## Report on the IMF Administrative Tribunal 30th Anniversary Conference — Session 2: Recent Developments in International Administrative Law

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---

### Overview of Session
- Event date: November 19, 2025.
- Moderator: Judge Deborah Thomas-Felix, Judge of the IMF Administrative Tribunal (IMFAT).
- Session focus:
  - i) evolutions and possible reforms in international administrative law;
  - ii) emerging trends and human rights before international administrative tribunals (IATs).
- Participants included judges and officials from multiple IATs and related bodies, and a rapporteur from UNAT.

### Jurisdiction over regulatory decisions: scope and practical implications
- Core question: whether IATs should have jurisdiction not only over challenges to individual decisions but also over regulatory decisions.
- Observations by Judge Joan Powers:
  - Major IATs already examine the regularity of changes to employment framework rules, at least implicitly, when reviewing individual applications of those rules.
  - International organizations typically reserve the right to unilaterally change terms and conditions of employment set out in staff policies; such changes are the “regulatory decisions” referenced.
  - Limits to that reservation of authority exist: tribunals protect legitimate expectations of staff regarding stability of employment terms, invoking general principles such as protection of acquired rights and preservation of fundamental employment elements.
  - Case cited: L. Pinto v. IBRD, WBAT Decision No. 56 (1988) — successful challenge to a freeze of staff salaries where WBAT found violation of the World Bank’s consistent practice of making adjustments based on the cost of living.
- Observations by Judge Thomas Laker:
  - Questioned whether IATs applying general principles of international law should be able to set aside regulatory decisions, a power often associated with constitutional courts.
  - Raised structural concerns about balance of power within international organizations when regulatory decisions are subject to judicial invalidation.
  - Practical advantages of direct review include convenience, speed, and automatic application to concerned staff; disadvantages include potential retroactivity issues and impacts on legal certainty.
  - Suggested limiting judicial power to implicit review to avoid disturbing organizational power balances, while recognizing the IMF as an exception in granting direct review.

### IMFAT's distinctive features regarding regulatory-review powers
- IMFAT Statute specific provisions highlighted by Judge Powers:
  - Explicit authority to hear direct challenges to regulatory decisions within a prescribed time period after enactment, and authority to address those issues in the context of individual cases with no time limit in the latter context.
  - Purpose of direct-review authority: allow legality questions to be resolved promptly, before decisions are implemented and applied to staff.
  - Remedies for successful direct review: an annulled regulatory decision cannot be applied prospectively or retroactively; prior reliance becomes null and void without need for class actions or multiple applicants.
  - IMFAT Rules of Procedure require notification to all staff members, and sometimes retirees, when new appeals are submitted on matters that may affect them broadly, permitting interventions.
  - Statutory timeframe for rapid hearings of direct challenges: within three months of enactment.
  - Statutory exclusion: resolutions adopted by the Board of Governors are excluded from the definition of regulatory decisions.

### Remedies, retroactivity, and legal effects
- Under IMFAT practice as explained:
  - If a regulatory decision is declared invalid under direct review, it cannot be applied either prospectively or retroactively; decisions already applied are considered null and void.
  - In individual-case challenges, remedies are more limited than in direct-review proceedings.
- Debate points:
  - Whether declarations of illegality should have retroactive effect and consequences for organizational legal certainty.
  - Who has the final say: judicial bodies versus high-level political organs (e.g., Board of Governors retains formal authority over IMFAT establishment and could abolish it).

### Acquired rights doctrine and cross-tribunal communication
- Concerns about the doctrine of acquired rights:
  - Criteria applied by tribunals are often legally vague and outcomes unpredictable.
  - International tribunals have rarely found breaches of acquired rights; doctrine is less effective when reduced to non-retroactivity, as seen in UNAT practice.
  - Divergent interpretations across IATs weaken the doctrine’s protection for staff.
- Recommendation:
  - Improve communication and "cross-fertilization" among IATs to identify best practices and strengthen application of acquired rights.
- Jurisprudential reference:
  - Perrin et al. v. Asian Development Bank (No. 3), 2018 — identified as providing a comprehensive list of factors relevant to acquired-rights claims.

