|
As
the intern has not yet been provided “with an
appropriate mode to settle this dispute”, the Italian
Ministry of Foreign Affairs steps in
10 February
2012
More than three years on,
the undertaking contained in the 18 June 2008 UN Legal
Counsel memorandum to the Permanent Representative of
Italy to the UN is still held in abeyance and the case
of Dr. di Giacomo, a former intern of the Organization,
is currently pending before the UN Appeals Tribunal. The
memorandum states that “Under Article VIII, Section 29
(b) of the General Convention…(Dr. di Giacomo) must be
provided with an appropriate mode of settlement of his
dispute”.
When last September the UNDT handed down its judgment regarding
this case, it suggested that the intern’s right to settle this
dispute be protected. In paragraph 41 of Judgment No. 168 of
2011, di Giacomo v. Secretary-General of the United Nations, the
UNDT stated:
“The Tribunal notes that
ruled that by letter of 18 June 2008, sent by the
Under-Secretary-General for Legal Affairs to the Permanent
Representative of the Applicant’s country [Italy] to the
United Nations, the Organization appears to have made an
undertaking to provide the Applicant with “an appropriate
mode of settlement of his dispute.” However, due to the
existing jurisdictional limitations, the Tribunal is not
competent to consider this application, which stands to be
dismissed without consideration of its merits.”
The mention in the UNDT’s judgment of both the commitment of the
UN to settle this dispute, and of “the right to an effective
remedy” contained in the Universal Declaration of Human Rights
and in the International Covenant on Civil and Political Rights,
was a moral victory. Furthermore, it made the reasons why the
Organization has not yet carried through its promise to settle
this dispute even more inexplicable.
The continued inaction by the Organization also prompted the
Italian Ministry of Foreign Affairs to raise this case at a
recent meeting with the UN Administration in New York.
As acknowledged in 2008 by the UN Legal Counsel, the General
Convention expressly provides for appropriate modes of
settlement of disputes if immunity has not been waived by the
Secretary-General.
The settlement process described in Article VIII, Section 29 of
the General Convention is explained in Article V, Section 21 of
the same document, which states that the UN will “cooperate at
all times with the appropriate authorities of Members to
facilitate the proper administration of justice, secure the
observance of police regulations and prevent the occurrence of
any abuse in connection with the privileges, immunities and
facilities set out in Article V.”
Further guidance is given in the UN policy document entitled
"Procedures in Place for Implementation of Article VIII, Section
29, of the Convention on the Privileges and Immunities of the
United Nations (A/C.5/49/65)", according to which this dispute
should have been settled though arbitration, but the
Organization has failed to agree to it yet.
Reparation is a principle of international law that has existed
for centuries. As stated in the Chorzów
Factory case of the Permanent Court of International
Justice, "it is a principle of international law that the breach
of an engagement involves an obligation to make reparation in an
adequate form."
In this regard, compensation and an effective access to obtain
it are both part of the general obligation to afford
reparation.
If the possible recourse to diplomatic protection is one of the
evils that the Secretary-General has always tried to prevent
because of the consequences on the independent character of the
Secretariat prescribed by the Charter, it is difficult to see
what else the persons whose right to access court is not
recognized by the current statues of the UN internal tribunals -
or the Organization’s engagement to settle a dispute not been
fulfilled - can do if they are denied any remedy whatsoever.
UNJustice believes that honouring the undertakings and legal
obligations of the United Nations is especially important in
cases like this where the Organization has requested immunity
from legal process to one of its Member States. This is because
in such cases a denial of justice can also have far-reaching
consequences on that country, namely on its human rights
obligations. An affirmation that a State is bound by the General
Convention to grant immunity to the Organization while the
Organization is not bound to provide for adequate modes of
settlement of disputes to nationals of that State would be
inconsistent with fair play and harm both the rule of law and
human rights.
Related information:
UN
Settlement Policy: Procedures in place for
implementation of article VIII, section 29, of the
Convention on the Privileges and Immunities of the
United Nations, adopted by the General Assembly on 13
February 1946, Report of the Secretary-General,
A/C.5/49/65 (1995)
Italian Ministry of
Foreign Affairs, International and Diplomatic
Litigation Division, to Dr. di Giacomo -letter, 7 December 2011-
UNDT/2011/168 (di Giacomo)
Updates & News,
UNDT ruling
on Italian intern’s case greeted with concern and shock
(News 31 October 2011)
Urgent Appeal,
UN-WFP
official imagines she is a “slave girl” and has “the
sickest fantasy of being punished”. The UN’s call on an
Italian intern to keep a scandal secret: justice
urgently needed
(20 May
2009)
|
