Procedure before the ILO Administrative Tribunal
International Labour Organisation Administrative Tribunal (ILOAT) and other international administrative tribunals contribute considerably to the creation of international civil service law and its interpretation. It has an incredible influence on the shaping of the international administrative law as it has dealt with significant aspects of the labour conditions of international civil servants. Grounds on which the international administrative tribunals built differ in many ways. However, apparent association in the framework and principles are highly unlikely can change.
In this seminar paper on the procedure before the ILOAT, specific attention is paid to the analysis of procedural matters that arise in the search for justice, including the principles of procedural law applicable to it and supporting the ILOAT judgments. For the sake of clarity, as Dražen Petrovic noted, 'the main characteristics of ILOAT remain the same to this day'.[1] Specifically, he meant the ILOAT's competences ratione materiae and ratione personae, which is limited to organizations recognizing the ILOAT Statute and its officials, former officials, and their representatives (locus standi). However, some categories of employees of such organizations are not able to access the ILOAT.
Individual attention, within the framework of this paper, is dedicated to two facets. One deals with the right to oral hearings, and the second concerns the concept of further submissions as a last resort that the complainant or the organizations can attempt to use. Given that the ILOAT declines for the most part to hold oral hearings, it is vital to find concrete explanations for this practice and pay additional attention to cases, including the tribunal's conclusion, to decide or decline to hold oral proceedings. As for the second facet, the president of ILOAT might consider it essential to allow further submission to respond to the complexity of the situation and allow the complainant to provide additional documents or commentaries, which is essential to consider. In this regard, this seminar paper will not be limited to academic publications but will also pay considerable attention to the analysis of ILOAT judgments where further submissions and acceptance or rejection to hold oral hearings are present. The goal is to try to identify aspects that influence the ILOAT to hold or decline the oral hearings, and aspects that influence the President of the ILOAT to accept the additional submissions.
History of ILOAT is an unusual one, it is the longest-existing International Administrative Tribunal, which was altered at some point of time, including amendments made to its statute, and adaptation to new demands. The tribunal was established by the League of Nations as an administrative tribunal on September 26, 1927, that was competent to receive complaints against the Secretariat of it and the International Labour Organization (ILO) till 1946. It was not called International Labour Organisation Administrative Tribunal before the dissolution of the League of Nations. After the dissolution of the League of Nations, ILO as the successor of the League of Nations' Administrative Tribunal, continued the practice of the tribunal from 1947 as International Labour Organizations Administrative Tribunal. However, Dražen Petrovic probably would comment that it is not justified to describe the ILOAT as 'a new Tribunal or as a successor of the previous one. It simply continued its work under a new name, especially as the ILO itself was concerned'.[2] Since then ILOAT receives complaints from staff members of international organizations that recognize its jurisdiction.
As Tanaka Y. mentioned in his comprehensive book on the Peaceful Settlement of International Disputes:
"[T]he proliferation of international organisations creates at least two types of dispute. The first relates to disputes between an international organisation and its staff and the second pertains to remedies for individuals affected by projects financed by a multi-lateral financial institution. The first type of dispute constitutes internal disputes within an international organisation."[3]
Thinking of internal disputes that occur within an international organization, it is clear that cases on conflicts between staff members and organizations should have the possibility to be judicially reviewed. Such conflicts will inevitably emerge due to various factors, misunderstandings, and interests of as the staff member so the organization's. Therefore, there is a legal tool as the tribunal, which assists in rectifying disputes arisen between the staff member and the organization. Nowadays, it is recognized by various scholars as adequate and equitable means of settling labour disputes. An in-depth or even encyclopaedic book by Henry G. Schermers et al. points on the inessentiality of having its own judicial body within an organization to deal with labour disputes:
"Many international organizations do not feel the need for an administrative tribunal of their own: they use the administrative tribunal of another organization. This is quite possible, since the relationship between international organizations and their staff is more or less founded on the same principles in all international organizations".[4]
The ILOAT, in this regard, is one of the efficient judicial organs, standing in line with UNAT and UNDT, that manages the critical task of judicial control of the legality of those decisions and practices, which international organizations issue and pursue in the area of labour administration. The said is probably one reason that fifty-seven organizations expressed its will to transfer judiciary power and recognize the ILOAT jurisdiction to effectively administer labour issues that arise between staff members and the organizations. In general, the tribunal has been recognized by sixty-six organizations, within which are some organizations of UN family, EPO, European Organisation for Nuclear Research, and others. Such organizations that participate in international dispute settlement proceedings raises a series of particular challenges as a widespread call for better governance, transparency, and accountability of the organizations.
