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GB.276/PFA/15
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Programme, Financial and Administrative Committee |
PFA |
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FIFTEENTH ITEM ON THE AGENDA
Matters relating to the Administrative Tribunal
of the ILO
Recognition of the Tribunal's jurisdiction by the
Preparatory Commission for the Comprehensive
Nuclear-Test-Ban Treaty Organization (CTBTO PrepCom)
1. Under its Statute the Administrative Tribunal of the International Labour Organization is competent to hear complaints against intergovernmental organizations, and under certain conditions other international organizations, which recognize its jurisdiction and Rules of Procedure and have been approved by the Governing Body. The relevant provisions of the Statute (article II, paragraph 5, and the Annex) appear in Appendix I.
2. By a letter dated 25 August 1999 (see Appendix II), Mr. Wolfgang Hoffmann, Executive Secretary of the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO PrepCom), informed the Director-General that, acting for and on behalf of the Commission, he had promulgated an administrative directive (see Appendix III) recognizing the jurisdiction of the Administrative Tribunal of the International Labour Organization as well as the Tribunal's Rules of Procedure.
3. The CTBTO PrepCom is an international organization established in 1996 at a meeting of States signatories of the Comprehensive Nuclear-Test-Ban Treaty (referred to below as "the Treaty") which prohibits nuclear weapon test explosions and other nuclear explosions. The status of the Commission is set out in its constituent document, the Text on the Establishment of a Preparatory Commission for the CTBTO, which was annexed to the Resolution Establishing the Preparatory Commission, adopted by the States signatories of the Treaty in New York on 19 November 1996. As set out in paragraph 1 of that document, the Commission was established "for the purpose of carrying out the necessary preparations for the effective implementation of the Comprehensive Nuclear-Test-Ban Treaty, and for preparing for the first session of the Conference of the States Parties to that Treaty". Under paragraph 7, "the Commission shall have standing as an international organization, authority to negotiate and enter into agreements, and such other legal capacity as necessary for the exercise of its functions and the fulfilment of its purposes". The Commission is, in principle, of a temporary nature since according to paragraph 21 of its constituent document, "the Commission shall remain in existence until the conclusion of the first session of the Conference of the States Parties". The Treaty itself will enter into force 180 days after it has been ratified by 44 States listed under Article XIV as States that must sign and ratify it before it can enter into force, of which 41 have signed the Treaty and 26 have deposited their instruments of ratification.
4. The principal operational task of the Commission is to set up the international monitoring system that will verify compliance with the Treaty once it has entered into force. A worldwide network of 321 monitoring stations is being established and will be run by the States hosting the facilities in cooperation with the Provisional Technical Secretariat. The Commission has already exchanged 81 letters of agreement with 53 Member States hosting monitoring facilities pending the conclusion of formal bilateral agreements. To date, formal bilateral agreements have been concluded with four States signatories, Canada and New Zealand, South Africa and Ukraine. These four countries have inter alia granted to the Commission and its staff the privileges and immunities along the lines of the United Nations Convention on Privileges and Immunities of 1946. More formal bilateral facility agreements are being negotiated with Member States of the Commission. The Commission has also concluded several agreements of cooperation with other international organizations housed in the Vienna International Centre. The Commission's membership comprises at present 155 States signatories to the Treaty, including China, France, the Russian Federation, the United Kingdom, and the United States. The Commission with its seat in Vienna, Austria, has a budget for 1999 of US$75 million. The Commission consists of two main organs: a plenary body composed of all Member States and the Provisional Technical Secretariat which employs at present 208 officials from over 64 States signatories. According to paragraph 22 of the Text on the Establishment of a Preparatory Commission, the host country is to accord the Commission, as an international organization, and its staff such legal status and privileges and immunities as are necessary for the fulfilment of its object and purpose and for the independent exercise of their functions. Accordingly, on 18 March 1997, the Commission concluded a Headquarters Agreement with the Government of Austria recognizing its legal personality and granting to it and its staff the privileges and immunities normally accorded to intergovernmental organizations.
5. There are two institutional aspects of the CTBTO PrepCom that need to be addressed separately: first, the fact that the Commission was established by virtue of a resolution, as opposed to a formal international treaty, authenticated, signed and ratified, or acceded to by States or other subjects of international law. This is the normal legal basis for an entity to qualify as an intergovernmental organization entitled to recognize the jurisdiction of the Tribunal. The important legal element is however that subjects of international law should have agreed on an act conveying their clear intention to establish such an organization with immediate effect. The resolution establishing CTBTO PrepCom, and endowing it with attributes pertaining to intergovernmental organizations, including the necessary privileges and immunities, should be considered as constituting such an act, especially as it has been implemented in the host State by an agreement granting the Commission immunity from legal process. It will be recalled, in this regard, that the Interim Commission for the International Trade Organization (ICITO/GATT) which recognized in 1957 the jurisdiction of the Administrative Tribunal of the ILO had also come into existence on the basis of a resolution adopted in 1948 in the context of the Havana Conference.
