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Committee Opinion | Doc. 14487 | 24 January 2018
Jurisdictional immunity of international organisations and rights of their staff
Committee on Social Affairs, Health and Sustainable Development
A. Conclusions of the committee
(open)The Committee on Social Affairs, Health and Sustainable Development welcomes the report prepared by Mr Volker Ullrich (Germany, EPP/CD) for the Committee on Legal Affairs and Human Rights and supports its recommendations that the Council of Europe member States should bring about greater transparency of the work of international organisations and should ensure that these organisations introduce mechanisms to protect the rights of staff, along with procedures for lodging appeals.
However, the report submitted to the Parliamentary Assembly by the Committee on Legal Affairs focuses on the right of access to a tribunal, rather than on social rights which form an integral part of human rights – as recognised by the Council of Europe and its Parliamentary Assembly on many occasions – and whose non-respect seem to pose the most acute problem for staff in international organisations.
Thus, whilst fully agreeing with the aim of the Committee on Legal Affairs to encourage the Committee of Ministers and the member States to look more closely at the protection of human rights and the rule of law in international organisations, the Committee on Social Affairs wishes to propose a number of amendments to ensure that social rights are taken into account as far as possible, and to ensure, as a priority, the effective protection of the rights of staff of international organisations.
B. Amendments
(open)Amendment A (to the draft resolution)
In paragraph 4, add the following words at the end of the first sentence:
“, as well as the European Social Charter (ETS Nos. 35 and 163).”
Amendment B (to the draft resolution)
At the end of paragraph 6.1, insert the following words:
“(if appropriate, especially for smaller international organisations, by submitting to the jurisdiction of tribunals established within other international organisations)”
Amendment C (to the draft resolution)
In paragraph 6.2, after the words “other groups”, insert the words:
“(such as staff committees and staff associations)”
Amendment D (to the draft resolution)
At the end of paragraph 6.3, insert the following words:
“ideally by creating tribunals of appeal, where they do not yet exist, for the more established internal tribunals (such as the ILO Administrative Tribunal and the Administrative Tribunal of the Council of Europe), and by having smaller international organisations submit to their jurisdiction;”
Amendment E (to the draft resolution)
After paragraph 6.3, insert the following paragraph:
“ensure that internal redress mechanisms at all levels are independent and impartial, respect the principle of equality of arms and issue reasoned decisions, and that these mechanisms are given the means to operate effectively and without undue interference so that decisions are fair and taken within a reasonable time;”
Amendment F (to the draft recommendation)
Replace paragraph 1.3 with the following paragraph:
“initiate reflection on:
1.3.1. ways to ensure that the Administrative Tribunal of the Council of Europe is also accessible to trade unions;
1.3.2. whether the Administrative Tribunal of the Council of Europe should be complemented by an appellate judicial body, either within the Council of Europe itself or by pooling resources with other international organisations in order to create a joint appeals body for several administrative tribunals;”
Amendment G (to the draft recommendation)
At the end of paragraph 1.4, add the following words:
“and with other relevant human rights (including social rights), and, where appropriate, make recommendations on how these systems can be improved with a view to attaining a higher level of protection of these rights.”
C. Explanatory memorandum by Mr Stefan Schennach, rapporteur for opinion
(open)1. As rapporteur of the present
opinion and a long-standing member of the Committee on Social Affairs,
I very much appreciate my colleague Mr Volker Ullrich’s attention
to detail in his report on the jurisdictional immunity of international
organisations and the rights of their staff. His report defines
and explains both the rights of staff members of international organisations
and their respective jurisdictional immunity, and showcases the
competent bodies for labour disputes within international organisations,
as well as the relevant case law of the European Court of Human
Rights. I can fully support his recommendations that the Council
of Europe member States should bring about greater transparency
of the work of international organisations and should ensure that
these organisations introduce mechanisms to protect the rights of
staff, along with procedures for lodging appeals.
2. However, Mr Ullrich focused specifically on the right of access
to a tribunal and not on the social rights of the staff of international
organisations, which he admitted “would warrant a more detailed
examination“, 
but which
he considered to be beyond the scope of his report. As the rapporteur
for opinion of the Committee on Social Affairs, for which focusing
on social rights is its bread and butter, I will attempt to provide
this more detailed examination in this opinion.
but which
he considered to be beyond the scope of his report. As the rapporteur
for opinion of the Committee on Social Affairs, for which focusing
on social rights is its bread and butter, I will attempt to provide
this more detailed examination in this opinion.3. First of all, I believe it is important here to underline
that social rights are human rights. This has been consistently
recognised by the Council of Europe and the Parliamentary Assembly,
most recently in Resolution 2180
(2017) “The ‘Turin process’: reinforcing social rights in Europe”. The fact
that social rights, at Council of Europe level, are not as easily
justiciable as first generation human rights does not make them
less important, it just means that they are harder to enforce –
especially if an international organisation which benefits from functional
jurisdictional immunity refuses to waive this immunity.
