The formation of the United Nations Dispute Tribunal (UNDT) in 2009
JUSTICE FOR STAFF WITHIN INTERNATIONAL ORGANIZATIONS
WHO STAFF ASSOCIATION
All people deserve justice, which includes staff of the United Nations (UN) and its technical agencies. But what type of justice?
Note that the UN, its technical agencies and many other international organizations benefit from international immunity, a functional immunity designed to protect them and to ensure the independence of their internal functioning from member States. Important for staff of these organizations is to recognize that this immunity also extends to all legal processes within international organizations and encompasses all labor issues (including dismissal, discrimination and compensation for harassment or unfair termination, among others). As a result of this exceptional status, the UN and other international organizations have an obligation to provide a separate system of justice, that examines adherence to rules, provides formal dispute resolution mechanisms and judgments. Staff members do not generally have recourse to local mechanisms nor fall under the jurisdiction of national laws or legal systems.
In practice, promoting the rule of law at the national and international levels is at the heart of the UN’s mission. Over 40 UN entities are engaged in rule of law issues and the UN conducts rule of law operations and programming in over 110 countries in all regions of the globe. Moreover, the UN [secretariat and governing bodies] has agreed to many written principles on the importance of an independent and fair justice system.
For example, in addition to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, the UN has set forth a set of standards known as the Basic Principles on the Independence of the Judiciary. Adopted in 1985, the Principles envisage judges with full authority to act, free from pressures and threats, adequately paid and equipped to carry out their duties. The principles describe that the independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country, and that it is the duty of all governmental and other institutions to respect and observe the independence of the judiciary. This set of standards offers a model for lawmakers and institutions everywhere, including for the UN itself.
But too many judgments concerning staff working within the UN and its technical agencies highlight procedural flaws and other errors. How is that possible given the UN’s principles and mandates? The UN reviewed its own system of administration of justice in 2006, that covered its staff, including first instance and quasi-judicial boards found within the UN and its technical agencies. See Box for details from this evaluation. The UN itself deemed that this internal system of justice was “dysfunctional” [paragraph 150, Report of the Redesign Panel on the United Nations system of administration of justice, 61st session, Item 126, 28 July 2006, UN General Assembly]. The same report recommended that the UN provide an alternative system of administration of justice “that adheres to the principles and aspirations of the UN.”
Another fault was an “overlap between the multiple functions of administrative review, appeals, disciplinary matter and advisory services” noted in point 29 of UN General Assembly Resolution 59/283. This points out a basic structural problem that there is neither independence nor separation of powers between the executive, legislative and judiciary branches within international organizations. This is neither in line with the UN’s own principles [agreed upon by its governing bodies] nor with democratic institutions around the world. The analysis concluded that “without the inclusion of truly independent and legally qualified persons, the members [investigators, quasi-boards, peers who volunteer, etc.] despite the best will in the world, come from a perspective which is far from independent – it is institutionally non-independent, and can be easily manipulated.” There are not many ways to interpret this statement, except agree on the need for a system of justice even at the first-instance, that is truly independent and professional (legally qualified).