmental organizations were eligible to accept the jurisdiction of the Administrative Tribunal of the International Labour Organization for staff disputes, subject to approval by the Governing Body. The last two such organizations were the International Hydrographic Organization (IHO) and the Energy Charter Conference (ECC), which were approved in March and August 1998 respectively,⁽¹⁾ bringing the total number of organizations that have accepted the jurisdiction of the Tribunal to 36 (see Appendix I).

2. On the recommendation of the Governing Body, which considered the matter at its 271st Session (March 1998),⁽²⁾ the International Labour Conference decided, at its 86th Session (June 1998), to amend the Statute of the Tribunal so as to permit the Tribunal's jurisdiction to be accepted also by international organizations that were not "intergovernmental" in the classic sense, but which fulfilled certain conditions referred to below.⁽³⁾ The relevant provisions of the Statute as amended (Article II, paragraph 5 and the annex) appear in Appendix II.

3. The Office's initial decision to bring the matter to the attention of the Governing Body with a view to the possible amendment of the Tribunal's Statute was prompted in part by a request from the International Federation of Red Cross and Red Crescent Societies (hereinafter referred to as the "Federation"). By a letter dated 23 December 1997 (Appendix III), Mr. George Weber, Secretary-General of the Federation, informed the Director-General of the Federation's intention to recognize the jurisdiction of the Administrative Tribunal of the International Labour Organization subject to the ILO Governing Body's approval. Since the Federation did not have the characteristics of an intergovernmental organization in the classic sense (i.e. establishment by a treaty with States as members), the Office could only confirm at that time that, as the Tribunal's Statute then read, the Federation was not eligible to accept the Tribunal's jurisdiction. Now that the Statute has been amended, the Federation's request is receivable and may be submitted to the Governing Body for consideration.

4. The International Federation of Red Cross and Red Crescent Societies, a component of the International Red Cross and Red Crescent Movement, was founded in Paris in 1919,⁽⁴⁾ bringing together National Red Cross and Red Crescent Societies specialized in providing a wide range of humanitarian services such as disaster relief and social assistance. All National Societies members of the Federation have been recognized by the government of their country -- by special act of the legislative or executive branch of the government on the basis of the Geneva Conventions of 1949 -- as auxiliaries to the public authorities in the humanitarian field. The Federation focuses its work on the prevention and alleviation of human suffering in the event of natural or human-made disasters. According to its Constitution, the Federation's main object is to inspire, encourage, facilitate, and promote at all times all forms of humanitarian activities by the National Red Cross and Red Crescent Societies with a view to contributing to the maintenance and the promotion of world peace. The Federation's object has been laid down in the Statutes of the Movement adopted by the International Conference of the Red Cross and Red Crescent, of which all States parties to the 1949 Geneva Conventions and all components of the Movement are members. The Federation's principal organs are the General Assembly, which is composed of all member National Societies and meets every two years, the Executive Council, a smaller elected body which acts between meetings of the Assembly to take decisions, and the secretariat, which is headed by the Secretary-General as the chief Executive Officer of the Federation.

5. Under the terms of the annex to the Statute of the Tribunal as now amended, an organization which, like the Federation, cannot be considered as intergovernmental in the classic sense must fulfil all of the following three conditions (set out in italics):

(a) it must "be clearly international in character, having regard to its membership, structure and scope of activity";

In its 80-year long existence, the International Federation of Red Cross and Red Crescent Societies has reached an almost universal membership. At present, it comprises 175 National Red Cross and Red Crescent Societies -- one per country -- all of which are represented in the General Assembly, and its secretariat employs over 300 persons from over 80 different nations. According to the Federation's annual report for 1997, the Federation launched 64 major operations last year to assist some 22.3 million people worldwide (for an overall budget exceeding 220 million Swiss francs); the corresponding figures for 1996 were 59 operations bringing help to 15.7 million people. Those relief operations bring support to the victims of armed conflict, economic crisis, natural disaster and epidemics, reflecting the diversity of the Federation's work across every continent. Also indicative of the international recognition of the Federation's role in the field of humanitarian affairs is the fact that it has been granted the status of permanent observer in the UN General Assembly;

(b) it must not "be required to apply any national law in its relations with its officials", and must "enjoy immunity from legal process as evidenced by a headquarters agreement concluded with the host country";

On 29 November 1996, the Federation concluded a new headquarters agreement with the Swiss Federal Council, which recognizes its international legal personality (Article 1), provides for its immunity from legal process (Article 5) and grants to it and its staff privileges and immunities (Articles 7-10, 14-17, 20) similar to those accorded to intergovernmental organizations. In order to be able to recognize the jurisdiction of the Tribunal, the Federation's General Assembly, at its Seville Session (November 1997), amended Article 12.2 of the Staff Rules which up to now conferred jurisdiction on Geneva courts for employment disputes with staff members;

(c) it must "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 permanent nature of the functions of the Federation may be presumed to stem from the humanitarian character of the Federation's mission, its widespread and long-established network of national societies, and the increasing number and range of its relief operations. The presence and involvement of the Federation in the handling of crisis situations has increased even further in recent years, which attests to the continuing capacity of the Federation to meet the challenge of its humanitarian mission. As a guarantee of compliance with the Tribunal's judgments, the Secretary-General of the Federation has sent a Note Verbale (Appendix IV) to the Swiss Federal authorities informing them of the Federation's decision to recognize the jurisdiction of the Tribunal and undertaking to execute in good faith the Tribunal's judgments. The Swiss Permanent Mission has confirmed that it has received that Note Verbale.

