United Nations Internal Justice System
- Settlement of employment disputes — International organizations, procedure
Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.
1 The author is responsible for the choice and the presentation of the facts contained in the article and for the opinions expressed therein, which are not necessarily those of the United Nations Educational, Scientific and Cultural Organization (UNESCO) and do not commit UNESCO.
B. The Former United Nations Internal Justice System (1949–2009)
2 Upon the liquidation of the League of Nations in 1946, the United Nations Organization (United Nations (UN)) was confronted with the problem of establishing a mechanism for the settlement of employment disputes. As pointed out by the International Court of Justice (ICJ) in its 1954 advisory opinion on the Effect of Awards of Compensation Made by the United Nations Administrative Tribunal (Administrative Tribunal: United Nations (UN)), when the UN Secretariat was organized, it was ‘inevitable that there would be disputes between the Organization and staff members as to their rights and duties’. Since the United Nations Charter contained no provision which authorized any of the principal organs to adjudicate these disputes and Article 105 secured for the UN jurisdictional immunities in national courts, it would have been ‘hardly consistent with the expressed aim of the Charter to promote freedom and justice for individuals and with the constant preoccupation of the United Nations Organization to promote this aim that it should afford no judicial or arbitral remedy to its own staff for the settlement of any disputes which may arise between it and them’ (ICJ Reports, 1954, 57).
3 The UN Preparatory Commission had recommended the creation of an administrative tribunal (Administrative Boards, Commissions and Tribunals in International Organizations), but several delegations unfamiliar with such an organ in their national civil services resisted the idea which they considered as interfering with the attributions of the UN Secretary-General (‘UNSG’; United Nations, Secretary-General) as the head of the Secretariat. For this reason, while the International Labour Organization (ILO) established its own administrative tribunal (‘ILOAT’) (Administrative Tribunal: International Labour Organisation (ILO)) as early as in 1946, it was only in 1949 that the UN General Assembly (‘UNGA’; United Nations, General Assembly) decided to create a tribunal competent to hear and pass judgment upon disputes involving staff members of the Secretariat, the so-called UN Administrative Tribunal (‘UNAdT’) (UNGA Res 351 (IV) (24 November 1949)).
4 Under this internal justice system, which remained in place until 2009, the review of each case was entrusted to an advisory board composed of staff members serving on a voluntary basis (one member selected by the UNSG, one member selected by the staff and one chairperson appointed by the UNSG in consultation with the staff), which operated in the main duty stations of the UN. Prior to appealing to one of such advisory boards, known as ‘joint appeals boards’, staff members wishing to contest an administrative decision had first to request an ‘administrative review’ by management (in the UN Secretariat, the Office of Human Resources Management). In the specific case of disciplinary matters, the UNSG had the obligation to refer the case, for advice, to a ‘joint disciplinary board’, prior to imposing any measure. In both instances, however, the outcome of the process was a recommendation made to the UNSG, who determined the case exercising his discretion as chief administrative officer of the UN.
5 The UNSG’s administrative decision was subject to judicial review by the UNAdT, which had jurisdiction ‘to hear and pass judgement upon applications alleging non-observance of contracts of employment’ of staff members or their ‘terms of appointment’ (Art 2 UNAdT Statute). The UNAdT was composed of seven members appointed for a mandate of four years renewable once; while the original version of the Statute did not indicate any required qualifications, an amendment of 2005 established that judges should ‘possess judicial experience in the field of administrative law or its equivalent within their national jurisdiction’. If the UNAdT found that the application was well founded, it could order the rescinding of the contested decision or the specific performance of the invoked obligation; however, it also had to fix the compensation amount to be paid to applicants for the injury sustained, should the UNSG decide, in the interest of the United Nations, that applicants had to be compensated without further action being taken in their case. Except in exceptional cases, such compensation could not exceed the equivalent of two years net base salary (Art 10 UNAdT).
6 The UNAdT’s ratione personae jurisdiction covered staff members of the UN Secretariat, as well as those of the funds and programmes (United Nations Development Programme (UNDP), the United Nations Children’s Fund (UNICEF), United Nations Population Fund (UNFPA), etc), the Office of the UN High Commissioner for Refugees (Refugees, United Nations High Commissioner for (UNHCR)), and the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). The UNAdT Statute included a provision providing that the UNAdT’s competence could be extended to any specialized agency upon the terms of a special agreement between such agency and the UNSG (Art 12 UNAdT Statute, as adopted by UNGA Res 351 (IV) (24 November 1949)), but only the International Civil Aviation Organization (ICAO) and the Inter-Governmental Maritime Consultative Organization (later, the International Maritime Organization (IMO)) concluded such agreements, respectively in 1960 and 1964. In 1955, on the recommendation of the UNGA, the specialized agencies participating in the UN Joint Staff Pension Fund (‘UNJSPF’) accepted the jurisdiction of the UNAdT l to decide on applications alleging the non-observance of the regulations of the Fund arising out of a decision of the Joint Staff Pension Board (UNGA Res 956 (X) (3 November 1955)). In 1997, the UNGA decided to amend this provision to extend the competence of the UNAdT to the staff of the ICJ Registry, to recognize formally the competence of the UNAdT in UNJSPF cases, and to open the possibility that the UNAdT’s competence be extended to international organizations participating in the UN common system of conditions of service (Amendment to Art 13 Statute of the United Nations Administrative Tribunal, Note by the Secretary-General (17 September 1997)). The International Seabed Authority (ISA) and the International Tribunal for the Law of the Sea (ITLOS) accepted the UNAdT jurisdiction on the basis of this amended provision.
7 In the early 1950s, after the UNAdT had decided in favour of eleven staff members who had been wrongfully dismissed by the UN, several delegations argued that the UNGA could decide not to pay compensation awarded by the UNAdT as it was one of its subsidiary organs. The matter was referred to the ICJ which found that the UNGA could not refuse to give effect to the UNAdT’s awards of compensation. According to the Court, while the UNAdT was subordinate to the UNGA in the sense that the latter could abolish it or amend its Statute, it was a judicial body which could make decisions binding on the UNGA (ICJ Reports, 1954, 61–62).
