And What about International Civil Servants?

Article excerpt

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by the law.

- Universal Declaration of Human Rights, Article 8

In the three years or more before the creation in 1949 of the United Nations Administrative Tribunal (UNAT), after the establishment of the United Nations, which has been described in my treatise entitled The Law of the International Civil Service, "the Secretary-General coped with this problem (of settling disputes between the staff and the organization) by means of joint administrative machinery, leading to ultimate decision by himself". (Effect of Awards of Compensation Case, International Court of Justice (ICJ) Reports 1954, p. 61.)

At this time, the only way in which a strictly judicial opinion could be obtained was by an ad hoc reference for advisory opinions to the ICJ by the United Nations General Assembly or to a committee of jurists, a technique which was never used. In any case, all these procedures would have resulted in settlement by administrative decision because the administration took the final decision, the opinions sought being purely advisory.

Clearly, this situation was seen to be unsatisfactory by members of the United Nations when the General Assembly established UNAT. The Charter does not expressly empower the United Nations to establish a court to settle employment disputes. However, the ICJ held that "the power to establish a tribunal, to do justice as between the Organization and the staff members, was essential to ensure the efficient working of the Secretariat, and to give effect to the paramount consideration of securing the highest standards of efficiency, competence and integrity. Capacity to do this arises by necessary intendment out of the Charter."

In the absence of express provision, this power to establish an administrative court, as it is called, for employment disputes is implied in the constitution of any organization. The choice of judicial machinery is based on the need for impartiality, pursuant to the maxim that no one should be judge in his own cause, and for binding decisions.

While internal settlement procedures through administrative review and reference to the JAB (or JDC), resulting in a recommendation to the Secretary-General who takes the final administrative decision, still remain and are a useful means of settling disputes at an early stage and preventing their escalation, it is only through a court such as UNAT that judicial settlement can be ensured. It is also important that in the case referred to above, the ICJ, interpreting the Charter and the Statute of UNAT, which was enacted as a separate instrument by the General Assembly and not as part of the Staff Regulations, stated that the Tribunal was established not as an advisory organ or a mere subordinate committee of the Assembly, but as an independent and truly judicial body pronouncing final judgments without appeal in the field of employment relations and that, according to a well-established and generally recognized principle of law, a judgment rendered by such a body is res judicata and has binding force between the parties to the dispute.

UNAT, consequently, though established perhaps as a subsidiary organ by the General Assembly under the provisions of the Charter governing the creation of subsidiary organs, is not a subordinate organ of the Assembly or the Organization. This latter point was clearly made by the ICJ. The consequence was that the judgments of UNAT are binding on the United Nations and must be carried out by it. The Assembly cannot override or change such judgments as it can do with the resolutions of its other subsidiary organs.

UNAT is the only court settling employment disputes in the United Nations. Administrative review and recommendations of the JAB and JDC are not essentially judicial in nature in that decisions are not necessarily based on the application of legal rules or principles, and the bodies do not necessarily act in a judicial manner. …

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