Overview

In a United Nations-led world order, all activities are underpinned by the rule of law. This principle itself is valid for the United Nations and for the Secretariat, which is entrusted to carry out the mandates of the Organization. In order to safeguard the Organization’s obligation to carrying out its work independently, the Organization and its staff were granted privileges and immunities under the relevant 1946 United Nations Convention. However, since it was not possible to seek recourse through national court systems, the UN had to create its own system of administration of justice.

In fact, whereas the implementation of the liability of the UN and of its sister organizations' before national courts is limited by their jurisdictional immunity, this does not put into question the principle of liability, and to accord a remedy to parties aggrieved by their acts or omissions.

Under Section 29 of the Convention on the Privileges and Immunities of the United Nations, for instance:

"The United Nations shall make provision for appropriate modes of settlement of: a. disputes arising out of contracts or other disputes of a private law character, to which the United Nations is a party; b. disputes involving any official of the United Nations who by reason of his official position enjoys immunity, if immunity has not been waived by the Secretary-General".

Regrettably, the Organization has not fully complied with the obligations under the Convention to design just and effective processes to ensure the adjudication of questions of (contractual as well as non-contractual) liability for damages arising out of its administrative or executive activities.

Incomprehensibly, the UN justice system has failed to embody the modern “fair play” standards that are mandated by the evolution since 1946 of human rights law enshrined in the Universal Declaration of Human Rights (especially Articles 1, 2, 6, 7, 8, 10, 11, 23, 28 and 30), the International Covenant on Civil and Political Rights (especially Articles 2, 14, 16, 17 and 26), regional treaties such as the African Charter on Human and Peoples’ Rights, the American Convention on Human Rights and the European Convention on Human Rights.

In most cases, it is practically impossible for the system in place to secure justice in accordance with the fundamental principles of due process and impartiality. There is no separation of executive and judicial powers in the UN: the United Nations Office of Human Resources Management, for example, acts as a prosecutor, judge, jury and executioner. The system has not developed proper procedures, counterbalances and safeguards; needless to say, justice in the Organization operates with a degree of opacity that would be considered totally unacceptable for any known legal system in a democratic state. Clearly, this situation has been seen as unsatisfactory by civil society and UN employees who have repeatedly condemned the UN arbitrary, dilatory and archaic system of internal justice.

Sixty years after its creation, the good image of the Organization has been horribly tarnished by several incidents and scandals by those entrusted to bring about stability and assist in restoring lives broken by political turmoil and conflict. Many questions have been raised about the reasons behind the continuation of such violations and about the ability of the UN to handle them if they occur. Even the most enthusiastic of UN supporters conceded that the Organization was very much in need of extensive reform. It was high time that the important question of the United Nations justice system was settled. If the allegations put the UN in a very peculiar position, reform of the justice system offered an opportunity for the Organization to respond resolutely and to give added meaning to the establishing of a "zero tolerance" policy of the United Nations.

 

Much change is needed 

It was under those circumstances that, in January 2006, the General Assembly directed the Secretary-General to appoint a panel of independent experts to examine the UN outmoded justice system. Intolerably for an organization involved in setting norms and standards in the area of human rights and the rule of law, the panel confirmed that the United Nations currently escapes its particular obligation to deliver timely, effective and fair justice. In fact, The Report of the Redesign Panel on the United Nations System of Administration of Justice found that "the existing United Nations internal justice system is neither professional nor independent…[it] is dysfunctional…the financial, reputational and other costs to the organization of the present system are enormous…as it currently stands [it] is extremely slow, underresourced, inefficient and, thus, ultimately ineffective. It fails to meet many basic standards of due process established in international human rights instruments".

The panel's severe diagnosis convinced the Secretary-General and Member States that a complete overhaul of the old system was needed. In its resolution 61/261 of 4 April 2007, the General Assembly decided "to establish a new, independent, transparent, professionalized, adequately resourced and decentralized system of administration of justice consistent with the relevant rules of international law and the principles of the rule of law and due process to ensure respect for the rights and obligations of staff members and the accountability of managers and staff members alike", and to implement it "no later than January 2009".

 

Efforts to establish a new justice system 

The proposals submitted by the Redesign Panel are far-reaching when compared to the current system: different options deserve careful scrutiny by Member States, the Secretariat, the ACABQ (Advisory Committee on Administrative and Budgetary Questions), unions and staff associations. The item has been assigned to both the Fifth (Administrative and Budgetary) and Sixth (Legal) Committees in an unprecedented attempt to build an impartial, decentralized, streamlined and cost-efficient United Nations system of administration of justice as a common effort of all involved.