The fact
that social rights, at Council of Europe level, are not as easily
justiciable as first generation human rights does not make them
less important, it just means that they are harder to enforce –
especially if an international organisation which benefits from functional
jurisdictional immunity refuses to waive this immunity.4. It is no secret that the signatories of the original motion
for a resolution had the situation at the European Patent Office
(EPO) in mind when tabling this motion. The EPO – like other international
organisations – is not exactly a paragon of transparency when it
comes to its internal workings, but the situation has deteriorated
so badly over the last few years that there has even been some media
attention. From this media coverage
it appears that the President of the EPO installed in 2010 has waged
a campaign against staff who oppose his reform efforts (with staff
representatives members of the trade union SUEPO being
in the first line of fire): by 2016, three elected staff representatives
had been dismissed, others had been demoted and/or had seen their salaries
or pensions cut. Staff complain about a campaign of intimidation,
harassment and discrimination, resulting in burn-out and other sickness,
and even suicides: Over the past four years, five EPO staff members have
committed suicide, two of them at their place of work.
From this media coverage
it appears that the President of the EPO installed in 2010 has waged
a campaign against staff who oppose his reform efforts (with staff
representatives members of the trade union SUEPO being
in the first line of fire): by 2016, three elected staff representatives
had been dismissed, others had been demoted and/or had seen their salaries
or pensions cut. Staff complain about a campaign of intimidation,
harassment and discrimination, resulting in burn-out and other sickness,
and even suicides: Over the past four years, five EPO staff members have
committed suicide, two of them at their place of work.5. As mentioned in paragraph 44 of Mr Ullrich’s explanatory memorandum,
SUEPO (together with other trade unions) felt obliged to take its
case to the Dutch courts as it lacked standing in the internal remedy systems
of the EPO and the International Labour Organization (ILO) – which
it ultimately lost, including before the European Court of Human
Rights. However, the Administrative
Tribunal of the ILO (“ILOAT”), which acts as the appellate body
of the internal EPO remedy system (the EPO’s Boards of Appeal),
has been swamped by individual complaints against this organisation,
with nearly three quarters of all its cases now originating in EPO.
ILO management even felt obliged to warn the ILO governing body
that the volume of complaints from EPO was “impairing the ability
of the Tribunal to function”.
However, the Administrative
Tribunal of the ILO (“ILOAT”), which acts as the appellate body
of the internal EPO remedy system (the EPO’s Boards of Appeal),
has been swamped by individual complaints against this organisation,
with nearly three quarters of all its cases now originating in EPO.
ILO management even felt obliged to warn the ILO governing body
that the volume of complaints from EPO was “impairing the ability
of the Tribunal to function”. 6. Through two decisions handed down in late 2016, the ILOAT
effectively nullified more than a year’s worth of decisions of the
EPO’s (Disciplinary) Board of Appeal, ruling inter
alia that it had not been properly constituted. This
shows that the EPO’s management cannot, after all, act with total
impunity, but it also shows the limits of the current system of
internal remedies: Individuals do have access to a remedy, but the
first instance (the EPO’s Board of Appeal) was not properly constituted
and could thus not render valid judgments, while the appellate body
(the ILOAT) is so swamped by complaints that its ability to function
is being impaired – which translates into lengthy proceedings. There
is no second-tier tribunal at all.
This
shows that the EPO’s management cannot, after all, act with total
impunity, but it also shows the limits of the current system of
internal remedies: Individuals do have access to a remedy, but the
first instance (the EPO’s Board of Appeal) was not properly constituted
and could thus not render valid judgments, while the appellate body
(the ILOAT) is so swamped by complaints that its ability to function
is being impaired – which translates into lengthy proceedings. There
is no second-tier tribunal at all.7. While some of these individual complaints may eventually end
up before the European Court of Human Rights, and may even be declared
admissible if the EPO’s appeal committee and the ILOAT are not considered a
“reasonable alternative means” of protecting staff’s individual
rights by the Court, it is also clear that it is far more difficult
to enforce collective rights, as the trade union SUEPO has attempted.
In this connection, the question does arise whether the (collective)
complaints procedure under the Additional Protocol to the European
Social Charter (ETS No. 158) would be a better avenue for SUEPO,
given that it is in force in the Netherlands.
8. In a letter dated 21 October 2017, addressed to Mr Ullrich
and forwarded to me, the President of the Union
Syndicale Fédérale (USF), Mr Bernd
Loescher, asked the Parliamentary Assembly to tackle the issue of
discrimination of staff of international organisations as compared
to citizens and workers in the Council of Europe member States which
have ratified the European Convention on Human Rights (ETS No. 5)
and the European Social Charter. His union maintains that the rights
enshrined in these conventions should also apply to staff in international
organisations, as there is no declared intention of the member States
of these international organisations or of the international organisations
themselves to exclude international organisations and their staff
from the scope of the conventions. The
union thus proposes a quasi-judicial body designed to co-operate
with the judicial bodies of the international organisations to ensure
better respect for the rights enshrined in these conventions, suggesting
that the mandate of the European Committee of Social Rights could
be extended in order to act as such a body (which could, for example,
provide legal opinions to the ILOAT). The union also supports limiting
the breadth of immunity international organisations enjoy before national
courts, improving standards within the internal remedy systems of
international organisations in the light of the requirements of
Article 6 of the Convention, and the establishment of a central
appellate judicial body for the existing internal international
organisation tribunals.
