Fourteen years have passed since the implementation of a reform that has transformed an obsolete peer-review system into a modern, two-tier, and professionalized internal justice system.

Progress was made in many areas but there is still a long way to go before the system matures and meets stakeholder expectations. Since its inception, the system has faced fierce criticism and encountered different obstacles.

On several occasions, both internal and external forces have tried to pressure and influence the jurisprudence of both UNAT and UNDT.

Unilateral changes in the statutes of the Tribunals (without prior discussion with relevant parties), attempts to limit the scope of judicial review and sometimes too critical (and unfair) internal justice reports were disruptive and did not contribute to the credibility of the UN internal justice system.

But, was all this intentional or the normal evolution of an evolving justice system?

Unwelcome guests

The creation of the UN tribunals composed of externally recruited judges faced resistance and skepticism from the outset.

Resistance came first, from those who were already working in the JABs and intended to apply for and work as ‘judges’ in the newly created tribunals and were not allowed to do so. Resistance came also from managers who perceived judges as a threat to their authority and, finally, from staff members themselves, who did not believe an external entity would be able to understand and adjudicate their grievances.

Skepticism came from the fact that even the most professional and experienced national judges need time to adapt, to get familiar with and understand not only the Organization’s legal framework, but also its culture, values, and managerial practices.

One of the most difficult challenges for a newly arrived UN judge is to assert his/her authority over a team of legal officers and lawyers who seem to know more about the work than the judge himself.

Consequently, some people in the UN see judges as outsiders or, at least, as ‘unwelcome’ guests.

In order to preserve institutional memory and benefit from the experience acquired by the judges, their UN mandates should be five years with (one) possible extension of five more years.

This would be in line with other international judicial bodies and allow a balance between the flexibility the organization desires and the stability the system needs.

On the other hand, the majority of the legal officers who work for both the UNDT and UNAT registries as well as internal lawyers are brilliant legal minds with a solid legal knowledge of the UN legal framework.

However, most of them have made their professional career exclusively at the UN, they do not have any ‘real-life’ court experience and aren’t familiar with lawyers and external stakeholders.

Legal training by external practitioners and exposure to judicial work outside the UN context would be an advantage in order to stimulate creativity, learning, and acquisition of different skill-sets.

This would promote diversity and critical legal thinking while improving the quality of the feedback that internal legal teams provide to the judges.

Limited jurisdictional powers

Framed as a hybrid jurisdiction (between labor and administrative law) the UN internal justice system is limited in many ways and, as a consequence, it cannot be considered as an ‘equivalent’ to any national justice system.

In fact, one of those limitations is the fact that UN tribunals cannot review GA Resolutions, i.e., judges in the UN are not allowed to assess the legality of the GA Resolutions which, in practical terms, are placed at the top level of the normative hierarchy in the UN.

In addition, UN tribunals are also limited in terms of the remedies that can be offered to applicants, as well as in relation to legal standing and jurisdictional scope.

But first and foremost, UN tribunals cannot review the legality of the GA Resolutions, even in cases where it is obvious that those Resolutions will have an impact on staff member’s employment conditions and, due to the hierarchy of norms, will affect the overall legal framework of the organization.

One may conclude that internal tribunals have not changed this ‘status quo’ as judges (in particular, those at the appeals level) tend to adopt a (more) conservative approach.

Therefore, if any changes are to be made in relation to this situation, it has to come from within and hence, the role of staff associations acting as a pressure group and active participants in legislative procedures.

There are at least other three relevant limits to the jurisdiction of the UN administrative tribunals:

1. Reintegration is not mandatory but optional;

2. As a general rule, compensation for wrong-doing cannot exceed two years base net salary;

3. Staff associations do not have legal standing before UN tribunals. 

Contrary to what happens in national labor courts, UN staff members do not have the option to return to their functions once a dismissal or termination of contract is found illegal, unfounded or arbitrary, because the organization may opt to pay compensation in lieu. In a letter dated 29 October 2014 addressed by the President of the General Assembly to the Chair of the Fifth Committee (A/C.5/69/10), the rationale for the amendment was explained as follows: “… Some delegations expressed concern that in some cases the Tribunals had awarded compensation for moral damages even though there had been no evidence to substantiate such damage, based on the Tribunals finding that an entitlement to compensation arises simply because the Tribunals considered the breach of the staff member’s rights to be of a fundamental nature. …”

While it is accepted that the internal legislative body is competent to include limits to the role of the UNDT, in its Statute, we question the role played by UNAT when it directly interferes with the adjudicative role of the first instance judge as an independent decision-maker. In the first instance judgment, UNDT awarded Mr. Kallon compensation in the amount of $50,000 as “non-pecuniary damages” for moral injury.

In the appeal before it, UNAT (Judgment No. 2017-UNAT-742) has questioned what constitutes moral injury justifying an award of compensation and what kind of evidence is sufficient or necessary to prove such injury. This is a particularly interesting judgment as the bench seemed divided in relation to the evidentiary requirements for establishing compensation for “moral harm” as it seemed to consider that the applicant’s testimony alone would not suffice.

