Ago Shin-ichi: Adequacy of the Use of “International Administrative Law” in Various Judgments of International Administrative Tribunals

            I delivered a short talk about the adequacy of the use of the notion “International Administrative Law” as found in numerous judgments of international administrative tribunals (IATs), at a seminar organized by the Asian Infrastructure Bank (Beijing) in 2019, which has been recently published in its journal: “What is ‘International Administrative Law’? The Adequacy of this Term in Various, Judgments of International Administrative Tribunals” AIIB Yearbook of International Law (Vol.3, October 2020, pp.88-102).

It was because I had never been comfortable with the word International Administrative Law employed in many judgments of IATs. For me, the concept of international administrative law is very different from the usual employment of the concept at IATs and I wanted to hear from my fellow colleagues in IATs what they thought about it or whether they had given any thought about it. The reaction from the floor appeared to be that they have never given a thought about the question. A small number of people who partially agreed to my submission though. I must admit that the use of the concept has become so prevailing in many IATs so that the reversal of the use to the more appropriate term “Law of International Civil Service” appears to be impracticable. However, my uncomfortable feeling stays.

            The paper I eventually contributed to the compendium of the presentations delivered by the Beijing seminar participants later in 2020 looks into the question of the adequacy (or inadequacy) of using the term international administrative law in international administrative tribunal decisions. It is surely true that there is a set of legal rules applied in making decisions in employment dispute tribunals. However, this set of legal rules should not be called “international administrative law”, because the term has distinctly different connotations in this context. I also added another issue in the debate on the sources of law governing the employment relationship in inter-governmental institutions, namely the problem of the confusion of substantive law and procedural law.

Summary of the paper:

            In my understanding, the International Administrative Law (IAL) is a set of rules in international law that pertains, mostly to the activities inter-governmental organizations in the execution of their mandate. It is a whole system of international procedural law, ‘administrating’ or ‘executing’ the substantive law of international organizations, which support international public interests.

            IATs, on the other hand, are judicial bodies that are not performing executive functions of the international institutions in strict sense. Their decisions are not administrative acts, but judicial ones and they are not applying IAL but laws governing the employment relations within an international institution.

My understanding of the notion of IAL is closer to the concept of International Institutional Law (Law of International Institutions[1]) or the Global Administrative Law.[2] Both notions are based on the assumption that there is an international public interest (‘intérêt public international’) or global governance which is administered by a set of international rules.

            After providing a number of examples of IAT judments, in which the notion of IAL is referred to by judges, respondents or applicants, I go on to point out inaccuracy of a debate on the sources of law applied by IATs, in which people confuse substantive law and procedural law. Some judicial decisions and reference by both applicants and respondents are using the term IAL to mean positive rules to be applied, be they employment contracts or Statutes of IATs, but some others are using the term to show the background for their application, in other words, means by which they come to a legal conclusion or means for interpretation.  IATs have not been explicit in answering this question and they have tended simply to refer to ‘IAL’, whenever they could not clearly say what they were applying. I also point out the inaccuracy of the use of the term IAL by referring to the concepts of international economic law and international labour law.

            There seems to be a tendency for judges at IATs, while not consciously realizing it, to apply sets of legal criteria developed in their own jurisdictions when determining what constitutes the law of employment relationships in international institutions. As a matter of principle, it is established that IATs do not apply national laws. However, various national labour law principles concerning unfair labour practices seem to be tacitly applied in some cases without being explicitly referred to. When judges apply laws that are not officially recognized as sources of applicable laws in IATs, they tend to refer to the concept of IAL, a notion which is not definable.

            In conclusion, I submit that IAL is a misleading concept when referred to in the judgments of IATs, because there is no such a thing as an a priori IAL. However, a look at the whole legal framework of adjudication in the internal justice system of international organizations makes us assume that there is an emerging group of legal norms within the specific regime of IATs, which can be called the Law Governing Employment Relations in International Organizations, or International Civil Service Law. It is a group of sui generis law, basically rooted in public international law or international institutional law, applying to the specific legal regime of the international civil service.

[1] D W Bowett, The Law of International Institutions (Stevens 1970). However, Bowett’s concept of international institutional law is narrower than that of the author..

[2] B Kingsbury and others, ‘The Emergence of Global Administrative Law’ (2005) 68 Law and Contemporary Problems 15; B Kingsbury and R Stewart, ‘Administrative Tribunals of International Organizations, from the Perspective of the Emerging Global Administrative Law’ in O Elias (ed), The Development and Effectiveness of International Administrative Law (Brill 2012)69-104.

Ago Shin-ichi is a Professor at Ritsumeikan University, Kyoto

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