Mr Bernd
Loescher, asked the Parliamentary Assembly to tackle the issue of
discrimination of staff of international organisations as compared
to citizens and workers in the Council of Europe member States which
have ratified the European Convention on Human Rights (ETS No. 5)
and the European Social Charter. His union maintains that the rights
enshrined in these conventions should also apply to staff in international
organisations, as there is no declared intention of the member States
of these international organisations or of the international organisations
themselves to exclude international organisations and their staff
from the scope of the conventions. The
union thus proposes a quasi-judicial body designed to co-operate
with the judicial bodies of the international organisations to ensure
better respect for the rights enshrined in these conventions, suggesting
that the mandate of the European Committee of Social Rights could
be extended in order to act as such a body (which could, for example,
provide legal opinions to the ILOAT). The union also supports limiting
the breadth of immunity international organisations enjoy before national
courts, improving standards within the internal remedy systems of
international organisations in the light of the requirements of
Article 6 of the Convention, and the establishment of a central
appellate judicial body for the existing internal international
organisation tribunals.9. I would personally conclude that, first of all, international
organisations should endeavour to respect the rights of their staff
– all their fundamental human rights, including social rights enshrined
in the European Social Charter, thus the Amendment
A. Quite frankly, if the “success” of an international
organisation such as the EPO is built on campaigns of harassment
and intimidation which drive staff members to suicide, then the
price of this success is too high. This should be obvious to the
governing body of the international organisations in question, and
thus, ideally, in case of such abuses, the governing body would
ensure that the international organisation’s management stops the
abuse and goes back to respecting staff rights. If this is not the
case, then the internal remedy system of the international organisations
should be able to put things right again. This is why I fully support
the proposals made by Mr Ullrich and the Committee on Legal Affairs
to ensure that all international organisations introduce appropriate
mechanisms to protect the rights of staff, along with procedures
for lodging appeals.
10. We must, however, ensure, that we do this effectively. Some
international organisations are exceedingly small – it makes no sense for each of
these tiny international organisations to establish their own tribunal,
for example. Thus, I am proposing in Amendment
B that smaller international organisations could fulfil
this condition by submitting to the jurisdiction of tribunals established
within other international organisations. It is indeed also important that trade
unions and other groups working to protect the rights of staff have
access to these means of redress – I am proposing in Amendment C that it be made clear
that these “groups of staff” include staff committees and staff
associations.
– it makes no sense for each of
these tiny international organisations to establish their own tribunal,
for example. Thus, I am proposing in Amendment
B that smaller international organisations could fulfil
this condition by submitting to the jurisdiction of tribunals established
within other international organisations. It is indeed also important that trade
unions and other groups working to protect the rights of staff have
access to these means of redress – I am proposing in Amendment C that it be made clear
that these “groups of staff” include staff committees and staff
associations.11. The Committee on Legal Affairs has also rightly suggested
that procedures be introduced for lodging appeals against decisions
of the internal tribunals of international organisations in employment
disputes. However, as in the case of Amendment B, it is important
to remain effective: thus, ideally tribunals of appeal, where they
do not yet exist, should be created for the larger and more established
internal tribunals (such as the ILO Administrative Tribunal and
the Administrative Tribunal of the Council of Europe), and smaller international
organisations should submit to their jurisdiction (Amendment D). I believe this would
be more effective than creating one central appellate judicial body
for all international organisations which would probably be quickly
overloaded with work.
12. It is also important not only to ensure access to internal
redress mechanisms as per the first line of Article 6 of the European
Convention on Human Rights, but also to ensure respect for the other
rights guaranteed in that article, i.e. that internal redress mechanisms
at all levels are independent and impartial, ensure the equality
of arms and issue reasoned decisions, and that these mechanisms
are given the means to operate effectively and without undue interference
so that decisions are fair and taken within a reasonable time (Amendment E).
13. Amendment F takes up
the suggestion of Amendment D specifically for the Administrative
Tribunal of the Council of Europe: to initiate reflection on whether
the Administrative Tribunal of the Council of Europe should be complemented
by an appellate judicial body, either within the Council of Europe
itself or by pooling resources with other international organisations
in order to create a joint appeals body for several administrative
tribunals. It also asks the Committee of Ministers to ensure that
the Administrative Tribunal is accessible to trade unions.
14. Finally, Amendment G seeks
to enlarge the mandate to carry out a comparative study beyond Article
6 of the Convention to other relevant human rights (including social
rights), and, where appropriate, to making recommendations on how
the internal remedy systems of international organisations can be
improved with a view to attaining a higher level of protection of
these rights.