Niamh Kinchin explores accountability in the context of decision-making within the UN.

Niamh Kinchin explores accountability in the context of decision-making within the UN.

It is no doubt ironic that administrative law, which by its title alone appears the least humanistic area of law, facilitates our most intimate relationship with the State.  State executives make decisions about the most private aspects of our lives on a daily basis. We may resent the way that administrative law facilitates an often-unwelcome intimacy with a ‘faceless’ system but surely we cannot reject its regulation of it. Administrative law provides accountability oversight to ensure that administrative decisions, which are made pursuant to the exercise of formal power in a way that directly affects the rights and duties of individuals or groups in our society, are both substantively correct and procedurally fair. The role and importance of administrative law in accountability becomes pronounced when the intimate relationship between the individual and the State shifts to a relationship between the individual and someone or something else entirely. When administrative decision-making is removed from the domestic context and placed into a context where no framework for administrative law exists, how can we assure that our rights are protected and the rule of law is respected?

A proliferation of decision-making and regulation that is unbounded by traditional concepts of State sovereignty has propelled accountability towards increasing prominence in global governance discourse. Global decision-making bodies engage in administration in ways that are simultaneously innovative and concerning. These bodies possess the ability to engage in standard setting and decision-making in dynamic, flexible ways, yet make decisions that affect the rights and duties of States, intergovernmental bodies and private actors without the accountability oversight inherent in comparable domestic decision-making. When the ability to ensure that decisions that affect private citizens are fair, lawful, and transparent and allow for participation is diminished, an accountability deficit is said to emerge.

Reconceiving administrative decision-making within the global context in terms of administrative justice may contribute to a global accountability ‘solution’. Administrative justice, which is essentially ‘justice within the administrative law system’ is evocative of normative justice-based values such as rights protection and good governance and can be shaped according to the governance framework and values of the jurisdiction it operates within. It is suggested that administrative justice in the global space could be understood as requiring two elements from administrative decision-makers. First, administrative decisions must be made ‘according to law’, meaning that decisions must comply with the existing law in the global space (i.e. international law, domestic law and ‘institutional law’). Second, global administrative decisions must be made ‘according to values the community accepts as just’, which is identified through international law that reflects democratically legitimacy and human dignity as rationality, fairness, transparency and participation.

Administrative decision-making regularly occurs within the United Nations (UN), which is the largest and most complex global decision-making body. The UN is aware of its obligations around procedural protections and ‘due process’ (broadly conceived) but do the UN’s relevant agencies, bodies and organs afford administrative justice in the sense described above? An examination of some of those bodies reveals a mixed bag.

The UN’s Formal Internal Justice System, which includes the UN Dispute and Appeals Tribunals, is its primary forum for dispute resolution regarding employees’ contracts and conditions of employment. A judicial model that borrows heavily from various domestic systems ensures that the tribunals are governed by appropriate procedural rules, regulations and case law. However, the regulations can be complex which, along with issues of location and inclusivity (the system is not available to UN contractors), can diminish accessibility. Further, the independence and impartiality of the tribunals, which is essential to a judicial system, can be compromised by their position within the larger UN system.

The Investigations Division of the Office of the Internal Oversight Services (OIOS) is an internal oversight body that investigates allegations of misconduct by UN staff and affiliated personnel, such as UN peacekeepers. Although the OIOS is primarily an investigatory body, it is not excluded from making or contributing to administrative decisions that affect the rights and duties of individuals. OIOS’ investigatory functions means that many of the issues surrounding fairness, transparency and participation relate to interviews, rather than hearings, which can create challenges regarding appropriate standards of proof and representation. However, OIOS also has issues around independence and impartiality that arise within an institutional context.

UNHCR is a UN special programme that is tasked with the function of international protection for refugees. As part of its role UNHCR undertakes, along with States, the process of determining whether an asylum seeker should be declared a refugee for the purpose of international law. UNHCR has been proactive in identifying and following procedural standards and is largely successful in providing procedural protections of an asylum seeker’s right to be heard. However, the vulnerability of the subjects of its decisions, the sensitivity of the subject matter and the difficulties of dealing with States that often act in their self-interest  have contributed to procedural gaps around transparency and a lack of independent and impartial review.

Applying the model of global administrative justice to the UN Security Council’s targeted sanctions regime for individuals suspected of financing terrorism affords an opportunity to reconceive well-acknowledged issues, such as lack of review and transparency, through a new lens. Whilst there have been improvements in recent times, such as the appointment of an Ombudsperson, significant issues around fairness and transparency remain.

Administrative law may seem the law’s bland bureaucrat but its penchant for regulation and regard for individual justice means that it brings with it principles and standards that can be extracted, manipulated and applied to a highly plural context like the global space. By using the foundations of administrative law to create a model of administrative justice that can be applied to global administrative decision-making, the accountability of UN decision-making can been placed under the microscope of law and values in a way that exposes gaps in procedural protections and allows for proposals for reform for it and other global decision-making bodies.

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Niamh Kinchin is a senior lecturer at the University of Wollongong, Australia and author of Administrative Justice in the UN, out now.

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