Currently, there are a total of 4272 ILOAT judgments comprised in 129 sessions that are also available by navigating in a comparatively useful tool "Triblex" on the official web-site of ILOAT. There are two sessions per year held by the tribunal. The next 130th session began on June 22, 2020, the duration that could not be determined so far since the exceptional circumstances brought by SARS-CoV-2 made it clear that the judges would not be able to meet in Geneva for holding the session.[5] The latest 129th session took place from October 21 to November 15, 2019, at the International Labour Office (ILO) in Geneva. However, since the middle of March 2020, due to the pandemic situation occurred as an outcome of coronavirus disease (COVID-19)[6], the tribunal had to adapt to "new realities" of introduced mandatory teleworking for their staff. During the 129th session, the tribunal adopted 67 judgments, which corresponds to 803 cases and 665 complainants from 21 organizations. Theoretically, the 130th session might be held longer and be comprised of fewer cases.
The ILO itself is an organization that combines various activities such as normative, political, technical, and development-oriented, promoting decent work for all women and men.[7] One of the organizational differences between the ILO and the ILOAT is the tribunal judges shall be considered officials of the ILO other than officials of the ILO under the Convention on the Privileges and Immunities of the Specialized Agencies.[8]
III. COMPETENCY OF THE ILOAT
Under Article III of the ILOAT Statute, the tribunal consists of seven judges of different nationalities, appointed for three years by the ILC.[9] After a method for selection of lawyers for becoming the judges is utilized, it becomes apparent that the tribunal nominates for ILOAT judges those legal professionals. They have already developed a reputation for highly qualified judges and lawyers in their countries of origin. A meeting of the tribunal is composed of three or five judges, who are designated by the ILOAT president, or even all seven. Currently, the tribunal is composed of judges from Australia, Belgium, Canada, Côte d’Ivoire, France, Italy, Saint Kitts, and Nevis. Not surprisingly, there is no judge from, for example, Russia, China, Japan, or India. A complaint form to the tribunal is to submit in English or French. In case of any original documents are available in other languages than these two, the certified translation into English or French should be submitted together with the complaint form. In his book, Anthea Roberts brought up the “truth” as Martti Koskenniemi wrote in his review on the book. The writer of the book stated the following:
"Others [non-native English speakers] maybe able to write in English, but drafting will take them longer and will be more difficult; many report that the final product is less satisfactory because they are unable to express themselves as clearly or elegantly in their non-native tongue. As for practice, one Chinese official quipped: "just imagine of the USTR [Office of the US Trade Representative] had to defend itself in Chinese".[10]
Also, judgments are drafted by the judges. This fact requires specific experience and knowledge, which are, overall, more comfortable to acquire for nationals of those countries indicated in the composition of judges. However, the diversity that lawyers from other countries could bring might increase apart from other things, an understanding of behavioural facets that staff members from all over the world have if to look at it in the context of labour. Dražen Petrovic states that ‘confrontation of view and arguments, different personal and professional experience, common and civil law logics and approaches, makes the deliberations particularly interesting and enriching,’ to which I would agree, if I would see the composition of judges from other countries as Japan, China, India, Russia, and other countries. Regrettably, this topic might not be of interest to too many; therefore, this research paper’s topic concerns ultimately other issues..
Competences of the ILOAT are of definite limits such as ratione materiae and ratione personae within the borders of organizations recognizing the ILOAT Statute and its officials, former officials, and their representatives (locus standi). However, as Gerhard Ullrich wrote in his work on the law of the International Civil Service, 'in special cases the SR may provide for the jurisdiction of national courts [...] or for the competence of an arbitration board for local staff', linking to ILOAT judgment 1450 and Art. 122 EU-CEOS.[11]
Following Article II of the Statute of the ILOAT, it is open to the following categories of people:
The tribunal is of limited jurisdiction and may not extend its jurisdiction to persons or subjects beyond the limits stipulated in its Statute. For instance, consultants, external experts and/or other contractors, who hold agreements that do not set for the tribunals jurisdiction over disputes between him/her/employer company and the international organization will be lead to municipal courts or arbitration. Usually, the terms and conditions about disputes are stipulated in contracts between international organizations and their service providers. This category of service providers do not have locus standi.
