The Reform of the United Nations Administration of Justice System (“UNAJS”), which came into effect on 1st July 2009, was long overdue and has brought with it some significant improvements. Certain aspects however, long petitioned by staff associations, IAL practioners and academics, and recommended by the Redesign Panel on the UNSAJ, have not yet been achieved.
In its Resolution 61/261 of 4th April 2007, the General Assembly criticised the UNAJS by stating that is was “slow, cumbersome, ineffective and lacking in professionalism, and that the current system of administrative review is flawed”. It decided “to establish a new, independent, transparent, professionalized, adequately resourced and decentralized system of administration of justice consistent with the relevant rules of international law and the principles of the rule of law and due process to ensure respect for the rights and obligations of staff members and the accountability of managers and staff members alike”.
The overhaul of the administration of justice system was especially important for the United Nations Relief and Works Agency for Palestinian Refugees (“UNRWA”). Over the years, many cases were brought within its justice system by its employees, including a significant number of cases brought before the former UN Administrative Tribunal in New York (“old UNAT”). The large volume of cases within UNRWA’s internal justice system is hardly surprising considering that UNRWA employs over 29,000 local staff, and nearly 120 international staff members.
The structure of the previous formal justice system within the UN, including UNRWA, provided for a one-tier system. The main bodies in which the formal processes of the internal justice system were initiated (the Joint Appeals Board and the Joint Disciplinary Committee), conducted peer reviews which made recommendations on the dispute; these were then submitted to the UN’s Secretary-General (or the Commissioner-General in the case of UNRWA) who made the final decision. This decision could then be challenged by the staff member before the old UNAT.
In line with the UN’s new two-tier system of administration of justice and in agreement with the UN Secretary-General, UNRWA established its own first instance Dispute Tribunal, the UNRWADT in Amman, effective from 1st June 2010. A Special Agreement dated 11th December 2009 was concluded between the UN and UNRWA’s Commissioner-General by which UNRWA accepted the terms of the jurisdiction of the new UNAT.
As a transitional measure, appeals by UNRWA staff members following a Joint Appeals Board report were receivable by the UNAT if the final decision on the appeal was taken by the Commissioner General on or after 1 July 2009. The UNRWADT, through a single judge, has so far rendered 92 judgments in nearly three years which is a significant number. 44 applications were dismissed on receivability grounds, 39 applications were dismissed on the merits, two judgments were interpreted, one judgment was on remedies, five applications were successful and one was partially successful.
In an attempt to rebalance the inequality of arms between international organisations and their employees, the General Assembly in its resolution 63/253, decided that professional legal staff in the Office of Staff Legal Assistance shall assist staff members in processing claims through the formal system of administration of justice. In this respect, UNRWA has created the position of Legal Officer, based at UNRWA’s HQ in Amman, who advises staff on employment matters and who may assist in preparing staff submissions to the Agency, the UNRWADT and the UNAT. It remains to be seen how effective this assistance can be considering the vast number of UNRWA’s local staff.
Compared to the International Labour Organisation Administrative Tribunal (“ILOAT”), the potential remedies before the UNDT and UNAT are few in number. Although the Tribunals have the power to order rescission of the contested decision and specific performance, in cases where the contested administrative decision concerns appointment, promotion or termination, the Tribunal must indicate the amount of compensation that “the respondent may elect to pay as an alternative to the rescission of the contested decision or specific performance ordered” (Article 9 of the UN Appeals Tribunal’s Statute). In practice, the Secretary-General almost always opts for compensation instead of changing the wrongful decision. In contrast to this, the ILOAT decides itself whether or not rescission or specific performance is possible, and if not it awards compensation. The UNAT judged this to be “a glaring example of injustice and discrimination between the two categories of staff members working under the United Nations system”. This situation is particularly problematic in the case of UNRWA’s local staff, given the employment opportunities, or lack thereof, for many Palestinian Refugees.
Staff associations play an important role in protecting the interests of staff members of international organisations. The Redesign Panel recommended that because staff members are sometimes reluctant to enter the formal justice system for fear of reprisal, Staff Associations should have the right to bring actions independently to enforce the Staff Rules and Regulations. This recommendation has not yet been taken up and Staff Associations only have a right to submit a “friend of the court” brief (Article 17 of the UN Appeals Tribunal’s Rules of Procedure).
It remains to be seen how efficient the new UN internal justice system will be for UN and UNRWA staff members. At Bretton Woods Law, we will continue fighting to improve this system in the context of the Bretton Woods Law International Administrative Law Centre of Excellence.