8 Following this advisory opinion, in 1955 the UNGA added a new provision in the UNAdT Statute (inspired by Art XII ILOAT Statute), providing for a possible ICJ review of the UNAdT’s judgments on the ground that the UNAdT had exceeded its jurisdiction, had failed to exercise jurisdiction vested in it, had erred on a question of law relating to the provisions of the UN Charter, or had committed a fundamental error in procedure that occasioned a failure of justice (Art 11 UNAdT Statute, as added by UNGA Res (57 (X) (8 November 1955)). Only three cases were brought to the ICJ under this provision (see: ICJ Reports, 1973, 166; ICJ Reports, 1982, 325; and ICJ Reports, 1987, 18), in all of which the Court upheld the UNAdT’s judgment. In 1995, noting that this procedure ‘has not proved to be a constructive or useful element in the adjudication of staff disputes within the Organization’, the UNGA decided to delete the provision (UNGA Res 50/54 (11 December 1995)).
C. The Reform of the UN Internal Justice System
9 With the growth of the UN, calls for reform started to be voiced. The perception was that the system had become overburdened and that it no longer responded efficiently to the needs of internal justice at the UN.
10 In 1978, noting jurisprudential divergences between the UNAdT and the ILOAT, the UNGA requested the Secretary-General and the Administrative Committee on Coordination (‘ACC’) to look into the possibility of establishing a single administrative tribunal for the entire UN common system (UNGA Res 33/119 (19 December 1978)). While this idea was not retained, several studies were undertaken at the UN during the 1980s, aiming at the progressive harmonization and further development of the statutes, rules, and practices of the two Tribunals (see, eg, Feasibility of establishing a single Administrative Tribunal, Report of the Secretary-General (15 June 1987), containing a description of prior initiatives). In parallel, the UNGA made requests for the Secretary-General to reinforce the UN system, calling on him ‘[t]o strengthen the various appeals machinery, with a view to eliminating the backlog of cases’ (UNGA Res 39/245 (18 December 1984)) and, ‘in his efforts to guarantee to staff members a just and expeditious resolution of disputes and grievances, to streamline the appeals procedures’ (UNGA Res 40/258 A (18 December 1985)).
11 In 1993, the UNGA took a further step calling on the Secretary-General ‘to undertake a comprehensive review of the system of administration of justice’ (UNGA Res 47/226 of (8 April 1993)). However, the Secretary-General’s proposals, particularly the idea of replacing the existing advisory boards with full-time professionalized arbitration and disciplinary panels (see UN Docs A/C.5/49/13 (8 November 1994), A/C.5/49/60 (18 March 1995), and A/C.5/50/2 (27 September 1995)), generated negative comments from delegations, and the Secretary-General committed to rethink the matter and prepare fresh proposals. In response to a renewed request from the UNGA (UNGA Res 55/258 (14 June 2001)), a revised set of proposals was presented in 2002 (UN Doc A/56/800 (13 February 2002)). The UNGA considered these proposals and remained seized of an item specifically devoted to the administration of justice at the UN, in which it repeatedly expressed its regret that the system continued to be ‘slow, cumbersome and costly’ with persistent ‘serious delays in the appeals process.’
12 In the meantime, the UN also made efforts to put in place informal means of conflict resolution in the workplace. In 1993, the UNHCR appointed a Mediator (later renamed ‘Ombudsman’ in 2009) and, in June 2002, the executive heads of UNDP, UNFPA, and the UN Office for Project Services (‘UNOPS’) established a common Office of the Joint Ombudsperson (Ombudsperson). Then, in October 2002, the Office of the UN Ombudsman was established in the Executive Office of the Secretary-General.
13 The decisive push for reform came in 2005 when the UNGA decided to form a panel of external and independent experts to consider redesigning the system of administration of justice (UNGA Res 59/283, 13 April 2005). After six months of inquiry, the Redesign Panel submitted a report, which found that ‘the United Nations internal justice system [was] outmoded, dysfunctional and ineffective and that it lack[ed] independence,’ and recommended the establishment of ‘a decentralized, streamlined and ultimately cost-efficient system’ (Report of the Redesign Panel on the United Nations System of Administration of Justice (28 July 2006)). The Panel highlighted several problems with the existing system including difficulties in recruiting volunteers for the advisory panels, concerns regarding the independence of these panels, delays in the handling of cases, uneven quality of the advisory reports, and even inconsistency in the UNAdT jurisprudence. This triggered a thorough process of reform, which led to the establishment, only three years later, of a fully revamped UN internal justice system.
14 In 2007, the UNGA 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’ (UNGA Res 61/261 (4 April 2007); see also UNGA Res 62/228 (22 December 2007) and 63/253 (24 December 2008)), which became fully operational on 1 July 2009.
15 Since then, the UNGA has continued to be actively involved with the new system. An item devoted to the ‘Administration of justice at the United Nations’, allocated both to the Fifth (Budgetary and Administrative) and Sixth (Legal) Committees (United Nations, Sixth Committee), remains on the agenda of the UNGA with a view to monitoring the implementation of the reform and the evolution of the new system, as well as considering outstanding issues such as the mechanisms of redress for non-staff personnel.
D. Institutional Structure of the New UN Internal Justice System
16 The new UN internal justice system is based on the articulation between two main branches: the informal and formal systems. This basic structure was already present in the former system but has been further elaborated and enhanced in the new one.
17 One of the key convictions that inspired the reform was that ‘informal resolution of conflict is a crucial element of the system of administration of justice’ and that ‘all possible use should be made of the informal system in order to avoid unnecessary litigation’ (UNGA Res 61/261 (4 April 2007)). The new system therefore puts a lot of emphasis on the different means of informal dispute resolution and reinforces the structure and mandate of the offices active in this field. The cornerstone of the institutional framework for informal conflict resolution is the creation of a ‘single integrated and decentralized’ Office of the UN Ombudsman and Mediation Services (‘UNOMS’), which is headed by the UN Ombudsman and comprises dedicated ombudsmen for each of its three constituencies (the Secretariat, the UNHCR, and the funds and programmes). While its headquarters are in New York, it includes seven regional branches, each with a regional ombudsman. UNOMS has a dual role of informal dispute resolution and independent monitoring on crosscutting issues regarding managerial practices and employment relations. The Ombudsman has also received the mandate ‘to report on broad systemic issues that he or she identifies, as well as those that are brought to his or her attention’, in order ‘to promote greater harmony in the workplace’ (UNGA Res 61/261 and 62/228).