### Appeals, appellate structures, and alternatives
- Current institutional reality:
  - Most IATs function as courts of first instance and courts of last resort, exercising de novo fact-finding and legal conclusions.
  - UN two-tier model considered advantageous for fairness and efficiency by some speakers.
- Options discussed by Judge Celia Goldman:
  1. Create an appellate review body above IATs.
     - Challenges: impracticability for small organizations; possibility of ad hoc appellate bodies; conceptual and practical difficulties in creating a global supreme court of international administrative law.
  2. Allow IATs to review their own decisions (self-review).
     - Concerns: legitimacy, impartiality, and tension with finality of judgments.
  3. Create a first-instance body below the IAT.
     - Current practice: internal review mechanisms (e.g., Grievance Committees, Ombudsman, conciliation) exist but are non-binding recommending bodies.
- Evidence and precedent:
  - UNAT experience data for 2024 referenced in the Report of the Secretary-General on Administration of Justice at the United Nations (A/80/136, dated 11 July 2025).
  - IMFAT precedent cited: Mr. M. D’Aoust v. International Monetary Fund, IMFAT Judgment No. 1996-1 (2 April 1996) — IMFAT does not function as an appellate body limited to review of Grievance Committee decisions; it makes its own findings of fact and law, and a Grievance Committee’s record may be weighed as evidence.

### Extending IAT jurisdiction beyond employment matters
- Historical rationale for employment-limited jurisdiction:
  - Judge Pablo Sandonato de León traced limitation to historical context of the League of Nations and the modality whereby the Administrative Tribunal of the League of Nations’ jurisdiction was restricted to employment disputes due to immunity and legal-personality concerns.
- Reframed inquiry by Jodi T. Glasow:
  - The key inquiry is what problem expansion seeks to solve: absence of reliable redress mechanisms for non-employment matters can weaken organizational accountability and increase reputational risks.
- Alternatives to expanding IAT jurisdiction:
  - Create a different judicial body with broader adjudicative powers rather than enlarging IAT mandates.
  - Use models to manage non-employment matters without expanding IAT jurisdiction: World Bank Group (WBG) model cited as an effective alternative for resolving non-employment issues.
  - Consider a procedure reminiscent of the EU preliminary ruling mechanism: an executive body could request the Administrative Tribunal to interpret Staff Rules or rule on validity/interpretation before adoption of a decision to avoid disputes and foster uniform interpretation.
- Practical challenges:
  - Difficulty in identifying suitably qualified judges for a broader tribunal.
  - Ensuring coherent dissemination and harmonization of jurisprudence across institutions.

### Mechanisms addressing non-employment grievances and accountability
- World Bank mechanisms discussed: World Bank Inspection Panel; Dispute Resolution Service; World Bank Group Access to Information Appeals Board; World Bank Data Privacy Review Panel; World Bank Group Sanctions Board.
- Findings:
  - These mechanisms address a wide range of issues and demonstrate adaptability beyond traditional employment disputes.
  - They effectively fill the perceived gap left by IATs’ limited jurisdiction by reinforcing the rule of law, strengthening accountability, and building trust among stakeholders by ensuring affected individuals and communities have meaningful avenues for raising concerns and seeking redress.
- Considerations:
  - Expanding IATs’ jurisdiction could raise questions such as whether the extension could overload the system or whether IATs possess the necessary expertise to address complex commercial or contractual disputes.
  - Evaluating expansion requires carefully balancing competing interests.

### Debate on expanding IAT jurisdiction vs. creating specialized bodies
- Positions:
  - Ms. Glasow: two takeaways — (1) mechanisms effectively fill the gap left by limited IAT jurisdiction; (2) expanding IATs’ jurisdiction could raise additional questions and requires careful balancing.
  - Judge Sandonato de León: IATs’ jurisdiction should not be expanded; instead, create specialized bodies (such as those developed by the WBG) to address non-employment matters.

