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Published in:
International Organizations and Alleged Duty of Care Breaches: A Growing Ethical, Reputational and Financial Challenge Read chapter Read first chapter

2018 | OriginalPaper | Chapter

2. Comparative Analysis of International Jurisprudence and Relevant International Practice Related to the Duty of Care Obligations Incumbent on International Organizations Towards Their Mobile Workforce

Author : Andrea de Guttry

Published in: The Duty of Care of International Organizations Towards Their Civilian Personnel

Publisher: T.M.C. Asser Press

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Abstract

In recent years almost all international organizations (both global and regional) have increased their field activities and have requested their staff to perform various activities ranging from the mere attendance of short meetings in capital cities, to visiting remote areas for project monitoring and assessment activities, from training and capacity building activities to humanitarian relief, from delivery of cooperation projects to technical assistance. The evolving complexity of the tasks to be performed, the volatile environments in which these persons must perform their assignment and the changed international security situation which has transformed civilians very often into a privileged target for terrorist and/or criminal activities, have all contributed to a rising number of incidents involving these persons. Many cases of physical or brain injuries have been reported and the victims have often accused the sending organization of not having respected the duty of care principle. During the last few years, due to the growing number of disputes relating to assumed violations of this principle, the national and international jurisprudence has contributed to the definition of its precise contours. Facing this situation, international organizations, both at global and at regional level, are requested to rapidly implement a fully-fledged duty of care policy in order to take responsible action and to properly protect their mobile working force. This chapter examines the relevant international practice and jurisprudence with the aim of identifying the more precise contours of the duty of care incumbent on international organizations towards the mobile working force.

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previous chapter International Organizations and Alleged Duty of Care Breaches: A Growing Ethical, Reputational and Financial Challenge
next chapter The Duty of Care of International Organizations: Issues of Conduct and Responsibility Attribution
Footnotes
1
In 2015, 376 naturally triggered disasters were registered. In that year, natural disasters caused 22,765 deaths and made 110.3 million victims worldwide. The economic damage has been estimated at US$ 70.3 billion. China, the United States, India, the Philippines and Indonesia constitute together the top 5 countries most frequently hit by natural disasters. See more in Guha-Sapir et al. 2016. It has to be mentioned, however, that the statistical data concerning natural and man-made disasters presents significant differences depending on who collected it: for example, according to Swiss Re 2016, p. 11 ‘There were 353 disaster events […], of which 198 were natural catastrophes, the highest ever recorded in one year. There were 155 man-made events. More than 26000 people lost their lives or went missing in the disasters, double the number of deaths in 2014 but well below the yearly average since 1990 of 66000. The biggest loss of life – close to 9000 people – came in an earthquake in Nepal in April. Total economic losses caused by the disasters in 2015 were USD 92 billion’. Finally, according to The Global Humanitarian Assistance Report 2016, p. 11: ‘A number of conflicts continued and intensified in 2015, bringing the number of people displaced by violence and persecution globally to over 65 million and generating severe suffering and humanitarian need. While attention grows on the rising numbers of people reaching Europe, the majority of displaced people are in the Middle East, North of Sahara and South of Sahara regions, and 60% of those forced to flee remain internally displaced’. See more in Chap. 1.
 
2
UNGA Resolution A/Res/70/104 (2015) Safety and security of humanitarian personnel and protection of United Nations personnel.
 
3
Ibid.
 
4
UN Secretary General 2016.
 
5
For a detailed description of the typology of incidents and consequences thereof suffered by the employees (and especially the UN staff) sent abroad, please refer to Haynes 2008, pp. 178 ff. and to Chap. 1.
 
6
The concept that the hosting State has the primary responsibility to protect the members of the international mission deployed in its territory is clearly stated in the Convention on the Safety of United Nations and Associated Personnel (GA Res. 49/59, 9 December 1994). The 2005 Optional Protocol to this Convention further expands the scope of ‘operations’ and as such it makes it applicable to a larger number of staff. Article II, para 1, of the Optional Protocol expands the scope of the Convention to the following operations: ‘(a) Delivering humanitarian, political or development assistance in peacebuilding, or (b) Delivering emergency humanitarian assistance’.
 
7
Hubbart and Brassard-Boudreau 2010.
 
8
See more in Chap. 1. See also, as an example, the joint initiative of The Center for International Peace Operations (ZIF) together with the German Federal Foreign office and the Stabilization Unit of the Foreign and Commonwealth Office, in the framework of which several roundtables took place, from 2013, to discuss issues related to the duty of care for civilian experts in peace operations. In this frame several interesting and relevant recommendations to the recruiting institutions have been discussed and agreed upon. See for example the Voluntary Guidelines on Duty of Care for Seconded Civilian Personnel prepared for the Duty of Care Roundtable process which took place in 2006 in London at the Stabilization Unit (Merkelbach 2017). In this vein one has to mention as well the International Organization for Standardization Standards ‘Risk management-principles and Guidelines’ (ISO 31000:2009) which has been widely adopted by national standard organizations.
 