18 The most important innovation of the new UN internal justice system is in the formal branch with the establishment of a two-tier system of administration of justice comprising a first instance UN Dispute Tribunal (‘UNDT’) and a UN Appeals Tribunal (‘UNAT’).
19 The prior advisory boards were abolished and all their pending cases were transferred to the newly-formed UNDT which started to operate on 1 July 2009. The UNAdT ceased to accept new cases as of the same date and was abolished on 31 December 2009 with all its pending cases also being transferred to the UNDT. The UNAT was established as a new body which started to operate as of 1 July 2009 (UNGA Res 61/261).
20 The UNDT is currently composed of three full-time judges and six half-time judges (UNGA Res 73/276 (22 December 2018); see also Art 4 (1) UNDT Statute; up to 2019, the UNDT comprised only two half-time judges: UNGA Res 62/228) and the UNAT (similarly to the former UNAdT) is composed of seven judges (UNGA Res 62/228; see also Art 3 (1) UNAT Statute). In both Tribunals, judges are appointed by the UNGA on the recommendation of the Internal Justice Council. No two judges within each Tribunal shall be of the same nationality and due regard is to be given to geographical distribution and gender balance (Art 4 (2) UNDT Statute; Art 3 (2) UNAT Statute). Judges are appointed for one nonrenewable term of seven years and shall not be eligible for any appointment within the United Nations, except another judicial post, for a period of five years following their term of office; they shall also not be eligible to serve in the other Tribunal (Art 4 (4) UNDT Statute; Art 3 (4) UNAT Statute). They serve in their personal capacity and enjoy full independence and may only be removed by the UNGA for misconduct or incapacity (Art 4 (8) and (10) UNDT Statute; Art 3 (8) and (10) UNAT Statute).
21 Upon the establishment of the new system, the UNGA decided that, in addition to the permanent judges, three ad litem judges would be appointed to the UNDT and assigned to each of the duty stations of the UNDT for a period of one year (UNGA Res 63/253). This was a transitional measure aimed at assisting the UNDT in clearing the backlog inherited from the old system. The argument had long been made that the composition of the UNDT should actually be strengthened on a permanent basis (see, eg, Report of the Internal Justice Council). In 2018, the UNGA ended the use of ad litem judges and decided on the reinforcement of the UNDT structure, after a transitional phase, increasing the number of half-time judges from two to six (UNGA Res 73/276).
22 To be eligible for appointment as a judge, a person shall: be of high moral character and impartial; possess at least ten years in the field of administrative law or the equivalent within one or more national jurisdictions (for the UNDT) or 15 years of judicial experience in the field of administrative law, employment law, or the equivalent within one or more national jurisdictions (for the UNAT); and be fluent, both orally and in writing, in English or French (Art 4 (3) UNDT Statute; Art 3 (3) UNAT Statute). An amendment adopted in 2014 specifies that, for UNAT judges, relevant academic experience, when combined with practical experience in arbitration or the equivalent, may be taken into account towards five of the qualifying 15 years (UNGA Res 69/203 (18 December 2014)).
23 The three full-time UNDT judges exercise their functions in New York, Geneva, and Nairobi, respectively, on a permanent basis (Art 5 UNDT Statute; Art 4 UNDT Rules). Halftime judges serve in any of the three duty stations depending on the needs of each duty station. The UNDT may also decide to hold sessions at other duty stations as required by its caseload (Art 5 UNDT Statute; Art 4 UNDT Rules), and it has indeed done so (eg, in Addis Ababa or Kinshasa). UNAT judges do not sit on a permanent basis, rather meeting in sessions for the purposes of hearing the cases before them. The UNAT exercises its functions in New York and normally holds two ordinary sessions per calendar year; it may decide to hold sessions in Geneva and Nairobi, as required by its caseload (Art 4 UNAT Statute; Art 4 UNAT Rules).
24 Each year, the UNDT elects a President for a renewable term of one year, and the UNAT elects a President, a First Vice-President and a Second Vice-President (Art 4 (7) UNDT Statute and Art 1 UNDT Rules; Art 3 (7) UNAT Statute and Art 1 UNAT Rules). The Statutes and Rules of Procedure of both Tribunals entrust certain functions to the Presidents (eg, supervision of the work of the Registries; procedure of recusal of a judge). Both Tribunals hold plenary meetings to deal with questions affecting their administration or operation.
25 The two-tier system of administrative tribunals is not the only institutional innovation of the reform.
26 A five-member Internal Justice Council was also established, consisting of a staff representative, a management representative, and two distinguished external jurists, one nominated by the staff and one by management, and chaired by a distinguished jurist chosen by consensus by the four other members. This Council conducts the selection process for judicial vacancies and makes recommendations to the UNGA with the objective of providing ‘expert and unbiased advice … on the merit of judicial candidates’ and ensuring transparency in the selection process (Administration of justice at the United Nations, Report of the Internal Justice Council (18 June 2012)). Upon its establishment, the Council was assigned specific functions such as the drafting of a code of conduct for the judges (which was adopted by UNGA Res 66/106 (9 December 2011)) and providing its views on the implementation of the new system (which it does through annual reports to the UNGA). Over the years, the UNGA has bestowed upon the Council additional tasks, confirming that it considers it a key element to monitor the implementation of the system. However, in 2014, the UNGA decided on the appointment of a separate Panel to conduct an interim independent assessment of the UN internal justice system (see: Report of the Interim Independent Assessment Panel on the system of administration of justice at the United Nations, Annex (15 April 2016)).
