And what about international civil servants?

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by the law.

- Universal Declaration of Human Rights, Article 8

In the three years or more before the creation in 1949 of the United Nations Administrative Tribunal (UNAT), after the establishment of the United Nations, which has been described in my treatise entitled The Law of the International Civil Service, "the Secretary-General coped with this problem (of settling disputes between the staff and the organization) by means of joint administrative machinery, leading to ultimate decision by himself". (Effect of Awards of Compensation Case, International Court of Justice (ICJ) Reports 1954, p. 61.)

At this time, the only way in which a strictly judicial opinion could be obtained was by an ad hoc reference for advisory opinions to the ICJ by the United Nations General Assembly or to a committee of jurists, a technique which was never used. In any case, all these procedures would have resulted in settlement by administrative decision because the administration took the final decision, the opinions sought being purely advisory.

Clearly, this situation was seen to be unsatisfactory by members of the United Nations when the General Assembly established UNAT. The Charter does not expressly empower the United Nations to establish a court to settle employment disputes. However, the ICJ held that "the power to establish a tribunal, to do justice as between the Organization and the staff members, was essential to ensure the efficient working of the Secretariat, and to give effect to the paramount consideration of securing the highest standards of efficiency, competence and integrity. Capacity to do this arises by necessary intendment out of the Charter."

In the absence of express provision, this power to establish an administrative court, as it is called, for employment disputes is implied in the constitution of any organization. The choice of judicial machinery is based on the need for impartiality, pursuant to the maxim that no one should be judge in his own cause, and for binding decisions.

While internal settlement procedures through administrative review and reference to the JAB (or JDC), resulting in a recommendation to the Secretary-General who takes the final administrative decision, still remain and are a useful means of settling disputes at an early stage and preventing their escalation, it is only through a court such as UNAT that judicial settlement can be ensured. It is also important that in the case referred to above, the ICJ, interpreting the Charter and the Statute of UNAT, which was enacted as a separate instrument by the General Assembly and not as part of the Staff Regulations, stated that the Tribunal was established not as an advisory organ or a mere subordinate committee of the Assembly, but as an independent and truly judicial body pronouncing final judgments without appeal in the field of employment relations and that, according to a well-established and generally recognized principle of law, a judgment rendered by such a body is res judicata and has binding force between the parties to the dispute.

UNAT, consequently, though established perhaps as a subsidiary organ by the General Assembly under the provisions of the Charter governing the creation of subsidiary organs, is not a subordinate organ of the Assembly or the Organization. This latter point was clearly made by the ICJ. The consequence was that the judgments of UNAT are binding on the United Nations and must be carried out by it. The Assembly cannot override or change such judgments as it can do with the resolutions of its other subsidiary organs.

UNAT is the only court settling employment disputes in the United Nations. Administrative review and recommendations of the JAB and JDC are not essentially judicial in nature in that decisions are not necessarily based on the application of legal rules or principles, and the bodies do not necessarily act in a judicial manner. Further, these are internal remedies.

The Tribunal is not an appeals court from another court. has the function of judicially reviewing administrative decisions. It is also an externally constituted organ of the United Nations. UNAT then is a judicial body, a court and, needless to say, an international court the World Bank Administrative Tribunal (WBAT) has described administrative tribunals of international organizations as international tribunals (see De Merode, Decision No. 1, para. 27) - which is entrusted with the duty of administering justice in employment relations and whose decisions are binding and final and without appeal. It remains to consider briefly whether its constitution and mode of operation are conducive to justice.

To ensure proper justice, the judges of UNAT must be impartial and independent. Incidentally, UNAT judges, though referred to in its Statute only as members of the Tribunal, which undoubtedly they are, are genuine judges performing a judicial function, not arbitrators, conciliators or any other kind of dispute settlers. As already pointed out, UNAT is a judicial body. In the W-BAT, the International Labour Organisation (ILO) Administrative Tribunal and other tribunals, the judges are appropriately referred to as judges in practice and in the reports of judgments, though the statutes of the tribunals may use some other term such as "members". To ensure impartiality and independence, care must be taken particularly to appoint qualified persons as judges to prevent manipulation by reference to emoluments and to insulate the administrative relationship with the organization from the possibility of being subjected to undue influence.

