EMBASSYOFTHEPLURINATIONALSTATEOFBOLIVIA
The Hague-The Netherlands
INTERNATIONAL COURT OF JUSTICE
STATEMENT OF
THE PLURINATIONAL STATE OF BOLIVIA
CONCERNING
THE REQUESTOF AN ADVISORY OPINION No.135929 DATED 3 MAY 2010
FROM THE INTERNATIONAL COURT OF JUSTICE,
ON THE JUDGMENT No. 2867 OF
THE ADMINISTRATIVE TRIBUNAL OF THE
INTERNATIONAL LABOUR ORGANIZATION
UPON A COMPLAINT FILEDAGAINST
THE INTERNATIONAL FUND FOR AGRICULTURAL DEVELOPMENT
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E-mail: [email protected] EMBASSYOFTHEPLURINATIONALSTATEOFBOLIVIA
The Hague -The Netherlands
WRITTEN STATEMENT OF THE PLURINATIONAL STATE OF BOLIVIA
CONCERNINGTHE REQUESTOF AN ADVISORY OPINION No. 135929 DATED 3
MAY 2010 FROM THE INTERNATIONAL COURT OF JUSTICE, ON THE
JUDGMENT No. 2867 OF THE ADMINISTRATIVE TRIBUNAL OF THE
INTERNATIONAL LABOUR ORGANIZATION UPON A COMPLAINT FILED
AGAINST THE INTERNATIONAL FUND FORAGRICULTURALDEVELOPMENT
ln reference to article 66, paragraph 4 of the Statute of the
International Court of Justice, the Government of the Plurinational
State of Bolivia, has the honor to forward the following criteria, with
reference to the Request for Advisory Opinion No. 135929, 3 of May
2010, on the judgment No. 2867 of the Administrative Tribunal of the
International Labour Organization upon a complaint filed against the
International Fund for Agricultural Development.
The above mentioned judgment No. 2867, established in
general terms that the Global Mechanism {GM) dependent on the
United Nations Convention to Combat Desertification {UNCCD)and
the International Fund for Agricultural Development {IFAD), even as
separate legal entities, would share administrative competences,
aspect which presentsa conflict on the raies that bath entities
perform. According to the Memorandum of Understanding dated 16
November 2010 held between IFADand the GM, bath entities would
have administrative units that would work together, including the
budget of the GM, in part allocated to serve administrative services
to IFAD.ln ether words there would be a close collaboration between
the two international organizations. The Memorandum of
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Understanding did not clearly defined which would be the labor and
administrative parameters of each international agency. lt could be
also deduced from the Memorandum of Understanding that the
Global Mechanism acknowledges the administrative dependence and
custody of the IFAD.
ln this context, it is mentioned that on July 8, 2008, Ms.
A.T.S.G.,former staff member of the GM, filed a lawsuit against the
IFAD at the Administrative Tribunal of the International Labour
Organization (ILOAT).ILOATjudgment No. 2867, issued on 3 February
2010, ruled in favour of Mrs. A.T.S.G. and ordered IFAD to pay an
indemnity to IFAD of $US 450,000 (four hundred fifty thousand
dollars 00/100). Likewise, that judgment indicates that the ILOAT,
decided that [...] "the members of the staff of the mechanism are
members of the staff of the Fund and that the decision not ta renew
the contract of Ms. A.T.S.G. was made without due authorization
from the Fund." lt should be clearly established that the GM in
relation with IFAD, would form part of a modality of partnership
called a "host agency", i.e. a form of association, by which an
organism by need of infrastructure, funding or institutional support
houses another. However, administrative competencies weren't
clearly identified in bath International organizations; the hosted
Agency (GM) as weil as the hasts (IFAD); including separate rules for
bath international agencies. ln addition, it should have been known
exactly if the GM was subject to the jurisdiction of the ILOAT, or if
that tribunal is fitting up bath international agencies as if they were
one. This could constitute an element to be considered.
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If there were differentiated competences between bath
agencies, even if there still exist the modality of "host", it could be
even established the exercise of improper functions, if the members
of the Board from bath international organizations exercised
interchangeably functions m one or another organization.
Nevertheless, it must be reiterated that with regard to the
competences of bath agencies, they were not be adequately defined.
That is why it can be established that there would be a subsumption
of competences, since the functions of the staff of bath institutions
are not clearly identified with regard to dependency between the
two international organizations, situation that shows the lack or
inaccuracy in the division of administrative competences between
bath international organizations, not having separate regulations.
However, the Memorandum of Understanding, which sets the status
of "host," would not determine the union of these entities; on the
contrary, it would be only to support the functions of the Global
Mechanism by the IFAD.
ln this regard, it could be deduced that the ILOAT,could have
noted difficulties in identifying the legal character of the demanded
international body. From the endpoints referrals it could be
established that the reason for the compromise of the parties was
generated by the lack of precision in the determination of powers
and competences, which should have been designated towards their
specifie objectives. The objectives should have been enshrined in a
document in arder to regulate their responsibilities, particularly its
jurisdiction and scopeof application, and not only about the "host" to
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provide technical or administrative cooperation asdetermined by the
Memorandum of Agreement, mentioned above ut supra.
ln short, it should be clearly determined each organism function
in arder to avoid any confusion about the applicability and
jurisdiction of the international procedure. The figure of "host" by
IFAD to the GM has brought as consequence, that the ILOAT had
judged a demand that would not have existed, since the particular
persan did not depend on, nor was hired by IFAD, and had a labor
relation with the GM international agency that depended on IFAD,
and in turn on the UNCCD.
Furthermore, the Plurinational State of Bolivia expresses its
concern in respect that beyond any administrative difference arising
in an international jurisdictional conflict, labor and social rights of
individuals should clearly be protected, providing them assurances
and proper legal security and having, identified clearly the employer.
With regard to critical failures that could have committed the
ILOATin its judgment, they should be reviewed in arder to establish
which is international organization subject to be sued and if it applies
the law-sue between the complaint filed by the particular persan
against the international organization.
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On the framework of the "host", either for reasons of
budgetary, administrative, or technical convenience, the same should
have been carefully defined and regulated, without losing sight of the
utility and the benefits proposed. The international organization that
uses this framework should have their own differentiated statutes,
budget and staff, in order to avoid legal disputes.
Having taken into account those backgrounds, the Government
of the Plurinacional State of Bolivia, expresses its wish that the
International Court of Justice with the respective advisory opinion
will contribute to clarify the competences of each international
agency, so that under the principles of international equity and
solidarity, support and collaboration between these organization
should be encouraged in the interests of the Members States
Also, regardless the fact that ILOAT could have missed the
outlined situations in the procedure applied to decision No. 2867,
which motivate the Advisory opinion and this written statement, it
should be clearly determined, the right of individuals to identify the
international organization that hires them and to have relevant legal
certainty.
The Hague, October 2010.
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Written Statement of Bolivia