In its views adopted on 18 July 2024, the UN Human Rights Committee took an important step towards addressing rule of law and fair trial issues within international organisations and their internal justice mechanisms. This is a very welcome and necessary development for the international legal order. Unfortunately, the Committee failed to apply the relevant legal standard in an appropriate manner in the case at hand and thus missed an opportunity to protect judicial independence and the related fair trial rights of applicants before international bodies.
Facts of the case
The case concerned a former employee of the Asian Development Bank (ADB), an international organisation headquartered in the Philippines. After her contract with the ADB had been terminated for reasons of alleged unsatisfactory performance, she challenged this termination before the ADB’s internal justice mechanism, that is the ADB’s Administrative Tribunal (ADBAT). In 2017, this tribunal decided in favour of the ADB.
Subsequently, the applicant approached the Human Rights Committee claiming that the ADBAT has structural deficiencies, in particular that it is not an independent and impartial tribunal. As a result, she argued that the ADB falls short of its obligations to provide an independent and impartial internal justice mechanism. According to the applicant, “as held by the International Court of Justice, civil service tribunals at international organizations must render justice independently and impartially, and in compliance with the right to a fair trial”. When and as far as international organizations enjoy (functional) immunities and thus their actions cannot be challenged before domestic courts, they have to provide “reasonable alternative means” of dispute resolution to their staff members as required by the European Court of Human Rights in its Waite and Kennedy decision of 1999.
Further, she saw the responsibility of the Philippines, the host state of the ADB, to be engaged. She approached the Philippines’ Department of Foreign Affairs, urging the Philippines to ensure that the violations were brought to an end and that her fair trial rights were restored. As this remained without success, she filed a complaint to the Human Rights Committee. She claimed in particular that her rights under article 14 (1), read in conjunction with article 2 (3) of the Covenant were violated as she did not have access to an independent and impartial tribunal.
Globalising Waite and Kennedy
With the present decision, the Human Rights Committee has significantly developed its jurisprudence on rule of law and fair trial standards within international organisations and the related obligations of their member states. Both in relation to admissibility and to merits, the Committee referred to the jurisprudence of the ECtHR in Waite and Kennedy and related decisions. This is an important step because this jurisprudence, while broadly discussed by scholars of many regions of the world, has often been perceived as applicable only to the European context. In Waite and Kennedy, the ECtHR had decided that states, when establishing international organisations, are not absolved from their human rights obligations in relation to the activities of these organisations. On this basis, the Court established the requirement for international organisations to provide affected individuals with “reasonable alternative means” of dispute resolution – otherwise, domestic courts have jurisdiction, despite the organisation’s functional immunity, to decide cases brought by affected individuals against the organisation.
The Human Rights Committee explicitly took up this approach. As to the admissibility of the case, the Committee decided – citing Waite and Kennedy – that
“while international organizations have an international legal personality and enjoy jurisdictional immunities, the host State party may still have jurisdiction under the Covenant if the international organization does not provide a reasonable alternative means of dispute resolution”. [para 8.6]
It thus rejected the Philippine’s argument that the claimant was not under its jurisdiction and that thus any Convention obligation of the Philippines could not have been engaged. It accepts the ECtHR’s approach according to which the host state can have jurisdiction over disputes between international organisations and their staff members if there is no appropriate internal justice mechanism provided by this organisation.