As for qualifications, the Statute of UNAT is silent. This, it would appear, is a serious lacuna. Indeed, persons without any kind of substantial legal experience have been appointed as judges in the past, though infrequently, which contradicts the requirements of the judicial function. The present Tribunal, however, is composed of judges or jurists. The statutes of some other administrative tribunals - e.g., the WBAT and the administrative tribunal of the Inter-American Development Bank-require that judges should be persons of "high moral character and must possess the qualifications required for appointment to high judicial office or be jurisconsults of recognized competence", being modeled on the provisions of the Statute of the ICJ. If UNAT is to properly discharge its functions as an international court, it is desirable that there be such a provision in the Statute. This would serve the cause of justice.

What is important about emoluments is that they should not be reducible at the whim of the organization and they should be appropriate for judges. The statutes of administrative tribunals generally do not provide for the non-reducibility of emoluments. In practice, however, tribunals have not been threatened with this possibility. As for the level of emoluments, suffice it to say that the judicial function on administrative tribunals is not comparable to working on any other subsidiary organ of the UN, or any of their subcommittees or sub-commissions, none of which are judicial in nature. The judicial function is totally different and requites a different kind of remuneration. The United Nations does not recognize this, as do the World Bank, the International Monetary Fund, the Industrial Development Board, etc.

As for administrative insulation, UNAT has a secretariat whose liaison with the United Nations is through the UN Legal Counsel, who is the Secretary-General's Counsel before the UNAT This structural situation does not really make for insulation and independence, even though there has been no undue interference up to now, as far as is known. In principle, there is a conflict of interest. There are organizations in which the liaison between the secretariat and the organization is through an official who has no connection with proceedings before their tribunals. Moreover, the Statute does not state explicitly that its Tribunal's Executive Secretary shall be responsible in the performance of his or her functions solely to the Tribunal, as some statutes do. Regardless of what happens in practice, these details of substance require respect if justice is to be ensured.

As for procedure, UNAT is the master of its own procedure, as it should be. It does not often have oral proceedings, while it has full power to hold oral hearings and hear witnesses. Oral proceedings are not required as such for justice to be done, particularly considering the nature of the proceedings before UNAT. The procedure evolved in the Rule of the Tribunal and in practice is a fair one. particularly by reason of its flexible nature. An especially useful practice is that of addressing questions for clarification and further information to the parties. By and large, procedure before the Tribunal serves the interests of justice. Judgments are reasoned, as judgments of courts should be. This was referred to by the ICJ in the Application for Review of Judgment No. 158 of the UNAT Case, ICJ Reports 1973, pp. 210 ff.

The law applied is the written internal law of the United Nations and the general principles of law to supplement that. The general principles are derived from a number of sources, including international law, but principally from the administrative law system of the Civil Law, which is based on the French system. This is because it is the most developed system of administrative law, particularly in civil service law. UNAT has had no difficulty applying general principles on this basis and the outcome has been fair.

Apart from the finality, and binding nature of judgments which is dearly established - indeed the ICJ has confirmed this there is no procedure for the enforcement of judgments of UNAT within the organization. Does this mean that justice may not be done? It could result in a denial of justice but, as I have said:

"The system seems to work efficiently and organizations have not been prone to disavow their obligations arising from judgments of administrative tribunals against them. Indeed, the record in the administrative systems of international organizations seems to be even better than in the international legal system, where there is some semblance of an enforcement machinery. Perhaps the real sanction against refusal to execute judgements of international administrative tribunals on the part of administrations lies in the psychological factor that lies behind the system of international administrative law, namely, that if organizations do not honour judgments given in favour of staff against them, they cannot exercise full and undivided loyalty from a staff which knows that the safeguards of the system and the protection afforded by the system are not real and effective." (The law of the International Civil Service, vol. I, pp. 80-81.)