6. In the light of the above, the Committee may wish to recommend that the Governing Body approve the recognition of the Tribunal's jurisdiction by the International Federation of Red Cross and Red Crescent Societies with effect from the date of such approval.

Geneva, 6 October 1998.

Point for decision: Paragraph 6.

Appendix I

List of international organizations (in chronological order)
that have accepted the jurisdiction of the Administrative Tribunal
of the ILO, date of acceptance, and corresponding document
of GB approval
(as at 30 September 1998)

World Health Organization (WHO) 1949 (GB.109/205, page 18)
International Telecommunication Union (ITU) 1953 (GB.122/F.A./D.22)
United Nations Educational, Scientific and Cultural Organization (UNESCO) 1953 (GB.122/205, §55)
World Meteorological Organization (WMO) 1953 (GB.123/205, §101)
Food and Agriculture Organization of the United Nations (FAO) 1954 (GB.124/205, §90)
European Organization for Nuclear Research (CERN) 1955 (GB.129/205, §78)
General Agreement on Tariffs and Trade (GATT) 1958 (GB.138/14/28)
International Atomic Energy Agency (IAEA) 1959 (GB.141/F.A./D.18/30)
World Intellectual Property Organization (WIPO) 1963 (GB.157/13/36, §§153-156) and 1971 (GB.183/FA/14/2)
European Organization for the Safety of Air Navigation (Eurocontrol) 1964 (GB.159/F.A./D.18/5)
Universal Postal Union (UPU) 1965 (GB.163/F.A./D.17/2)
Pan American Health Organization (PAHO) 1971 (GB.184/FA/14/6)
European Southern Observatory (ESO) 1972 (GB.186/7/21, §§45-49)
Intergovernmental Council of Copper Exporting Countries (CIPEC) 1972 (GB.188/13/33, §§41-45)
European Free Trade Association (EFTA) 1975 (GB.195/PFA/21/20)
Inter-Parliamentary Union (IPU) 1975 (GB.195/PFA/21/4)
European Molecular Biology Laboratory (EMBL) 1977 (GB.203/PFA/10/9)
World Tourism Organization (WTO) 1977 (GB.204/PFA/16/26)
European Patent Organisation (EPO) 1978 (GB.205/PFA/15/9)
African Training and Research Centre in Administration for Development (CAFRAD) 1979 (GB.211/PFA/11/23)
Intergovernmental Organization for International Carriage by Rail (OTIF) 1980 (GB.212/PFA/13/11)
International Centre for the Registration of Serials (CIEPS) 1983 (GB.224/PFA/18/20)
International Office of Epizootics (OIE) 1984 (GB.226/PFA/10/5)
United Nations Industrial Development Organization (UNIDO) 1986 (GB.232/PFA/11/12)
International Criminal Police Organization (Interpol) 1988 (GB.240/PFA/7/6)
International Fund for Agricultural Development (IFAD) 1988 (GB.241/PFA/10/12)
International Union for the Protection of New Varieties of Plants (UPOV) 1991 (GB.249/PFA/13/4)
Customs Cooperation Council (CCC) 1993 (GB.258/PFA/12/17)
Court of Justice of the European Free Trade Association (EFTA Court) 1994 (GB.259/PFA/13/18)
Surveillance Authority of the European Free Trade Association (ESA) 1994 (GB.259/PFA/13/20)
International Service for National Agricultural Research (ISNAR) 1996 (GB.267/PFA/15/1)
International Organization for Migration (IOM) 1997 (GB.270/PFA/16)
International Centre for Genetic Engineering and Biotechnology (ICGEB) 1997 (GB.270/PFA/16)
Organization for the Prohibition of Chemical Weapons (OPCW) 1997 (GB.270/PFA/16)
International Hydrographic Organization (IHO) 1998 (GB.271/10/2)
Energy Charter Conference (ECC) 1998 (GB.271/10/2 and subsequent decision of the Officers of the Governing Body)

Appendix II

Excerpts from the Statute
of the ILO Administrative Tribunal

(as amended by the International Labour Conference at its 86th Session, June 1998)

Article II, paragraph 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 international organization meeting the standards set out in the Annex hereto 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 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 fulfil the following conditions:

it shall be clearly international in character, having regard to its membership, structure and scope of activity;
it shall not be required to apply any national law in its relations with its officials, and shall enjoy immunity from legal process as evidenced by a headquarters agreement concluded with the host country; and
it shall 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 international organizations subject to the following provisions which, in cases affecting any one of these organizations, are applicable as follows:

Article VI, paragraph 2

The reason for a judgement shall be stated. The judgement shall be communicated in writing to the Director-General of the International Labour Office, to the Director-General of the international organization against which the complaint is filed, and to the complainant.

