Another Fish in The Sea or the New Kid on The Block? The Newborn NATO Mission Appeals Tribunal – Part I

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The Mission Appeals Tribunal (MAT) is a new international administrative tribunal (IAT), formally established in 2022 through a NATO internal directive, to provide judicial relief to civilian personnel hired in out-of-area NATO-led missions. Following an initial period, the MAT started operating in 2023 when it was officially presented to the interested staff members, its constitutive instrument became public, and the first judgments were issued and finally made public in January 2024 (here). The objective of this post is to present the MAT while aiming at its actual collocation in the sea of IATs. To do so, the first part of this post illustrates the Tribunal’s main institutional features and the second part deals with the positions adopted in its case law.

Establishment of the MAT

The establishment of the MAT responds to a lack of a proper way of recourse for civilian staff employed by out-of-area NATO-led operations. This has been estimated as a legal risk by the Alliance since 2011 when the Organization started to reform the legal framework governing the staff hired in missions (here). At the time, the staff regulations envisaged only an internal mechanism through which mission employees could challenge an initial administrative decision affecting their service conditions. By submitting a complaint, the staff member would request a review of said decision to the mission’s commander, who would adopt a final decision on the case. This system was not in line with international human rights standards governing the right of access to justice, thus endangering the Organization’s immunity from municipal courts (see, generally, Webb). This risk was far from theoretical because several protests have taken place in the Balkans since 2010 where current and former NATO employees demanded unpaid social benefits (here and here).

In response, NATO has established the MAT to provide a full-fledged judicial body where the mentioned final decision of the mission commander can be challenged. After being presented to the Member States at the NATO Budget Committee, the directive containing the MAT Rules of Procedure (MAT ROPs) was adopted by the NATO SHAPE Office of Legal Affairs (OLA) in June 2022 although it entered into force the following month. This is a significant difference compared to the experience of other IATs, whose founding instruments consist of a statute and a set of rules of procedures. IATs’ statutes, which are adopted and amendable by the Member States through IO’s plenary organs, establish the tribunal and delimit its powers. Whereas, the rules of procedure remain in control of the judges, as exemplified by Rules X (2) and XI ILOAT Statute. Conversely, the MAT ROPs contain both types of provisions. The first part of this instrument establishes the tribunal, defines the jurisdiction, and regulates the composition (Rule 1 – 12), the core part governs the proceedings (Rule 13 – 43), while the last defines its powers and judgments (Rule 44 – 55). Nevertheless, the amendment process is controlled by the SHAPE OLA, as clarified by the ROPs preamble, although they do not elaborate on a particular procedure to follow, or consultations to hold with the MAT judges.

The MAT started operating in 2023, when it held the plenary session, adopted its website, and issued three rulings in the Fall. Pursuant to Rule 46 MAT ROPs, the Registrar must communicate the adopted judgment to the parties by uploading it on the MAT internal parties portal and on the NATO internal legal repository. However, the MAT ROPs do not mention any obligation to make the judgments available to anybody. In this context, the MAT falls far from other IATs. Indeed, the obligation to make the judgments available on the tribunal’s public website stems from different IAT legal instruments, such as the statute (Art. 17.5 CoE AT Statute), the rules of procedure (Art. 20 UNAT Rules of Procedure), or an internal decision of the tribunal (IMF AT internal decision). Nonetheless, to overcome these shortcomings, MAT judgments have been uploaded on a special section of the MAT website, in which the tribunal decisions are accessible, anonymized, and bearing no classification.

Jurisdiction

The MAT, like any other IAT, is a judicial body whose competence is based on the principle of juridiction d’attribution. This means that the Tribunal has not any power beyond those clearly defined under its ROPs.

Locus standi is reserved for civil servants hired exclusively by the mission. Because NATO-led operations are not legally embedded within the Organization (here), their employees have no contractual relationships with NATO per se, whose staff members can access the NAT. Thus, the respondent will always be the mission whose commander has issued the impugned decision rather than the NATO Secretary-General. This also explains why the seat of the Tribunal is in Naples because JFC Naples is the NATO Command controlling the interested operations. However, the MAT ROPs provide that non-NATO entities may accept the jurisdiction of the Tribunal, given that they cooperate with the NATO missions and contribute to the expenditures of the MAT (Art. 2 (c) and (d)). This is not a novelty in IAL, as many IATs Statute provide similar provisions (Meighan and Rodriguez-Rico). Currently, only EUFOR, which cooperates with a NATO mission in Sarajevo (here), has accepted the jurisdiction of the MAT.

Ratione materiae, the jurisdiction of the MAT covers the mission commander’s final decisions after all available pre-litigation means have been exhausted. Usually, IATs rely on the notion accepted in IAL jurisprudence because statutes fail to define administrative decisions. According to the settled characterization expressed in UNAdT 1247, an administrative decision must carry individual effects and be issued by an administrative organ. Examples are termination of employment or disciplinary measures. Nonetheless, IATs have also adjudicated on resolutions adopted by IO’s governing bodies amending civil service conditions, such as amendments to the tax reimbursement and salary adjustment procedures, as in WBAT 1. However, it is worth noting that IATs considered their competence as incidental so that they can only declare the inconsistency with regulatory acts with general principles and deem them as inapplicable to the case. Conversely, they have no power to annul them. Conversely, Art. 1 (a) MAT ROPs provides that final decisions are acts adopted by the mission commander “concerning a challenged condition of work or service related to civilian personnel hired in the mission. This laconic formulation charges MAT with the task of whether to adjudicate on general acts or not. This is not easy. As noted by Powers, if an IAT exercises its competence over regulatory decisions, the judges must preliminarily solve complex problems, such as when it is ripe for review or whether the ruling over a single complaint can automatically alter similarly-situated staff.

Composition of the Tribunal

The MAT is a judicial body established to determine international administrative disputes through final and binding judgments. As stated by the ICJ in Effect of Awards, this is the main requirement for any IAT to be considered an “independent and truly judicial body”. Thus, the MAT is called to respect particular standards governing the appointment of tribunal members and the various composition of the tribunal (see, generally, Turner).

The roster of judges is selected by JFC Naples, while the appointment process is based on candidates proposed by the Member States following the selection criteria established by NATO itself (Rule 4 MAT ROPs). Similarly to other tribunals (Art. IV (I) WBAT Statute and Art. III (1) ILOAT Statute), Rule 4 (e) clarifies that the main requirements are having qualifications for selection to judicial offices, being a “jurisconsult” of recognized competence in pertinent fields, or being a professor of international law. Currently, ten judges are appointed to the MAT. Many of them were former civil servants while others served as judges before other IATs, including the current MAT President Teresa Bravo, whose mandate at the UNDT has ended recently.

The MAT ROPs require due regard to geographical distribution and gender balance only for the composition of a panel (Rule 5 (b)), while they are silent for the composition of the roster of judges, unlike other IATs Statutes (Art. 4 (2) UNDT Statute and Art. 3 (2) UNAT Statute). However, judges are nationals of different NATO Member States, and half of the roster is composed of women. This is a remarkable trait given the current state of women’s representation in international bodies. The GQUAL data on the composition of international tribunals and regional courts show that out of 139 international judges, only 39 are women. Thus, in this context, the MAT represents an honorable exception.

Continues in part two.

The post reflects the opinions of the author, expressed in his personal capacity, and does not bind the MAT or the JFC Naples.

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Andres MUNOZ MOSQUERA says

March 25, 2024

Dear Federico,
Excellent two pieces!
Andres