CYIL vol. 14 (2023)

CYIL 14 (2023) LANDMARK JUDGMENT 4457 OF THE ADMINISTRATIVE TRIBUNAL … • Acts of which the staff member concerned was accused must be established by sufficiently strong evidence that it has been proved “beyond reasonable doubt” that they actually took place. 24 • The sanction must respect the principle of proportionality. 25 • The staff member concerned must be provided with the right to be heard and exercise this right before the sanction is decided. 26 The staff member concerned must, as a general rule, have access to all evidence on which the Administration bases (or intends to base) its decision against him/her. Under normal circumstances, such evidence cannot be withheld on the grounds of confidentiality. 27 4. UNESCO’s internal appeals procedures Before I proceed to analysis of internal appeals procedures in UNESCO, I wish to stress that such procedures are exclusively regulated by internal UNESCO regulations because the Organization enjoys jurisdictional immunity (cf. Article XII 28 of the 1945 Constitution of UNESCO – Legal status of the Organization; Article 12 29 of the 1954 Agreement between the Government of the French Republic and the United Nations Educational, Scientific and Cultural Organization regarding the Headquarters of UNESCO and the Privileges and Immunities of the Organization on French Territory, and Article III (Property, funds and assets), Section 4 30 of the 1947 Convention on the Privileges and Immunities of the Specialized Agencies. This immunity also concerns suits regarding employment-related disputes brought by current or former staff members or persons being entitled to certain right under the terms of appointment of a deceased staff member or under provisions of the Staff Regulations on which the staff member could rely. Thus, any dispute of a staff member against the Organization must be brought in accordance with internal law of the Organization. 24 ILOAT Judgment 3640, Consideration 27, available through the ILOAT website at https://www.ilo.org/ tribunal/lang--en/index.htm. Website visited on 17 July 2023. 25 Ibid, consideration 29. 26 ILOAT Judgment 2229, Consideration 3(b), available through the the ILOAT website at https://www.ilo.org/ tribunal/lang--en/index.htm. Website visited on 17 July 2023. 27 Ibid. 28 “Article XII – Legal status of the Organization The provisions of Articles 104 and 105 of the Charter of the United Nations Organization33 concerning the legal status of that Organization, its privileges and immunities, shall apply in the same way to this Organization.” – available on-line through https://www.unesco.org/en/legal-affairs/oisla. Website visited on 17 July 2023. 29 “Article 12 The Organization, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process, except in so far as in any particular case the Organization has expressly waived immunity or where a waiver is implied by contract. It is, however, understood that no waiver shall extend to any measure of execution.” – available on-line through https://www.unesco.org/en/legal-affairs/oisla. Website visited on 17 July 2023. 30 “Section 4 The specialized agencies, their property and assets, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except in so far as in any particular case they have expressly waived their immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution.” – available on-line through https://www.unesco.org/en/legal-affairs/oisla. Website visited on 17 July 2023.

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