Complaints the ILOAT considers are about non-observance, in substance or form, of the terms of staff member’s appointment or about issues where provisions of staff regulations of organizations were breached or used in such a way lead to violation of staff member’s rights. So, the tribunal can decline a complainant’s claim as a result of the absence of relevant rules of staff regulations or the terms of appointment. For a proper administration of justice, the ILOAT is empowered to interpret its Statute, stay of proceedings, and judgments. It is well explained and defined in case law, for instance, Judgement 3003, and Article VII of the ILOAT Statute. Additionally, the interpretation of above and rules of international administrative law by the tribunal might change over time, which should not necessarily mean that tribunals are entitled to change the rules. As an example is the way, the tribunal explicitly requested in its decisions for the production of additional documentation in further submissions at the earlier years of functioning of the tribunal. However, it stopped being noticed in the tribunal case law of recent years.[12]
As Gerhard Ullrich noticed, the judicial proceedings of the ILOAT noticed it is ‘almost without exception only in writing.’[13] Thinking of current situation that the world met due to the COVID-19, probably one might make an anecdotal commentary on that the ILOAT is better prepared to new realities based on its extensive experience in considering disputes in writing in comparison with most other international administrative tribunals that almost all the time hold oral hearings.
Today, under the tribunal’s jurisdiction, the ILOAT staff communicate through teleworking, as is mentioned above. It has been announced on the ILOAT official web-site on the fact that the workload of international postal service met inconveniences by limits on transportation means, the filing of written submissions by post became problematic. Thus, the tribunal introduced provisionally an alternative method for filing written submissions by accepting electronic versions of written submissions filed by email.[14] Although the ordinary procedure of filing a complaint is to submit complainant form, briefs, and attached documents in hard copy. Whereby following Art. 4 of the ILOAT Rules, the date of submission will be considered the date of dispatch, provided that in the event of doubt about the date of dispatch, it takes into account the date of receipt at the ILOAT Registry.
ILOAT is under obligation to abide by the general international principles of procedural law when applying its own procedural rules as stated in its Statute and as elaborated by case law. It worth mentioning that the international general legal principles of procedural court law only play a very subordinated role in the case law of international administrative tribunals. ILOAT Statute and the rules of procedure offer an exchange of pleadings in four stages, such as complaint filed by a staff member of an organization, which recognizes the ILOAT Statute; reply by the organization, rejoinder, and surrejoinder. Some cases, under the ILOAT President’s decision, may be added by further submissions. A complaint must be filed within ninety calendar days after the complainant was notified of the decision impugned where hard copy shall be presented, which include a brief with a statement of the facts of the case and the pleas. As explained on the practical guide to the procedure before the ILOAT:
"Each argument raised must be expressly stated in brief submitted to the Tribunal, including those which may have been raised previously in the internal appeal procedure. It is not sufficient to simply refer to arguments in other documents. The Tribunal's case law is clear on this point."[15]
Concerning duplication of proceedings, the ILOAT informed that based on a general principle of law, a complainant could not simultaneously submit the same matter for decision in more than one proceeding.[16] Complainants, to successfully fill the case with the ILOAT, have to meet formal requirements such as completing the complainant form in English of French, submission of briefs, meeting the submission deadlines, exhaustion of internal means of redress, etc. Otherwise, in the best case, the ILOAT registrar can request a correction of the complaint application, or at the worse scenario, the tribunal can issue a decision of summarily dismissal of the complaint. The Staff Union of the ILO proposes a change in the tribunal’s dismissal of complaints, requesting the tribunal to provide the affected complainant with advice and allow the complainant to oppose such action before its implementation.
Briefly, about the internal appeal proceedings that are of crucial importance for bringing actions before the tribunal, it should be emphasized that final express or implied decision of the organization, which is deemed impugned decision, might be brought to the tribunal. As the tribunal is a single-tier system of judicial review, the internal appeal proceedings of organizations, usually made by independent and impartial dispute settlement bodies per its staff regulations, facilitate significantly to the ILOAT facts finding and consideration of the cases. Not of less importance are other documents, which the tribunal takes for consideration of cases, include but are not limited to explanatory documents used before the adoption and implementation of staff regulations that are issued by the head of administration. In the majority of instances, the organ representing the organization before a dispute settlement body and the dispute settlement body itself are both organs of the same organization. In connection with the organizations’ staff regulations, it can be observed that a reasonable amount of international organizations appear to have increasing similarities in their structure and elements. Additionally, such databases as the Triblex contribute to the harmonization of the employment law of international organizations.
