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