ACTION REQUEST: SIXTH COMMITTEE DRAFT DECISION AND

UNCLAS USUN NEW YORK 001020

SIPDIS

SIPDIS

DEPARTMENT FOR IO/UNP EDMONDSON

E.O. 12958: N/A
TAGS: UNGA UNGA
SUBJECT: ACTION REQUEST: SIXTH COMMITTEE DRAFT DECISION AND
CONCLUSION PAPER ON ADMINISTRATION OF JUSTICE


1. ACTION REQUEST: USUN requests instructions from the
Department to join consensus on the Sixth Committee's draft
decision, conclusions paper on Administration of Justice, and
accompanying cover letter (agenda item 137) contained in para
3 - 5, or substantially similar text. USUN also seeks
instructions on whether to make an explanation of position
after the Sixth Committee adopts the documents, emphasizing
our understanding that the ad hoc committee would not
consider any issue relating to the administration of justice
agenda item if the General Assembly reaches a final decision
on that issue; even if the Sixth Committee previously
discussed that issue. The Sixth Committee will take action
on this item on November 19, 2007. USUN point of contact for
this resolution is Elizabeth Wilcox, (212) 415-4220,
WilcoxE@state.gov. END ACTION REQUEST.


2. BACKGROUND/COMMENT: As discussed, the Sixth Committee has
agreed ad ref on the three documents reflecting its
discussions on the administration of justice agenda item.
The first document in para 3 is a draft decision for adoption
by the General Assembly that would establish an ad hoc
committee to meet in April 2008 to continue to discuss the
legal aspects of the proposed reform of the UN's system of
administration of justice. The decision also would request
the Secretary-General to supply certain information for the
ad hoc committee to consider. The language of the decision
is caveated to take into account any subsequent decisions the
General Assembly may adopt concerning the administration of
justice agenda item before the ad hoc committee convenes.
The second document in para 4 contains the conclusions of the
Sixth Committee's consideration the administration of justice
agenda item. The third document in para 5 is a cover letter,
by which the Sixth Committee Chairman would transmit the
Committee's conclusions to the Vice President of the General
Assembly and the Secretary General. The UN Secretariat has
advised USUN that none of the documents would have
extrabudgetary implications. END BACKGROUND/COMMENT.



3. Text of draft decision on administration of justice:

BEGIN TEXT:

Monday, 12 November 2007

Draft decision
Administration of Justice at the United Nations (137)

The General Assembly takes note of the conclusions of the
Sixth Committee on the Administration of justice at the
United Nations following its consideration of the legal
aspects of the report of the Secretary-General, requests the
Secretary-General to respond to the requests for information

SIPDIS
contained in that document, taking into account any further
decisions that the General Assembly may take during its
sixty-second session prior to the meeting of the Ad Hoc
Committee referred to below, and decides to establish an Ad
Hoc Committee on the Administration of Justice at the United
Nations, to be open to all States Members of the United
Nations or members of specialized agencies or of the
International Atomic Energy Agency, for the purpose of
continuing the work on the legal aspects of the item, taking
into account the results of the deliberations of the Sixth
Committee on the item, previous decisions of the General
Assembly and any further decisions that the General Assembly
may take during its sixty-second session prior to the meeting
of the Ad Hoc Committee. The Ad Hoc Committee shall meet
from 10 to 18 April, and on 21 and 25 April 2008, and shall
report on its work to the General Assembly at its sixty-third
session. The General Assembly also decides to include in the
provisional agenda of its sixty-third session the item
entitled "Administration of justice at the United Nations".

END TEXT.


4. Text of the Sixth Committee's conclusion paper on
administration of justice:

BEGIN TEXT:

ADMINISTRATION OF JUSTICE AT THE UNITED NATIONS CONCLUSIONS
OF THE SIXTH COMMITTEE

GENERAL ISSUES

Points of agreement


1. All procedures in the system of administration of justice
should be consistent with relevant rules of international law
and recognized principles of rule of law and due process.
Adequate safeguards should be considered to facilitate


equality of access of staff members, regardless of their duty
stations, to the system of justice and to exercise their
right to be heard in the administration of justice system.

Proposed scope of the new system

Points of agreement


2. The new system of administration of justice shall be
accessible to all staff covered by the current system.

Issues requiring further consideration


3. Further consideration should be given to the
recommendations by the Secretary-General and Member States
that the new system of administration of justice be extended
to certain categories of non-staff personnel.