9
The notion of ‘Duty of Protection and assistance’ is sometimes used by International Administrative Tribunals as an alternative wording for duty of care: this is the case, for example, of the Administrative Tribunal of the Council of Europe which prefers to use the terms duty of protection and assistance: see, for example, Administrative Tribunal of the Council of Europe, Natalia Kravchenko v. Secretary General, 27 January 2011, Appeal No 466/2010, where the Tribunal concluded stating that ‘The Tribunal does not believe that the Secretary General breached any duty of protection and assistance […]’ The preference of this Administrative Tribunal for this wording may be explained considering that Article 40 of the Council of Europe Staff Regulations deals with the question of protection for staff members in their official capacity. It reads as follows:
Article 40—Protection of staff members in their official capacity
1.
Staff members may seek the assistance of the Secretary General to protect their material or non-material interests and those of their family where these interests have been harmed without fault or negligence on their part by actions directed against them by reason of their being a staff member of the Council.
 
2.
Where the Secretary General deems that the conditions set forth in the above paragraph are met, he or she shall decide what form such assistance may take and the amount up to which the Council shall pay the costs incurred in the defence of the interests referred to in para 1, including the costs of any legal action taken. If the Secretary General considers that legal action may harm the interests of the Council, he or she may ask the persons concerned not to take such action; in such cases, if they do not take legal action, the Council shall make good the material damage suffered by the persons concerned, provided that they assign their rights to the Council.
 
On 7 March 2002, the Secretary General of the Council of Europe adopted Instruction No. 44 on the protection of human dignity at the Council of Europe.
 
10
Mobile working force has to be understood in the frame of this book as any person, international or local, recruited or seconded, temporary or permanent staff, working for or on behalf of or in any case under the responsibility of an international organization. The specific content of the duty of care may, however, vary depending on the circumstances and the level of risk faced by the different categories of personnel.
 
11
In June 2012, Steven Dennis, a staff member of the Norwegian Refugee Council working in Kenya was kidnapped and taken hostage for several days until he was freed by a rescue operation conducted by the Kenyan Special Forces. Sometime later, Mr. Dennis submitted a claim against the Norwegian Refugee Council (NRC) in front of the Oslo District Court asking for compensation for economic and moral losses suffered during and after the kidnapping. The Court ruled that the NRSC violated its duty of care and condemned NRC to pay a substantial amount as compensation to Mr. Dennis. See: Oslo District Court, Steven Patrick Dennis vs. Stiftelsen Flyktninghjelpen [the Norwegian Refugee Council]’, 25 November 2015, Case No. 15, 032886TVI OTI R/05. Translation from Norwegian is available at www.​hjort.​no/​documentfile7959​?​pid=​Native-ContentFile-File&​attach=​1. Accessed 20 January 2018. For comments to this case see: Hoppe and Williamson 2016; Merkelbach and Kemp 2016.
 
12
The Free Dictionary by Farlex. http://​legal-dictionary.​thefreedictionar​y.​com/​duty+of+care. Accessed 22 February 2018.
 
13
See more on this the recent study written by Claus 2010.
 
14
Ibid., p. 8.
 
15
On this distinction see more Alessi 2005, pp. 657–692.
 
16
ECtHR, T. P. and K. M. v. The United Kingdom, 10 May 2001, App. No. 28945/95, para 45.
 
17
Ibid.
 
18
See more in Claus and Giordano 2013; Berkowitz and Congiu 2011.
 
19
See more at Chap. 7, Sect. 7.​2.​3.
 
20
See more in the following Chaps. 7–14.
 
21
The Council of Europe, the Organization for Economic Co-operation and Development (OECD), the North Atlantic Treaty Organization (NATO), the European Space Agency (ESA), and the European Centre for Medium-Range Weather Forecasts (ECMWF).
 
22
The Report was Adopted by the International Law Commission at its sixty-third session, in 2011, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/66/10, para 87). See: Draft Articles on the Responsibility of International Organizations (DARIO), with commentaries, in Yearbook of the International Law Commission, 2011, Vol. II.
 
23
ILOAT, L. J.-S. against the European Patent Organisation (EPO), 4 July 2013, Judgment No. 3213, para 2 (see Annex II, Case 23).
 
24
ILOAT, A. P. against the International Telecommunication Union (ITU), & July 2011, Judgment No. 3025, para 2 (see Annex II, Case 11). In a previous Judgment the Tribunal had already stated that ‘it is not in doubt that an international organisation is under an obligation to take proper measures to protect its staff members from physical injury occurring in the course of their employment. The same is true with respect to loss of or damage to their personal property’: ILOAT, F. M. against the Organisation for the Prohibition of Chemical Weapons (OPCW), 2 February 2005, Judgment No. 2403, para 16 (see Annex II, Case 14).
 
25
Clarke 2014, para 6.1.2.1.
 
26
OSCE Staff Regulations and Staff Rules, DOC.SEC/3/03 September 2003 Updated: 17 July 2014. http://​www.​osce.​org/​employment/​108871?​download=​true. Accessed 22 February 2018.
 
