Remarks by Olufemi Elias
Elias, Olufemi, Proceedings of the Annual Meeting-American Society of International Law
In its well-known judgment in Waite and Kennedy, (1) the European Court of Human Rights ruled that the jurisdictional immunity of international organizations may depend upon the availability of "reasonable alternative means" to protect effectively the rights of staff members in accordance with Article 6(1) of the European Convention of Human Rights, which guarantees the right to a fair trial. Some national courts (particularly in Europe) have considered the availability and adequacy of alternative dispute settlement mechanisms provided by international organizations to hear cases filed by their staff. While national courts have, in general, found that the mechanisms provided by international organizations are adequate, there have been a number of notable exceptions. (2) The Siedler litigation in the Belgian courts is well-known. The Belgian Cour de Cassation upheld the findings of the lower courts that the procedure of the Appeals Commission for the Western European Union (WEU) did not offer all of the guarantees inherent in the notion of a fair trial, and concluded that the limitation on the access to the normal courts by virtue of the jurisdictional immunity of the WEU was incompatible with Article 6(1) of the European Convention. (3) The Belgian courts had identified several deficiencies; for example, there were no provisions for the execution of the Commission's judgments or public hearings; the publication of decisions was not required; the members of the Commission were appointed by the intergovernmental organ of the WEU for a period of two years, which created an unduly close link between the Commission and the organization itself; and it was not possible to challenge members of the Commission.
It is safe to say that the new system of justice in the United Nations would satisfy the requirements of the most critical national courts. I will attempt a quick review of the justice mechanisms of other international organizations in light of some of the deficiencies identified by the more critical national courts.
Some objections need not detain us long. The objection regarding the lack of provisions on enforcement would not seem to be problematic; when organizations establish independent judicial bodies, there seems to be no reason to spell the obligation on organizations to give effect to decisions of such bodies. Similarly, while it can hardly be argued that judgments should be published, there is hardly any evidence to suggest that the administrative tribunals do not publish their decisions. Other objections do, however, warrant our attention.
As judicial organs, administrative tribunals must be independent from the organization. The statutes of many administrative tribunals (such as those of the African Development Bank, the World Bank, the Asian Development Bank, the Organization for Economic Cooperation and Development (OECD), and the International Monetary Fund (IMF)) state that they shall operate independently. One would have thought that such provisions should not be necessary; the judges hardly need to be reminded of their independence. However, some judicial bodies appear to have attached importance to such provisions. In Waite and Kennedy, the European Court of Human Rights attached importance to Staff Regulation 33[section]1 of the European Space Agency, which provided that the Agency's Appeals Board is "independent of the Agency," in ruling that Article 6(1) of the European Convention had not been violated. Similarly, in B v. European Patent Organization, the German Constitutional Court stated that the "status and principles of procedure" of the Administrative Tribunal of the International Labour Organization (ILOAT) satisfied "the international minimum standard of fundamental procedural fairness and the minimum rule of law demands of the [German] Basic Law" because, inter alia, the ILOAT decides cases "on the basis of its legally defined jurisdiction and by way of a proper legal procedure," and the statute of the ILOAT provides that "its judges are under a duty to be independent and free from bias. …