As to the merits of the case, the Committee emphasises the member states’ human rights obligations as to the structures and institutions of the international organisations of which they are a party. It almost word by word repeats the ECtHR’s statement in Waite and Kennedy:
“Taking into account the jurisprudence of international judicial bodies, the Committee is of the opinion that where States establish international organizations in order to pursue or strengthen their cooperation in certain fields of activity, and where they transfer to those organizations certain competencies and accord them immunities, there may be implications as to the protection of fundamental rights. It would therefore be incompatible with the object and purpose of the Covenant if States parties were thereby absolved of their obligations under the Covenant in relation to the field of activity covered by such transfer. The Committee recalls that the Covenant is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective. This is also true for the right of access to courts, in view of the prominent place held in all societies by the right to a fair trial, under article 14 of the Covenant” [para 9.6]
The Committee also takes up the ECtHR’s formulation that international organisations have to provide “reasonable alternative means of dispute resolution” and endorses this obligation as an obligation under the Covenant:
“The Committee considers that it is incumbent on international organizations, including the Asian Development Bank, to provide for reasonable alternative means of dispute resolution such as in labour disputes between the international organization and its staff.” [para 9.7]
Although the Committee relativises this obligation somewhat by accepting that the “standard of fair trial guarantees might differ depending on the type of dispute” – a formulation that gives a considerable leeway to international organisations and little to no guidance as to what are acceptable standards under the Covenant – the fact that the Committee has established this obligation as such is most welcome from the perspective of the rule of law on the international level. It addresses the fair trial and judicial independence deficits that are still but too common within internal justice mechanisms of many international organisations.
Failing to Protect Judicial Independence
Despite embracing Waite and Kennedy as a positive step for protecting the rule of law and fair trial standards on the international level, the Human Rights Committee unfortunately does not apply this standard in a meaningful manner in the case at hand. In a short paragraph that is so superficial and trivial that is almost does not merit to be called application to the facts, the Committee merely dismisses the applicant’s claims as to issues with the independence of the ADBAT. It does not engage with the long list of issues addressed in the application including, in particular: the significant role of the President of the ADB – who is formally a counterparty in any employment related dispute – in renewing an ADBAT judge’s appointment every three years; extra-judicial activities and personal contacts between the ADBAT members and the ADB management; the absence of an oral hearing despite a contest of the facts and the applicant’s credibility.
The Committee merely stated that the applicant
“had access to internal review mechanisms, including the Ombudsman and a conciliation procedure, before resorting to the Administrative Tribunal, whose members are appointed by the Board of Directors, in line with the Administrative Tribunal’s statute and the principles of independence and impartiality. The Committee observes that the Administrative Tribunal considered individual claims by the author, concluding in that regard, by a reasoned decision and taking into account the available evidence, that no oral hearing or witness testimonies were required, and found her claims to be not sufficiently substantiated” [para 9.8.]
With this decision, the Human Rights Committee de facto gave a free pass not only to the ADB but to other international organisations with poorly designed and not fully independent and impartial internal justice mechanisms. The Committee might have shied away from taking judicial independence more seriously because it might not have wanted to open the floodgates of individual complains against such mechanisms. Considering the wide-spread structural deficiencies as to fair trial and judicial independence before international organisations, this might have been a strategic move of an already overburdened Committee (note, as a symptom, that the Committee took six years to decide the case at hand). However, as understandable as this motivation might be from the perspective of the institution, the Committee has missed an opportunity to strengthen the rule of law on the international level. At the very least, it should have engaged in detail with the claimed issues regarding the independence of the ADBAT, not only to provide a proper protection of judicial independence in the case at hand, but also to demonstrate to other international and regional judicial bodies how to protect this crucial value and right effectively. What would have been expected here by the Committee, was to provide a substantive standard as to what is required in terms of independence and impartiality by an internal justice mechanism.
Instead, the Committee did not take its own standards on judicial independence seriously. General Comment No 32 states:
“A situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal. It is necessary to protect judges against conflicts of interest and intimidation.”
The abovementioned issues as to the appointment of the judges of the ADBAT would have had to be addressed under this standard. Moreover, the Committee should have taken into account the perception of independence and impartiality of those who bring cases to a court and of the public in general. In its General Comment No 32, the Committee has recognized that “the tribunal must also appear to a reasonable observer to be impartial”. If it had applied this standard to the case at hand, it would have had to engage in particular with the incidents that the applicant had reported in the present decision as to extra-judicial activities and personal contacts between the ADBAT members and the ADB management. By not addressing these and other aspects of judicial independence properly, the Committee, despite emphasising the “prominent place held in all societies” by judicial independence, did not do justice to this value.