Requests for further information


4. Further information is requested on the following points:

- the different categories of non-staff personnel performing
personal services for the Organization, including experts on
mission and UN officials other than staff members of the
Secretariat;

SIPDIS

- the types of dispute settlement mechanisms available to the
different categories of non-staff personnel and their
effectiveness;

- the types of grievances the different categories of
non-staff personnel have raised in the past and what bodies
of law are relevant to such claims;

- any other mechanism that could be envisaged to provide
effective and efficient dispute settlement to the different
categories of non-staff personnel taking into account the
nature of their contractual relationship with the
Organization.

Legal assistance for staff

Points of agreement


5. Legal assistance for staff should continue to be provided
and the strengthening of a professional office of staff legal
assistance should be supported. Any legal assistance
provided by the Organization should be accessible to staff
members regardless of their duty stations. A code of conduct
should regulate the activity of the individuals providing
legal assistance for staff to ensure their independence and
impartiality.

Issues requiring further consideration


6. Further consideration should continue to be given to the
question of how best to enhance a professional office of
staff legal assistance, including how best to improve the
legal assistance currently provided to staff.

Requests for further information


7. Further information is requested on the specific barriers
which make it difficult for staff within the United Nations
system to be able to access the services of private lawyers,
as well as those which limit the ability of private lawyers
to be able to serve the needs of staff within the United
Nations system, and on what means are potentially available
to improve or expand their ability to do so. Further
information is also requested on how the issue of legal
advice and representation for employees is addressed by other
international organizations.

INFORMAL SYSTEM OF JUSTICE

Qualifications, selection and terms of reference of the
Ombudsman

Points of agreement


8. The nomination and process for the selection of the United
Nations Ombudsman, independent from the parties to potential
disputes, shall be transparent and ensure the trust of all
those involved in the system of administration of justice.

Mediation

Points of agreement


9. Staff and management should be encouraged to resort to


mediation as means for resolving disputes.


10. All staff members, regardless of their duty stations,
should have access to mediation. Statements made during the
mediation process shall remain confidential by all concerned
and shall be inadmissible in subsequent litigation.
Agreements concluded by way of mediation shall be binding on
the parties and shall be enforceable in the formal system of
justice.

Issues requiring further consideration


11. Further consideration should be given to the conditions
under which the United Nations Dispute Tribunal may refer
cases pending before it to mediation, including the
requirement of the consent of the parties and the issue of
time frames

FORMAL SYSTEM OF JUSTICE

Judges

Points of agreement


12. Judges of the United Nations Dispute Tribunal and the
United Nations Appeals Tribunal shall be of high moral
character, have respectively 10 and 15 years of judicial
experience in the field of administrative law or its
equivalent within their national jurisdiction, and serve
strictly in their personal capacity and enjoy full
independence. Due consideration should be given to gender
and regional balance in the nomination and process for the
selection of judges.


13. Judges of the United Nations Dispute Tribunal and of the
United Nations Appeals Tribunal shall be elected/appointed by
the General Assembly. The election/appointment of judges
should be staggered so as to ensure a partial periodical
renewal of the composition of each Tribunal.


14. Judges of the United Nations Dispute Tribunal and of the
United Nations Appeals Tribunal shall be elected/appointed
for one non-renewable term on any one of the two tribunals.


15. Judges of the United Nations Dispute Tribunal and of the
United Nations Appeals Tribunal shall be removable only by
the General Assembly and exclusively on grounds of misconduct
or incapacity.

Issues requiring further consideration


16. A mechanism shall be identified for the compilation of
lists of persons eligible for appointment to the judicial
positions at the United Nations Dispute Tribunal and of the
United Nations Appeals Tribunal to ensure that the required
qualifications for these positions are fulfilled. Further
consideration should be given to the process for the
nomination and selection of judges to be elected/appointed,
including the possible establishment, composition and
functions of the proposed Internal Justice Council. Further
consideration should also be given to the process of
election/appointment of the judges.


17. Further consideration should be given to whether the term
served by judges of the United Nations Dispute Tribunal and
the United Nations Appeals Tribunal should be six or seven
years.


18. Further consideration should be given to mechanisms
relating to the initial election/appointment of judges,
including how best to implement the decision that the
election/appointment of judges should be staggered so as to
ensure a partial periodical renewal of the composition of
each Tribunal.


19. Further consideration should be given to mechanisms of
formal removal of judges, definition of the grounds of
misconduct or incapacity and the means for the establishment
of such grounds in a specific case.


20. Further consideration should be given to the question of
whether a decision on first instance should be decided by a
single judge or a panel of three judges.

Jurisdiction and powers of the United Nations Dispute
Tribunal and the United Nations Appeals Tribunal

Points of agreement


21. Compensation ordered by the Tribunals shall normally be
subject to the limit of two years salary.



Issues requiring further consideration


22. Further consideration should be given to the question of
the jurisdiction ratione materiae of the United Nations
Dispute Tribunal.