Reply of the defendant organization takes a thirty-day deadline from the date of receipt of the complaint for filing the reply. If there is a request for extension of this timeframe, the ILOAT President can decide to shorten or lengthen it. Rejoinder is to submit within a time limit of thirty days from the date of receipt of the reply for filing a rejoinder. Extension is also possible by the decision of the President. Currently, the Staff Union of the ILO proposes the ILOAT reform, stating that the present time limits for the filing of pleadings by complainants and organizations is unreasonable, and it suggests a consideration for more reasonable time limits. It explains this by the fact of regular requests emanating from both sides of proceedings for the extensions.[17] The practical guide to the procedure before the ILOAT states that "According to the case law, the rejoinder must not contain new claims for relief which were not included in the complaint".[18] Usually, the written pleadings are closed by the surrejoinder. However, if no surrejoinder is submitted within the thirty-days time limit, then the pleading is also closed if we don't mention corrections requested by the Registrar of the ILOAT.
The further submissions by parties might be allowed in exceptional cases. Usually, the tribunal does not allow the production of further submissions, repeating commentaries that should have been addressed in earlier submissions.
Although the ILOAT is deemed efficient in holding cases, there is a belief that the long process of submission of documents, facts finding, and consideration will be more productive, if the tribunal holds oral hearings. In such a case, both sides can utilize their right to audi alteram partem. Furthermore, probably there would be a reduced need in the tool as the further submissions. In the next two chapters, I pay additional attention to the right to oral hearings and the further submissions of two essential instruments for defending after the case is brought before the tribunal.
While holding legal disputes, international tribunals base their considerations on the general principle of law, which form legal standards for all parties, whether it is the organization, the staff members of the tribunals. Speaking exclusively about the ILOAT, it as Gerhard Ullrich rightly noticed, ‘applies common basic principles and methods of interpretation uniformly to all IO subject to its jurisdiction.’[19] Within them is of increased popularity the functional or theological method, meaning that the interpretation of the text is made by taking an excellent account of its object or purpose. Maybe, the theological method is standard for the ILOAT because despite the fact it has an option of holding oral proceedings, in significant cases, it prefers a written way of procedure. This factor, in the opinion of many, including the Staff Union of the ILOAT, breaches the principle of audi alteram partem (the right to a hearing and defense).[20]
By Article V of the ILOAT Statute, the tribunal may, at its discretion, decide or decline to hold oral proceedings. Parties can also request an oral hearing. However, it is up to the tribunal to decide whether to proceed with the oral hearings. The ILOAT decides whether the oral proceedings before it or any part of them shall be public or in-camera.
Nevertheless, the tribunal persistently refuse to hold oral hearings, explaining it by the sufficiency of the written submissions to reach a reasoned decision, where the oral hearings it states is unnecessary. In some cases, the ILOAT explains that an application is to be dismissed as it provides no basis for a hearing or, in other cases, assures that relevant evidence from the parties was already collected, and the parties were also allowed to comment on each other’s response. One might notice the similarity of choice of words the tribunal uses for rejection of the oral proceedings and, at the same time, the variety of ways the same wording can be used.
In the following case, a complainant had witnesses who would provide oral testimony. However, the tribunal was sure that it understood the case without hearing the witnesses:
"The complainant seeks oral proceedings and the hearing of numerous witnesses, as well as the disclosure of certain documents. However, the Tribunal considers itself to be sufficiently well informed on the case by the written submissions and thus does not deem it necessary to grant these requests."[21]
In many cases the ILOAT disallows oral hearing stating the following:
"Having examined the written submissions and disallowed the complainant’s application for oral proceedings".[22]
The Staff Union of the ILO proposes amendment to the ILOAT Statute, which will allow ILOAT to better comply with the standards of justice as below:
"The Union proposed that all complaints brought before the ILOAT are to be heard in accordance with the principles of due process, fair procedures, audi alteram partem (the right to a hearing and defense), nemo iudex in re sua (no one shall judge his own cause), and international law, including without limitation, relevant labour standards, and the ILO Declaration of Fundamental Principles and Rights at Work. (The Union would like this provision to be made a part of a preamble to the ILOAT Statutes)."[23]
Besides, the Staff Union of the ILO in order to change the practice of the tribunal for making oral arguments and examination of witnesses, in principle might agree, to request that the ILOAT 'be required to hold oral hearings'[24]. Whereby, the Staff Union would instead to observe oral hearings (in case the parties request for it) as a mandatory practice of the ILOAT.
