UNITED NATIONS - LEGAL EXPERTS COMPLETE FINAL

UNCLAS USUN NEW YORK 000686

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: AORC APER PREL UNGA UNGA UNGA
SUBJECT: UNITED NATIONS - LEGAL EXPERTS COMPLETE FINAL
CONSULTATIONS ON ADMINISTRATION OF JUSTICE STATUTES

REF: A. USUN/IO EMAIL (WILCOX/HACKETT)-07/16/08

B. USUN 562

C. STATE 51372

D. USUN 491

E. USUN 413

F. STATE 37257


1. (U) BEGIN SUMMARY: General Assembly Sixth (Legal)
Committee experts considered the draft statutes for the new
UN Dispute Tribunal (UNDT) and the UN Appeals Tribunal (UNAT)
from June 30-July 3. While delegations made progress, they
did not reach agreement on all provisions of the statutes.
The General Assembly agreed on July 28 that the Ad Hoc
Committee on Administration of Justice would meet once in
August to allow the German Coordinator to report on the
discussions and to have his summary, as set forth in an
annotated table containing proposed amendments to the draft
statutes (ref A),issued as an addendum to the April 2008
report of the Ad Hoc Committee (A/63/55). That meeting will
take place on August 5. USUN expects the Sixth Committee to
consider the statutes based on the Coordinator's texts next
fall, unless the Fifth Committee (Administrative and
Budgetary Questions),which will ultimately adopt the
statutes, does so first. END SUMMARY.


2. (U) BACKGROUND: The German Mission's Legal Adviser
coordinated the final round of informal consultations of
Sixth Committee experts on the draft statutes for the new UN
Dispute Tribunal (UNDT) and UN Appeals Tribunal on June
30-July 3. Sixth Committee experts had held two previous
rounds of informal consultations on the draft statutes on May
12-16 and June 9-11 (ref B). Delegations remain divided on
issues of principle such as the number of judges to hear
certain cases before the UNDT, whether to allow the UNAT to
address de novo issues of fact, or whether to allow the UNDT
and the UNAT to grant interim temporary relief. Most
delegations also continued to oppose as unnecessary and
overly complex various U.S. technical proposals to define and
in some cases limit the tribunals' powers.


3. (U) SUBJECT-MATTER JURISDICTION--UNDT: Sixth Committee
delegates agreed to recommend that the UNDT retain the
subject-matter jurisdiction of the current UN Administrative
Tribunal, as the United States had proposed.


4. (SBU) SUBJECT-MATTER JURISDICTION-UNAT: Many delegations
reacted negatively to the written U.S. proposals concerning
the circumstances under which the UNAT could reverse or
modify the UNDT's findings of fact. The G-77, for example,
argued that the U.S. language was too complicated and would
make it virtually impossible for the UNAT to reverse or
modify the UNDT. COMMENT: USUN understands that the G-77
was prepared to accept the U.S. proposals on this issue set
forth in ref C, and believes that a simplified proposal might
be more acceptable to some other delegations. See ref B.
END COMMENT.


5. (U) SCOPE: Delegations remained divided over the
Secretariat's proposal to allow the UNDT to hear claims
brought by non-staff personnel. The G-77 argued that the
Fifth Committee should make a final decision on the issue
next fall and that the Sixth Committee had exhausted its
discussions on the issue. Others contended that the General
Assembly should agree next fall on a new means of recourse
for the UN's non-staff personnel that would replace the UN's
current use of arbitration under the UNCITRAL rules. The EU
and others proposed that the UNDT should not be open to
non-staff personnel initially, but that the Sixth Committee
should continue to consider types of recourse available to
ensure that non-staff personnel have an effective remedy for
resolving their disputes with the UN.


6. (U) USUN has advised other delegations that the United
States will present an alternative proposal next fall for
alternative dispute resolution based on simplified
arbitration procedures that are locally and regionally based.
Mission requests instructions and text of the proposal by
the beginning of the fall session of the GA (mid-September).
In the meantime, Mission will seek to develop information and
analysis on that matter, and will keep the Department
apprised of its efforts.


7. (U) STAFF ASSOCIATIONS: Delegations agreed that the UNDT
and the UNAT could consider "friend of the court" briefs but
not class action suits brought by staff associations. The
G-77 continued to maintain that staff associations should be
able to bring claims in their own right, however.