27
Tabassi 2015. The OSCE has always taken the duty of care very seriously. It has developed and put in place methods of delivering security information to its officials and programmes in order to mitigate risks. Similarly, plans and procedures have been prepared to manage security incidents should they occur. According to the OSCE Operational Guidelines for Working in a Potentially Hazardous Environment, at the field level, key elements that demonstrate the implementation of duty of care by the OSCE in the operation include: ‘Ensuring all OSCE staff knows and understands their security responsibilities; Developing specific contingency plans for each identified threat; Integrating security and safety into all aspects of the operation; Committing appropriate resources to security and health; Training OSCE staff to respond in a proper manner to incidents and keep records of security training conducted; Ensuring OSCE staff has access to relevant and proper protective equipment; Reporting security or near-security incidents; Taking disciplinary action when security procedures have been violated’. See more OSCE Operational Guidelines for Working in a Potentially Hazardous Environment. http://​www.​osce.​org/​secretariat/​74739?​download=​true. Accessed 12 February 2018.
 
28
The Directive is published in the Official Journal of the European Union (OJEU), L 183, 29.6.198. The Directive was later amended through Regulation (EC) 1882/2003 (OJEU L. 284,31.10.2003), Directive 2007/30/EC (OJEU L 165, 27.6.2007) and Regulation EC 1137/2008 (OJEU L 311, 21.22.2008).
 
29
On the specific obligation of risk assessment contained in the Directive, please see European Agency for Safety and Health at Work 2008.
 
30
This seems to also be the understanding of the jurisprudence of the EU Civil Service Tribunal. In the recent Misir case, the Tribunal affirmed that it is clear from several EU directives, and in particular from Directive 89/391, ‘that the employer is required to ensure the safety and health of its staff in every aspect related to the work’ (EU Civil Service Tribunal, Livio Missir Mamachi di Lusignano v. European Commission, 12 May 2011, Judgment in Case F-50/09, para 126 (see Annex II, Case 7), emphasis added).
 
31
European Union Civil Service Tribunal, Livio Missir Mamachi, para 132.
 
32
ILOAT, In re Grasshoff (Nos. 1 and 2), 24 April 1980, Judgment No. 402, para 1 (see Annex II, Case 19) (emphasis added).
 
33
UNAT, Durand Against The Secretary-General of the United Nations, 19 August 2005, Judgment No. 1204, para XVII (see Annex II, Case 36).
 
34
See more on this issue recently Yaraslau 2015, pp. 4 ff.
 
35
Mathiason 2013, p. 874 affirms that ‘given state practice of many ratifying parties and non-ratifying parties, there is an emerging norm under customary international law that all duty-of-care obligations extend to international business and assignees’.
 
36
Kingsbury and Stewart 2012, p. 71.
 
37
IMF Administrative Tribunal, ‘G’, Applicant and ‘H’, Intervenor v. International Monetary Fund, Respondent, 18 December 2002, Judgment No. 2002-3, para 36.
 
38
UNAT, Mwangi against the Secretary-General of the United Nations, 30 September 2003, Judgment No. 1125, para IV (see Annex II, case 38).
 
39
ILOAT, P.-M. (No. 2), v.WHO, 6 July 2016 Judgment No. 3688, para 27 (see Annex II, case 24) (emphasis added).
 
40
ECtHR, Osman v. The United Kingdom, 28 October 1998, App. No. 23452/94.
 
41
ECtHR, Budayeva and Others v. Russia, 20 March 2008 Apps. Nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02.
 
42
ECtHR, Öneryildiz v. Turkey, 30 November 2004, App. No. 48939/99.
 
43
ECtHR, Budayeva and Others, paras 128–129. See more in Nicoletti 2012.
 
44
The Supreme Court in UK, for example, has ruled that families of soldiers killed in Iraq can make damage claims under human rights legislation and sue for negligence. UK Supreme Court, Smith and others (FC) (Appellants) v. The Ministry of Defence (Respondent) Ellis (FC) (Respondent) v The Ministry of Defence (Appellant) Allbutt and others (FC) (Respondents) v The Ministry of Defence (Appellant) before Lord Hope, Deputy President Lord Walker Lady Hale Lord Mance Lord Kerr Lord Wilson Lord Carnwath, 19 June 2013, Judgment No 41.
 
45
ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, I.C.J. Rep. 2004, p. 136.
 
46
ICJ, Legal Consequences, para 109. According to the ICJ there is a constant practice of the Human Rights Committee consistent with this. ‘Thus, the Committee has found the Covenant applicable where the State exercises its jurisdiction on foreign territory. It has ruled on the legality of acts by Uruguay in cases of arrests carried out by Uruguayan agents in Brazil or Argentina (case No. 52/79, Lopez Burgos v. Uruguay; case No. 56/79, Lilian Celiherti de Cusariego v. Uruguay). It decided to the same effect in the case of the confiscation of a passport by a Uruguayan consulate in Germany (case No. 106181, Montero v. Uruguay)’ (ibid., para 110).
 