27 An independent office, known as the Office of Administration of Justice, was created. It is responsible for the overall coordination of the formal system and for contributing to its functioning in a fair, transparent and efficient manner (Organization and terms of reference of the Office of Administration of Justice, Secretary-General’s Bulletin (7 April 2010)). Headed by an Executive Director, it provides substantive, technical, and administrative support to the Tribunals through their Registries (including a Principal Registrar, three Registries in each of the seats of the UNDT and one UNAT Registry), assists staff members and their representatives in pursuing claims and appeals through the Office of Staff Legal Assistance, and provides support to the Internal Justice Council.
28 The reform also abolished the old process of administrative review, which was considered inefficient and was replaced with a ‘management evaluation function, as a first step in the formal justice system’ (Report of the Redesign Panel on the United Nations system of administration of justice, Note by the Secretary-General (23 February 2007)). A new Management Evaluation Unit was established in the Department of Management of the UN Secretariat and was tasked with conducting an impartial and objective evaluation of administrative decisions contested by staff members of the Secretariat to assess whether the decision was made in accordance with rules and regulations. The Unit also advises the Under-Secretary-General for Management on issues relating to the use of decision-making authority and managerial accountability in relation to the system of administration of justice (Organization of the Department of Management, Secretary-General’s Bulletin (6 December 2010); the funds and programmes carry out the management evaluation function through their own administrative structures). This innovation was seen as ‘an essential management tool for executive heads to hold managers accountable for their decisions,’ which would ‘give management an early opportunity to review a contested decision, to determine whether mistakes have been made or whether irregularities have occurred and to rectify those mistakes or irregularities before a case proceeds to litigation’ (Report of the Redesign Panel on the United Nations system of administration of justice, Note by the Secretary-General (23 February 2007)).
E. Procedural Aspects of the UN Dispute Tribunal and the UN Appeals Tribunal
1. Statute, Rules of Procedure, and Practice Directions
29 The work of the UNDT and the UNAT is governed by their respective Statutes which were adopted by UNGA Resolution 63/253 of 24 December 2008.
30 Both Statutes provide that each Tribunal shall establish its own rules of procedure, also indicating some elements that shall necessarily be included therein, such as the organization of work, the presentation of submissions and the procedure to be followed in this respect, oral hearings, publication of judgments, functions of the Registries, evidentiary procedure, etc. The rules or procedure established by the Tribunals are ‘subject to approval by the General Assembly’ (Art 7 UNDT Statute; Art 6 UNAT Statute) and were indeed approved in 2010 (UNGA Res 64/119 (16 December 2009)). While the UNDT Rules have never been amended (one amendment adopted by the UNDT in 2011 was not approved by the UNGA), the UNAT has amended its Rules several times (see: UNGA Res 66/107 (9 December 2011), 66/237 (24 December 2011), 67/241 (24 December 2012), 70/112 (14 December 2015), and 73/276 (22 December 2018)).
31 Both Tribunals also issue, without approval by the UNGA, ‘practice directions’ to implement the Rules of procedure: to date the UNAT has issued one practice direction (relating to the filing of documents and case management) and the UNDT six practice directions (on three-judge panels, legal representation, mediation, filing of applications and replies, filing of motions and responses, and records).
2. Jurisdiction Ratione Personae
32 When the UNGA put the new system in place in 2008 it decided that ‘individuals who have access to the current system of administration of justice shall have access to the new system’ (UNGA Res 63/253). Accordingly, the UNDT Statute provides that an application may be filed by: (a) any UN staff member, including the UN Secretariat or funds and programmes; (b) any former UN staff member of the United Nations; and (c) any person making claims in the name of an incapacitated or deceased UN staff member (Art 3 (1) UNDT Statute). Under the UNAT Statute, an appeal may be filed by the applicant or a person making claims in the name of an incapacitated person or deceased applicant (Art 2 (2) UNAT Statute). The UNAT has clarified that, in some restrictive cases, an individual who is not formally a staff member may have access to the Tribunals: this is the case, for example, if the person has begun to exercise his or her functions based on acceptance of an offer of employment, given that in this case, having expressly treated this person as a staff member, the UN must be regarded as extending to him or her the protection of its justice system (Gabaldon, 2011).
33 Under their respective Statutes, the UNDT and UNAT may also have jurisdiction to hear and pass judgment on an application filed against a specialized agency or other international organization or entity established by a treaty and participating in the common system of conditions of service. The exercise of such jurisdiction is subject to a special agreement concluded between the agency, organization, or entity concerned and the UN Secretary-General to accept the terms of the jurisdiction of the Tribunals, consonant with their Statutes (Art 2 (5) UNDT Statute; Art 2 (10) UNAT Statute). To date, such agreements have been concluded with: the ICAO; the ICJ; the IMO; UNRWA; the ISA; the ITLOS; and the World Meteorological Organization (WMO). All these entities have opted to accept the competence of the UNAT, preserving their own internal process in first instance. In the case of UNRWA, a separate Dispute Tribunal was established with its seat in Amman (Jordan) and a statute and rules of procedure similar to those of the UNDT.
34 The UNAT also receives appeals from any staff member organization of the UNJSPF which has accepted the UNAT jurisdiction in Pension Fund cases (see below), any person who has acceded to such staff member’s rights upon his or her death, or any other person who can show that he or she is entitled to rights under the regulations of the Pension Fund (Art 2 (9) UNAT Statute).
35 The question of a possible extension of the new system to ‘non-staff personnel’ remains under discussion. This category comprises a considerable number of individuals with different relationships of employment with the UN such as UN volunteers, consultants, individual contractors, personnel under service contracts, personnel under service agreements, and daily paid workers. The Redesign Panel and the Secretary-General had initially recommended that these individuals also have access to the formal system. However, when it launched the new internal justice system the UNGA decided to continue to explore ways to ensure effective remedies for non-staff personnel (for example, a simplified dispute settlement mechanism, such as an expedited arbitration procedure). The UNGA remains actively seized with this matter.
