Abstract
The objective of this chapter is to assess how the organizations of the World Bank Group implement the duty of care owed to personnel who are performing official tasks, or on assignment, outside the Washington DC headquarters. The first section of this chapter analyzes the WB Group’s internal law on rights and obligations of the Bank and its staff, as fashioned by the jurisprudence of the World Bank Administrative Tribunal, and its scope of application. The second section examines in more detail how the various aspects of the duty of care obligation are addressed within the WB Group, focusing in particular on: non-discrimination, health and safety of the personnel, information on potential dangers and adequate training, specific challenges and threats, effective medical services after an incident has occurred, and the exercise of functional protection. The final section gives a brief overview of the WB Group’s internal administrative procedures established to address personnel’s requests and complaints.
Annex II—the Table of Cases—can be accessed online here: http://extras.springer.com/.
Annamaria Viterbo, Associate Professor of International Law at the University of Turin, Collegio Carlo Alberto Law Affiliate, Lungo Dora Siena 100, 10154 Turin, Italy, anna.viterbo@unito.it; Law Affiliate of the Collegio Carlo Alberto, Piazza Arbarello 8, 10122 Torino, Italy.
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Notes
- 1.
- 2.
- 3.
Its members include the Executive Heads of the UN, 15 specialized agencies (including the World Bank and the IMF), 12 Funds and Programmes created by the UN General Assembly and 3 related organizations (the WTO, UNOPS and IAEA).
- 4.
See UN Economic and Social Council, Resolution 13 (III) ‘Co-ordination Committee’, 21 September 1946 (document E/231). On 21 September 1946, at the request of ECOSOC, the Secretary General established the Administrative Committee on Coordination as a standing committee to supervise the implementation of the relationship agreements between the UN and the then existing three specialized agencies. In 2001 the Administrative Committee on Coordination was renamed UN System Chief Executives Board for Coordination (CEB).
- 5.
The UNSMS was officially established by UNGA Resolution 59/276 (23 December 2004), to unify all security mechanisms in place to protect civilians and military staff members within the UN System. Security policies of the UNSMS are initiated, developed and reviewed by the Inter-Agency Security Management Network (IASMN), a specialized network of the HLCM. The HLCM either directly decides on the recommendations made by the IASMN or recommends their endorsement and implementation to the CEB. Mandatory security policies are collected in the UNSMS 2017. On the UNSMS see also Creta, Chap. 7, Sect. 7.3.4.
- 6.
The legal basis for the IBRD’s participation in CEB and HLCM activities is Article X, para 2 of the UN-IBRD Relationship Agreement.
- 7.
- 8.
For instance, Article XII.1 of the Agreement between the UN and UNESCO reads: ‘The United Nations and the United Nations Educational, Scientific and Cultural Organization recognise that the eventual development of a single unified international civil service is desirable from the standpoint of effective administrative coordination, and with this end in view agree to develop common personnel standards, methods and arrangements designed to avoid serious discrepancies in terms and conditions of employment, to avoid competition in recruitment of personnel, and to facilitate interchange of personnel in order to obtain the maximum benefit from their services’.
- 9.
- 10.
WBAT, de Merode et al. v. the World Bank, 5 June 1981, Decision No. 1, para 36 (see Annex II, Case 44).
- 11.
WBAT, de Merode, para 18. See also Shihata 2000, p. 709. The legal basis for the adoption of these internal rules is to be found in Article V, Section 5, let. (b) of the IBRD Articles of Agreement, according to which ‘The President shall be chief of the operating staff of the Bank and shall conduct, under the direction of the Executive Directors, the ordinary business of the Bank. Subject to the general control of the Executive Directors, he shall be responsible for the organisation, appointment and dismissal of the officers and staff’.
- 12.
WBAT, de Merode, para 22.
- 13.
WBAT, de Merode, para 22.
- 14.
Preamble to the 1983 Principles.
- 15.
World Bank 2009.
- 16.
See Leroy 2011, p. 57.
- 17.
The WB Group’s Operational Policies and Procedures are collected in the so-called Operational Manual. They should be consistent with the Articles of Agreement.
- 18.
WBAT, de Merode, para 25.
- 19.
- 20.
WBAT, Mendaro v. IBRD, 4 September 1985, Decision No. 26, para 20 (see Annex II, Case 45). The applicant claimed the non-observance of the conditions of her employment because of alleged discrimination on the basis of sex and sexual harassment, imputable to the respondent. It is worth noting that the Tribunal decided that the application was inadmissible because some of the events leading to the complaints had occurred before the establishment of the WB Tribunal and for those arising afterwards, the plaintiff’s application was not filed in time. See also US Court of Appeals of the District of Columbia Circuit, Mendaro v. World Bank, 27 September 1983, 717 F.2d 610, where the Court affirmed the IBRD’s immunity from suits in employment disputes.