In its reasoning, UNAT admitted that in general, the presence of certain circumstances may lead to the presumption of moral injury – res ipsa loquitur and harm be established by the operation of the evidentiary presumption of law.

However, the Appeals Tribunal has found that when the circumstances of a certain case do not permit the application of the evidentiary presumption, evidence must be produced and the lack of it may lead to the denial of compensation.

While recognizing that the UNDT was best placed to conclude from the evidence, records, or otherwise, whether or not a claim for moral damages was established and to calculate an appropriate award, UNAT’s jurisprudence in this case led to a significant shift in the UNDT’s case law that placed a “heavier burden” on the applicants’ shoulders.

In fact, after Kallon, the majority of the UNDT judges started requesting additional evidence to support claims of ‘moral injury’ which included inter alia, additional witnesses, medical or expert reports.

It was paragraph 80 of Kallon’s judgment (as well as the dissenting opinions contained therein) that opened the door to this restrictive approach, as follows: “80. As explained earlier, this Tribunal noted in Asariotis that moral damages may arise where there is evidence produced to the UNDT by way of a medical, psychological report or otherwise of harm, stress or anxiety caused to an employee which can be directly linked or reasonably attributed to a breach of his or her substantive or procedural rights so as to merit a compensatory award.”

Dissenting opinions

(…) 3. Like my colleagues Judge Thomas-Felix, Judge Lussick and Judge Chapman, I think that the harm for which compensation is requested must be supported by evidence and that a staff member’s testimony alone is not sufficient to present evidence supporting harm under Articles 9(1)(b) of the Appeals Tribunal Statute and 10(5)(b) of the UNDT Statute. 

It is important to point out, in the interest of providing a clear rule on this crucial issue, that this is the opinion of the majority of the Appeals Tribunal.

(…) 4. In my opinion, evidence of moral injury consisting exclusively of the testimony of the complainant is not sufficient without corroboration by independent evidence (expert or otherwise) affirming that non-pecuniary harm has indeed occurred.”

The examples mentioned above clearly demonstrate that the origins of the UNDT’s limited jurisdictional powers come not only from the internal legal framework and its systemic features, but also stem from a conservative jurisprudence emanating from the Appeals Tribunal.

(Undue) Interferences with the Jurisprudence

In 2022, the Secretary-General Report on the internal justice system (A/77/156) included a request for the General Assembly “(c) To approve the addition of paragraph 4 to article 9 of the Statute of the Dispute Tribunal, as set out in paragraph 128 above.”

According to the proposal, said Article 9 should read as follows:

Article 9

4. In hearing an application to appeal an administrative decision imposing a disciplinary measure, the Dispute Tribunal shall pass judgment on the application, determining whether the decision was a reasonable exercise of the Secretary-General’s authority based on the evidence before the Secretary-General at the time the administrative decision was taken. The applicant shall bear the burden of showing that the decision was not a reasonable exercise of the Secretary-General’s authority.

The underlying rationale for this proposal was the alleged “departure from past jurisprudence,” the fact that the Appeals’ tribunal was “redefining” the authority of the Secretary-General to impose disciplinary measures and its alleged failure to respect the operationally independent role of the Office of Internal Oversight Services.

Irrespective of the merits of the jurisprudence at stake, this proposal came out as a total surprise since it was not previously discussed with relevant stakeholders and included in said Report without prior consultation. This represents a breach of the UN long standing practices of dialogue and multilateralism and shows a lack of proper understanding of the role played by the jurisprudence and the judiciary.

In addition, it places an undue burden on the staff member who is subject to a disciplinary measure which goes against consistent and universally recognized defense rights.

In all democratic justice systems which operate under the rule of law, it is incumbent on the Organization to allege the facts and bring the evidence that demonstrates misconduct.

Jurisprudence is a dynamic tool which properly understood brings renewal to the organization as whole, forces it to evolve and induces change. It brings up the shortcomings and identifies grey areas where internal actors may (have to) improve their practices.

The SG proposal was rejected because all different staff associations from the UN Secretariat quickly mobilized and wrote an open letter to the Secretary-General.

This episode brings us to a last observation, i.e., the absence of legal standing for staff associations before the internal UN tribunals. This issue is strictly linked to the predominant administrative nature of the UN justice system.

Based on the concept of administrative decision, the system was not designed to contemplate judicial review of legal acts per se, but only to allow legal control over administrative acts.

The argument commonly used is that UN tribunals are not constitutional courts, and therefore it is not possible to review the legality of norms as this task can only be performed incidentally.

Here lies one of the main differences in relation to continental labor law systems in which unions and staff associations have legal standing before labor courts, where the legality of norms can be questioned and class actions admitted to defend/preserve “collective or bargain” rights.

It is unlikely that the UN justice system would evolve towards a more “labor-friendly approach” as this would mean a revolution in the way it was conceived. Nonetheless, it is possible to turn it into a more staff-friendly system if some changes are introduced, if judges have labor law experience, and legal teams are exposed to different settings and other normative systems. 


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