8. (SBU) JUDGES: Delegations remained divided over the
Secretariat's proposal to allow the UNDT to refer a case to
three-judge panels of the UNDT, with the EU and the G-77
continuing to insist that such panels should be able to hear


cases "when necessary by reason of complexity." Delegations
could not agree to an informal Australian proposal to allow
the UNDT to refer a specific legal question to a panel of
UNDT judges to resolve. The EU and the G-77 both also
rejected USUN's effort to modify the Australian compromise to
have legal questions referred to the UNAT, arguing that doing
so would create unnecessary delays since the UNAT will not be
a standing body and might also prejudice the UNAT's
consideration of appeals. COMMENT: If we are prepared to
agree to allow UNDT judges to refer specific legal questions
to panels of UNDT judges, the EU and the G-77 might settle
for language allowing the UNDT to refer legal questions but
not entire cases to panels of UNDT judges. In any event, the
EU has made clear that this issue represents its key redline.
END COMMENT.


10. (U) SELECTION OF JUDGES: Delegations resolved various
issues on the statutory language concerning the selection of
judges but could not agree on whether the statutes should say
that the General Assembly should appoint or elect judges.
The G-77 insisted that the General Assembly should elect
judges and should not do so by acclamation, while the
European Union argued that the statute should use the word
"appointed," consistent with the language in GA resolution
62/228.


11. (U) TRANSITIONAL MEASURES: At delegations' request, the
German Coordinator prepared a list of options for the Fifth
Committee to consider. That list includes the U.S. proposal
that any claims should be transferred to the new system of
justice unless a Joint Appeals Board or Joint Disciplinary
Committee has been constituted to address them as of December
31, 2008.


12. (U) AWARDS: Delegations agreed that the Secretariat's
proposal to allow the two tribunals to award interest or
costs required additional consideration, given the financial
implications and potential incentives or disincentives to
litigation that such awards could create.


13. (U) OTHER ISSUES: The EU and the G-77 continued to
oppose various U.S. technical proposals to clarify the
tribunals' powers and, in many cases, circumscribe their
discretion, arguing that many of these issues should be
addressed in the tribunals' rules of procedure. For
instance, the circumstances under which the UNDT and the UNAT
can provide temporary relief remained in dispute. The G-77
made a promising offer to allow the UNDT to grant temporary
relief to exclude the tribunal from doing so in cases
involving appointments and terminations, but withdrew it when
USUN would not agree to accept its proposal concerning the
scope of the UNAT's jurisdiction and to permit the UNDT to
hear claims brought by staff associations in their own right.
The G-77 also continued to insist on a five-year statute of
limitations, and the EU and the G-77 opposed U.S. efforts
define the registries' role with respect to summary
dismissals and to require litigants to take informal measures
before appealing to the UNDT to enforce mediation agreements.


14. (SBU) The EU, Switzerland, and G-77 also continued to
insist that the UNDT and UNAT statutes should require the
Secretary-General to provide for the travel and related costs
of staff and judges (ref B). COMMENT: Since the General
Assembly has already addressed this issue with respect to the
UNDT, there should be room for compromise on the UNDT
statute. Whether such language is acceptable for the UNAT,
in the absence of a General Assembly decision on the matter,
requires closer consideration. Switzerland and others argue
that resolution 62/228 should be read to cover both the UNDT
and the UNAT and want that language in the UNAT statute to
ensure that the UNAT will sit both in New York and in Geneva,
as the current UN Administrative Tribunal does. END COMMENT.


15. (U) NEXT STEPS: The Fifth and Sixth Committees will
consider the statutes with a view to adopting them in the
fall. A Working Group of the Sixth Committee is scheduled to
meet eight times in October to discuss the legal aspects of
the reform of the UN's system of justice. USUN expects the
Working Group to discuss the draft statutes and other aspects
of the reform initiative, including the mandate of the new
Office of Staff Legal Assistance and means of recourse for
non-staff personnel. The Fifth Committee's schedule for
considering the issue is unlikely to be completed until
September. Delay in reaching consensus on the draft statutes
will affect the start-up of the new system of justice. The
GA has previously agreed that the new system should commence
on January 1, 2009. While all elements may not be fully
operational by January 1, 2009, there is consensus that the
GA should complete action on the statutes and other matters
"essential" to the operations of the new system by the
conclusion of the fall session.
Khalilzad