Article VI, paragraph 3

Judgements shall be drawn up in two copies, of which one shall be filed in the archives of the International Labour Office and the other in the archives of the international organization against which the complaint is filed, where they shall be available for consultation by any person concerned.

Article IX, paragraph 2

Expenses occasioned by the sessions or hearings of the Administrative Tribunal shall be borne by the international organization against which the complaint is filed.

Article IX, paragraph 3

Any compensation awarded by the Tribunal shall be chargeable to the budget of the international organization against which the complaint is filed.

Article XII, paragraph 1

In any case in which the Executive Board of an international organization which has made the declaration specified in article II, paragraph 5, of the Statute of the Tribunal challenges a decision of the Tribunal confirming its jurisdiction, or considers that a decision of the Tribunal is vitiated by a fundamental fault in the procedure followed, the question of the validity of the decision given by the Tribunal shall be submitted by the Executive Board concerned, for an advisory opinion, to the International Court of Justice.

Appendix III

Letter of 23 December 1997 addressed to the
Director-General by Mr. George Weber,
Secretary-General of the International Federation of
Red Cross and Red Crescent Societies

Further to our correspondence and our discussion of 7 November 1997, I have pleasure in enclosing the English and French versions of a decision recently adopted by the General Assembly of the International Federation (20-25 November 1997).

This decision provides that, subject to approval by the Governing Body of the International Labour Office, the International Federation will recognize the competence of the Administrative Tribunal of the International Labour Organization, and will subscribe to its Statutes, to hear complaints alleging non-observance, in terms of substance or form, of the provisions of a staff contract of employment or of the provisions of the Staff Regulations and other regulations established by the Secretary-General.

This acceptance will apply to staff members holding a contract of employment with the International Federation who are based at headquarters in Geneva, and to its expatriate employees holding a contract of employment with the International Federation who work in the regional and national delegations (some 325 persons -- a figure likely to vary).

However, this acceptance of the Tribunal's competence does not extend to other categories of staff, for example, persons made available by the National Societies or persons employed locally by delegations of the Federation.

On the basis of this decision, I have the honour formally to present to you the request addressed by the International Federation to the Governing Body of the International Labour Office for it kindly to approve the Tribunal's competence to hear such complaints.

Please find attached a copy of the Staff Regulations (adopted by the General Assembly of the Federation) and a copy of the Internal Regulations (adopted by the Secretary-General).

I am naturally at your disposal for any question that may arise in this connection, as is Mr. Luc de Wever, Chief of the Legal Office.

Please accept the assurance of my highest consideration,

(Signed) George Weber.

Appendix IV

Note Verbale addressed by the International Federation
of Red Cross and Red Crescent Societies
to the Swiss Permanent Mission

The International Federation of Red Cross and Red Crescent Societies presents its compliments to the Permanent Mission of Switzerland to the international organizations in Geneva, and has the honour to inform it of the following, which has also been brought to the attention of the International Labour Office by copy of this Note Verbale.

The International Federation of Red Cross and Red Crescent Societies has the honour to inform the Swiss authorities that, following an agreement concluded on 29 November 1996 between it and the Swiss Federal Council to determine the legal status of the International Federation in Switzerland, the International Federation, following a decision by its General Assembly of November 1997, has decided to request the International Labour Office to approve its declaration of recognition of the competence of the Administrative Tribunal of the International Labour Organization (ILO) to settle disputes between the International Federation and members of its staff, to the exclusion of the Geneva courts.

The International Federation also takes this opportunity to confirm to the authorities of the host country that, in view of the provisions of the Headquarters Agreement concerning the settlement of disputes of a private nature, it undertakes to execute in good faith the judgments that the Administrative Tribunal of the ILO may make concerning it.

The International Federation of Red Cross and Red Crescent Societies takes this opportunity to express once again to the Permanent Mission of Switzerland to the international organizations in Geneva the assurance of its highest consideration.

Geneva, 28 September 1998.

1. GB.271/PFA/11/1.

2. GB.271/LILS/1; GB.271/9/1; and International Labour Conference, 86th Session (1998), Selection Committee document CP/D.3.

3. International Labour Conference, 86th Session (1998), Provisional Record No. 12.

4. Since 1939, the seat of the Federation has been definitively transferred to Geneva.

Updated by VC. Approved by RH. Last update: 26 January 2000.