- 21.
WBAT, de Merode, paras 34 and 47.
- 22.
Harassment, sexual harassment, discriminatory practices, retaliation (including for alleged whistleblowing) and abuse of authority amount to staff misconduct under Staff Rule 3.00 and constitute grounds for disciplinary action. The Office of Ethics and Business Conduct is competent to review these misconduct allegations.
- 23.
WBAT, C.L. v. IBRD, 26 September 2014, Decision No. 499, para 73.
- 24.
UNDT, Obdeijn v. UN Secretary-General, 10 February 2011, Judgment No. UNDT/2011/032, paras 30–31.
- 25.
WBAT, Sharpston v. IBRD, 23 July 2001, Decision No. 251, para 56 (see Annex II, Case 46).
- 26.
- 27.
Local Staff Regular is a full-time appointment of indefinite duration, made before July 1998, of a person recruited to serve at a WBG country office.
- 28.
In 2016, Staff Rule 4.01 was amended to reorganize and redefine the types of appointment of staff. Short and extended term consultants are included among the staff members of the WB Group.
- 29.
Source: samples of appointment letters (for Short Term and Extended Term Consultant positions) on file with Author.
- 30.
In general, internationally recruited staff working in country offices are paid in US Dollars, while locally recruited staff are paid in local currency (with some exceptions). See Das et al. 2017, 10.
- 31.
See Staff Rule 6.28 “Hazard and Fragility Pay”, issued in October 2017, which outlines the non-pensionable compensation premium provided by the WB Group to extend reasonable assistance to eligible staff members indefinitely based in a country office designated as a Fragile and Conflict Affected Situation (FCS). For the purpose of Staff Rule 6.28 hazardous FCS locations are those duty stations designated by the UN eligible for danger pay. See also Chap. 7, Sect. 7.4.5.
- 32.
The Country Policy and Institutional Assessment—CPIA rating measures countries against a set of criteria related to economic management, structural policies, policies for social inclusion and equity, as well as public sector management and institutions.
- 33.
- 34.
Principle 2.1.
- 35.
Principle 2.1(b) and (f).
- 36.
Principle 3.
- 37.
Principles 2.1 and 9.1.
- 38.
WBAT, de Merode, para 34.
- 39.
WBAT, E.I. v. IBRD, 25 October 2017, Decision No. 569, para 90. In this case the Tribunal found that the IBRD’s duty of care includes the remediation of environmental hazards that may adversely affect the health of a staff member in the workplace and the subsequent proactive monitoring of the situation. Even the temporary reassignment of the staff member to a different location (while keeping almost the same duties and responsibilities) was deemed to satisfy the Bank’s duty of care towards the applicant (para 103). Finally, the Tribunal found that requiring the applicant to undergo an independent medical evaluation prior to allowing her return to the original workplace amounts to a proper discharge of the Bank’s duty of care (para 119).
- 40.
See also Principle 6.2(d).
- 41.
See also, infra, Sect. 14.4.4 on the duty to evacuate internationally and locally recruited staff according to AMS 6.40 ‘Global Security’.
- 42.
See UNSMS Security Policy Manual, Chapter IV Security Management, Section M ‘Gender Considerations in Security Management’, 2016.
- 43.
UN Globe 2015.
- 44.
This provision should be compared with the UNSMS Security Policy Manual, Chapter IV, Section D, para 13, according to which “locally-recruited personnel and/or their eligible family member may be evacuated from a duty station only in the most exceptional cases in which their security is endangered as a direct consequence of their employment by organizations of the United Nations common system” [emphasis added]. On the duty to provide functional protection on an equal basis to internationally and locally recruited personnel see Ruzié 1999, p. 435.
- 45.
AMS 6.40 ‘Global Security’, para 1. According to the UNSMS Security Policy Manual ‘Personnel employed by the organizations of the UN System are accountable to their respective organizations. All such personnel, regardless of their rank or level, have the responsibility to abide by security policies, guidelines, directives, plans and procedures of the UNSMS and its organizations’ (UNSMS, Security Policy Manual, Chapter II, Section B, para 28).
- 46.
See also AMS 6.30C, Incident Categories; the WB Group (1999) Crisis Management Manual and the WB Group (2001) Crisis Action Plan Template.
- 47.
The AMS 6.40 dates back to 2007.
- 48.
See WB Group Internal Audit (2017) Special Review of the Formulation of the New WBG Global Security Management Strategy, WBG FY17-07.
- 49.
