by Panagiotis Kontakos,
International organizations are obliged to provide judicial mechanisms to remedy employment disputes arising between the organization and its staff members. These mechanisms refer to administrative tribunals with jurisdiction to decide upon claims filed by staff members against the organization. The access of international civil servants to these judicial mechanisms constitutes an effort to protect their rights and safeguard the impartiality of the procedures of International Administrative Tribunals, namely the United Nations Office of Administration of Justice, the European Court of Justice and General Court, the World Bank Administrative Tribunal, the International Monetary Fund Administrative Tribunal and the International Labour Organization Administrative Tribunal. (Amerasinghe, 1996, p. 489) This analysis presents the due process principles and mechanisms that are common in the above-mentioned International Administrative Tribunals.
International Due Process Principles: Definition
International due process is placed under the light of the procedures of International Administrative Tribunals and resembles to procedural rights. Due process could be identified in the Article 38 of the Statute of the International Court of Justice. International practice places the due process in the right to free access to courts, an opportunity to be heard, to employ counsel, to examine witnesses and evidence. Except for the right to be heard and examine evidence, international due process indicates the right to access to an independent, impartial judicial tribunal with public proceedings. Moreover, reasoned decisions and the right to additional review or appeal belong to the due process procedures of International Administrative Tribunals. The rationale of these rights is closely related to the international administrative law principles, namely independence and impartiality that depend on the mode of appointment or the duration of the mandate of the tribunal’s members and the opportunity to challenge the individual members of an administrative tribunal. In addition, it is crucial that the complaints mechanism safeguards a judicial, organized procedure, established by law and provides access to a competent tribunal, with published decisions. The above-mentioned elements uphold an international organization’s immunity from domestic judicial review. However, legally speaking, due process is more than procedures that ensure transparency and accountability or encourage participation in relation to the judicial decision-making. Due process principles include procedures that prevent the denial of justice and are invoked when action that will affect international civil servants’ rights has or will be taken. (Kotuby, 2013, pp. 411-421)
Independence and Impartiality of the Tribunal
One of the fundamental principles of due process is the impartiality of the tribunal. Rules and procedures described in the statutes of the International Administrative Tribunals require the impartial behaviour of the tribunal members and terms of fixed length (fixed-term appointments). These requirements safeguard the review of the cases without favour or prejudice as well as the removal of a biased member at the end of the term. Given that the above-mentioned elements constitute the minimum procedural safeguards, these methods could offer higher protection through a code of judicial conduct. (Ullrich, 2018, pp. 188-191)
Requiring specific qualifications for service on the tribunal and developing evaluation of these qualification procedures constitute thorough guarantees. For example, the tribunal may require a specific number of years of judicial experience, the certification of the applicant as qualified lawyer in the place of nationality or that the candidate is not a former tribunal member or staff member of the international organization. In order to ensure impartiality, the United Nations tribunal statutes demand strict professional qualifications and term limits. These qualifications are examined by the International Court of Justice, which reviews the applications, and by the General Assembly, which makes the final appointment. However, the tribunal members can be removed during their appointment in cases of misconduct and incapacity. (Ullrich, 2018, pp. 190-193)
In the same way, the European Union tribunals have established required qualifications, fixed-term appointments and review of the qualifications by an independent panel. Both the World Bank Administrative Tribunal and the International Monetary Fund Administrative Tribunal have also defined qualifications and limited terms of the members. In contrast, the oldest tribunal, namely the International Labour Organization Administrative Tribunal, does not have defined qualifications in relation to the tribunal members. In practice, the judges of this Tribunal serve three-year terms; however, its statute does not regulate the term limits or the possibility of employment of the appointed judges by the ILOAT in some other position after the expiration of their mandate. (Kotuby, 2013, pp. 418-420)
Except for the judicial qualifications, the rules of procedure of the tribunal promote impartiality when addressing conflicts of interest and judicial recusal. For example, the tribunal may require that judges disclose conflicts of interest and recuse themselves from the specific cases. This obligation ensures the independency of the tribunal that is a core component of the due process in the context of an international organization’s employment disputes. (Kotuby, 2013, p. 421)
The impartiality of the tribunal is preserved through its obligation to issue reasoned decisions. In fact, judges are required to state in writing the facts and the legal basis in order to support their decision. This constitutes the reasoning of their decision that can be interpreted, attacked, revised or reviewed. Stating the reasons of the decision enables the identification of arbitrary decision-making by the tribunal. The latter should be based on a rationale in order to come to a decision. This rationale must be communicated to the affected parties, so that they have the chance to challenge the relevant decision. In this way, if the decision results from a biased interpretation of the facts or the law, the parties could claim that the tribunal may have been improperly influenced or compromised. The obligation of the tribunal to issue reasoned decisions can be found in the statute of every mentioned in this analysis International Administrative Tribunal. Considering that the principle of due process consists of procedures that ensure fairness and prevent the denial of justice, the requirement to issue reasoned decisions could be considered as a core component of the international due process mechanism. (Turner, 2019, pp. 1414-1415)
