We have previously discussed the principle of nemo iudex in causa sua (Latin for “no one should be judge in their own cause”) on our blog and how a series of ground-breaking UNAT judgments were challenging the systems that many international organisations have in place to adjudicate disputes between them and their employees.
One year on from those judgments, the situation seems to have evolved significantly. In this month’s blog, we examine recent cases in the UNAT and how international organisations are being forced to redesign their internal justice systems.
Refresher on the principle and how the problem arises
How is nemo iudex in causa sua engaged in the appeal systems currently in force in most international organisations?
The problem arises where the internal appeals body can only issue non-binding recommendations and the final decision on an appeal is made by the head of the organisation. This system is fundamentally flawed as it entails a conflict of interest for the head of an organisation, who is both the initial and the final decision maker, such that they cannot be considered a neutral first instance judge.
This is even more evident when the head of an organization disregards the internal appeals body’s recommendation. We have frequently seen panel reports making findings in favour of the staff member, and regardless of whether the head of the organisation accepts those findings, they do not accept their recommendations for the proposed course of action. This results in them making a decision that has the same outcome as what caused the staff member to lodge an appeal in the first place.
This clearly results in a violation of the nemo iudex in causa sua principle, which is one of the cardinal rules of natural justice. This brings us to the fundamental question: what happens if this condition is not fulfilled by an organisation?
Latest UNAT case law
Decisions delivered in 2020-2021 show that the UNAT is continuing to question the integrity of the system in different international organisations and has emphasized the obvious conflict of interest affecting the entire decision-making process. The UNAT does this through the lens of Article 2(10) of its Statute, which provides that the UNAT is only competent to hear and pass judgment where the UN agency that is party to the dispute “utilizes a neutral first instance process that includes a written record and a written decision providing reasons, fact and law”.
In Judgment No. 1031/2020, the Tribunal questioned the compliance of the World Meteorological Organization’s (WMO) internal justice system with Article 2(10). At the time, the WMO’s system provided that the Joint Appeal Board (JAB) should consider and advise the Secretary-General by submitting a report with its recommendations. The Secretary-General would then take the final decision on the appeal. The Tribunal held that the report issued by WMO’s internal appeals body could not be considered a decision from a neutral first instance process as it “simply provides non-binding recommendations or opinions”, that the role of the Secretary-General of the WMO cannot be regarded as a neutral body in the appeal process because“he is a party of the case”, concluding that it was “not satisfied that the essential elements of a neutral first instance process are present to have constituted a decision that could be appealed to the Appeals Tribunal” . As a result, the Tribunal referred the case to the UNDT to decide in the first instance, and the WMO has since reformed its system – see further below.
Similarly, the International Seabed Authority (ISA) also has a system in which its JAB is only responsible for issuing a non-binding report, while the final decision is taken by the Secretary-General. In Judgment No. 1089/2021, the Tribunal found that the JAB report was not a decision but merely an “opinion” which the Secretary-General may decide to ignore or adopt. The Tribunal therefore considered this to be in violation of Article 2(10) and remanded the case to the JAB with a specific instruction for it to produce for it to decide the matter at first instance, instructing to produce a “written decision, that includes a statement of the relevant facts and law, with written reasons and analysis” , instead of a non-binding recommendation.
Most recently, the UNAT ruled that the internal justice system at the International Tribunal for the Law of the Sea (ITLOS) was non-compliant with both Article 2(10) and the requirement for a neutral first instance process in Article 2(5) of the UN ITLOS Agreement. In Judgment No. 1123/2021, the Tribunal found that the ITLOS JAB was merely advisory and could only issue recommendations to the Registrar, meaning that “the ultimate decision-maker is the same person who has issued the contested administrative decision” . The Tribunal remanded the case to the ITLOS JAB, ordering it to reconsider and decide the case by a neutral first instance process. Similar to the ISA case above, this required producing a written decision with a statement of the relevant facts and law, and reasons for the decision.
Importantly, the Tribunal noted that its findings in this case were a direct outcome of the fact that the “current jurisprudential approach has evolved” .
The recent UNAT judgments are arguably a warning for all those organisations where the internal appeals board is only entitled to issue recommendations instead of binding decisions, and certain organisations have already implemented reforms.
As noted in Judgment No. 1074/2020, the IMO was restructured after the UNAT’s criticism in the Spinardi case and its appeal board “no longer merely makes a recommendation. It acts as neutral first instance body and takes a decision providing reasons and making findings of fact and law” [fn 1].
On 20 January 2020, the WMO signed an agreement with the UN to grant jurisdiction to the UNDT and effectively remove the JAB. There are two key features of this agreement:
· appeals that would have been made to the JAB are now required to be filed with the UNDT; and
· all cases pending before the JAB were transferred to the UNDT from the effective date of the Agreement.
We note that this issue does not appear to have arisen in ILOAT case law in the past two years.
How Staff Associations can assist in the reform process
We consider that these developments are going to lead to substantial reform in the coming years. Accordingly, if these issues arise at your organisation, here are some of the key factors that need to be considered when reviewing policies and amending internal laws.
- Composition and operating rules of the appeal body. A reform process must ensure that the composition of the judicial body adequately reflects the interests of both parties. Specific rules must be laid down to regulate the election and/or appointment of members, the duration of their term of office, their possible recusal and the voting procedures. This is crucial for ensuring the neutrality and impartiality of the decision-makers at first instance.
- The binding nature of the final decision. As can be seen from the most recent case law, internal appeal bodies are required to issue actual decisions and not just non-binding recommendations. This means that there should be clear reference in the regulations to the appeal body’s decision being final and binding, and whether there is any right of appeal from that decision.
- Opportunity for overall reform? Consider whether the need to reform the system to align with the nemo iudex in causa sua provides an opening to reform other aspects of appeal procedures, for example by formalizing requirements for informal resolution, changing time limits and authorizing staff members to be assisted by legal counsel (currently, in most cases, staff members are self-represented in the internal process and use lawyers to “ghost write” their appeals). Of course, this is a matter of picking your battles and knowing what has priority on your organisation’s reform agenda.
- Seek legal advice. It is important that any reform is consistent with current best practices and evolving jurisprudence, as well as the systems in comparable international organisations. Modulaw conducts policy reviews and can provide your organization with advice on the latest legal updates, its overall compliance with international standards and how to implement reforms. Find out more on our website!