WBAT, Tamara Lansky (No. 1 and No. 2) v. IFC and IBRD, 9 December 2009, Decision No. 425 and WBAT, Tamara Lansky (No. 3) v. IFC and IBRD, 29 October 2010, Decision No. 442 (see Annex II, Case 47).
- 50.
WBAT, Lansky (No. 1 and No. 2), paras 5–19.
- 51.
WBAT, Lansky (No. 1 and No. 2), para 15.
- 52.
WBAT, Lansky (No. 1 and No. 2), para 36. The administration of the programme was (and it is) outsourced to a third-party administrator contracted by the WB Group which in turn contracted out some of its responsibilities to a subcontractor.
- 53.
WBAT, Lansky (No. 1 and No. 2), para 45.
- 54.
See WBAT, Lansky (No. 1 and No. 2), para 52.
- 55.
In the area of insurance, a stock-taking exercise carried out by CEB in 2010–2012 identified broad differences of coverage and compensation between international staff, local staff and non-staff personnel. See HLCM, ‘Comprehensive Mapping of Benefits, Entitlements, Insurance Related to Service Incurred Injury, Illness, Death and Disability in the UN System’, CEB/2010/HLCM/21/Add. 1, 17 September 2010 as well as the undisclosed document CEB/2012/HLCM/17 the content of which is summarized in CEB, ‘Conclusions of the 24th Session of the High-Level Committee on Management’, CEB/2012/5, 22 October 2012, paras 28–48.
- 56.
Flex or temporary staff members may receive lower (institution paid) benefits than regular staff as reflected in their different compensation or remuneration arrangements.
- 57.
WBAT, Alrayes v. IFC, 13 November 2015, Decisions No. 520 (Preliminary Objection) and WBAT, Alrayes v. IFC, 8 April 2016, Decisions No. 529 (Merits) (see Annex II, Case 43).
- 58.
On these grounds, the WBAT recognized the existence of exceptional circumstances to excuse Mr. Alrayes’s delays in filing his claims (WBAT, Alrayes (Preliminary Objection), para 104). At the same time, however, the WBAT affirmed that Mr. Alrayes should have filed his claims at least within 120 days of his return to the US. Only some of the applicant’s claims were therefore deemed admissible.
- 59.
WBAT, Alrayes (Merits), para 41.
- 60.
UNDT, Hassouna v. Secretary General of the United Nations, 10 July 2014, Judgement No. UNDT/2014/094 (see Annex II, Case 40).
- 61.
UNDT, Hassouna, para 51.
- 62.
Ibid.
- 63.
See Staff Rule 9.01.
- 64.
See Staff Rule 9.02.
- 65.
See Staff Rule 9.03.
- 66.
The Board of Governors acted on the basis of Article V, Section 2, let. (f) of the IBRD Articles, according to which: ‘The Board of Governors, and the Executive Directors to the extent authorized, may adopt such rules and regulations as may be necessary or appropriate to conduct the business of the Bank’. On the WBAT, see among others Elias 2012; Villalpando 2016b.
- 67.
Memorandum to the Executive Directors from the President of the World Bank, 14 January 1980, Doc. R80-8, IDA/R80-8 and IFC/R80-6, paras 1–2. See Amerasinghe 2014, p. 319.
- 68.
- 69.
WBAT Statute Article II.
- 70.
In its first decision, the WBAT held that a right to file a petition with the Tribunal is ‘an integral part of the relationship between the Bank and its staff members’ (WBAT, de Merode, para 21).
- 71.
See WBAT, The World Bank Staff Association vs. IBRD, IDA, IFC, 27 October 1987, Decision No. 40, paras 78–89.
- 72.
As for the UN justice system, proposals were put forward to create simplified mechanisms of dispute settlement for these individuals (see A/65/373 paras 165–183).
- 73.
In 1999, the IMF Administrative Tribunal held that it did not have jurisdiction to hear the claim of a former contractual employee of the Fund since his letter of appointment clearly stated that he would not become a staff member (IMFAT, A. v. IMF, 12 August 1999, Judgment No. 1999-1, para 9 (see Annex II, Case 28)). Notably, the IMFAT also declared that ‘Equitable or other consideration do not enable the Administrative Tribunal to extend its jurisdiction to claims falling outside the express language of Article II of its Statute’ (para 100).
- 74.
ECtHR, Waite and Kennedy v. Germany, Decision of 18 February 1999, App. No. 26083/94, paras 63–68. More recently reference should be made to ECtHR, Klausecker v. Germany, Decision of 6 January 2015, App. No. 415/07, paras 67–76 where the claimant was a job applicant at the European Patent Office as well as to ECtHR, Perez v. Germany, Decision of 6 January 2015, App. No. 15521/08, paras 65–66 on the shortcomings of the UN internal justice system before the 2009 reform. See also: ICJ, Effects of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, 13 July 1954, para 57.