In the following two cases, the ILOAT requested further submissions, which had to be provided to the complainants as the defendant organizations have not done so before. There is another suggestion of the Staff Union, wishing to ensure that in any appeal, all relevant and pertinent documents in the hands of the parties shall be made available to the other side.
"The complainant has requested oral proceedings. In view of the abundant and sufficiently clear submissions and evidence produced by the parties, the Tribunal considers that it is fully informed about the aspects of the case that are relevant to the outcome of the dispute and does not therefore deem it necessary to grant this request".[25]
" In his rejoinder the complainant has applied for a hearing, under Article 12 of the Rules, to confirm his version of the facts surrounding the decision to pay him a withdrawal settlement. However, having regard to the highly explicit character of the written submissions, and the information provided in the documents produced by the parties, the Tribunal considers that it is fully informed on this matter and that it is therefore unnecessary to allow the application".[26]
It has been mentioned that the tribunal held oral proceedings in the early ages of its functioning under ILO, in Judgments 26, 28, 29, 121, 133, 137, and 986. In his book, Gerhard Ullrich found a possible answer to the question on the rejection of the ILOAT to go for oral proceedings, he states the following:
"The rationale behind this restrictive practice may be seen in the statute and the rules of procedure which unlike to the UNDT, do not provide for the possibility to impose the costs for travel and accommodation of the parties, the counsel and witnesses on the organisation or to replace the physical presence of parties by using modern means of communication (see ILOAT Advice to Litigants, point D(3): "it is up to the parties to meet their own costs, such as travel and other expenses of counsel and witnesses, whatever award the tribunal may make in its judgment"). The tribunal is apparently reluctant to return to its former practice which was to include these costs in the general decision on costs in the judgment".[27]
Does the right to be heard include a duty to afford an oral hearing? It should probably be decided on a case by case bases. However, as the ILOAT has not held the oral proceedings for quite a long time, it is justified to question whether the tribunal does not breach the right to be heard. From another point of view, it probably would be challenging for the tribunal to reject the oral hearings if it allows at least one oral proceeding these days. Nevertheless, if the oral proceeding is allowed at least in one case, it should indeed be an outstanding one. Otherwise, the complainants or organizations might find ways to apprehend their claims as carefully as possible to the case and claim analogy to the case, which, again theoretically, was allowed for oral proceedings.
Moreover, given that overall, the international law is more of dynamic nature and not only capable but also has a tendency of changing by time and due to various circumstances, the allowance of the oral proceedings in cases where disputes can be efficiently considered in writing might bring additional inconveniences due to a need of tremendous changes in the ILOAT Statute. It might extend consideration time for judges due to an increase of already existent colossal workload, or as was mentioned above, the ILOAT Statute would have to be amended to include a clause on the imposition of the costs for travel and accommodation of the parties. Moreover, perhaps this will add to a need to enlarge the office of the ILOAT.
Henry G. Schermers et al., in the comprehensive book on International Institutional Law, wrote that ‘Tempora mutantur, nos et mutamur in illis. Times change, and we with them. This old wisdom also holds true for international organisations: time change, and international organisations with them'.[28] This saying can be extended to the international administrative tribunals as the tribunals integrate and apply provisions from rules and principles applicable to the international civil service, which in its turn provides services within international organizations. This is a thing in itself. One has an influence on another or one flourish another. As Gerhard Ullrich wrote 'The general legal principles of the international civil servants are the result of a process of evaluative comparison and cognition of the international administrative tribunals'.[29] Besides, changes not necessarily should be seen as a bad or good, changes have its time, as Yoshifumi Tanaka stated in his book on the Peaceful Settlement of International Disputes:
"Procedural rules of international courts and tribunals also evolve to address new issues of international dispute settlement. In this sense, the international dispute settlement system can be said to be evolutionary by nature."[30]
Again, thinking of assurances that the tribunal regularly issues in its judgments, ten to one the ILOAT is enabled by the parties written pleadings and the provided ‘sufficient’ evidence to reach an informed decision. In case the tribunal deems on its motion that it needs additional documentation or commentaries from the parties, it can order for it as further submissions as stipulated in the ILOAT Statute, its Rules, and case law. One can deem that the above might be considered as utilization of the right to a hearing.