During negotiations delegations have supported the role of the Sixth Committee in providing advice to the Fifth Committee with a view to ensuring respect for the rule of law and due process in the new system. In particular, it was proposed that the Sixth Committee focus its work on a certain number of issues of the formal system, including:

a) the draft elements of statutes for the two instances proposed by the Secretary-General;

b) its relation to the informal system and disciplinary procedures;

c) the scope ratione personae of the new system;

d) the legal assistance to, and the legal representation of staff;

e) the right to a fair hearing;

f) the implementation of a mechanism of management evaluation to be conducted within a specified time-limit;

g) the selection, appointment and dismissal of judges;

h) the powers of judges;

i) the registries;

l) as well as interim measures for the transitional period.

Divergent views were expressed on the scope ratione personae of the new system. While concern was expressed about covering individuals other than staff members, it was proposed that the new system be made accessible to individual contractors who are currently deprived of access to effective means of dispute resolution, and to experts on mission. It was also observed that individuals who would be excluded from the system, such as volunteers and interns, should nevertheless be provided with effective remedies. Concern was expressed about conferring locus standi upon staff associations.

Several delegations emphasized the importance of strengthening the informal system. They placed great emphasis on the resolution of disputes before they escalate to unnecessary litigation, and, in particular, they envisioned strengthening the role of the Ombudsman and the creation of a Mediation Division within the Office of the Ombudsman. The need to preserve the confidentiality of discussions in the informal system, as well as the inadmissibility of statements made in the formal system during the mediation process, were also underlined. Reference was made by delegations to the principles of equality of arms and equal access to justice. It was proposed that free legal assistance be provided to all staff. However, a view was expressed that legal assistance should be limited to providing information and should not involve advocacy in a particular case.

Some delegations were of the view that judges of the United Nations Dispute Tribunal should be elected by the General Assembly, instead of being appointed by the Secretary-General. Divergent views were expressed as to the number of judges that would decide a case on first instance. While some delegations favoured decisions by a single judge, other delegations favored a panel of three judges in order to ensure that diversity in nationalities, cultures, religions and legal traditions be duly reflected in the decision-making process. The ACABQ was also concerned that the establishment of such an elaborate system of justice is being envisaged without the benefit of any real experience in a comparable setting.

So many different views are not surprising, since negotiations on any issue at the UN, let alone the talks on one as costly, complex and controversial as the United Nations system of administration of justice, must be inclusive in the eyes of many. Nevertheless, a completely new system, able to gain the trust and support of all parties, will certainly make a very substantial contribution to the effective reform of the United Nations on the premise that an independent, impartial and well-resourced internal justice system is essential for restoring the credibility of an organization at the forefront of efforts to advance respect for human rights law and seeking to set an example in the countries where it works around the world.

 

The duty to monitor

However, the role of the supreme multilateral body of the world cannot be preserved by the mere adoption of another document. There is already a risk that the process may lose momentum, if it can not confirm and maintain its clear relevance to the actual problems of a system that does not produce independent, transparent and expert decisions that are binding upon management.

Essentially, this means that the whole UN justice system should hinge on a new process which aims to address effectively the high levels of expectations for UN management reform, including issues such as proper accountability, responsibility and oversight mechanism. In other words, if since its unsustainable shortcomings the UN system of administration of justice is the issue where it has become politically impossible for all stakeholders to even question the need for the reform, it is imperative that all parties are genuinely motivated to accept that this is an area which, finally, must be governed by principles of law, and not by some odd mix of judicial discretion and political concerns.

If the discourse on the new UN system of administration of justice will be the opportunity for financing threats, resistance to change, political agendas or utter denial of its necessity, then it is very difficult to see how any kind of true reform of the United Nations can ever happen. Certainly, much resistance to the new system is expected, but, in a real collaborative effort, Member States should be motivated to accept it by a Secretariat which sticks to sound management policies. Process can be costly and arduous, but there has never been an age when the world has needed the work of the United Nations as much as it increasingly does today. 

In order to fulfill the increasingly complex mandates the Organization is entrusted with, change is indispensable. The issue of a fair system of administration of justice in the United Nations is a practical tool to find out if the Secretariat and Member States are collectively willing to take the responsible measures to really change the Organization, or just settle for another round of endless negotiations which will eventually produce some statement of intentions good only for claiming that the UN has been reformed. As the process continues and parties embark on further discussions, it must be absolutely clear to everyone that a justice system which violates basic human rights and does not properly defend against arbitrariness can "finally destroy an international organization however high its ideals and purposes"[1].The people of the world can only ignore the self-destructive danger of mankind's best ally at their peril.

 

Related information:

Updates & News, On 2008 Christmas Eve the UN General Assembly adopted a resolution that paves the way for a new system of administration of justice in the United Nations (Good News, 25 December 2008)

Updates & News, The General Assembly appoints the judges to the dispute tribunals (Good News, 4 March 2009)

Frontages, 1 July 2009, Now's the moment for change (Frontpage, 1 July 2009)