47
ECtHR, Ilaşcu and Others v. Moldova and Russia, 8 July 2003, App. No. 48787/99, para 311.
 
48
ECtHR (GC), Al-Skeini and Other v. the United Kingdom, 7 July 2011, App. No. 55721/07, para 132.
 
49
See more on this Roxstro et al. 2005, p. 55.
 
50
See ECtHR, Drozd and Janousek v. France and Spain, 26 June 1992, App. No. 12747/87; Gentilhomme and Others v. France, 14 May 2002, Apps. Nos. 48205/99, 48207/99 and 48209/.
 
51
ECtHR (GC), Al-Skeini and Others, para 75.
 
52
The ILOAT stated, for example, that the 1950 European Convention is not applicable to international organizations: however, the Tribunal did not explain the legal basis of this statement. ILOAT, A. G. S. against the United Nations Industrial Development Organization (UNIDO), 11 July 2007, Judgment No. 2662, para 12.
 
53
In the Missir case (para 126) the EU Civil Service Tribunal clearly stated that EU staff can rely ‘on a rights to working conditions that respect their health, safety and dignity as recalled in Article 31(1) of the Charter of Fundamental Rights of the European Union’ (EU Civil Service Tribunal, Livio Missir Mamachi, para 126).
 
54
Staff Rules Staff Regulations of the United Nations and provisional Staff Rules, ST/SGB/2009/7, 21 October 2009. http://​sas.​undp.​org/​documents/​ST_​SGB_​2009_​7.​pdf. Accessed 20 February 2018.
 
55
Ibid.
 
56
Ibid., p. 15.
 
57
ICJ, Reparation for Injuries Suffered in the Service of the United Nations, p. 575.
 
58
Ibid., p. 183.
 
59
See more in Reinisch and Knahr 2008, pp. 447–483.
 
60
AsDBAT, C. A. W. Applicant, African Development Bank, Respondent, 11 May 2006, Judgment.
 
61
See for example the UNGA Resolution 70/104, para 9 of the preamble.
 
62
See more in Bruderlein and Gassman 2006, p. 63.
 
63
See among others UNAT, Haile v. Secretary General of the United Nations, 30 September 2004, Judgment No 1194, para 7; UNDT, Edwards v. Secretary General of the United Nations, 26 January 2011, Judgment No. 2011/022 (see Annex II, Case 39), and UNDT, Mc Kay v. Secretary General of the United Nations, 9 February 2012, Judgment No. 2012/018 (see Annex II, Case 42). The OECD Administrative Tribunal expressed similar position: in a Judgment of 1999, the Tribunal stated to be ‘well aware of the Organisation’s obligations towards its staff in matters of health and safety at work’ (OECD Administrative Tribunal, F. v. Secretary General, 21 June 1999, Case No. 35).
 
64
ILOAT, In re Grasshoff (Nos. 1 and 2), 24 April 1980, Judgment No. 402, para 1 (see Annex II, Case 19), emphasis added.
 
65
ILOAT, B. F. against the World Intellectual Property Organization (WIPO), 10 May 2007, Judgment No. 2636, para 28.
 
66
EU Civil Service Tribunal, Livio Missir Mamachi, para 126 (emphasis added).
 
67
Ibid.
 
68
Ibid., para 130.
 
69
ADB Administrative Tribunal, Cynthia M. Bares et al. v. ADB, 31 May 1995, Decision No. 5, para 20 (see Annex II, Case 2).
 
70
Ibid., para 21.
 
71
Ibid., para 23.
 
72
Administrative Tribunal of the African Development Bank, Clotilde Anne Isabelle Bai, Applicant African Development Bank, Respondent, 29 June 2010, Judgment No. 72 (see Annex II, Case 1) (emphasis added).
 
73
See more about these issues in Sari 2008 and Chap. 4 by Gasbarri.
 
74
UN Secretary General 2010, Annex 1, para 2.
 
75
Oslo District Court, Steven Patrick Dennis.
 
77
The MOOS is the primary mechanism for managing and mitigating security risks to UN personnel, property and assets of the UN. The MOSS encompasses a range of measures designed to reduce the risks to an acceptable and manageable level. These measures include, inter alia, telecommunications, documentation, coordination, residences, equipment, vehicles and training.
 
78
Administrative Tribunal of the African Development Bank, Clotilde Anne Isabelle Bai (emphasis added).
 
79
AsDBAT, Cynthia M. Bares et al., para 20.
 
80
Ibid., para 21.
 
81
Ibid., para 23.
 
82
Ibid., para 26.
 
83
https://​www.​eda.​admin.​ch/​eda/​en/​home/​foreign-policy/​international-law/​international-humanitarian-law/​private-military-security-companies/​montreux-document.​html. Accessed 25 February 2018. The total number of adhering states is 54, plus the EU (2012), the Organization for Security and Co-operation in Europe (2013) and NATO (2013).
 