There are practical reasons for further submissions and for requesting or ordering for it, which can also be called additional submissions. Reasons are the absence of documents that are crucial to consider a claim, necessity to receive commentaries on provided documents, and explanations from another side. There is even a case with further submissions, which state in it a request to squash parts in a claim.
If the tribunal can consider the further submissions as irrelevant, even if they are new, the tribunal will not allow or request them. The purpose of the further submissions is to address cases where the surrejoinder includes some plea or item of evidence on which the complainant has not had an opportunity to comment or provide additional documentation on replying to the surrejoinder, which the ILOAT considers material.
There are more than 200 ILOAT judgments, which include the further submissions. They are available on Triblex. However, to make the research for the further submissions' cases closer to complete, one has to be inventive by using several keywords on the Triblex. Such different wording for the further submissions are used in judgments as additional commentaries, final commentaries, observations, complainants' further brief, further brief, organization's comments (Judgment 1446), additional comments (Judgment 1417), complainant's communication (Judgment 1224). It should be emphasized that some of the ILOAT considerations could lead to different decisions if there would not be the tribunal's order to provide further submission by the complainant or both parties.
Standard procedure where the provision of facts, commentaries, documents is submitted ends by the defendant organization's surrejoinder. There are cases considered by the tribunal where the defendant organization provided new facts at the stage of surrejoinder. The complainant can reply and provide his or her commentaries only if the oral hearing or the further submissions are allowed or requested by the ILOAT. In these cases, it feels as the defendant organization might take the privilege of giving its words last, leading to decisions that might have been taken according to the last words of such an organization. In some cases, as already mentioned above, the ILOAT President can request or allow the complainant to send commentaries, which will assist in clarifying, proof, or disagree with materials and argumentations submitted in surrejoinder.
Principles of due process, fair trial, right to a hearing, and defense with such tool as the further submissions might be utilized better. Additionally, there is a feeling that the written form of holding judgments might minimize the risk of politicizing and partiality to the work of judges. In Judgment 2456, the defendant organization asks the tribunal to order a hearing at which its Director-General would appear. In this case, the ILOAT invited all parties to provide further submissions and disallowed the oral hearing.
In Judgment 4074, the procedure did not end with surrejoinder, due to a request made by the tribunal to the complainant to reply because the defendant organization stated for a new fact, however, could not properly assure it, see below:
"[...], Mr S., filed by the Global Fund as part of its surrejoinder deposing to the fact that he gave a copy of the [...] memorandum to the complainant in September 2011, as best he could recall, and placed the original in the complainant’s employee file".[31]
The complainant negated to the above assertion and stated that 'he never received or saw this document until it was produced in the internal appeal'.
In another case, Judgment 4042, “In his further submissions […] the complainant contests the veracity and accuracy of the written transcript of the hearings before the Disciplinary Committee and asks the Tribunal to order the EPO to produce the audio recordings.”
In Judgment No 3930, the ILOAT points out to complainant she could have used the request for further submissions:
"It further denies that the report was deliberately withheld to prevent her from submitting it in proceedings before the Tribunal and notes that she could have sought leave to file further submissions if she considered that it contained new and relevant information."[32]
In Judgment No 3083, the tribunal explained that it gave enough time for further submission, which was extended in time limits:
"Having regard to the extension of time granted to the complainant to make further submissions and the provision of the GCLME documents, there is no substance to the argument that he was not given sufficient time to answer the charges".[33]
In Judgment No. 2892, 'the parties were invited by the Tribunal to make further submissions on the question whether internal appeal procedures were available to the complainant once his dismissal took effect'.[34]
In Judgment No 2871, the ILOAT explains its understanding of the case as follows:
"After examining the documents produced by the parties, and bearing in mind their respective explanations in their further submissions, the Tribunal cannot find any evidence casting doubt on the genuine nature of the reason for the decision".[35]
Judgment No 2724, ILO criticized the tribunal for requesting further submissions. However, the tribunal reassures that it does not explain why it requested for further submissions:
"The ILO indicates that it was “somewhat surprised” at the Tribunal’s order for the filing of further submissions"
, where the ILOAT stated
"The Tribunal will not dwell on the ILO’s observations regarding the propriety of its order for the filing of further submissions. Suffice it to recall that, contrary to the Organization’s contention, the Tribunal’s power to order the filing of further submissions may be exercised at any stage of the proceedings".[36]
Without a doubt, the possibility to fil the further submissions play a critical role in written proceedings as the tribunal constantly disallows the oral hearings. Such submissions enable complainants to respond to the new argument raised by one or both parties. Additionally, it improves the application of the principle of due process and the right to be heard.