### ECtHR pathways, standards, and implications for internal remedies
- Two pathways by which human rights issues reach the ECtHR:
  1. A claim before a domestic court against an international organization, typically rejected as inadmissible due to the organization’s immunity from jurisdiction — raising whether the right of access to a (domestic) court has been respected.
  2. A complaint before the ECtHR by an unsuccessful complainant who first filed a complaint within the internal body of an international organization, alleging human rights violations (including by the IAT that delivered the contested decision) for which one or more Council of Europe Member States could be held responsible.
- ECtHR analysis in the first scenario:
  - Immunity of an international organization (or a State) constitutes a limitation on the right of access to a court, but not necessarily a violation if justified by legitimate reasons.
  - The ECtHR examines:
    - i) whether the immunity pursues a legitimate aim; and
    - ii) whether there exists a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.
  - In employment-related cases, the ECtHR assesses whether the applicant had “reasonable alternative means” to effectively protect his or her rights.
- Requirements for an internal dispute-resolution mechanism as a reasonable alternative:
  - ECtHR jurisprudence on the right to an “effective remedy” under Article 13 of the ECHR requires structural and procedural guarantees from the adjudicating body, though not necessarily a public hearing.
  - The alternative need not be judicial in nature; the ECtHR has accepted that an appeal to an IAT or arbitration can constitute a reasonable alternative means.
  - Conclusion: the ECHR indirectly imposes some requirements on judicial and quasi-judicial mechanisms within international organizations.
- Second scenario (complaint directly against an international organization):
  - A complaint alleging violation of human rights lodged directly against an international organization is dismissed as inadmissible because the ECtHR lacks jurisdiction over such entities; admissibility may arise if brought against a Member State.
  - Member States retain Convention liability in respect of their treaty commitments under the ECHR, albeit in a limited form.
  - Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Şirketi v. Ireland (30 June 2005):
    - Establishes a presumption that States parties to the ECHR and members of an international organization comply with their human rights obligations as long as the relevant organization protects fundamental rights in a manner “at least equivalent” to that for which the ECHR provides.
    - The presumption can be rebutted if, in a particular case, the protection of Convention rights is “manifestly deficient.”
    - Member States may be held responsible before the ECtHR if there is a manifest insufficiency; however, the ECtHR has not yet found a violation of human rights attributable to a State in this context.
- Implication: Member States are responsible for ensuring absence of structural lacunae in international organizations.

### Use of human rights by IATs and frequency of invocation
- ATCE practice:
  - Frequently relies on human rights guaranteed by the ECHR, including:
    - the right to respect for private and family life;
    - the right to a fair trial;
    - the right of access to a court;
    - the right to non-discrimination;
    - the right to freedom of expression.
  - Accepts that applicants may invoke human rights and interprets statutory provisions in light of human rights provisions.
  - In exceptional cases has set aside decisions incompatible with human rights principles.
  - Observation: applicants rarely rely on human rights arguments in practice; ATCE has found violations in only a small number of cases.
- Empirical reference:
  - The Law and Practice of International Administrative Tribunals, Garrido Muñoz et al., CUP, 2025 (Chapter 9) identified 400 instances in which human rights have been referenced in the jurisprudence of IATs; authors considered this likely an underestimate.

### How human rights arguments are invoked in international administrative litigation
- Three primary modes (as suggested by Judge Bradley):
  - As a shield — to challenge administrative decisions.
    - Two main forms in disciplinary proceedings:
      1. Alleged breach of due process rights (e.g., right to an impartial investigation, right to a hearing, presumption of innocence).
      2. Argument that the conduct at issue is an exercise of the staff member’s fundamental human rights that the organization may not curtail.
    - Example: Case No. 18 of the Appeals Board of the European Centre for Medium-Range Weather Forecasts — staff member relied on his right to freedom of expression and international humanitarian law to defend against a disciplinary sanction.
  - As a sword — to upend decisions denying benefits or entitlements.
    - Examples:
      - Mr. “F” v. International Monetary Fund, IMFAT Judgment No. 2005-1 (18 March 2005).
      - X. vs. ESA (Case No. 141, 30 January 2023) of the European Space Agency Appeals Tribunal.
  - As a magic wand — to obtain rights or legal protections not provided for in staff regulations, or to override/force modification of those rules.
    - Examples:
      - IMFAT in Ms. “M” and Dr. “M” v. International Monetary Fund, IMFAT Judgment No. 2006-6 (29 November 2006).
      - ATCE in the Verneau/Cucchetti Rondanini cases.

