The Treatment of International Law in the Jurisprudence of the World Bank Administrative Tribunal

in The Law & Practice of International Courts and Tribunals
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The objective of this work is to assess how international law has been treated in the jurisprudence of the World Bank Administrative Tribunal (wbat). In so doing, the work will not deliver a thorough synopsis of the Tribunal’s jurisprudence, but rather a tour d’horizon of its most significant decisions related to the accomplishment of the above-named task. The notion of treatment indicates here the tools through which wbat judges have challenged international law. wbat judges have utilized both negative and positive references when considering international law; negative treatment has been utilized to differentiate wbat from other judicial bodies, while positive treatment has been employed to support the reasoning of the wbat. In this framework, the approach of the wbat will be examined in order to establish if it is prone to accepting international rules. The level of reception of external sources is considered to be an indicator of the wbat’s universalism or provincialism. Therefore, the work tries to demonstrate if the wbat is incorporated into the system of international courts and if the Tribunal might be alleged as an anti-fragmentation or a harmonizing body at the international level. Like the other international jurisdictions, the wbat is a tribunal with a restricted subject matter jurisdiction that does not have anti-fragmentation as a component of its mandate. Nevertheless, as an evolving court, the wbat should be fitted to the present fragmented normative scenario. Moreover, the wbat is a prominent tribunal; its jurisprudence might have an influence on the jurisprudence of numerous international jurisdictions. As such, it might theoretically diminish fragmentation at the international level.

The Treatment of International Law in the Jurisprudence of the World Bank Administrative Tribunal

in The Law & Practice of International Courts and Tribunals

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References

4

See Suzanne Bastid“Have the United Nations Administrative Tribunals Contributed to the Development of International Law?” in Transnational Law in a Changing Society(New York: Columbia University Press 1972) p. 298 ff.; Suzanne Bastid “Les tribunaux administratifs internationaux et leur jurisprudence” (1957) 92 Recueil des cours pp. 343–517. See also Aamir Ali “The International Civil Service: The Idea and the Reality in International Administration” in Chris de Cooker (ed.) Law and Management Practices in International Organisations (Dordrecht: Brill 1990) (stressing that the employees of ios such as the United Nations traditionally have been considered to be international civil servants that is public servants to the international community with an obligation to respect and promote the values of international law).

5

See Hersch LauterpachtThe Development of International Law by the International Court (London: Stevens1958).

6

See M.B. AkehurstThe Law Governing Employment in International Organisations (Cambridge: Cambridge University Press1967) p. 263; Renuka Dhinakaran “Law of the International Civil Service: A Venture into Legal Theory” (2011) 8 International Organizations Law Review p. 157 ff.; K. Carlston “International Administrative Law: A Venture in Legal Theory” (1959) 8 Journal of Public Law p. 329 ff.

29

See Joanna Gomulasupra note 18 p. 349 ff. See also Byung C. Koh “The United Nations Administrative Tribunal” (1967) 43 International Affairs p. 24 (stressing that: “[t]he rationale for administrative tribunals in general is to be found finally in the operational needs of a large-scale administrative organization”); Jean-Didier Sicault “La procédure devant les jurisdictions administratives internationales – les cas du Tribunal administratif de la Banque interaméricaine de développement” (2012) 116 Revue générale de droit international public p. 605 ff.

45

See Chittharanjan F. AmerasingheThe Law of the International Civil Service (As Applied by International Administrative Tribunals) (Cambridge: Cambridge University Press, Vol. 11994) p. 107 ff. (stressing however that international conventions could not be identified as such as a source of the law that governs employment relations in international organizations). See also Peter C. Hansen “The World Bank Administrative Tribunal’s External Sources of Law: A Retrospective of the Tribunal’s First Quarter-Century (1981–2005)” (2007) 6 The Law & Practice of International Courts and Tribunals p. 7 (stressing that the Tribunal’s consideration of claims based on international conventions has generally resulted in uniformly negative conclusions.)

53

References are found in Michael AkehurstThe Law Governing Employment in International Organizations (Cambridge: Cambridge University Press1967) p. 151 ff.; Georges Langrod The International Civil Service (Leyden: Sijthoff 1963) p. 30 ff. See also Francisco Orrego Vicuña “Legitimate Expectation in the Case Law of the World Bank Administrative Tribunal” in Angela Del Vecchio (ed.) International courts and tribunals between globalisation and localism (Gravenhage: Eleven International Publishing 2013) p. 92 (stressing that recent decisions of most international administrative tribunals confirm this understanding of the limits of discretionary power and the existence of a limited power of judicial review).

57

See recently Eirik BjorgeThe Evolutionary Interpretation of Treaties (Oxford: Oxford University Press2014).

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