85
UNAT, Mwangi Against the Secretary-General of the United Nations, 30 September 2003, Judgment No. 1125 (see Annex II, Case 38).
 
86
See for example the decision of the UNGA to create, in 2004, the UN Department on Safety and Security to entrust one entity with the authority and accountability for the safety and the security of the UN, its staff and its assets and operations. In 2015, after a long internal discussion and on recommendation of the Secretary-General’s Policy Committee, the UN Secretariat Safety and Security Project (UNSSSIP) was launched with the goal to integrate all Secretariat safety and security staff under the authority of UNDSS. It is worthwhile mentioning that in the UN it is the Inter-Agency Security Management Network (IASMN) which brings together representatives of all partners in the UN security management network including UN agencies, funds and programmes to coordinate security practices and policies across the UN system.
 
87
See more on this ethical and moral challenges facing the UN, Haynes 2008, pp. 179 ff.
 
88
One of the most comprehensive studies on the new attitude of the UN in critical risk areas was carried out in an independent study commissioned by OCHA: Egeland et al. (2011). See more on this principle Sheran 2015, pp. 101 ff.
 
89
Discours de la Directrice générale de l’UNESCO, Irina Bokova, à l’occasion de la 29e session du Comité de haut niveau sur la gestion (HCLM) des Nations Unies, UNESCO, le 19 mars 2015, available at http://​unesdoc.​unesco.​org/​images/​0023/​002323/​232347M.​pdf. Accessed 31 January 2018.
 
90
The UNGA has indicated in a recent Resolution that it must be acknowledged that a more coherent and effective safety and security policy also implies the need for additional funding. In the Resolution the UNGA underlines ‘[…] the urgent need to allocate adequate and predictable resources to the safety and security of United Nations and associated personnel, through regular and extra budgetary resources, including through the consolidated appeals process, and encourages all States to contribute to the Trust Fund for Security of Staff Members of the United Nations System, inter alia, with a view to reinforcing the efforts of the Department of Safety and Security to meet its mandate and responsibilities to enable the safe delivery of programmes’ (UNGA Resolution 70/104, para 18).
 
91
UN Secretary General 2016.
 
92
UN Secretary General 2016, paras 35 ff.
 
93
Ibid., paras 54 ff.
 
94
Oslo District Court, Steven Patrick Dennis.
 
95
Ibid., p. 28.
 
96
UNAT, Case No 1545 against the Secretary-General of the United Nations, 30 September 2009, Judgment No. 1472, para XXIII (see Annex II, Case 34) (emphasis added).
 
97
UNAT, Vitkovski and Rylkov against the Secretary-General of the United Nations, 30 June 1992, Judgment No. 559, para XVII.
 
98
UNAT, Case 1358 against the Secretary-General of the United Nations, 31 January 2006, Judgment No. 1275, para XIII (see Annex II, Case 33).
 
99
UNAT, Case No 1545, para XXIII.
 
100
ILOAT, In Re Wahgorn, 12 May 1957, Judgment No. 28: ‘Considering that the complainant wrongly alleges that English law is applicable as his national law, whereas the Tribunal is bound exclusively by the internal law of the Organisation and in particular by the provisions of the T.A.B. administrative manual as well as by general principles of law’.
 
101
See more in Chap. 14.
 
102
According to the EU Civil Service Tribunal: ‘Among the right and duties arising from the employment relationship between an institution and its employees is the duty of the employer to provide for its employees various services of a social nature […]’ (EU Civil Service Tribunal, Mario Berti v. Commission of the European Communities, 7 October 1982, Case 131/81 (see Annex II, Case 9)).
 
103
ILOAT, R. A.-O. against the United Nations Educational, Scientific and Cultural Organization (UNESCO), 16 July 2003, Judgment No. 229 (see Annex II, Case 25). In another case the ILOAT had stated that ‘every transfer must respect the general principles governing decisions affecting an official’s status. In order to respect the official’s dignity, it is not enough for the person concerned to retain her or his grade and remuneration; care must also be taken to ensure that the new post provides her or him with work of the same level as that which she or he performed in her or his previous post and matching her or his qualification’: ILOAT, J. L. Against the International Labour Organization (ILO), 8 July 2009, Judgment No. 2856 (see Annex II, Case 20).
 
104
ILOAT, Stanley Robert Wakley v. WHO, 6 October 1061, Judgment No. 53.
 
105
‘It would be in breach of an official’s rights as such and a denial of his entitlements under the procedure for personal promotion to discount any of his service, including periods he may have spent on secondment to technical assistance projects’: ILOAT, Jorge Giusti Bertolotti against the International Labour Organisation (ILO), 10 December 1987, Judgment No. 870.
 