36 In the preparatory works of the reform, the Redesign Panel, noting that staff members are sometimes reluctant to enter the formal justice system for fear of reprisals, had recommended to give UN staff associations a right of class or representative action to enforce the staff rules and regulations (UN Doc A/61/205; see also the comments of the Secretary-General on the Redesign Panel’s report: UN Doc A/61/758). However, this recommendation was not followed by the UNGA, and all that remains is a provision in the UNDT Statute stating that the UNDT ‘shall be competent to permit or deny leave to an application to file a friend-of-the-court brief by a staff association’ (Art 2 (3) UNDT Statute; see also Art 17 UNAT Rules).
3. Jurisdiction Ratione Materiae
37 The UNDT is competent to hear and pass judgment on an application filed by an individual (a) to appeal an administrative decision that is alleged to be in non-compliance with the terms of appointment or the contract of employment of the applicant, (b) to appeal an administrative decision imposing a disciplinary measure, and (c) to enforce the implementation of an agreement reached through mediation (Art 2 (1) UNDT Statute).
38 In its case law, the UNAdT defined an ‘administrative decision’ as ‘a unilateral decision taken by the administration in a precise individual case …, which produces direct legal consequences to the legal order’ (Andronov, 2003; referred to in several decisions in the new system, eg, Hamad, 2012, Al Surki et al, 2013). Appealable administrative decisions are characterized by the fact that they are taken by the Administration, are unilateral and of individual application, and carry direct legal consequences for the applicant. Administrative decisions are not necessarily written and therefore an individual may also appeal so-called implied administrative decisions such as the Administration’s failure to take appropriate measures, eg the non-renewal of an appointment (Andronov; Tabari, 2010).
39 According to the above case law, administrative decisions are to be distinguished from administrative acts having a regulatory power such as rules and regulations. Article 2 (1) (a) of the UNDT Statute points out that ‘[t]he terms ‘contract’ and ‘terms of appointment’ include all pertinent regulations and rules and all relevant administrative issuances in force at the time of alleged non-compliance’. The question has been raised whether, in considering an appeal against an administrative decision, the UNDT and UNAT may review the legality of acts of the governing body of the UN. Contrary to other administrative tribunals (see the Statute of the Administrative Tribunal: International Monetary Fund (IMF)), the UNDT and UNAT statutes are silent on the matter. However, in light of the Tribunals’ case law, the UNGA has taken the view in several resolutions that the Tribunals ‘shall not have any powers beyond those conferred under their respective statutes’ (UNGA Res 63/253, 66/237, 67/241, 68/254, 69/203, and 73/276). The UNGA has also stated that the Tribunals’ decisions ‘shall conform with the provisions of General Assembly resolutions on issues related to human resources management’ (UNGA Res 68/254 (27 December 2013)) and that ‘the decisions of the Assembly related to human resources management and administrative and budgetary matters are subject to review by the Assembly alone’ (UNGA Res 73/276 (22 December 2018)).
40 The UNAT is competent to hear and pass judgment on an appeal filed against a UNDT judgment in which it is asserted that the UNDT has: (a) exceeded its jurisdiction or competence, (b) failed to exercise jurisdiction vested in it, (c) erred on a question of law, (d) committed an error in procedure such as to affect the decision of the case, or (e) erred on a question of fact, resulting in a manifestly unreasonable decision (Art 2 (1) UNAT Statute). The UNAT is also competent to hear and pass judgment on an appeal of a decision of the Standing Committee acting on behalf of the UNJSPF, alleging non-observance of the UNJSPF regulations (Art 2 (9) UNAT Statute). Finally, as noted above, the UNAT is competent to hear and pass judgment on applications from staff of those agencies, organizations or entities that have accepted its jurisdiction. With the only exception of UNRWA (where the UNAT serves as the appeals tribunal for the UNRWA Dispute Tribunal), all these agencies, organizations, and entities do not have a first instance tribunal but instead rely on a peer-review mechanism similar to the one used by the UN under its old internal justice system. The UNAT is therefore the first judicial instance, with jurisdiction to review administrative decisions taken by the head of the agency, organization, or entity concerned.
41 The UNAT Statute does not clarify whether it may review only UNDT judgments on merits, or whether an interlocutory decision may also be subject to appeal. The UNAT has emphasized that most appeals against interlocutory decisions, eg, on matters of evidence, procedure and trial conduct, are not receivable. However, it has found that an interlocutory appeal, eg, against a UNDT decision granting a suspension of action on an administrative decision, is receivable if the UNDT has clearly exceeded its jurisdiction or competence (Tadonki, 2010; Onana, 2010; Kasmani, 2010; Bertucci, 2010).
42 Both the UNDT and the UNAT have jurisdiction to consider applications for revision, correction of clerical or arithmetical mistakes, or interpretation of their judgments. They are also called upon, in certain cases, to make an order for the execution of their judgments, if it has not been carried out (Art 12 UNDT Statute; Art 11, UNAT Statute).
4. Applicable Law
43 While the statutes do not contain any provision on the law that should be applied in settling employment disputes, the Tribunals have clarified the matter in their case law.
44 The UNDT has referred to a ‘hierarchy of the UN’s internal legislation’, which is headed by the UN Charter, followed by UNGA resolutions, staff regulations and rules, Secretary-General bulletins, and administrative instructions (Hastings, 2009). The UNDT has further clarified that ‘[i]nformation circulars, office guidelines, manuals, and memoranda are at the very bottom of this hierarchy and lack the legal authority vested in properly promulgated administrative issuances’ (Villamoran, 2011).
45 UN administrative tribunals have consistently referred to the UN Charter in their jurisprudence. In as early as 1951, the UNAdT made explicit use of the provisions of the UN Charter to determine the role of internal justice mechanisms and the limits to the Secretary-General’s power to terminate employment contracts (Aglion, 1954). Both the UNDT and UNAT have also often invoked the UN Charter (for the UNDT, see, eg: Hastings, Villamoran; for the UNAT see, eg: Sandiwi, 2010, Megerditchian, 2010, Ljungdell, 2012; Valimaki-Erk, 2012).