Overall, international law is more of a dynamic nature and not only capable but also tends to change due to various circumstances. The allowance of the oral proceedings in cases where disputes can be efficiently considered in writing might bring additional inconveniences to the tribunal due to a need for significant changes in the ILOAT Statute and practice of the tribunal thereof. However, such change might be of paramount importance as the oral proceedings, and further submissions enable the principles of due process, fair trial, right to a hearing, and defense to be better utilized. There are practical reasons for such tools, but the ILOAT exploits it differently. Oral hearings are extremely rare, and further submissions are increased in use. The tribunal persistently refuse to hold oral hearings, explaining it by the sufficiency of the written submissions to reach a reasoned decision, where the oral hearings it states is unnecessary. In case the tribunal deems on its motion that it needs additional documentation or commentaries from the parties, it can order for it as the further submissions as stipulated in the ILOAT Statute, its Rules, and case law. One can deem that the above might be considered as utilization of the right to a hearing.
Does the right to be heard include a duty to afford an oral hearing? It should probably be decided on a case by case bases. However, as the ILOAT has not held the oral proceedings for quite a long time, it is justified to question whether the tribunal does not breach the right to be heard.
[1] “Publication: 90 Years of Contribution of the Administrative Tribunal of the International Labour Organization to the Creation of International Civil Service Law” (Publication: 90 years of contribution of the Administrative Tribunal of the International Labour Organization to the creation of international civil service lawDecember 14, 2017) <https://www.ilo.org/tribunal/news/WCMS_613944/lang--en/index.htm> accessed June 7, 2020
[2] “Publication: 90 Years of Contribution of the Administrative Tribunal of the International Labour Organization to the Creation of International Civil Service Law”, 2017
[3] Tanaka Y, The Peaceful Settlement of International Disputes (Cambridge university press 2018), 19
[4] Schermers HG and Blokker N, International Institutional Law: Unity within Diversity (Martinus Nijhoff Publishers 2011) 437
[5] (130th SessionJune 11, 2020) <https://www.ilo.org/tribunal/news/WCMS_747597/lang--en/index.htm> accessed June 26, 2020
[6] Coronavirus disease (COVID-19) also known as SARS-CoV-2 is an infectious disease caused by a newly discovered coronavirus. See also “Coronavirus” (World Health Organization) <https://www.who.int/health-topics/coronavirus> accessed June 21, 2020
[7] Wessel RA and Odermatt J, Research Handbook on the European Union and International Organizations (Edward Elgar 2019) 101. See also https://www.ilo.org/global/about-the-ilo/lang--en/index.htm
[8] Art.3 of ILOAT. See also “Convention on the Privileges and Immunities of the Specialized Agencies, New York, 21 November 1947, UN Treaties,” (United Nations) <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY> accessed June 20, 2020
[9] International Labour Conference is one of the main organs of the International Labour Organization, Art. 2 of the International Labour Organization Constitution
[10] Roberts A, “Chapter 5(III) Identifying Patterns of Dominance,” Is International Law International? (Oxford University Press 2017) https://catalog.loc.gov/vwebv/search?searchCode=LCCN&searchArg=2017017662&searchType=1&permalink=y
[11] Ullrich G, The Law of the International Civil Service: Institutional Law and Practice in International Organisations (Duncker & Humblot 2018) 456