### Challenges IATs face in applying human rights arguments
- Statutory and jurisdictional constraints:
  - Some IATs feel constrained by their foundational statutes to give effect to jurisdictional limitations rather than to human rights arguments advanced by applicants.
  - Example: Oglesby v. United Nations Joint Staff Pension Board, Judgment No. 2019-UNAT-914:
    - Appellant sought survivor’s pension benefits for his same-sex husband, relying on equality principles in the Charter of the United Nations and the UDHR.
    - UNAT concluded it did not have “the prerogative to apply the Charter of the United Nations or the UDHR directly, nor the power to strike down internal or subsidiary legislative provisions conflicting with the norms they enact.”
  - D and Sweden v Council of the European Union (Case C-122/99 P, EU:C:2021:304) presented similar challenges in a same-sex marriage benefits context with a similar outcome.
- Practical observation:
  - Human rights arguments guide application of staff regulations, especially where no developed system of employment rights or collective conventions exists.
  - Human rights arguments are invoked to supplement or correct internal rules that have not kept pace with evolving social norms (e.g., recognition of same-sex marriage).
  - Whether IATs are willing or able to apply human rights arguments to meet these challenges remains a separate matter.
- Prognosis:
  - It is reasonable to expect that both litigants and IATs will continue to rely extensively on human rights arguments in the future.

*Report on the IMF Administrative Tribunal 30th Anniversary Conference — Session 2: Recent Developments in International Administrative Law, November 19, 2025.*

### Section 1

### Report on the IMF Administrative Tribunal 30th Anniversary Conference — Session 2: Recent Developments in International Administrative Law — Section 1

### Overview of Session
- Event date: November 19, 2025.
- Moderator: Judge Deborah Thomas-Felix, Judge of the IMF Administrative Tribunal (IMFAT).
- Session focus: i) evolutions and possible reforms in international administrative law; and ii) emerging trends and human rights before international administrative tribunals (IATs).
- Participants included judges and officials from multiple IATs and related bodies, and a rapporteur from UNAT.

### Jurisdiction over regulatory decisions: scope and practical implications
- Core question discussed: whether IATs should have jurisdiction not only over challenges to individual decisions but also over regulatory decisions.
- Observations by Judge Joan Powers:
  - Major IATs already examine the regularity of changes to employment framework rules, at least implicitly, when reviewing individual applications of those rules.
  - International organizations typically reserve the right to unilaterally change terms and conditions of employment set out in staff policies; such changes are the “regulatory decisions” referenced.
  - Limits to that reservation of authority exist: tribunals protect legitimate expectations of staff regarding stability of employment terms, invoking general principles such as protection of acquired rights and preservation of fundamental employment elements.
  - Case cited: L. Pinto v. IBRD, WBAT Decision No. 56 (1988) — successful challenge to a freeze of staff salaries where WBAT found violation of the World Bank’s consistent practice of making adjustments based on the cost of living.
- Observations by Judge Thomas Laker:
  - Questioned whether IATs applying general principles of international law should be able to set aside regulatory decisions, a power often associated with constitutional courts.
  - Raised structural concerns about balance of power within international organizations when regulatory decisions are subject to judicial invalidation.
  - Practical advantages of direct review include convenience, speed, and automatic application to concerned staff; disadvantages include potential retroactivity issues and impacts on legal certainty.
  - Suggested limiting judicial power to implicit review to avoid disturbing organizational power balances, while recognizing the IMF as an exception in granting direct review.