46 In addition, UN administrative tribunals have had recourse to other sources of international law, such as treaties (other than the UN Charter), customary law and, most of all, general principles of law. The invocation of general principles of law is often implicit in the judgments, eg, in how legal instruments are interpreted or damages are calculated, but occasionally the Tribunals have explained their rationale. For example, the Tribunals have justified their recourse to the principle of ‘equal pay for equal work’ with reference to the Universal Declaration of Human Rights (1948) (Tabari), the Noblemaire principle according to which international civil servants shall receive equal pay for work of equal value at a level that will draw and keep citizens of countries where salaries are highest (Muthuswami et al, 2010) or the International Covenant on Economic, Social and Cultural Rights (1966) and the ILO Equal Remuneration Convention No 100 (Chen, 2010). The UNDT has also pointed out that, while the UN employment relationship ‘is governed by the internal law prevailing within the Organization’ and that ‘national labour laws do not constitute part of the internal law of the Organization’, ‘international tribunals may rely on, among other sources, general principles of law—including international human rights law, international administrative law and labour law—which may be derived from, inter alia, international treaties and international case law’ (Obdeijn, 2011).
47 In light of this case law, the UNGA has affirmed that ‘recourse to general principles of law and the Charter of the United Nations by the Tribunals is to take place within the context of and consistent with their statutes and the relevant General Assembly resolutions, regulations, rules and administrative issuances’ (UNGA Res 68/254 (27 December 2013), 69/203 (18 December 2014)).
48 Applications to the Tribunals must be filed within strict time limits and after all other remedies available in the UN have been exhausted.
49 Under the UN staff rules, a staff member wishing to formally contest an administrative decision shall, as a first step, submit a request for a management evaluation. This request must be submitted within 60 calendar days from the date of notification of the administrative decision. The outcome of the management evaluation shall then be communicated in writing to the staff member within 30 calendar days of receipt of the request if the staff member is stationed in New York, and within 45 calendar days if the staff member is elsewhere. All these deadlines may be extended pending efforts for informal resolution of the matter (UN Staff Rule 11.2, 1 January 2014). The UNAT has found that a management evaluation review is not, in itself, a fresh administrative decision subject to judicial review since it does not produce direct legal consequences on the staff member’s terms and conditions of appointment (Kalashnik, 2016). Administrative decisions taken pursuant to advice obtained from technical bodies and disciplinary decisions are not subject to management evaluation and may be appealed directly to the UNDT.
50 A special procedure in the UNDT is the so-called suspension of action during a management evaluation. Under Article 2 (2) UNDT Statute, a staff member may file an application to suspend the implementation of a contested administrative decision that is the subject of an ongoing management evaluation where the decision appears prima facie to be unlawful, in cases of particular urgency, and where its implementation would cause irreparable damage.
51 The Tribunals’ jurisprudence has clarified these three conditions. It has held that the prerequisite of prima facie unlawfulness ‘does not require more than serious and reasonable doubts about the illegality of the contested decision’ (Hepworth, 2009) and that it is sufficient for the applicant ‘to present a fairly arguable case that the contested decision was influenced by some improper considerations, was procedurally or substantively defective, or was contrary to the Administration’s obligation to ensure that its decisions are proper and made in good faith’ (Villamoran). It has also noted that, given the requirement of urgency, the applicant ‘must come to the Tribunal at the first available opportunity, taking the particular circumstances of her or his case into account’ (Evangelista, 2011). The UNDT has held that the requirement of irreparable harm exists when suspension of action is the only way to ensure that the applicant’s rights are observed (Fradin de Bellabre, 2009). It has found that such harm ‘may already be at hand where serious harm to professional reputation and career prospects or on health or unemployment after a very long time of service would result from the implementation of the contested decision’ (Corcoran, 2009). It has also indicated that suspension of action is not available when the contested administrative decision has already been implemented (Tiwathia, 2012), for example in the case of non-renewal of an appointment after its expiration.
52 An application on the merits to the UNDT may be presented in any of the UN official languages (Art 8 (6) UNDT Statute). Cases are usually handled electronically and applications are filed online: the Office of Administration of Justice has established an e-Filing Portal which is used for case management throughout the proceedings.
53 Applications must be filed within 90 calendar days of the applicant’s receipt of the response to the management evaluation request, or within 90 calendar days of the expiry of the response period if no response was provided. In cases where management evaluation is not required, the application shall be filed within 90 days of the applicant’s receipt of the administrative decision (Art 8 (1) UNDT Statute). The UNDT may, upon written request by the applicant, suspend or waive these deadlines but only in exceptional circumstances. The UNAT has pointed out that ‘a delay can generally be excused only because of circumstances beyond an applicant’s control,’ and that ‘ignorance of law is no excuse and every staff member is deemed to be aware of the provisions of the Staff Rules’ (Diagne et al, 2010). At the UNAT, applications alleging non-observance of the UNJSPF regulations must be filed within 90 calendar days of the receipt of the Board’s decision (Art 7 (2) UNAT Statute); this deadline may be suspended or waived upon written request and only in exceptional circumstances (Art 7 (3), UNAT Statute).
54 The filing of an application does not have the effect of suspending the implementation of the contested administrative decision (Art 8 (5) UNDT Statute). However, at any time during the proceedings the UNDT may order interim measures to provide temporary relief to either party where the contested administrative decision appears prima facie to be unlawful, in cases of particular urgency, and where its implementation would cause irreparable damage. This temporary relief may include an order to suspend the implementation of the contested administrative decision but the Statute imposes an important exception in that this is not possible in cases of appointment, promotion or termination (Art 10 (2) UNDT Statute).
55 Cases before the UNDT are normally considered by a single judge. In the preparatory works of the reform, the Staff-Management Coordination Committee and the Secretary-General had rather taken the view that, to reflect the multicultural nature of the UN, cases should always be reviewed by a panel of three judges (see: Report of the Redesign Panel on the United Nations system of administration of justice, Note by the Secretary-General, 23 February 2007; Administration of justice: further information requested by the General Assembly, Report of the Secretary-General, 14 March 2008). While this proposal was not retained by the UNGA, the UNDT Statute provides that the UNAT President may, upon written request from the UNDT President, authorize the referral of a case to a panel of three UNDT judges, when necessary, by reason of the particular complexity or importance of the case (Art 10 (9) UNDT Statute). This burdensome mechanism, together with the logistical challenge due to the limited number of UNDT judges in each duty station, explains why cases are rarely considered by a panel of three judges in first instance. To the contrary, at the UNAT, appeals are normally reviewed by a panel of three judges; when the President or any two judges sitting on a particular case consider that the case raises a significant question of law, the case may be referred for consideration by the whole UNAT, ie, by seven judges (Art 10 (1) and (2) UNAT Statute).