106
Although it is a decision of an Ombudsman and not of a Tribunal, it seems worth recalling the European Ombudsman, Decision on own-initiative inquiry OI/2/2015/MG concerning the handling of staff reductions in the EU Rule of Law Mission in Kosovo (EULEX), 23 February 2016, in which the Ombudsman, after having reaffirmed that ‘EULEX had a wide discretion in deciding upon the criteria for the posts that were to be filled and in determining, in the light of those criteria and in the interests of the service, the rules and conditions under which a selection procedure is organized’, stated that since the choice of selection criteria and what weight to give to each of them falls thus under the discretionary power of EULEX, the Ombudsman’s role is ‘to assess whether these choices were manifestly unfair or erroneous’.
 
107
UK Stabilisation Unit 2004, p. 18.
 
108
UN (2002) Status, basic rights and duties of United Nations staff members, T/SGB/2002/13.
 
109
Ibid., p. 16 (emphasis added).
 
110
UNGA Resolution A/RES/71/129 (2017) Safety and security of humanitarian personnel and protection of United Nations personnel, para 24.
 
111
ILOAT, L. J.-S, para 7.
 
112
See more at Chap. 14, Sect. 14.​4.​3.
 
113
Ibid.
 
114
See note 75.
 
115
Chapter 4, Section M, para 20 of the above-mentioned Manual.
 
116
‘The principle of good faith and the concomitant duty of care demand that international organisations treat their staff with due consideration in order to avoid causing them undue injury; an employer must consequently inform employees in advance of any action that may imperil their rights or harm their rightful interests’, ILOAT, In re Giordimaina v. the Food and Agriculture Organization of the United Nations (FAO), 30 January 2002, Judgment No. 2116 (see Annex II, Case 18).
 
117
ILOAT, H. P. W. against the International Telecommunication Union (ITU), 9 July 2014, Judgment No. 3353, para 26 (see Annex II, Case 17).
 
118
ILOAT, L. T. against the International Labour Organization (ILO), 6 July 2011, Judgment No. 3024 (emphasis added). See as well the conclusions of the OECD Administrative Tribunal, Miss C. v. Secretary General, 28 May 2009, Judgment in Case No. 65.
 
119
ILOAT, G. V. against the International Fund for Agricultural Development (IFAD), 11 February 2015, Judgment No. 3409, para 10 (see Annex II, Case 16).
 
120
Ibid., para 11.
 
121
NATO Administrative Tribunal, Appellants v. NATO International Staff, Respondent, 11 November 2013, Judgment Cases Nos. 889 and 890 PL (Case No. 889) and AL (Case No. 890) (see Annex II, Case 30).
 
122
IMF Administrative Tribunal, ‘G’, Applicant and ‘H’, Intervenor, para 36.
 
123
AsDBAT, Carl Gene Lindsey v. Asian Development Bank, 18 December 1992, Decision No. 1, para 12 (see Annex II, Case 3).
 
124
Appeal Board of the CoE Administrative Tribunal, Bohner v. Secretary General, 1 December 1988, Appeal No. 151/1988.
 
125
According to the ILOAT: ‘It is true that an organisation should investigate allegations of misconduct in a timely manner both in the interests of the person being investigated and the organisation. These interests include, among other things, safeguarding the reputations of both parties and ensuring that evidence is not lost’: ILOAT, R. D.A. G. against the Pan American Health Organization, 4 February 2014, Judgment No. 3295 (see Annex II, Case 26).
 
126
IMF Administrative Tribunal, ‘GG’ (No. 2) v. International Monetary Fund, 29 December 2015, Judgment No. 2015-3, para 441 (see Annex II, Case 29), citing the previous case World Bank Administrative Tribunal, Louis de Merode et al. v. The World Bank, 29 December 1981, Decision No. 1, para 21 (see Annex II, Case 44).
 
127
ILOAT, Mr. B. F. against the World Intellectual Property Organization (WIPO), 10 May 2007, Judgment No. 2636, para 28. In the following Judgment 2910 the Tribunal restated very clearly in a case against the IAEA that ‘The Agency’s failure to do so constitutes not only a breach of its own policy and rules but, as well, a breach of its duty of care towards the complainant. ILOAT, Mrs. A. S. against the International Atomic Energy Agency (IAEA), 8 July 2010, Judgment No. 2910.
 
128
ILOAT, B. (No. 2) v. EPO, 6 July 2016, Judgment No. 369, para 18. In the Case of Mr. A. K. v. UNESCO, ILOAT confirmed that ‘In view of its duty of care towards its staff, an organisation must spare them the material and psychological drawbacks of endless procedures […]: while an organisation cannot avoid an occasional overload of work, it must take appropriate measures to avert the drawbacks of a massive and foreseeable increase in legal disputes’ (ILOAT, Mr. A. K. against the United Nations Educational, Scientific and Cultural Organization (UNESCO), 14 July 2004, Judgment No. 2345).
 
129
ILOAT, Mrs. B. K.-M. against the World Health Organization (WHO), 2 February 2011, Judgment No. 2973.
 
130
ILOAT, Ms. G. C. against the International Atomic Energy Agency.
 
131
ILOAT, Mr. L. J. C. against the Food and Agriculture Organization of the United Nations (FAO), 3 February 2010, Judgment No. 2904, para 15.
 
