SIXTH COMMITTEE DIVIDED OVER NEW SYSTEM OF

UNCLAS USUN NEW YORK 001109

SIPDIS

SIPDIS

E.O. 12958: N/A
TAGS: UNGA UNGA UNGA
SUBJECT: SIXTH COMMITTEE DIVIDED OVER NEW SYSTEM OF
ADMINISTRATION OF JUSTICE

REF: USUN 1020


1. SUMMARY: At the conclusion of its sixty-second session,
the Sixth Committee had yet to reach consensus on a number of
key issues concerning the legal aspects of the proposed
reform of the UN system of administration of justice, a
measure that the UN Advisory Committee on Administrative and
Budgetary Questions (ACABQ) estimated will cost 56.2 million
dollars to implement. In its draft decision (reftel),the
Sixth Committee deferred consideration of many substantive
issues it plans to revisit in an ad hoc committee that will
convene in April 2008. The General Assembly's Fifth
Committee (Administrative and Budgetary Questions) began its
consideration of the proposed reforms on November 8 and may
resolve some of the issues the Sixth Committee could not.
END SUMMARY.


2. In an October briefing to the Sixth Committee, the ACABQ
Chairman said the full implementation of the new system of
internal justice at the UN would cost 56.2 million dollars.
The new proposed system of administration of justice is
intended to replace the UN's current system beginning in
January 2009. By the conclusion of its sixty-second session,
however, the Sixth Committee had yet to reach consensus on
many key issues.


3. The Sixth Committee's discussions on the legal aspects of
the proposed new system of administration of justice centered
on the scope of the new system, legal assistance for staff,
the informal and formal systems of justice, and transitional
measures. The basic disagreement over how to reform the
system of justice was between delegations that argued that
the legal principles of transparency and fairness should be
given primary consideration without regard to administrative
and budgetary implications, and those delegations (namely,
the U.S. and Japan) that argued for reform that reinforced
transparency and fairness, but also considered the
administrative feasibility of the Committee's proposals.


4. As to the scope of the new system, the only agreement
reached in the Sixth Committee was that staff covered by the
current system of internal justice would be covered under the
new system. Beyond this basic agreement, delegations' views
varied among those arguing to limit access to direct-hire UN
staff and those advocating a system that granted access to
any person working for the UN or a UN mission, without regard
to whether they are staff or non-staff. Many delegations,
notably the EU, argued that all personnel categories should
have recourse to a system of justice. USUN pointed out that
contractors and non-staff members had access to justice
through local remedies, or as stipulated in their contracts.
In the end, delegations chose to postpone a decision on scope
and request more information about the different categories
of non-staff, their access to justice, and the types of
grievances such employees have raised in the past.


5. The provision of legal assistance to UN staff was another
contentious issue. Most delegations felt strongly that
existing legal assistance for staff should be expanded. The
Secretary-General's Report recommended the establishment of

SIPDIS
an Office of Legal Assistance staffed by 11 lawyers who would
provide advice and serve as counsel of record on behalf of
employees involved in litigation against the UN. USUN was
most vocal in opposing the Secretary-General's proposal,
particularly the idea that legal assistance should include
representation in litigation. Delegations that favored
litigation assistance argued the UN system was so unique that
employees would not be able to hire well-qualified outside
counsel to represent them in a dispute. The Sixth Committee
agreed to support the idea of legal assistance in general
(consistent with General Assembly Resolution 61/261) with the
understanding that further consideration should be given to
how best to enhance the current system.


6. Delegations were able to agree on many issues related to
the informal system of justice. Delegations said that staff
and management should be encouraged to use mediation in
dispute settlement whenever possible and that access to
mediation should be made available to all staff members.
There was disagreement, however, over whether the United
Nations Dispute Tribunal (UNDT) could refer parties to
mediation. Portugal opposed giving the UNDT such authority,
arguing that the decision to enter into mediation was
voluntary. Other delegations countered that granting UNDT
the right to refer to mediation would facilitate
non-litigious dispute settlement.


7. The Sixth Committee reserved many elements of the formal
system of justice for further consideration. Delegations
reached general agreement about the desired qualifications of
judges serving on the UNDT or the United Nations Appeal
Tribunal (UNAT),and agreed that the General Assembly should
approve the appointment and dismissal of judges. However,


delegations could not reach consensus on a mechanism for
compiling a list of judges eligible for appointment.
Delegations also argued about whether cases before the UNDT
should be heard by a three-judge panel, or a single judge.
Most delegates agreed that judges should be appointed for one
term; however, the Committee could not decide on the length
of the term, for which suggestions ranged between five and
seven years.


8. Delegates reached virtually no agreement regarding the
jurisdiction and powers of the UNDT and UNAT. A significant
point of disagreement was whether or not the UNAT should hear
questions of mixed fact and law, or only questions of law.
Many NAM delegations supported a UNAT with the power to hear
both aspects, arguing that this was the only way to guarantee
a fair second hearing. Furthermore, proponents of this view
said the authority to hear questions of mixed fact would
allow UNAT to consider new evidence and review possible
errors made by UNDT, as appropriate. The EU said the UNAT
should address both fact and law if only one judge considers
claims in the UNDT, due to the risk that the UNDT judge might
be biased due to cultural or other factors. As to
registries, some delegations said that a single registry
would be appropriate if the role envisaged for the registry
was purely administrative. However, if the registry would
provide assistance to judges and conduct legal research, many
delegations would favor a separate registry for UNDT and
UNAT.


9. The Sixth Committee's conclusion paper on administration
of justice did not address transitional measures for
transferring outstanding cases to the new system; however,
delegations did comment on this issue during the debate. One
proposal was to assign the new UNAT with the task of hearing
cases from the old system until the backlog of old cases is
eliminated. Some delegations, however, balked at the notion
of maintaining parallel justice systems. Another suggestion
was simply to transfer old cases to the new system in January
2009, although some delegations worried that differences in
the legal standards used to adjudicate cases in the old and
new system could create problems. Delegations also raised
the question of how international organizations that use the
old UNAT as their administrative tribunal, such as the
International Maritime Organization, will fit into the new
system of administration of justice.
Khalilzad