56 As regards legal representation, the Rules of Procedure of the Tribunals provide that a party ‘may present his or her case … in person, or may designate counsel from the Office of Staff Legal Assistance or counsel authorized to practice law in a national jurisdiction’; in addition, ‘[a] party may also be represented by a staff member or a former staff member of the United Nations or one of the specialized agencies’ (Art 12 UNDT Rules; Art 13 UNAT Rules). Under the UNDT Statute, applications are filed ‘against the Secretary-General as the Chief Administrative Officer of the United Nations’ (Art 2 (1) UNDT Statute). In UNDT proceedings, the Secretary-General’s legal representation is ensured by a variety of offices, mainly the Administrative Law Section in the Office of Human Resources Management (Department of Management) for UN Secretariat cases, and the relevant legal offices for cases relating to each of the funds and programmes. Representation before the UNAT in all cases is entrusted to the General Legal Division at the Office of Legal Affairs of the Secretariat as the central legal service of the UN. In 2016, the UNGA has approved a Code of Conduct for Legal Representatives and Litigants in Person (UNGA Res 71/266, Annex (23 December 2016)).
57 Judicial proceedings necessarily include a written phase. At the UNDT, the respondent (the Secretary-General) is required to file a reply within 30 calendar days of the date of receipt of the application (Art 10 UNDT Rules). At the UNAT, the respondent (either the Secretary-General or the staff member, depending on who filed the appeal) is required to file an answer within 60 days of the date of receipt of the appeal; within the same deadline, the party answering the appeal may file a cross-appeal, accompanied by a brief, which is then transmitted to the appellant who may file an answer.
58 The UNDT has absolute control over the proceedings. Under the title ‘Case Management’, Article 19 UNDT Rules of Procedure provides that the UNDT ‘may at any time, either on an application of a party or on its own initiative, issue any order or give any direction which appears to a judge to be appropriate for the fair and expeditious disposal of the case and to do justice to the parties’ (see also, in similar terms, Art 18 bis UNAT Statute). The Tribunal may, for example, order production of documents or such other evidence as it deems necessary (Art 9 UNDT Statute; Art 8 UNAT Statute). It may also choose to hold oral proceedings, which are public, unless the Tribunal decides that exceptional circumstances require the proceedings to be closed (Art 9 (2) and (3) UNDT Statute; Art 8 (3) and (4) UNAT Statute).
59 In keeping with the emphasis put by the reform on informal resolution, the UNDT Statute provides that at any time during the deliberations the UNDT may propose to refer the case to mediation. In this case, with the consent of the parties, it shall suspend the proceedings for a time specified by it. If a mediation agreement is not reached within this period of time, the UNDT shall continue with its proceedings unless the parties request otherwise (Art 10 (3) UNDT Statute). The UNDT Statute also provides for the possibility for the UNDT, if it finds that a relevant procedure prescribed in the staff regulations or rules or applicable administrative issuances have not been observed, to remand the case for institution or correction of the required procedure; it may order payment of compensation for procedural delay to the applicant for any loss in such a case (Art 10 (4) UNDT Statute).
60 The Tribunals’ deliberations are confidential (Art 11 (2) UNDT Statute; Art 10 (4) UNAT Statute). UNDT cases are decided by a single judge or, when considered by a panel of three, by a majority vote; UNAT cases are always decided by a majority vote, with a quorum of five for cases considered by the full Tribunal (Art 10 (9) UNDT Statute; Art 10 (1) and (2) UNAT Statute).
61 Judgments of both Tribunals shall be issued in writing and shall state the reasons, facts, and law on which they are based (Art 11 (1) UNDT Statute; Art 10 (3) UNAT Statute). They shall be drawn in any of the UN official languages (Art 11 (4) UNDT Statute; Art 10 (7) UNAT Statute) and shall be published while protecting personal data (Art 11 (4) UNDT Statute; Art 10 (7) UNAT Statute).
62 UNDT judgments are binding upon the parties but are subject to appeal. In the absence of such appeal, they shall be executable following the expiry of the time provided for appeal (Art 11 (3) UNDT Statute).
63 Under the UNAT Statute, an appeal must be filed within 60 calendar days of the receipt of the UNDT judgment, or within 30 calendar days of the receipt of the UNDT interlocutory order or, where the UNAT has decided to waive or suspend that deadline (which it may do upon written request and only in exceptional circumstances), within the period specified by the UNAT (Art 7 (1) UNAT Statute). Under Article 8 (6) UNAT Rules of Procedure, as amended in 2015, the filing of an appeal suspends the execution of the judgment or order contested. As a result of its review, the UNAT may affirm, reverse, modify, or remand the UNDT judgment (Art 2 (3) UNAT Statute). Its judgment is binding upon the parties, final and without appeal (Art 10 (5) and (6) UNAT Statute).
64 The UNAT has clearly affirmed that the principle of stare decisis applies in the context of the new UN internal system of justice. In a case stemming from a UNDT decision in contravention to its own clear and consistent jurisprudence, the UNAT affirmed that:
There can be no doubt that the legislative intent in establishing a two-tier system was that the jurisprudence of the Appeals Tribunal would set precedent, to be followed in like cases by the Dispute Tribunal. The principle of stare decisis applies, creating foreseeable and predictable results within the system of internal justice. The Appeals Tribunal has the power of judicial review of the Dispute Tribunal’s decision making, and the Dispute Tribunal should recognize, respect and abide by the Appeals Tribunal’s jurisprudence (Igbinedion, 2014).