132
See ILOAT, Mrs. B. J. R. against the United Nations Industrial Development Organization (UNIDO), 3 February 2003, Judgment No. 2197, para 33 (see Annex II, Case 12).
 
133
See for example ILOAT, Mr. A. F. against the International Atomic Energy Agency (IAEA), 1 February 2006, Judgment No. 2522.
 
134
ILOAT, Mr. E. A. against the United Nations Industrial Development Organization (UNIDO), 3 February 2010, Judgment No. 2902.
 
135
ILOAT, Mrs. C. E. S. against the World Health Organization (WHO), 9 July 2014, Judgment No. 2642, para 6 (see Annex II, Case 13). See as well for similar conclusions ILOAT, Mrs. Antonella Giordimaina, para 11; ILOAT, Mrs. S. H. against the United Nations Educational, Scientific and Cultural Organization (UNESCO), 8 July 2009, Judgment No. 2851, para 10 (see Annex II, Case 27). ILOAT, Mr. L. J. C., paras 14 and 15, and ILOAT, Mr. J. A. C.-Z. against the World Health Organization (WHO), 6 February 2013, Judgment No. 3168, para 13.
 
136
ILOAT, Mr. J. A. C.-Z., para 13.
 
137
ILOAT, In re Giordimaina, para 12: ‘In this case more than two-and-a-half years elapsed between the complainant’s appeal to the Appeals Committee and the Director-General’s decision to reject it. Circumstances and the nature of the case demanded an expeditious appeal procedure. Since, in the internal appeal, the complainant was challenging a decision not to keep her on and claiming reinstatement, she needed to know quickly what the outcome of the appeal would be. Indeed, her future to some extent depended on it. Though it raised some delicate issues, the case was not particularly complex. The conclusion is that the appeal was not sufficiently expeditious’.
 
138
See for example ILOAT, J. A. C.-Z., para 13.
 
139
ILOAT, In re Giordimaina, para 12.
 
140
ILOAT, Mr. H. P. W., para 26.
 
141
Ibid.
 
142
ILOAT, J. T. B. v. the World Health Organization (WHO), 6 July 2016, Judgment No. 3689, para 5 (see Annex II, Case 21). The Tribunal then added that in the present case, the complainant was instructed to collect blackflies, which are vectors of onchocerciasis, without being issued with adequate protective clothing which would have enabled him to avoid any direct contact with these insects. On the contrary, he was obliged to wait until they settled on him before catching them, a situation which created a high risk of infection. WHO thus committed a serious breach of its duty to protect the complainant.
 
143
UNAT, Hjelmqvist v. the Secretary General of the United Nations, 31 July 1998, Judgment No. 872 (see Annex II, Case 37).
 
144
UNDT, Mc Kay, para 43.
 
145
UNGA adopted on 10 December 2015, Safety and security of humanitarian personnel and protection of United Nations personnel, A/RES/70/104, para 27.
 
146
The results of the investigations carried out by CPCC have not been published. The author has received informally a copy of the outcome of the investigation.
 
147
See more on this Frid 1995, p. 49; Amerasinghe 2004, p. 369 (who states that ‘the nature, functions and requirements of an international organization normally make it necessary that its agents should be able to look to it (and not to any state, even their national state) for the protection and the preferment of personal claims arising out of any wrong or injury made to them in the course of carrying out their duties on behalf of the organization’) and Amerasinghe 2005, p. 485.
 
148
Szezekalla 1999; Porzio 2008; Lindström 2009; and Battini 2011.
 
149
ILOAT, In re Jurado, 11 September 1964, Judgment No. 70.
 
150
ICJ, Reparation for Injuries Suffered in the Service of the United Nations, 11 April 1949, Advisory Opinion, Rep. 1949, p. 174.
 
151
ILOAT, In re Jurado, para 3 (emphasis added).
 
152
UNGA Resolution 70/104, para 18.
 
153
OSCE, Staff Regulations and Staff Rules, DOC.SEC/3/03 September 2003 Updated: 17 July 2014, http://​www.​osce.​org/​employment/​108871?​download=​true. Accessed 10 February 2017. See more in Chap. 10, Sect. 10.​5.​7.
 
154
See more at Chap. 9, Sect. 9.​4.​7.
 
155
ILOAT, A. S. F. v. the European Patent Organization (EPO), 5 November 2004, Judgment No. 2417, para 25 (emphasis added).
 
156
EU Civil Service Tribunal, Livio Missir Mamachi, para 186.
 
157
Panel on UN Peace-Keeping Operations, Report, 2000, A/55/305 - S/2000/809.
 
158
UNGA Resolution 71/129, para 24.
 
159
The United Nations has in place a system of online and face to face security training that is mandatory for all staff (the self-administered learning programme entitled ‘Basic security in the field: staff safety, health and welfare’—see ST /SGB/2003/19, Basic security in the field: staff safety, health and welfare (Interactive online learning), 9 December 2003, para 2.2.); for staff going to non-headquarters duty stations and missions (the online self-administered learning programme Advanced Security in the Field); and for staff operating in areas classified by UNDSS as high-risk environments (Safe and Secure Approaches in Field Environments (SSAFE) an instructor-led in-person course designed to achieve a global standard for UN staff operating in high-risk environments. See Security Policy Manual, Framework of Accountability for the United Nations Security Management System, Chapter II, section Q.28, pp. 6, 9.
 