### IMFAT's distinctive features regarding regulatory-review powers
- IMFAT Statute specific provisions highlighted by Judge Powers:
  - Explicit authority to hear direct challenges to regulatory decisions within a prescribed time period after enactment, and authority to address those issues in the context of individual cases with no time limit in the latter context.
  - Purpose of direct-review authority: allow legality questions to be resolved promptly, before decisions are implemented and applied to staff.
  - Remedies for successful direct review: an annulled regulatory decision cannot be applied prospectively or retroactively; prior reliance becomes null and void without need for class actions or multiple applicants.
  - IMFAT Rules of Procedure require notification to all staff members, and sometimes retirees, when new appeals are submitted on matters that may affect them broadly, permitting interventions.
  - Statutory timeframe for rapid hearings of direct challenges: within three months of enactment.
  - Statutory exclusion: resolutions adopted by the Board of Governors are excluded from the definition of regulatory decisions.

### Remedies, retroactivity, and legal effects
- Under IMFAT practice as explained:
  - If a regulatory decision is declared invalid under direct review, it cannot be applied either prospectively or retroactively; decisions already applied are considered null and void.
  - In individual-case challenges, remedies are more limited than in direct-review proceedings.
- Debate points:
  - Whether declarations of illegality should have retroactive effect and consequences for organizational legal certainty.
  - Who has the final say: judicial bodies versus high-level political organs (e.g., Board of Governors retains formal authority over IMFAT establishment and could abolish it).

### Acquired rights doctrine and cross-tribunal communication
- Concerns raised about the doctrine of acquired rights:
  - Criteria applied by tribunals are often legally vague and outcomes unpredictable.
  - International tribunals have rarely found breaches of acquired rights; doctrine is less effective when reduced to non-retroactivity, as seen in UNAT practice.
  - Divergent interpretations across IATs weaken the doctrine’s protection for staff.
- Recommendations:
  - Improve communication and "cross-fertilization" among IATs to identify best practices and strengthen application of acquired rights.
  - Reference to clearer jurisprudence: Perrin et al. v. Asian Development Bank (No. 3), 2018 — identified as providing a comprehensive list of factors relevant to acquired-rights claims.

### Appeals, appellate structures, and alternatives
- Current institutional reality:
  - Most IATs function as courts of first instance and courts of last resort, exercising de novo fact-finding and legal conclusions.
  - UN two-tier model considered advantageous for fairness and efficiency by some speakers.
- Options discussed by Judge Celia Goldman:
  1. Create an appellate review body above IATs.
     - Challenges: impracticability for small organizations; possibility of ad hoc appellate bodies; conceptual and practical difficulties in creating a global supreme court of international administrative law.
  2. Allow IATs to review their own decisions (self-review).
     - Concerns: legitimacy, impartiality, and tension with finality of judgments.
  3. Create a first-instance body below the IAT.
     - Current practice: internal review mechanisms (e.g., Grievance Committees, Ombudsman, conciliation) exist but are non-binding recommending bodies.
- Evidence and experience cited:
  - UNAT experience data for 2024 referenced in the Report of the Secretary-General on Administration of Justice at the United Nations (A/80/136, dated 11 July 2025).
  - IMFAT precedent cited: Mr. M. D’Aoust v. International Monetary Fund, IMFAT Judgment No. 1996-1 (2 April 1996) — IMFAT does not function as an appellate body limited to review of Grievance Committee decisions; it makes its own findings of fact and law, and a Grievance Committee’s record may be weighed as evidence.

### Extending IAT jurisdiction beyond employment matters
- Historical rationale for employment-limited jurisdiction:
  - Judge Pablo Sandonato de León traced limitation to historical context of the League of Nations and the modality whereby the Administrative Tribunal of the League of Nations’ jurisdiction was restricted to employment disputes due to immunity and legal-personality concerns.
- Question reframed by Jodi T. Glasow:
  - The key inquiry is what problem expansion seeks to solve: absence of reliable redress mechanisms for non-employment matters can weaken organizational accountability and increase reputational risks.
- Alternatives to expanding IAT jurisdiction:
  - Create a different judicial body with broader adjudicative powers rather than enlarging IAT mandates.
  - Use models to manage non-employment matters without expanding IAT jurisdiction: World Bank Group (WBG) model cited as an effective alternative for resolving non-employment issues.
  - Consider a procedure reminiscent of the EU preliminary ruling mechanism: an executive body could request the Administrative Tribunal to interpret Staff Rules or rule on validity/interpretation before adoption of a decision to avoid disputes and foster uniform interpretation.
- Practical challenges identified:
  - Difficulty in identifying suitably qualified judges for a broader tribunal.
  - Ensuring coherent dissemination and harmonization of jurisprudence across institutions.