65 According to its Statute, the UNDT, as part of its judgment, may only order one or both of the following: (a) rescission of the contested administrative decision or specific performance; or (b) compensation for harm, supported by evidence. In its review of the Statutes, the UNGA has taken steps to delimit the power of the Tribunals with respect to remedies: the text in the Statutes indicating that the Tribunals may ‘only’ order one or both of the remedies, and the requirement that compensation be ‘for harm, supported by evidence’ are the result of amendments adopted in 2014 (UNGA Res 69/203 (18 December 2014)).
66 When ordering rescission or specific performance with regard to administrative decisions concerning appointment, promotion or termination, the UNDT shall also set an amount of compensation that the Secretary-General may elect to pay as an alternative to the rescission of the contested administrative decision or specific performance ordered. Compensation shall normally not exceed the equivalent of two years net base salary of the applicant, but the UNDT may, in exceptional cases, order the payment of a higher compensation for harm, supported by evidence, while providing the reasons for that decision (Art 10 (5) UNDT Statute; Art 9 (1) UNAT Statute). The UNAT has interpreted this provision as meaning that the total of all compensation ordered, either as an alternative to rescission or directly for harm suffered, should remain within the two years’ limit, except in exceptional circumstances (Mmata, 2010).
67 The UNAT has also found that, notwithstanding the absence of an express provision in their Statutes, the Tribunals have jurisdiction to order the payment of interest (Warren, 2010). On the other hand, the Statutes explicitly provide that the Tribunals ‘shall not award exemplary or punitive damages’ (Art 10 (7) UNDT Statute; Art 9 (3) UNAT Statute).
68 Where the Tribunal determines that a party has manifestly abused the proceedings before it, it may award costs against that party (Art 10 (6) UNDT Statute; Art 9 (2) UNAT Statute), which the Tribunals have done in some cases (see, eg, Gehr, 2013). The UNAT has emphasized that to award such costs there shall be evidence of ‘delay [that] was clearly and unmistakably a wrong or improper use of the proceedings of the court’ and that was ‘frivolous or vexatious’ (Bi Bea, 2013).
69 The UNAT has indicated that ‘[c]ompensation may only be awarded if it has been established that the staff member actually suffered damages’ and that the Tribunal ‘may thus award compensation for actual pecuniary or economic loss, non-pecuniary damage, procedural violations, stress, and moral injury’ (Antaki, 2010). It has pointed out that ‘[t]he very purpose of compensation is to place the staff member in the same position he or she would have been in had the Organization complied with its contractual obligations’ (Warren) and that ‘damages must be proportionate to the harm suffered’ (Marshall, 2012)
70 When calculating compensation as an alternative to rescission of the contested administrative decision or specific performance, the UNAT has indicated that elements to be considered include the nature and level of the post formerly occupied by the staff member, the remaining time of appointment, the chances of renewal, etc (Mushema, 2012).
71 The Tribunals have awarded compensation for moral injury in several cases. While this has been subject to some controversy, it is not disputed, according to the UNAT, that ‘compensation may be awarded for non-pecuniary damage,’ eg in the case of neglect or emotional distress, and that this does not amount to punitive or exemplary damages (Wu, 1 July 2010). The UNAT has pointed out that the identification of the moral injury ‘will necessarily depend on the facts of each case’, but has indicated that, by way of general principle, such damage may arise (i) from a breach of the employee’s substantive entitlements arising from his or her contract of employment and/or a breach of the procedural due process entitlements therein guaranteed (where the breach is of a fundamental nature, the breach may of itself give rise to an award of moral damages, not in any punitive sense), and/or (ii) where there is evidence by way of a medical, psychological report or otherwise of harm, stress or anxiety caused to the employee which can be directly linked or reasonably attributed to a breach of his or her substantive or procedural rights (Asariotis, 2013). In any event, the UNAT has made it clear that no compensation for moral damages shall be awarded when there is no evidence whatsoever to sustain such harm or prejudice (eg, Al Hallaj, 2018).
72 The UNDT Statute also provides that the UNDT may refer appropriate cases to the Secretary-General or the executive heads of the funds and programmes for possible action to enforce accountability (Art 10 (8) UNDT Statute). The UNDT has had to resort to this in some cases which have triggered appeals from the UNGA for the Secretary-General ‘to ensure the accountability of managers whose decisions have been established to be grossly negligent … and which have led to litigation and subsequent financial loss’ (see, eg, UNGA Res 70/112 (14 December 2015); 71/266 (24 December 2017); 72/256 (24 December 2017)).
73 The UN internal justice system serves a sizeable workforce of more than 75,000 staff members (Composition of the Secretariat: staff demographics, Report of the Secretary-General (12 April 2018)). It has adapted to the transformations and challenges faced by the UN as a whole, including its institutional growth, wider and more diverse workforce and complexification of the rules applicable to the international civil service (Civil Service, International), as well as financial imperatives. Reform took time: while calls for change were voiced as early as in the 1970s, it is only in the last decade that the UN internal justice system has undergone a thorough redesign.
74 The new system represents a radical innovation in the settlement of employment disputes in international organizations. Change has not always been smooth: the system still experiences growing pains. Its most visible and distinctive feature is the establishment of a two-tiered jurisdiction with professional judges, which has produced a very sizeable case law in a brief period. Between 2009 and 2017, the UNDT produced 1,517 judgments and 6,619 orders and the UNAT 811 judgments and 305 orders (Administration of justice at the United Nations, Report of the Secretary-General (23 July 2018)). Other notable developments are the strengthening of a centralized ombudsman service, updated mechanisms of management evaluation, the establishment of an independent office devoted to the administration of justice, and the vetting of judicial candidates and monitoring of reform implementation by expert bodies. A lesser-noticed development is the fact that, since the 2009 redesign, the UNGA has remained seized with an agenda item devoted to the administration of justice at the United Nations. This has meant that it has continued to reflect on avenues of improvement and to address perceived problems in reform implementation. Today, the UN internal justice system is not a static apparatus but a dynamic mechanism in constant evolution which merits the sustained attention of international legal scholarship and practitioners.
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