Remarks by Antigoni Axenidou

By Axenidou, Antigoni | Proceedings of the Annual Meeting-American Society of International Law, Annual 2012 | Go to article overview

Remarks by Antigoni Axenidou


Axenidou, Antigoni, Proceedings of the Annual Meeting-American Society of International Law


THE REASON FOR THE UNITED NATIONS INTERNAL SYSTEM OF JUSTICE

While the United Nations has international legal personality, according to Article 104 of the UN Charter, the organization is immune from suit unless it expressly waives such immunity, as stated in Article 105. However, the organization's immunity from legal process does not relieve it of legal liability. Pursuant to Article VIII, Section 29, of the 1946 Convention on the Privileges and Immunities of the United Nations, the United Nations must "provide for an appropriate mode of settlement" in any case in which it maintains its immunity but bears legal responsibility or liability. It is for this reason that the United Nations has established an internal system of justice to deal with employment disputes.

THE NEW REFORMED SYSTEM OF ADMINISTRATION OF JUSTICE: APPELLATE REVIEW

The reformed system comprises a two-tier judicial review: by the first instance tribunal (the United Nations Dispute Tribunal) and by the appellate tribunal (the United Nations Appeals Tribunal).

The right to appeal Dispute Tribunal judgments extends to both staff members and the Secretary-General. This is a novel feature in the administrative law of international organizations. Approximately 30% of Dispute Tribunal judgments have been appealed by staff members, while the Secretary-General has appealed approximately 12% of judgments.

Emerging Themes in the Jurisprudence of the Appeals Tribunal: Deference to the Trial Court's Findings and Strict Enforcement of Time Limits

In general, the Appeals Tribunal has shown great deference to the judgments of the Dispute Tribunal, both for its factual findings and for its assessment of damages.

In terms of time limits, and in stark contrast with the delays that plagued the former system of justice, the Appeals Tribunal has been strictly enforcing the various time limits. While the statutes of the Tribunals permit the Tribunals to waive time limits in the case of exceptional circumstances, the Appeals Tribunal has confirmed that (1) ignorance of the law; (2) lack of comprehension of the English language; (3) absence of legal counsel due to medical reasons; or (4) reliance on erroneous legal advice do not constitute exceptional circumstances warranting a waiver of the time limit.

Types of Cases Before the Appeals Tribunal

During 2010-2011, more than 70% of the cases filed with the Dispute Tribunal involved challenges to selection, separation, and disciplinary matters. Therefore, the jurisprudence of the Dispute Tribunal in these three areas has an enormous impact on the cases heard by the Appeals Tribunal.

Selection decisions. In considering appeals against selection decisions, the Appeals Tribunal has ruled that the Secretary-General has broad discretion in making decisions regarding promotions and appointments. The Appeals Tribunal also ruled that there is a legal presumption of regularity if the Secretary-General is able to make a minimal showing that a candidate was given full and fair consideration. In such cases, the staff member has the burden of proof to show through clear and convincing evidence that his or her candidacy was denied fair consideration.

Non-renewal of fixed-term appointments. One of the most frequently litigated issues is whether the decision not to renew fixed-term appointments was properly made. …

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