International Civil Service Update: International Organisations Recognise Single-Sex Partnerships
The author discusses a recent judgment of the Administrative Tribunal of the International Labor Organization that formally confirmed the ongoing trend in international civil service case law toward the recognition of single-sex partnerships insofar that they are recognized on a national level.
On July 8, 2009, the Administrative Tribunal of the International Labor Organization (hereinafter: “ILO Tribunal”) rendered a noteworthy judgment in the field of non-discrimination on the grounds of sexual orientation for employees of International Organizations. It ruled that lawfully registered single-sex partners under French law were entitled to receive dependency benefits from their employer (Administrative Tribunal of the ILO, Judgment of July 8, 2009, No. 2860).
There, a French national had submitted an appeal to the ILO after he was denied dependency benefits for his same-sex partner by his employer, the Food and Agriculture Organization of the United Nations (hereinafter: “FAO”). The employee and his partner had entered into a “Civil Solidarity Contract”, or PACS under French law, an institution that is moderately different from marriage. Yet, according to the Staff Regulations within the FAO, as well as in several other International Organizations , dependency benefits can only be allocated to the ‘spouse’ of an employee. Since the exact legal meaning of “spouse” is not outlined in the FAO Staff Regulations, it was unclear whether dependency benefits could be allocated to an employee’s partner of the same sex. The FAO argued that the term “spouse” only applied to a partner in a conventional marriage. It based its argument on the grounds of the 1957 Report from the Administrative Committee on Co-ordination, which provided that “[t]he term ‘spouse’ means wife or husband and excludes divorced partners”. Finally, the ILO Tribunal deemed the applicant’s request for dependency benefits to be valid, in line with a similar ruling from the Administrative Tribunal of the United Nations .
The key issue for the ILO Tribunal was the nature of the actual link between the word ‘spouse’ and the institution of marriage, whatever form it may take . In its previous decisions, it ruled that, although the term ‘spouse’ generally refers to a ‘traditional marriage’ (between a man and a woman), certain States had accepted that partners united by another form of partnerships could also be considered as ‘spouses’. Traditionally, in civil matters, the personal status of international organizations’ staff is determined in accordance with the staff member’s national legislation. In this way, international organizations are able to safeguard the sovereignty of national States . As a consequence, if a staff member of an international organization is in a single-sex partnership and applies for dependency benefits, the ILO Tribunal will be called upon to assess whether the applicant’s partnership is sufficiently similar to the institution of marriage in the applicant’s country of origin. In this respect, two recent judgments of the ILO Tribunal involving Danish and German couples had acknowledged a sufficient similarity within their national legal order and granted them dependency benefits accordingly .
In 2003, the ILO Tribunal had already ruled on a similar case involving the French PACS, but with a different outcome. After considering the evolution of the French legislation on the PACS since 2003, it decided that there was now a sufficient similarity between the PACS and a traditional marriage. Therefore, it considered the employee’s same sex partner as a ‘spouse’, in the sense of the FAO Staff Regulations. According to the judgment, PACS modifies the legal status of each partner towards the other, while establishing a legal link of mutual dependence. The judgment offers some guidance in this respect by providing certain elements of comparison between single-sex partnership and a traditional marriage. E.g., the mutual obligation for financial support, the joint liability for debts incurred for the daily life, and matters such as health insurance, inheritance fees or income taxes .
The current judgment is in line with a logical evolution of gradually conferring the same rights to couples of the opposite sex and single-sex couples in similar situations. The first decisive step in this perspective was the allocation of dependency benefits to employees of international organizations who were legally married with a partner of the same sex under their own national legislation . The ILO Tribunal has now confirmed that this principle could also apply in the case of partnerships, which are similar to marriage, as long as they are acknowledged as such under domestic law.
This does not mean, however, that single-sex partners will be automatically entitled to dependency benefits by the international organization they are working for. Indeed, one should bear in mind that before looking to other regulations, one should take into account the Staff Regulations of the international organisations themselves. If the ILO Tribunal was able to render favourable decisions for the applicants claiming dependency benefits during the last decade, this is, without a doubt, largely due to the Staff Regulations of the challenged international organizations, inaccurately outlining the scope of the word ‘spouse’. Therefore, the ILO Tribunal could freely give an extensive interpretation of the term ‘spouse’ in accordance with the moral evolution regarding equality and non-discrimination of single-sex couples. Nevertheless, supposing that the Staff Regulations contain a restrictive definition of the term ‘spouse’, referring only to opposite-sex partnerships, it would be impossible for the Tribunal to consider that the concept could be applied to single-sex couples, even if they were lawfully married or joined in a registered partnership under the provision of their national legislation. This situation occurred in 2007, when the applicant, an employee of the International Telecommunication Union, who had also entered the French PACS, was dismissed by the ILO Tribunal . It ruled that under the Staff Regulations of the International Telecommunication Union, the term ‘spouses’ was explicitly defined as ‘husband’ and ‘wife’. Although these provisions may appear discriminatory today, the ILO Tribunal deemed itself incompetent to contradict the wording of the Staff Regulations. It is imaginable that the next step for the Tribunal would be to interpret the notion of ‘husband and wife’ as encompassing single-sex couples, if such discriminatory dispositions are not modified by the relevant international organizations.
In any event, one might wonder whether Staff Regulations that discriminate between two categories of employees who are in a similar situation do not contradict the principle of equality of treatment. Indeed, it seems fair to say that, as subjects of international law, international organizations should not have internal rules and regulations contrary to general principles of international civil service law. The principle of equality of treatment among international civil servants is an essential and even implied condition of the employment . Therefore, if Staff Regulations contain provisions that violate this principle, the international organizations should amend such provisions. This was affirmed in previous cases by the ILO Tribunal itself, which stated that: “if the rules and procedures of international organizations do not ensure adherence to the principle of equality, it is their duty to initiate procedure that do, whether by way of general rule or some specific procedure for the particular case” .
The process towards total equality between opposite and single-sex partnerships for dependency benefits for international organizations’ staff has not yet come to an end. Firstly, the Staff Regulations of the organisation must be drafted in a sufficiently vague sense to leave room for interpretation and, secondly, the employee’s national legislation must confer similar rights and obligations on the staff member’s partnership as those rights and obligations conferred on married couples. A growing number of countries now treat registered single-sex couples as enjoying the same rights as their opposite-sex counterparts, which is of importance, since the employee’s domestic law should be applied when determining his or her personal status. In conclusion, it can be stated that whenever there is room for interpretation of a specific notion within their Staff Regulations, international organizations will have to adjust their interpretation in accordance with the evolution of morals regarding single-sex couples as they occur in the countries in which these partnerships and marriages take place.
ABOUT THE AUTHOR: Bert Theeuwes & François Pons
Bertold Theeuwes is the head of the diplomatic and international public law practice of Lorenz. He regularly represents international organizations, diplomatic missions, embassies, diplomats and civil servants and advises on immunity issues, benefits issues as well as international civil service issues (representing staff members of international organizations in internal procedures in application of their staff regulations).
François Pons is an associate in the diplomatic and international public law practice of Lorenz.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.