6. The second feature of the Commission is its non-permanent nature, as indicated in paragraph 3 above. This does not affect its legal status as an intergovernmental organization or its eligibility under the Tribunal's Statute. Its provisional character may, however, be a source of concern unless there are guarantees that the decisions of the Tribunal would be fully respected even after the organization has ceased to exist. Under paragraph 20 of the Text on the Establishment of a Preparatory Commission, the signatories of the Treaty recognize that "rights and assets, financial and other obligations and functions of the Commission shall be transferred to the Organization" once the Treaty enters into force. Accordingly, in the Office's interpretation, the reference to "other obligations" covers the obligation that will arise, if the recognition of the Tribunal's jurisdiction is approved by the Governing Body, to honour the judgments delivered by the Administrative Tribunal with respect to cases brought against the PrepCom before it ceased to exist. This interpretation has been confirmed by the Executive Secretary of the PrepCom. As the members of the new organization will correspond to the signatories that adopted the resolution, it can be expected that this obligation will be honoured.
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7. The Tribunal's jurisdiction under article II, paragraph 5, of its Statute already extends to 37 organizations other than the ILO. The recognition of the Tribunal's jurisdiction by other organizations entails no additional cost to the ILO, since the organizations against which complaints are filed are required by the Statute to bear the expenses of sessions and hearings and to pay any award of compensation by the Tribunal. The other organizations also contribute in amounts proportionate to the number of their staff to much of the costs of the Tribunal's secretariat.
8. In the light of the foregoing, the Committee may wish to recommend that the Governing Body approve the recognition of the Tribunal's jurisdiction by the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization, with effect from the date of such approval.
Geneva, 25 October 1999.
Point for decision: Paragraph 8.
Appendix I
Excerpts from the Statute of the
ILO Administrative Tribunal
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 Administrative Tribunal of the International Labour Organization in accordance with paragraph 5 of article II of its Statute, an international organization must either be intergovernmental in character, or fulfil the following conditions:
(a) it shall be clearly international in character, having regard to its membership, structure and scope of activity;
(b) 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
(c) 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 Tribunal 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 reasons for a judgment shall be stated. The judgment 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
Judgments 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 II
Communication from Wolfgang Hoffmann,
Executive Secretary of the Preparatory Commission for the
Comprehensive Nuclear-Test-Ban Treaty Organization
(CTBTO PrepCom)
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REF.: ADM/PS-1-11.2 |
25 August 1999 |
Dear Mr. Somavia,
The Staff Regulations of the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization (Ref. CTBT/PC-6/2 dated 21 August 1998) require me to make arrangements for the hearing by an independent tribunal of appeals by staff members against administrative decisions directly affecting them. Acting for and on behalf of the Commission, I have accordingly promulgated Administrative Directive No. 36, dated 25 August 1999, which recognizes the jurisdiction of the Administrative Tribunal of the International Labour Organization in accordance with article II, paragraph 5, of the Statute of the Tribunal. Copies of the Staff Regulations in question and of Administrative Directive No. 36 are attached to this letter.
I therefore have the honour to inform you that the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization recognizes the competence of the Tribunal to hear complaints alleging the non-observance, in substance or in form, of the terms of appointment of staff members of the Commission and of the Staff Regulations and Staff Rules which are applicable to them. The Commission likewise accepts the Tribunal's Rules of Procedure.
I would be grateful if you would submit this matter to the Governing Body of the International Labour Organization and invite it, in accordance with article II, paragraph 5, of the Statute to approve the Commission's declaration of recognition of the Tribunal's jurisdiction and acceptance of its Rules of Procedure. A brief background document on the Commission is attached for the information of the members of the Governing Body.
Yours sincerely,
(Signed) Wolfgang Hoffmann,
Executive Secretary.
Appendix III
Administrative Directive
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ADMINISTRATIVE DIRECTIVE NO. 36 |
25 August 1999 |
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Recognition of the jurisdiction of the Administrative Tribunal
of the International Labour Organization
1. Introduction
The purpose of this Administrative Directive is to implement Staff Regulation 11.2, which provides that the Executive Secretary shall make arrangements for the hearing by an independent tribunal of an appeal by a staff member against any administrative decision directly affecting him or her taken pursuant to Staff Regulations 9.1, 10.3 or 11.1.
2. Administrative Tribunal of the International Labour Organization
Article II, paragraph 5, of the Statute of the Administrative Tribunal of the International Labour Organization (ILO) provides that the Tribunal shall be competent to hear complaints alleging the non-observance, in substance or in form, of the terms of appointment of officials and of provisions of the Staff Regulations of any intergovernmental international organization approved by the Governing Body of the ILO which has addressed to the Director-General of the ILO a declaration recognizing, in accordance with its Constitution or international administrative rules, the jurisdiction of the Tribunal for this purpose, as well as its Rules of Procedure.
3. Recognition of the jurisdiction of the Tribunal
3.1. Acting for and on behalf of the Commission in accordance with Staff Regulation 11.2, the Executive Secretary has decided to recognise the competence of the Administrative Tribunal of the International Labour Organization to hear complaints alleging the non-observance, in substance or in form, of the terms of appointment of staff members of the Commission and of the Staff Regulations and Staff Rules which are applicable to them and to accept the Tribunal's Rules of Procedure.
3.2. In accordance with article II, paragraph 5, of the Statute of the Administrative Tribunal of the International Labour Organization, the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization accordingly recognises the competence of the Tribunal to hear complaints alleging the non-observance, in substance or in form, of the terms of appointment of staff members of the Commission and of the Staff Regulations and Staff Rules which are applicable to them. The Commission likewise accepts the Tribunal's Rules of Procedure.