160
See the Policy of the European Union on the security of personnel deployed outside the EU in an operational capacity under Title V of the Treaty on European Union contained in Council of the European Union, Brussels, 29 May 2006, doc. 9490/06, in particular paras 18, 34, 41 which include ‘adequate training of personnel in field security’ among the staff protective measure to be adopted both by seconding States and sending organisation (namely the EU). The Commission and EEAS request for all deployed staff the completion of an online security awareness course (before e-Hest now BASE and SAFE). Several Calls for Contributions also clearly state ‘Seconding authorities remain responsible for ensuring that their staff are in possession of a valid Hostile Environment Awareness Training suitable for Afghanistan and meeting their own National Standards.’ See for all EU, Team of the EUSR to Afghanistan, 2nd Call for Contributions for the European Union Special Representative Team in Afghanistan, https://​eeas.​europa.​eu/​sites/​eeas/​files/​annex_​1_​jds_​eusr_​afghanistan.​pdf. Accessed on 8 February 2018. Moreover, the Commission and EEAS have commissioned the organisation of Hostile Environment Awareness Training courses for staff (to be) deployed in delegations.
 
161
See: Press Release (2011) 3130th Council meeting, Foreign Affairs, Brussels, 30 November and 1 December 2011. http://​www.​consilium.​europa.​eu/​ueDocs/​cms_​Data/​docs/​pressData/​EN/​foraff/​126518.​pdf. Accessed 6 February 2018.
 
162
See for example the recent documents CivCom advice on the Report from the training workshop on ‘Future training needs for personnel in civilian crisis management operations: Mission Specific Pre-Mission Training (2017) 16849/06; Enhancing civilian crisis management pre-deployment training: ‘generic or pre-deployment training’ (2017) 15567/2/09. The new draft EU Policy on Training for CSDP currently being examined by PSC and expected to be adopted by the first quarter of 2017, recognises that ‘training is a key component of any systematic approach to managing the responsibility of an organization to care for personnel deployed abroad. In the EU context the responsibility to ensure adequate training, corresponding to the needs of a given mission or operation, rests with the contributing authorities, but also to the chain of command’ (ibid., para 24).
 
163
UN 2002.
 
164
Ibid., p. 15.
 
165
See more in the ‘Standards of Conduct for the International Civil Service’ updated by the International Civil Service Commission in consultation with participating organizations and the representatives of the staff. Upon their completion in 2001, they were welcomed by the UNGA in: UNGA Resolution A/RES/56/244 (2002) United Nations common system: report of the International Civil Service Commission.
 
166
ILOAT, Mrs. L. J.-S.
 
167
UK Stabilisation Unit 2004.
 
168
Chap. 9, para 1.
 
169
EU Civil Service Tribunal, Livio Missir Mamachi, para 186.
 
170
Ibid.
 
171
Note 23. See more in Chap. 18.
 
172
Article 10, para 1 of the UNAT Statute.
 
173
Reinisch and Knahr 2008, p. 476.
 
174
Administration of Justice: Harmonization of the Statutes of the United Nations Administrative Tribunal and the International Labour Organization Administrative Tribunal, Report of the Joint Inspection Unit, Doc. JIU/REP/2004/3, Geneva 2004, 2.
 
175
ILOAT, In re Grasshof, para 6.
 
176
Panel of eminent Persons on European Security as a Common Project 2015 (emphasis added). See more in Zellner 2016, p. 53.
 
177
European Union Civil Service Tribunal, Livio Missir Mamachi.
 
178
General Court (Appeal Chamber), Livio Missir Mamachi di Lusignano v. European Commission, 7 December 2017, Case T-401/11 P-RENV-RX (see Annex II, Case 10), para 198.
 
179
ILOAT, H. P. W., para 35.
 
180
Ibid.
 
181
ILOAT, P.-M. (No. 2), para 32.
 
182
ILOAT, Mr. L. J. C., para 15.
 
183
UNAT, Durand, para XXXIII.
 
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Metadata
Title
Comparative Analysis of International Jurisprudence and Relevant International Practice Related to the Duty of Care Obligations Incumbent on International Organizations Towards Their Mobile Workforce
Author
Andrea de Guttry
Copyright Year
2018
Publisher
T.M.C. Asser Press
Book
The Duty of Care of International Organizations Towards Their Civilian Personnel

Print ISBN: 978-94-6265-257-6

Electronic ISBN: 978-94-6265-258-3

Copyright Year: 2018

DOI
https://doi.org/10.1007/978-94-6265-258-3_2