Report on general principles as applied by international administrative tribunals

On the occasion of the 60th anniversary of the ATCE, a questionnaire on the use of general principles in the resolution of disputes falling within the jurisdiction of international administrative tribunals was prepared in collaboration with Anne-Marie Thévenot-Werner, Senior Lecturer at the University of Paris-Panthéon-Assas, and received responses from ten international administrative tribunals. Those responses formed the basis of the report, which is published here in its entirety for the first time, and the general conclusion* of which is reproduced below.

General principles constitute a qualitatively important source of international civil service law. However, international administrative tribunals exercise caution when identifying new principles and rely essentially on established case law – whether their own or that of other international administrative tribunals.

An analysis of the case law shows that general principles, taken as a whole, carry greater legal weight than the secondary law of the organisation, including in the law of the European Union – with the qualification that, in the event of a conflict between a general principle of EU law and a general principle of international law, the former prevails.

The application of general principles has been criticised as a source of legal uncertainty and on the ground that it risks calling into question, too readily, decisions taken by political organs. This study demonstrates that general principles are an indispensable source of international civil service law for adjusting the resolution of disputes in areas where the written normative framework is precisely insufficient, and that they constitute a necessary legal safeguard for upholding the substantive rule of law within the partial legal order of the organisation.

General principles serve as an adjustment variable for arriving at a balanced legal solution. As Alain Pellet wrote in his thesis: « Les principes n’existent pas au ciel des idées, mais ils s’imposent spontanément à l’interprète parce qu’ils permettent de répondre au besoin de plénitude qui caractérise tout système juridique » (in French).

Should general principles be more extensively codified, their application more strictly framed, and their place in the hierarchy of norms more clearly defined? The study shows that such codification is not essential as regards the determination of the jurisdiction of tribunals, provided that the existing body of case law is not called into question and is respected by all actors. On the contrary, the absence of codification allows for the adaptation of their application to the evolving state of the law. Furthermore, current practice shows that codification efforts in this area have tended rather to restrict the jurisdiction of tribunals, thereby preventing the full guarantee of the rule of law in its substantive sense within the internal legal order of the organisation and potentially jeopardising, in the long run, the immunities of the organisations concerned.

It may nonetheless be useful for an organisation to codify, where appropriate in its secondary law, rules derived from the application of general principles, in the interests of greater legal certainty – for instance, in order to establish the procedure to be followed in harassment cases.

The caution with which tribunals apply general principles – all the more so in respect of decisions taken by organs composed of representatives of States – and the relative rarity of cases in which general principles have proved determinative, demonstrate that the application of general principles serves as a legal safeguard. It is a reminder that organs composed of representatives of States are equally bound by international law (including international civil service law) and must take it into account when adopting their decisions. As a general rule, however, a tribunal will only call into question the legality of an act where the breach of those general principles is, in its view, relatively clear.

Given the qualitative importance of general principles for the law of international organisations, the case law of international administrative tribunals on this subject – which the present report has sought to synthesise and render more accessible – is intended to inform reflection and practice in this area beyond the sphere of the international civil service. In particular, valuable lessons may be drawn from it as regards the opposability of international human rights law to international organisations.

*Provisional translation by the ATCE Registry (AI-assisted). The French text is authoritative.

International administrative tribunals' replies to the questionnaire on general principles: