UNAT Held or UNDT Pronouncements
The UNAT held that the staff member bore the burden of proving that the Secretary-General’s failures to address both the discriminatory policies of the host country and the alleged attempt of the law enforcement authorities of that host country to recruit him, constituted unilateral decisions taken by the Administration, which applied to him individually, and had direct legal consequences on his terms of appointment or contract of employment. The UNAT held that the staff member could not meet this burden because these issues fell within the realm of diplomacy, are subject to the rules of public international law, and are related to policy decisions that cannot be subject to judicial review.
The UNAT further found that the exercise of the duty of care vis-à -vis the host country or any other Member State involves executive or political considerations, which would make the Secretary-General’s course of action a policy decision not subject to judicial review by the UNDT or the UNAT.
The UNAT held that the UNDT did not err in concluding that the application challenging the contested decisions was not receivable ratione materiae.
The UNAT dismissed the application and affirmed the UNDT Judgment.
Decision Contested or Judgment/Order Appealed
The staff member contested two decisions of the Administration which he characterized as the Administration’s failure to fulfill its duty of care towards him by addressing the discriminatory visa restrictions imposed by the host country government and the failure to protect him from alleged recruitment activities by a law enforcement agency of the host country government.
In Judgment No. UNDT/2024/023, the UNDT dismissed the application as not receivable.
The staff member appealed.
Legal Principle(s)
Key characteristics of an administrative decision subject to judicial review are that it is (i) taken by the Administration, (ii) unilaterally (iii) on an individual application, and lastly, (iv) it carries direct legal consequences.
The Chief Administrative Officer of the Organization has a duty of care towards its staff members regardless of their nationality in accordance with established international standards, in a manner that protects not only their safety and security, but also their impartiality and independence that are firmly associated with their immunities as international civil servants.
Potential disputes between a staff member and the host country or between the United Nations and the host country are outside the jurisdiction of the Dispute and the Appeals Tribunals.