23. Further consideration should be given to the question of
appeals by staff associations before the formal system of
justice.


24. Further consideration should be given to the question of
the grounds of appeals before the United Nations Appeals
Tribunal.


25. Further consideration should be given to defining
specific extraordinary circumstances under which it might be
appropriate for the Tribunals to award compensation in excess
of two years salary.


26. Further consideration should be given to the question
whether, and under what circumstances, specific performance
might be ordered by the Tribunals as an alternative to
compensation.

Requests for further information


27. Further information or clarification is requested on the
following points:

- the types of claims former staff members have been eligible
to bring and have brought before the United Nations
Administrative Tribunal;

- whether the Secretariat and the United Nations
Administrative Tribunal interpret the phrase terms of
appointment in Article 2, paragraph 1, of the its statute to
extend beyond the written terms of the relevant employment
contract, staff regulations, and staff rules and, if so, on
what legal basis;

- the conditions of employment or the duties of the
Organization to its staff;

- the proposal to empower the United Nations Dispute Tribunal
and the United Nations Appeals Tribunal to refer appropriate
cases to the Secretary-General and the heads of funds and
programs for possible action to enforce accountability and,
in particular, how the role of the Secretary-General in this
regard will be different from that of the formal system of
justice and what mechanisms will prevent duplication of
efforts;

- the Secretary-Generals proposal to empower the United
Nations Dispute Tribunal, upon request by the staff member
concerned, to suspend action on implementation of a contested
administrative decision and specifically, on the criteria the
Tribunal would apply in suspending such action;

- composition and role of staff associations.

Registries of the United Nations Dispute Tribunal and the
United Nations Appeals Tribunal

Points of agreement


28. The structure of the registry or registries of the United
Nations Dispute Tribunal and the United Nations Appeals
Tribunal shall ensure the Tribunals impartiality and avoid
any potential conflict of interest, both real and perceived.

Issues requiring further consideration


29. Further consideration should be given to the question
whether the United Nations Dispute Tribunal and the United
Nations Appeals Tribunal shall have one single registry,
provided that it shall only manage and administer cases, or
separate registries, in the case that they provide legal
assistance to judges on the cases before the Tribunals.

Adoption of the rules of procedure by judges of the United
Nations Dispute Tribunal and the United Nations Appeals
Tribunal

Points of agreement


30. The United Nations Dispute Tribunal and the United
Nations Appeals Tribunal shall establish their own rules, in
conformity with the provisions of their Statutes. The rules
of procedure established by the Tribunals shall be subject to
approval by the General Assembly.



END TEXT.


5. Text of draft letter from Sixth Committee Chairman to
UNGA Vice President regarding the Sixth Committee's work on
administration of justice during the 62nd session:

BEGIN TEXT:

Your Excellency,

I have the honour to write to you with regard to agenda item
137, Administration of Justice at the United Nations.

As you are aware, at its third plenary meeting on 21
September 2007, the General Assembly decided to allocate this
item to the Fifth Committee and to the Sixth Committee in the
light of its resolution 61/261 of 4 April 2007.

During the present session, the Sixth Committee has
considered this item in plenary at its 2nd and 17th meetings
on 8 and 26 October 2007, as well as in the form of a Working
Group. The Sixth Committee considered the legal aspects of
the Secretary-Generals report on the Administration of
justice at the United Nations (A/62/294),consistent with
paragraph 35 of resolution 61/261. It should be noted that
the report of the ACABQ (A/62/7/Add.7) was issued after the
Working Group of the Sixth Committee had completed its
deliberations.
During these meetings, the Sixth Committee has made a number
of conclusions, which are attached in an annex to the present
letter.

I should emphasize that these conclusions, which reflect the
contents of the discussions at the Sixth Committee, do not
address all the legal aspects of the item. As a consequence,
the absence of comments on any legal issue should not be
interpreted as meaning that the Sixth Committee has
necessarily reached an agreement on that issue. The Sixth
Committee has decided that it should continue to discuss this
item in light of further information provided to it, as well
as any further decisions that the General Assembly may take
on this item at its current session.

It would be appreciated if this letter, together with its
annexes containing conclusions (Annex I) and the content of
the recommendation of the Sixth Committee to the General
Assembly (Annex II),could be brought to the attention of the
Chairman of the Fifth Committee and the Secretary-General,
and be circulated as a document of the General Assembly,
under agenda item 137, Administration of Justice at the
United Nations.

Please accept, Your Excellency, the assurances of my highest
consideration.

Alexei Tulbure
Chairman of the Sixth Committee of the General Assembly

END TEXT.
Khalilzad