- 75.
The Morgan case is illustrative. In 1990, Morgan, an employee of a temporary employment agency who worked for two and a half years in a secretarial position at the IBRD brought a suit against the Bank before US courts. He claimed that IBRD officials and security guards had forcibly detained him against his will, denied him access to an attorney, accused him of stealing money without presenting evidence and harassed him. He sought compensatory and punitive damages for intentional infliction of emotional distress, false imprisonment, libel and slander. The US District Court of the District of Columbia dismissed his action acknowledging the IBRD’s immunity (US District Court of the District of Columbia, Morgan v. IBRD, 13 September 1990,752 F. Supp. 492). More recently, however, it has been argued that, given the absence of an alternative means of tort redress, the outcome of a similar dispute might be different and immunity eventually denied by national judges (Dominicé 2001). See also Amerasinghe 2010; Hammerschlag 1992, p. 279; Reinisch and Wurm 2010, p. 114.
- 76.
Article II(2) WBAT Statute. See also Staff Rule 11.01 ‘Claims’.
- 77.
See, for instance, WBAT, Alrayes (Preliminary Objection), paras 99–111.
- 78.
See Staff Rule 9.03 Peer Review Services, para 7.02. As of July 2009, the Peer Review Services replaced the Appeals Committee.
- 79.
Article XII(2) WBAT Statute. On this point, Sheed 2012, p. 233.
- 80.
See Final Report of the HLCM Working Group on ‘Reconciling Duty of Care for UN personnel while operating in high-risk environments’, CEB/2016/HLCM/11, 15 March 2016.
See also the eleven common principles adopted in 2014 by the CEB to guide the UN System in supporting the implementation of the 2030 Agenda for sustainable development. Among these, Common Principle n. 11, entitled ‘Duty of Care’, establishes that: ‘The organizations of the UN System will preserve and foster the health and wellbeing as well as safety and security of their staff – while remaining committed to stay and respond to the ever-increasing demand for their services, despite the often deteriorating conditions in which those services are being delivered’ (CEB 2016).
- 81.
See HLCM Committee on Management, Duty of Care Task Force—Interim Report, CEB/2017/HLCM/16, 14 September 2017.
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List of Cases
(A) International Courts/Administrative Courts of International Organizations
ECtHR, Klausecker v. Germany, 6 January 2015, App. No. 415/07
ECtHR, Perez v. Germany, 6 January 2015, App. No. 15521/08
ECtHR, Waite and Kennedy v. Germany, 18 February 1999, App. No. 26083/94
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ICJ, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, 20 December 1980
IMFAT, A. v. IMF, 12 August 1999, Judgment No. 1999-1 (see Annex II, Case 28)
UNDT, Hassouna v. Secretary General of the United Nations, 10 July 2014, Judgement No. UNDT/2014/094 (see Annex II, Case 40)
UNDT, Obdeijn v. UN Secretary-General, 10 February 2011, Judgment No. UNDT/2011/032
WBAT, Alrayes v. IFC, 13 November 2015, Decisions No. 520 (see Annex II, Case 43)
WBAT, Alrayes v. IFC, 8 April 2016, Decisions No. 529 (see Annex II, Case 43)
WBAT, C.L. v. IBRD, 26 September 2014, Decision No. 499
WBAT, de Merode et al. v. the World Bank, 5 June 1981, Decision No. 1 (see Annex II, Case 44)
WBAT, E.I. v. IBRD, 25 October 2017, Decision No. 569
WBAT, Mendaro v. IBRD, 4 September 1985, Decision No. 26 (see Annex II, Case 45)
WBAT, Sharpston v. IBRD, 23 July 2001, Decision No. 251 (see Annex II, Case 46)
WBAT, Tamara Lansky (No. 1 and No. 2) v. IFC and IBRD, 9 December 2009, Decision No. 425 (see Annex II, Case 47)
WBAT, Tamara Lansky (No. 3) v. IFC and IBRD, 29 October 2010, Decision No. 442 (see Annex II, Case 47)
WBAT, The World Bank Staff Association v. IBRD, IDA, IFC, 27 October 1987, Decision No. 40
(B) National Courts
US Court of Appeal, District of Columbia Circuit, Mendaro v. World Bank, 27 September 1983, 717 F.2d 610
US District Court, District of Columbia, Morgan v. IBRD, 13 September 1990, 752 F. Supp. 492
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Viterbo, A. (2018). Implementation of the Duty of Care by the World Bank. In: de Guttry, A., Frulli, M., Greppi, E., Macchi, C. (eds) The Duty of Care of International Organizations Towards Their Civilian Personnel. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-258-3_14
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