*Report on the IMF Administrative Tribunal 30th Anniversary Conference — Session 2: Recent Developments in International Administrative Law, November 19, 2025.*

### Section 2

### imfat-30-conf-report-session-2 - Section 2

### Mechanisms addressing non-employment grievances and accountability
- World Bank mechanisms discussed: World Bank Inspection Panel; Dispute Resolution Service; World Bank Group Access to Information Appeals Board; World Bank Data Privacy Review Panel; World Bank Group Sanctions Board.
- Findings:
  - These mechanisms address a wide range of issues and demonstrate adaptability beyond traditional employment disputes.
  - They effectively fill the perceived gap left by IATs’ limited jurisdiction by reinforcing the rule of law, strengthening accountability, and building trust among stakeholders by ensuring affected individuals and communities have meaningful avenues for raising concerns and seeking redress.
- Considerations:
  - Expanding IATs’ jurisdiction could raise questions such as whether the extension could overload the system or whether IATs possess the necessary expertise to address complex commercial or contractual disputes.
  - Evaluating expansion requires carefully balancing competing interests.

### Debate on expanding IAT jurisdiction vs. creating specialized bodies
- Positions:
  - Ms. Glasow: two takeaways — (1) mechanisms effectively fill the gap left by limited IAT jurisdiction; (2) expanding IATs’ jurisdiction could raise additional questions and requires careful balancing.
  - Judge Sandonato de León: IATs’ jurisdiction should not be expanded; instead, create specialized bodies (such as those developed by the WBG) to address non-employment matters.

### ECtHR pathways, standards, and implications for internal remedies
- Two pathways by which human rights issues reach the ECtHR:
  1. A claim before a domestic court against an international organization, typically rejected as inadmissible due to the organization’s immunity from jurisdiction — raising whether the right of access to a (domestic) court has been respected.
  2. A complaint before the ECtHR by an unsuccessful complainant who first filed a complaint within the internal body of an international organization, alleging human rights violations (including by the IAT that delivered the contested decision) for which one or more Council of Europe Member States could be held responsible.
- ECtHR analysis in the first scenario:
  - Immunity of an international organization (or a State) constitutes a limitation on the right of access to a court, but not necessarily a violation if justified by legitimate reasons.
  - The ECtHR examines: i) whether the immunity pursues a legitimate aim; and ii) whether there exists a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.
  - In employment-related cases, the ECtHR assesses whether the applicant had “reasonable alternative means” to effectively protect his or her rights.
- Requirements for an internal dispute-resolution mechanism as a reasonable alternative:
  - ECtHR jurisprudence on the right to an “effective remedy” under Article 13 of the ECHR requires structural and procedural guarantees from the adjudicating body, though not necessarily a public hearing.
  - The alternative need not be judicial in nature; the ECtHR has accepted that an appeal to an IAT or arbitration can constitute a reasonable alternative means.
  - Conclusion: the ECHR indirectly imposes some requirements on judicial and quasi-judicial mechanisms within international organizations.
- Second scenario (complaint directly against an international organization):
  - A complaint alleging violation of human rights lodged directly against an international organization is dismissed as inadmissible because the ECtHR lacks jurisdiction over such entities; admissibility may arise if brought against a Member State.
  - Member States retain Convention liability in respect of their treaty commitments under the ECHR, albeit in a limited form.
  - Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Şirketi v. Ireland (30 June 2005):
    - Establishes a presumption that States parties to the ECHR and members of an international organization comply with their human rights obligations as long as the relevant organization protects fundamental rights in a manner “at least equivalent” to that for which the ECHR provides.
    - The presumption can be rebutted if, in a particular case, the protection of Convention rights is “manifestly deficient.”
    - Member States may be held responsible before the ECtHR if there is a manifest insufficiency; however, the ECtHR has not yet found a violation of human rights attributable to a State in this context.
- Implication: Member States are responsible for ensuring absence of structural lacunae in international organizations.

### Use of human rights by IATs and frequency of invocation
- ATCE practice:
  - Frequently relies on human rights guaranteed by the ECHR, including:
    - the right to respect for private and family life;
    - the right to a fair trial;
    - the right of access to a court;
    - the right to non-discrimination;
    - the right to freedom of expression.
  - Accepts that applicants may invoke human rights and interprets statutory provisions in light of human rights provisions.
  - In exceptional cases has set aside decisions incompatible with human rights principles.
  - Observation: applicants rarely rely on human rights arguments in practice; ATCE has found violations in only a small number of cases.

- Empirical reference:
  - The Law and Practice of International Administrative Tribunals, Garrido Muñozet al., CUP, 2025 (Chapter 9) identified 400 instances in which human rights have been referenced in the jurisprudence of IATs; authors considered this likely an underestimate.

### How human rights arguments are invoked in international administrative litigation
- Three primary modes (as suggested by Judge Bradley):
  - As a shield — to challenge administrative decisions.
    - Two main forms in disciplinary proceedings:
      1. Alleged breach of due process rights (e.g., right to an impartial investigation, right to a hearing, presumption of innocence).
      2. Argument that the conduct at issue is an exercise of the staff member’s fundamental human rights that the organization may not curtail.
    - Example: Case No. 18 of the Appeals Board of the European Centre for Medium-Range Weather Forecasts — staff member relied on his right to freedom of expression and international humanitarian law to defend against a disciplinary sanction.
  - As a sword — to upend decisions denying benefits or entitlements.
    - Examples:
      - Mr. “F” v. International Monetary Fund, IMFAT Judgment No. 2005-1 (18 March 2005).
      - X. vs. ESA (Case No. 141, 30 January 2023) of the European Space Agency Appeals Tribunal.
  - As a magic wand — to obtain rights or legal protections not provided for in staff regulations, or to override/force modification of those rules.
    - Examples:
      - IMFAT in Ms. “M” and Dr. “M” v. International Monetary Fund, IMFAT Judgment No. 2006-6 (29 November 2006).
      - ATCE in the Verneau/Cucchetti Rondanini cases.

### Challenges IATs face in applying human rights arguments
- Statutory and jurisdictional constraints:
  - Some IATs feel constrained by their foundational statutes to give effect to jurisdictional limitations rather than to human rights arguments advanced by applicants.
  - Example: Oglesby v. United Nations Joint Staff Pension Board, Judgment No. 2019-UNAT-914:
    - Appellant sought survivor’s pension benefits for his same-sex husband, relying on equality principles in the Charter of the United Nations and the UDHR.
    - UNAT concluded it did not have “the prerogative to apply the Charter of the United Nations or the UDHR directly, nor the power to strike down internal or subsidiary legislative provisions conflicting with the norms they enact.”
  - D and Sweden v Council of the European Union (Case C-122/99 P, EU:C:2021:304) presented similar challenges in a same-sex marriage benefits context with a similar outcome.
- Practical observation:
  - Human rights arguments guide application of staff regulations, especially where no developed system of employment rights or collective conventions exists.
  - Human rights arguments are invoked to supplement or correct internal rules that have not kept pace with evolving social norms (e.g., recognition of same-sex marriage).
  - Whether IATs are willing or able to apply human rights arguments to meet these challenges remains a separate matter.
- Prognosis:
  - It is reasonable to expect that both litigants and IATs will continue to rely extensively on human rights arguments in the future.

---


_Source: https://www.imf.org/-/media/files/imfat/imfat-conf/imfat-30-conf-report-session-2.pdf_