[12] Judgment No 767, Cachelin v ILO, 59 Session (ILOAT), Judgment No 876 (Interlocutory order), Leprince v UNESCO, 63 Session (ILOAT), Judgment No 899, GEISLER and WENZEL v EPO, 64 Session (ILOAT), Judgment No 947 (Second interlocutory order), Ikua Muiga v WHO, 65 Session (ILOAT)
[13] Ullrich G, 452
[14] (Filing of written submissions during the COVID-19 crisisApril 27, 2020) <https://www.ilo.org/tribunal/news/WCMS_742882/lang--en/index.htm> accessed June 23, 2020
[15] “Practical Guide to the Procedure before the ILO Administrative Tribunal” <https://www.ilo.org/tribunal/advice-to-litigants/lang--en/index.htm> accessed May 27, 2020
[16] Judgment No 3291, several complainants v EPO, 116 Session (ILOAT)
[17] Staff Union of the ILO is dedicated to defend the rights of the international civil service (independence, terms and conditions of employment and the safety of international civil servants), ILOAT Reform, Staff Union Bullet Points - Ranked By Category, Fundamental Due Process—Most Important Under System of Natural Justice in order to ensure fair procedures (ILOAT Staff Union Website) <https://www.ilo.org/public/english/staffun/info/iloat/bulletpoints.htm> accessed June 27, 2020
[18] “Practical Guide to the Procedure before the ILO Administrative Tribunal” <https://www.ilo.org/tribunal/advice-to-litigants/lang--en/index.htm> accessed May 27, 2020
[19] Ullrich G, 47
[20] ILOAT Reform, Staff Union Bullet Points (ILOAT Staff Union Website) <https://www.ilo.org/public/english/staffun/info/iloat/bulletpoints.htm> accessed June 27, 2020
[21] Judgment No 4254, Z (No 2) v ILO, 129 Session (ILOAT), consideration 2
[22] Judgment No 4239, L.v WHO, 129 Session (ILOAT), and Judgment No. 4238, G.v WHO, 129 Session (ILOAT), and Judgment No 4237, B.v WHO, 129 Session (ILOAT), Judgment No 4212, K.-G.v CERN, 129 Session (ILOAT), Judgment No 4211, J. (No 2) v IOM, 129 Session (ILOAT), Judgment No 4210, R. (No 2) v UNIDO, 129 Session (ILOAT), Judgment No 4209, A. M. v ITU, 129 Session (ILOAT), Judgment No 4208, Z.v IAEA, 129 Session (ILOAT), Judgment No 4207, G. M. v IAEA, 129 Session (ILOAT), Judgment No 4174, V. (No 2) v UNESCO, 128 Session (ILOAT), Judgment No 4149, T. v WHO, 128 Session (ILOAT), Judgment No 4148, M. v WHO 128 Session (ILOAT), Judgment No. 4117, L. (No 3) v EPO, 127 Session (ILOAT), Judgment No 4097, N. (No 2) v WHO, 127 Session (ILOAT), Judgment No 4097, N. (No 2) v WHO, 127 Session (ILOAT), Judgment No 4095, J. (A.K.) v WHO, 127 Session (ILOAT), Judgment No 4073, D. v Global Fund to Fight AIDS, Tuberculosis and Malaria, 127 Session (ILOAT), Judgment No 4068, M. (No 2) v OPCW, 127 Session (ILOAT)
[23] ILOAT Reform, Staff Union Bullet Points - Ranked By Category, Fundamental Due Process—Most Important Under System of Natural Justice in order to ensure fair procedures (ILOAT Staff Union Website), clause 1.1 <https://www.ilo.org/public/english/staffun/info/iloat/bulletpoints.htm>
[24] ILOAT Reform, Staff Union Bullet Points (ILOAT Staff Union Website), clause 1.4 <https://www.ilo.org/public/english/staffun/info/iloat/bulletpoints.htm>
[25] Judgment No 3507, O-W (No 3) v Global Fund to Fight AIDS, Tuberculosis and Malaria, 120 Session (ILOAT), consideration 2
[26] Judgment No 3134, Mr A. S. v UPU, 113 Session (ILOAT), consideration 6
[27] Ullrich G, The Law of the International Civil Service: Institutional Law and Practice in International Organisations (Duncker & Humblot 2018)
[28] Schermers HG and Blokker N, 733
[29] Ullrich G, 82
[30] Tanaka Y, The Peaceful Settlement of International Disputes (Cambridge university press 2018)
[31] Judgment No 4074, J. (No 2) v Global Fund to Fight AIDS, Tuberculosis and Malaria, 127 Session, consideration 10
[32] Judgment No 3095, Mrs K. J.L. v WHO, 112 Session
[33] Judgment No 3083, C. U. v UNIDO, 112 Session, consideration 6
[34] Judgment No. 2892, P. G. T. v ITU, 108 Session, consideration 6
[35] Judgment No 2871, L. C. v ILO, 108 Session, consideration 10
[36] Judgment No 2724, Mr P. S.v ILO, 105 Session