The rules of procedure of the International Administrative Tribunals safeguard the public nature of the proceedings. Nevertheless, this does not mean that every International Administrative Tribunal holds public hearings or that its decision-making process is open to public. Only the final decisions of the Tribunal are published, archived and accessed by the public or the affected persons. The discussions leading to those decisions remain confidential. The judicial independence is preserved when the deliberations are not open to public, as judges can consider the evidence in private, free from external influence and without any concern or fear that the statements made during deliberations will be used against them in the future. However, there is the safeguard of the obligation to issue reasoned decisions, which are subject to public review. (Kotuby, 2013, pp. 425-427)
In relation to open hearings, the International Administrative Tribunals have a significant discretion. The statute of the European Court of Justice is the one referring to oral hearings as part of the court’s procedure. Nevertheless, when there is an appeal against a decision of the General Court, the court may dispense with the oral procedure in accordance with the Rules of Procedure in case it considers the written pleadings sufficient to rule the decision. The oral hearings are public, unless “serious reasons” require confidentiality. Thus, concerning staff members’ employment disputes that are appeals from decisions of the General Court, the Court of Justice has the discretion to dispense with the oral hearing. (Turner, 2019, p. 1415)
All the other tribunals can hold oral hearings at their discretion. Except for the ILOAT, the oral hearings must be public, unless exceptional circumstances require closure. The capability of the tribunals to close hearings is statutorily limited and demands a certain finding necessitating closure. In contrast, the ILOAT disposes unlimited judicial discretion and decides whether to hold oral hearings and whether these hearings should be public. (Turner, 2019, p. 1416)
It is doubtful whether the oral hearings constitute core component of the due process. International Administrative Tribunals procedures do not establish an absolute right to oral hearings. The tribunal is usually the one to decide whether oral hearings will take place, based on the specific circumstances. (Turner, 2019, p. 1417)
The access to legal representation does not constitute a core due process principle across the International Administrative Tribunals. Although this right exists, it is not guaranteed. The staff members are allowed to employ a legal representative during the proceedings. In terms of the European Union tribunals, they require counsel and the applicants cannot appear pro se. In case the applicant is not able to afford a legal representative due to indigence, they may be entitled to assistance or legal aid. Contrary to this approach, the ILOAT and IMFAT do not provide legal aid at all. The United Nations tribunal system provides free access to professional legal advice. The representation can be refused if the international civil servant’s case lacks merit. (Ullrich, 2018, pp. 195-197)
At this point, an essential distinction should be made between the right to counsel and the obligation of the international organization or International Administrative Tribunal to ensure that counsel is provided. In each case, the international civil servant has the right to obtain counsel, but it is his/her obligation to do so. The tribunal does not necessarily provide one, given that lawyers cannot be forced to represent clients with fraudulent or bad faith claims. Despite the non-core principle of the right to legal representation in international due process, this right constitutes a principle that is common to the above-mentioned International Administrative Tribunals. (Turner, 2019, pp. 1416-1417)
Additional Review or Right of Appeal
The existence of a court of last resort is essential; otherwise, no decision would be final. Nevertheless, the due process principles may be promoted by introducing additional procedures that provide international civil servants with the right to be heard after the ruling of a decision. Although the United Nations Dispute Tribunal and the United Nations Appeals Tribunal as well as the General Court and the Court of Justice of the European Union have incorporated this principle, others procedures may be established in courts of last instance to regulate the judicial review. In this case, the procedures of interpretation, review and revision of judgements correspond to a due process mechanism. (Turner, 2019, pp. 1417-1420)
The procedural rules of the International Administrative Tribunals examined in this analysis provide for the revision of decisions. There is procedural difference between revision and interpretation, as revision is conducted in case of discovery of a new dispositive fact, unknown to the tribunal and the moving party at the time of issuing the decision. Thus, there is the opportunity to present new evidence to the tribunal that affect the decision or its reasoning. In this case, the tribunal will review and revise its decision in relation to the new evidence (limited judicial review). On the other hand, interpretation requires that the tribunal construe its own decision due to questions about the scope of the judgement. The rules of procedure of the International Administrative Tribunals offer the chance of application for interpretation of judgements in order to guarantee access, fairness and the opportunity to be heard. In the case of conflicting interpretation, one final procedure is offered to the parties in order to bring limited issues about the scope and content of the confusing decision. (Casini, 2009, pp. 315-325)
Considering that the exercise of government power or authority should be controlled against abuse, International Administrative Tribunals conduct the necessary check for the benefit of the international civil servants. Procedural participation constitutes one of the fundamental principles of international administrative law. In fact, the due process mechanisms within the International Administrative Tribunals promote the normative concepts of transparency, accountability, participation and review. Each procedure that constructs the due process principle ensures the protection of the procedural rights of the international civil servants and contribute to the safeguard against denial of justice.
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Turner, S., (2019). The assurance of impartiality: Due process mechanisms and the development of global administrative law in international administrative tribunals. s.l.:Georgetown Journal of International Law.
Ullrich, G., (2018). The Law of the International Civil Service. Berlin: Duncker & Humblot.